Swanson v. Village of Lake in the Hills, 91-2177

• Decision Date: 29 April 1992
• Docket Number: No. 91-2177,91-2177
• Citation: 962 F.2d 602
• Parties: Paul D. SWANSON, Plaintiff-Appellant, v. VILLAGE OF LAKE IN THE HILLS, the Board of Police Commissioners of Village of Lake in the Hills, Barbara Keys, Village President of the Village of Lake in the Hills, in her official capacity, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 602

962 F.2d 602

Paul D. SWANSON, Plaintiff-Appellant, v. VILLAGE OF LAKE IN THE HILLS, the Board of Police Commissioners of Village of Lake in the Hills, Barbara Keys Village President of the Village of Lake in the Hills, in her official capacity, et al., Defendants-Appellees.

No. 91-2177.

United States Court of Appeals Seventh Circuit.

Argued March 4, 1992.

Decided April 29, 1992.

Michael K. Havrilesko (argued), Ellen B. Lynch, Havrilesko & Associates, Rockford, Ill., for plaintiff-appellant.

David McArdle (argued), Zukowski, Rogers, Flood, McArdle & O'Connor, Crystal Lake, Ill., Valeree D. Marek, Zukowski, Rogers, Flood & McArdle, Chicago, Ill., for defendants-appellees.

Before CUMMINGS and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

FLAUM, Circuit Judge.

Paul Swanson filed an action under 42 U.S.C. § 1983 against the Village of Lake in the Hills (LITH), the LITH Police Commission, and various LITH officials, alleging that disciplinary actions taken against him in his capacity as sergeant on the LITH police force violated his right to due process. He also sought relief on the state law ground of invasion of privacy. The district court granted the defendants' motion for summary judgment on all counts. We affirm.

Swanson attacks the procedures employed in two separate disciplinary actions. The events giving rise to the first began in April 1985, when Swanson was involved in the DUI arrest of Allen J. Patrick, Jr., who died while in custody. After an investigation and hearing into the matter, the LITH Police Commission suspended Swanson for 30 days without pay. Swanson filed a lawsuit in state court to appeal the disciplinary action. The Patrick incident attracted a lot of attention in the press. Patrick's estate had filed a multi-million dollar lawsuit against both Swanson and LITH, and most of the Commission hearings into the charges against Swanson were open to the public.

The events leading up to the second disciplinary action began on July 10, 1986, when Swanson responded to a call where a victim claimed to have been shot at six times. As a result of Swanson's involvement, the alleged victim was issued a ticket with a maximum penalty of a $1,000 fine and one year in jail, while the alleged perpetrator was ticketed for discharging a firearm within village limits, which carries a maximum penalty of a $50 fine.

By memorandum dated August 13, 1986, Swanson received notification that Police Chief James Wales would be conducting an investigative interview on August 15, 1986, into possible charges against Swanson stemming from the shooting incident. Swanson was advised that he had the right to have counsel present at the interview, and that any admissions he made at the interview could be used as evidence of misconduct or as the basis for disciplinary action. Because Swanson's counsel was unavailable, the interview was not conducted until August 20, 1986, at which time, with counsel present, Swanson gave his version of the shooting incident.

Swanson was hospitalized on August 23, 1986, and then went on disability leave. In a November 25, 1986, letter, Chief Wales notified Swanson that he must submit to a psychological examination before he could be reassigned to active street duty. The examination was scheduled for December 2, 1986, Swanson's anticipated return date. The examination took place as scheduled and, on December 11, 1986, Chief Wales informed Swanson that charges would be brought against him based in part on the psychological evaluation report. At that time, Swanson was allowed to review the report, although he was not given a copy of it.

On December 19, 1986, Swanson was notified of a special meeting before the Police Commission to be conducted the following day. Swanson attended the meeting, and received copies of the complaints filed with the Commission by Chief Wales. The complaints alleged failure to report or take appropriate action, conduct unbecoming an officer, and incompetency. The Commission voted to suspend Swanson without pay, pending final disciplinary action on the complaints, and scheduled an evidentiary hearing on the complaints for January 14, 1987.

During the three weeks prior to the hearing, Swanson and his counsel had the opportunity to conduct discovery and issue subpoenas. On January 14, 1987, his counsel presented numerous pretrial motions. The hearings commenced January 15, 1987, and were closed to the public. Swanson was permitted to review evidence, cross-examine witnesses, call witnesses and testify on his own behalf, make objections and offers of proof, and he had the option of making opening and closing arguments. After over 40 hours of hearings, the Commission ordered that Swanson be discharged from the LITH police force as of January 31, 1987.

These hearings were again subject to intense scrutiny by the local press. A portion of the psychological report was printed in various newspaper articles, and Swanson alleges that the defendants leaked this personal information.

We review de novo the district court's grant of summary judgment, drawing all reasonable inferences in the light most favorable to the non-moving party. Kreutzer v. A.O. Smith Corp., 951 F.2d 739, 743 (7th Cir.1991). However, the non-moving party may not simply rest on his pleadings, but must demonstrate by specific evidence that there is a genuine issue of triable fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). We will affirm only if we determine that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The argument section of Swanson's brief makes no more than a single general mention to the events of 1985 which led to his suspension after the Patrick incident. Thus any claims based on the 1985 disciplinary hearing are waived. Freeman United Coal Mining Co. v. Office of Workers' Compensation Programs, 957 F.2d 302, 305 (7th Cir.1992) ("[W]e have no obligation to consider an issue that is merely raised, but not developed, in a party's brief.").

As to the disciplinary action arising out of the shooting incident, the defendants conceded for purposes of the motion for summary judgment that Swanson had a property interest in his job with the police force. ¹ Relying primarily on D'Acquisto v. Washington, 640 F.Supp. 594 (N.D.Ill.1986), the district court found that Swanson received all the due process that was constitutionally required. We agree.

To determine whether adequate due process was provided, we must balance 1) the importance of the private interest at stake; 2) the magnitude of the government's interest; and 3) the quality of the procedures employed in light of the relative strengths of the competing interests. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-43, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494 (1985). With respect to his suspension without pay, assuming that Swanson was entitled to a pre-suspension hearing, ² he was constitutionally entitled to no more than notice of the charges against him and an opportunity to be heard. See Smith v. Town of Eaton, Ind., 910 F.2d 1469, 1472 (7th Cir.1...