United States District Court, N.D. Illinois
January 27, 2004.
ROGER FAIRLEY and RICHARD GACKOWSKI, Plaintiffs,
SUPT. DENNIS ANDREWS, et al., Defendants
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
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
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
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
(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
(7) Prohaska said that "they" were going to "bury"
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
(4) Weinstein failed to ensure that his complaints
(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.
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
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 legal theories or cases or statutes, but
merely to describe his claim briefly and simply," Shah v.
Inter-Continental Hotel Chi. Operating Corp., 314 F.3d 278, 282 (7th
The four motions to dismiss before this Court contain the following
seven arguments: (1) Plaintiffs lack standing to bring a section 1985(2)
claim; (2) counts one through four fail to state a claim against
Defendants in their individual capacities; (3) counts one through three
fail to state a claim against Defendants in their official capacities;
(4) Defendants are entitled to qualified immunity with respect to counts
one through three; (5) counts two and three are barred by the
intracorporate conspiracy doctrine; (6) counts one and four contain
impermissible group pleadings; and (7) Cook County should be dismissed
from counts one through four because it cannot be held liable for the
other Defendants' actions. Defendants also seek to strike all allegations
prior to July 25, 2001 as barred by the statute of limitations. We
address each argument in turn.
Defendants assert that Plaintiffs lack standing to bring a claim under
42 U.S.C. § 1985(2) because they are not parties to the underlying
litigation. The Seventh Circuit held in Rylewicz v. Beaton Servs.,
Ltd., 888 F.2d 1175, 1180 (7th Cir. 1989), that a "mere witness"
lacks standing to
sue under section 1985(2) because 42 U.S.C. § 1986, the statute
that creates the cause of action for section 1985(2) violations, only
provides relief to "the party injured, or his legal representative."
Plaintiffs assert that this statement is dicta because the
Seventh Circuit also stated that the Rylewicz plaintiffs did not
allege any redressable injury or deprivation of their civil rights.
Id. Despite Rylewiczs', alternate holding, the court
held that the "literal construction of `party'" in section 1986 does not
include a "mere witness." Id.; see also E.E.O.C. v. Outsourcing
Solutions, Inc., No. 01 C 7037, 2002 WL 31409584, at *17 (N.D. Ill.
Oct. 24, 2002) (stating that it was bound to follow Rylewicz);
Hefferman v. Hunter, 189 F.3d 405, 410 (3rd Cir. 1999)
(stating that the Seventh Circuit "concluded that relief is not available
for `a mere witness'"). As we are bound by Rylewicz, Plaintiffs
lack standing to bring a section 1985(2) claim. Accordingly, we dismiss
count three in its entirety.
II. Failure to State a Claim against Defendants in their
A. Count One: Section 1983 Harassment and Retaliation Claim
To state a section 1983 harassment and retaliation claim, Plaintiffs
must allege that Defendants, while acting under color of state law,
harassed or retaliated against them because they exercised or attempted
to exercise their First Amendment right to free expression. See Case
v. Milewski, 327 F.3d 564, 566 (7th Cir. 2003); Higgs v.
Carver, 286 F.3d 437, 439 (7th Cir. 2002). A defendant acts under
color of state law when he exercises or abuses power conferred upon him
by the state. West v. Atkins, 487 U.S. 42, 49-50 (1988). State
employment, however, is not conclusive of whether a defendant was acting
under color of state law; the defendant's conduct must be related to his
state authority. Murphy v. Chi. Transit Auth., 638 F. Supp. 464,
467-68 (N.D. Ill. 1986). Finally, "[a]ny deprivation under color of law
that is likely to deter the
exercise of free speech . . . is actionable . . . if the circumstances
are such as to make [the conduct] an effective deterrent to the exercise
of a fragile liberty." Power v. Summers, 226 F.3d 815, 820 (7th
Defendants have presented this Court with four arguments in support of
their motions to dismiss this count for failure to state a claim: (1)
Plaintiffs fail to properly allege that Defendants acted under color of
state law; (2) Plaintiffs fail to allege a connection between Defendants1
actions and Plaintiffs' First Amendment rights; (3) Plaintiffs fail to
specify a legal theory or their protected speech; and (4) Plaintiffs fail
to allege conduct that is actionable under section 1983. For the reasons
provided below, we deny each of these arguments and find that this count
properly states a section 1983 harassment and retaliation claim.
