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Bivens v. Trent

April 18, 2008

JIMMY W. BIVENS, PLAINTIFF,
v.
LARRY TRENT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

Before the Court is defendants' motion for summary judgment (Doc. 20) to which plaintiff has filed a response (Doc. 27) and defendants a reply (Doc. 29).

Plaintiff has been an employee of the Illinois State Police (ISP) from 1984 through the present and is currently a trooper with the ISP. He alleges that in October of 2003 he was assigned to the position of Range Officer for the District 11 range in Collinsville, Illinois, and while there, raised serious environmental concerns with respect to the conditions at the range, including that ISP was not in compliance with regulatory standards concerning lead at the facility. The range is used by both ISP employees and the public at large. In addition, he alleges that school groups often tour the facility.

Plaintiff alleges that he spoke out about his concerns, exercising his protected rights to freedom of speech (not in his official capacity, but as a member of the public) about the dangers posed by the lead present at the facility. The complaint provides that as a result of the lead concerns raised by the plaintiff, the range was closed for a period of approximately nine (9) months for cleaning and to be brought into compliance with legal standards.

He asserts that as a result of his decision to speak out about the public safety issues at the range, the defendants have engaged in retaliation against him, including: subjecting him to different workplace rules than other employees; discipline without justification; refusing to allow him to use his available benefit time; reassigning him to a less desirable position; interfering with his right to receive benefits; harassment; disclosure of confidential information; and dissemination of false information concerning the plaintiff to his co-workers. Plaintiff seeks recovery for these violations pursuant to 28 U.S.C. §§ 1983 and 1988, including damages, a mandatory injunction directing the defendants to stop the harassment and other illegal activities, and reinstatement by ISP to his full employment duties.

Defendants seek summary judgment on several grounds. Initially, they assert that plaintiff's speech was not protected because it was part of his official duties. In the alternative, the defendants assert that even if his speech was protected, the protected nature of the speech was not clearly established and that they are protected from any liability by the doctrine of qualified immunity. Finally, the defendants assert that plaintiff's claims must fail because he cannot show that a nexus existed between his report about alleged contamination at the range and any alleged retaliatory actions by the defendants.

SUMMARY JUDGMENT REVIEW STANDARDS

A district court will grant summary judgment "if the pleadings, depositions, answers to interroga-tories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c): see also Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986); Springer v. Durflinger, 518 F.3d 479, 483-84 (7th Cir. 2008); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). The moving party initially bears the burden to demonstrate an absence of genuine issues of material fact, indicating that judgment should be granted as a matter of law. See, Lindemann v. Mobil Oil Corp., 141 F.3d 290, 294 (7th Cir. 1999) (citing Celotex, 477 U.S. at 323). Once a motion for summary judgment has been made and properly supported, however, the non-movant has the burden of setting forth specific facts showing the existence of a genuine issue for trial. See, id. In determining whether a genuine issue of material fact exists, the Court construes all facts in the light most favorable to the nonmoving party and draws all reasonable and justifiable inferences in that party's favor. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, the Court will not resolve factual disputes, weigh conflicting evidence, or make credibility determinations. See, Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001); Miranda v. Wis. Power & Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996). "A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Durflinger, 518 F.3d at 483 (quoting Brummett v. Sinclair Broad. Group, Inc., 414 F.3d 686, 692 (7th Cir. 2007)). Further, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,, 475 U.S. 574, 586 (1986) (quoted in Durflinger, 513 F.3d at 484). Summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007).

DISCUSSION

To prevail on a First Amendment § 1983 claim, the plaintiff needs to show that "(1) [he] was engaged in constitutionally protected speech; (2) that public officials took adverse actions against [him]; (3) that the adverse actions were motivated at least in part as a response to the plaintiff's protected speech. Durflinger, 518 F.3d at 483 (citing Mosely v. Bd. of Educ. of ChicagoI, 434 F.3d 527, 533 (7th Cir. 2006)).

Under § 1983, defendants are entitled to qualified immunity for claimed money damages for discretionary actions if the defendant's conduct does not violate any clearly-established constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). The test is purely legal, without regard to the subjective motivations of the defendant. Id. at 818-19; Mitchell v. Forsyth, 472 U.S. 511(1985); Davis v. Scherer, 468 U.S. 183, 191(1984). Officials do not lose the immunity merely because they violate some statutory or administrative provisions of state law. Davis 468 U.S. at 194.

In order for a plaintiff to defeat a qualified immunity claim, he must prove that defendants have violated a constitutional right that was clearly established at the time of the alleged misconduct. McGrath v. Gillis, 44 F.3d 567, 569 (7th Cir. 1995). The burden of establishing the existence of such a clearly established constitutional right remains with plaintiff. 44 F.3d at 570 citing Rakovich v. Wade, 850 F.2d 1180, 1209 (7th Cir. 1988). Plaintiff must point out a closely analogous case that establishes that he had a right to be free from the specific conduct alleged to violate the general constitutional right at issue. Rice v. Burks, 999 F.2d 1172, 1174 (7th Cir. 1993). Plaintiff must also establish that the alleged violated rights were so clear that a reasonable official would understand that what he is doing at the time violates the right. McGrath, 44 F.3d at 570; See also, Anderson v. Creighton, 483 U.S. 635 (1987).

Initially, defendants assert that plaintiff's speech was not protected speech because he was speaking in his official capacity, not as a member of the public at large. Defendants assert that plaintiff's speech was part of his official responsibilities because he was in charge of the firing range, and his responsibilities included the cleanliness and safety of those who used the range. Defendant's assert that the plaintiff had undertaken the job of cleaning the range, was commended for that action, that his concerns about the lead contamination were only raised within a work environment, and that reporting potential hazards at the range was part of his duties. Plaintiff asserts that his job duties, as outlined in Defendant's Ex. 1 (Doc. 20), did not include bringing concerns to his superiors' attention.*fn1

In Vose v. Kliment, 506 F.3d 565 (7th Cir. 2007), a First Amendment public employee (police officer) case, the Seventh Circuit discussed the applicable standard and limitations as to whether the ...


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