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Hernandez v. Cook County Sheriff's Office

United States District Court, N.D. Illinois, Eastern Division

July 31, 2014

COOK COUNTY SHERIFF'S OFFICE, MICHAEL F. SHEAHAN, in his official capacity, CAROL KAUFMAN, as representative of the estate of TIMOTHY KAUFMANN, in his individual capacity, SCOTT KURTOVICH, in his individual capacity, DENNIS ANDREWS, in his individual capacity, THOMAS SNOOKS, in his individual capacity, the COUNTY OF COOK, Defendants.


THOMAS M. DURKIN, District Judge.

Six correctional officers with the Cook County Sheriff's Office, Department of Corrections ("DOC"), (namely, Ivan Hernandez, Roberto Rodriguez, Bill Jones, Gene Michno, Marvin Bailey, and Richard Davis (collectively "Plaintiffs")), allege that the Cook County Sheriff's Office, former Cook County Sheriff Michael Sheahan, and certain officials in his office (namely, Timothy Kaufmann, Scott Kurtovich, Dennis Andrews, and Thomas Snooks) (collectively, "Defendants"), violated the First Amendment and state law by conspiring to discriminate and retaliate against Plaintiffs for their support of a certain candidate in the election for sheriff by investigating and disciplining Plaintiffs in connection with an escape from the Cook County Jail. R. 55. The Seventh Circuit previously found that the individual defendants are qualifiedly immune to Plaintiffs' First Amendment political retaliation and conspiracy claims (Counts I and IV). See Hernandez v. Sheahan, 711 F.3d 816 (7th Cir. 2013).[1] Defendants have moved for summary judgment on the remaining First Amendment political retaliation claim against the Sheriff's Office (Count III) and the claim for intentional infliction of emotional distress against the individual defendants (Count V). R. 396.[2] For the following reasons, Defendants' motion for summary judgment is denied.


Plaintiffs were assigned to the Special Operations Response Team ("SORT"), which was responsible for guarding the most dangerous inmates in the Abnormal Behavioral Observation Unit (the "ABO") at the Cook County Jail. R. 434 ¶ 9. SORT's Superintendent was Richard Remus, and SORT was known in the Sheriff's Office as "Remus's Unit." Id. ¶ 11. All of the Plaintiffs actively supported Remus in his campaign leading up to the March 21, 2006 Democrat primary election for Cook County Sheriff against Tom Dart-the chief of staff to Sheriff Sheahan-who Sheahan supported as a candidate in the sheriff election. See R. 434 ¶ 11; R. 148-2 at 67-70 (266:3-268:10).

On February 11, 2006, just before midnight, several detainees escaped from the ABO at the Cook County Jail. See R. 177 ¶¶ 5-6. Shortly after the escape, early on February 12, Michno, Davis, and Bailey heard Kaufmann-the Director of Internal Affairs for the DOC-scream the following statements: "this smells like Remus"; "this is a Remus set up"; "these fucking jail guards"; "you fucking jail guards, you'll pay for this"; "this smelled like Remus's shit." R. 147-4 at 26 (90:24-91:3, 93:6-7); R. 147-5 at 24 (85:21-86:2), 27 (98:12), 34 (127:13-16); R. 148 at 20 (61:1-9), 25 (78:18-20). Miriam Rentas-who was the Assistant Director of Internal Affairs for the DOC-has filed an affidavit in which she states that she was also present when Kaufmann is alleged to have made these statements, but she does not recall him saying, "this smells of Remus." R. 199-2 ¶¶ 1-2, 6-7.

Later that day, a correctional officer, Darin Gater, confessed to being complicit in the escape. See R. 150-2; R. 154-2. Gater also implicated Plaintiffs (except for Hernandez) and stated they were motivated to "help [Richard] Remus" in his campaign to be elected sheriff by discrediting Sheriff Sheahan and Dart. R. 150-2 at QH03222; R. 154-2 at 134. Plaintiffs note that Gater claims that his statement was coerced. R. 433 at 8 n.5. This argument was raised in Gater's state court trial and the state court found that the statement was not coerced. R. 312-4 at 5-6. The Seventh Circuit found that Defendants had probable cause to investigate Plaintiffs on the basis of Gater's statement. Hernandez, 711 F.3d at 817-18. In addition to Gater's statement, the investigation into the jail break revealed that Hernandez was notified on the day of the jail break by Captain Earnest Wright that there might be a shank in the ABO, and Hernandez failed to communicate this information to any officer on duty in the ABO the night of the escape. See R. 400-7 at 33 (124:8-9); R. 401-5 at 26-27 (QH02764-65).

On February 13, 2006, Plaintiffs were suspended pending the investigation into the jail break. R. 149 at 73-78. Plaintiffs' suspensions were signed by Kurtovich-the Assistant Executive Director of the DOC. Id. Plaintiffs were also de-deputized pending the investigation. Id. at 85-90. Kaufmann and Kurtovich signed the order de-deputizing Plaintiffs. Id. Andrews-the Director of External Operations of the DOC-also "signed off" on the complaints against the Plaintiffs. R. 434 ¶ 44.

