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Fairley v. Andrews

May 4, 2006

ROGER FAIRLEY AND RICHARD GACKOWSKI, PLAINTIFFS,
v.
SUPT. DENNIS ANDREWS, LT. EDWARD BYRNE, SGT. PATRICK LOIZON, OFC. EVAN FERMAINT OFC. NOBERTO BERCASIO, OFC. FRED COFFEY, OFC. RONALD PROHASKA, INVESTIGATOR GREGORY ERNST, FORMER CHIEF INVESTIGATOR SAUL WEINSTEIN, CHIEF INVESTIGATOR TIM KAUFMANN, OFC. GABRIEL OCHOA, CHIEF INVESTIGATOR JUAN DIAZ, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, SHERIFF MICHAEL SHEAHAN, IN HIS OFFICIAL CAPACITY, AND COOK COUNTY, DEFENDANTS.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Plaintiffs Roger Fairley and Richard Gackowski filed a Second Amended Complaint alleging that Defendants violated their First Amendment rights to the United States Constitution in violation of 42 U.S.C. § 1983. Before the Court are Defendants' Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons discussed in detail below, the Court grants in part and denies in part Defendant Sheriff Michael Sheahan's Motion for Summary Judgment. The Court grants in part and denies in part Defendant Edward Byrne's and Defendant Dennis Andrews' Motions for Summary Judgment. Further, the Court grants in part and denies in part Defendants Evan Fermaint's, Noberto Bercasio's, Fred Coffey's and Ronald Prohaska's Motion for Summary Judgment. The Court also grants Defendant Juan Diaz's, Defendant Patrick Loizon's and Defendant Gregory Ernst's Motions for Summary Judgment in their entirety. Finally, the Court grants in part and denies in part Timothy Kaufmann's and Saul Weinstein's Motions for Summary Judgment.

BACKGROUND*fn1

I. The Parties

Plaintiffs Roger Fairley and Richard Gackowski are former correctional officers at the Cook County Department of Corrections ("CCDOC"), who resigned from the CCDOC on February 4, 2003. (R. 447-1, Defs.' Joint Local Rule 56.1(a)(3) Stmt. Facts. ¶¶ 1, 2; R. 553-1, Pls.' Corrected Rule 56.1(b)(3) Stmt. Add'l Facts ¶ 420.) During the relevant time period, Defendant Dennis Andrews was the superintendent of Division I, Defendant Edward Byrne was a correctional officer with the rank of lieutenant, and Defendant Patrick Loizon was a correctional officer with the rank of sergeant at the CCDOC. (Id. ¶¶ 3-5.) Defendants Evan Fermaint, Noberto Bercasio, Fred Coffey, and Ronald Prohaska were all correctional officers at the CCDOC during the pertinent time period. (Id. ¶¶ 6-9.) Defendant Gregory Ernst was an investigator with the Internal Affairs Division ("IAD") of the CCDOC and Defendant Saul Weinstein and Juan Diaz served as Chief Investigators at IAD. (Id. ¶¶ 10, 11, 14.) Defendant Timothy Kaufman was an investigator with the Cook County Sheriff's Police Department and Defendant Michael Sheahan served as the Sheriff of Cook County. (Id. ¶¶ 12, 15.) Cook County and Gabriel Ochoa are no longer Defendants in this lawsuit. (Id. ¶ 13.)

II. CCDOC Training Academy

Fairley attended the CCDOC Training Academy from October 31, 1994 until January 27, 1995. (Id. ¶ 55; Pls.' Stmt. Add'l Facts ¶ 1.) At his deposition, Fairley testified that while on a visit to Division II of the CCDOC with his training academy class, he witnessed a correctional officer take a pool stick and hit an inmate who was using crutches. (Pls.' Stmt. Add'l Facts ¶ 2; Defs.' Ex. 8, Fairley Dep. at 448-66.) Fairley further testified that the next day during class, an academy cadet complained about the incident. (Id. ¶ 4, Defs.' Ex. 8, Fairley Dep. at 463.) After that, Fairley stated that an academy instructor told Fairley's class that the cadets stick together and that they should not make bad remarks about anyone because "unity is the key." (Id. ¶ 6, Defs.' Ex. 8, Fairley Dep. at 462-63.)

