578 F.3d 518 (7th Cir. 2009), 07-3343, Fairley v. Andrews

Docket Nº:07-3343.
Citation:578 F.3d 518
Opinion Judge:EASTERBROOK, Chief Judge.
Party Name:Roger FAIRLEY and Richard Gackowski, Plaintiffs-Appellants, v. Dennis ANDREWS, et al., Defendants-Appellees.
Attorney:Matthew J. Piers (argued), Hughes Socol Piers Resnick & Dym, Ltd., Chicago, IL, for Plaintiffs-Appellants. Daniel Patrick Duffy, Peterson, Johnson & Murray, John T. Roache, Jr. (argued), Drinker Biddle & Reath, LLP, Matthew Patrick Walsh, II, Hinshaw & Culbertson, Michael J. Hayes, K & L Gates LL...
Judge Panel:Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.
Case Date:August 20, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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578 F.3d 518 (7th Cir. 2009)

Roger FAIRLEY and Richard Gackowski, Plaintiffs-Appellants,


Dennis ANDREWS, et al., Defendants-Appellees.

No. 07-3343.

United States Court of Appeals, Seventh Circuit.

August 20, 2009

Argued May 6, 2009.

Rehearing and Rehearing En Banc Denied Sept. 21, 2009.[*]

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Matthew J. Piers (argued), Hughes Socol Piers Resnick & Dym, Ltd., Chicago, IL, for Plaintiffs-Appellants.

Daniel Patrick Duffy, Peterson, Johnson & Murray, John T. Roache, Jr. (argued), Drinker Biddle & Reath, LLP, Matthew Patrick Walsh, II, Hinshaw & Culbertson, Michael J. Hayes, K & L Gates LLP, Chicago, IL, for Defendants-Appellees.

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Before EASTERBROOK, Chief Judge, and POSNER and WOOD, Circuit Judges.


Roger Fairley and Richard Gackowski worked as guards at the Cook County Jail in Chicago. After their peers threatened to kill them, they quit and sued the other guards, complaint handlers, the sheriff, and the County. (In saying that death threats were made, and throughout the opinion, we present the evidence in the light most favorable to plaintiffs. Defendants deny many of plaintiffs' principal contentions.)

Guards at the Jail regularly beat prisoners without justification. The harm plaintiffs complain of, however, is not the injuries suffered by prisoners but how other guards reacted when plaintiffs opposed the maltreatment. For example, in April 2000 Gackowski objected when Fred Coffey struck inmate Brown. Gackowski followed up with an internal complaint. Coffey and other guards responded by taunting Gackowski, calling him a " snitch" who " had no heart."

Four months later a fight broke out in Special Incarceration Unit 2, which holds the Jail's most dangerous inmates. After the prisoners had been subdued and shackled, guards Evan Fermaint, Noberto Bercasio, and Edward Byrne beat them. Fairley told them to stop. Byrne snapped: " They want to hurt my officers.... [K]ill'em. They deserve to die." Byrne later told Gackowski (who had not seen the altercation) that he had twisted and jumped on an inmate's leg but couldn't get the bones to break. Byrne told Fairley not to file an incident report. Bercasio and Fermaint tagged Fairley " inmate lover."

Though the Department of Corrections' General Orders require guards to report any misconduct by their peers, plaintiffs say that this does not reflect reality; according to them, the Jail's real rule is a ban on reporting misconduct-a " code of silence." At the training academy, instructors told cadets to stick together and " don't say any bad remarks about anybody." This attitude pervaded the Jail.

Tensions mounted when the inmates involved in the incident in Special Incarceration Unit 2 filed suit. Fields v. Byrne, No. 00 L 9339 (Cir. Ct. Cook County filed Aug. 16, 2000). Fairley and Gackowski told other guards that, if subpoenaed, they would tell the truth about what they had seen and heard. Fields's lawyer sent an investigator to Fairley's home, but Fairley said he hadn't seen anything. Fairley informed his superiors about the visit. They obtained a court order restricting Fields's access to guards and told the guards not to talk to anyone about what happened.

Plaintiffs' willingness to testify in Fields infuriated the other guards. Bercasio and Fermaint forcefully " dry humped" plaintiffs by grabbing them from behind and simulating anal intercourse. Bercasio posted on the Jail's bulletin boards pornographic cartoons featuring Gackowski. Supervisors repeatedly assigned plaintiffs to Special Incarceration Unit 2 without adequate supplies; other guards refused to let them out to use the restroom. Byrne denied Fairley's request for paternity leave and refused to pay plaintiffs for overtime they had worked. The taunts " inmate lover" and " social worker" flew freely.

