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Dwayne Volkman v. Michael Randle

November 15, 2011

DWAYNE VOLKMAN, PLAINTIFF,
v.
MICHAEL RANDLE, ROGER WALKER, ) LEE RYKER, MARC HODGE, BRIAN STAFFORD, AND BARBARA HESS, DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

Tuesday, 15 November, 2011 03:18:18 PM

Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on the Motion for Summary Judgment (d/e 17 ) filed by Defendants Michael Randle, Roger Walker, Lee Ryker, Marc Hodge, Brian Stafford, and Barbara Hess.

Plaintiff Dwayne Volkman is employed by the Illinois Department of Corrections (IDOC) as a Casework Supervisor at the Lawrence Correctional Center. Plaintiff received a written reprimand purportedly for failing to answer a question during an internal investigation. Plaintiff, believing he was in fact retaliated against for speaking to the State's Attorney, brought suit against Defendants.

In his Complaint, Plaintiff alleged Defendants retaliated against him for (1) his speech to the State's Attorney (Count I); and (2) his political affiliation (Count II). Plaintiff sued (1) Randle, the Director of DOC, in his official capacity; (2) Walker, the former Director of DOC, in his individual and official capacity; (3) Ryker, who at the relevant time was the Warden of the Lawrence Correctional Center, in his individual and official capacity; (4) Hodge, who at the relevant time was employed as an Internal Affairs investigator and/or Assistant Warden of Operations of the Lawrence Correctional Center, in his individual and official capacity; (5) Stafford, who at the relevant time was employed as a Sergeant or Lieutenant at Lawrence Correctional Center, in his individual and official capacity; and (6) Hess, who at the relevant time was employed as an Administrative Assistant 2 for DOC, in her individual and official capacity.

In his Response to the Motion for Summary Judgment, Plaintiff consents to the dismissal of Count II, the political affiliation claim, and agrees that Defendants Randle, Walker, and Stafford do not have the requisite personal involvement to warrant liability. Therefore, this Court will examine only Count I against Defendants Hodge, Ryker, and Hess.

Defendants have moved for summary judgment asserting that Plaintiff's speech was not constitutionally protected, Plaintiff did not suffer a deprivation likely to deter speech, and Plaintiff failed to prove that his speech was a "but-for" cause of the written reprimand. Defendants also assert they are entitled to qualified immunity.

This Court finds that, for purposes of summary judgment, Plaintiff has demonstrated that his speech to the State's Attorney was constitutionally protected, that Plaintiff suffered a deprivation likely to deter speech, and that a question of fact remains whether Defendants Hodge, Ryker, and Hess retaliated against Plaintiff due to his speech to the State's Attorney. This Court further finds that Defendants Hodge, Ryker, and Hess are not entitled to qualified immunity.

I. FACTS

A. Investigation Regarding Officer Jody Burkhardt On June 26, 2008, IDOC completed an investigation regarding

Officer Jody Burkhardt that revealed, among other things, that Officer Burkhardt brought his personal cellular telephone into the Lawrence Correctional Center and used it to make approximately twenty personal phone calls. (Defendants' Undisputed Fact 1). The results of Officer Burkhardt's investigation were forwarded to Defendant Ryker, the Warden of the Lawrence Correctional Center at the time, and Lawrence County State's Attorney Patrick Hahn. (Defendants' Undisputed Fact 2).

On June 30, 2008, the Lawrence County State's Attorney filed criminal charges against Officer Burkhardt. Those charges stated that:

. . . [O]n or about the 8th of May, 2008 the offense of UNAUTHORIZED BRINGING OF CONTRABAND INTO A PENAL INSTITUTION BY AN EMPLOYEE was committed at Lawrence Correctional Center . . . and that the undersigned has just and reasonable grounds to believe that Jody Burkhardt committed said offense in that he then and there being an employee of a penal institution, knowingly and without authority of any person designated or authorized to grant such authority, brought an item of contraband, a cellular telephone, into the Lawrence Correctional Center, a penal institution.

Defendants concede that charges filed by the State's Attorney on June 30, 2008, and the written content of those charges, were a matter of public record. (Plaintiff's Undisputed Fact 6).*fn1

On July 3, 2008, a stop order was issued at Lawrence Correctional Center that prohibited Officer Burkhardt from entering the prison. (Defendant's Undisputed Fact 4). Officer Burkhardt was also placed on administrative leave. (Defendants' Undisputed Fact 4). Officer Chad Ray acted as a union representative for Officer Burkhardt on July 3, 2008, in connection with the stop order and lockout process. (Defendants' Undisputed Fact 5).

