Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
PERRY v. DELANEY
November 12, 1999
RAYMOND J. PERRY AND LOUIS ZEZOFF, JR., PLAINTIFFS,
TERRENCE E. DELANEY, INDIVIDUALLY AND IN HIS CAPACITY AS U.S. MARSHAL FOR THE SOUTHERN DISTRICT OF ILLINOIS, UNITED STATES MARSHALS SERVICE, GENERAL SECURITY SERVICES CORPORATION, EDUARDO GONZALEZ, STACIA HYLTON, ANDREW PIERUCKI, JIM MARBLE, CHARLES E. WITCHER, AND JOSEPH ZAK, ALL BEING SUED IN THEIR CAPACITIES AS INDIVIDUALS, DEFENDANTS.
The opinion of the court was delivered by: Richard Mills, District Judge.
Around the time of the first anniversary of the bombing of the
Oklahoma City federal building, two Court Security Officers, who
join as Plaintiffs in this case, failed to conduct proper
security checks of visitors entering the East St. Louis
After their terminations, they bring the many constitutional
and statutory claims at issue in this case.
But summary judgment must be allowed on all claims.
This cause comes before the Court on several motions: (1)
Motion for Summary Judgment filed by Defendant General Security
Services Corporation (GSSC); (2) Motion to Dismiss or for Summary
Judgment filed by Defendant Terrence Delaney (Delaney) and the
United States Marshal's Service (USMS); (3) Motion to Strike
filed by GSSC; (4) Objection filed by GSSC, and (5) Plaintiffs'
Motion for Leave to File Reply to Defendant's Reply.
Plaintiffs Raymond Perry (Perry) and Louis Zezoff (Zezoff) were
employed by GSSC, a private contractor, as Court Security
Officers (CSOs) at the federal courthouse in East St. Louis,
Illinois pursuant to a contract between USMS and GSSC.
Jim Marble was a GSSC contract manager. Charles Witcher and
Joseph Zak were GSSC supervisors. Terrence Delaney (Delaney) was
the United States Marshal for the Southern District of
Illinois.*fn1 William E. Piester (Piester) was the Chief Deputy
United States Marshal for the Southern District of Illinois. The
chronology of events will be set out briefly below.*fn2
Though Zezoff and Perry were employees of GSSC, the actual
responsibility of selection and supervision of CSOs is divided
between GSSC and USMS pursuant to the contract. For example, the
requirements that CSOs must meet, such as law enforcement
experience, education, and physical ability, are stipulated by
USMS in the contract. GSSC, however, conducts the screening of
applicants to assure that they meet the requirements to be CSOs.
In addition, the Court Security Division of the USMS provides
an identification badge and other necessary security equipment.
This equipment is turned in prior to leaving the courthouse at
the end of the duty shifts each day. Also in connection with
their employment, CSOs are automatically deputized as Special
Deputy U.S. Marshals in order to fulfill their contract duties.
The deputations are effective only while performing contract
duties and they are automatically canceled when the CSO is
terminated. Furthermore, the special deputations provide that
CSOs are not federal employees and have no employment
relationship with the federal government.
The contract further provides that GSSC has the responsibility
to make sure that the CSOs continue to meet all the requirements
specified in the contract, including adherence to the "CSO
Standards of Conduct" which not surprisingly provides that CSOs
shall not violate security procedures. Under the contract,
failure of a CSO to meet these standards constitutes contractor
nonperformance and the USMS is required to notify GSSC of any CSO
conduct that falls below the standard of conduct.
It is GSSC's responsibility to discipline CSOs. Either the USMS
or GSSC may request the removal of a CSO if he is disqualified
for any reason, though it is ultimately GSSC's responsibility to
effect the formal removal. Pursuant to the contract, GSSC must
also provide an opportunity for removed CSOs to present a written
response to the removal. If it is the USMS that has requested the
removal of a CSO, GSSC must provide a written statement to the
USMS within 15 days of the initial removal stating its position,
after which the USMS can make a final determination as to its
position regarding the request for the termination.
