Hoaks v. Benton County Sheriff's Department et al
Filing
38
OPINION AND ORDER: Court GRANTS IN PART AND DENIES IN PART 31 Motion for Summary Judgment. Clerk to DISMISS the claim for damages against Defendant Munson in his individual capacity WITH PREJUDICE. Signed by Judge Rudy Lozano on 1/30/2018. (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
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RUSSELL HOAKS,
Plaintiff,
vs.
BENTON COUNTY SHERIFF’S
DEPARTMENT, and DONALD MUNSON,
in his individual capacity,
Defendants.
NO. 4:15-CV-18
OPINION AND ORDER
This matter is before the Court on Defendants’ Motion for
Summary Judgment, filed on February 21, 2017 (DE #31).
For the
reasons set forth below, the motion is GRANTED IN PART AND DENIED
IN PART.
The Clerk is hereby ORDERED to DISMISS the claim for
damages against Defendant Munson in his individual capacity WITH
PREJUDICE.
BACKGROUND
On March 5, 2015, Plaintiff Russell Hoaks (“Hoaks”) filed a
complaint
against
the
(“Sheriff’s
Department”)
Munson”
“Munson”)
or
in
Benton
and
his
County
Sheriff
Donald
individual
1
Sheriff’s
Munson
capacity
Department
(“Sheriff
(together,
“Defendants”).
Munson
Sheriff’s Department.
was
a
correctional
officer
with
In 2014, both Munson and Hoaks ran for
sheriff on the Republican ticket in the primary election.
lost to Munson.
the
Hoaks
Munson went on to win the general election in
November and, on his first day in office, he terminated Hoaks.
Hoaks filed this 42 U.S.C. § 1983 action alleging that he was
terminated in violation of the First Amendment.
Defendants have filed a motion for summary judgment claiming
there are no genuine issues of material fact and they are entitled
to judgment as a matter of law.
Defendants argue that Hoaks held
a policymaking position and his termination therefore did not
violate the First Amendment.
They further argue that he is unable
to produce evidence that his termination was motivated by political
activity, and that they had legitimate non-political reasons for
terminating
Hoaks.
Additionally,
Defendants
argue
that
the
Sheriff’s Department must be dismissed because there is no basis
for municipal liability under Monell.
Finally, Sheriff Munson
argues that he is entitled to qualified immunity.
The instant
motion is fully briefed and ripe for adjudication.
DISCUSSION
Summary judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
2
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every
dispute
between
the
parties
makes
summary
Not
judgment
inappropriate; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
Id.
In determining whether
summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
Ogden v.
“However, our favor
toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”
Fitzgerald
v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citation omitted).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the evidence she
contends will prove her case.”
Goodman v. Nat’l Sec. Agency,
Inc., 621 F.3d 651, 654 (7th Cir. 2010).
If the nonmoving party
fails to establish the existence of an essential element on which
he or she bears the burden of proof at trial, summary judgment is
proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
3
Facts
Although no motions to strike have been filed, each party has
argued that certain evidence must be excluded as hearsay.
It is
the function of the Court, with or without a motion to strike, to
carefully review the evidence and to eliminate from consideration
any
argument,
conclusions,
and
assertions
unsupported
by
the
documented evidence of record offered in support of the statement.
See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc.,
No. 04 C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D. Ill.
Apr. 10, 2006); Tibbetts v. RadioShack Corp., No. 03 C 2249, 2004
WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor,
324
F.Supp.2d
917,
920
n.1
(N.D.
Ind.
2004).
Individual
objections will not be ruled upon, but the Court notes that, in
ruling on a motion for summary judgment, it only considers evidence
that would be admissible at trial.
See Woods v. City of Chicago,
234 F.3d 979, 988 (7th Cir. 2000).
Hoaks, a Republican, began working for the Benton County
Sheriff’s Department as a correctional officer in 2005.
at 7; Ex. 2 ¶2.)
(Ex. A
He was employed under two Republican sheriffs:
Sheriff Winchester and Sheriff Pritchett.
(Ex. A at 9; Ex. 2 ¶1.)
The written description of Hoaks’ position indicates that the
duties of a corrections officer include but are not limited to the
4
following:
admitting
and
discharging
inmates,
recording
jail
activities, patrolling the jail, verifying safety and security in
the
jail,
making
written
reports
of
events,
inspecting
jail
property, dispensing medication, maintaining supervision of the
inmates, and enforcing rules and regulations in accordance with
the standard operating procedures (“SOPs”).
(Ex. 5.)
testified
directly
that
correctional
Sheriff. (Ex. A at 11-12.)
officers
report
Hoaks
to
the
Although this fact is not material to
the outcome of this case, the job description, however, states
that a correctional officer is directly accountable to the Jail
Commander, followed by the Sheriff.
(Ex. 5.)
Munson was the Jail
Commander prior to his election to the position of sheriff.
(Ex.
2, ¶2.)
Hoaks testified that correctional officers do what they see
fit and what is necessary during their shifts, be it breaking up
a fight or passing out envelopes and paper.
(Ex. A at 40.)
When
Hoaks came to work, he “would take care of what was needed to be
taken care of,” and the sheriff only provided direction if they
had transports or court.
(Id.)
It was only a matter of the
sheriff calling them to arrange transport for the inmates.
(Id.
at 40-41.)
Hoaks won an election to the Oxford Town Council (“Council”)
in 2010, and he joined the Council in 2011.
5
(Id. at 10-11.)
He
has been on the Council since 2011.
(Id. at 10.)
the Council with Munson from 2012-2014.
(Ex B at 23.)
decided to run for the position of sheriff in 2014.
Ex. 2 at ¶2.)
He served on
Hoaks
(Ex. A at 11;
Hoaks, Munson, Ernie Winchester (“Winchester”), and
Matt Shuee (“Shuee”) ran for sheriff in the Republican primary in
2014.
