Rose v. The College of Lake County et al

Filing 38

MEMORANDUM Opinion and Order: For the reasons stated, Defendants' combined motion to dismiss 28 is granted insofar as the official capacity claims against defendant Haney are concerned. In all other respects, the motion is denied. Signed by the Honorable Thomas M. Durkin on 5/8/2017:Mailed notice(srn, ) (Main Document 38 replaced on 5/9/2017, Per Court Order Entry # 40 ) (ph, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BARRY ROSE, AN INDIVIDUAL,
PLAINTIFF,
V.

RICHARD HANEY, INDIVIDUALLY AND
IN HIS CAPACITY AS PROVOST OF THE
COLLEGE OF LAKE COUNTY AND THE
COLLEGE OF LAKE COUNTY,
DEFENDANTS.

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16-CV-5088
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff Barry Rose, a former adjunct professor in the Paralegal Program at
the College of Lake County (“CLC”), brings suit pursuant to 42 U.S.C. § 1983 for
wrongful employment termination. Defendants purportedly terminated Plaintiff for
writing disrespectful emails to faculty and students, but Plaintiff alleges the true
reason he was fired was that he exercised his First Amendment right to speak out
about concerns he had with the Paralegal Program, including concerns about the
teacher evaluation system and meetings of the Paralegal Advisory Board (Count I).
Plaintiff also alleges that the process by which Defendants terminated his
employment as an adjunct professor violated his rights to procedural due process
(Count II). Defendants have filed a motion to dismiss and strike certain portions of
the complaint. See R. 28 (hereinafter “Motion”). For the reasons that follow,
Defendants’ Motion is granted in part and denied in part.

LEGAL STANDARD
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.
2009). A complaint must provide “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide
defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Id. In addition, the Court
may consider facts outside the complaint referenced by Plaintiff in her brief that are
not contrary to any of the allegations in the complaint. 1

Defendants contend that the Court must disregard any facts alleged for the first
time in Plaintiff’s response brief. See R. 35 at 2-3. But that argument is incorrect.
See Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1 (7th Cir. 2012) (“If a moving
1

2

BACKGROUND
The allegations of the complaint show that Plaintiff began teaching at CLC
as an adjunct professor in the Paralegal Program in January 2007. R. 23, ¶ 1. He
was nominated for Teacher of the Year in 2010 and 2011, and again in 2014. In
2010 and 2011, he was recognized as one of CLC’s Outstanding Faculty of the Year.
Id., ¶ 2. Plaintiff has consistently been rated favorably by his students, receiving an
average of 4.75 on a 5-point scale in his two most recent evaluations. Id., ¶ 3.
In early 2011, Plaintiff met with Richard Haney, who at the time was VicePresident of Educational Affairs, to discuss Plaintiff’s concern that CLC did not
have a thorough, effective instructor evaluation system. Id., ¶ 4. Haney admitted to
Plaintiff that CLC’s instructor evaluation methods were inadequate. Id., ¶ 5.
Shortly after the meeting, Plaintiff sent Haney an email recounting their discussion
and offering to work on improvements to CLC’s teacher evaluation system. Id.
Haney neither contacted Plaintiff nor implemented any changes in the evaluation
system. Id., ¶ 6. Plaintiff therefore contacted the President of CLC to discuss his
concerns. Id. The President, however, would not agree to meet with Plaintiff and
instead referred him to Haney. Id. Plaintiff later wrote letters expressing his
concerns about CLC’s teacher evaluation process to two state senators. Id., ¶¶ 26,
27.
party relies on additional materials, the motion must be converted to one for
summary judgment under Rule 56. A plaintiff, however, has much more flexibility
in opposing a Rule 12(b)(6) motion . . . . He may elaborate on his factual allegations
so long as the new elaborations are consistent with the pleadings.”) (internal
quotation marks and citations omitted).
3

In April 2015, Plaintiff requested and received permission to attend the semiannual meeting of the Paralegal Advisory Board. His invitation to attend the
meeting, however, was later rescinded after he indicated that he wanted to discuss
“the future of the adjuncts in the Paralegal Program.” Id., ¶¶ 7-8. Plaintiff
complained that his exclusion from the meeting was in violation of the Illinois Open
Meetings Act and the Public Community College Act, and he informed CLC that he
intended to seek an official Attorney General Opinion on the open meeting
requirement. See R. 33 at 4. As a result, CLC relented and allowed him to attend
the meeting. Id. Plaintiff contends, however, that the CLC administrative staff
treated him “coldly and harshly” at the meeting, where he was relegated to seating
in the back row, passed over for introductions, and not allowed to speak. Id.; R. 23,
¶¶ 9, 10. After the meeting, Plaintiff alleges, he was “ostracized” by the CLC
administration. Id., ¶ 20.
On September 3, 2015, Plaintiff submitted requests to teach eight classes in
the Spring 2016 semester, including two courses he had taught on numerous
previous occasions. Id., ¶ 19. CLC was obligated by the Adjunct Union Contract to
extend Plaintiff an offer if any course for which he was qualified to teach was
available. Id.; R. 33 at 13. The deadline for CLC to inform Plaintiff whether he
would be offered any classes for the Spring 2016 semester was October 30, 2015.
R. 23, ¶ 19.
On or about September 6, 2015, only a couple of business days after Plaintiff
submitted his request to teach eight courses in the Spring 2016 semester, Haney

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sent Plaintiff an email directing Plaintiff to attend an Investigatory Interview
(“Interview”) to discuss concerns about certain emails Plaintiff had sent to faculty
and students. Id., ¶ 21. Haney did not identify the emails at issue or inform
Plaintiff whether he might suffer any consequences as a result of the Interview. Id.
Plaintiff did not want to attend the Interview but was told he would be cited for
insubordination if he did not appear. Id. Plaintiff asked which emails of his were of
concern to CLC, and he received that information from Haney prior to the meeting.
Id., ¶ 28. The emails in question related to Plaintiff’s issues with CLC’s teacher
evaluation system and CLC’s refusal to allow Plaintiff to volunteer as a tutor at
CLC’s Writing Center. Id., ¶ 22; see also id., ¶ 16. According to Plaintiff, the emails
“did not disparage any instructors o[r] other persons. Instead, the harshest
comment Plaintiff ever made was that he believed that CLC did not always have
the best interests of CLC students at heart.” Id., ¶ 16; see also id., ¶ 17. 2
On September 16, 2015, Plaintiff, along with his attorney and two union
representatives, attended the Interview. Id., ¶ 30. Plaintiff requested but was
denied the right to have the co-chairs of his department attend so he could question
them, as well as to have the Interview recorded. Id., ¶ 30. Plaintiff was subjected to

