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PERRY v. DELANEY

November 12, 1999

RAYMOND J. PERRY AND LOUIS ZEZOFF, JR., PLAINTIFFS,
v.
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.

    OPINION

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 Courthouse.

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.

I. FACTUAL BACKGROUND

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 report.

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 standards.

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 Perry.

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.

III. PRELIMINARY MOTIONS

A. Introduction

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.

It is true that Plaintiffs were slightly late and it is true that Plaintiffs' brief exceeded the page limits and improperly consolidated their responses to both Defendants' motions. It is also true that Plaintiffs have offered rather puerile excuses for their tardiness, such as the excuse that they thought the Central District might have a "mailbox rule" whereby a response to summary judgment was filed when it was mailed. A quick glance at the Federal Rules of Civil Procedure might have disabused them of this notion, if indeed it was ever truly seriously entertained. See Fed.R.Civ.P. 5(e). Plaintiffs other excuse is that GSSC also exceeded the page limitations, apparently arguing they are entitled to reciprocal leniency. However, Plaintiffs fail to note that GSSC included a certificate of compliance pursuant to Local Rule 7.1(B)(2), stating that the brief contained only 6,636 words.

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 to Defendants.

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 ...


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