On February 23, 2006, Plaintiffs were "reinstated from Suspension with Pay'... to Active' duty with De-Deputized status.... [and were] transferred [out of SORT]." R. 177 ¶ 54; R. 154-6 at 3-7; R. 199 ¶ 8. When Andrews informed Michno and Bailey of their reassignments he told them that the investigations were "political." R. 177 ¶ 64; R. 147-4 at 31 (112:20-24). Specifically, Bailey testified that Andrews "gave [them] a handshake and a pat on the back and said, guys, this is - don't worry about it. It's political, some political bullshit, and it should pass over pretty soon." R. 148 at 28 (93:2-5).

Four days later on February 27, 2006, Investigator Stanley Augustyniak submitted an investigation report finding that Davis and Bailey had deserted their posts the night of the escape. R. 401-5 at 21-24 (QH02759-62). Kaufmann signed the memoranda recommending their termination. R. 149 at 25-26 (QH02735-36). On October 6, 2008, the Cook County Sheriff's Merit Board overturned the investigation's findings with regard to Davis. R. 178-3 at 44-47. Bailey's termination was upheld after several rounds of appeal. See Bailey v. Dart, 2012 WL 6951971 (Ill.App.Ct. 1st Dist. Jan. 17, 2012). Augustyniak also found that Hernandez failed to conduct a search of the jail after he received word that an inmate might be in possession of a shank. R. 401-5 at 25 (QH02763). Kaufmann signed the memorandum suspending Hernandez for five days. R. 149 at 27 (QH02737). The investigation found insufficient evidence to sustain the charges against Jones, Rodriguez, and Michno, and the administrative charges against them were dismissed. R. 434 ¶ 27.

Augustyniak filed an affidavit stating that his "investigation and the subsequent report prepared as a result of the investigation [were] not influenced in any way by the actions, directives or other input of [the individual defendants]." R. 400-2 at 3 (¶ 7). Assistant State's Attorney Bonnie Greenstein also participated in the investigation and submitted an affidavit describing her work. Like Augustyniak, she stated that her "review was not influenced in any way by the actions, directives or other input of [the individual defendants]." R. 400-4 at 2 (¶ 5). Sergeant Robert Fitzgerald of the Cook County Sheriff's Police Department Jail Enforcement Unit also participated in the investigation and preparation of the report. Fitzgerald submitted an affidavit stating that he followed procedure in conducting the investigation and producing the report, but he did not mention the individual defendants. See R. 400-3 at 2-4.

Plaintiffs allege that they have suffered severe emotional distress as a result of the investigations into, and discipline of, their conduct. Specifically, the six plaintiffs submit the following evidence regarding emotional distress:

▪ Michno filed an affidavit stating that he has suffered "severe emotional distress" as a result of the investigation and discipline Defendants imposed on him after the jail escape. See R. 435-2 at 481 (¶ 13). Due to this emotional distress, Michno applied for "duty disability" with the Cook County Pension Board. The Pension Board Hearing Officer found that "Michno is entitled to duty related disability benefits for a psychological injury occurring on or about February 13, 2006." R. 311-1 at 103. Dr. Martins A. Adeoye, a psychiatrist, diagnosed Michno as suffering from depression, anxiety, and post-traumatic stress disorder. R. 435 Ex. S-1 at KLO01896 (filed under seal).[3] Dr. Adeoye prescribed medications for these conditions and concluded that Michno was "unable to return to work" and that his "disability may continue to last about 6 months to 2 years." Id. at KLO01905. Michno has also submitted a letter from a licensed clinical social worker describing Michno's depression. Id. at KLO01899.
▪ Hernandez filed an affidavit describing his "severe emotional distress and depression" that he suffers "as a result of the discrimination and retaliation" by Defendants. R. 435-2 at 484 (¶ 3). Hernandez is on disability leave from the Sheriff's Office and has filed an application for duty-related disability with the Cook County Pension Board, which is still pending. R. 440 ¶ 62. Dr. Richard S. Abrams has diagnosed Hernandez with a "severe depressive reaction to [his] job circumstance." R. 435 Ex. S-2 at RB00114 (filed under seal). Dr. Abrams prescribed medications to address these conditions. Id. at RB00113. Hernandez filed an affidavit stating that his "depression affects all aspects of [his] life, " that he is "terrified to go anywhere, " and that he suffers from nightmares. R. 435-2 at 484 (¶ 3).
▪ Davis testified that he has suffered "[e]motional damage, humiliation, disgrace of [his] family, [his] wife, [and] [i]t's caused a great strain with [his] wife." R. 398-3 at 61 (240:13-15). Davis cites no other ...

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