Hernandez et al v. Cook County Sheriff's Office et al

Filing 520

MEMORANDUM Opinion and Order: For the foregoing reasons, Defendants' motion for summary judgment 485 is denied. Signed by the Honorable Thomas M. Durkin on 9/16/2015:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IVAN HERNANDEZ, ROBERTO RODRIGUEZ,
BILL JONES, GENE MICHNO, MARVIN
BAILEY, AND RICHARD DAVIS,
Plaintiffs,

No. 07 C 855

v.

Judge Thomas M. Durkin

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 ANDRES, in his
individual capacity, THOMAS SNOOKS, IN
HIS INDIVIDUAL CAPACITY, THE COUNTY OF
COOK,
Defendants.

MEMORANDUM OPINION AND ORDER
Six correctional officers with the Cook County Sheriff’s Office, Department of
Corrections, allege that certain officials in the Cook County Sheriff’s Office violated
their rights under the First Amendment and state law. R. 55. As the Court
discussed in greater detail in an opinion and order denying Defendants’ motion for
summary judgment on the substance of Plaintiffs’ claims, see R. 445 (Hernandez v.
Cook Cnty. Sheriff’s Office, 2014 WL 3805734 (N.D. Ill. July 31, 2014)), Plaintiffs
allege that Defendants conspired to discriminate and retaliate against them for

their support of a certain candidate in the election for sheriff by investigating and
disciplining them in connection with an escape from the Cook County Jail. See R.
55. Defendants have moved for summary judgment as to plaintiff Marvin Bailey
pursuant to Federal Rule of Civil Procedure 56, arguing that Bailey is precluded
from bringing his claims in this action under both res judicata and collateral
estoppel. R. 485. For the following reasons, Defendants’ motion is denied.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
Background
Bailey and his co-plaintiffs filed this case on February 13, 2007. See R. 1; R.
497 ¶ 1. A little more than six months later, on August 1, 2007, the Sheriff’s Office

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filed a complaint against Bailey with the Cook County Sheriff’s Merit Board
regarding his conduct during the escape. R. 497 ¶ 9.
On February 5, 2009, the Merit Board held that Bailey violated Sheriff’s
Office regulations when he “deserted his assigned post” to “go to his car and drive to
a Walgreen’s . . . . to get an energy drink,” and that these actions were “a
contributing cause that [led] to the escape of six inmates.” R. 498-2 at 27, 29. The
Merit Board ordered that Bailey be “separated from his employment.” Id. at 30.
Bailey then appealed the Merit Board’s decision to the Circuit Court of Cook
County on March, 9, 2009. R. 497 ¶ 10. The Circuit Court affirmed the Merit
Board’s decision on September 23, 2010. R. 486-2. Bailey appealed the Circuit
Court’s decision to the Appellate Court, which affirmed on January 17, 2012. R. 497
¶ 11; R. 486-3.
Defendants filed this motion on March 25, 2015. R. 485. Defendants argue
that Bailey is precluded by the Appellate Court’s decision from bringing this action
under the doctrines of res judicata and collateral estoppel.
Bailey contends that should not be precluded from bring this action because
the Merit Board prevented him from presenting evidence that the Defendants had a
retaliatory motive for investigating his conduct and terminating his employment. In
support of this argument Bailey cites the proceedings from his Merit Board hearing.
The Merit Board held a three-day hearing concluding on September 11, 2008. R.
498-2 at 28. In addition to the witnesses who gave live testimony at the hearing,
“the transcript from the Richard Davis trial was stipulated and admitted into

