The opinion of the court was delivered by: RUBEN CASTILLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Roger Fairley and Richard Gackowski, two former Cook
County Department of Corrections ("CCDOC") correctional officers, allege
that Defendants*fn1 harassed them and retaliated against them because
they spoke out against and attempted to speak out against the excessive
use of force by their fellow correctional officers. Defendants have
brought four separate motions to dismiss Plaintiffs' complaint, (R. 20-1;
R. 21-1; R. 22-1; R. 23-1.), and a motion to strike, (R. 23-2). For the
reasons provided below, we dismiss Defendant Cook County from counts one
through four and dismiss count three in its entirety. Defendants' motions
are otherwise denied.
Plaintiffs Fairley and Gackowski are former CCDOC correctional officers
who worked in the Cook County jail. Plaintiffs allege that at the CCDOC
training academy they were taught to
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follow a "Code of Silence" that required them not to talk about
events at the Cook County jail. Plaintiffs claim that their superiors and
fellow correctional officers knew that they would not follow the "Code of
Silence" if it required them to condone the excessive use of force by
correctional officers.
Plaintiffs both worked in Special Incarceration Unit Two in the Cook
County jail. This unit houses inmates who are charged in high-profile
cases, considered to be serious escape risks, involved in violence while
in jail or are otherwise determined to require special treatment. On July
29, 2000, when Fairley observed a violent incident between Correctional
Officers Fermaint and Bercasio and four inmates, he told Fermaint and
Bercasio that they should stop beating the inmates because they were
going to kill them. Gackowski later observed some of the beaten inmates
in the jail's emergency room. After this incident, Superintendent Byrne
told Fairley not to write up a report because investigators would take
statements from everyone involved in the incident, but an investigator
never took Fairley's statement. Three of the inmates involved in this
incident subsequently filed a lawsuit ("the Fields Litigation") against
various CCDOC employees. After the initiation of the Fields Litigation,
Plaintiffs allege that they informed their fellow officers that they
would tell the truth if asked about the incident and that Defendants then
engaged in a series of deliberate acts to discourage them from attending
depositions and from testifying or talking freely and honestly about it.
Fairley alleges that Defendants committed the following acts to prevent
him from speaking out about excessive use of force:
(1) Byrne repeatedly assigned him to difficult and
dangerous assignments; denied him paternity
leave; denied his requests to be paid for
overtime; asked him to falsify paperwork after
he was attacked with a shank by a prisoner, so
that
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the prisoner would not be disciplined in
order to show the inmates that Fairley could
be attacked without facing the usual
consequences; told him that if he testified
truthfully an inmate would testify falsely
that Fairley beat him up; denied his request
for back-up when inmates were acting in a
manner that suggested a fight was imminent;
and failed to serve Fairley with a subpoena to
appear for a deposition;
(2) Andrews failed to ensure that he was properly
rotated through different assignments and
failed to serve Fairley with a subpoena to
appear for a deposition;
(3) Fermaint and Bercasio refused to allow him
leave to use the restroom; refused to provide
him supplies requested by prisoners; swore at
him and called him "social worker" and "inmate
lover;" and grabbed him from behind and
imitated sexual acts;
(4) Bercasio told him that he should not "f**k
with people" because that is how you get
stabbed;
(5) Kaufman failed to conduct an investigation
after Fairley was attacked by an inmate;
(6) Coffey told him that officers who tell on
other officers "usually get met in the parking
lot;" and
(7) Prohaska said that "they" were going to "bury"
him.
Gackowski alleges that Defendants committed the following acts to
prevent him from speaking out about excessive use of force:
(1) Fermaint and Bercasio drew and circulated
cartoons depicting him in a sexually
humiliating manner; grabbed him from behind
and imitated sexual acts; made sexually
derogatory comments about him and his wife;
swore at him and called him "social worker"
and "inmate lover;" and made threatening phone
calls to him;
(2) Ochoa tried to give his wife the impression
that he was having an affair and told other
officers that he was having an affair;
(3) Andrews threatened to sue him for slander
after he filed written complaints about the
harassment;
(4) Weinstein failed to ensure that his complaints
were investigated;
(5) Loizon and Byrne denied him overtime pay and
assigned him double-duty shifts;
(6) Prohaska threatened his life when he said that
"they" were going to "bury" Fairley and that
he was "no better;" and
(7) Ernst and Diaz prohibited him from pressing
formal charges or making a formal recorded
statement against Prohaska.
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As a result of the harassment and retaliation, Plaintiffs experienced
severe stress and resigned from CCDOC in February 2003 out of fear for
their own safety.
Plaintiffs bring the following five claims: (1) a section 1983
retaliation claim alleging that Andrews, Byrne, Loizon, Fermaint,
Bercasio, Coffey, Prohaska, Ernst, Weinstein and Kaufman ("Individual
Defendants"), under color of state law, harassed and retaliated against
them in order prevent them from speaking about correctional officers'
excessive use of force; (2) a section 1983 conspiracy claim alleging that
the Individual Defendants and Diaz entered into an express or implied
agreement to harass and retaliate against Plaintiffs; (3) a section
1985(2) conspiracy claim alleging that the Individual Defendants
conspired to obstruct the due course of justice in the Fields Litigation;
(4) an Illinois intentional infliction of emotional distress claim
alleging that the Individual Defendants and Ochoa engaged in extreme and
outrageous conduct that was intended to inflict, and did inflict, severe
emotional distress upon Plaintiffs; and (5) an indemnification claim
against Cook County.
Plaintiffs also name Cook County and Sheriff Sheahan as defendants in
counts one through three alleging that the other Defendants' conduct
resulted from a CCDOC policy, widespread custom or the policy-making
decisions of Sheriff Sheahan. Finally, Plaintiffs name Cook County as a
defendant in count four alleging that it "is liable for the wanton and
willful acts" of the other Defendants.
This Court will only grant a motion to dismiss if "it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957); see also Swierkiewicz v. Sorema N.A., 534
U.S.
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506 (2002). This Court will accept all well-pleaded allegations as
true and draw all reasonable inferences in favor of the plaintiff.
Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753
(7th Cir. 2002). A complaint states a claim if it gives the defendant
"fair notice of what the plaintiff's claim is and the grounds upon which
it rests." Conley, 355 U.S. at 47. "The plaintiff is not
required to plead facts or ...