and transfers that occurred prior to plaintiff's phone calls were justified because of disruptive behavior or inter-office conflicts.
Defendants next argue that plaintiff fails to connect the individual defendants to the alleged retaliatory employment actions. Plaintiff sues defendants in their individual capacities for purposes of his § 1983 claims. As noted in the facts above, after speaking to Whitney, plaintiff was reassigned numerous times to allegedly inferior shifts. To prevail in his First Amendment retaliatory claim plaintiff must establish a causal ink between his exercise of protected speech and disciplinary actions taken by defendants that were allegedly in violation of plaintiff's rights. Caldwell v. City of Elwood, 959 F.2d at 672. "Section 1983 creates a cause of action based upon personal liability and predicated upon fault; thus, liability does not attach unless the individual defendant caused or participated in a constitutional depravation. Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994). It is well-settled law that a plaintiff cannot base a § 1983 claim on the theory of respondeat superior. DelRaine v. Williford, 32 F.3d 1024, 1047 (7th Cir. 1994); see also, Patton v. Przybylski, 822 F.2d 697, 701 (7th Cir. 1987) (involvement of head of department must be pled with greater specificity in civil rights case).
As discussed above, plaintiff is entitled to pursue his claim that he was retaliated against for his statements to Whitney from November 1991 through March 1993. During this time, plaintiff alleges that Whitney, with Byrne's approval, ordered multiple reassignments to less desirable shifts and assignments within the EMU. Attached to plaintiff's response are copies of the inter-office memoranda that were sent to plaintiff notifying him of his reassignments. All of the memoranda are signed by Whitney, and the majority of them state that a copy should be sent to Byrne, Whitney's superior. Accordingly, viewing this evidence in a light most favorable to plaintiff, the court finds that there is sufficient evidence that Whitney and Byrne were involved in plaintiff's reassignments.
The next set of retaliatory actions alleged in the amended complaint involve Goldsmith and Carik. Plaintiff alleges that subsequent to plaintiff's meeting with Goldsmith and Carik, those parties "conspired" to initiate an internal affairs investigation against plaintiff, and on March 31, 1993, plaintiff was detained when he went into the Bridgeview Court House, forced to turn over his badge and gun, and taken to an office for interrogation on allegations of intimidating witnesses. Plaintiff alleges that the witness intimidation charges were "trumped up" by defendants. Plaintiff further alleges that in April 1993, Goldsmith and Carik transferred plaintiff to an assignment that allegedly is considered "punishment" to other employees in the Sheriff's Office. As discussed above, plaintiff's retaliation claim against Goldsmith and Carik must fail if the defendants can show that the decision to investigate plaintiff and transfer him was reasonable in the absence of the Protected conduct. Mt. Healthy City School District, 429 U.S. at 287.
Defendants deny that the IAD investigation of plaintiff for alleged witness intimidation was "trumped up," and attach both Officer Taylor's police report and the IAD Supplementary Report and Summary of Investigation. Plaintiff does not deny the facts alleged in Officer Taylor's report. Defendants also submit an affidavit from Pluta, the IAD investigator who investigated the witness tampering allegations filed against plaintiff and wrote the investigation report. In his affidavit, Pluta states that the investigation ensued based on Chicago Police Officer Taylor's report. Pluta denies that there was any conspiracy to investigate or persecute plaintiff, that the witness tampering charges were determined by IAD to be meritorious, and the investigation was turned over to the Cook County Assistant State's Attorney's office.
Plaintiff fails to submit any evidence refuting Pluta's affidavit, or Taylor's police report. Further, plaintiff is not entitled to damages for actions that occurred subsequent to the time defendants discovered plaintiff's application falsification in the beginning of March 1993. Accordingly, the court finds that plaintiff fails to state a claim against Carik and Goldsmith under § 1983. Further, because plaintiff cannot establish that Carik's and Goldsmith's actions were in retaliation for plaintiff's speech, the court finds that plaintiff fails to state a claim under the Illinois Constitution, Article I, Section 4.
Addressing the allegations against Sheahan, in his amended complaint plaintiff alleges that Sheahan, through the State's Attorney's Office, contacted the Illinois State Police, causing Illinois to revoke plaintiff's firearms ownership identification card (a "FOID" card). Defendants assert that once plaintiff's federal criminal history was uncovered, it was Sheahan's duty to notify the proper authorities because it was illegal for plaintiff to have a FOID card. Based on the evidence before it, the court finds that Sheahan's actions, notifying the authorities of plaintiff's criminal history after discovering that plaintiff had failed to admit his federal conviction on his employment application, was reasonable even in the absence of any protected conduct. The only other allegation against Sheahan is that he suspended plaintiff without pay. This decision, as discussed above, was reasonable based on plaintiff having falsified his employment application. The court finds, therefore, that plaintiff fails to state a claim under § 1983 or the Illinois Constitution, Article I, Section 4, against Sheahan. Accordingly, the court grants defendants Carik's, Goldsmith's, and Sheahan's motion for summary judgment on Count I and Count III of the amended complaint.
