Ogden v. U.S., No. 83-3191

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and FAIRCHILD; CUMMINGS
Citation758 F.2d 1168
PartiesLieutenant Mary OGDEN, et al., Plaintiffs-Appellants, v. The UNITED STATES of America, et al., Defendants-Appellees.
Docket NumberNo. 83-3191
Decision Date29 March 1985

Page 1168

758 F.2d 1168
Lieutenant Mary OGDEN, et al., Plaintiffs-Appellants,
v.
The UNITED STATES of America, et al., Defendants-Appellees.
No. 83-3191.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 3, 1984.
Decided March 29, 1985.

Page 1169

David A. Novoselsky, Chicago, Ill., for plaintiffs-appellants.

Margaret C. Gordon, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendants-appellees.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

CUMMINGS, Chief Judge.

Plaintiffs appeal from the district court's grant of defendants' motion for summary judgment. The plaintiffs, certain active and nonactive duty military personnel and civilians, seek damages under 42 U.S.C. Secs. 1983 and 1985 and under a Bivens -type

Page 1170

remedy 1 and injunctive relief for alleged violations of the First Amendment arising out of a February 6, 1982, "off-limits" declaration ordered by the defendant, then Commander of the Great Lakes Naval Training Center, Rear Admiral James H. Flatley III. For the reasons set forth below, we affirm in part and reverse and remand in part.
I

On February 6, 1982, Rear Admiral Flatley, the Commander of the Great Lakes Naval Training Center (GLNTC) issued an "off-limits" declaration which prohibited "all naval personnel attached to activities comprising the Great Lakes naval complex" from entering the three following areas or facilities operated by the Christian Fellowship Church or the Christian Fellowship, Inc. (CFI) (as it is referred to by defendants): 1) the Christian Servicemen's Center, 2136 Sheridan Road, North Chicago, Illinois, 2) the "main office" [of the Church presumably] at 401 Washington Street, Waukegan, Illinois, and 3) the Karcher Hotel, 405 Washington Street, Waukegan, Illinois (Plaintiffs' App. 44). The Servicemen's Center is located directly across from the GLNTC and the other off-limits areas are located in nearby Waukegan, Illinois. The off-limits order sets forth the following explanation for the action (Plaintiffs' App. 43):

* * * Christian Fellowship, Inc., has been using its religious facade to induce immature/susceptible Armed Forces personnel to prematurely terminate their military careers under less than completely honorable conditions and subsequently use said individuals for both homosexual and financial gains. Such behavior poses a serious threat to the health, welfare, and morals of Armed Forces personnel. In addition, it is also well documented that the Christian Servicemen's Center has long counselled Great Lakes naval personnel to absent themselves without authority from their commands.

Specific authorization for the order derives from 10 U.S.C. Sec. 5947 which imposes upon officers in the Navy the duty "to take all necessary and proper measures, under the laws, regulations, and customs of the naval service, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge." The statute is implemented, in part, by 32 C.F.R. Sec. 631.11(b) (1982), which empowers commanders to establish off-limits areas "to help maintain good discipline and an appropriate level of good health, morale, safety, morals, and welfare of Armed Forces personnel" and by United States Navy Regulations 0702 p 4 and 0727a (Bureau of Naval Personnel Instruction 1620.4B) which require the commanding officer, inter alia, to "exercise * * * judicious attention to the welfare of persons under their control or supervision" and "[u]se all proper means to foster high morale, and to develop and strengthen the moral and spiritual well-being of the personnel under his command * * * " (Defendants' Br. vii, ix, x and Appendix A-6, A-7).