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evidence and . . . all witness testimony exhibits [from that trial] were used for the
same purposes in the Marvin Bailey trial.” Id. Richard Davis is one of Bailey’s coplaintiffs who also faced a Merit Board inquiry in connection with the jail break.
The Richard Davis transcript includes the following exchange:
MS. KURTZ [Plaintiffs’ counsel]: With respect to
comparative evidence, certainly—and we have one
witness we intend to call that will confirm as a white
officer—and if they’re allowed to call Dennis Andrews,
that Dennis Andrews allowed this officer to violate the
general orders much more egregiously than Officer Davis,
and, in fact, called Chief Kaufmann and told Chief
Kaufmann not to do anything about it and not to
investigate him, to sweep it under the rug. The fact that
there is disparity between a white officer by Dennis
Andrews and this officer who is African-American is
absolutely relevant and that testimony should be allowed.
THE COMMISSIONER: Well, I’m going to bar that
particular testimony. It doesn’t have any effect on him as
of yet. That can be taken up in another hearing, another
trial against the Sheriff on the federal matter for
whatever you’d like to charge, but that does not relate to
the charges of whether he left or not.
MS. KURTZ: It—it—and respectfully it does relate
in terms of the Merit Board’s decision to—as to what level
of discipline in comparison to how other officers are
disciplined. I mean, it might—the Merit Board is deciding
whether or not Officer Davis is going to be terminated or
what level of discipline, if any, he will be subjected to.
So—
THE COMMISSIONER: But that—but I don’t need
a witness falling at my judgment [sic] on this particular
case, all right. I am as concerned about disproportionately
[sic] as anyone, but his trial and this—these charges are
the only things I’m looking at, all right.
And we at the Merit Board will take a look at all
the other charges and attempt to be as evenhanded as
possible. That is what we do. That is why there are nine

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of us, and the nine of us are the ones who look at all the
recommendations from any trial and then we sort it
through and we make sure that we look at “Remember
this, remember that.”
So in this particular case the only thing I’m going
to listen to is the specific evidence concerning Mr. Davis
and not concerning other Sheriff matters that can be
handled in another court of law.
MS. KOCHANKOVSKA [Sheriff’s counsel]: Our
final point, we would be seeking to bar the respondent
from introducing testimony or other evidence pertaining
to the charges against other Cook County Sheriff’s Office
employees stemming from this escape and the subsequent
investigation of the charges against those individuals, the
investigation of their conduct, and the outcome of that
investigation. We feel that that’s also irrelevant to the
allegations against respondent in this case.
MS. KURTZ: As to this escape, there were
officers—the escape happened on February 12, 2006.
Officer Davis at the time of the escape was in the
command post—the SORT command post, and there’s—I
assume there will be some testimony in terms of the
structure of how that works.
In order to get out of ABO, officers posted at Post 3
and Post 78 would have to actually open the door, unlock
the door. That did that. They—actually the inmates would
not have escaped had they not opened that door.
The fact that those officers were not disciplined,
they were not investigated criminally, they were not
investigated administratively, they were not disciplined
at all, I believe is relevant to the charges that they’re
claiming that Officer Davis was negligent, when they
never charged—the Sheriff never charged those officers in
Post 3 or Post 78 or the lieutenant who ran back in his
office when these inmates had—once the door was opened
by the officer at Post 3, that that allowed the escape to
occur.
THE COMMISSIONER: I will permit the evidence
into trial as to how the inmates escaped, but not whether
or not the other officers down the line were charge,
investigated or whatever, all right. But I will allow the

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evidence that says based on Mr. Davis’s negligence how
these inmates escaped and how it relates back to him, I
will—I will allow that evidence.
R. 498-2 at 43-44 (24:1–27:16).
Analysis
I.

Waiver
Bailey argues that Defendants’ motion should be denied because they waived

res judicata and collateral estoppel as affirmative defenses by not raising them in
their responsive pleadings as is required by Federal Rule of Civil Procedure 8(c)
(“[i]n responding to a pleading, a party must affirmatively state any . . . affirmative
defense,” including “res judicata” and “estoppel”). See also Marcus v. Sullivan, 926
F.2d 604, 615 (7th Cir. 1991) (“[r]es judicata is an affirmative defense which, unless
raised by the defendant in his answer, is considered waived.”). “This is not,
however, the bright-line rule that [Bailey] argues it should be.” See Neuma, Inc. v.
Wells Fargo & Co., 515 F. Supp. 2d 825, 850 (N.D. Ill. 2006) (citing Bobbitt v.
Victorian House, Inc., 532 F. Supp. 734, 736 (N.D. Ill. 1982) (“In the real world . . .
failure to plead an affirmative defense will rarely result in waiver.”)). Recently, the
Seventh Circuit reiterated that “[s]everal of [its] decisions hold that a district court
may (though it need not) permit an untimely affirmative defense, provided the
plaintiff does not suffer prejudice from the delay.” Global Tech. & Trading, Inc. v.
Tech Mahindra Ltd., 789 F.3d 730, 731 (7th Cir. 2015) (citing cases); see also Best v.
City of Portland, 554 F.3d 698, 700 (7th Cir. 2009) (“a delay in asserting an
affirmative defense waives the defense only if the plaintiff was harmed as a