(Ex. B at 19; Ex. 2 ¶2.)
only
candidate
Department.
Change.”
who
worked
(Ex. 2, ¶4.)
Other than Munson, Hoaks was the
at
the
Benton
County
Sheriff’s
Munson’s campaign slogan was “Time for
(Ex. 6 at 20.)
Hoaks’ working relationship with Munson was very cordial and
there was nothing out of the ordinary when they saw each other.
(Ex. A at 41.)
Although Munson won the election, this relationship
did not change after the election.
(Ex. A at 41; Ex. 2, ¶4.)
Hoaks and Munson did not discuss the election at work.
23.)
(Ex. B at
The only discussion was the day before or day of the election
when the two wished each other good luck.
(Id.)
Shuee’s wife,
Mary, still works for the Benton County Sheriff’s Department, and
Munson promoted her to matron over the kitchen.
(Id. at 19-20.)
The election did not enter the work arena because they kept it
clean.
(Id. at 91).
They were able to compartmentalize where
they might be at odds, and their job was their job.
(Id.)
Munson decided to run for the position of sheriff because
that was the only way to have any control over change in the
6
direction the Sheriff’s Department was going.
(Id. at 20.)
He
believed the Sheriff’s Department needed a change in direction.
(Id.)
Munson won fifty percent of the primary vote, Winchester
won twenty-three percent, Hoaks won seventeen percent, and Shuee
won ten to eleven percent of the vote.
(Id. at 20-21.)
Munson
believed that Hoaks was technically qualified under the law to run
for Sheriff, but he does not think Hoaks would have done a good
job as Sheriff.
served
under
problematic.
the
(Id. at 28.)
“good
ole
(Id. at 29.)
Munson believed Hoaks would have
boy
system,”
which
he
viewed
as
Former Sheriff Pritchett believed in
trying to appease the inmates the best he could.
(Ex. C at 38.)
It did not bother Munson that Hoaks ran, as he did not believe
Hoaks was a threat to his campaign.
(Ex. B at 29.)
Nonetheless,
Munson made comments to Sheriff Pritchett such as “why does he
think he’s got to run” during the primary season.
23.)
Furthermore,
Timothy
Piercy
(Ex. 3. at 22-
(“Piercy”)
overheard
a
conversion in May of 2014 between Munson and Bruce Buchannan, the
Lead Chair of the Republican Party in Benton County.
5.)
(Ex. 7 ¶¶3-
In that conversation, Munson indicated that, as sheriff, he
would “clean house” and that Hoaks would be the first to go.
(Id.
¶6.)
Hoaks was aware that an employee previously received a threeday suspension for passing contraband.
7
(Ex. A at 10.)
The
employee
passed
a
cell
phone
and
cigarettes.
(Id.)
Hoaks
believes sometimes he needs to make an inmate think he got away
with something because if he tells them no he will have a mess
from them banging their head on the wall.
(Id. at 34-35.)
According to Hoaks, “[i]f giving him two Tylenol and telling him
to
not
flash
the
camera
corrections officer 101.”
keeps
him
on
the
down
low,
that’s
(Id. at 35.)
Munson believes that jailers and jail commanders are there to
maintain the health and well-being of inmates, not to be friends.
(Ex. B at 30.)
He believed Hoaks decided he needed to be friends
with the inmates.
that basic level.
(Id.)
They have personality differences on
(Id.)
On October 25, 2014, inmates Cody Adams (“Adams”) and Greg
Fultz (“Fultz”) were in a physical altercation.
Adams was injured and transported by Munson.
(Id. at 31.)
(Ex. 2 ¶8.)
Fultz
injured his left hand and was taken to Clarian Hospital.
(Id.)
Upon his return to the jail, Fultz was placed in isolation by
Munson.
(Id. ¶9.)
to make phone calls.
While in isolation, inmates are not permitted
(Id.)
Hoaks explained that, the following morning, Fultz informed
him that his girlfriend was scheduled to visit that afternoon and
was coming from Lafayette.
(Ex. 2 ¶9.)
To save her the trouble
of traveling to the jail when she would not be able to see Fultz,
8
Hoaks allowed Fultz to use the jail phone.
Hoaks,
this
was
something
correctional officers.
that
(Id.)
(Id.)
occurred
According to
regularly
by
the
Hoaks asserts that Fultz’s injury
required medical attention and Hoaks allowed Fultz to call his
girlfriend to let her know and to see if she could arrange care.
(Id.)
During the phone call, Fultz told his girlfriend that he
was not supposed to make the call but that Hoaks had let him, so
after the call, Hoaks told Fultz that he was “throwing him under
the bus.”
(Ex. 1 at 34; Ex. 2, ¶9.)
Hoaks claims that said this
to allow Fultz to think he had one-up on him.
(Ex. 2, ¶9.)
Hoaks
was aware they were being recorded and did not believe he was
violating any rules.
(Id.)
On October 29, 2014, Munson learned from Hoaks’ partner, Lou
Villinski (“Villinski”), that Hoaks provided Fultz improper phone
privileges on October 26, 2014.
(Ex. B at 35.)
Munson reviewed
the video footage regarding this incident on October 31, 2014.
(Id. at 36.)
Fultz told Hoaks that he wanted to use the phone,
and Hoaks allowed him to use the admin phone instead of making him
use a calling card on the inmate phone.
(Id. at 36.)
Munson
believes that, during and before the phone call, Hoaks coached
Fultz to tell his girlfriend to call the jail commander and Sheriff
to put pressure on them to get Fultz out of jail in order to not
pay for his hand injury.
(Id. at 37.)
9
Fultz also told his
girlfriend that he was not supposed to make his phone call, but
Hoaks let him.
(Ex. A at 34.)
On November 4, 2014, Munson brought the matter to Sheriff
Pritchett’s attention.
(Ex. B at 38.)