The emails are not part of the current record. Plaintiff alleges he does not have
copies of them because CLC prematurely and without notice to him terminated his
access to his faculty email account. R. 23, ¶ 36; R. 33 at 10. And while Defendants
likely have copies of the emails, they did not attach them to their Motion. Thus, the
Court must accept as true Plaintiff’s characterization of the emails as “merely
express[ing] concern whether CLC administration was acting in the best interests of
its students,” and as “critical of CLC policies” but not in a way that was
“disrespectful, defamatory or derogatory of CLC personnel.” R. 23, ¶ 17.
2

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questioning at the meeting by Haney and an attorney. But when Plaintiff attempted
to ask questions of his own, he was told he could not do so. Id., ¶ 32.
On October 30, 2015, Plaintiff received an offer from CLC to teach Legal
Research and Writing in the Spring 2016 semester. Plaintiff immediately accepted
the offer by email. Id., ¶¶ 19, 33. He was never presented with any contract in
connection with this offer, however. Id., ¶ 34. Instead, on December 15, 2015,
Plaintiff was informed by letter that his email and other privileges to access CLC’s
faculty portal were immediately revoked pending the investigation, which was
expected to be completed by the end of January 2016. Id., ¶ 36. Plaintiff also was
informed that he must attend a second Interview. Id., ¶ 35. The second Interview
was held on December 16, 2015, and, just like the earlier Interview, Plaintiff was
not allowed to record the meeting, to ask any questions, or to present any evidence
on his own behalf. Id. In January 2016, just before the start of the Spring 2016
semester, Plaintiff was informed that the offer he had accepted to teach Legal
Research and Writing had been rescinded. Id., ¶ 37. A short time later, on January
30, 2016, Plaintiff received a “detailed letter” from Haney with exhibits containing
“many unfounded statements and conclusions,” informing him that he was being
terminated as an adjunct professor. Id.,¶ 38.
DISCUSSION
I.

COUNT I—FIRST AMENDMENT RETALIATION CLAIM
“[T]he law is settled that as a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory actions . . . for

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speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). To make out a prima
facie case of retaliation in violation of the First Amendment (made applicable to
state actors through the Fourteenth Amendment), Plaintiff must show: (1) he
engaged in activity protected by the First Amendment; (2) he suffered a deprivation
that would likely deter First Amendment activity; and (3) the First Amendment
activity was at least a motivating factor behind the deprivation Plaintiff was made
to suffer. Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012). Defendants argue that
Plaintiff has failed to plead sufficient facts to plausibly allege either the first or
third requirements.
A.

ACTIVITY PROTECTED BY THE FIRST AMENDMENT

Defendants argue that Plaintiff has not adequately alleged that he engaged
in an activity protected by the First Amendment. As an adjunct professor employed
by a state community college, Plaintiff was a public employee. “In assessing the
viability of a public employee’s First Amendment claims, [the court] must make a
threshold determination as to whether the speech that allegedly motivated the
employer’s adverse action was protected by the Constitution.” McArdle v. Peoria
Sch. Dist. No. 150, 705 F.3d 751, 754 (7th Cir. 2013). “The inquiry into the protected
status of speech is one of law, not fact.” Id.
“When a citizen enters government service, the citizen by necessity must
accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410,
418 (2006). At the same time, “a public employee does not relinquish all First
Amendment rights otherwise enjoyed by citizens just by reason of his or her

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employment.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004). In particular,
government employees have a First Amendment right “to speak on matters of
public concern, typically matters concerning government policies that are of interest
to the public at large, a subject on which public employees are uniquely qualified to
comment.” Id. In striking a balance between the competing governmental interest of
managing its employees and private interest of free speech, the Supreme Court has
held that, “[s]o long as employees are speaking as citizens about matters of public
concern, they must face only those speech restrictions that are necessary for their
employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419. In
addition, the Supreme Court in Garcetti imposed a threshold determination
regarding whether the public employee spoke in his capacity as a private citizen or
as an employee.
1.

GARCETTI DOES NOT APPLY.

In Garcetti, the Supreme Court held that “when public employees make
statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” 547 U.S at 421. The Seventh Circuit has
described this inquiry as a “threshold determination regarding whether the public
employee spoke in his capacity as a private citizen or as an employee.” Chaklos v.
Stevens, 560 F.3d 705, 712 (7th Cir. 2009). The relevant inquiry for purposes of
Defendants’ Motion is whether Plaintiff was acting pursuant to his official duties as
an adjunct professor when he engaged in the speech for which he was fired. That

8

inquiry is resolved by looking at “whether the speech at issue is itself ordinarily
within the scope of an employee’s duties, not whether it merely concerns those
duties.” Lane v. Franks, 134 S. Ct. 2369, 2373 (2014). Thus, “[p]ublic employee
speech does not lose First Amendment protection because it concerns the subject
matter of the employee’s job.” Chrzanowski v. Bianchi, 725 F.3d 734, 738 (7th Cir.
2013). “Likewise, public employees’ speech is not subject to restriction simply
because it occurs inside the office, since ‘[m]any citizens do much of their talking
inside their respective workplaces.’” Id. (quoting Garcetti, 547 U.S. at 420-21)). As
the Seventh Circuit explained, “speech does not ‘owe[ ] its existence to a public
employee’s professional responsibilities’ within the meaning of Garcetti simply
because public employment provides a factual predicate for the expressive activity;
rather, Garcetti governs speech that is made ‘pursuant to official duties’ in the sense
that it is ‘government employees’ work product’ that has been ‘commissioned or
created’ by the employer.” Id. (quoting Garcetti, 547 U.S. at 422).
Defendants argue that “Plaintiff has failed to plead that he was speaking as a
private citizen.” R. 29 at 4. But the issue on Defendants’ Motion is not whether
Plaintiff has formulaically alleged that he was speaking as a private citizen but
whether the facts alleged would support a finding that he was. The protected speech
alleged by Plaintiff for which he claims to have been fired includes his expressed
concerns about the meetings of the Paralegal Advisory Board being open to the
public and his emails to faculty and students regarding the teacher evaluation
process and possibly other related concerns about CLC not acting in the best