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result.”). The court explained further that “the expense of conducting a suit does not
count as prejudice.” Global Tech., 789 F.3d at 732. Rather, “what [is] mean[t] by
‘prejudice’ is a reduction in the plaintiff’s ability to meet the defense on the merits—
if, say, a witness has died, or documents have been destroyed, during the time
between when the defense should have been raised and when it was actually
raised.” Id.
Certainly, the Defendants could have raised res judicata and collateral
estoppel in 2012 when the Illinois Appellate Court issued its decision, if not earlier.
Defendants’ contention that they did not know about the Merit Board’s decision or
either of the subsequent decisions on appeal is implausible and somewhat
disappointing. The Sheriff’s Office was a party to those decisions and is a defendant
here. Additionally, defense counsel’s law firm participated in the Merit Board
proceedings and those proceedings have been referenced in discovery in this case.
Nor has there been any lack of opportunities for Defendants to raise these defenses
as Defendants have filed numerous motions and pleadings over the past two years.
Nevertheless, despite this significant delay Defendants could have easily
avoided, Bailey was also aware of the Merit Board’s decision and its affirmance on
appeal and the possibility that those decisions could be used against him in this
case. Cf. Global Tech., 789 F.3d at 733 (“it takes chutzpah for [the plaintiff] to
blame [the defendant]. Had [the plaintiff’s] lawyers done better legal research
before suing . . . they would have recognized that the [affirmative defense in

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question] makes recovery impossible”). Bailey has not argued that he has suffered
any cognizable prejudice from Defendants’ delay.
Late assertion of an affirmative defense is akin to a motion for leave to
amend a pleading under Federal Rule of Civil Procedure 15(a)(2), which provides
“that judges may allow pleadings to be amended and ‘should freely give leave when
justice so requires.’” See Global Tech., 789 F.3d at 732. In Global Tech., the Seventh
Circuit explained that it is “unnecessary for the judiciary to be stingy with
extensions of the Rule 8(c) deadline, or with amendments under Rule 15(a)(2),
since both plaintiffs and defendants want to recognize and raise affirmative
defenses as soon as possible, in order to cut their own legal bills.” 789 F.3d at 733
(emphasis in original). Here, it would be unjust for Bailey’s claims to proceed if
they, or the issues upon which they are based, have already been decided by a
competent court. Thus, the Court will proceed to analyze the substance of
Defendants’ motion.
II.

Res Judicata
For a final decision to preclude a subsequent action under res judicata there

must be “an identity of cause of action,” including “all questions actually decided in
[the] previous action as well as to all grounds of recovery and defenses which might
have been presented in the prior litigation.” Whitaker v. Ameritech Corp., 129 F.3d
952, 956 (7th Cir. 1997) (citing La Salle Nat’l Bank v. Cnty. Bd. of Sch. Trustees,
337 N.E.2d 19, 22 (1975)). “For . . . identity of a cause of action . . . Illinois courts
employ a transactional test, which provides that assertion of different kinds of

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theories of relief still constitutes a single cause of action is a single group of
operative facts give rise to the assertion of relief.” Hayes v. City of Chicago, 670 F.3d
810, 813 (7th Cir. 2012) (internal citation and quotation marks omitted).
Examining the operative facts of the Merit Board action and Bailey’s action
here, there is no question that there is an identity of cause of action. In Hayes, the
court held that a police officer “could have rebutted the Police Board’s discharge
order with evidence that he was unlawfully terminated based on his race.” 670 F.3d
at 814. So could have Bailey rebutted the Sheriff’s allegations before the Merit
Board with evidence that disciplinary proceedings were instituted against him in
retaliation for his political activities, not because his conduct was truly worthy of
punishment. As in Hayes, “[t]he similarity of the underlying conduct would have
undoubtedly created a convenient trial unit and preserved . . . judicial resources.”
Id.
However, “[u]nder a generally accepted exception to the res judicata doctrine,
a litigant’s claims are not precluded if the court in an earlier action expressly
reserves the litigant’s right to bring those claims in a later action.” Cent. States, Se.
& Sw. Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 629 (7th Cir.
2002); see also Hayes, 670 F.3d at 815 (“The Illinois Supreme Court outlined . . .
scenarios where the application of res judicata would be inequitable [including
when] . . . the court in the first action expressly reserved the plaintiff’s right to
maintain the second action . . . .”). Bailey argues that this exception is applicable
here.