Gackowski submitted an internal-affairs complaint about the bullying in August 2002, two years after Fields was filed. In December Fields served a subpoena on Fairley. Later that month inmate Lipscomb attacked Fairley with a shank, cutting him on the wrist. Bercasio remarked: " You see that, Fairley? You fuck with people, that's how you get stabbed." (Plaintiffs do not allege that guards furnished

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Lipscomb with the shank.) Internal investigators dragged their heels. Ronald Prohaska told Gackowski, " [I]f Fairley goes into court on this SI-2 case ... and tells the truth, he will fuck everyone involved.... We always knew he was a weak link and when a weak link can fuck everyone in the chain, then we have to bury the weak link. It's nothing personal. It's just business.... Just like with your complaint trying to fuck fellow officers."

Fearing further attacks, plaintiffs used all accrued leave time and then quit on February 4, 2003. Fairley had given his deposition in Fields a few weeks earlier; Gackowski was deposed in mid-February. Both testified at trial. The jury returned a defense verdict.

Fairley and Gackowski seek relief under 42 U.S.C. § 1983. They contend that defendants violated their speech rights by assaulting and threatening them for reporting abuse to Jail supervisors and for their willingness to testify truthfully in Fields. They also contend some of the defendants violated their rights by preventing their complaints from moving up the chain of command.

Before reaching the merits we must address appellate jurisdiction. Shortly before trial was to begin, the court granted a motion to exclude all evidence of events that took place before Fairley and Gackowski gave their depositions. 2007 U.S. Dist. LEXIS 70539 (N.D.Ill. Sept. 24, 2007) (denying plaintiffs' motion for reconsideration). Plaintiffs call their theory " retaliation" -we'll consider later whether that's a helpful word-and the district judge believed that " retaliation" must follow protected speech. Because effects can't precede their causes, everything before the depositions must be irrelevant. (The district judge had already dismissed the claim alleging punishment for filing internal complaints.) Plaintiffs contested this decision but acknowledged that, given the ruling, they could not prove their case, since the assaults and threats all occurred before the depositions. The judge responded: " [I]f you are still saying that you concede that you cannot prove causation in your case based on the Court's rulings, then I will grant judgment for the defendants on that issue, and you can take it all up to the Seventh Circuit."

Oddly, the court's docket entry states that plaintiffs' response to defendants' motion for summary judgment " is converted to a motion by Plaintiff [to] dismiss." (A docket entry is an improper substitute for a judgment. Fed.R.Civ.P. 58 requires a document separate from the statement of reasons supporting the relief granted in the judgment.) Defendants seize on this language, arguing that it shows that the court dismissed the case pursuant to Fed.R.Civ.P. 41(a)(1) (voluntary dismissal by the plaintiff). And defendants read cases such as Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir.2001), to bar appeals from actions terminated under Rule 41(a)(1).

Defendants are mistaken. The only prerequisites to appellate jurisdiction are a final judgment and a timely notice of appeal. 28 U.S.C. § 1291. Whether a party consented to that judgment (and which particular rule of civil procedure the district court invoked) is irrelevant. McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d 839 (7th Cir.2009); Downey v. State Farm Fire & Casualty Co., 266 F.3d 675 (7th Cir.2001). The judgment here is final and the notice timely, so we have jurisdiction.

That said, if plaintiffs consented to the entry of judgment against them, we must affirm. Litigants aren't aggrieved when the judge does what they want. Nashville, Chattanooga & St. Louis Ry. v. United States, 113 U.S. 261, 5 S.Ct. 460, 28 L.Ed. 971 (1885). Plaintiffs contend that

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they accepted dismissal as inevitable only after the district court gutted their case. This matches the district judge's description. Cf. Katz v. Gerardi, 552 F.3d 558, 563 (7th Cir.2009). Acknowledging that a case is hopeless, given a prior ruling (which the party believes to be unsound), is a far cry from abandoning the suit. McMillian and Downey hold that a party who asks for a final judgment in order to appeal an antecedent ruling is entitled to contest the merits of that issue on appeal. Chavez illustrates this principle. After the district court dismissed some of plaintiffs' claims, they requested the entry of judgment against them. We reviewed claims rejected by the court but refused to consider claims that were still live when plaintiffs asked for judgment. The rule is simple: if plaintiff loses on A and abandons B in order to make the judgment final and thus obtain immediate review, the court will consider A, but B is lost forever. See also Pollution Control Industries of America, Inc. v. Van Gundy, 979 F.2d 1271 (7th Cir.1992).

On to the merits. Fairley and Gackowski present two theories of recovery under the first amendment: first, that defendants punished them for defying the code of silence by reporting fellow guards' misconduct; second, that defendants bullied them to keep them from testifying in Fields.

Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), holds that the first amendment does not protect statements made as part of one's job. Ceballos, a deputy district attorney, discovered what he believed were material misrepresentations in an affidavit that had been used to support a search warrant. He wrote a memo to his superior suggesting that the case be dismissed. When the supervisor disagreed, Ceballos pressed his view. The supervisor responded by transferring Ceballos to another office and refusing to promote him; Ceballos sued. The ninth circuit concluded that the first amendment applies to speech that is part of a...

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