Burke v. Ohio Dep't of Rehab. & Corr.

• Jurisdiction: United States,Federal
• Court: U.S. District Court — Southern District of Ohio
• Writing for the Court: ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE
• Docket Number: Civil Action 2:21-cv-48
• Decision Date: 15 February 2024
• Parties: KEVIN P. BURKE, Plaintiff, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al., Defendants.
• topic: Civil Rights,Constitutional Law,Employment Law

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KEVIN P. BURKE, Plaintiff, v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, et al., Defendants.

Civil Action No. 2:21-cv-48

United States District Court, S.D. Ohio, Eastern Division

February 15, 2024

OPINION AND ORDER

ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE

This matter is before the Court for consideration of Plaintiff Kevin P. Burke's First Motion for Partial Summary Judgment. (ECF No. 76.) Through his motion, Plaintiff seeks summary judgment in his favor against Defendants Emma Collins, Warden of the Pickaway Correctional Institution (“PCI”) (“Warden Collins”), and Annette Chambers-Smith, Director of the Ohio Department of Rehabilitation and Correction (“ODRC”) (“Director Chambers-Smith”) in their individual capacities as to liability. Plaintiff requests that, upon a judgment of liability in his favor, this matter be set for a hearing on damages, costs and fees. Also before the Court is a Motion for Summary Judgment filed by Defendants ODRC Director Chambers-Smith, and Warden Collins (collectively the “ODRC Defendants”) (ECF No. 81). Through their motion, the ODRC Defendants seek summary judgment in their favor on the entirety of Plaintiff's remaining claims. Both motions have been fully briefed. (ECF Nos 83-86.) Further, as ordered by the Court, the parties have filed supplemental briefs addressed to the current Social Media Policy governing ODRC employees. (ECF Nos. 91, 92.) Accordingly, the parties' dispositive motions are ripe for decision. The motions are before the Undersigned for consideration with the consent of the parties. (ECF No. 6), 28 U.S.C. § 636(c). For the following reasons, Defendants' Motion (ECF No. 81) is GRANTED and Plaintiff's Motion (ECF No. 76) is DENIED.

I.

Plaintiff Kevin Burke filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 7, 2021, naming as Defendants ODRC, Warden Collins, and Director Chambers-Smith. (ECF No. 1.) On July 2, 2021, Plaintiff filed an Amended Complaint (ECF No. 13) setting forth additional claims pursuant to § 1983 as well as a claim under 42 U.S.C.§ 1985 and naming as additional Defendants ODRC Chief Inspector Christopher Lambert (“Chief Inspector Lambert”), ODRC Deputy Chief Inspector Roger Wilson (“Deputy Chief Wilson”), Global Tel*Link Corporation (“GTL”), and John Doe Employees of GTL. By Opinion and Order dated January 10, 2022, the Court dismissed Plaintiff's claim under 42 U.S.C. § 1985. (ECF No. 31.) More recently, the Court granted Plaintiff's motions to dismiss Counts Four, Five, Six, and Seven. (ECF Nos. 73, 75.) Thus, for purposes of the current cross-motions, Plaintiff's remaining claims are those set forth in Counts One, Two, and Three of the Amended Complaint. (ECF No. 13.) These claims, as pled, include the following:

Count One: Violation of 42 U.S.C. §1983 by a constitutional violation of the Freedom of Speech Clause of the First Amendment of the United States Constitution made applicable to the States by the Fourteenth Amendment By adopting the SOCIAL MEDIA policy of the Defendant.

Count Two: Violation of 42 U.S.C. §1983 by a constitutional violation of First Amendment retaliation made applicable to the States by the Fourteenth Amendment by applying the unlawful SOCIAL MEDIA policy of the Defendant to the Plaintiff.

Count Three: Violation of the Due Process Clause of the Fourteenth Amendment.

(ECF No. 13 at 11-14.) By way of relief, Plaintiff requests that the Court declare certain language of ODRC's SOCIAL MEDIA policy unconstitutional; grant injunctive relief in the form of reinstatement or, alternatively, front pay and all benefits, including pension contributions, for a period of no less than three years; an award of back pay, benefits and damages; compensatory and punitive damages; and attorneys' fees. (See ECF No. 13 at ¶¶ 106113.)