Andrews, Loizon, Fermaint, Bercasio, Coffey and Prohaska assert that
Plaintiffs failed to allege that they acted under color of state law
because their conduct was unrelated to the power conferred on them by the
state. The state provides correctional officers with significant power
over inmates and concomitant with this power is the responsibility to
ensure inmate safety and the duty to investigate, report and prevent
inmate abuse. See Anthony v. County of Sacramento, Sheriff's
Dept., 845 F. Supp. 1396, 1400 (E.D. Cal. 1994). Attempting to
silence a colleague who seeks to report excessive use of force against
inmates is a clear abuse of the power the state vests in correctional
officers. Defendants' actions are, thus, related to their state
authority, and we find that they were acting under color of state law.
Kaufman, Weinstein and Ernst assert that Plaintiffs failed to allege a
connection between their actions and Plaintiffs' First Amendment rights.
Defendants rely, however, on the summary judgment standard contained in
Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000) (stating
that a "plaintiff cannot prevail unless he establishes that the
defendant would not have taken the challenged actions `but for' the
constitutionally protected conduct"). A plaintiff does not need to allege
"but for" causation in his complaint; he only needs to allege that he
exercised or attempted to exercise a First Amendment right and to specify
the retaliatory act. See Higgs, 286 F.3d at 439. Defendants'
argument, therefore, is without merit as it demands that Plaintiffs plead
facts that are not required by liberal federal notice-pleading standards.
Similarly, Byrne's arguments that this count does not identify a legal
theory or specifically identify the protected speech likewise involves
summary judgment standards. On a motion to dismiss, Plaintiffs do not
need to identify a specific legal theory and do not need to describe the
precise time, place and manner of the protected speech. Shah,
314 F.3d at 282. Plaintiffs only have to provide Defendants with fair
notice of their claims by describing them "briefly and simply."
Id. Not only have Plaintiffs described their claims "briefly and
simply," but they have provided factual support. For example, they claim
that Byrne stated that a prisoner would testify falsely against Fairley
if Fairley testified truthfully. Plaintiffs' complaint, therefore,
provides Byrne with fair notice of their claims. Plaintiffs are not
required to provide any additional facts in support of their claims at
this point in the proceedings.
Finally, Byrne and Andrews assert that the conduct attributed to them
in the complaint does not rise to the level of a constitutional
violation. This argument also lacks merit because "[a]ny deprivation
under color of law that is likely to deter the exercise of free speech
. . . is actionable . . . if the circumstances are such as to make [the
conduct] an effective deterrent to the exercise of a fragile liberty."
Power, 226 F.3d at 820-21. As it is not "beyond doubt" that
conduct did not deter Plaintiffs from exercising their First
Amendment rights, we cannot dismiss Plaintiffs' claims on this basis.
Thus, Byrne and Andrews' conduct is actionable.
B. Count Two: Section 1983 Conspiracy Claim
Defendants assert that Plaintiffs fail to state a section 1983
conspiracy claim because they do not allege the approximate date that
they reached an agreement to deprive Plaintiffs of their constitutional
rights. Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002)
(stating that plaintiffs only need to "indicate the parties, general
purpose, and approximate date" of the conspiracy). Yet the complaint
states that the "campaign to silence and harass" Plaintiffs started after
the initiation of the Fields Litigation in August 2000. (R. 12, First
Amended Complaint, ¶¶ 39, 53.) The complaint alleges the approximate
date of the agreement and therefore sufficiently alleges a section 1983
C. Count Four: Intentional Infliction of Emotional Distress
In order to state an intentional infliction of emotional distress claim
under Illinois law, Plaintiffs must allege that Defendants' extreme and
outrageous conduct caused them severe emotional distress and that
Defendants intended to inflict severe emotional distress or knew that
such distress was highly probable. McGrath v. Fahey, 533 N.E.2d 806,
809 (Ill. 1988). Defendants assert that Plaintiffs failed to allege
conduct that is sufficiently extreme or outrageous to be actionable under
Illinois law.*fn2 While some of Defendants' conduct might not qualify as
extreme or outrageous, federal notice-pleading standards do not
require Plaintiffs to allege all of the facts in support of their claims.
