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Fairley v. Andrews

September 24, 2007

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, FORMER CHIEF INVESTIGATOR SAUL WEINSTEIN, CHIEF INVESTIGATOR TIM KAUFMANN, CHIEF INVESTIGATOR JUAN DIAZ, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, AND SHERIFF MICHAEL SHEAHAN, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiffs' motion for reconsideration of the Court's September 11, 2007 ruling granting Defendants' motion in limine #8. In the alternative, Plaintiffs move to stay the trial -- scheduled to commence on October 9, 2007 -- and to certify a question of law for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Court held a hearing on Plaintiffs' motion and the parties have briefed the relevant issues. The Court presumes familiarity with its prior orders and the Seventh Circuit decision in Fairley v. Fermaint, 482 F.3d 897 (7th Cir. 2007). For the following reasons, the Court denies Plaintiffs' motion for reconsideration and for certification for interlocutory appeal pursuant to Section 1292(b).

I. Motion for Reconsideration

A. Legal Standard

Because the Court's September 11, 2007, Minute Order granting Defendants' motion in limine #8 did not dispose of this case in its entirety, the Court reviews Plaintiffs' motion for reconsideration pursuant to Federal Rule of Civil Procedure 54(b). Under Rule 54(b), the Court may exercise its inherent authority to reconsider its interlocutory orders because such orders are "subject to revision at any time before the entry of judgment adjudicating all the claims." See Fed.R.Civ.P. 54(b); see also Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ("every order short of a final decree is subject to reopening at the discretion of the district judge"). Accordingly, under Rule 54(b), the Court may correct any manifest errors of law or fact in its September 11, 2007 minute order. See Zurich Capital Mkt., Inc. v. Coglianese, 383 F. Supp. 2d 1041, 1045 (N.D. Ill. 2005) (citation omitted).

B. Procedural Background

On July 25, 2003, Plaintiffs Roger Fairley and Richard Gackowski, two former correctional officers who worked at the Cook County Jail, brought the present lawsuit alleging First Amendment retaliation and conspiracy claims, among others, against the Sheriff of Cook County and eight correctional officers, supervisors, and Sheriff's Office employees.*fn1

On May 4, 2006, the Court granted Defendants' motion for summary judgment regarding Plaintiffs' conspiracy claim, namely, that Defendants conspired to deprive them of their constitutional right to free speech. The Court, however, denied Defendants' summary judgment motion concerning Plaintiffs' First Amendment retaliation claim and attendant Monell claim.

On May 30, 2006, the Supreme Court decided Garcetti v. Ceballos, ___U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The Garcetti Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 1960. On June 9, 2006, Defendants Dennis Andrews, Edward Byrne, Ronald Prohaska, Tim Kaufmann, Saul Weinstein, and Michael Sheahan filed a Joint Motion for Summary Judgment based on Garcetti.

Meanwhile, on May 18, 2006, Defendants Evan Fermaint, Noberto Bercasio, and Fred Coffey filed an interlocutory appeal with the Seventh Circuit based on the Court's denial of summary judgment on their qualified immunity defense. On December 20, 2006, the Seventh Circuit issued its opinion dismissing the appeal for want of jurisdiction. See Fairley v. Fermaint, 471 F.3d 826, 829 (7th Cir. 2006). On January 3, 2007, Fermaint, Bercasio, and Coffey filed a Petition for Rehearing and Petition for Rehearing En Banc to the Seventh Circuit.

On March 19, 2007, the Seventh Circuit granted Defendants' Petition for Rehearing. See Fairley v. Fermaint, 482 F.3d 897 (7th Cir. 2007). In doing so, the Seventh Circuit concluded that Defendants' appeal was timely, and thus reached the merits of Defendants' qualified immunity defense. The Seventh Circuit then concluded that Defendants' qualified immunity defense relied upon questions of fact to be resolved at trial. Id. at 902. In making its determination, the Seventh Circuit stated:

Our conclusion that this appeal is timely does not mean, however, that the defendants are home free. Defendants' principal argument relies on Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), which holds that, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 1960. Defendants invoke Garcetti for the proposition that plaintiffs' speech in the workplace is not covered by the first amendment, so they are entitled to prevail even though their reactions to that speech are asserted to be extra-legal and reprehensible. Such responses may be actionable under state law in the wake of Garcetti, defendants allow, but cannot be treated as constitutional torts.

Plaintiffs maintain, however, that defendants reacted adversely to two kinds of speech: not only statements made as part of their duties at work (the kind of speech to which Garcetti applies) but also to testimony that plaintiffs gave in inmates' suits. Assistance to prisoners and their lawyers in litigation is not part of a guard's official duties. To apply Garcetti, therefore, we would need to determine whether defendants reacted to plaintiffs' activities in litigation (they say not) and which of defendants' deeds can be traced to the litigation as opposed to events at work. Piecing out the state of the record, and drawing inferences from the evidence, is not allowed on an interlocutory appeal based on a claim of immunity. The role of an appeal under Mitchell and Behrens is to determine whether the legal principles that apply to public officials were clearly established at the time those officials acted; it is not to determine what the officials did in fact, for that would impinge on the jury's task.

Id.

On April 16, 2007, the Court denied Defendants' Second Motion for Summary Judgment based on Garcetti and denied Defendants' motion for reconsideration on May 7, 2007. The Court concluded that there were genuine issues of material fact for trial whether: (1) Plaintiffs assisted in the Fields litigation prior to their 2003 Fields depositions; and (2) Defendants retaliated against Plaintiffs based on such assistance. (R. 826-1, May 7, 2007, Minute Order at 2.)

C. The Effect of Garcetti

The Supreme Court's opinion in Garcetti has had a significant impact on Plaintiffs' case. When Plaintiffs filed this lawsuit, they premised their First Amendment retaliation claims on speaking out while at work against alleged physical abuse of inmates by correctional officers at the CCDOC. Three years later, Garcetti "significantly limit[ed] First Amendment protection of public employees' speech." Salas v. Wisconsin Dep't of Corrections, 493 F.3d 913, 925 (7th Cir. 2007). In Garcetti, the Supreme Court held that public employees who make statements pursuant to their official duties "are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti, 126 S.Ct. 1951, 1960. Because the majority of Plaintiffs' allegations pertained to speech made as part of their official duties, such claims are no longer viable under the First Amendment. The only speech in this case that remains protected after Garcetti pertains to speech and expressions regarding Plaintiffs "[a]ssistance to prisoners and their lawyers in litigation ...." Fairley v. Fermaint, 482 F.3d 897, 902 (7th Cir. 2007). Because Plaintiff Fairley's first deposition in the Fields Litigation took place shortly before he resigned and his second deposition occurred months after his resignation and because Plaintiff Gackowski's depositions in the Fields Litigation took place after he resigned, Plaintiffs' case is significantly narrowed.

Given the limits Garcetti has imposed, Plaintiffs now seek to expand their theory of the case to cover claims that the Seventh Circuit does not recognize. Plaintiffs' counsel argues that this new theory is an "outgrowth" of Garcetti. Specifically, Plaintiffs claim that from July 2000 -- the date of the Fields incident at the CCDOC which subsequently resulted in the Fields Litigation -- any harassment of Plaintiffs by Defendants was an effort to intimidate them and chill any future speech that is covered under the First Amendment, ...


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