Seipler v. Cundiff et al

Filing 256

WRITTEN Opinion entered by the Honorable P. Michael Mahoney on 7/19/2011: Plaintiff's motion for leave to file a third amended complaint 216 is granted in part. Plaintiff has 7 days to file an amended complaint consistent with this order, and Defendants are given 14 days from the date of filing to respond. Plaintiff's motion to compel the deposition of Sheriff Nygren 243 is granted in part. Defendant is to produce Sheriff Nygren for up to 1 hour for a continued deposition consistent with this order.[For further details see order.] Notices mailed by Judicial staff.(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Frederick J. Kapala

CASE NUMBER

08 C 50257

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

P. Michael Mahoney
7/19/2011

Seipler vs. Cundiff, et al.

DOCKET ENTRY TEXT:

Plaintiff’s motion for leave to file a third amended complaint [216] is granted in part. Plaintiff has 7 days to
file an amended complaint consistent with this order, and Defendants are given 14 days from the date of
filing to respond. Plaintiff’s motion to compel the deposition of Sheriff Nygren [243] is granted in part.
Defendant is to produce Sheriff Nygren for up to 1 hour for a continued deposition consistent with this order.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Plaintiff filed this case based on a theory that he was discriminated and retaliated against because of
his protests to his employer, the McHenry County Sheriff’s Department. Plaintiff allegedly observed and
complained about racial profiling. He believes he was subsequently retaliated against and terminated
because he objected. The parties to this matter have a number of discovery motions pending before the court.
This case has endured a lengthy discovery process, and, presumably, these motions were inspired by
approaching discovery deadlines. The most significant recent discovery event was that Defendants have
tendered a copy of an internal investigation into racial profiling to Plaintiff. Right after this disclosure,
Plaintiff filed a motion for leave to file a third amended complaint, and a motion to compel one additional
hour of deposition testimony from Sheriff Nygren.
Plaintiff’s motion to file a third amended complaint seeks to add counts and/or factual allegations,
which are summarized as follows: (1) that Defendants terminated Plaintiff to allow for the continued practice
of racial profiling in order to increase revenue; (2) that two other deputy sheriffs were harassed and retaliated
against during the course of this litigation, thus bolstering Plaintiff’s “code of silence” theory; (3) that
Defendants have continued to harass Plaintiff during the course of this litigation, creating an additional First
Amendment retaliation claim; (4) that another motive for Defendants’ retaliation against Plaintiff is to
enforce its “code of silence” among employees; and (5) that Sheriff Nygren was a final policymaker with
regard to the racial profiling investigations, including the recently disclosed investigation, which would
support a new Monell claim based on “final policymaker” liability. Plaintiff argues that the above facts and
claims would help “establish the motivation of Defendants to prevent exposure of and investigation into
widespread racial profiling” and would prove either “wide-spread practice” or “final policymaker” theories
under a Monell theory of liability.

Rule 15 of the Federal Rules of Civil Procedure instructs that courts should freely give leave for a
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party to amend pleadings when justice so requires. Fed. R. Civ. P. 15(a). Apparent or declared reasons for a
court to deny a motion for leave to amend include undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of the amendment, or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182
(1962). The decision is within the discretion of the court, and the court may find that the interests of justice
are best served by denying such a motion where the above factors outweigh the general policy behind Rule
15 of freely granting leave to amend. Jones v. Hamelman, 869 F.2d 1023, 1027-28 (7th Cir. 1989).
This case was filed on November 18, 2008. The parties agreed in their case management order
entered by the court on March 27, 2009 that amended pleadings would be due by April 30, 2009. Plaintiff
timely filed a second amended complaint on March 23, 2009, and the district court upheld Plaintiff’s second
amended complaint in its entirety when it denied Defendants’ motion to dismiss on December 14, 2009. The
parties have been engaged in discovery based on Plaintiff’s second amended complaint for over two years
and the fact discovery cut-off date has been extended on at least twelve occasions. The most recent fact
discovery cut-off date is set at August 31, 2011.
Much of the information Plaintiff seeks to add to his pleadings is not new to this case. The claim
relating to Defendant’s continued retaliation against Plaintiff through the release of a police record were
raised by a motion for a rule to show cause on October 5, 2010. The allegations concerning the harassment
of other officers were brought before the court on October 20, 2010 as Plaintiff articulated his “code of
silence” theory. On the same October 20, 2010 date, counsel for both parties agreed that a Monell claim
based on the “code of silence” theory existed in Plaintiff’s second amended complaint. The allegations of
retaliation against Deputy Sheriffs Salgado and Sanders were revealed during Deputy Milliman’s deposition
on November 23, 2010. On December 15, 2010, Plaintiff’s counsel articulated to the court an extensive
theory as to how Defendants benefit from various racial profiling practices. Other than the internal
investigation report, the parties were aware of the information Plaintiff now wishes to include in his third
amended complaint at least six months prior to Plaintiff seeking leave to amend. Because this motion is now
before the court at the end of the discovery process, the court will look critically at whether the proposed
amendments in Plaintiff’s third amended complaint are necessary to preserve distinct claims, or whether they
are unnecessary pleadings with the potential to further delay this case.
Plaintiff’s complaint need only contain a short and plain statement of the claim showing that the
pleader is entitled to relief. Fed. R. Civ. P. 8(a). Rule 8 does not require “detailed factual allegations,”
though the complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (1957); Bonte v. U.S. Bank, N.A.,
624 F.3d 461, 463 (7th Cir. 2010) (quoting Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009)).
Plaintiff has already pled “enough details about the subject-matter of the case to present a story that holds
together.” Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). The District Court found that
Plaintiff’s second amended complaint satisfied the standards under Iqbal and Twombly. The question then
becomes whether Plaintiff’s proposed amendments are unnecessary factual allegations in support of
Plaintiff’s existing claims, or new and distinct claims arising out of new information. See Kasak v. Village of
Bedford Park, 552 F.Supp.2d 787, 793-94 (7th Cir. 2008) (Where an amended complaint seeks to add an
entirely new claim that the movant would otherwise be unable to pursue, there may be reason to allow the
amendment).
Plaintiff alleges new reasons why Defendants would have wanted to retaliate against him, including
that Defendants benefitted financially from racial profiling and wanted to enforce a “code of silence” so that
racial profiling could continue within the Sheriff’s Department. These reasons do not appear to lend
themselves to new or distinct claims. Rather, they are factual assertions that might support the retaliation