Defendants argue that even if plaintiff states a valid § 1983 claim, defendants are entitled to qualified immunity from damages because their alleged conduct did not violate clearly established rights. The doctrine of qualified immunity shields government officials from performing discretionary functions from liability for civil damages "insofar as their conduct does not violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). As the court held in Gorman, 977 F.2d at 355, in a First Amendment context this argument must be viewed "with some skepticism because courts have long recognized that an employer may not retaliate against an employee for expressing his views about matters of public concern." citing, Pickering, 391 U.S. 563, 574, 88 S. Ct. 1731, 20 L. Ed. 2d 811.
The court finds that there is sufficient case law from this circuit establishing that a plaintiff's speech about alleged official misconduct made to proper authorities is protected. See, Conner, 847 F.2d at 386-387 (city clerk stated a § 1983 claim against former supervisor for retaliatory discharge based on speaking to authorities about alleged misuse of city funds); O'Brien, 748 F.2d at 407-408 (complaints about alleged official misconduct to proper authorities constituted protected activities under the First Amendment). Defendants argue that plaintiff's termination was initiated and conducted in accordance with proper statutory provisions. This does not, however, conclusively excuse the alleged retaliatory reassignments. Accordingly, the court denies defendants' argument that Whitney and Byrne are entitled to qualified immunity for their alleged retaliatory actions taken between November 1991 and July 1992.
Defendants move for summary judgment on Count II, asserting that plaintiff fails to set forth sufficient facts to state a conspiracy claim. "Civil conspiracy is an agreement of two or more people to commit an unlawful act, or to inflict a wrong against another, and an overt act that results in damages." Old Security Life Ins. Co. v. Continental Ill. Nat. Bank, 740 F.2d 1384, 1389 (7th Cir. 1984). In order to maintain a conspiracy claim plaintiff must allege "with some particularity facts sufficient to show an agreement between the parties to inflict the alleged wrong." Frymire v. Peat, Marwick, Mitchell & Co., 657 F. Supp. 889, 896 (N.D.Ill. 1987).
In his amended complaint plaintiff alleges that defendants had an agreement to try to discredit plaintiff with the purpose of concealing the truth about alleged abuse in the EMU, and to punish plaintiff for not observing a code of silence within the Sheriff's department. Because the court finds that plaintiff's only remaining § 1983 claim is for alleged retaliatory reassignments and his transfer in 1991 through 1992, plaintiff must allege sufficient facts that a conspiratorial agreement was entered into by the remaining defendants prior to the 1991 reassignments or 1992 transfer. There are no such allegations in the amended complaint. Accordingly, the court grants defendants' motion to dismiss Count II, plaintiff's conspiracy claim, with leave to file an amended Count II should plaintiff be able to do so consistent with his obligations under Fed.R.Civ.P. 11.
ILLINOIS WHISTLE BLOWER PROTECTION ACT
Defendants move for summary judgment on plaintiff's state law claim brought under the Illinois Whistle Blower Protection Act (the "Act"), 5 ILCS 395/1(b), arguing that plaintiff fails to allege sufficient facts to support Count IV. The Act provides in part:
(b) No disciplinary action shall be taken against any employee for the disclosure of any alleged prohibited activity under investigation or for any retaliatory action taken against an employee, including but not limited to reprimand, suspension, discharge, demotion or denial of promotion or transfer.
Defendant argues that plaintiff fails to state a claim based on his suspension and termination because plaintiff's employment application falsification was proper grounds for dismissal. Defendants do not, however, address the alleged retaliatory reassignments plaintiff suffered after his conversation with Whitney.
Based on the evidence before it, as outlined more fully above, the court finds that the employment actions ordered by defendants Carik, Goldsmith, and Sheahan were not in retaliation for plaintiff's speech. The court finds, therefore, that plaintiff fails to state a claim under the Act against defendants Carik, Goldsmith, and Sheahan, and grants these defendants summary judgment on Count IV of the amended complaint. The court further finds, however, that there remain genuine issues of fact whether Whitney reassigned plaintiff six times in six months in retaliation for his speech, and whether Byrne was instrumental in the reassignments. Accordingly, the court denies defendants' Whitney and Byrne's motion for summary judgment on Count IV of the amended complaint.
Count V of the amended complaint seeks punitive damages for all of defendants' alleged wrongful conduct. Because this court finds that plaintiff has failed to state a claim against Carik, Goldsmith and Sheahan the court grants these defendants summary judgment over all claims in the amended complaint, but denies summary judgment with respect to Whitney and Byrne on Count V.
Defendants' final argument is that plaintiff's claims must fail due to res judicata and the Rooker-Feldman doctrine. Under the Rooker-Feldman doctrine, federal district courts lack subject matter jurisdiction to review state court decisions. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983). While plaintiff's termination was reviewed and upheld by the Merit Board, the Merit Board did not make any findings regarding the merits of plaintiff's reassignments in 1991-1992. Further, plaintiff asserts that the Merit Board would not entertain any arguments concerning plaintiff's First Amendment claims. Accordingly, the court finds that it has proper subject matter jurisdiction over plaintiff's alleged retaliatory re-assignment claim against defendants Whitney and Byrne.
For the reasons set forth above, defendants Sheahan's, Carik's, and Goldsmith's motion for summary judgment is granted, with prejudice, and defendants Whitney's and Byrne's motions for summary judgment are denied as to Counts I, III, IV and V. Whitney and Byrne's motion to dismiss Count II is granted, and plaintiff is granted leave to file an amended Count II against them within 21 days hereof.
ENTER: October 26, 1995
Robert W. Gettleman
United States District Judge