Sheriff Pritchett did not
indicate an intention to discipline Hoaks for the phone call
incident, although Pritchett did indicate that he would take care
of it. (Id. at 39; Ex. 3 at 30.)
Munson concedes that Sheriff
Pritchett had no obligation to discuss any disciplinary matters
with
him.
(Id.
at
39-40.)
However,
he
believed
that,
if
Pritchett intended to discipline Hoaks, he would have discussed it
with him.
(Id.)
That is what occurred in the past.
(Id.)
Munson did not press the issue of discipline for Hoaks further
with Sheriff Pritchett.
(Id. at 40.)
Later that day, Munson spoke with Villinski again, and she
asked if Munson viewed the video.
(Id. at 41.)
Munson advised
that he reviewed the video about the phone call, and Villinski
asked about the pills Hoaks gave Fultz.
(Id.)
Munson was
previously unaware of a separate incident with pills, and Villinski
advised that the incident occurred around 10:00 a.m. on October
26, 2014.
(Id.)
She believed that Hoaks provided Fultz with
pills, but she did not think Fultz had anything prescribed.
(Id.)
The next day, Munson reviewed the video, and he observed Hoaks
in the nurse’s office digging around searching for something.
10
(Id.)
When Hoaks went to the cell, Fultz said something about
needing Norcos, and Hoaks handed him something and said to take
these four and don’t flash them in front of the camera.
42.)
There
was
nothing
that
the
jail
medical
prescribed Fultz for pain at that point.
prescribed ibuprofen until days later.
reviewed
the
medical
chart
to
make
provider
(Id.)
(Id. at 43.)
sure
there
had
He was not
had
medication prescribed or logged for October 26, 2014.
44; Ex. 2 at ¶10.)
(Id. at
Munson
been
no
(Ex. B at
Anker reviewed her documentation, which
reflected that no medical slip had been turned in.
(Ex. D at 11.)
The medical chart does not reflect an order for Ibuprofen until
October 29, 2014.
(Ex. E.)
Hoaks admitted that at the time he provided the medication
and phone privileges to Fultz, he was aware that doing so may
violate the department policies.
(Ex. A at 12-13.)
Correctional
officers are forbidden from passing medication to inmates without
permission.
(Ex. C at 6.)
According to Renee Anker (“Anker”),
medication provided to inmates must be cleared by medical and
written on the chart, or it should not be given.
(Ex. D at 10.)
At some point in 2013, the policy changed to allow correctional
officers
approval.
to
provide
Tylenol
and
ibuprofen
(Ex. 2 at ¶10; Ex. 3 at 8-9.)
still supposed to be logged.
without
medical
The medications were
(Ex. 2 at ¶10; Ex. 3 at 8-9.)
11
Approximately three or four times a year, a correctional officer
would forget to log medication given to an inmate.
18; Ex. 4 at 26-27.)
(Ex. 8 at 17-
Munson’s mother, Sharon Vanderwall, was one
of the employees that forgot to log medication.
Shuee also forgot to log medication.
(Id.)
history of failing to log medications.
(Id.)
Hoaks did not have a
(Id. at 27.)
In Sheriff
Pritchett’s words, “you don’t fire somebody for that.”
27.)
Marylou
(Id. at
Ibuprofen and Tylenol can be purchased by prisoners from the
commissary.
(Ex. 8 at 6-7.)
At the time the events of October 26, 2014, were revealed to
Munson, he had already won the general election, and he knew that
he would become Sheriff on January 1, 2015.
(Ex. B at 44.)
Based
on Sheriff Pritchett’s reluctance to discipline Hoaks for obvious
signs of fraternization and trafficking, Munson decided in early
November to terminate Hoaks once he became Sheriff.
46.)
Munson
termination.
considered
(Id. at 91.)
Hoaks’
actions
to
be
(Id. at 44worthy
of
The series of incidents combined made
it easier to make the determination that Hoaks should be terminated
because it showed a pattern of behavior.
(Id. at 92.)
Munson had
only discussed the phone incident with Sheriff Pritchett, and he
did not reconvene with Sheriff Pritchett after learning about the
pills because he decided to take care of the issue when he became
Sheriff in January.
(Id. at 46.)
12
Munson believed that Hoaks had been doing a lot of things
with inmates that he should not be doing besides the events of
October 26, 2014.
(Id.)
Munson believed Hoaks was engaging in
improper conversations and providing extra privileges and extra
information.
(Id. at 47.)
To Munson, it went back to his campaign
slogan that it was time for change.
(Id.)
Munson did not have
proof of Hoaks’ misconduct prior to October 26, 2014.
49.)
(Id. at
According to Munson, Hoaks did whatever he wanted to do.
(Id. at 54.)
By fraternizing, Munson meant that Hoaks was being
friends with the inmates.
(Id.)
According to Munson, he was
giving them favors and letting them do things he should not be
letting them do.
(Id.)
He was, in Munson’s opinion, doing things
not normal to his job based on his feelings about the inmates.
(Id.)
He has no idea what medication Hoaks actually provided
Fultz, but he gave him pills in order to do something nice as a
friend, not as a jailer.
(Id. at 55.)
In Munson’s estimation,
Hoaks’ conduct was harmful to the safety and security of the jail.
(Id. at 99.)
When inmates become too close with correctional
officers, they try to gain information about inmate movement which
can be used to coordinate an escape.
(Id. at 98.)
According to former Sheriff Pritchett, “just about every
jailer
back
there,
including
[Munson’s]
inmates to use the jail phone.
13
own
mother”
(Ex. 3 at 28-29.)
allowed
While this
violated the jail’s policies, Sheriff Pritchett did not view this
as an offense worthy of discipline, and he did not discipline Hoaks
for allowing Fultz to use the jail phone.
Sheriff
Munson
and
Deputy
Sallee
(Id.)
delivered
a
notice
of
termination to Hoaks at his home on the first day Munson took
office.
(Ex. 6 at 51-52.)