The plaintiffs filed this action on April 29, 1982, seeking money damages and declaratory and permanent injunctive relief. They alleged that the defendants, in declaring CFI sites off-limits, acted unreasonably and in bad faith in violation of their First Amendment rights. 2

The federal defendants moved to dismiss the complaint or in the alternative for summary judgment on August 31, 1982, and on September 17, 1982, submitted a memorandum

Page 1171

of law in support of their motion. Government exhibits 1-11, which contain virtually all the information relied upon by Admiral Flatley in reaching his decision to issue the order, were proffered to the court along with the defendants' memorandum of law. Plaintiffs filed a motion for a temporary restraining order on September 24, 1982, which alleged that violations of the right to free exercise of religious beliefs (stemming in part from Admiral Flatley's February 6 order) had occurred aboard the Navy vessels U.S.S. Texas and U.S.S. America in July and August of 1982. The motion requested that defendants be prohibited from discouraging participation by military personnel in the CFI's religious activities conducted on any vessels or land-based facilities. Judge Leighton denied that motion and ordered plaintiffs to respond to the defendants' dismissal or summary judgment motion by October 29, 1982. After receiving three extensions of time plaintiffs filed their response on August 31, 1983. They also filed and served a discovery request on defendants on December 29, 1982. Defendants responded to the discovery request on March 11, 1983, and objected to each of plaintiffs' thirty-six discovery requests, claiming that the requested documents either already had been produced, involved privileged communications or did not exist (R. Item 34).

On July 29, 1983, in light of the United States Supreme Court's decision in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586, plaintiffs requested voluntary dismissal of their claims pursuant to Fed.R.Civ.P. 41(a)(2), so that they could proceed in the military court system. The motion for voluntary dismissal without prejudice was denied by the district court on the same day. Although plaintiffs originally appealed from this denial, they conceded at oral argument that no purpose would be served by allowing them to proceed first in military court. Moreover, plaintiffs' precise claims before us were twice presented to the military court and rejected. See infra p. 1177.

Judge Leighton issued an order and memorandum opinion on November 7, 1983, granting all defendants' motions to dismiss and motions for summary judgment (Plaintiffs' App. 72-75). The February 6, 1982, off-limits order has remained in effect throughout this litigation and the Servicemen's Center has been left vacant.

In response to plaintiffs' allegations below, Admiral Flatley stated that in reaching his decision he principally relied on four evidentiary matters: 1) reports of a comprehensive Naval Investigative Service (NIS) investigation conducted in the first half of 1980, containing evidence in the form of sworn written statements and records of interviews of former members of the U.S. Navy and others who had been associated with the CFI between approximately 1974 and 1980 (Exhibit B of R. Item 22), 2) a November 1980 NIS report of an investigation by the Waukegan Police Department into a complaint of deviate sexual assault filed by a then seaman recruit (Exhibit C of R. Item 22), 3) a set of three videotape cassettes recorded in late 1981 and a transcription thereof, containing interviews of two ex-navymen and CFI members and other information resulting from the videotape regarding the son of a chief petty officer (Exhibit D of R. Item 22), and 4) various news articles printed by the Waukegan News-Sun concerning the CFI and its leader, Reverend L.R. Davis (Exhibit B of R. Item 22), contained in the 1980 NIS investigation report, and information from a discussion with the Waukegan News-Sun concerning a forthcoming article regarding the experiences with the CFI of the two navymen interviewed in the videotapes (paragraphs 7-10, Government Exhibit 2 (Flatley Affidavit) of R. Item 22).

The original 1980 NIS investigation consisted of the sworn testimony of four seamen and former CFI members and a synopsis of a former seaman and CFI member's statements (Exhibit 2B of R. Item 22). One of these interviews, taken March 28, 1980, is particularly notable. It consists of an extensive and detailed account of a former serviceman's and his family's involvement with the CFI and L.R. Davis. The testimony recounts various attempts by

Page 1172

Davis to encourage and even order the serviceman and other sailors and CFI members to have unauthorized absences from the Navy (or to "go UA" in ordinary Navy terminology) which would ultimately result in their discharge. It named seven sailors encouraged to go UA by Davis and stated that five had in fact gone UA. The testifying sailor ultimately was discharged from the Navy but later reenlisted. He also recounted numerous attempts by L.R. Davis to induce him to engage in sexual activity with Davis. In a much shorter statement taken on February 27, 1980, the sailor's brother, also a seaman and former CFI member, revealed that L.R. Davis had succeeded in encouraging him to go UA on several occasions and that the UAs ultimately led to his discharge from the Navy (Exhibit 2B of R. Item 22).

