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Kenneth Kidwell v. Joseph S. Eisenhauer

April 12, 2011


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED Tuesday, 12 April, 2011 04:49:53 PM

Clerk, U.S. District Court, ILCD


This case is before the court for ruling on the Motion for Summary Judgment (#17) filed by Defendants Joseph S. Eisenhauer, Larry Thomason, Doug Miller and Bob Richard. This court has carefully reviewed the arguments of the parties and the documents filed by the parties. Following this careful and thorough review, Defendants' Motion for Summary Judgment (#17) is GRANTED.


Plaintiff was hired by the City of Danville Police Department (Department) in December 1992. He was promoted to the position of sergeant in 1996. On January 1, 2006, Plaintiff was assigned to be the supervisor of the Community Oriented Policing Service (COPS) unit. This was not a full-time assignment and Plaintiff's primary function was still to supervise the second shift patrol. In March 2007, Defendant Doug Miller, who was Deputy Director of the Department's criminal investigations division, received a telephone call from an anonymous source informing him that some local Danville gang members were planning a "hit" on two Danville police officers. As part of his special assignment as supervisor of the COPS unit, Plaintiff played a role in the investigation of the threat. After the next several weeks, Plaintiff did not feel the Department was doing any follow-up investigation, so he and the other members of the COPS unit took primary responsibility to continue to look into it.

During his work on the investigation, Plaintiff developed a relationship with Don Neal, who he considered a source of information. Neal was a gang member, or familiar with gangs, and is a convicted felon, with nearly 20 arrests and five convictions on his "rap" sheet. Neal was arrested in November 2007. On December 4 and 5, 2007, Plaintiff talked to Vermilion County State's Attorney Frank Young and assistant State's Attorney Larry Mills about getting Neal's bond reduced so Plaintiff could continue to work with him on the "hit" investigation. On December 21, 2007, Plaintiff met with Young. Young told him that Judge Claudia Anderson had refused to lower Neal's bond. On December 28, 2007, Plaintiff and Officer Hannan, a member of the COPS unit, went to Judge Anderson's office to meet with her. Judge Anderson told them that Young had never requested a bond reduction. Mills was then called and asked to come to Judge Anderson's office. After Mills arrived, Plaintiff told Judge Anderson that Neal was going to assist him and Officer Hannan in investigating the planned "hit" and they would like Neal's bond reduced. Judge Anderson agreed to reduce the bond amount.

Miller received information about Plaintiff's interaction with Judge Anderson and discussed the matter with Mills. Defendant Larry Thomason, who was Director of the Danville Public Safety Department (and had all of duties of a Chief of Police), also heard about the incident and discussed it with Young. Young advised Thomason that he was upset about the conduct of Plaintiff and Hannan. Thomason decided to submit the incident to the Internal Affairs Unit to determine if Plaintiff had violated any of the Department's Rules and Regulations. Miller and Defendant Bob Richard, Deputy Director of the Department's patrol division, were involved in the investigation. They concluded that Plaintiff did not violate any existing rules or regulations of the Department. However, Thomason then amended the rules and regulations to prohibit any direct contact between officers and a Judge regarding pending criminal cases.

Plaintiff was part of the patrol division. In January 2008, Richard told Plaintiff to keep him informed regarding his investigation. Richard told Plaintiff that, as the head of the patrol division, he needed to know what Plaintiff was doing. On February 7, 2008, Plaintiff gave Richard three binders of materials concerning his investigation. After reviewing the materials and learning that Plaintiff and Neal were contemplating the use of a "wire" in further investigation, Richard formed the opinion that the investigation exceeded the capability of the Department.

On February 11, 2008, Plaintiff and Officer Hannan made a joint presentation at a meeting of the Police Benevolent and Protective Association (union). They expressed that they did not feel like they were getting the support of the upper command on their investigation and explained that they thought that command had dropped the ball. Plaintiff brought up the topic of a "no confidence" vote against the Department's administration and Defendant Joseph S. Eisenhauer, the Mayor of Danville. Plaintiff also said that Young and Mills had lied to him regarding requesting a bond reduction for Neal.