9

interests of its students. Although neither party specifically discusses what the job
duties of an adjunct professor in the CLC Paralegal Department are, it is
reasonable to infer that they relate to the task of teaching, not to the tasks of
ensuring open meetings of the Paralegal Advisory Board or even adequate teacher
evaluations and other school policies to promote the best interests of the students.
Compare Garcetti, 547 U.S. at 421 (memo written by deputy district attorney
recommending that case be dismissed because of government misconduct was part
of the attorney’s duties for which he was employed); McArdle, 705 F.3d at 754 (the
issues of adherence to district policies and its finances were all matters within the
oversight of the plaintiff as school principal). In short, the facts alleged in the
complaint suggest that Plaintiff’s alleged speech for which he was terminated was
not made “pursuant to official duties” in the sense that the speech in question was
Plaintiff’s “work product” that had been “commissioned or created” by CLC.
Citing to Kubiak v. City of Chicago, 810 F.3d 476, 481 (7th Cir. 2016),
Defendants argue that Plaintiff’s speech falls within his official duties because
Plaintiff “expressed concerns about his work environment.” R. 29 at 5. The Court
cannot say on the current record (which does not include the communications at
issue) whether Defendants’ characterization of Plaintiff’s speech as “express[ing]
concerns about his work environment” is accurate. Plaintiff alleges his protected
speech related not to his “work environment” but instead to the ways in which
CLC’s teacher evaluation methods and other aspects of the paralegal program failed
to serve the student’s best interests, as well as to whether open meeting laws were

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being followed by the Paralegal Advisory Board. But even if Defendants’ description
of the content of Plaintiffs’ speech was accurate, Defendants read Kubiak too
expansively. Kubiak belongs to a specific line of cases that deals with an employee
reporting misconduct of other employees. See Spalding v. City of Chicago, 186
F. Supp. 3d 884, 903 (N.D. Ill. 2016). Unlike the facts in Kubiak, Plaintiff’s alleged
speech did not involve reporting official misconduct. Kubiak thus is not helpful to an
analysis of the complaint in this case.
Even if this case involved the reporting of misconduct of another employee,
the facts alleged in the complaint likely would pass muster. While it is true that a
public employee who “reports official misconduct in the manner directed by official
policy,

to

a

supervisor,

or to

an external

body

with formal

oversight

responsibility . . . speaks pursuant to her official duties and her speech is
unprotected by the First Amendment.” Id. (citing cases). Similarly, an employee
who reports misconduct affecting an area within his responsibility (even when not
strictly required to report it), also speaks pursuant to his official duties. See Hatcher
v. Bd. of Trs. of S. Ill. Univ., 829 F.3d 531, 539 (7th Cir. 2016) (citing cases). But an
employee is not speaking pursuant to his official duties when he either “testifies
regarding misconduct to a jury or grand jury, or reports misconduct outside
established channels or in violation of official policy.” Spalding, 186 F. Supp. 3d at
904 (citing cases). In those situations, the Seventh Circuit has held that the
employee’s speech is constitutionally protected. Id. Plaintiff’s alleged speech would
appear to fall within the category of reporting misconduct outside established

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channels and/or in an area for which he did not have any formal responsibilities.
Therefore, Plaintiff’s speech was the constitutionally protected speech of a private
citizen. See, e.g., Kristofek v. Vill. of Orland Hills, 832 F.3d 785, 793 (7th Cir. 2016)
(Kristofek II) (holding that a part-time police officer was not “responsible for
pursuing or voiding citations, or for determining when and under what
circumstances arrestees could be released,” and, as a result, that he was speaking
as a private citizen when he reported suspected police misconduct with regard to an
arrestee’s voided citation and release from custody) (emphasis in original).
Defendants nevertheless rely on the Seventh Circuit’s comment in Kubiak
that the plaintiff was “expected to report [ ] inappropriate behavior to a supervisor.”
810 F.3d at 481-82. Defendants argue that, similarly, “Plaintiff is expected to take
actions to improve his work environment, which he did by reporting concerns he
had regarding the evaluation process of professors to the Provost and ‘learn[ing] the
latest developments in the Paralegal Program.’” R. 29 at 5 (internal citation
omitted). Reporting misconduct, however, is not the same as seeking improvement
in one’s work environment, and, nothing in Kubiak suggests that reporting on the
latter is an “expected” part of an employee’s unofficial job requirements. See
Kristofek II, 832 F.3d at 793 (rejecting the argument that the plaintiff “was ‘doing
what was expected of him and what he was generally paid to do’ when he shared his
concerns”); Chaklos, 560 F.3d at 712 (noting that the Garcetti Court “rejected the
idea ‘that employers can restrict employee’s rights by creating excessively broad job
descriptions’”) (quoting Garcetti, 547 U.S. at 424)). In short, the Court concludes

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that the facts alleged—speech about improving the teacher evaluation process and
about the requirements for public meetings under Illinois statutes—is not speech
that is expected of Plaintiff in his job as an adjunct professor in the CLC Paralegal
Program. Consequently, as alleged, Plaintiff’s speech was made in his capacity as a
citizen and not in his capacity as a public employee.
2.