Theriault v. Vill. of Schaumburg, No. 02 C 7058, 2002 WL
31803826, at *4 (N.D. Ill. Dec. 12, 2002); but see Kamberas v.
Infiniti of Orland Park, Inc., No. 02 C 3000, 2002 WL 31248538, at
*3 (N.D. Ill. Oct. 4, 2002) (permitting dismissal "if it appears beyond
doubt that Plaintiff can prove no set of facts to support the allegations
in her claim"). The most extreme conduct alleged in the complaint
includes a death threat and deliberate acts, such as not providing
back-up when requested and not investigating a prisoner attack, to place
Plaintiffs in harm's way. While harassing remarks and failing to
investigate written complaints of harassment are not this extreme, these
acts must be considered in the context in which they were committed,
inside Cook County jail as part of a campaign to silence Plaintiffs.
Plaintiffs, therefore, have stated an intentional infliction of emotional
III. Failure to State a Claim against Defendants in their
In order to state a claim against Defendants in their official
capacity, Plaintiffs must allege that they were injured by an express
policy, a widespread custom that is so well-settled as to constitute a
policy or a decision by an individual with final policymaking authority.
McCormick v. City of Chi., 230 F.3d 319, 324 (7th Cir. 2000).
While Defendants acknowledge that Plaintiffs have generally alleged that
they were injured because of a policy, custom or decision by an
individual with policymaking authority, they claim that Plaintiffs'
complaint only includes "[b]oilerplate allegations of a municipal
policy."*fn3 McTigue v. City of Chi., 60 F.3d 381,
382 (7th Cir. 1995); but see McCormick, 230 F.3d at 325
(distinguishing McTigue because it did not contain "facts
necessary to give the defendants . . . notice of the crux of the
plaintiffs charges"). In McTigue, the Seventh Circuit affirmed
the dismissal of an official-capacity claim because the plaintiffs
alleged that they were discriminated against because of a municipal
policy, but failed to provide the reason for the discrimination.
Id. Plaintiffs' complaint, unlike the complaint in
McTigue, does contain the operative facts necessary to provide
Defendants with fair notice.*fn4 It alleges a policy, custom, or final
policymaking decision to harass and retaliate against correctional
officers who speak out against the excessive use of force. Additionally,
the complaint contains facts that support this allegation. Plaintiffs
allege that Coffey stated that officers who tell on other officers
"usually get met in the parking lot." (R. 12, First Amended Compl. ¶
50(a).) Thus, Plaintiffs have properly stated an official-capacity claim.
IV. Qualified Immunity
A government official is entitled to qualified immunity, and thereby
may avoid liability under section 1983, when his conduct does not violate
a clearly established constitutional right of
which a reasonable person would have known. Gregorich v.
Lund, 54 F.3d 410, 413 (7th Cir. 1995). Defendants assert that they
are entitled to qualified immunity because their conduct did not violate
a clearly established constitutional right. Defendants argue that
Plaintiffs do not have a constitutional right to an investigation, to
make a recorded statement, to sign a police report or to be free from
peer-on-peer harassment. Yet Plaintiffs' complaint does not rely on any
of these nebulous constitutional rights. Plaintiffs' complaint alleges
that Defendants deprived them of their First Amendment right to free
expression. This right was clearly established at all relevant times.
See, e.g., Connick v. Myers, 461 U.S. 138, 142 (1983). A
reasonable person in Defendants' position would have known that
retaliating and harassing someone because of something they said or
wanted to say was unconstitutional. Defendants, therefore, are not
entitled to qualified immunity.
V. Intracorporate Conspiracy Doctrine
The intracorporate conspiracy doctrine precludes members of the same
entity from becoming "conspirators" when they act within the scope of
their authority. Payton v. Rush-Presbyterian-St. Luke's Med.
Or., 184 F.3d 623, 632 (7th Cir. 1999). "The intracorporate
conspiracy doctrine was created to shield corporations and their
employees from conspiracy liability for routine, collaborative business
decisions that are later alleged to be discriminatory." Newsome v.