On February 21, 2008, Miller and Richard met with assistant United States Attorney Eugene Miller and requested both a review of the "hit" case and a recommendation as to which federal law enforcement agency would be best suited to handle any further investigation. The investigation was turned over to the Federal Bureau of Investigation (FBI), and Plaintiff occasionally spent time working with FBI agents regarding the "hit" case as well as a corruption investigation of Larry Mills. On March 22, 2008, Plaintiff was called by an acquaintance, Alan Dixon. Dixon requested an "officer standby" while he collected some personal property in a residence. Plaintiff stood by while Dixon entered the residence, but the guns and gun safe he wanted to retrieve were not there. Later, Lisa Dixon complained that she was going through a divorce with Dixon's son and Dixon did not have authority to enter her home or retrieve any belongings. Lisa Dixon complained on several occasions to Mayor Eisenhauer and eventually contacted WCIA 3 News in Champaign, Illinois. Richard conducted an informal inquiry, speaking to Plaintiff about what had occurred. After speaking with Plaintiff, Richard determined that Plaintiff had done nothing wrong. At his deposition, Plaintiff testified that he was upset because Mayor Eisenhauer's responses to Lisa Dixon talked about an investigation and the television news report mentioned an investigation. Plaintiff felt that the references to an investigation made it appear that he had done something wrong.

On April 2, 2008, an incident occurred at the Public Safety Building. Plaintiff asked Richard in a loud voice, "Why are you headhunting him?" referring to Officer Tony Piatt. Richard was investigating Piatt because of an allegation that Piatt put a gun to a gang member's head after the gang member blew a kiss to Piatt's wife. At the time Plaintiff asked the question, Piatt was standing a few feet away within earshot. Plaintiff testified at his deposition that he did not know Piatt was within earshot when he made the comment and, if he had known, he "probably would have said it lower so [Piatt] wouldn't have heard it." Plaintiff testified that, in hindsight, he would not have said it at all if he had to go back and do it all over again. Plaintiff acknowledged that "Richard concluded it was a disparaging comment to accuse him of being a headhunter." On April 15, 2008, Richard issued Plaintiff a "Written Reprimand at Division Level" for his conduct on April 2, 2008. Richard determined that the comment was a violation of the Department's rules and regulations which prohibit "making any statement or allusion which discredits or disparages any member except when reporting a member's misconduct to a supervisor."

Later in April 2008, Richard advised Plaintiff that he had to give the Department 48-hour notice before he worked with an outside agency, such as the FBI, because of scheduling concerns. Also in April 2008, Richard received information that Plaintiff was meeting with informants or sources of information, while on duty, in his personal vehicle, without letting anyone in the Department know. Richard did not want Plaintiff meeting with these types of people without letting someone know because he did not think it was safe. Based upon these concerns, Richard instructed John Miller, Plaintiff's immediate supervisor, to meet with Plaintiff and tell him that they wanted him to follow procedures. On May 1, 2008, John Miller informed Plaintiff that he was not to meet with informants alone.

On May 23, 2008, Richard informed Plaintiff that the COPS unit was being transferred from his command. A decision was made to combine the COPS unit with the Problem Oriented Policing (POP) unit, which had been set up by the Department in June 2007. Thomason testified that he began thinking about combining the COPS and POP programs at the time the POP program was established in order to maximize efficiency. There were issues which needed to be worked out but Thomason eventually made the decision to combine the units. Thomason also decided to have the combined units under investigations rather than under patrol because both units were assisting detectives and sharing information. Therefore, Sergeant Thompson, who had been supervising the POP Unit, was selected to supervise the combined units. On June 25, 2008, Plaintiff was ordered to turn in his cell phone. Richard stated in his affidavit that he ordered Plaintiff to turn in his department issued cell phone because that phone had been assigned to him as part of his special assignment in the COPS unit, and the COPS unit had been absorbed into the POP unit in the investigations division. At the time Plaintiff was directed to turn in the cell phone, no other sergeant in the patrol division was assigned a cell phone unless he or she was on a special assignment.

On July 5, 2008, Plaintiff filed a grievance concerning the command officers' taking the day off on the July 4th holiday. Under the contract, Step 1 of the grievance process is "meet with an immediate supervisor." Plaintiff did not have a meeting with his immediate supervisor, John Miller, about his grievance. Instead, Plaintiff received a written response that was signed by John Miller, but was written by Richard. Richard responded because he felt he was well-informed regarding the issue because he had been on the negotiation committee when the benefit at issue was negotiated. Richard felt that, by writing the Step 1 response personally, he could achieve the goal of having consistent responses to grievances and avoid having conflicting responses written by the Commanders.

On August 8, 2008, Plaintiff attended a union meeting and asked that Richard be removed from the Association. Plaintiff outlined instances where he felt Richard was acting contrary to the aims and policies of the police union. Plaintiff also discussed his belief that Richard meddled or interfered with his July 5, 2008 grievance and testified this was the "final straw" that caused him to ask that Richard ...

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