PLAINTIFF’S SPEECH PERTAINS TO A MATTER OF
PUBLIC CONCERN

Defendants argue that even if Plaintiff was speaking as a citizen rather than
as a public employee, his statements were not of public concern and thus should not
be constitutionally protected. The Supreme Court has explained that “public
concern is something that is a subject of legitimate news interest; that is, a subject
of general interest and of value and concern to the public at the time of publication.”
City of San Diego, 543 U.S. at 83-84. “Whether an employee’s speech addresses a
matter of public concern must be determined by the content, form, and context of a
given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138,
147-48 (1983). “The motive of the speaker is relevant as part of the context in which
the speech was made but is not dispositive.” Kubiak, 810 F.3d at 483. Rather, the
courts are to use the content, form, and context to determine whether the objective
of the speech is “to bring wrongdoing to light or to further some purely private
interest.” Id. (internal quotation marks and citation omitted).
Defendants again rely on Kubiak, this time to argue that Plaintiff’s speech
did not address a matter of public concern. The Kubiak court held that the
plaintiff’s speech in that case did not address a matter of public concern because the
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plaintiff’s objective “was to further her personal interest in remedying an employee
grievance.” Id. Additionally, the court observed, the fact that the plaintiff’s
“complaints were all made internally” indicated that her speech was motivated
primarily by personal concerns. Id. at 484. The facts in Kubiak are very different
from the facts before the Court. Accepting the allegations of the complaint regarding
the content of Plaintiff’s speech as true, Plaintiff was not speaking about a personal
grievance he had over something that happened to him; for instance, there is no
allegation that Plaintiff’s speech related specifically to his own teacher evaluations.
Defendants thoroughly misapprehend the relevant inquiry when they argue that
the requirement of a public concern is not satisfied because Plaintiff’s “lawsuit
relates to personal work-related grievances he has against the Defendants.” R. 29 at
6. The issue is not whether Plaintiff’s lawsuit relates to a personal grievance but
whether his speech was so related. While it is true enough that Plaintiff’s current
lawsuit relates to his personal grievance against Defendants, the speech that is the
subject of Plaintiff’s personal grievance currently before the Court did not itself
involve a personal grievance. Instead, Plaintiff’s speech expressed his personal
views about how the administration generally handled teacher evaluations and
meetings of the Paralegal Advisory Board. The changes for which Plaintiff was
advocating would affect not only Plaintiff but all professors in the Paralegal
Program at CLC, and all members of the public who wanted to attend Paralegal
Advisory Board meetings. Compare City of San Diego, 543 U.S. at 84 (plaintiff’s

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speech did not touch on matters of public concern where it “did nothing to inform
the public about any aspect of [his employer’s] functioning or operation”).
As to Plaintiff’s motives, the primary focus of Plaintiff’s speech as it is alleged
in the complaint was the manner in which the evaluation system and other matters
affected the best interests of the students, not himself. That Plaintiff was not
motivated solely or even primarily by his own self-interest is shown by the fact that
his speech was not directed exclusively to his supervisors within the administration
of CLC. Instead, Plaintiff alleges that he sent emails to students and other faculty,
and even outside the CLC system to two state representatives. R. 23, ¶¶ 26-27. 3
This “create[d] a ‘communicative element’ putting the listener[s] on notice that a
matter of public concern [was] being raised.” Miller v. Jones, 444 F.3d 929, 936 (7th
Cir. 2006) (citation omitted) (finding protected speech where police officer
complained about police chief’s actions to several separate entities including civilian
oversight board); see also Kristofek II, 832 F.3d at 795 (“By reaching out first to
[fellow police officers], and then to the FBI, [the plaintiff] explicitly and formally
sought to alert a greater audience of the possible harm at issue.”) (internal
quotation marks and citation omitted). 4
Defendants argue that Plaintiff’s letters to the state representatives are irrelevant
because Defendants did not know about them and Plaintiff was not terminated
because of them. Of course, those are factual issues outside the complaint. But in
any event, Defendants’ asserted facts outside the complaint are not relevant
because the purpose of citing to the letters is to show that Plaintiff had a public
motive in raising the issues discussed in the letters.
3

The fact that Plaintiff may also have been affected personally by the issues that
were the subject of his speech is not dispositive. As the Seventh Circuit explained in
Kristofek v. Village of Orland Hills (Kristofek I), “a public employee’s speech may

4

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In Meade v. Moraine Valley Community College, 770 F.3d 680 (7th Cir. 2014),
the Seventh Circuit had “no trouble concluding” that a letter written by an adjunct
at a community college criticizing the way in which the community college treated
adjunct professors raised issues of public concern. Id. at 684. The letter, the court
said, “contained almost no content personal to [the plaintiff],” and its “multiple
references to difficulties facing all [ ] adjuncts remove[d] it from the realm of the
purely personal.” Id. Moreover, the court noted, the plaintiff was “not alone in
expressing concern about the treatment of adjuncts. Colleges and universities
across the country are targets of increasing coverage and criticism regarding their
use of adjunct faculty.” Id. at 684-85 (citing sources). Finally, the court observed,
the plaintiff’s “attempt to link the treatment of adjunct faculty to student
performance underscore[d] the public dimension of her comments.” Id. at 685.
Plaintiff alleges that he too linked his criticisms of teacher evaluations to the
interests of the students in the emails he sent. As the Seventh Circuit said about
the adjunct professor’s speech in Meade, “[i]t is difficult to see how any part of this
discussion could be considered purely personal to [the plaintiff], or of zero interest
still be protected if the speaker’s motives were mixed, and also included a desire to
help the public, . . . and at no point does the complaint allege that [the plaintiff’s]
only motive was to protect himself. The mere fact that [the plaintiff] was motivated
by his self-interest does not make it implausible that he was also motivated to help
the public.” 712 F.3d 979, 984 (7th Cir. 2013) (emphasis in original). Moreover,
“even if [the plaintiff] were motivated exclusively by his own self-interest, his First
Amendment claim would not necessarily be dismissed. As [the Seventh Circuit]
ha[s] stated before, motive alone does not conclusively determine whether a public
employee’s speech involves a matter of public concern. The marketplace of ideas
would become quite impoverished indeed if anyone (including public employees)
motivated solely by his or her own self-interest were precluded from participating in
it.” Id. at 985 (emphasis in original) (internal citations omitted).
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to the public. The people who attend [the community college], along with their
families and others who live in the area, no doubt want to know if this practice
poses a threat to student performance.” Id. Given the similarities of Meade to this
case, the Court must join with Plaintiff in questioning how Defendants could fail to
acknowledge it in their brief in support of their Motion, even if their position is that
it is distinguishable from this case on a number of grounds. In any event,
Defendants’ arguments for distinguishing Meade are not compelling. Based on
Meade, the Court categorically rejects Defendants’ argument that Plaintiff’s alleged
speech did not touch upon a matter of public concern.
B.

