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Milliman v. County of McHenry

United States District Court, N.D. Illinois

August 4, 2017

Scott A. Milliman, Sr., Plaintiff,
County of McHenry, et al., Defendants.



         Defendants' motion for summary judgment [218] is granted. Sheriff Prim's Rule 12(c) motion to dismiss [217] is granted in part and stricken in part. This case is closed.


         Plaintiff, Scott A. Milliman, Sr., is a former McHenry County Sheriff's Deputy. In 2010, while still working as a deputy, Milliman gave a deposition in a civil case in which he accused the Sheriff, Keith Nygren, of a wide variety of illegal activities including asking plaintiff to push a judge in front of a train. As a result, plaintiff was directed to undergo a fitness-for-duty examination, which he failed. Plaintiff was subsequently terminated for making false accusations concerning Nygren's criminal activity; violating multiple General Orders of the McHenry County Sheriff's Department (“MCSD”), and because he was found unfit for duty. Milliman then sued Nygren and McHenry County, along with a number of Nygren's subordinates, alleging that they violated his First Amendment right to free speech. The case is now before the court on defendants' motion for summary judgment as well as the current Sheriff, William Prim's, motion to dismiss or for summary judgment. For the reasons that follow, the motion for summary judgment is granted and the motion to dismiss or for summary judgment is stricken in part and granted in part.

         I. BACKGROUND

         The facts pertinent to this court's analysis are taken from the pleadings, the defendants' statement of undisputed facts, plaintiff's response thereto and additional statement of facts, and the evidence submitted in support. The facts are undisputed unless otherwise indicated.

         Milliman was hired as a McHenry County sheriff's deputy on March 2, 1998. That same year, Nygren was first elected McHenry County Sheriff. Nygren sought Milliman's assistance with his campaign, and Nygren and Milliman were generally friends. In December 2001, Milliman was diagnosed with brain cancer and underwent brain surgery on July 21, 2002. Following an extended medical leave for recovery, Dr. Christopher Grote, Ph.D., ABPP CN, evaluated Milliman and determined that he was fit for duty, finding him “average to low average” in “overall intellectual ability, ” but not otherwise showing signs of inability or psychopathology. Milliman returned to his employment at the MCSD on November 17, 2003.

         A. Milliman's Deposition in the Seipler Case

         Seven years later, on November 23, 2010, Milliman testified at a deposition in a case pending before this court brought by former McHenry County Sheriff's Deputy Zane Seipler. See Seipler v. Cundiff, , No. 08 C 50257 (N.D. Ill. 2008). Based mostly upon statements to him by Jose Rivera, a friend of Nygren, Milliman testified to widespread corruption and criminality on the part of Nygren, including ticket fixing and bribery, fraudulently procuring Small Business Administration (“SBA”) loans, trafficking of illegal aliens, and soliciting the murder of a former judge and an internet blogger.

         Specifically, Milliman testified that Jose Rivera told him that Nygren was involved in a bribery scheme beginning in 1999 or 2000 wherein Nygren fixed no valid driver's license tickets for Mexicans. According to Milliman, Rivera told him that an individual ticketed for driving without a valid license would pay a $1, 000 bribe, which was split between Rivera and Nygren. Nygren would then contact McHenry County State's Attorney Gary Pack and have the prosecution “nolle prossed.” Milliman also testified that Rivera told him that Nygren received $10, 000 for assisting a business owner regain his liquor license. Milliman testified further that thereafter Rivera and the business owner also bought more than $5, 000 worth of raffle tickets at ¶ 2002 political function for Nygren.

         Milliman also claimed that Nygren ran a scheme that involved securing fraudulent SBA loans. Milliman explained that Rivera and Nygren would recruit an undocumented Mexican to fill out an application for an SBA loan, and the proceeds of the loan, less $10, 000 for the Mexican, would be split by Rivera and Nygren. The Mexican would then default on the loan and return to Mexico. Rivera told Milliman that he and Nygren sent the Mexicans to someone named “Maria” at Elgin State Bank for the SBA loans, and then later to Home State Bank. Milliman claimed that Rivera and Nygren, attempted to recruit him into the scheme sometime in 2001 or 2002 during a meeting at El Grande Buritto in McHenry, Illinois.

         As to trafficking undocumented aliens, Milliman testified that Rivera and Nyrgen attempted to recruit him to participate in a scheme to bring undocumented immigrants into McHenry County from Mexico for a price. According to Milliman, Rivera and Nygren were bringing individuals from Zacatecas, Mexico to Stone Lake Apartment Complex in Woodstock, Illinois and receiving $1, 100 a person.

         As to solicitation of murder, Milliman testified that he knew of two incidents where Nygren had threatened someone's life. First, in 1999, Nygren asked Milliman to push retired McHenry County Circuit Court Judge Conrad Floeter, who was serving as the campaign manager for Nygren's opponent for Sheriff at the time, in front of a train while Floeter was handing out campaign literature on a train platform. Milliman explained that he and Nygren were also on the platform near a parked train passing out Nygren's campaign literature and as they approached Floeter-who Milliman said was wearing a three-foot tall hat “like the one on Sesame Street”-Nygren leaned over to him and said “push him in front of the train.” According to Milliman, he looked at Nygren, said “whatever, ” and then turned and walked away. Second, Milliman testified that, in 2009, because of comments by a local internet blogger named David Bachmann made about Nygren, he asked Milliman to “hang” Bachmann and to “make sure, damn it, that it looks like a suicide.” According to Milliman, on the next day, Nygren, who seemed like he “was really not himself, ” told Milliman he would “take care of it himself.”

