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. See 42 U.S.C. § 1983. On May 4, 2006, the Court granted in part and denied in part Defendants' motions for summary judgment concerning Plaintiffs' First Amendment retaliation and conspiracy claims. On May 18, 2006, Defendants Cook County Correctional Officers Evan Fermaint, Norberto Bercasio, and Fred Coffey filed a notice of appeal concerning the Court's denial of their qualified immunity defense. Before the Court is Plaintiffs' motion to certify as frivolous Defendants' qualified immunity appeal. For the reasons discussed below, the Court denies Plaintiffs' motion.
Although a notice of appeal generally divests the district court of jurisdiction, a district court may retain jurisdiction over appellants if the court determines that an interlocutory appeal is frivolous. See Apostol v. Gallion, 870 F.3d 1335, 1339 (7th Cir. 1989); see also Wisconsin Mut. Ins. Co. v. United States, 441 F.3d 502, 504 (7th Cir. 2006) ("appeal taken from an interlocutory decision does not prevent the district court from finishing its work and rendering a final decision"). Several circuit courts follow this practice, which allows district courts to "retain jurisdiction pending summary disposition of the appeal, and thereby minimize disruption of the ongoing proceedings." Behrens v. Pelletier, 516 U.S. 299, 310-11, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (citing Apostol, 870 F.3d at 1339). In general, if "a notice of appeal from an interlocutory order is a frivolous effort to block the normal progress of litigation the district judge may so certify and continue with the case." Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995).
This case was reassigned to the present Court after Judge Castillo recused himself pursuant to 28 U.S.C. §§144, 455. Prior to his recusal, Judge Castillo denied Defendants' motion to dismiss concerning their qualified immunity defense because Plaintiffs' right to free speech under the circumstances was clearly established. See Fairley v. Andrews, 300 F.Supp.2d 660, 668 (N.D. Ill. 2004).
Specifically, The Order States
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, 103 S.Ct. 1684, 75 L.Ed.2d 708 (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.
Id. Because Judge Castillo's order was the law of the case, this Court did not reopen the qualified immunity issue, especially because Defendants failed to establish that Judge Castillo's ruling was "clearly erroneous" or "a manifest injustice." See Moriarty v. Svec, 429 F.3d 710, 722-23 (7th Cir. 2005).
Further, in denying Defendants' motion for summary judgment, the Court determined that there were genuine issues of material fact whether Defendants had violated Plaintiffs' First Amendment rights under the Connick-Pickering test. See Ashman v. Barrows, 438 F.3d 781, 784 (7th Cir. 2006). Specifically, the Court determined:
Plaintiffs have set forth competent evidence establishing a genuine issue of material fact that they openly spoke out against the inmate abuse and excessive force at the Cook County Jail, especially concerning the SI-2 incident that resulted in the Fields Litigation, and that these Defendants were aware of this protected speech. Fairley testified that he told Fermaint and Bercasio to stop beating inmates during the SI-2 incident and that he told many of his fellow correctional officers about this incident. Plaintiffs also testified that they told other correctional officers they would not lie about the SI-2 incident.
Evidence also exists that other correctional officers and supervisors were put on notice of Plaintiffs' protected speech and the SI-2 incident. For example, in April 2001, the Sheriff's Office sent a letter to Division I correctional officers about the Fields Litigation and Superintendent Andrews discussed this letter with the correctional officers who received it, including Fermaint and Byrne.
As far as Gackowski's IAD [Internal Affairs Division] complaint, Gackowski told Superintendent Andrews that he might file a complaint with Internal Affairs concerning the officers' harassment and told Lieutenant Byrne that he was going over Superintendent Andrews' head and would report the various officers' harassing conduct to Internal Affairs. Thereafter, Byrne told Gackowski that if he went to Internal Affairs, repercussions would follow. The record also reveals that other correctional officers knew of Gackowski's IAD compliant, ...