Hernandez v. Cook County Sheriff's Office

• Decision Date: 24 February 2011
• Docket Number: No. 10–1440.,10–1440.
• Parties: Ivan HERNANDEZ, et al., Plaintiffs–Appellees,v.COOK COUNTY SHERIFF'S OFFICE, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

634 F.3d 906

31 IER Cases 1681

Ivan HERNANDEZ, et al., Plaintiffs–Appellees,

v.COOK COUNTY SHERIFF'S OFFICE, et al., Defendants–Appellants.

No. 10–1440.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 23, 2010.Decided Feb. 24, 2011.

Dana L. Kurtz (argued), Attorney, Kurtz Law Offices, Hinsdale, IL, for Plaintiffs–Appellees.Daniel F. Gallagher, Attorney, Terrence F. Guolee (argued), Attorney, Querrey & Harrow, Chicago, IL, for Defendants–Appellants.Before CUDAHY, FLAUM, and WOOD, Circuit Judges.CUDAHY, Circuit Judge.

The defendants, officers of the Cook County Sheriff's Office (CCSO) and the Sheriff's Office itself, appeal from a denial of summary judgment sought on grounds of qualified immunity. We reverse the denial of summary judgment and remand for reconsideration of the qualified immunity defense.

I. Facts and Procedural History

A. Factual Background

The event immediately precipitating this factually confusing case was a jailbreak at the Abnormal Behavior Observation (ABO) unit of the Cook County jail on February 11, 2006. At approximately 11:30 p.m. on that date, an inmate named Patrell Doss overpowered a jail guard named Darin Gater after temporarily blinding him by throwing a cleaning solution in his face. Doss then released seven other inmates from their cells. The inmates shut off the lights and set a diversionary fire, and Doss put on Gater's uniform. In the confusion, the disguised Doss convinced other jail guards to open certain internal doors, after which the inmates beat several guards. Using keys obtained from the subdued guards, six inmates managed to escape the facility. They were soon recaptured in the Chicago area. Sheriff's Office authorities immediately suspected that the inmates had help from within the CCSO ranks, and Darin Gater soon admitted to being one who, among others, was complicit in the escape.

The six plaintiffs are former officers of the CCSO Special Operations Response Team (SORT),¹ each of whom was investigated in connection with the jailbreak. Hernandez and Rodriguez were sergeants, while the remaining four plaintiffs were regular SORT correctional officers.

Darin Gater identified plaintiffs Jones, Rodriguez and Michno specifically as having advance knowledge of the jailbreak, while suspicion fell on the other three officers indirectly. In particular, Gater asserted that plaintiff Jones had approached him multiple times with a proposition to stage a jailbreak to draw adverse attention to the leading Cook County Sheriff candidate, Tom Dart, in advance of a pending election. Gater asserted that Sergeant Rodriguez was present for at least one such conversation.

Plaintiffs Bailey and Davis came under suspicion because both were on duty at the jail, but away from their posts when the jailbreak occurred. Moreover, Gater described Bailey and Davis to investigators as being cozy with the inmates, allowing them to engage in prohibited conduct. Finally, plaintiff Hernandez was the shift commander for the shift immediately preceding the jailbreak. He allegedly failed to conduct a physical roll call of SORT officers for the oncoming shift, and did not respond to reports that one inmate was in possession of a shank. Hernandez left the jail at 10:00 p.m. on the night of the jailbreak.

Internal and criminal investigations followed the jailbreak, and the investigations gave rise to the plaintiffs' alleged injuries. Almost immediately after the jailbreak five of the six plaintiffs were suspended with pay “pending [the] criminal investigation.” The plaintiffs claim variously that in the days following the jailbreak, investigators detained them under guard for up to 24 hours, and denied them food, water and sleep. Several claim that they were discouraged from contacting a union steward or an attorney. All of the plaintiffs were brought up on administrative charges within the CCSO. Jones, Michno, Bailey, Davis and Hernandez were immediately transferred from the SORT; Rodriguez was transferred several months later. Ultimately, Hernandez, Davis and Bailey were found to have violated their professional duties. Hernandez was suspended for five days, whereas Davis and Bailey were apparently either terminated or encouraged to quit. The evidence was deemed insufficient to sustain administrative charges against the other three plaintiffs. At some time during or soon after the investigations, the SORT unit was disbanded.

