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Ivan Hernandez, Roberto Rodriguez, Bill Jones, Gene Michno, Marvin v. Cook County Sheriff's Office

March 30, 2012


The opinion of the court was delivered by: Judge Ronald A. Guzman


Ivan Hernandez, Roberto Rodriguez, Bill Jones, Gene Michno, Marvin Bailey and Richard Davis have sued the Cook County Sheriff's Office, Michael F. Sheahan, Timothy Kaufman, Scott Kurtovich, Dennis Andrews, Thomas Snooks and the County of Cook for political retaliation in violation of the First Amendment pursuant to 42 U.S.C. § 1983, as well as for intentional infliction of emotional distress and false imprisonment in violation of state law. Defendants have renewed their motion for summary judgment based on qualified immunity.*fn1

For the reasons set forth below, the Court denies the motion.

LR 56.1

As stated in the Court's previous ruling on September 29, 2009, defendants have failed to comply with Local Rule 56.1 by citing to an entire exhibit in support of a fact statement. For example, defendants cite Exhibits 13 and 14 in their entirety, which are comprised of 1,500 and 220 pages respectively. Although the Court granted defendants leave to file new LR 56.1 submissions after the case was remanded to allow them to cure any defects in their previous submissions, they opted instead to rely on their previously filed LR 56.1(a) Statement. Thus, the Court has stricken paragraphs 7, 8, 25, 34, 40, 42-46, 59, 60 and the second sentences of paragraphs 15 and 35 from defendants' LR 56.1(a)(3) Statement. Defendants also cite Exhibit 16 in its entirety, which consists of Assistant State's Attorney Bonnie Greenstein's affidavit and interview notes. Because Exhibit 16 contains merely eight pages, the Court finds the citation sufficiently specific to meet the requirements of LR 56.1(a)(3) and has not stricken the related statements of fact. Further, where defendants cite an affidavit together with an accurate page number in support of a fact statement (see, e.g., Def.'s LR 56.1(a)(3) Stmt. ¶ 6), the Court holds that such citations are sufficiently specific.

The Court has denied in part and stricken as moot in part defendants' motion to strike plaintiffs' statement of additional facts. First, the Court found plaintiffs' fact statements sufficiently succinct to enable defendants to respond. Second, the Court denied the motion to the extent that it sought to strike the plaintiffs' recitation of the Cook County Sheriff Merit Commission's conclusion that Davis did not desert his post in violation of orders, rules and regulations because plaintiffs do not argue that this Court is bound by the Commission's finding or conclusion and argue that such evidence merely sheds light on whether a reasonable person would have known that Davis was suspended, de-deputized, transferred and terminated based on political retaliation and that he had not violated orders, rules and regulations. (See Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 71.)*fn2 Third, the Court has stricken as moot in part the motion to the extent that it asked the Court to determine whether certain fact statements are based on hearsay because such determinations are made by the Court in the normal course of ruling on a summary judgment motion without prompting by the parties.

As it had with defendants, the Court granted plaintiffs leave to file LR 56.1 submissions in response to defendants' renewed motion on remand. Plaintiffs filed a supplemental statement of facts on the issue of qualified immunity to which defendants failed to respond. Thus, to the extent that plaintiffs' supplemental statement of facts is supported by citations and to the extent that those statement of facts were neither included in plaintiffs' original statement of additional facts nor originally disputed by defendants, those statements are deemed admitted.


Unless otherwise noted, the following facts are undisputed. The Cook County Sheriff's Office provides a jail as well as law enforcement in Cook County, Illinois. (Defs.' LR56.1(a)(3) Stmt. ¶ 2.) Plaintiffs were employed by the Cook County Sheriff as sworn correctional officers, specifically assigned to the Special Operations Response Team ("SORT"). (Id. ¶ 1.) The SORT officers were responsible for escorting high-risk detainees and responding to emergency situations. (Id.) Although defendants failed to include in their fact statement a description of the defendants as parties as required by LR 56.1(a)(3)(A), it may be reasonably inferred from the parties' statement of facts that defendants are all members of the same entity, the Cook County Sheriff's Office.

Between 2:00 p.m. and 10:00 p.m. on February 11, 2006, Captain Wright received a tip from a Chicago Police Officer that Abnormal Behavior Observation ("ABO") Unit inmate Michael McIntosh might possibly have a shank and called someone in the ABO Unit regarding the tip. (Defs.' Ex. 13, Augustyniak Aff. Exs., QH02920-QH02921; see Defs.' LR 56.1(a)(3) Stmt. ¶ 37.) In the late evening on February 11, 2006, six detainees escaped from the ABO Unit in Division 1 at the Cook County Department of Corrections ("CCDOC"). (Id. ¶ 6 (citing Ex. 13, Augustyniak Aff. Exs., QH 2741.) SORT Officer Darin Gater, who is not a plaintiff in this case, was on duty, and after the escape, he was found handcuffed in his underwear and t-shirt with blood coming out of his mouth in cell 14 of the ABO Tier. (Id. ¶ 10.)