CAUSATION ISSUE

Defendants also argue that Plaintiff has failed to allege that his First
Amendment activity was at least a motivating factor behind his termination. See
R. 29 at 3. Defendants have not developed this argument either factually or legally.
For purposes of their Motion, therefore, the argument is waived. See United States v.
Hassebrock, 663 F.3d 906, 914 (7th Cir. 2011) (explaining that “perfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived” (quoting United States v. Berkowitz, 927 F.2d 1376, 1384 (7th
Cir. 1991))).
Even if the Court were to consider Defendants’ causation argument, however,
it is without merit. The issue once again is not whether Plaintiff formulaically
recites in the complaint that the speech in question “was a motivating factor” in his
termination, but whether the facts alleged in the complaint plausibly suggest such a

17

motivation. Plaintiff alleges he was investigated for sending emails to students and
faculty about certain concerns he had with the CLC Paralegal Program and that
this was the basis for his termination. There is nothing in the record at this point in
the proceedings (such as the termination letter itself) to contradict Plaintiff’s
allegations. Accordingly, Plaintiff has plausibly alleged that his termination was
motivated by his alleged First Amendment activity of writing the emails in question.
See Meade, 770 F.3d at 682 (where written termination notice received by adjunct
professor “explicitly cit[ed]” the adjunct’s letter to an outside community college
advocacy organization as the reason for the college’s decision to fire her).
Although the Court cannot say for certain (because Defendants have not
explained themselves), Defendants’ causation argument likely was intended to
address Plaintiff’s allegations about speaking out against being excluded from the
Paralegal Advisory Board meeting because Defendants may know that Plaintiff’s
comments about the board meeting were not one of the reasons cited by Haney in
the termination letter for Plaintiff’s termination. But as discussed, the termination
letter is not in the record. Furthermore, even if the letter does not specifically
mention Plaintiff’s complaints about the meeting, those complaints are plausibly
related to Plaintiff’s advocacy on behalf of students in the alleged emails he sent to
students and faculty. See R. 33 at 11 (stating that Plaintiff’s letters to state senators
about the faulty teacher evaluation system also referenced Plaintiff’s request to get
the Paralegal Advisory Board Meetings open to the public). Plaintiff’s emails were
the subject of CLC’s investigation of him and presumably (based on the complaint’s

18

allegations) the reason why Plaintiff was terminated. Moreover, even apart from a
connection between Plaintiff’s complaints about the Paralegal Advisory Board
meeting and his emails to faculty and students, the Court concludes that the
complaint contains adequate factual content to plausibly suggest that Defendants’
decision to terminate Plaintiff’s employment was at least partially motivated by
Plaintiff’s complaints about the meeting. See Hatcher, 829 F.3d at 538 (“The short
timing between the filing of the charge and Chancellor Cheng’s decision, . . . and a
lack of other allegations in the complaint which rule out retaliation as a cause for
the decision, all take Dr. Hatcher’s retaliation claim from the realm of the possible
into the realm of plausible.”).
II.

COUNT II--PROCEDURAL DUE PROCESS CLAIM
Defendants also move to dismiss Count II of the complaint, asserting that

Plaintiff has failed to allege sufficient facts to support a violation of his right to
procedural due process. To plead a procedural due process claim, a plaintiff must
allege a cognizable property interest, a deprivation of that property interest, and a
denial of due process. Price v. Bd. of Educ. of City of Chi., 755 F.3d 605, 607 (7th
Cir. 2014). Defendants concede for purposes of their Motion that Plaintiff has
adequately pled facts to satisfy the first two requirements of a cognizable property
interest and a deprivation of that interest. See R. 29 at 7 (“assuming, arguendo, that
Plaintiff possessed a property interest . . .”); R. 35 at 7 (same). Therefore, the only
issue before the Court is whether the procedures followed by Defendant to
terminate Plaintiff’s employment were constitutionally adequate. See Cleveland Bd.

19

of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (“the Due Process Clause provides
that certain substantive rights—life, liberty, and property—cannot be deprived
except pursuant to constitutionally adequate procedures”).
Defendants’ arguments on the procedural due process issue focus on the
requirements for a pre-termination hearing. See Head v. Chi. Sch. Reform Bd. of
Trs., 225 F.3d 794, 803-04 (7th Cir. 2000). “A public employer who removes an
employee from a job in which the employee has a constitutionally protected interest
must provide certain limited pre-termination procedures, including, at a minimum:
(1) oral or written notice of the charges; (2) an explanation of the employer’s
evidence; and (3) an opportunity for the employee to tell his or her side of the story.”
Id. at 803-04 (footnote omitted) (citing Loudermill, 470 U.S. at 546, and Staples v.
City of Milwaukee, 142 F.3d 383, 385 (7th Cir. 1998)). In addition, “the chosen
decisionmaker must be impartial.” Id. at 804 (citing Bakalis v. Golembeski, 35 F.3d
318, 323-26 (7th Cir. 1994)).
Defendants argue that these requirements were satisfied, citing to the
general statement in Head that “[n]otice is constitutionally adequate if it is
reasonably calculated to apprise interested parties of the proceeding and afford
them an opportunity to present their objection.” 225 F.3d at 804. But Defendants
ignore the actual facts in Head. There, the notice informed the plaintiff that a
“removal hearing had been scheduled . . . and detailed four particular grounds on
which his removal was being sought.” Id. (emphasis added). Further, the plaintiff in
Head “admitted that he was fully apprised of the charges at the hearing and that