James, No. 96 C 7680, 2000 WL 528475, at *15 (N.D. Ill. April 26,
2000); see also Tabor, 10 F. Supp.2d at 994 ("The policy behind
the doctrine is to preserve independent decision-making by business
entities and their agents free of the pressure that can be generated by
allegations of conspiracy.").
Defendants claim that count two is barred by the intracorporate
conspiracy doctrine because the acts underlying count two were within the
scope of their employment. We fail to comprehend how agreeing to harass
and retaliate against employees is within the scope of Defendants'
employment. See Emery v. Northeast Ill. Rgn'l Commuter R.R.
Corp., No. 02 C 9303, 2003 WL 22176077, at *4 (N.D. Ill. Sept. 18,
2003) (stating that "courts facing § 1983 claims involving police
misconduct have refused to apply the doctrine"). While some of the
retaliatory conduct assigning double-duty shifts, denying
paternity leave, investigations of misconduct were routine,
everyday decisions, the alleged agreement to harass and retaliate against
Plaintiffs cannot be similarly described. Plaintiffs did not allege a
conspiracy to assign double-duty shifts, but a conspiracy to deprive them
of their First Amendment rights. Plaintiffs' conspiracy claim, therefore,
is not barred by the intracorporate conspiracy doctrine.
VI. Group Pleading
Defendants assert that Plaintiffs have accused them of engaging in
general misconduct without identifying the specific act committed by each
Defendant. See, e.g., Magluta v. Samples, 256 F.3d 1282, 1284
(11th Cir. 2001). Defendants' assertion, however, is incorrect as
Plaintiffs' complaint attributes specific conduct to each Defendant.
Nonetheless, Defendants assert that it is "impossible to determine which
defendants are being accused of `depriving which plaintiff of what speech
(Count I) or which defendants are being accused of inflicting what
`emotional distress' on which plaintiff (in Count IV)." (R. 23, Defs.'
Mot. at 11-12.) Defendants apparently would prefer that the complaint
include two section 1983 harassment claims and two intentional infliction
of emotional distress claims. While the presence of two plaintiffs,
fourteen defendants and five counts does render Plaintiffs' complaint a
bit complicated, the complaint provides
Defendants with "fair notice" of these claims, which is all that is
required. Conley, 355 U.S. at 47.
VII. Defendant Cook County
Plaintiffs allege that Cook County is liable because the harassment and
retaliation they suffered resulted from an express municipal policy,
widespread custom or decision by Cook County Sheriff Sheahan, who
Plaintiffs allege had final policy-making authority for Cook County.
Monell v. N.Y. City Dept. of Social Servs., 436 U.S. 658 (1978).
They also allege that Cook County is vicariously liable for their state
law claim. Cook County counters that it cannot be found directly or
vicariously liable because Sheriff Sheahan and the other Defendants are
not Cook County employees. We agree with Cook County and dismiss them
from counts one through four.
The Seventh Circuit held in Thompson v. Duke, 882 F.2d 1180,
1187 (7th Cir. 1989), that a county cannot be held liable for the alleged
conduct of a sheriff or his deputies. Plaintiffs assert that
Thompson is no longer controlling because the Supreme Court in
McMillian v. Monroe County, Ala., 520 U.S. 781, 786 (1997), held
that a court must look into the "relevant state law" to understand the
"actual function of a governmental official" in order to determine
whether a sheriff has final policy-making authority. While
Thompson only includes two sentences analyzing Illinois state
law, the Seventh Circuit's reasoning is entirely consistent with
The Cook County Jail, and the Cook County
Department of Corrections, are solely under the
supervision and control of the Sheriff of Cook
County. See Ill. Ann. Stat. ch. 125,
¶¶ 202, 203 (Smith-Kurd 1967 & Supp. 1989).
The Sheriff is an independently-elected
constitutional officer who answers only to the
electorate, not to the Cook County Board of
Commissioners. Ill. Const. Art. VII, § 4(c);
see also Baltz v. County of Will,
609 F. Supp. 992, 995 (N.D. Ill. 1985); Thomas v.
Talesky, 554 F. Supp. 1377, 1378-79 (N.D.