Gackowski began training at the CCDOC Training Academy on June 12, 1995 and was part of the Class of 95-4. (Defs.' Stmt. Facts ¶ 43; Pls.' Stmt. Add'l Facts ¶ 7.) At his deposition, Gackowski testified that he and his training academy class visited the Cook County Jail and witnessed officers throw a handcuffed inmate face-first into a bench. (Pls.' Stmt. Add'l Facts ¶ 8; Defs.' Ex. 1, Gackowski Dep. at 131.) Gackowski further testified that while in training, a sergeant illustrated how to speed cuff inmates and that it was possible to shatter the inmate's bones in doing so. (Id. ¶ 15, Defs.' Ex. 1, Gackowski Dep. at 126.) According to Gackowski, the sergeant then joked that the reporting officer would never know how the bones became shattered. (Id. ¶ 16, Defs.' Ex. 1, Gackowski Dep. at 126-27.) Further, Gackowski testified that a training sergeant told them after an Internal Affairs class that the IAD investigators were not their friends, but instead they were there to "trip up" the correctional officers. (Id. ¶ 25, Defs.' Ex. 1, Gackowski Dep. at 117-18.) The sergeant further explained to the cadets that they should be careful when they write their reports and that they should not "set each other out." (Id.)

Former correctional officer, Ricky Rodriguez, who started at the Training Academy in June of 1996, testified that:

The code of silence is brought up to us and I believe it's brought up to us in the Redman training, that we are the officers, they are the inmates, we are the good guys, they are the bad guys. If you expect your fellow officers to back you up, you need to back them up, so basically what goes on in the jail stays in the jail.

(Id. ¶¶ 18, 19, Pls.' Ex. 33, Rodriguez Dep. at 211.)

III. Division I Incidents

After their academy training, both Fairley and Gackowski worked in Division I of the Cook County Jail during part of the relevant time period and became friends. (Defs.' Stmt. Facts ¶¶ 21, 26, 35-38.) Fairley testified that while working in Division I in late 1998 or early 1999, he witnessed Defendant Coffey and another correctional officer hit two inmates. (Pls.' Stmt. Add'l Facts ¶ 46, Defs.' Ex. 8, Fairley Dep. at 507-09.) Fairley then told another officer to get a supervisor. (Id. ¶ 47, Defs.' Ex. 8, Fairley Dep. at 509-10.) After the incident, Fairley testified that he told a sergeant about it, after which Coffey called Fairley a snitch and threatened to beat him up. (Id. ¶¶ 48, 50, Defs.' Ex. 8, Fairley Dep. at 510-13.)

Gackowski testified that on April 1, 2000 he witnessed Coffey punch and kick inmate Rodney Brown. (Id. ¶ 51, Defs.' Ex. 1, Gackowski Dep. at 295-96.) After Brown fell to the floor, Gackowski testified that Coffey continued to kick Brown. (Id., Defs.' Ex. 1, Gackowski Dep. at 296.) According to Gackowski, he yelled at Coffey while Coffey was beating Brown and told Coffey not to include him as a witness in his report. (Id. ¶ 53, Defs.' Ex. 1, Gackowski Dep. at 286.) After the Brown incident, Gackowski testified that he told his supervising sergeant about the beating. (Id. ¶ 54, Defs.' Ex. 1, Gackowski Dep. at 296-97.) Coffey subsequently told Gackowski that he was not "part of the team." (Id. ¶ 57, Defs.' Ex. 1, Gackowski Dep. at 183.) Also after this April 2000 incident, Gackowski testified that Defendant Fermaint started calling him a snitch. (Id. ¶ 58, Pls.' Ex. 19, Gackowski Dep. at 207-08.) Similarly, Defendants Coffey, Fermaint, and Bercasio started calling Gackowski a "social worker." (Id. ¶ 59, Defs.' Ex. 1, Gackowski Dep. at 403-04.)

