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Delgado v. Jones

March 08, 2002

OCTAVIO DELGADO, PLAINTIFF-APPELLEE,
v.
POLICE CHIEF ARTHUR JONES AND DEPUTY CHIEF MONICA RAY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00 C 917--Lynn Adelman, Judge.

Before Cudahy, Rovner, and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Cudahy, Circuit Judge.

Argued September 5, 2001

Octavio Delgado is a detective with the Milwaukee Police Department who alleges that he was transferred to a less desirable position and denied vacation time in retaliation for an investigation in which he participated and a memorandum that he wrote about alleged criminal activities involving a close relative of an elected official. This elected official is also purported to be a close personal friend of the Chief of Police, Arthur Jones, one of the defendants. In turn, Deputy Chief Monica Ray is alleged to have been involved in the sequence of events leading to the transfer. The district court denied the defense of qualified immunity. Under the Supreme Court's ruling in Behrens v. Pelletier, 516 U.S. 299, 306 (1996), a denial of a qualified immunity defense is immediately appealable under 28 U.S.C. sec. 1291. We now affirm the decision of the district court.

I.

Octavio Delgado is a 15-year veteran of the Milwaukee Police Department (MPD). In December of 1997, Delgado began working in the department's Vice Control Unit. Thereafter, until his alleged retaliatory transfer on May 18, 2000, Delgado had been receiving satisfactory job evaluations.

In April 2000, or thereabouts, Delgado served as part of a drug entry team that executed a search warrant at a suspected drug house within the City of Milwaukee. This police operation ultimately resulted in the arrest of several persons. In May of 2000, Delgado received a letter from an individual arrested during the execution of the April search warrant. The letter claimed that the arrestee had information about the buying and selling of drugs by public school employees and the patronage of a drug house by a close relative of a public official as well as knowledge of a drug dealer who lived with a state employee. The letter also stated that Chief of Police Jones was a close personal friend of the public official whose immediate relative was alleged to have frequented the drug house. Delgado then showed the letter to his supervising lieutenant, who commented: "What district do you want to be transferred to?" According to the appellee's brief, the intended inference of the supervisor's comment was that investigations of politically sensitive matters often result in unfavorable treatment, including unwanted transfers.

Delgado was subsequently ordered to interview the author of the letter (the former arrestee) in order to corroborate the details of the letter. Delgado was then instructed to write a "Matter of" memorandum summarizing the contents of the interview with the former arrestee and to submit it to his lieutenant.

This memo ultimately moved up the chain of command to Deputy Chief Ray, who recommended that it be investigated by an outside law enforcement agency. It is unclear from the complaint whether Deputy Chief Ray had the authority to make this decision. Nevertheless, on May 18, 2000, Chief Jones was notified of the "Matter of" memorandum. In a meeting with Delgado's captain and Deputy Chief Ray, Chief Jones ordered that the investigation stay within the MPD and instructed Delgado's captain not to discuss the "Matter of" memorandum with Delgado or anyone else.

The following day, Chief Jones issued an order transferring one person, Delgado, from the Vice Control Division to the Criminal Investigations Bureau, retroactive to the previous day, Thursday, May 18. According to the complaint, this transfer was a departure from normal practice, since most transfers occur on Fridays at the end of a pay period and take effect the following Sunday. Moreover, the unit Delgado was transferred out of already had several vacancies.

From May 18 until May 26 Delgado was on vacation. During this period, the letter writer was allegedly interrogated by other MPD officers on the subject of his earlier interview with Delgado. When Delgado returned to work on the 26th, he was ordered to undergo a urine drug test and was informed that he was under investigation by the MPD's Internal Affairs Division for his communication with the letter writer, allegedly in violation of a departmental rule.

On the same day, Delgado also received a second letter from the same arrestee providing additional information on potential drug dealers. Delgado forwarded this letter to his former lieutenant in the Vice Squad Unit. The following day, Delgado asked both his former lieutenant and a captain in the Vice Squad Unit why he had been transferred, and he was advised that Chief Jones had forbidden any communication by these supervisors with Delgado.

Finally, Delgado claims that in the succeeding weeks and months, his pre-approved vacation schedule was unilaterally truncated or cancelled in accordance with rules that were not being applied to his fellow officers. Again, according to the complaint, Delgado had been receiving good performance evaluations. In addition, the MPD has a rule prohibiting the use of transfers as a form of discipline.

On a motion for a judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c) and 12(h)(2), the district court denied the appellants' request that they be ...


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