SUE E. MYERSCOUGH, District Judge.
Now before the Court is the Motion for Summary Judgment (d/e 34) filed by Defendants DeWitt County, Illinois (DeWitt County or County), and Dan Markwell (Markwell). Because Plaintiff Terry Hoffman has failed to produce evidence upon which a reasonable jury could conclude that Defendants violated his First Amendment rights, Defendants' Motion for Summary Judgment is GRANTED.
On January 30, 2015, Plaintiff filed a Complaint against DeWitt County and several county employees, alleging claims pursuant to 42 U.S.C. § 1983 for violations of Plaintiff's rights under the First and Fourth Amendments of the United States Constitution. Plaintiff's Complaint also asserted state-law claims for false arrest, false imprisonment, and malicious prosecution. Plaintiff's Complaint alleged that he was arrested by the DeWitt County Sheriff's Department and prosecuted for committing a battery against Teresa Barnett-Hall, the Emergency Management Agency Director, in an effort to suppress his public opposition to the placement of hazardous waste in a landfill close to Clinton, Illinois. Markwell was not named as a defendant in the Complaint.
On April 24, 2015, the Court granted Plaintiff's Motion for Leave to File Amended Complaint (d/e 9). Accordingly, Plaintiff's Amended Complaint (d/e 10) was filed on that date. The Amended Complaint alleges § 1983 claims against DeWitt County and Markwell for violating Plaintiff's First Amendment rights. The Amended Complaint also alleged state-law malicious prosecution claims against several other county officials.
On May 22, 2015, a Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Rule 12(b)(6) (d/e 14) was filed. On March 31, 2016, the Court granted in part and denied in part the motion to dismiss. Specifically, the Court dismissed Plaintiff's First Amendment claim for money damages against Markwell in his official capacity as DeWitt County State's Attorney and Plaintiff's malicious prosecution claims. The Court allowed Plaintiff's First Amendment
DeWitt County and Markwell now move for summary judgment on the First Amendment claims pending against them, arguing that Plaintiff suffered no deprivation of his First Amendment rights, that there is no evidence that Plaintiff's Complaint caused Markwell to retaliate against Plaintiff, and that Markwell is entitled to qualified immunity.
The Court has subject matter jurisdiction over Plaintiff's § 1983 claims because they arise under the United States Constitution and are brought pursuant to a federal statute.
Plaintiff was elected to serve on the DeWitt County Board (Board) from December 1, 2012, to December 1, 2016. Plaintiff ran for a seat on the Board in 2012 to address public environmental safety concerns relating to the operation of a landfill one mile south of Clinton, Illinois. The landfill is directly above the Mahomet Aquifer, a large body of water that sits below a portion of central Illinois. Plaintiff chose not to run for reelection to the Board in 2016 because he only wanted to serve one term. Plaintiff has no plans to run for a position on the Board in the future.
On August 12, 2014, DeWitt County filed a lawsuit against Clinton Landfill, Inc. (Clinton Landfill) regarding landfill hosting fees and the terms of a hosting agreement between the County and Clinton Landfill. At the time this suit was filed, Karle Koritz was the DeWitt County State's Attorney. On December 18, 2014, the Board appointed Markwell as the DeWitt County State's Attorney. Markwell was elected to a four-year term in 2016 and is currently serving as the DeWitt County State's Attorney.
On January 22, 2015, Markwell informed the Board that Clinton Landfill had approached him about discussing a settlement to the County's lawsuit. Markwell asked the Board for permission to pursue settlement discussions. The Board, Plaintiff included, voted to authorize Markwell to pursue settlement discussions with Clinton Landfill. Board members informed Markwell of issues they believed were important in settlement negotiations, but the Board did not appoint a Board member to monitor the negotiations. After receiving the Board's authority to negotiate, Markwell began working on a settlement agreement with Clinton Landfill's attorney.
On January 30, 2015, Plaintiff filed his Complaint against DeWitt County and several county employees. Plaintiff alleged that, in December 2012, Emergency Management Agency Director Teresa Barnett-Hall, DeWitt County Sheriff Jered Shofner, and DeWitt County Sheriff's Deputy Anthony Monaghan had Plaintiff arrested to suppress Plaintiff's speech regarding the Clinton landfill and the Mahomet Aquifer. Several paragraphs of Plaintiff's Complaint contained factual allegations about the landfill or the aquifer.
