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FAIRLEY v. ANDREWS

January 27, 2004.

ROGER FAIRLEY and RICHARD GACKOWSKI, Plaintiffs,
v.
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.

RELEVANT FACTS

  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 Page 2 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 Page 3 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. Page 4

  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.

  LEGAL STANDARDS

  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. Page 5 506 (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 ...


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