IV. The July 29, 2000 Incident

Fairley testified at his deposition that on July 29, 2000 he saw Fermaint and another correctional officer abuse inmates, including Nathson Fields and James Scott, in the SI-2 (Special Incarceration Unit Two), which is the maximum security tier located in the basement of Division I. (Defs.' Stmt. Facts ¶¶ 64, 65; Pls.' Stmt. Add'l Facts ¶ 71.) Fairley testified that other officers, including Bercasio, also beat some inmates while they were handcuffed and shackled. (Pls.' Stmt. Add'l Facts ¶ 72; Defs.' Ex. 8, Fairley Dep. at 691, 922-23.) Further, Fairley stated that he told the officers to stop beating the inmates and subsequently reported the beating to his supervisors. (Id. ¶¶ 76, 93.) Also, Fairley testified that after the incident, Lieutenant Byrne told him not to write up a report and that IAD would interview him, yet no investigator from IAD ever interviewed Fairley in connection with the incident. (Id. ¶¶ 79, 80.)

Defendant Superintendent Andrews was also informed about the altercation in Division I on July 29, 2000. (Id. ¶ 81.) Furthermore, Fairley told Gackowski along with other correctional officers about the beating he had witnessed on July 29, 2000. (Pls.' Stmt. Add'l Facts ¶¶ 91, 98.)

Gackowski did not witness any of the events on July 29, 2000 in the SI-2 because he was assigned to Division VIII, which houses the Cermak Hospital Emergency Room. (Id. ¶ 82; Defs.' Stmt. Facts ¶¶ 66-70.) He nonetheless heard about the incident from officers in Division VIII. (Pls.' Stmt. Add'l Facts ¶ 83.) At the emergency room, Gackowski saw some of the injured officers and inmates, including inmate Scott, who were involved in SI-2 altercation. (Id. ¶ 84; Defs.' Stmt. Facts ¶¶ 72, 73.) Although Gackowski saw Scott very briefly, he testified at his deposition that Scott's face was swollen and that he was bleeding. (Pls' Stmt. Add'l Facts ¶ 85; Defs.' Stmt. Facts ¶ ¶ 71, 73.)

Gackowski was transferred back to Division I in August 2000. (Id. ¶ 86.) He testified at his deposition that on the day he returned to Division I, he talked to Byrne about the SI-2 incident and Byrne explained that some of the inmates had tried to jump the correctional officers. (Id. ¶ 87, Defs.' Ex. 1, Gackowski Dep., at 768-69; Defs.' Stmt. Facts ¶ 85.) The parties dispute whether Byrne told Gackowski that Byrne had tried to break one of the inmate's legs. (Id. ¶ 89.)

In August 2000 after the SI-2 incident, certain inmates filed a lawsuit in state court known as the "Fields Litigation," which named Lieutenant Byrne as one of the defendants. (Id. ¶¶ 104, 105.) The Fields Litigation received a significant amount of publicity in the Chicago area. (Id. ¶¶ 106-123.) In addition, correctional officers and other staff in Division I discussed the Fields Litigation. (Id. ¶¶ 91, 93, 94, 124.) In April 2001, a letter from the Sheriff's Office informed the Division I correctional officers about the Fields Litigation. (Id. ¶¶ 165-172.)

Superintendent Andrews discussed this letter with the correctional officers who received it, including Fermaint and Byrne. (Id. ¶¶ 169-171.) In the interim, Gackowski testified that he told correctional officer Rodriguez that he was going to tell the truth about the SI-2 incident. (Id. ¶ 97.) Similarly, Fairley told a number of correctional officers that he was not going to lie about the SI-2 incident. (Id. ¶ 103.)

