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Tierney v. Vahle

September 18, 2002

J. ROBERT TIERNEY, ET AL., PLAINTIFFS-APPELLANTS,
v.
CHET W. VAHLE AND DEBBIE OLSON, DEFENDANTS-APPELLEES.



Appeals from the United States District Court for the Central District of Illinois. No. 99 C 3149--Jeanne E. Scott, Judge.

Before Flaum, Chief Judge, and Harlington Wood, Jr., and Posner, Circuit Judges.

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

ARGUED APRIL 18, 2002

The Tierneys and two of their four children brought this wide-ranging civil-rights suit (42 U.S.C. § 1983) against 19 individuals and two institutions--the public school district of Quincy, Illinois, and a private swimming club in Quincy--charging retaliation and conspiracy to retaliate against the family for the exercise by Mr. and Mrs. Tierney of their right of free speech. The district court granted motions by the defendants Debbie and Doug Olson and Chet Vahle to dismiss the complaint against them for failure to state a claim and also ordered the plaintiffs to pay some $2,400 to Debbie Olson to reimburse her for the attorneys' fees that she incurred in defending against what the judge ruled was a frivolous claim. The judge made the dismissals and the sanction order final judgments under Fed. R. Civ. P. 54(b), enabling an immediate appeal by the plaintiffs. They challenge the dismissal of Vahle as a defendant (but not the dismissal of the Olsons) and the award of attorneys' fees.

The complaint alleges the following facts. Defendant Richard Powers, an employee of the swimming club (to which the Tierneys belonged), was also the head coach of the Quincy High School swim team and used the swimming club's pool for team training. Powers kissed one of the girls on the team, "appeared at a gathering of the swim team at a swimmer's home and required the girls to lay [sic] on a pool table in the basement of the home in order to receive . . . so-called 'massages' " and in the course of this "placed his hands on the legs and thighs of Plaintiff, Meryl Tierney, up to her buttocks. He further required her to unhook the straps of her bra in order to allow him to place his hands on her bare back." The complaint alleges that he did similar things to other girls at the party. (We emphasize that these are just allegations; they may for all we know be false.) Mr. and Mrs. Tierney complained to the school district. An assistant superintendent, defendant Schildt, interviewed the girls and prepared a confidential report on the incident. He showed the report to the school district's lawyer, defendant Gorman, who in turn showed it to defendant Vahle, a juvenile-court judge; in addition the members of the board of the swimming club, who are also defendants, were told about the report.

Judge Vahle wrote a letter--the centerpiece of the Tierneys' case--on judicial stationery to the high school athletic director, which is to say Coach Powers's immediate superior. The letter reads as follows:

I write to offer my views on the current status of the Quincy High Swim Team and its coach, Rick Powers. My daughter, Kristen, has been co-captain of the QHS swim team for two years, and will swim on that team again next school year. She currently trains with Coach Powers at Sheridan Swim Club, as do my younger children, Mark, age 13, and Kari, age 12. My oldest son, Mike, swam on the QHS Swim Team and for the last two years has swum on the intercollegiate team at the U.S. Military Academy at West Point. This letter is written from a partly personal, partly professional viewpoint.

As someone who has made the welfare of children and families the primary focus of his professional life, I pay close attention to the extracurricular opportunities available to the young people in our community. I suppose I would not be a normal parent if I did not pay particular attention to the extracurricular activities in which my own children are involved; I suspect that my parental scrutiny is sometimes prompted by a healthy skepticism earned through over twenty years in the justice system. I also find myself asking a lot of questions of my children about the activities in which they engage and about the people with whom they come in contact, especially the adult supervisors. Parental interest and caution is a healthy thing which can benefit children. My wife and I want our children to be involved with beneficial and safe activities. I want the same for the other children in the community.

My four children have been involved in serious, competitive swimming for over twelve years. We have come in contact with a succession of coaches at Sheridan and at Quincy High, ranging in ability from totally incompetent to superior, ranging in attitude from disinterested to totally dedicated, with commensurate impact on the quality of the program and the opportunity for the kids. The current Quincy High swim coach is the best so far, affording swimmers knowledgeable, professional coaching. His program is consistent with my knowledge of effective coaching and competitive swimming, and I have witnessed nothing inconsistent with good practice in those areas. I would discourage anyone from attempting to change the program or the coach.

The nature of competitive swimming is goal setting, both short and long-term, practice, performance and evaluation. This process makes it extremely valuable for personal physical, emotional and mental development, and is why I believe it serves my children's interests and is valuable to the community. The key to a swim program's success, however, lies almost totally in the ability and attitude of the coach to knowledgeably train, educate, inspire and supervise the swimmers. I have spent a fair amount of time talking with Coach Powers about the aspects of my children training with him, and I am satisfied that my children are in good hands with him and will receive the real benefits that a quality swim program offers.

Frankly, this letter is written with knowledge on my part that a certain misguided individual has been making rumors and innuendoes about the Coach and his program. I will not honor that individual's baffling efforts with a description or a response because I believe they fall in the same class of paranoid misrepresentations and falsehoods about the swim team program that the same individual communicated to my wife and me in years past.

Thanks for the opportunity to voice an opinion; feel free to contact me if you have any questions. My wife and I are hopeful that Coach Powers will be retained by the School Board.

The references in the penultimate paragraph to "that individual" and "the same individual" were, and were understood by the recipient to be, references to Mr. Tierney.

Because the letter was attached to the complaint, it became a part of it for all purposes, Fed. R. Civ. P. 10(c); Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 858 (7th Cir. 2002), and so the judge could consider it in deciding the motion to dismiss without having to convert the motion to one for summary judgment. It is possible that he could have done so, for that matter, despite and as it were in the teeth of Rule 12(b)--which says, as does the less frequently invoked Rule 12(c) (motion for judgment on the pleadings), that when the judge considers evidence outside the pleadings he must convert the defendant's motion to dismiss under Rule 12(b)(6) to a motion for summary judgment under Rule 56--even if the document had merely been referred to in the complaint, provided it was a concededly authentic document central to the plaintiff's claim (the usual example is a contract, in a suit for breach of contract). So at least our decisions in Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998); Wright v. Associated Ins. Cos., 29 F.3d 1244, 1248 (7th Cir. 1994), and Venture Associates v. Zenith Data Systems, 987 F.2d 429, 431 (7th Cir. 1993), say, although Berthold Types Ltd. v. Adobe Systems Inc., 242 F.3d 772, 775 (7th Cir. 2001), leans the other way, without, however, citing the earlier cases or discussing the exception, which is narrow: in Wright the plaintiff had actually quoted from the document, while ...


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