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Bailey contends that he “could not have litigated the issues of Defendants’
political motivation or intention to cause Bailey emotional distress at the Merit
Board because the Hearing Officer prohibited Bailey from discovering or
introducing any evidence or witnesses on these issues.” R. 496 at 10. Bailey also
notes that “the Sheriff . . . sought to bar this evidence from discovery and trial,
contending that it was irrelevant.” Id. In support of this argument Bailey cites the
colloquy the Court quoted above. In that exchange, the Merit Board hearing officer
never expressly references First Amendment retaliation claims. But it is clear that
the hearing officer is aware of this case (it had been filed first) and that the hearing
officer assumed that the evidence Bailey’s counsel sought to have admitted before
the Merit Board “can be taken up in another hearing, another trial against the
Sheriff on the federal matter.” R. 498-2 at 43 (24:16-18). Bailey’s counsel alluded to
the retaliation claims in this case when she argued that other “officers were not
disciplined, they were not investigated criminally, they were not investigated
administratively, they were not disciplined at all, I believe is relevant to the charge
that they’re claiming that Officer [Bailey] was negligent.” Id. at 44 (26:22–27:3).
The hearing officer responded, “I will permit the evidence into trial as to how the
inmates escaped, but not whether or not the other officers down the line were
charge, investigated or whatever, all right.” Id. (27:9-13).
The retaliation claims Bailey and his co-plaintiffs have brought in this case
require examination of evidence regarding the motivation for the investigation into
their conduct. In the Court’s earlier opinion and order denying Defendants’ motion

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for summary judgment, the Court noted that, “according to Michno and Bailey,
[Defendant] Andrews told them that the investigation was politically motivated
several days after [Darin] Gater’s confession. Since Andrews stated that the
investigation was politically motivated after Gater confessed, Andrews’s statement
is evidence that Defendants themselves did not put much stock in Gater’s confession
and that Defendants’ true motivation was discriminatory and retaliatory.” R. 445 at
11 (Hernandez, 2014 WL 3805734, at *5).1 The Merit Board refused to hear this
kind of evidence, and expressly stated that such evidence “can be taken up in
another hearing, another trial against the Sheriff on the federal matter.” R. 498-2 at
43 (24:16-18). The Merit Board reached its decision without considering the
evidence this Court held was central to whether Defendants are liable for violating
Plaintiffs’ First Amendment rights. And the Merit Board expected that this Court
would address that evidence. Under these circumstances it would inequitable to bar
Bailey from bringing his claims in this case for reasons of res judicata.
III.

Collateral Estoppel
Collateral estoppel requires that “the issues decided in the prior adjudication

are identical to issues presented for adjudication in the current proceeding.”
Gambino v. Koonce, 757 F.3d 604, 608 (7th Cir. 2014). Defendants argue that the
“essence of [the Merit Board’s decision] was the basis for the investigation and
eventual termination of Plaintiff Bailey’s employment as a correctional officer.” R.
485 at 13. But as noted, the Merit Board expressly avoided the question of whether

Gater is another correctional officer who was criminally charged in connection
with the jail break. See R. 445 at 3 (Hernandez, 2014 WL 3805734, at *2).
1

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the investigation into Bailey’s conduct was motivated by retaliatory intent. That the
Merit Board found that Bailey’s termination was in accordance with Sheriff’s Office
regulations is not the same issue as whether the Sheriff’s Office was applying those
regulations in a discriminatory manner. That is the issue the Merit Board reserved
for this Court, so Bailey will not be precluded from litigating it here.
Conclusion
For the foregoing reasons, Defendants’ motion, R. 485, is denied.
ENTERED:

______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: September 16, 2015

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