In moving for partial summary judgment, Plaintiff argues that Warden Collinsand Director Chambers-Smith, unlawfully adopted and enforced ODRC's Social Media Policy against him, and retaliated against him in violation of his First Amendment right to free speech. The ODRC Defendants, in moving for summary judgment on Plaintiff's claims in their entirety, contend that ODRC's interests outweigh Plaintiff's First Amendment right to free speech under the circumstances; ODRC's Social Media policy is not unconstitutional as adopted or applied; Plaintiff was not denied due process under the Fourteenth Amendment; and that Defendants Warden Collins and Director Chambers-Smith are entitled to qualified immunity in their individual capacities. Plaintiff contends that these Defendants are not entitled to qualified immunity.

II.

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The moving party has the initial burden of proving that no genuine issue of material fact exists, and the court must draw all reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed.R.Civ.P. 56(e)(2) (providing that if a party “fails to properly address another party's assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).

“Once the moving party meets its initial burden, the nonmovant must ‘designate specific facts showing that there is a genuine issue for trial ” Kimble v. Wasylyshyn, 439 Fed.Appx. 492, 495-96 (6th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)); see also Fed.R.Civ.P. 56(c) (requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must, however, do more than simply show that there is some metaphysical doubt as to the material facts, ... there must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.” Lee v. Metro. Gov't of Nashville & Davidson Cnty., 432 Fed.Appx. 435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted). “When a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case, summary judgment is appropriate.” Stansberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at 322-23).

In this case, the parties have filed cross-motions for summary judgment. In reviewing cross-motions for summary judgment, courts should “evaluate each motion on its own merits and view all facts and inferences in the light most favorable to the non-moving party.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994). “The filing of cross-motions for summary judgment does not necessarily mean that the parties consent to resolution of the case on the existing record or that the district court is free to treat the case as if it was submitted for final resolution on a stipulated record.” Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (quoting John v. State of La. (Bd. of Trs. for State Colls. & Univs.), 757 F.2d 698, 705 (5th Cir. 1985)). The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by one party to the litigation. Taft Broad., 929 F.2d at 248.

III.

The following relevant facts, taken from various filings, are not in dispute.^[1] Plaintiff was employed by ODRC as a Corrections Officer at PCI. (Deposition of Kevin P. Burke, ECF No. 78 at 24, “Burke Depo.”) Plaintiff was terminated from his employment effective October 15, 2020, for alleged violations of ODRC's Standards of Employee Conduct (31-SEM-02, effective September 3, 2019) including, in part, ODRC's Social Media Policy contained within those Standards. (ECF Nos.79-2 at 1-3; 80-1 at 66-82.)

The alleged violations resulting in Plaintiff's termination resulted from certain posts and information set forth on his personal Facebook page. (ECF No. 79-2 at 1-3.) Plaintiff made the 16 Facebook posts underlying his termination over an approximate three-week period between May 28, 2020 and June 17, 2020. (Id.) Plaintiff was at home on leave following shoulder surgery at the time he made these posts. (Arbitration Transcript, ECF No. 81-3 at 44 “Arbitration Tr.”)

For approximately two years prior to his termination, Plaintiff was a Special Duty Transportation Officer. His daily duties included escorting inmates outside the institution to the hospital or doctor's appointments. (Burke Depo., ECF No. 78, at 26.) Plaintiff was required to be armed while transporting inmates outside the institution. (Id. at 30-31.) Plaintiff also served as Union Local 6550 President from 2018 to 2020. (Id. at 40.)

The Standards of Employee Conduct applicable to Plaintiff contained a number of narrative paragraphs setting forth ODRC's expectations of employee behavior. (ECF No. 13-1.) The stated purpose of the Standards was “to provide written guidelines and notify all employees regarding the written rules of conduct that specify prohibited behavior and penalties.” (Id.) The

Standards “applie[d] to all persons employed by the .. (ODRC).” (Id.) The Standards advised that “[a]ll persons employed by .... (ODRC) [were] expected to conduct themselves in a professional, law-abiding manner.” (Id.) The Social Media Policy set forth therein specified:

SOCIAL MEDIA^[2]

Use of social media is not permitted on state computers or while on state time unless special permission is granted. Having a personal social media account is permissible however, it is not permissible to represent yourself on your social media page

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