         When asked whether he had reported any of Nygren's criminal conduct to law enforcement authorities, Milliman said that he had reported his concerns to the Federal Bureau of Investigation (“FBI”) in 2007. Later in his deposition, Milliman explained that there came a point where he could no longer tolerate Nygren's unethical and illegal conduct so he called Patrick Fitzgerald, the United States Attorney for the Northern District of Illinois, and reported Rivera's involvement with Sheriff Nygren. According to Milliman, Fitzgerald said that he was already aware of some situations concerning McHenry County. Fitzgerald asked Milliman if he was willing to sit down and talk with some officials, Milliman agreed to do so, and then Milliman met with two FBI agents.

         B. Events Following Milliman's 2010 Deposition

         After Milliman gave his 2010 deposition, Nygren and his subordinate, defendant Undersheriff Andrew Zinke, received copies of the transcript of the deposition. Nygren assigned Zinke to investigate the matter, who in turn assigned the investigation to Commander John Miller, also a defendant in this case. After reading the deposition, Miller concluded that Milliman might have been suffering from what he described as psychological difficulties. Consequently, Miller drafted a memorandum recommending that Milliman be sent for a fitness-for-duty examination. Miller noted that, although Milliman's behavior could be considered a breach of several rules of the MCSD, he recommended that the matter be handled as a possible medical issue rather than a disciplinary one. He also recommended that an independent agency look into the allegations of criminal behavior and that Milliman be placed on administrative leave. Finally, Miller noted that he would do his best to determine what steps the FBI took after it was informed of Milliman's allegations. Neither Zinke nor Miller interviewed Milliman or Nygren. Despite Miller's recommendation that the matter not be handled as a disciplinary one, the investigation file was titled “Termination Review.” Zinke contacted the FBI by a letter dated December 3, 2010, to request clarification about its investigation. Zinke and Miller also discussed the matter with a labor attorney, John Kelly. On December 23, 2010, Zinke placed Milliman on administrative leave and ordered him to attend a fitness-for-duty psychological examination by Dr. Robert Meyers. Milliman objected to Dr. Meyers, as he had been a contributor to Nygren's election campaign and, according to Milliman, had been “used by the McHenry County Sheriff to have other members of [the] department dismissed on specious grounds.” Instead, Milliman requested a neutral examiner, and specifically requested Dr. Grote, who had performed his 2003 evaluation. The MCSD acquiesced and ordered Milliman to attend a fitness-for-duty examination by Dr. Grote.

         In a January 4, 2011 letter, the FBI responded to Zinke's request as follows:

We have had the opportunity to carefully review your December 3, 2010, letter requesting reports, if any, of information provided to the FBI by Deputy Sheriff Scott Milliman. I am also aware of the allegations attributed to Deputy Milliman, as well as statements he has made to you and others about contacts he has had with our office. I can confirm that Deputy Milliman has approached our office in the past and provided information in confidence that he felt may be of interest to the FBI. Where appropriate, investigation was conducted to determine the validity of the allegations. I can tell you that none of the information provided by Deputy Milliman was determined to have prosecutive merit. The Federal Privacy Act prohibits me from relaying the substance of the information provided by Deputy Milliman.
Though the information we can provide at this time is limited, I hope it can be of some use to you.

         In documents provided by the FBI during the course of this litigation, the scope of Milliman's reporting to the FBI became much clearer. More specifically, in response to a subpoena in this case, the FBI produced 187 pages of heavily redacted documents reflecting an investigation of the MCSD by the FBI from 2006 to 2009. Milliman brought all of the complaints mentioned in his 2010 testimony and many more to the FBI's attention, all of which the FBI concluded lacked prosecutive merit.

         C. Dr. Grote's Fitness-for-Duty Evaluation & Milliman's Termination

         On February 12, 2011, Milliman reported to Dr. Grote's office for his fitness-for-duty evaluation. He was given a battery of tests and scored largely in the same ranges as he did in 2003, with a few ranging higher than he scored in 2003. One exception, however, was a test called the Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”), in which the results were consistent with “significant feelings and symptoms of paranoia, feelings of being persecuted, disorganized or dysfunctional cognition and emotions, and difficulty working with figures of authority.” Dr. Grote explained that “[i]n 2003, he had shown a significant elevation on only one of the critical scales (scale 4); thus his current MMPI-2 profile shows more evidence of psychiatric problems and symptoms than in 2003.” In the narrative portion of his report, Dr. Grote wrote that Milliman was:

extremely disorganized and “derailed”, [sic] in [the] interview. He was over-inclusive, tangential and very difficult to follow at certain points in the interview, particularly when he was describing his allegations about corruption in McHenry County. It typically would take over 5 minutes for him to describe a specific allegation, which I would later summarize for him in 30 seconds or less to see if this is what he was alleging.

During his deposition, Dr. Grote agreed that Milliman's feelings of paranoia and persecution resulting from the prospect of potentially losing his job could have contributed to his MMPI-2 score because the test can measure “state versus trait” characteristics. Dr. Grote explained that this means that the test can measure how an individual feels on a particular day rather than measuring a more permanent characteristic. However, Dr. Grote made clear that he did not ...

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