Delgado v. Jones

• Decision Date: 08 March 2002
• Docket Number: No. 01-1460.,01-1460.
• Parties: Octavio DELGADO, Plaintiff-Appellee, v. Police Chief Arthur JONES and Deputy Chief Monica Ray, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

282 F.3d 511

Octavio DELGADO, Plaintiff-Appellee, v. Police Chief Arthur JONES and Deputy Chief Monica Ray, Defendant-Appellant.

No. 01-1460.

United States Court of Appeals, Seventh Circuit.

Argued September 5, 2001.

Decided March 8, 2002.

Rehearing and Suggestion for Rehearing En Banc Denied May 2, 2002.

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William R. Rettko (argued), Rettko Law Offices, Brookfield, WI, for plaintiff-appellee.

Jan A. Smokowicz (argued), Milwaukee City Attorney's Office, Milwaukee, WI, for defendant-appellant.

Before CUDAHY, ROVNER, and DIANE P. WOOD, Circuit Judges.

CUDAHY, Circuit Judge.

Octavio Delgado is a detective with the Milwaukee Police Department who alleges that he was transferred to a less desirable position and denied vacation time in retaliation for an investigation in which he participated and a memorandum that he wrote about alleged criminal activities involving a close relative of an elected official. This elected official is also purported to be a close personal friend of the Chief of Police, Arthur Jones, one of the defendants. In turn, Deputy Chief Monica Ray is alleged to have been involved in the sequence of events leading to the transfer. The district court denied the defense of qualified immunity. Under the Supreme Court's ruling in Behrens v. Pelletier, 516 U.S. 299, 306, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), a denial of a qualified immunity defense is immediately appealable under 28 U.S.C. § 1291. We now affirm the decision of the district court.

I.

Octavio Delgado is a 15-year veteran of the Milwaukee Police Department (MPD). In December of 1997, Delgado began working in the department's Vice Control Unit. Thereafter, until his alleged retaliatory transfer on May 18, 2000, Delgado had been receiving satisfactory job evaluations.

In April 2000, or thereabouts, Delgado served as part of a drug entry team that executed a search warrant at a suspected drug house within the City of Milwaukee. This police operation ultimately resulted in the arrest of several persons. In May of 2000, Delgado received a letter from an individual arrested during the execution of the April search warrant. The letter claimed that the arrestee had information about the buying and selling of drugs by public school employees and the patronage of a drug house by a close relative of a public official as well as knowledge of a drug dealer who lived with a state employee. The letter also stated that Chief of Police Jones was a close personal friend of the public official whose immediate relative was alleged to have frequented the drug house. Delgado then showed the letter to his supervising lieutenant, who commented: "What district do you want to be transferred to?" According to the appellee's brief, the intended inference of the supervisor's comment was that investigations of politically sensitive matters often result in unfavorable treatment, including unwanted transfers.

Delgado was subsequently ordered to interview the author of the letter (the former arrestee) in order to corroborate the details of the letter. Delgado was then instructed to write a "Matter of" memorandum summarizing the contents of the interview with the former arrestee and to submit it to his lieutenant.

This memo ultimately moved up the chain of command to Deputy Chief Ray, who recommended that it be investigated by an outside law enforcement agency. It is unclear from the complaint whether Deputy Chief Ray had the authority to make this decision. Nevertheless, on May 18, 2000, Chief Jones was notified of the "Matter of" memorandum. In a meeting with Delgado's captain and Deputy Chief Ray, Chief Jones ordered that the investigation stay within the MPD and instructed Delgado's captain not to discuss the "Matter of" memorandum with Delgado or anyone else.

The following day, Chief Jones issued an order transferring one person, Delgado, from the Vice Control Division to the Criminal Investigations Bureau, retroactive to the previous day, Thursday, May 18. According to the complaint, this transfer was a departure from normal practice, since most transfers occur on Fridays at the end of a pay period and take effect the following Sunday. Moreover, the unit Delgado was transferred out of already had several vacancies.