The notice informed Hoaks that he was
being terminated for policy violations.
indicates
that
confidential
Hoaks
information
is
being
and
inmate on October 26, 2014.
(Ex. F.)
discharged
for
The notice
disclosing
fraternizing/conspiring
(Id.)
with
an
The attached report explains
that Hoaks was being terminated based on the phone call and the
improper providing of medication.
(Id.)
The notice specifically
notes that Hoaks’ familiarity with the inmates represents a clear
risk to the department.
(Id.)
When Sheriff Munson arrived at
Hoaks’ home to deliver the notice, Hoaks saw that the notice
alleged “fraternization,” and, because of this allegation, he
asked if he was being arrested.
2, ¶13.)
(Ex. A at 37; Ex. B at 52; Ex.
Hoaks observed that the word fraternization with inmates
in a jail setting means you are playing with something you should
not be.
(Ex. A at 37.)
Prior to October 2014, Hoaks had not received any discipline.
(Ex. 2 at ¶3.)
On October 29, 2014, Sheriff Pritchett issued a
written reprimand.
(Id. ¶11; Ex. 4.)
14
The reprimand was issued
solely because Hoaks failed to log the medication, not because he
provided unauthorized medication.
(Ex. 3 at 26; Ex. 4.)
The
reprimand stated:
On October 28, 2014 the Benton County Jail Nurse (Renee)
reported to me that the medication was not being logged
on inmate’s medical log. Renee advised that Rusty Hoaks
had failed to log ibuprofen that he gave to Greg Fultz.
On October 29, 2014 I had a meeting in my office with
correctional officer Rusty Hoaks. This meeting was of
two fold. First I wanted a review of the fight that had
taken place between inmates Greg Fultz and Cody Adams.
CO Hoaks reported that the fight had broken out between
the two and Adams had required several switches [sic].
Fultz appeared to have broken his hand. . . .
I asked Hoaks if he had given Fultz any medication. Hoaks
advised that he had given Fultz two ibuprofen in the
morning and two again that evening according to medical
protocol. I then asked Hoaks why he didn’t log the
medication in Fultz’s medical sheet. Hoaks stated that
it was his oversight.
Hoaks went on to explain that he had let Fultz use the
jail’s phone. Hoaks advised that Fultz could not get
through on the inmate phones to call his girlfriend.
Hoaks advised that Fultz wanted to be ORed so he could
have his hand looked at sooner. Hoaks advised Fultz that
the Jail Commander would have to take care of that. Hoaks
advised Fultz to have his girlfriend call the Jail
Commander in the morning and see what he could do about
getting him Ored. Since Fultz couldn’t get through on
the inmates phone, he let Fultz use the jail phone.
(Ex. 4.)
Thus, at the time of his termination, Hoaks had already been
disciplined for his conduct by then Sheriff Pritchett.
11; Ex. 4.)
(Ex. 3 at
Munson never asked Hoaks about the Tylenol incident.
15
(Ex. 2, ¶11.)
Hoaks has no knowledge as to whether or not the
statement that he was terminated for policy violations is true.
(Ex. A at 61.)
Hoaks has told people that he was terminated
because of a change in sheriff and that he was let go by the new
sheriff for reasons he did not understand.
(Id. at 48-49.)
Hoaks
never heard comments from Munson regarding an intent to terminate
him.
(Id. at 26.)
Hoaks was never present when it appeared
Munson was talking about him to someone else.
(Id.)
ANALYSIS
Position Subject to First Amendment
Defendants argue that Hoaks’ First Amendment claim fails
because his position was exempt from the First Amendment’s ban on
patronage dismissals.
Generally, “public employees may not be
made to suffer adverse job actions because of their political
beliefs.”
Carlson v. Gorecki, 374 F.3d 461, 464 (7th Cir. 2004)
(citations omitted).
The Supreme Court has held in the name of freedom of
speech that a public official cannot be fired on the
basis of his political affiliation unless the nature of
his job makes political loyalty a valid qualification;
this could be either because the job involves the making
of policy and thus the exercise of political judgment or
the provision of political advice to the elected
superior, or because it is a job (such as speechwriting)
that gives the holder access to his political superiors’
confidential, politically sensitive thoughts.
16
Riley v. Blagojevich, 425 F.3d 357, 359 (7th Cir. 2005) (citing
Elrod v. Burns, 427 U.S. 347, 367-68 (1976); Branti v. Finkel, 445
U.S. 507, 518 (1980)).
is
an
appropriate
effective
In other words, “[p]olitical affiliation
criterion
operation
of
for
public
government
employment
would
be
when
compromised
the
by
requiring a public official to retain a potential political enemy
in a position of responsibility.”
Pleva v. Norquist, 195 F.3d
905, 912 (7th Cir. 1999) (citation omitted).
Ultimately, the
defendant bears the burden of establishing that a plaintiff’s
position falls within the exception to the general prohibition on
patronage dismissals.
Kiddy-Brown v. Blagojevich, 408 F.3d 346,
354 (7th Cir. 2005) (citation omitted).
The Supreme Court first articulated the test for whether
political affiliation is an appropriate requirement for employment
as
whether
policymaking
However,
a
particular
position
responsibilities.
the
Court
circumstances,
a
has
See
since
position
involved
Elrod,
recognized
may
be
confidential
427
that
U.S.
and
at
360.
“[u]nder
some
appropriately
considered
political even though it is neither confidential nor policymaking
in character,” and that “party affiliation is not necessarily
relevant to every policymaking or confidential position.”
445 U.S. at 518.
Branti,
Thus, “the ultimate inquiry is not whether the
label ‘policymaker’ or ‘confidential’ fits a particular position;
17
rather,
the
question
is
whether
the
hiring
authority
can
demonstrate that party affiliation is an appropriate requirement
for the effective performance of the public office involved.”
Id.
The test for whether a position is protected is “whether the
position held by the individual authorizes, either directly or
indirectly, meaningful input into government decisionmaking on
issues where there is room for principled disagreement on goals or
their implementation.”