From April 8 to April 19, 1996, approximately one year after
the bombing of a federal building in Oklahoma City, both the
District Court and the Bankruptcy Court for the Southern District
of Illinois underwent a financial audit by private contract
vendors. One of the auditors complained to Stuart J. O'Hare
(O'Hare), Clerk of Court for the Southern District of Illinois,
about the lax security procedures and went so far as to indicate
that these concerns might find their way into the auditor's
The specific complaint about security was that after the first
day of the audit, the audit team members were allowed to pass
through the south security entrance to the courthouse without
having their briefcases and packages checked with the
magnetometer and without being questioned. It is slightly odd in
this regard that the auditors were checked by the security
officers appropriately on April 8, 1996 (their first day at the
courthouse for the audit) but the auditor did not voice his
complaint until the day of his departure on April 19, 1996.*fn3
This auditor who was so upset by the lax security apparently
voiced his concern only on the day that he was leaving the
courthouse — which was also the date of the first anniversary of
the Oklahoma City bombing.
These concerns were taken very seriously, as shown by
subsequent events. O'Hare spoke with Piester about the auditor's
complaint. O'Hare's security concerns were heightened because he
had seen faxes regarding the necessity or appropriateness of
tightening security at federal buildings around the time of the
anniversary of the Oklahoma City bombing.
Piester drafted a memorandum for Delaney's signature, and this
memorandum, dated April 29, 1996, was then sent to USMS
headquarters. It set out the allegations of security breaches by
Zezoff and Perry and additionally noted that judges had
complained about lax security in the courthouse, the East St.
Louis area was not very safe, and that security at the courthouse
required constant vigilance and scrupulous adherence to
After this memo was received at USMS headquarters, Assistant
Chief Stacia Hylton notified GSSC and Pierucki on either May 2,
1996 or May 3, 1996 that USMS was requesting the removal of
Plaintiffs. Pierucki then notified Marble to suspend Plaintiffs
pending receipt of the formal USMS request for removal. When
Pierucki told Piester of the suspension, Piester advised Pierucki
that the USMS headquarters had not yet come to a final conclusion
as to the necessity of requesting termination of Zezoff and
Nonetheless, at the end of their shift on May 2, 1996, Zezoff
and Perry were suspended and did not receive any pay after that
date. Their identification badges and equipment were gathered and
turned over to Piester. On May 3, 1996, USMS sent a memo to GSSC
formally requesting the removal of Zezoff and Perry because of
the security breaches.
On May 7, 1996, Plaintiffs received letters from Pierucki
informing them of their termination. Plaintiffs subsequently sent
letters to GSSC and USMS headquarters requesting a review of
their termination. GSSC allegedly never responded, while the USMS
responded that GSSC was solely responsible for the termination.
II. PROCEDURAL BACKGROUND
Perry and Delaney originally filed their complaint on September
18, 1996. Several counts were subsequently dismissed and all
individual defendants except for Delaney have now also been
dismissed. The second amended complaint states in Count I a claim
under the Administrative Procedure Act (APA), 5 U.S.C. § 706,
alleging that Delaney in his official capacity and the USMS,
"pulled" Plaintiffs' special deputations as CSOs and that this
action and their ultimate removal violated Plaintiffs' procedural
due process rights. Plaintiffs specifically allege that their
jobs, their special deputations, or both were constitutionally
protected property rights and that the terminations infringed on
their liberty interest in obtaining meaningful employment.
Plaintiffs also allege that the APA was violated by Delaney when
he failed to follow the proper steps in removing their
credentials as CSOs. In Count II, Plaintiffs allege that Delaney
in his official capacity and the USMS violated the APA,
5 U.S.C. § 706, when they arbitrarily and capriciously "pulled" Plaintiffs
credentials and when they failed to provide appropriate
counseling prior to directing the termination of Plaintiffs. In
Count, III against Delaney and the USMS, Plaintiffs allege that
Delaney's pulling of their credentials violated Plaintiffs'
rights under 5 U.S.C. § 558(c) because the credentials were
licenses under 5 U.S.C. § 501(8) and they were revoked without
the requisite notice or hearing. In Count IV, Plaintiffs allege a
Bivens violation against GSSC, contending that GSSC acted as a
government agency when terminating Plaintiffs and that GSSC
violated the APA by pulling their credentials without following
proper procedures. Finally, in Count V, Plaintiffs bring a
Bivens*fn4 action against several individual
defendants, all of whom have been dismissed except for Delaney.