Eventually, Fairley and Gackowski gave deposition testimony in the Fields Litigation. (Id. ¶ 401; Defs.' Stmt. Facts ¶ 101.) Prior to Fairley's testimony, a private investigator went to Fairley's residence, after which Fairley reported the investigator's visit to Superintendent Andrews. (Id. ¶¶ 147, 157.) After his conversation with Fairley, Andrews contacted IAD, the CCDOC's Executive Director's Office, and Sheriff Sheahan's Chief Legal Counsel to inform them that an investigator had been to Fairley's house. (Id. ¶ 161.)

V. Alleged Harassment and Retaliation After the July 29, 2000 Incident

After the July 29, 2000 incident, Fairley testified that Fermaint refused to provide enough lunches and other supplies for the SI-2 inmates which caused the inmates to become irate and yell at Fairley. (Id. ¶¶ 252, 253.) Fairley also testified that Fermaint and Bercasio would "dry hump" him -- meaning that they would physically grab him by the waist and imitate anal intercourse. (Id. ¶¶ 254, 256.) Moreover, Fairley testified that Fermaint and Bercasio also harassed him by failing to unlock the security door to the SI-2 Unit to allow Fairley to use the restroom, in addition to calling him an "inmate lover." (Id. ¶¶ 240, 251.) Evidence in the record also reveals that Byrne assigned Fairley difficult assignments and denied him paternity leave. (Id. ¶¶ 214, 216, 221, 224, 228.) According to Fairley, Defendant Loizon assigned him to the difficult task of escorting inmates to Cermak hospital at the end of his shift. (Id. ¶ 222, Defs.' Ex. 8, Fairley Dep. at 847-48.)

Further, Bercasio drew sexually explicit cartoons of Gackowski and had them posted around Division I. (Id. ¶¶ 257, 258; Defs.' Stmt. Facts ¶ 121.) Gackowski also testified that from late 2000 through May or June 2002, Bercasio and Fermaint "dry humped" him by physically grabbing him and imitating anal intercourse. (Pls.' Stmt. Add'l Facts ¶ 262; Defs.' Stmt. Facts ¶ 121.) The record contains undisputed evidence that Gackowski reported the correctional officers' harassment to Byrne. (Defs.' Stmt. Facts ¶ 112.)

VI. Gackowski's Complaint to Internal Affairs

On June 14, 2002, Gackowski told Superintendent Andrews that he might file a complaint with Internal Affairs concerning the officers' harassment. (Defs.' Stmt. Facts. ¶ 116.) Gackowski also testified that on June 15, 2002, he told Lieutenant Byrne that he was going over Superintendent Andrews' head and would report the various officers' harassing conduct to Internal Affairs. (Id. ¶¶ 91, 117; Pls.' Stmt. Add'l Facts ¶¶ 264, 269.) Gackowski testified at his deposition that Byrne told him that if he did go to Internal Affairs, repercussions would follow. (Pls.' Stmt. Add'l Facts ¶ 266.) Moreover, Gackowski stated that he informed other Defendants that he was going to go to Internal Affairs with his complaints. (Id. ¶¶ 267, 268.) Also, in or about June or July 2002, Gackowski, by giving an investigation statement, told Defendant Gregory Ernst of Internal Affairs that certain officers were harassing him. (Id. ¶ 270; Defs.' Ex. 20, Gackowski's 2002 Internal Affairs Stmt.)

On July 9, 2002, Gackowski submitted a written complaint to Internal Affairs alleging that he was the subject of harassment by other correctional officers. (Id. ¶ 272; Defs.' Stmt. Facts ¶ 119.) Saul Weinstein, the Chief Investigator of IAD, did not initiate an investigation into Gackowski's allegations, but instead forwarded Gackowski's complaint back to Division I and Superintendent Andrews. (Pls.' Stmt. Add'l Facts ¶ 274.) Gackowski testified that when he went to Andrews' office, Andrews berated him for submitting the IAD complaint. (Id. ¶ 280.) In addition, Andrews told Gackowski that he would sue Gackowski for slander because of the statements Gackowski made in the IAD complaint. (R. 454-1, Def. Andrews Rule 56.1(a)(3) Stmt. Facts ¶ 11.) Nevertheless, Andrews contacted Weinstein and told him that he was sending Gackowski's complaint back to IAD because it was a "conflict of interest" for Andrews to investigate a complaint in which he was a named subject. (Pls.' Stmt Add'l Facts ¶ 282.)