Thompson, 882 F.2d at 1187; see Horstman v. County of
DuPage, 284 F. Supp.2d 1125, 1131 (N.D. Ill. 2003); but see
Hernandez v. County of DuPage, No. 96 C 8030, 1997 WL 598132, at *6,
8 (N.D. Ill. Sept. 19, 1997) (stating that after McMillian "the
question of whether an Illinois sheriff is the final policymaker for the
county must be subjected to a more searching analysis," but noting that
"a county board has no power to alter a sheriff's duties with respect to
his management of the county jail"). Thus, we find that Thompson
remains controlling Seventh Circuit law and hold that Cook County cannot
be directly liable because it has no authority over the Cook County
Sheriff or his deputies.
The Illinois Supreme Court, in Moy v. County of Cook,
640 N.E.2d 926, 930 (Ill. 1994), also concluded that Cook County cannot be
vicariously liable for the actions of the Cook County Sheriff and his
deputies because "the position of sheriff is an office and not a mere
employment." We therefore find that Cook County cannot be vicariously
liable for the state law claim. Accordingly, we dismiss Cook County from
counts one through four of the amended complaint.
Finally, Cook County requests leave to file an answer to count V of the
amended complaint after this Court has ruled on the present motion.
See Oil Express Nat'l, Inc. v. D'Alessandro, 173 F.R.D. 219, 221
(N.D. Ill. 1997). We grant Cook County's request and order it to answer
count five within ten days.
VII. Statute of Limitations
Defendants have also requested we strike all of their conduct in the
complaint prior to July 25, 2001 because it is barred by the statute of
limitations. This Court "may order stricken from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. Fed.R.Civ.Pro. 12(f). The statute of limitations
for section 1983 claims is
imported from relevant state law; in this case it is Illinois' two
year statute of limitations for personal injuries. Kalimara v. Ill
Dep't of Corr., 879 F.2d 276, 277 (7th Cir. 1989). A plaintiff can
obtain relief, however, for time-barred acts by linking them with an act
that is within the statute of limitations through the continuing
violation doctrine. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir.
1992). This Court will only use the continuing violation doctrine to make
time-barred conduct actionable if it would have been unreasonable for
Plaintiffs to file suit when the time-barred conduct occurred.
Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.
1989), rev'd on other grounds, Rush v. McDonald's Corp.,
966 F.2d 1104, 1119-20 (7th Cir. 1992). For example, time-barred acts can be
linked to acts within the statute of limitations when a plaintiff has no
reason to believe that he was a victim of harassment, retaliation or
discrimination until a series of events established a visible pattern.
Id,; see also Nat l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 115 (2002) (explaining that the continuing violation doctrine
is appropriate in hostile work environment claims because "a single act
of harassment may not be actionable on its own").
Defendants claim that all of the conduct described in the complaint
prior to July 25, 2001 is barred by the statute of limitations.
Plaintiffs, however, assert that these acts are linked to the acts
falling within the statute of limitations because they are part of a
campaign of harassment and retaliation. Plaintiffs allege that this
campaign began after the initiation of the Fields Litigation in August
2000 and intensified as the litigation advanced: in February 2002 when
Defendants learned that Fairley had been subpoenaed to appear for a
deposition and then again in late 2002 when Fairley was to be deposed.
Given this sequence of events, we find that the continuing violation
doctrine is appropriate in this case. On the basis of the time-barred
Plaintiffs would not have known that Defendants were conspiring to
deprive them of their First Amendment rights through harassment and
retaliation.*fn5 Thus, none of the alleged conduct is barred by the
statute of limitations. Accordingly, Defendants' motion to strike is
For the reasons provided above, we dismiss count three in its entirety
and dismiss Defendant Cook County from counts one through four.
Defendants' motions are otherwise denied. (R. 20-1: R. 21-1; R. 22-1; R.
23-1; R. 23-2.) The parties should proceed with discovery. All discovery
must be completed by August 30, 2004. A status hearing will be held in
open court on February 24, 2004 at 9:45 a.m. for the express purpose of
setting a firm trial date for this lawsuit.