20

afterwards he was able to submit a brief in response to the evidence presented at
the hearing.” Id. (emphasis added). Therefore, the court found “it impossible to
conclude that [the plaintiff] did not receive adequate notice of the charges that led
to his removal.” Id.
The allegations in the complaint paint a very different picture from what
occurred in Head. Plaintiff alleges that he received an email from Haney directing
him to “attend an Investigatory Interview to discuss concerns about emails Plaintiff
sent to faculty and students.” R. 23, ¶ 21. Plaintiff was “not advised of any
consequences he might suffer as the result of this Investigatory Interview.” Id.
These allegations plausibly suggest that Plaintiff was neither provided sufficient
notice of the charges against him nor a sufficient explanation of CLC’s evidence
against him. 5 Although Plaintiff admits in the complaint that CLC ultimately did
identify for him which emails they had concerns about, and that this was done prior
to the hearing, see R. 29 at 9, a reasonable inference from Plaintiff’s allegations is
that Defendants did not explain their concerns, what the charges were, or whether
any other evidence existed on which Defendants based their charges. In short, the
allegations in the complaint do not demonstrate that Plaintiff was accorded
constitutionally adequate notice of the charges or of the evidence against him.
See also R. 23, ¶¶ 40 a, e (alleging he was not advised that he might be subject to
termination as a result of the Interview); id, ¶ 40 f (“Plaintiff’s email access, and
access to other faculty resources at CLC was terminated . . . without first being
informed that it would be done”); id, ¶ 42 (“the first time Plaintiff was informed of
the penalty of termination was when Plaintiff received the termination letter of
January 30, 2016”); R. 33 at 11 (Plaintiff “was not advised of any legal authority
and any basis for the Investigative Interview at which he was ordered to appear”).
5

21

Likewise, Plaintiff has alleged facts plausibly suggesting that he was not
given a pre-termination chance to tell his side of the story. Plaintiff alleges that at
the first Interview he “was subjected to questions from Defendant Haney and the
attorney from . . . Robbins, Schwartz [presumably representing CLC],” but that
when he tried to ask any questions, Defendant was informed [sic] that Plaintiff was
there to only answer questions, not to ask any of his own.” R. 23, ¶ 32. 6 Defendants
argue that the law does not require that Plaintiff be given an opportunity to call
witnesses in his defense at a pre-termination hearing. But Plaintiff’s complaint does
not rest on the allegation that he was unable to call witnesses. Instead, Plaintiff’s
allegations suggest that he was not allowed to tell his side of the story in any
manner whatsoever. Defendants ask the Court to infer from the allegations that
Plaintiff did in fact have that opportunity. See, e.g, R. 29 at 9 (pointing out that
Plaintiff alleges that he “answered the College’s questions during those meetings”).
But it is just as reasonable to infer the opposite from the complaint’s allegations. 7
On a motion to dismiss, the Court must resolve any ambiguities in the complaint’s
allegations in favor of Plaintiff. It may turn out to be the case that Plaintiff did have
This allegation could also plausibly relate to whether Plaintiff received adequate
notice of the charges against him, depending on whether the questions Plaintiff was
not allowed to ask related to his lack of knowledge over what those charges were.

6

See R. 23, ¶ 32 (“Defendant was informed [sic] that Plaintiff was there to only
answer questions”); id. ¶ 35 (alleging that a second Investigatory Interview was
held in December 2015 and that, “[c]onsistent with the earlier meeting [in
September], Plaintiff . . . was not allowed to ask any questions or present evidence
on his behalf”); id., ¶ 40 c (Plaintiff was not “advised that he could . . . offer his own
testimony”); see also R. 33 at 14 (Plaintiff was not allowed to “speak on his own
behalf”).
7

22

the opportunity to present his side of the story at the two Interviews. But the Court
cannot resolve that disputed factual issue on a motion to dismiss.
In any event, the requirements for a pre-termination hearing are only one
part of the procedural due process inquiry. See Loudermill, 470 U.S. at 548 (“We
conclude that all the process that is due is provided by a pre-termination
opportunity to respond, coupled with post-termination administrative procedures as
provided by the Ohio statute.”) (emphasis added); Head, 225 F.3d at 803 n.8
(“Limited pre-termination procedures are permissible only if full post-termination
procedures are available.”) (emphasis added). “The fundamental requirement of due
process is the opportunity to be heard at a meaningful time and in a meaningful
manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks
and citations omitted). Plaintiff’s allegations, as well as his arguments in his brief
in opposition to Defendants’ Motion, plausibly raise the broader due process issue of
whether he received an opportunity to be heard at a meaningful time and a
meaningful manner, taking into account both pre-termination and post-termination
procedures that were available. In other words, as the Court reads Plaintiff’s due
process claim, he is alleging that he was never given a meaningful opportunity to
contest his termination, either pre- or post-termination. 8 If that is indeed what

See, e.g., R. 23, ¶ 40 (CLC Employee Handbook specifically indicates that
terminated adjuncts are to be afforded Due Process); id., ¶ 41 (the Adjunct Union
Contract requires that any investigation must be initiated by the appropriate
Dean); id., ¶ 42 (the union contract also provides that termination should not occur
if remediation of the complained behavior of the adjunct would be possible); see also
R. 33 at 12 (“The Board of Trustees . . . authorized the termination of Plaintiff’s
employment at CLC after CLC had already voided Barry’s contract to teach; and
8