A third transcript of testimony, taken March 10, 1980, stated that L.R. Davis had convinced two other servicemen to go UA. A fourth serviceman, then in the Navy, testified on March 25, 1980, that Davis encouraged him to leave the Navy. He also stated that Davis once propositioned a male third person to engage in a homosexual act with him for $500. The testimony synopsis of a then member of the Navy stated that Davis harbored UA sailors, but that Davis counselled the sailors to return to the Navy. The NIS confirmed that three former navymen and CFI members listed in the most detailed account had documented UAs in their records and that two of these navymen received general discharges.

The 1980 NIS report also contained...

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41 practice notes
  • Gumz v. Morrissette, Nos. 84-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 27, 1985
    ...for purposes of the excessive force issue we must assume that the arrest itself was legal. See Lieutenant Mary Ogden v. United States, 758 F.2d 1168, 1175 (7th Cir.1985); City of Chicago v. United States Dep't of Labor, 753 F.2d 606, 607 n. 1 (7th If an excessive use of force were viewed as......
  • Jorden v. National Guard Bureau, No. 85-1664
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 23, 1986
    ...the question have held that Chappell leaves open claims by discharged military personnel for injunctive relief. Ogden v. United States, 758 F.2d 1168 (7th Cir.1985); Penagaricano v. Llenza, 747 F.2d 55 (1st Cir.1984); Gant v. Binder, 596 F.Supp. 757 (D.Neb.1984), aff'd, 766 F.2d 358 (8th Ci......
  • Watkins v. U.S. Army, No. 85-4006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 3, 1989
    ...--- U.S. ----, 109 S.Ct. 402, 102 L.Ed.2d 390 (1988); Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985); Ogden v. United States, 758 F.2d 1168, 1179 n. 7 (7th Cir.1985); Penagaricano v. Llenza, 747 F.2d 55, 60-61 (1st Cir.1984); Nieszner v. Mark, 684 F.2d 562, 564 (8th Cir.1982), cert. d......
  • Morris v. Baldwin, Case No. 17-cv-1033-DRH
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • December 12, 2017
    ...party participated in the alleged violations. Id. (citing Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995); Ogden v. United States, 758 F.2d 1168, 1177 (7th Cir. 1985)). Plaintiff has claims for injunctive relief against IDOC, John Baldwin in his official capacity as the Director of IDO......
  • Request a trial to view additional results
41 cases
  • Gumz v. Morrissette, Nos. 84-3124
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 27, 1985
    ...for purposes of the excessive force issue we must assume that the arrest itself was legal. See Lieutenant Mary Ogden v. United States, 758 F.2d 1168, 1175 (7th Cir.1985); City of Chicago v. United States Dep't of Labor, 753 F.2d 606, 607 n. 1 (7th If an excessive use of force were viewed as......
  • Jorden v. National Guard Bureau, No. 85-1664
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 23, 1986
    ...the question have held that Chappell leaves open claims by discharged military personnel for injunctive relief. Ogden v. United States, 758 F.2d 1168 (7th Cir.1985); Penagaricano v. Llenza, 747 F.2d 55 (1st Cir.1984); Gant v. Binder, 596 F.Supp. 757 (D.Neb.1984), aff'd, 766 F.2d 358 (8th Ci......
  • Watkins v. U.S. Army, No. 85-4006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 3, 1989
    ...--- U.S. ----, 109 S.Ct. 402, 102 L.Ed.2d 390 (1988); Williams v. Wilson, 762 F.2d 357, 359 (4th Cir.1985); Ogden v. United States, 758 F.2d 1168, 1179 n. 7 (7th Cir.1985); Penagaricano v. Llenza, 747 F.2d 55, 60-61 (1st Cir.1984); Nieszner v. Mark, 684 F.2d 562, 564 (8th Cir.1982), cert. d......
  • Morris v. Baldwin, Case No. 17-cv-1033-DRH
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • December 12, 2017
    ...party participated in the alleged violations. Id. (citing Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995); Ogden v. United States, 758 F.2d 1168, 1177 (7th Cir. 1985)). Plaintiff has claims for injunctive relief against IDOC, John Baldwin in his official capacity as the Director of IDO......
  • Request a trial to view additional results

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