GSSC has moved for summary judgment. After filing a memorandum
with font sizes that seemed randomly to alternate due to
"computer problems," GSSC filed its corrected memorandum in
support of its motion on June 25, 1999. The Federal Defendants
sought and received leave to file an oversized memorandum in
support of their motion to dismiss or for summary judgment. They
then took full advantage of the Court's allowance of the motion
for leave by filing a 70 page brief in support of their motion.
On the Plaintiffs' part, the rather simple requirement of
complying with the Local Rules has similarly been a task fraught
with difficulty. For example, Plaintiffs failed to timely file a
response to Defendants' statement of undisputed facts. In
addition, Plaintiffs, like the Defendants, also had to file a
corrected brief due to "computer problems."*fn5 Further,
Plaintiffs exceeded the page limit in their memoranda and filed
it a day or so late, thereby bringing about another round of
briefing as to the propriety of allowing Plaintiffs' lengthy (and
tardy) brief. Many trees and much effort could be saved by simple
compliance with the clear Local Rules of this Court.
GSSC, not wanting to miss an opportunity to file yet another
motion, filed on July 16, 1999, a motion to strike Plaintiffs'
corrected response to GSSC's motion for summary judgment because
the response was filed on July 16, 1999, which was at least one
day late and exceeded by 43 pages the page limitations set out in
the Local Rules. Plaintiffs' response brief is a 60 page
consolidated response to the motion filed by Delaney and the USMS
and the motion filed by GSSC.
After Plaintiffs' response was filed and GSSC brought the above
mentioned motion to strike it, Plaintiffs filed a response to the
motion to strike and, on that same day, two additional motions: a
motion for leave to exceed the page limits in the earlier-filed
corrected response and a motion to file the corrected response
brief. Magistrate Judge Charles H. Evans allowed the latter two
motions on July 28, 1999.
B. Objections to Rulings of Magistrate Judge Evans
GSSC now brings its objections to Magistrate Judge Evans'
rulings on the two motions for leave. GSSC argues that Judge
Evans should have waited until GSSC had a chance to enlighten the
Court with its arguments before the Court ruled on the motions
for leave. GSSC argues that Magistrate Judge Evans' decision was
clearly erroneous and contrary to law.
Despite Plaintiffs' failures and flimsy excuses, the Court
cannot conclude that Judge Evans' orders allowing leave were
clearly erroneous or contrary to law. See
28 U.S.C. § 636(b)(1)(A). No doubt Plaintiffs should have specifically
complied with the Local Rules and must achieve strict compliance
in the future. But GSSC can hardly claim any prejudice resulting
from the length of the response or its tardiness. In addition,
there was some reason to allow the motions for leave. The
extensive issues involved here have resulted in a 70 page brief
from Delaney and the USMS and a 20 page brief from GSSC, thus
requiring a rather lengthy response. While consolidation of the
response is a poor pleading practice, it does separate the
arguments fairly clearly and may have achieved some efficiency in
this case. At any rate, the Court cannot conclude that Magistrate
Judge Evans' rulings on the two motions for leave were clearly
erroneous or contrary to law. Thus, the Court will deny the
objections to Magistrate Judge Evans' rulings on Plaintiffs'
motions for leave.
C. Motion to Strike and Motion for Leave
In addition, the motion to strike filed by GSSC will be denied.
While, as mentioned above, Plaintiffs have committed violations
of the Local Rules, the Court will not strike the response or
require more rounds of briefing on the issues raised. The
violations are annoying but not terribly egregious or prejudicial
Finally, Plaintiffs seek to reply to the reply filed by Delaney
and the USMS. No such reply is called for by the Local Rules and
the motion will be denied. However, no matters outside the
motions for summary judgment ...