On February 18, 2015, Markwell became aware of Plaintiff's Complaint after he was served with a copy. Upon reviewing the Complaint, Markwell observed that the Complaint contained factual allegations about the Clinton landfill and the Mahomet Aquifer. Markwell also observed that the Complaint alleged claims against Sheriff Shofner, Director Barnett-Hall, and several DeWitt County sheriff's deputies.
On February 20, 2015, Plaintiff sent an e-mail to Markwell, requesting information on the landfill, the aquifer, and the settlement negotiations with Clinton Landfill. The same day, Markwell sent a response to Plaintiff and Plaintiff's attorney, Richard Steagall (Steagall), stating, in relevant part, as follows:
Because Markwell represents the County, which was named as a defendant in Plaintiff's Complaint, Markwell was concerned that communicating with Plaintiff about issues related to Plaintiff's lawsuit, such as the landfill and the aquifer, would violate Rule 4.2 of the Illinois Rules of Professional Conduct.
Plaintiff forwarded Markwell's e-mail to Steagall and informed him that Markwell's e-mail was in response to Plaintiff's request for legal opinions from Markwell on Board issues. Plaintiff asked Steagall for clarification on where Plaintiff stood on Board issues.
On February 23, 2015, Plaintiff sent an e-mail to Steagall and Markwell that read, in relevant part, as follows:
Markwell found Plaintiff's e-mail confusing, but interpreted it as a directive from Plaintiff not to discuss the issues relating to Plaintiff's lawsuit with him. Markwell interpreted these issues to include the Clinton landfill and the Mahomet Aquifer. Plaintiff's e-mail did not allay Markwell's concerns that discussing the landfill or aquifer with Plaintiff could violate Rule 4.2. Because Plaintiff's e-mail directed Steagall to contact Markwell, Markwell thought it best to wait to hear from Steagall before contacting Plaintiff directly.
Days after Plaintiff sent his February 23 e-mail, Markwell became aware of and reviewed the Illinois Public Officers Prohibited Activities Act (POPAA). In reviewing this statute, Markwell concluded that Plaintiff's participation on certain issues as a Board member could violate POPAA, given that Plaintiff had filed a lawsuit against the County and several of its employees.
Each year, in deciding where to allocate DeWitt County's resources, the Board determines how much money is budgeted for the DeWitt County Sheriff's Office and the Emergency Management Agency. The budgets of the DeWitt County Sheriff's Office and the Emergency Management Agency, including the salaries of the DeWitt County Sheriff, the DeWitt County sheriff's deputies, and the Director of the Emergency Management Agency, are paid, in part, from DeWitt County's General Fund. Funds from the County's General Fund can also be transferred to the County's Tort/Liability Fund, the fund from which the County pays liability claims. The less money the Board allocates to the budgets of the DeWitt County Sheriff's Office and the Emergency Management Agency, the more money the County can allocate to the Tort/Liability Fund. DeWitt County has a self-insured retention of $250,000 on liability claims, meaning that the County must pay the first $250,000 needed to defend or settle liability lawsuits. If Plaintiff entered into a settlement agreement with the County in this case, the settlement would be paid from the Tort/Liability Fund.
On March 2, 2015, Plaintiff sent an e-mail to Markwell asking various questions about the landfill, the 2002 landfill siting, the landfill's EPA permit, and the enforceability of the landfill host agreement. At the time, Steagall had not responded to Plaintiff's February 23 e-mail.
Approximately 90 minutes after Plaintiff sent his March 2 e-mail, one of Defendants' attorneys, Benjamin Jacobi (Jacobi), e-mailed a letter to Markwell and Steagall that memorialized Markwell's concerns that Plaintiff was violating POPAA. Markwell discussed the letter with Jacobi before Jacobi sent it. The letter stated, in relevant part, as follows:
After receiving the e-mail containing Jacobi's letter, Markwell forwarded the e-mail and the letter to Dee Dee Rentmeister (Rentmeister), the DeWitt County administrative assistant. Markwell asked Rentmeister to forward the letter to the other Board members. Markwell's purpose in asking Rentmeister to forward the letter was to update the other Board members on the status of Plaintiff's lawsuit, not to pass on any message, advice, or directive. Rentmeister forwarded Jacobi's letter to all Board members except Plaintiff and Ron Savage, the latter of whom did not have an e-mail address.
The e-mail sent by Rentmeister containing Jacobi's letter was received by nine of the Board members. All nine interpreted the e-mail and letter as an update on pending litigation, not a directive or advice from Markwell to do anything, such as withhold documents and information from Plaintiff. None of the Board members who received a copy of Jacobi's letter withheld documents or information from Plaintiff or impeded Plaintiff's participation as a Board member.