After Gackowski's complaint was returned to IAD, Investigator Gregory Ernst was assigned to the case and interviewed Gackowski about his allegations. (Id. ¶¶ 303, 304.) In his statement to Ernst, Gackowski identified officers who had harassed him, including Fermaint and Bercasio, and described the harassment -- including physical grabbing, sexually suggestive cartoons, and degrading and sexual comments about his wife. (Id. ¶ 305, Defs.' Ex. 20, Gackowski's 2002 Internal Affairs Stmt.) Gackowski told Ernst that he believed he had been singled out for harassment because he did not "smack inmates around for no reason." (Id. ¶ 306.) Further, Gackowski explained to Ernst that he had witnessed Fermaint, Byrne, and Coffey abuse inmates and specifically described the Rodney Brown incident. (Id. ¶¶ 308, 314.) There is also evidence in the record that other correctional officers knew that Gackowski had made a report to the IAD, especially because a Division I Chief spoke to everyone identified in Gackowski's IAD complaint. (Id. ¶¶ 291, 316, 321-326.)

On September 20, 2002, Ernst reported to the Chief of IAD, Saul Weinstein, that Gackowski had filed a complaint with the Illinois Human Rights Department and Weinstein advised Ernst to put the investigation into Gackowski's IAD complaint on hold until the completion of the Human Rights investigation. (Id. ¶¶ 327, 328.) Gackowski contends that no one ever told him that his IAD investigation was put on hold. (Id. ¶ 335.)

VII. Lipscomb Incident

On December 20, 2002, there was an altercation between inmate Keon Lipscomb and Fairley, as well as other correctional officers. (Defs.' Stmt. Facts ¶ 214.) On that date, Fairley was scheduled to transport Lipscomb for his "medical movement." (Pls.' Stmt. Add'l Facts ¶¶ 337-339; Defs.' Stmt Facts ¶ 216.) After Lipscomb's "medical movement" was cancelled, Lipscomb would not follow Fairley's orders. (Pls.' Stmt. Add'l Facts ¶ 342; Defs.' Stmt Facts ¶ 220.) Thereafter, Bercasio, Byrne, and Loizon came to Fairley's assistance. (Defs.'00 Stmt. Facts ¶ 223.) Lipscomb attacked Fairley, Bercasio tackled Lipscomb from behind, and Fairley fell back during which Fairley sustained a cut to his wrist. (Pls.' Stmt. Add'l Facts ¶¶ 348, 349.) After that, other correctional officers helped subdue Lipscomb. (Id. ¶ 350.)

Thereafter, the Sheriff's Office Investigator, Timothy Kaufmann, began his investigation of the Lipscomb incident. (Id. ¶ 361; Defs.' Stmt. Facts ¶ 233.) Kaufmann interviewed Fairley as well as other the officers involved. (Defs.' Stmt. Facts ¶ 237.) An Assistant States Attorney, Bumjoon Park, also conducted a felony review into the Lipscomb incident and interviewed Fairley and the officers. (Id. ¶¶ 238, 240, 246.) In the course of the investigation, Fairley told Kaufmann and Park that he believed he was being set up in retaliation for speaking the truth about the July 29, 2000 incident and his upcoming testimony in the Fields Litigation. (Pls.' Stmt. Add'l Facts ¶ 364, Pls.' Ex. 25, Kaufman Dep. at 51, Pls.' Ex. 30, Park Dep. at 69.) Kaufmann's final report of the Lipscomb incident stated that he and Assistant States Attorney Park concluded that charges against Lipscomb were not warranted because of Fairley's inconsistent statements. (Id. ¶ 367.) Park, however, testified at his deposition that he did not tell Kaufmann that the States Attorney's Office would not approve ...


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