Santiago v. City of Chi., 2:15 CV 358
| Decision Date | 26 January 2018 |
| Docket Number | No. 2:15 CV 358,2:15 CV 358 |
| Parties | ARCIDES SANTIAGO, Plaintiff, v. THE CITY OF EAST CHICAGO, INDIANA, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the court on the motion for summary judgment filed by the defendants, the City of East Chicago, Indiana ("the City"), and Frank Maldonado, the Commander of the East Chicago Police Department. For the reasons stated below, defendants' motion (DE # 22) will be granted.
Plaintiff originally filed his 42 U.S.C. § 1983 civil rights complaint against the defendants in the Lake County Superior Court in Crown Point, Indiana. (DE # 3.) Defendants removed the action to the Northern District of Indiana. (DE # 1.) In his complaint, plaintiff alleges that defendants retaliated against him in violation of his First Amendment right to freedom of speech.1 (Id. at 1.)
Plaintiff has been employed as a police officer with the City of East Chicago Police Department since 1998. (DE # 3 at 1.) On February 5, 12, and 15, 2015, plaintiff attended public hearings regarding a fellow police officer, Timothy Leimbach. (DE # 23 at 2.)2 Plaintiff alleges that at the first hearing Commander Maldonado told him to sit on "this side," which plaintiff understood to mean "the side that supported the administration and that opposed Officer Leimbach." (DE # 36 at 10.) Plaintiff complied with the directive. (Id.) However, at the following two hearings, plaintiff sat on the side of the room that he believed demonstrated his support for Officer Leimbach. (DE # 3 at 6.) Plaintiff was off-duty at the time of the hearings. (DE # 36 at 10.) He claims that he attended the hearings in order to support Officer Leimbach and protest what he believed was an unfair proceeding against the officer. (DE # 3 at 4, 6.)
On February 21, 2015, plaintiff left for a previously scheduled trip to Mexico. (Id. at 4.) On March 16, 2015, four days after he returned to work, he was transferredfrom his assignment in the records office to an assignment in the City detention center. (Id. at 4-5.) Plaintiff claims that Maldonado played a role in his transfer. (DE # 36 at 3.) According to plaintiff, the City had a practice or custom of using reassignment to the detention center as a means to punish officers that the administration "did not like." (Id. at 10.) He claims that his reassignment to the detention center was intended to punish him "because [he] did not sit on the administration's side [at the hearings] and the administration did not like that." (DE # 36 at 6.) He argues that an assignment in the detention center was less desirable than other assignments due to the conditions of the facility and the increased risk of harm officers faced from the occupants of the facility.3 (DE # 3 at 5.)
Defendants now move for summary judgment, identifying numerous grounds which they claim entitle them to judgment in their favor. (DE # 22.) First, defendants argue that plaintiff did not engage in conduct protected by the First Amendment. (DE # 23 at 11-15.) They also contend that plaintiff was reassigned to the detention center due to operational staffing needs, and not as a form of punishment or retaliation. (Id. at 15-16.) Finally, defendants argue that they are entitled to summary judgment because there is insufficient evidence that Commander Maldonado was personallyinvolved in plaintiff's reassignment and insufficient evidence that the City had a custom or practice that violated plaintiff's First Amendment rights. (Id. at 11-18.)
Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In responding to a motion for summary judgment, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). A dispute about a material fact is genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If no reasonable jury could find for the non-moving party, then there is no "genuine" dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).
The court's role in deciding a summary judgment motion is not to evaluate the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). In viewing the facts presented on a motion for summary judgment, a courtmust construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and resolve all doubts in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995).
In order for a public employee, such as plaintiff, to successfully establish that he was retaliated against in violation of his First Amendment right to freedom of speech, he must first establish that he engaged in constitutionally protected speech. See Aldous v. City of Galena, Illinois, 702 F. App'x 439, 441 (7th Cir. 2017). "The First Amendment literally forbids the abridgment only of 'speech,' but we have long recognized that its protection does not end at the spoken or written word." Texas v. Johnson, 491 U.S. 397, 405 (1989). Rather, "conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.'" Id. (internal citation omitted).
"In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether '[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.'" Id. (internal citation omitted). See also Tinker v. Des Moines Indep. Comm. School Dist., 393 U.S. 503, 505 (1969) (); Brown v. State of La., 383 U.S. 131, 141 (1966) (). Expressive conduct isprotected where it is "'inherently expressive.'" Tagami v. City of Chicago, 875 F.3d 375, 378 (7th Cir. 2017), as amended (Dec. 11, 2017) (emphasis in original) (quoting Rumsfeld v. Forum for Acad. & Inst'al Rights, Inc., 547 U.S. 47, 66 (2006)). "To fall within the scope of this doctrine, the conduct in question must comprehensively communicate its own message without additional speech." Id.
Here, plaintiff's presence and location at Officer Leimbech's hearings cannot be said to have been inherently expressive because it contained no particularized message that would have been overwhelmingly apparent to those who saw him. While it is certainly true that, in certain cases, a person's presence is sufficient to amount to expressive conduct, see e.g. Brown, 383 U.S. at 141 (), this is not true of this case. Here, the fact that plaintiff sat on the side of the room where Officer Leimbach and his attorney also sat, did not clearly convey any particular message. Plaintiff was off-duty at the time and there is no evidence that he attended the hearings in his police uniform. Thus, there is no reason to believe that a casual observer would have understood that he was a police officer demonstrating his support for a fellow officer. To the extent that his presence conveyed any message at all, there are several ways in which it could have been construed. For example, an observer could reasonably have concluded that plaintiff was: (i) a member of the media; (ii) a personal friend or family member of Officer Leimach; (iii) a personal friend or family member of another person involved in the underlying incident; (iv) a witness to be called in the hearings; or (v) or some otherinterested person. Given the ambiguity of plaintiff's conduct, his presence does not qualify as "expressive conduct" protected by the First Amendment.
Even to the extent that plaintiff's presence and location at Officer Leimbach's hearings could be considered expressive conduct under the First Amendment, plaintiff was a public employee at the time of his conduct and therefore there are additional factors to consider before this court can determine whether his speech was protected. The question of whether a public employee's speech is protected by the First Amendment is a question of law for determination by the district court. Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002).
To establish a First Amendment retaliation claim, a public employee's speech "must be made as a private citizen (rather than pursuant to official duties), and must involve a matter of public concern." Aldous v. City of Galena, Ill., 702 F. App'x 439, 441 (7th Cir. 2017); see also Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 984 (7th Cir. 2013). "The 'public concern' element is satisfied if the speech can fairly be said to relate to a matter of political, social, or other concern to the community, rather than merely a personal grievance of interest only to the employee." Gustafson, 290 F.3d at 907. "The Supreme Court has defined 'public concern' to mean 'legitimate news interest,' or 'a subject of general interest and of value and concern to the public at the time of publication.'" Meade v. ...
To continue reading
Request your trial