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Volkman v. Ryker

United States Court of Appeals, Seventh Circuit

December 2, 2013

Dwayne VOLKMAN, Plaintiff-Appellant,
Lee RYKER, Marc Hodge, and Barbara Hess, Defendants-Appellees.

Argued Sept. 19, 2013.

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[Copyrighted Material Omitted]

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John A. Baker, Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiff-Appellant.

Mary Ellen Welsh, Attorney, Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Before MANION, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Dwayne Volkman was employed as a casework supervisor at the Lawrence Correctional Center in Illinois when he called the local State's Attorney to comment on the criminal prosecution of a co-worker for violations of Illinois Law and Department of Corrections policy. After an internal investigation, Volkman received a written reprimand and was suspended for five days. He sued various officials connected to the disciplinary process under 42 U.S.C. ยง 1983, alleging retaliation in violation of the First Amendment to the United States Constitution. The district court bifurcated trial proceedings so that potentially dispositive issues of law could be tried to the bench before calling in a jury. After bench proceedings concluded, the district court issued an opinion finding that the defendants were entitled to qualified immunity and that, even if they were not, Volkman had failed to prove his case as a matter of law. Volkman appeals the adverse

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judgment of the district court, and we affirm.


In June 2008, the Illinois Department of Corrections (" IDOC" ) investigated Jody Burkhardt, a correctional officer at the Lawrence Correctional Center (the " LCC" ). The investigation revealed that Burkhardt brought his cell phone into the LCC on or about May 8, 2008, and that he used it to make about thirty calls from inside the facility. His conduct violated internal IDOC policies, as well as the laws of the State of Illinois. IDOC referred the results of the investigation to the Lawrence County State's Attorney, Patrick Hahn, who filed felony charges against Burkhardt on June 30, 2008.

At lunch a few days after the charges were filed, another correctional officer, Chad Ray, told a number of employees that Burkhardt was being prosecuted on felony charges for accidentally bringing his cell phone into the facility. Ray suggested that the others should feel free to voice their opinions to the State's Attorney as to how to pursue the matter.

One of the employees involved in that conversation was the appellant, Dwayne Volkman, a casework supervisor at the LCC. After work, Volkman called the State's Attorney from his personal cell phone. The State's Attorney was unavailable, so Volkman left a message with his secretary. Volkman told the secretary that, as a citizen of the county, he did not believe that any term of incarceration should be pursued in Burkhardt's case, and that the State's Attorney should consider allowing the matter to be handled internally through the IDOC disciplinary process. He stressed that he was only calling to express his opinion as a citizen, and not as an employee of the LCC.

State's Attorney Hahn called Volkman back later that night to ask what was going on at the LCC. During the ensuing conversation, Volkman told Hahn that he did not personally know all of the facts pertaining to Burkhardt's case, but that he did have an opinion. If Burkhardt had allowed an inmate to use the cell phone, Volkman felt prosecution to the fullest extent of the law would be warranted. If, on the other hand, Burkhardt had merely carried the cell phone into the facility, and it was not used improperly, Volkman felt the matter should be sent back and handled by IDOC internally.

News of Volkman's conversation with the State's Attorney reached Marc Hodge, the internal affairs investigator at the LCC, and Hodge commenced an investigation. First, he interviewed Chad Ray, who admitted that he asked his co-workers to contact the State's Attorney and to voice their displeasure with the Burkhardt prosecution. Next, he spoke to Volkman. When Hodge asked Volkman if he spoke with the State's Attorney, Volkman asked if he was personally under investigation. Hodge suggested that the answer to Volkman's question depended on the answer to Hodge's question; Volkman declined ...

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