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claims contained in Plaintiff’s second amended complaint. The second amended complaint already contains
two counts of retaliation, and a count of conspiracy. The facts alleged in the second amended complaint
reference a “code of silence” and describe how Plaintiff observed instances of racial profiling. The
additional factual allegations Plaintiff now wishes to incorporate into his pleadings are either relevant and
will be allowed into evidence by the trial judge, or are not relevant and will be excluded. Amending the
complaint to add the above factual material is not helpful at this stage.
The same is true of the proposed amendments regarding Deputy Sheriffs Salgado and Sanders. As the
court has repeatedly stated throughout the discovery process, Plaintiff does not need to prove the extent to
which racial profiling existed or how the alleged “code of silence” was enforced against other officers.
Plaintiff’s allegations, and his path to a plausible claim for relief, are based on his complaints about the
Defendants’ conduct and the retaliation that resulted therefrom. The information relating to Deputies
Salgado and Sanders may or may not be deemed relevant for the purposes of a Rule 56 motion or at trial in
this case. These other deputies may even wish to pursue their own claims of retaliation. However, allowing
Plaintiff to incorporate these allegations into an amended complaint at this stage of litigation is not helpful.
As to the proposed claim of continued retaliation against Plaintiff throughout this litigation, this
information does appear as a new and distinct claim in Plaintiff’s proposed amended complaint. The
proposed amendment alleges sufficient facts to present a claim for relief, and the information could not have
been contained in Plaintiff’s previous complaint because it has arisen since the filing of his second amended
complaint. The court will allow Plaintiff to amend his complaint only as to the allegations of continuing
retaliation against Plaintiff during this litigation. However, this information is not new to the parties and
should not require further discovery. Plaintiff raised the issue of continued harassment through the
defendants’ dissemination of a private police report in a motion for a rule to show cause on October 5, 2010.
The parties have had knowledge of this issue for at least eight months, and both parties have already explored
this issue in relation to Plaintiff’s motion.
As to the evidence related to internal investigation report, Plaintiff argues that Sheriff Nygren’s
alleged endorsement of the report creates a new Monell theory based on Sheriff Nygren being a “final
policymaker.” The “final policymaker” theory is a method of proving a Monell claim, and all parties agree
that a Monell claim exists in Plaintiff’s second amended complaint. However, the Seventh Circuit has
indicated that a Plaintiff must first allege that a defendant is a final policymaker before a court can proceed to
the question of whether a single act or decision of that defendant constituted a municipal policy. McGreal v.
Ostrov, 368 F.3d 657, 685 (7th Cir. 2004) (citing Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728,
735 (7th Cir. 1994)). Thus, Plaintiff’s proposed “final policymaker” Monell claim relating to Sheriff
Nygren’s actions may create a standalone claim with pleading requirements beyond those of his current
Monell allegation. For this reason, the court will allow Plaintiff leave to amend his complaint as to the “final
policymaker” claim.
In addition to seeking leave to amend his complaint to add a “final policymaker” claim, Plaintiff has
filed a motion to compel the deposition of Sheriff Nygren for up to two hours concerning the McHenry
County Sheriff Department’s internal investigation into racial profiling. The investigation report suggests
that no evidence of racial profiling was uncovered by the investigation. The report also addresses and
explains the mis-marking of racial profiling information on tickets issued by Sheriff’s Deputies, an issue
raised repeatedly during this litigation. Defendants maintain that Sheriff Nygren did not author, conduct,
direct, or supervise any of the internal investigation, nor did he have any personal or unique knowledge about
the investigation. Nevertheless, Sheriff Nygren’s name appears on the report, he approved the report in his
official capacity, and he produced the report to the media. The report is essentially a denial of some of the
allegations in Plaintiff’s complaint. Plaintiff is entitled to inquire about Sheriff Nygren’s knowledge of the

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findings in the report as they relate to the policies or customs among the employees of the McHenry County
Sheriff’s Department. Based on this new information, the court finds that Plaintiff’s request is reasonably
calculated to lead to the discovery of admissible evidence. Defendant is to produce Sheriff Nygren at a
reasonable time and location for up to one hour for a re-convened deposition concerning the report and any
public statements made in regard to the report.
In summary, Plaintiff’s motion to amend his complaint is denied as to the facts relating to the newly
discovered motivations for Defendants’ racial profiling. The motion is also denied as to the information
relating to Deputies Salgado and Sanders. The court will allow Plaintiff to amend his complaint to add
claims relating to the continued retaliation against Plaintiff and the “final policymaker” Monell theory based
on the newly released internal investigation report. Aside from the one hour continued deposition of Sheriff
Nygren, the court will not be inclined to allow any further discovery as to the additional claims. Both parties
have been apprised of these claims and should be prepared to move forward with this case. Plaintiff has 7
days to file an amended complaint consistent with this order, and Defendant is given 14 days to respond.

Courtroom Deputy

08C50257 Seipler vs. Cundiff, et al.

BTJ

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