(7th Cir. 1981).
Nekolny v. Painter, 653 F.2d 1164, 1170
Even “if an officeholder performs fewer or less
important functions than usually attend his position, he may still
be exempt from the prohibition against political terminations if
his
position
inherently
encompasses
tasks
that
render
his
political affiliation an appropriate prerequisite for effective
performance.”
Cir. 1985).
Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th
As this Court noted in Harney v. McDermott, No. 2:04-
cv-131, 2006 WL 1544389, at *7 (N.D. Ind. June 2, 2006), “[w]hile
the
law
is
difficulty.”
the
line
clear,
its
application
has
been
fraught
with
See also Riley, 425 F.3d at 359 (noting that drawing
between
protected
and
unprotected
positions
is
“inescapably arbitrary”); Nekolny, 653 F.2d at 1169 (finding the
question of whether an employee has policymaking powers “in many
cases presents a difficult factual question”).
The question of
whether a position is exempted from the First Amendment patronage
18
dismissal ban is typically a factual one that should ordinarily be
left for a jury to determine.
Pleva, 195 F.3d at 912.
Only in
limited cases where the duties and responsibilities of a particular
position are clearly outlined in an official job description may
a court make such a determination as a matter of law. Id.
Defendants rely on two cases in support of their argument
that Hoaks held a policymaking position: Flenner v. Sheahan, 107
F.3d 459 (7th Cir. 1997), and Upton v. Thompson, 930 F.2d 1209
(7th Cir. 1991).
whether
In Flenner, the Seventh Circuit considered
correctional
Amendment.
officers
107 F.3d 459.
were
protected
by
the
First
The district court had found that the
sheriff had qualified immunity for his decision to terminate two
correctional officers for patronage reasons.
The Seventh Circuit
reversed, noting:
According
to
appellants,
they
received
daily
instructions from their immediate supervisors as to the
handling, care and supervision of the prisoners to whom
they were assigned.
Accepting these allegations as
true, it would appear that appellants are among those
government workers who are clearly and completely
protected from patronage firing.
Dismissal of
appellants’ case on the pleadings was therefore
inappropriate.
Of course, on remand, the district court may be presented
with evidence that the position of correctional officer
involves more autonomy or discretion than is alleged in
appellants’ complaint.
Once the factual record is
developed, the district court may be required to revisit
the qualified immunity issue.
19
Id. at 465 (internal citations and quotation marks omitted).
In Upton v. Thompson, the Seventh Circuit determined that two
sheriffs were entitled to qualified immunity in their decision to
terminate deputy sheriffs.
930 F.2d 1209 (7th Cir. 1991).
Seventh Circuit noted the following:
Given the dependency of the sheriff (and his political
survival) on his deputies' job performance, it is
understandable why a sheriff might believe that party
loyalty is an appropriate consideration for a deputy
sheriff. This conclusion is especially true in the case
of Jack Thulen, who was the outgoing sheriff's brother
and chief deputy in a very small department for many
years. Thulen took a high profile in a hotly contested
campaign which involved critical policy disputes
relating to the proper operation of the Sheriff's
Department. Thulen's political involvement extended
beyond mere party affiliation; it included active
opposition to Marvin Bausman, who became the newly
elected Sheriff. To the voting public this could make
Thulen appear hostile and unreliable in carrying out the
policies of the new Sheriff. Deputy Upton, while
apparently not as active (or at least as high profile)
in campaign events as Jack Thulen, had certainly made
his opposition to candidate (later Sheriff) Thompson
well known.
In addition, Upton's leadership of a
policemen's union which opposed Thompson's candidacy
made it questionable whether he could execute Thompson's
policies. Even though Thompson's department was larger,
thus diluting the potential disruptiveness of one
deputy's opposing political alignment, Tomczak [v. City
of Chicago, 765 F.2d 633 (7th Cir. 1985),] and Livas [v.
Petka, 711 F.2d 798 (7th Cir. 1983),] would still provide
a reasonable legal foundation for the sheriff to
terminate a deputy whom he concluded would interfere in
carrying out his stated policies based upon that
deputy's prior political activity.
Thus it was not
clearly established at the time of Upton's and Thulen's
discharges that deputy sheriffs were protected from
patronage firings under Elrod and Branti.
20
The
Id. at 1216.
Rather than support Defendants’ position, the Court believes
Flenner and Upton indicate that Hoaks’ position was not one that
authorized meaningful input into governmental decisions.
The
plaintiff-employees
and
in
Flenner
and
Upton
held
positions
responsibilities that differ from those held by Hoaks in the
present case.
Unlike those employees, the proffered evidence does
not demonstrate that Hoaks had “meaningful input into government
decisionmaking
on
issues
where
there
is
room
disagreement on goals or their implementation.”
at 1170.
for
principled
Nekolny, 653 F.2d
The Court does not believe that Hoaks’ status as a
correctional officer necessarily makes his position exempt from
the prohibition against patronage dismissals, nor is it aware of
any case law holding that any similar position is a per se
policymaker as a matter of law.
See Hadfield v. McDonough, 407
F.3d 11, 18 (1st Cir. 2005) (“[A]n employee is not protected merely
because
he
is
a
subordinate
within
his
own
office.
It
is
sufficient that an officeholder is responsible for implementing
policies that derive from partisan decisions made by others.”)
(quotation marks and internal citation omitted).
In Riley v. Blagojevich, the Governor of Illinois had fired
assistant wardens of Illinois state prisons who were “the top
officials in an Illinois prison below the warden himself.”
21
425
F.3d at 363.
The Seventh Circuit explained that “[i]n general,
employees who have merely ministerial duties - who really have
very
little
discretion
-
and
employees
whose
discretion
is
channeled by professional rather than political norms (a surgeon
often exercises judgment, but it is professional rather than
political
judgment),
policymakers.”
are
Id. at 360.
not
within
the
exception
for
Recognizing the uncertainty of the
case law in the Seventh Circuit, the Riley court concluded that
elected officials could rely on official written job descriptions
if the job description was reliable and authoritative.