B. Officer Ray's Communications with Correctional Employees On July 3, 2008, Officer Ray approached Lawrence Correctional

Center employees, including Plaintiff, in a lunchroom and told them that Officer Burkhardt had been charged with a crime for the use of his cell phone. (Defendants' Undisputed Fact 6). Officer Ray also told the employees, including Plaintiff, that he believed Officer Burkhardt had only brought his cell phone into the prison on one occasion by accident, that Officer Burkhardt had not allowed an inmate to use the phone, and that staff should contact the State's Attorney to encourage the charges to be dropped. (Defendants' Undisputed Fact 6). Officer Ray provided staff with the State's Attorney's phone number. (Defendants' Undisputed Fact 6). However, Officer Ray's statement to Plaintiff and the others in the dining room that Officer Burkhardt only brought his cell phone into the facility on one occasion and that one time was accidental was inaccurate. (Plaintiff's Undisputed Fact 5).

C. Plaintiff Contacts the State's Attorney Either on July 3, 2008, or within approximately two days, while off- duty, Plaintiff contacted Lawrence County State's Attorney Patrick Hahn. (Defendants' Undisputed Fact 8). When Plaintiff called the State's Attorney, he informed the State's Attorney's secretary and the State's Attorney that he understood that Officer Burkhardt had been arrested for bringing a personal cell phone into work. (Defendants Undisputed Fact 9). Plaintiff then expressed his opinion that, if Officer Burkhardt had let an inmate use his cell phone, the State's Attorney should do whatever he sees fit with the case, but that, if Officer Burkhardt had not let an inmate use a cell phone, the case should be handled through IDOC's internal disciplinary process and not through criminal charges. (Defendants' Undisputed Fact 9).

Plaintiff testified he contacted the State's Attorney's office because he:

believed [he] was standing up for fellow employees that -- that may at some point inadvertently walk through the front door with their cell phone clipped on their belt or in their pocket. I hated to see a policy where someone just brought a cell phone in and would be charged with a crime as opposed to going through the disciplinary process.

That was my only thought whenever I called. (Plaintiff's Dep. pp. 33-34).*fn2 Plaintiff also testified he contacted the State's Attorney for two reasons--to offer his opinion and for future situations where an employee may bring a cell phone to work. (Plaintiff's Dep. pp. 34-35). Plaintiff relied on the information that he had received from Officer Ray when he contacted the State's Attorney. (Defendants' Undisputed Fact 11). After contacting the State's Attorney, Plaintiff did not contact any members of the media, newspapers, television reporters, or write about the issue in any online forums. (Defendants' Undisputed Fact 12).

D. IDOC Investigates Officer Ray In July 2008, IDOC had, and continues to have, a policy requiring

employees at the Lawrence Correctional Center to respect the confidentiality of records of internal investigations and personnel issues. (Defendants' Undisputed Fact 22, 23). Employees are prohibited from disclosing any information related to internal investigations or personnel issues, including the existence of an investigation or the identity of employees under investigation, and are prohibited from disclosing confidential or false information to the public. (Defendants' Undisputed Fact 23).

Two Lawrence Correctional Center employees submitted incident reports to Defendant Ryker about the incident with Officer Ray in the lunchroom on July 3, 2008. (Defendants' Undisputed Fact 13). In his Affidavit, Defendant Ryker stated that he directed that Internal Affairs investigate the incident reports to determine if Officer Ray disseminated confidential or false information regarding Officer Burkhardt or conducted himself in a manner unbecoming of a State employee. (Defendants's Undisputed Fact 14).*fn3 Defendant Hodge, who was a Lieutenant in Internal Affairs at the time, investigated the incident reports regarding Officer Ray. (Defendants' Undisputed Fact 15).

Officer Ray was the first person interviewed by Defendant Hodge during the course of his investigation. (Plaintiff's Undisputed Fact 7).

During the course of the interview, Officer Ray told Defendant Hodge that he did ask some Lawrence County taxpayers employed at Lawrence Correctional Center to contact the Lawrence County State's Attorney and tell him that the Burkhardt prosecution should be handled in-house. (Plaintiff's Undisputed Fact 8). Officer Ray advised the staff to do this if they believed they should, and Officer Ray provided them with the State's Attorney's office phone number. (Plaintiff's Undisputed Fact 8).

As part of his investigation of Officer Ray, Defendant Hodge asked four Lawrence Correctional Center employees who were interviewed- Jon McDonald, Plaintiff, Vickie Goins, and Janet Emmons-whether they contacted the State's Attorney after speaking with Officer Ray on July 3, 2008. (Defendants' Undisputed Fact 16). Defendant Hodge interviewed Plaintiff because Plaintiff was reported to have been present in the lunchroom with Officer Ray on July 3, 2008. (Defendants' Undisputed Fact 15).

Plaintiff refused to answer the question of whether he contacted the State's Attorney. (Undisputed Fact 17). McDonald, Goins, and Emmons all answered the question of whether they contacted the State's Attorney, with some reporting that they had contacted the State's Attorney and others reporting that they had not. (Defendants' Undisputed Fact 19). No individual who was asked whether they contacted the State's Attorney was referred for discipline so long as the question was answered. (Defendants' Undisputed Fact 20).

Defendant Hodge claims that he was obligated to interview all witnesses as part of his investigation. (Plaintiff's Undisputed Fact 10). Despite the fact that Hodge was supposed to interview all witnesses, he did not interview Diana ...


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