Two investigations ensued regarding the escape, including a criminal investigation by the Cook County Sheriff's Police Department ("CCSPD") ("CCSPD investigation") and an investigation into violations of the CCDOC's administrative orders, rules and policies by the Internal Affairs Division ("IAD") of the CCDOC ("IAD investigation"). (Id. ¶ 6.) The Cook County State's Attorneys Office Felony Review Unit was present to review the circumstances that surrounded the escape. (Id. ¶ 9.) CCSPD and IAD interviewed correctional officers and inmates regarding the escape. (Id. ¶¶ 15, 35 (first sentence).)

Prior to the start of any investigation, defendant Director of Internal Affairs Timothy Kaufman appeared in the part of the jail from which the inmates escaped screaming, "this smells of Remus," "this is a Remus set up," "these f***ing jail guards," "you f***ing jail guards, you'll pay for this," "you SORT guys are going to pay for this," "this smells like Remus' sh**." (Id. ¶ 63; Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 3; Defs.' Ex. 7, Bailey Dep. at 84-85 (stating that Andrews was present during Kaufman's statements).) At the time, Richard Remus, who once oversaw SORT and had the support of SORT officers, was running against Tom Dart, whom Sheahan endorsed, for the Democratic nomination for Cook County Sheriff. (Defs.' Ex. 8, Sheahan Dep. at 264, 266-78; Defs.' Ex. 5, Davis Dep. at 147.) At that point, Kaufman immediately met with the investigators, the state's attorneys and Kurtovich in a room. (Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 63.) Afterwards, Kaufman then met with Kurtovich, Andrews and Sheahan for five to six hours in an office after the escape. (Id. ¶ 69.)

It is undisputed that after the escape, SORT Correctional Officer Darin Gater, who was on duty during the escape, was detained and interviewed intermittently by Cook County Sheriff's investigators, who are not defendants in this case, from approximately the time of the escape until he was charged and appeared in bond court on Wednesday, February 15, 2006. (Pl.'s Supplemental LR 56.1(b)(3)(C) Stmt. ¶¶ 1-2.) It is disputed whether Gater stated to the investigators and Assistant State's Attorney ("ASA") Bonnie Greenspan that he refused to sign any statement implicating Rodriguez, Jones, Michno, Davis and Bailey in the escape and referring to the escape as politically motivated to embarrass the Cook County Sheriff's Office so that Remus would be elected because it was a lie. (Id. ¶ 10.) The parties also dispute whether Gater signed the statement at some time after 7:00 p.m. on Monday, February 13, 2006 because he was threatened by the investigators and Greenspan that if he did not sign it, the charges would be changed so that Gater would face a fifteen-year jail term. (Id. ¶ 14.)

Prior to Gater's signing the statement, the investigators questioned Rodriguez, Jones and Davis about the escape and asked them what their political affiliation was and which candidate they were supporting for Sheriff, and when they questioned Michno about the escape, an investigator told him that "SORT was done." (Id. ¶ 23; Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶ 5-6.) The investigators stated that "we know you guys had something to do with this because of Remus." (Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 5.) On February 13, 2006, all plaintiffs were dedeputized and suspended with pay pending criminal investigation, which was authorized by Kurtovich and Kaufman. (Id. ¶ 7.)

As of February 21, 2006, after Hernandez was suspended, Captain Wright was still unsure whether it was Hernandez or Rodriguez to whom he had spoken on February 11, 2006 regarding a Chicago Police Officer who had forwarded information that ABO Unit inmate Michael McIntosh might possibly have a shank. (Defs.' Ex. 13, Augustyniak Aff. Exs., QH02920-QH02921; see Defs.' LR 56.1(a)(3) Stmt. ¶ 37.) It is disputed whether: (1) Hernandez asked Captain Wright for direction as to how to proceed with regard to the information; and (2) Wright told Hernandez that he would seek guidance from the Chief and advise Hernandez what to do with the information but never did. (Pls.' LR 56.1(b)(3)(B) Stmt. ¶ 38; Defs.' Resp. Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 12.) It is also disputed whether Hernandez, on his own, had the authority to order a shakedown or search or whether such an order would have had to come from Director Andrews, his designee, Kurtovich, or Wright himself as the most senior officer on duty at the time. (Pl.'s LR 56.1(b)(3)(C) Stmt. ¶ 13; Defs.' Ex. 2, Hernandez Dep. at 133, 137.) Although defendants state that Hernandez did not relay the information about the possible shank to any officer working on the night of February 11, 2006, defendants' fact statement is not supported by any citation to the record. (See Defs.' LR 56.1(a)(3) Stmt. ¶ 38.)

It is undisputed that Captain Wright, who did not relay the information up through the chain of command and was not a SORT officer, was never suspended. (Pl.'s LR 56.1(b)(3)(C) Stmt. ΒΆ 65.) ...

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