Id. at
360-61.
In examining the position, duties, and responsibilities of
Benton County Jail corrections officers, the Court must view the
undisputed facts in the light most favorable to the nonmovant
because this case is before the Court on a motion for summary
judgment.
See Anderson, 477 U.S. at 255.
The written job
description for a corrections officer indicates that the officer’s
responsibilities included, but were not limited to, admitting and
discharging inmates, recording jail activities, patrolling the
jail, verifying safety and security in the jail, making written
reports
of
events,
inspecting
jail
property,
dispensing
medication, maintaining supervision of the inmates, and enforcing
rules and regulations in accordance with the SOPs.
22
(Ex. 5).
The
tasks that Hoaks has described as part of his job as corrections
officer are consistent with this job description.
Hoaks had no
power over employment decisions, did not have input into the
budget, and his actions were constrained by the SOPs.
See Kiddy-
Brown, 408 F.3d at 355 (applying Nekolny test to find that state
prison warden was not exempt from the general prohibition on
political patronage dismissals where she had no autonomous or
discretionary
authority,
did
not
participate
in
determining
policy, and her responsibilities were constrained by statutes,
regulations, and rules).
Defendants have put forth no evidence
that Hoaks had any input to policymaking or that his position
afforded him meaningful input to Government decision-making.
As
in Kiddy-Brown, Defendants have not carried their burden to show
that Hoaks is exempt from the general prohibition on political
patronage
dismissals,
and
have
not
presented
the
Court
with
evidence sufficient to allow it to conclude that Hoaks’ position
“involved the kind of policymaking duties that would make political
affiliation an appropriate requirement for the position.”
356.
Id. at
Therefore, the Court finds that a question of material fact
exists
as
to
whether
Hoaks’
position
as
Benton
County
Jail
corrections officer was exempt from the First Amendment’s ban on
patronage dismissals.
23
First Amendment Claim
Defendants
Amendment claim.
move
for
summary
judgment
on
Hoaks’
First
To make out a prima facie claim for a violation
of First Amendment rights, a public employee “must present evidence
that (1) his speech was constitutionally protected; (2) he suffered
a deprivation likely to deter free speech; and (3) his speech was
at
least
a
motivating
factor
in
the
employer’s
actions.”
Consolino v. Towne, 872 F.3d 825, 829 (7th Cir. 2017) (citations
omitted).
“[T]he
initial
burden
is
on
the
plaintiff
to
demonstrate that his conduct was constitutionally protected and
that his conduct was a substantial or motivating factor in the
defendant’s action against him.
The burden then shifts to the
defendant to show that it would have taken the same action even in
the absence of the protected conduct.”
Id. (citations omitted).
If the defendant is able to provide alternative explanations for
its actions, the burden shifts back to the plaintiff to show that
these explanations were pretextual.
McGreal v. Vill. of Orland
Park, 850 F.3d 308, 314 (7th Cir. 2017).
To show pretext and to
survive summary judgment, a plaintiff must “produce evidence upon
which a rational finder of fact could infer that the defendant[s’]
proffered reason[s] [are] lie[s].”
Id. (citation omitted).
The parties do not dispute that Hoaks’ running for the
position of sheriff was constitutionally protected conduct, or
24
that he suffered a deprivation likely to deter free speech.
Hoaks
must prove that running for the position against Munson was a
motivating factor in the Defendants’ decision to terminate him.
Hoaks relies on the suspicious timing of his termination - Munson’s
first day in office as sheriff - as evidence that that running for
sheriff against Munson was a motivating factor in the decision to
terminate him.
Hoaks also relies upon Piercy’s attestation that
in May 2014, he overheard a conversion in which Munson indicated
that, as sheriff, he would “clean house” and that Hoaks would be
the first to go.
(Ex. 7, ¶¶ 3-6.)
Defendants maintain that this
statement makes no reference to Hoaks’ political activity, and
that
the
term
“clean
house”
tends
to
refer
to
ridding
an
organization of problematic employees, which Munson believed Hoaks
to be.
Defendants note that Munson and Hoaks kept the election
clean, and that their working relationship was very cordial.
At
the summary judgment stage, the Court must consider the evidence
in the light most favorable to Hoaks.
The Court finds that a
reasonable trier of fact could conclude that Hoaks’ termination
politically motivated.
See, e.g., Foster v. Deluca, No. 04 C
5850, 2006 WL 1980197, at *6 (N.D. Ill. July 7, 2006) (holding
that
a
question
of
fact
remained
as
to
whether
plaintiff's
termination was politically motivated where he and other employees
25
who did not work on defendant’s campaign were fired shortly after
defendant took office).
Defendants
argue
that
summary
judgment
is
nevertheless
appropriate because they have a legitimate nonpolitical reason for
the decision to terminate Hoaks: Munson believed Hoaks to be a
danger to the safety and security of the jail.
Defendants proffer
undisputed evidence that Hoaks provided inmate Fultz with improper
phone privileges and medicine on October 26, 2014.
At the time
of this incident, Munson had been elected Sheriff, but had not yet
taken
office.
Munson
raised
the
incident
with
then-Sheriff
Pritchett, who told Munson he would take care of it.
Munson was
not aware that Pritchett issued a written reprimand to Hoaks for
the incident.
improper
Munson believed that Hoaks had also engaged in
conversations
and
provided
extra
privileges
and
information to inmates, but did not have proof of Hoaks’ misconduct
before the October 26, 2014 incident.
Before taking office,
Munson decided to terminate Hoaks’ employment based on what he
perceived to be Sheriff Pritchett’s reluctance to discipline Hoaks
for obvious signs of fraternization and trafficking.