In early April 2015, Markwell and Clinton Landfill's attorney drafted a settlement agreement in the case the County filed against Clinton Landfill in August 2014. Markwell invited the Board members to make an appointment with him to review the settlement agreement.
On April 14, 2015, Board member Sherrie Brown (Brown) e-mailed Markwell to inquire as to the status of the negotiations regarding host fees owed to the County by Clinton Landfill. On that same date, Markwell responded in an e-mail that stated, in relevant part, as follows:
Brown sent another e-mail to Markwell on April 14, 2015, thanking him for his prompt reply and asking whether the amendment dealt strictly with fees. Markwell responded that same day in an e-mail that read, in relevant part, as follows:
On April 15, 2015, Plaintiff sent Markwell an e-mail that read, in relevant part, as follows:
After receiving Plaintiff's e-mail, Markwell spoke with Steagall over the phone and expressed concerns with communicating with Plaintiff in violation of Rule 4.2 of the Illinois Rules of Professional Conduct. During the call, Steagall did not consent to Markwell speaking to Plaintiff about matters related to Plaintiff's pending lawsuit.
After speaking with Steagall, Markwell responded to Plaintiff's April 15 e-mail. Markwell forwarded the entire April 14 e-mail string between him and Brown to Plaintiff, Steagall, and Jacobi. Markwell included the following statement in his e-mail:
Markwell's purpose in forwarding the e-mail chain was to provide Plaintiff with an accurate summary of the settlement agreement, the same information he had provided to other Board members who had requested information on the settlement agreement. Markwell also sought to express his concerns regarding Rule 4.2 and POPAA.
Brown made an appointment to meet with Markwell to discuss the settlement agreement on April 20, 2015. Less than two hours before Brown's appointment, Steagall sent Markwell an e-mail that read, in relevant part, as follows:
Other than a brief phone call on April 15, 2015, this e-mail was the first communication between Steagall and Markwell since February 23, 2015. Prior to April 20, 2015, Steagall had not consented to Markwell communicating with Plaintiff on matters related to Plaintiff's lawsuit. Markwell did not have time to consider Steagall's e-mail or discuss the e-mail with Jacobi before his scheduled meeting with Brown.
Plaintiff accompanied Brown to her appointment with Markwell on April 20. Markwell was unaware that Brown had invited Plaintiff to the meeting until Markwell met them in the lobby of the DeWitt County State's Attorney's Office. Markwell refused to meet with Plaintiff without Steagall being present.
Markwell met with Brown on April 20, 2015. During the short meeting, Markwell showed Brown a draft of the settlement agreement for the County's lawsuit against Clinton Landfill. Brown found that the settlement agreement was as Markwell summarized in the second e-mail he sent her on April 14, 2015. After Brown's meeting with Markwell, Brown informed Plaintiff that the settlement agreement was close to what Markwell had described in his e-mail.
After meeting with Brown, Markwell reviewed Steagall's April 20 e-mail more closely. Markwell found the e-mail to be unclear regarding Rule 4.2 and POPAA, and the e-mail did not alleviate Markwell's concerns that he would violate Rule 4.2 if he communicated with Plaintiff. Markwell therefore sent an e-mail to Plaintiff on April 21, 2015, that read, in relevant part, as follows:
Markwell felt that he could ethically accept a meeting with Plaintiff without Steagall being present after Plaintiff confirmed the four points listed in Markwell's e-mail. Markwell intended to accept a meeting with Plaintiff to review the settlement agreement relating to the County's lawsuit against Clinton Landfill had Plaintiff confirmed the four points in Markwell's e-mail.
Markwell sent his April 21 e-mail to Plaintiff 60 hours before the Board was scheduled to vote on the settlement agreement. Brown had taken only 30 minutes to review the settlement agreement, so Plaintiff had enough time to confirm the points as requested by Markwell and meet with Markwell to review the settlement agreement prior to the Board meeting scheduled for April 23. Plaintiff neither responded to Markwell's April 21 e-mail nor confirmed the four points listed in Markwell's e-mail. After Markwell sent his April 21 e-mail, Plaintiff did not request an appointment with Markwell to review the settlement agreement.
A Board meeting was held on April 23, 2015. The posted agenda for the meeting included a vote on the proposed settlement agreement between the County and Clinton Landfill. At the meeting, Plaintiff moved to table the approval of the settlement agreement until May 21 so that the public and government officials could view the settlement agreement and determine how it would affect their health, safety, and welfare and the Mahomet Aquifer. Plaintiff's motion was defeated by the Board.