The plaintiffs argue that the defendant leaders of the CCSO ² violated their First Amendment rights,³ because the harsh investigation and the sanctions that followed were motivated by retaliation for the plaintiffs' complaints about jail conditions and by politics within the CCSO. In addition, the plaintiffs raise emotional distress and false imprisonment claims.

In view of the plaintiffs' argument that the post-jailbreak investigation had ulterior motives, some background information is needed about the plaintiffs' workplace safety complaints and the political context at the Cook County Sheriff's Office. The plaintiffs alleged that in the months leading up to the jailbreak several of the plaintiffs had complained about jail security problems both within and outside of the CCSO chain of command. In particular, they pointed to jail overcrowding, insufficient staffing during the night shift and the need for Plexiglas in the cells. Sergeants Hernandez and Rodriguez had forwarded some of these complaints to the CCSO Inspector General's office.

As to the political context, around the time of the jailbreak the leader of the SORT, Richard Remus, had challenged Tom Dart, the presumably favored candidate and the incumbent sheriff's Chief of Staff, in the election for Cook County Sheriff. Remus drew strong support from the officers of the SORT unit, and the plaintiffs allege that this put them at odds with others within the CCSO, including defendant Kaufmann.

The plaintiffs draw support for the view that the defendants had an allegedly political motive from statements the defendants made during the post-jailbreak investigation. The plaintiffs assert that when defendant Kaufmann responded to the ABO unit following the jailbreak, he immediately linked the jailbreak with the plaintiffs' political affiliation, shouting “this smells of Remus,” and “this is a Remus set-up.” In addition, while questioning the plaintiffs, investigators made statements linking the jailbreak to the political context in the CCSO, including that “we know you guys had something to do with this because of Remus.” When Bailey and Michno went to receive their suspension and reassignment orders from defendant Andrews, he allegedly stated that the investigation was “political” and out of his hands.

The plaintiffs also allege that two other sets of officers, the Post 3 and Post 78 officers, were present for the jailbreak. While their failure to stop the inmates was essential for the escape, these officers were not formally investigated or suspended. This omission, the plaintiffs argue, illustrates that ulterior motives underlay the investigation. The defendants, on the other hand, argue that the guards who were not investigated were violently subdued by the escaping inmates and that this explains why they did not come under the same scrutiny.

B. Procedural History

The plaintiffs filed a complaint in February of 2007, raising five claims: (1) retaliation in violation of the right to free political association under the First Amendment; (2) retaliation in violation of the right to free speech under the First Amendment; (3) conspiracy to retaliate based on political affiliation, in violation of the First Amendment; ⁴ (4) state law intentional infliction of emotional distress; and (5) state law false imprisonment.

Soon after the defendants answered the complaint, they moved to dismiss under Fed.R.Civ.P. 12(b)(6), claiming qualified immunity in a four-page discussion. The defendants separately argued that they were entitled to statutory immunity on the plaintiffs' state law claims for emotional distress and false imprisonment.⁵ The plaintiffs responded to the contrary, and the district court apparently did not rule on this motion to dismiss.

Notwithstanding that the motion to dismiss had not been adjudicated, the defendants moved for summary judgment on August 8, 2008. The court acknowledged in a minute order that “[d]efendants have represented that the pending summary judgment motion incorporates the arguments raised in the motion to dismiss.”

In their opening memorandum in support of summary judgment, the defendants argued only briefly their entitlement to qualified immunity. The qualified immunity discussion comprises three paragraphs, the first two of which consist exclusively of discussion of qualified immunity case law, and the third of which attempts to apply the law to the facts of this case. The third paragraph reads in its entirety as follows:

Applying the Anderson⁶ standard to the case at bar, Plaintiffs name all of the Defendants in their individual capacities. A reasonable official would not have known that by investigating the escape of six dangerous inmates and the potential criminal or negligent involvement of correctional officers would violate any constitutional right. The investigation was done in a lawful manner and was reasonable in relation to the specific facts confronting the public official[s] at the time they acted.

Unlike in their memorandum in support of their motion to dismiss, at summary judgment the defendants did not cite the Illinois Tort Immunity Act and they made no argument that they were entitled to immunity for the counts for state law emotional distress and false arrest.

In the plaintiffs' response to the defendants' summary judgment motion, they argued that the defendants are not entitled to qualified immunity on the merits and also claimed that the defendants had waived qualified immunity by arguing it deficiently. Then, the defendants filed a reply brief...