23

Plaintiff’s due process claim is, then it does not depend exclusively on whether
Plaintiff was accorded a constitutionally adequate pre-termination hearing. It may
be that Plaintiff was afforded a post-termination remedy to challenge his
termination, and therefore that the only issue open to debate is whether
CLC did not offer Barry any opportunity to appeal his termination before a fair
arbiter.”); id. at 14 (“Section 331 of CLC Employee Handbook, specifically indicates
that terminated adjuncts are to be afforded Due Process. This section does not state
that only minimal Due Process need to be provided to adjuncts.”); see also R. 33 at
12-13 (citing Patterson v. Portch, 853 F.2d 1399, 1405 (7th Cir. 1988) (holding that a
tenured instructor could not be deprived of his job without due process of law), and
Levenstein v. Salafsky, 164 F.3d 345, 351 (7th Cir. 1998) (“when the procedures
used to investigate the charges are a sham through and through there has not been
a constitutionally sufficient opportunity to respond”). Defendants argue that
Plaintiff’s citations to Patterson and Levenstein are inapposite because those cases
involved the procedural requirements for terminating a tenured professorship in the
State of Wisconsin, as well as the issue of constructive discharge. See R. 35 at 8-9.
Defendants also argue that Plaintiff did not have a contractual right to remediate
his actions apparently because his termination fell within a provision of the Adjunct
Union Contract which states that “inappropriate comments or behavior towards
students or staff, insubordination, [or] abusive conduct” may be deemed
irremediable. See R. 29-1 at 27 (citing Article 4(b)(5)). Defendants do not make clear
whether they are arguing that Plaintiff did not have a property right in his
employment or whether they are arguing that the process afforded him met the
requirements of his employment contract. To the extent that they are arguing that
Plaintiff did not have a property right because he was not a tenured professor, that
argument has not been developed and therefore is waived for purposes of the
present Motion. See Hassebrock, 663 F.3d at 914. To the extent that they are
arguing that the procedures used to terminate Plaintiff satisfied the requirements
of his contract or of an applicable Illinois statute, that issue involves disputed facts
outside the complaint. Moreover, even if the procedures used to terminate Plaintiff
satisfied the requirements of the applicable state statutes or union contract, that
does not necessarily mean they satisfied the requirements of due process. See
Loudermill, 470 U.S. at 540-41 (“The right to due process is conferred, not by
legislative grace, but by constitutional guarantee. While the legislature may elect
not to confer a property interest in [public] employment, it may not constitutionally
authorize the deprivation of such an interest, once conferred, without appropriate
procedural safeguards. In short, once it is determined that the Due Process Clause
applies, the question remains what process is due. The answer to that question is
not to be found in the Ohio statute.”) (internal quotation marks and citations
omitted).
24

Defendants’ pre-termination procedures were constitutionally adequate. But the
Court cannot say that is the case based on the current record. 9
III.

DEFENDANT HANEY
Defendant Haney makes several arguments for why he should be dismissed

as a defendant even if CLC is not.
A.

OFFICIAL CAPACITY CLAIMS

Plaintiff has named Defendant Haney as a defendant in this lawsuit both
individually and in his current official capacity as Provost of CLC. Haney argues
that Plaintiff’s official capacity claims against him are duplicative of Plaintiff’s
claims against CLC. Haney is correct. Actions against individual defendants in
their official capacities are treated as suits brought against the government entity
itself. See Hafer v. Melo, 502 U.S. 21, 25 (1991). Plaintiff’s claims against Haney in
his official capacity are the equivalent of suing CLC, which is already a named
defendant appearing in this action. Therefore, the official capacity claims against
Haney are redundant of the claims against CLC and are dismissed with prejudice.
See, e.g., Stanek v. St. Charles Cmty. Unit Sch. Dist. No. 303, 783 F.3d 634, 644 (7th
Cir. 2015).

In Head, the Seventh Circuit noted that, because the parties did “not challenge the
proposition that the legal framework governing limited pre-termination procedures
applies, [the court would] assume full post-termination procedures [were] available.
225 F.3d at 803 n.8. But the court was ruling in that case on a motion for summary
judgment. Here, the Court is ruling on a motion to dismiss and cannot make the
same assumption given the allegations in the complaint and Plaintiff’s arguments
in his brief.
9

25

B.

INDIVIDUAL CAPACITY CLAIMS

Haney also makes a number of arguments for why Plaintiff’s individual
capacity claims against him should be dismissed. These include the arguments that:
(1) Haney is entitled to absolute immunity because he was acting “within the scope
of his employment”; (2) Plaintiff has failed to plead facts that plausibly suggest he
was engaged in an activity protected by the First Amendment; (3) Plaintiff has
failed to plead facts that plausibly suggest he was denied procedural due process;
and (4) Haney is entitled to qualified immunity. See R. 29 at 11-14. The Court
already has rejected the second and third arguments with respect to CLC, and that
reasoning applies to Haney as well. As to Haney’s argument for absolute immunity,
it is perfunctory and undeveloped, and therefore the Court will not consider it at
this time. See Hassebrock, 663 F.3d at 914. 10 Thus, the only argument presented by
Defendants regarding the individual capacity claims against Haney warranting
discussion is the argument that those claims are barred by the doctrine of qualified
immunity.
Qualified immunity “gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions.” Ashcroft v. al–
Kidd, 563 U.S. 731, 743 (2011). Under this doctrine, courts may not award damages
There is a fifth argument in Defendants’ reply brief that Plaintiff’s individual
capacity claim against Haney is speculative. See R. 35 at 9-10. The Court will not
consider this new argument because it is raised for the first time on reply. See
Narducci v. Moore, 572 F.3d 313, 324 (7th Cir. 2009) (“the district court is entitled
to find that an argument raised for the first time in a reply brief is forfeited”). In
addition, the argument is perfunctory and undeveloped. See Hassebrock, 663 F.3d at
914.
10

26

against a government official in his personal capacity unless “the official violated a
statutory or constitutional right,” and “the right was ‘clearly established’ at the time
of the challenged conduct.” Id. at 735. The issue of qualified immunity is to be
resolved at the earliest stages of litigation. See Kiddy-Brown v. Blagojevich, 408
F.3d 346, 352 (7th Cir. 2005).
Haney argues that the Court should decide for purposes of his qualified
immunity argument whether Plaintiff’s allegations establish a violation of a
protected right. R. 29, at 13. The Court already has found that the facts alleged in
the complaint plausibly suggest a violation of Plaintiff’s First Amendment and Due
Process rights. Haney’s arguments for why Plaintiff has not established a violation
of a protected constitutional right depend on asserted facts that are either outside
the complaint or contradict the facts alleged in the complaint. 11 Given that the facts
are in dispute, a ruling at this stage as to whether such violations have been
established would be premature. Thus, the Court’s analysis of Haney’s qualified
immunity argument must assume that Plaintiff can establish a violation of either
his First Amendment or Due Process rights, and ask instead whether Haney could
reasonably have believed at the time he fired Plaintiff: (1) that a community college
could fire an adjunct professor because of emails he sent to students and faculty
See R. 29 at 14 (asserting contrary to the facts alleged in the complaint (1) that
Plaintiff “was given an opportunity to tell his side of the story” at the meetings, and
(2) that the emails Plaintiff sent to faculty were “disparaging”); id. (citing to
paragraphs 15 and 16 of the complaint in asserting that “faculty members of the
College had complained that [Haney] had sent disparaging emails to them,” when
those paragraphs do not allege any information about faculty members’ complaints
to Haney, and also asserting without citing to the complaint that Haney’s
investigation of Plaintiff was prompted by “reports of harassment by [Plaintiff]”).
11