From May 18 until May 26 Delgado was on vacation. During this period, the letter writer was allegedly interrogated by other MPD officers on the subject of his earlier interview with Delgado. When Delgado returned to work on the 26th, he was ordered to undergo a urine drug test and was informed that he was under investigation by the MPD's Internal Affairs Division for his communication with the letter writer, allegedly in violation of a departmental rule.

On the same day, Delgado also received a second letter from the same arrestee providing additional information on potential drug dealers. Delgado forwarded this letter to his former lieutenant in the Vice Squad Unit. The following day, Delgado asked both his former lieutenant and a captain in the Vice Squad Unit why he had been transferred, and he was advised that Chief Jones had forbidden any communication by these supervisors with Delgado.

Finally, Delgado claims that in the succeeding weeks and months, his pre-approved vacation schedule was unilaterally truncated or cancelled in accordance with rules that were not being applied to his fellow officers. Again, according to the complaint, Delgado had been receiving good performance evaluations. In addition, the MPD has a rule prohibiting the use of transfers as a form of discipline.

On a motion for a judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c) and 12(h)(2), the district court denied the appellants' request that they be accorded the defense of qualified immunity.

II.

This case presents two issues on appeal: (1) whether both Chief Jones and Deputy Chief Ray are entitled to qualified immunity because, within the specific context of this case, a reasonable official would not have concluded that Detective Delgado had a First Amendment right to free speech; and (2) whether Deputy Chief Ray, who forwarded Detective Delgado's "Matter of" memorandum to Chief Jones, is also entitled to qualified immunity because her role in any alleged retaliation was entirely ancillary and administrative in nature. A motion for a judgment on the pleadings under Fed.R.Civ.P. 12(c), like a motion for failure to state a claim under Fed.R.Civ.P. 12(b)(6), should not be granted "unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Gustafson v. Jones, 117 F.3d 1015, 1017 (7th Cir.1997) (quoting Frey v. Bank One, 91 F.3d 45, 46 (7th Cir.1996)). In evaluating the motion, we view the allegations of the complaint in the light most favorable to the nonmoving party. See id. The standard of review in determining the validity of a qualified immunity defense and the underlying interpretation of the First Amendment is de novo, with the courts' accepting all well-pleaded factual allegations as true, and making all permissible inferences in the plaintiff's favor. See id. at 1017-18.

As a threshold matter, the Supreme Court's jurisprudence on qualified immunity requires that this issue be resolved at the earliest stages of litigation. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court limited the inquiry for qualified immunity to an objective reasonableness standard in order to facilitate judgment as a matter of law and concluded that "[u]ntil this threshold immunity question is resolved, discovery should not be permitted." Id. at 818-19, 102 S.Ct. 2727.¹ Therefore, in order for a plaintiff to successfully defeat a qualified immunity defense, two conditions must be satisfied: (1) the complaint must adequately allege facts that, if true, would constitute a violation of a constitutional right; (2) the case law must be "clearly established" at the time of the alleged violation, so that a reasonable public official would have know that his conduct was unlawful. Id.²

In Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), the Court observed that a decision "of this purely legal question permits courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time-consuming preparation to defend the suit on the merits." Id. at 232, 111 S.Ct. 1789. One of the intended effects of the qualified immunity defense is "to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Id. The policy that underlies this judicially created doctrine is that meritless and insubstantial lawsuits can distract officials from their public duties, inhibit the exercise of independent judgment and discretion and ultimately discourage highly qualified citizens from entering public service. See Harlow, 457 U.S. at 814, 102 S.Ct. 2727 (discussing the "social costs" that flow from lawsuits against innocent public officials); see also Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994) (observing that "few individuals will enter public service if such service entails the risk of personal liability for one's official decisions").

Here, our review of the district court's denial of the qualified immunity defense must focus on two issues: (1) Did the defendants' alleged conduct amount to a violation of Delgado's First Amendment rights? (2) Was this conduct clearly established as a violation of the Constitution at the time of the alleged violation?

A.

For a First Amendment retaliation claim to survive a judgment on the pleadings, we have held that "the facts alleged in the complaint must show that (1) the speech in which the plaintiffs engaged was constitutionally protected under the circumstances, and (2) the defendants retaliated against them because of it." Gustafs...