Hoaks argues that Defendants’ explanation for his termination
is pretextual because Sheriff Pritchett disciplined him for the
October 26, 2014 incident before Munson took office.
However,
Hoaks makes no claim that Munson was aware of this discipline, and
26
therefore this argument “do[es] nothing to undermine the sincerity
of [Munson’s] reasons for firing him.”
Hoaks
contends
that
Munson’s
Massey, 457 F.3d at 719.
assertions
that
he
was
likely
responsible for trafficking a wide range of inappropriate items to
inmates within the jail and providing a variety of improper
privileges are speculative, unsubstantiated and unsupported by
evidence, and thus, should be disregarded by the Court.
Hoaks
also maintains that other correctional officers had engaged in
similar conduct (i.e., allowed inmates to use the telephone, or
forgot to log medication), and were not disciplined or terminated.
Hoaks notes that he had never been disciplined prior to this
incident.
When Munson terminated Hoaks on his first day as Sheriff, he
did not know that Hoaks had been disciplined for the October 26,
2014 incident.
However, then-Sheriff Pritchett’s discipline of
Hoaks indicates that lesser forms of discipline were available.
Moreover, the evidence suggests that other employees were not
disciplined
for
similar
misconduct.
Munson
insists
that
he
terminated Hoaks because he believed that Hoaks was a danger to
the safety and security of the jail.
“It is rarely appropriate
on summary judgment for a district court to make a finding on a
state of mind.”
McGreal v. Ostrov, 368 F.3d 657, 677 (7th Cir.
2004) (citation omitted); see Massey, 457 F.3d at 719 (noting “the
27
persuasiveness
of
an
employer’s
non-retaliatory
explanation
ordinarily is for the finder of fact to assess”); Venters v. City
of Delphi, 123 F.3d 956, 973 (7th Cir. 1997) (holding a court
should only grant summary judgment when it “can say without
reservation that a reasonable finder of fact would be compelled to
credit the employer's case on this point”).
Construing the
evidence in favor of Hoaks, a finder of fact could conclude that
Sheriff Munson rejected lesser discipline in favor of termination
because Hoaks had run against Munson, and that the proffered
reasons were not the actual motivation for the discharge.
Because
a genuine issue of material fact exists as to whether Munson’s
termination of Hoaks violated the First Amendment, Defendants’
motion summary judgment on Hoaks’ First Amendment claim is denied.
See Yahnke v. Kane Cty., Ill., 823 F.3d 1066, 1072 (7th Cir. 2016)
(reversing summary judgment where a fact finder could conclude
that sheriff rejected lesser sanctions in favor of termination
because plaintiff expressed a desire to run against the sheriff,
and that the proffered reasons were not the actual motivation for
the discharge).
Municipal Liability
Defendants argue that Hoaks’ claim against the Sheriff’s
Department must be dismissed because Hoaks has no evidence of any
procedure,
policy
or
practice
28
that
allegedly
caused
his
deprivation.
A
municipality
may
only
be
held
liable
for
constitutional violations caused by the municipality through its
own policy, practice, or custom.
Monell v. Dep't of Soc. Servs.
of the City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978).
To recover under Monell, a plaintiff must
establish that (1) he suffered a deprivation of a federal right;
(2) as a result of an express municipal policy, a widespread
custom,
or
a
deliberate
act
of
a
decision-maker
with
final
policymaking authority for the municipality; which (3) was the
proximate cause of his injury.
(7th Cir. 2014).
King v. Kramer, 763 F.3d 635, 649
Hoaks does not argue that liability attaches due
to a policy or custom.
Rather, he argues that Sheriff Munson was
a decision-maker with final policymaking authority.
“The
determination
of
whether
a
person
has
policymaking
authority is a question of state law, and is to be decided by the
court.”
Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664,
675 (7th Cir. 2009) (citations omitted).
decisionmaking
authority
are
deemed
“Officials with final
policymakers
for
Monell
purposes, and we need to look to state law to determine the scope
of such authority.”
Court
of
Appeals
policymaker.”
App. 1995).
Id. at 676 (citations omitted).
has
found
that
the
Sheriff
is
The Indiana
“a
final
Trout v. Bouie, 653 N.E.2d 1002, 1007 (Ind. Ct.
Defendants do not deny that Sheriff Munson was a
29
final decisionmaker.1
Rather, they argue that Munson’s actions
did not violate the First Amendment.
Because the Court has
determined that a genuine issue of material fact exists as to
whether
Sheriff
Munson
violated
the
First
Amendment
when
he
terminated Hoaks, Defendants’ motion for summary judgment on the
Monell claim is denied.
Qualified Immunity
Sheriff Munson asserts the defense of qualified immunity.
“The doctrine of qualified immunity protects government officials
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.”
Pearson v. Callahan,
555 U.S. 223, 231 (2009) (citation and internal quotation marks
omitted).
had
“[Q]ualified immunity ensures that government officials
notice
litigation.”
that
their
conduct
was
unlawful
before
enduring
Houlihan v. City of Chicago, 871 F.3d 540, 546 (7th
Cir. 2017) (citation omitted).
“These officials are thus entitled
to some degree of certainty in the law.”
1
Id.
“Although the First
In their reply brief, Defendants assert in passing that Hoaks’
Complaint did not allege a Monell claim based on policymaker
liability. (DE #37 at 8.) Defendants do not make any further
argument or provide any additional explanation regarding this
statement.
Such “[p]erfunctory, undeveloped arguments without
discussion or citation to pertinent legal authority are waived.”
Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) (citations
omitted).
30
Amendment typically prohibits government employers from making
politically motivated employment decisions, a court's qualifiedimmunity analysis cannot simply rely on this general principle;
rather,
the
court
must
determine
whether
there
violation in the specific context of the case.”
the
burden
of
defeating
a
qualified
to
an
analogous
case
is
the
clear
The plaintiff
immunity
Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012).
pointing
a
Id. (citing Moss
v. Martin, 614 F.3d 707, 712 (7th Cir. 2010)).
bears
was
typical
way
defense.