27

that were critical of the teacher evaluation system for the program in which the
adjunct professor taught and/or advocated that the public be allowed to attend
meetings of an advisory board of which he was not a member; and (2) that a
community college could fire an adjunct professor when the professor was not
provided pre-termination notice of the charges and evidence against him or an
opportunity to present his side of the story and/or when the professor was not given
an adequate post-termination opportunity to challenge his termination.
“To prove the presence of a clearly established constitutional right, the
plaintiff must point to closely analogous cases decided prior to the defendants’
challenged actions.” Kiddy-Brown, 408 F.3d at 353 (internal quotation marks and
citation omitted). Taking the facts in the light most favorable to Plaintiff, as the
Court must at this stage of the proceedings, the Court concludes that the law was
clearly established that Plaintiff had a First Amendment right to speak on the
matters and in the manner in which he did, and that Defendants’ termination of
Plaintiff’s employment because of that speech violated Plaintiff’s constitutional
rights. See Kristofek II, 832 F.3d 785; Meade, 770 F.3d 680; Chaklos, 560 F.3d at
711; see also Kristofek I, 712 F.3d at 986-87 (“We pause to stress that nothing in the
above discussion should be construed as establishing new law.”); Sousa v. Roque,
578 F.3d 164, 173-74 (2d Cir. 2009) (“To the extent that our precedents have been
less than clear, we reaffirm today . . . a speaker’s motive is not dispositive in
determining whether his or her speech addresses a matter of public concern.”). In
addition, the Court concludes on the facts as alleged that the law was clearly

28

established that the procedures afforded by Defendants prior to and after Plaintiff’s
termination were insufficient to satisfy the requirements of the Due Process Clause
of the Fourteenth Amendment. See Mathews, 424 U.S. 319; Loudermill, 470 U.S.
538; Head, 225 F.3d 794. Thus, Defendant Haney’s motion to dismiss the individual
capacity claims is denied.
IV.

Motion to Strike
Defendants’ final argument is that certain paragraphs of the complaint

should be stricken pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.
The principles applicable to a motion to strike are set out in Judge St. Eve’s opinion
in Callahan v. Aldridge, 2010 WL 3909482 (N.D. Ill. Oct. 1, 2010):
Rule 12(f) provides that a district court “may strike from a
pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.” Delta
Consulting Group, Inc. v. R. Randle Constr., Inc., 554 F.3d
1133, 1141 (7th Cir. 2009) (quoting Fed. R. Civ. P. 12(f)).
Motions to strike pursuant to Rule 12(f) are disfavored,
see Williams v. Jader Fuel Co., 944 F.2d 1388, 1405-06
(7th Cir. 1991), and often squander judicial resources. Cf.
Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725,
728 (7th Cir. 2006) (Easterbrook, J.) (in chambers).
Motions to strike are appropriate, however, if they serve
to expedite litigation. See Heller Fin., Inc. v. Midwhey
Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989); see also
Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664
(7th Cir. 1992) (allegations may be stricken if matter
bears no possible relation to controversy). District courts
have considerable discretion to strike allegations under
Rule 12(f). See Delta, 554 F.3d at 1141-42. “The party
moving to strike has the burden of showing that the
challenged allegations are so unrelated to plaintiff’s claim
as to be devoid of merit, unworthy of consideration, and
unduly prejudicial.” E & J Gallo Winery v. Morand Bros.
Beverage Co., 247 F. Supp. 2d 979, 982 (N.D. Ill. 2003)
(citation and internal quotation omitted).
29

Id. at *1.
Defendants fail to make any argument as to why the allegations they single
out in their brief are “immaterial, impertinent, or scandalous.” The factual matters
asserted in those allegations appear to be relevant to the litigation. The fact that
the allegations may contain legal conclusions in addition to factual matters is not a
basis for striking them. Neither Plaintiff’s request for discovery, nor his references
to four individuals who are potential defendants not currently named in the
lawsuit, is prejudicial to Defendants. Plaintiff likely would be entitled to discovery
regarding those individuals’ role in the matters at issue regardless of whether their
names were mentioned in the complaint. To the extent that discovery is
inappropriate, a motion brought pursuant to Rule 26 or Rule 45 would be the
appropriate vehicle to present that issue. Finally, while Defendants are correct that
Plaintiff may not recover punitive damages from a public entity or a public official
sued in his official capacity, public officials sued in their individual capacity (such
as Defendant Haney) can be liable for punitive damages. See Smith v. Wade, 461
U.S. 30, 35 (1983). With this clarification, Plaintiff’s request for punitive damages in
his prayer for relief is not improper and thus will not be stricken. 12

Defendants also make the substantive argument that Plaintiff’s prayer to recover
punitive damages against Haney should be stricken because the complaint does not
adequately allege facts to support a claim that Haney acted with malice or evil
intent, or in callous disregard of Plaintiff’s federally protected rights. See R. 35 at 12.
The Court will not consider that argument, however, because it is made for the first
time in Defendants’ reply brief. See Narducci, 572 F.3d at 324. Moreover, the facts
alleged and construed most favorably to Plaintiff are sufficient to plausibly suggest
that Haney acted with at least callous disregard for Plaintiff’s First Amendment
12

30

CONCLUSION
For the forgoing reasons, Defendants’ Combined Motion To Dismiss
Plaintiff’s Amended Complaint And Motion To Strike Prayer For Relief, R. 28, is
granted insofar as the official capacity claims against Defendant Haney are
concerned. In all other respects, the Motion is denied.
ENTERED:
________________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: May 8, 2017

and Due Process rights. Whether Plaintiff’s punitive damages claim will survive
summary judgment is for a later day.
31