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Dwayne Volkman v. Michael Randle

March 22, 2012


The opinion of the court was delivered by: Sue E. Myerscough United States District Judge


Friday, 23 March, 2012 06:16:09 PM

Clerk, U.S. District Court, ILCD


On March 16, 2012, this Court held an evidentiary hearing to address whether Plaintiff Dwayne Volkman's speech was constitutionally protected. Plaintiff testified on his own behalf. Defendant Marc Hodge, currently the Acting Warden of the Lawrence Correctional Center, testified on behalf of himself and the other two remaining Defendants in this case, Lee Ryker, who at the relevant time was the Warden of the facility, and Barbara Hess, who at the relevant time was an Administrative Assistant 2 for the Illinois Department of Corrections (DOC). Having heard the testimony of the witnesses and the arguments of counsel for the parties, this Court finds that Plaintiff's speech was not constitutionally protected and, even if it were, Defendants would be entitled to qualified immunity.


Plaintiff Dwayne Volkman is employed by DOC as a Casework Supervisor at the Lawrence Correctional Center, although at the hearing he testified he is currently on disability leave. In 2008, the Lawrence Correctional Center was a Level II high security facility.

In 2008, 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 about the criminal prosecution of a co-worker, brought suit.

At the evidentiary hearing held before this Court on March 16, 2012, Plaintiff testified that in July 2008, he had a conversation with his co-worker, Chad Ray. The conversation concerned another co-worker, Jody Burkhardt, and took place in the employee dining area of the Lawrence Correctional Center during lunch. Ray told Plaintiff and the other individuals sitting at the table with Plaintiff that the State's Attorney's office had filed charges against Burkhardt for bringing a cell phone into the facility. Ray informed Plaintiff and the others that Ray thought Burkhardt had been charged with a felony offense and that if any of them, as citizens of the County, felt like they should contact the State's Attorney to give him their opinion on how the matter should be pursued, they should feel free to do that.

Later that day, after work, Plaintiff called the State's Attorney's office using his personal cell phone. The State's Attorney was unavailable so Plaintiff left a message with the secretary. Plaintiff told the secretary that he was made aware that charges had been filed against Burkhardt and that, as a citizen of the County, he believed that any type of "incarceration" should not be pursued and that the State's Attorney might want to consider letting the matter be handled through the disciplinary process of DOC. Plaintiff told the secretary the State's Attorney did not need to call him back and that he was just calling as a citizen with his own opinion.

The State's Attorney called Plaintiff later that evening at home. The State's Attorney asked Plaintiff what was going on at the facility. Plaintiff told the State's Attorney that he did not know the specific allegations against Burkhardt, just that it involved a cell phone, but that in his opinion, if Burkhardt had allowed an inmate to use the cell phone, that the State's Attorney should pursue the prosecution to the fullest extent. However, if Burkhardt had just brought in the cell phone, no inmate used it, and Burkhardt did not do anything wrong with it inside the facility, the matter should be handled through the disciplinary process of DOC.

Although not testified to at the hearing, the evidence in the record shows that in November 2008, Plaintiff received a written reprimand. The parties dispute the reason for the written reprimand, but for purposes of the evidentiary hearing, the Court assumes Plaintiff was reprimanded for his speech to the State's Attorney.

Hodge, who was an Internal Affairs investigator when the events in question occurred, also testified at the hearing. Hodge identified the institutional directives, administrative directives, rules of conduct, and employee handbook that govern employee conduct in the facility. Those directives and rules require that the facility employees (1) comply with and enforce all institutional and departmental rules, regulations, and directives; (2) obey all federal, state, and local laws; (3) conduct themselves on-duty and off-duty in a manner that does not reflect unfavorably on the employee or DOC; and (4) respect the importance of all elements of the criminal justice system. See Exhibit 3 (Institutional Directive), Exhibit 4 (Administrative Directive), and Exhibit 5 (Rules of Conduct, Illinois Administrative Code). Hodge also testified that all employees at the facility, as part of their jobs, are responsible for enforcing the rules and ensuring the security of the prison. In addition, a supervisor's loyalty is important in the paramilitary structure of the facility.

According to Hodge, Plaintiff's act of contacting the State's Attorney violated these policies because doing so offset the overall mission of DOC and affected the security of the prison, particularly because Plaintiff held a supervisory position. In this case, the underlying prosecution of Burkhardt involved Burkhardt bringing a cell phone into the prison, an act prohibited by the institutional directives because such act poses a high security risk in the correctional setting. Hodge explained that even if a cell phone is brought into the facility accidentally, it poses a serious security risk to the facility because the cell phone could be stolen by an inmate. If ...

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