“Although
to
defeat
qualified immunity, see Humphries v. Milwaukee Cty., 702 F.3d 1003,
1006 (7th Cir. 2012), it’s not necessarily the only way: ‘if there
is no such case, then [a plaintiff] needs to offer a different
explanation for why the constitutional violation is obvious.’
Moss, 614 F.3d at 712.”
Houlihan, 871 F.3d at 547.
Defendants argue that Sheriff Munson is entitled to qualified
immunity because it was not clearly established that a Benton
County correctional officer lacked discretion and policymaking
authority in order to place Hoaks’ termination under the First
Amendment.
“A right is clearly established only if its contours
are sufficiently clear that a reasonable official would understand
that what he is doing violates that right.”
Carroll v. Carman,
135 S. Ct. 348, 350, 190 L.Ed.2d 311 (2014) (citation and quotation
marks omitted).
31
Given the “considerable uncertainty [that] exists in the
area of patronage law,” it is often difficult to prove
that
a
government
official
violated
a
clearly
established right by considering politics when making an
employment decision. Flenner v. Sheahan, 107 F.3d 459,
465 (7th Cir. 1997). The reason for this uncertainty
is that determining whether it is permissible to
consider politics is a highly fact-specific inquiry—one
that requires considering “a wide range of government
positions, which in turn involve an endless variety of
job responsibilities and varying degrees of discretion
and autonomy.”
Id. Between the low-level government
worker (who typically receives protection from patronage
hiring and firing) and the confidential employee (who
receives no such protection), there are numerous
government positions for which the propriety of
patronage-based employment decisions “has depended
largely
on
the
courts’
juggling
of
competing
constitutional and political values.”
Upton v.
Thompson, 930 F.2d 1209, 1213 (7th Cir. 1991). For that
reason, “it is difficult to imagine how any plaintiff
... could have a clearly established right to be free
from patronage dismissal unless a nearly identical case
had already been decided.” Pounds v. Griepenstroh, 970
F.2d 338, 341 (7th Cir. 1992).
Houlihan, 871 F.3d at 546; see also Riley, 425 F.3d at 359
(providing a table of cases in which various political affiliations
were held to be, and not to be, permissible qualifications).
Hoaks relies upon Flenner v. Sheahan, 107 F.3d 459 (7th Cir.
1997), to assert that a public official should not be given
qualified immunity for terminating correctional officers.
In
Flenner, the court held that “an employee who performs primarily
ministerial functions and who has little autonomy or discretion in
performing his duties is not subject to patronage dismissal.”
at 463.
Id.
There, the sheriff argued that in 1993 an ambiguity
32
existed in the law which could lead a reasonable officer to
conclude that Cook County correctional officers were subject to
patronage dismissal as a matter of law, regardless of their job
responsibilities.
Id.
The Seventh Circuit rejected this premise:
[W]hile we focus on the inherent powers of the office
rather than the individual who occupies it, it is
impossible to generalize about the nature of an
individual type of position, such as bailiff or
secretary; job responsibilities can vary greatly between
different
governmental
units
or
even
within
a
governmental unit.
For this reason the test under
Branti must be applied to each individual office, and
status under that formulation is left to the trier of
fact to be determined.
Id. at 463–64 (citation omitted).
The court noted that “[t]he
indefiniteness of the applicable Branti standard has resulted in
judicial
confusion
and
to
inconsistency,
government
a
confusion
officials
that
having
to
has
naturally
transpired
apply
Branti.”
Id. at 465 (quoting Upton, 930 F.2d at 1218).
It
recognized that because uncertainty exists within this range, “[a]
plaintiff has little chance of winning a case of first impression
unless
she
bureaucratic
occupies
ladder.”
an
extremely
Id.
high
(citation
or
low
omitted).
rung
The
on
the
Seventh
Circuit considered the correctional officers’ job descriptions and
reversed the judgment on the pleadings, but noted that it was
“possible that the position of Cook County correctional officer
involves more discretion or autonomy than the government positions
33
involved in the cases cited and that the position of correctional
officer is among those positions for which the propriety of
patronage dismissal has not been clearly established.
This is a
determination which can be made by the district court only after
it has developed the appropriate factual record.”
Id. at 465–66.
Defendants distinguish Hoaks from the correctional officers
in Flenner, explaining that in Flenner, the correctional officers
had no policymaking or decisionmaking authority and received daily
instruction and immediate supervision regarding the handling,
supervision
and
care
of
inmates.
In
contrast,
Hoaks
was
a
correctional officer in a small department with a wide degree of
discretion in the manner in which to handle inmates.
Hoaks
testified that correctional officers did what they saw fit and
what was necessary during their shifts.
(Ex. A at 40.)
He also
testified that when he came to work, he would take care of what
was needed to be taken care of, and that the sheriff only provided
direction if they had transports or court.
(Id.)
The Court finds
that, based on the evidence presented, a correctional officer
position at Benton County Jail involves more than performing
“primarily
ministerial
functions
[with]
discretion in performing his duties.”
little
autonomy
or
Flenner, 107 F.3d at 643.
Thus, it cannot be said that Hoaks’ termination was an obvious
violation of a constitutional right such that Munson should not
34
personally
be
protected
by
qualified
immunity.
Therefore,
Defendants’ motion for summary judgment on the issue of qualified
immunity is granted, and the claim for damages asserted against
Munson in his individual capacity is dismissed.
CONCLUSION
For the reasons set forth above, the Defendants’ Motion for
Summary Judgment (DE #31) is GRANTED IN PART AND DENIED IN PART.
The Clerk is hereby ORDERED to DISMISS the claim for damages
against
Defendant
Munson
in
his
individual
capacity
WITH
PREJUDICE.
DATED:
January 30, 2018
/s/ RUDY LOZANO, Judge
United States District Court
35
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