Markwell read the settlement agreement to the Board and discussed with the Board the major points of the agreement. Board member Sherrie Brown found Markwell's summary of the settlement agreement to be fairly accurate. Plaintiff asked questions about the settlement agreement and those questions were answered. The Board approved the settlement agreement by a 9 to 2 vote, with Plaintiff and Brown voting against the settlement agreement.
Summary judgment is proper if the movant shows that no genuine dispute exists as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion and identifying the evidence the movant believes demonstrates the absence of any genuine dispute of material fact.
A party opposing a summary judgment motion may not rely solely upon the allegations in his pleading, but must "set forth specific facts showing that there is a genuine issue for trial."
Before proceeding to the merits of Defendants' Motion for Summary Judgment, the Court must address three preliminary issues, two of which bear on the facts set forth above. First, Plaintiff concedes that because he is no longer a member of the DeWitt County Board, his claim for injunctive relief against Defendant Markwell in his official capacity is moot and should be dismissed. Accordingly, that claim is DISMISSED WITH PREJUDICE.
Second, Plaintiff failed to respond to the material facts asserted by Defendants in paragraphs 25, 59, and 68 of the Motion for Summary Judgment. Accordingly, the Court treats the facts included in those paragraphs as admitted by Plaintiff.
Third, for the most part, Plaintiff, in disputing Defendants' asserted material facts, does not cite to materials in the record or explain how the materials cited by Defendants fail to establish the absence of a material dispute, as required by the Federal Rules of Civil Procedure and the Local Rules of the Central District of Illinois.
Having commented on these issues, the Court now proceeds to analyze whether Defendants are entitled to summary judgment on Plaintiff's remaining claims. The Court begins with Plaintiff's First Amendment retaliation claim against Defendant Markwell.
"The affirmative defense of qualified immunity protects government officers from liability for actions taken in the course of their official duties if their conduct does not violate `clearly established statutory or constitutional rights of which a reasonable person would have known.'"
The two-prong test used to determine if qualified immunity applies requires the Court to determine "(1) whether the facts, viewed in a light most favorable to the injured party, demonstrate that the conduct of the [defendant] violated a constitutional right, and (2) whether that right was clearly established at the time the conduct occurred."
For a public employee to make a prima facie case for a violation of his First Amendment rights, he must present evidence that "(1) his speech was constitutionally protected; (2) he suffered a deprivation likely to deter free speech; and (3) his speech was at least a motivating factor in the [defendant's] actions."
In the context of First Amendment retaliation, any deprivation "likely to deter the exercise of free speech" is actionable.
"Retaliatory speech is generally actionable only in situations of threat, coercion, or intimidation that punishment, sanction, or adverse regulatory action w[ill] immediately follow."
Applying this framework to the undisputed facts of this case, Plaintiff suffered no deprivation likely to deter the exercise of free speech. In responding to Defendants' summary judgment motion, Plaintiff bases his First Amendment retaliation claim on two actions taken by Markwell: (1) Markwell's directive to Rentmeister to forward Jacobi's March 2, 2015, letter to members of the DeWitt County Board and (2) Markwell's refusal to meet with Plaintiff on April 20, 2015.
Jacobi's letter was addressed to Steagall and asserted that Plaintiff had conflicts of interest on several Board matters, including business relating to the Clinton landfill. Plaintiff admits that Markwell's purpose in having the letter sent to the Board members was to update them on the status of Plaintiff's lawsuit, not to relay any message, advice, or directive. Plaintiff also admits that the Board members who received the letter viewed it as a litigation update, not a directive or advice to take any particular action, such as withhold documents or information from Plaintiff. None of the Board members who received Jacobi's letter withheld information or documents from Plaintiff or impeded Plaintiff's participation as a Board member. As such, the letter was not intimidating or coercive, nor did it include highly sensitive personal information about Plaintiff. The Court fails to see how Markwell's directive that Jacobi's letter be sent to most of the Board members resulted in any appreciable deprivation, let alone a deprivation likely to deter free speech.
Likewise, Markwell's refusal to meet with Plaintiff on April 20, 2015, was not a deprivation likely to deter free speech. In response to an e-mail sent by Plaintiff on April 15, 2015, Markwell informed Plaintiff that Plaintiff could review documents with him if Steagall was present. In addition, the day after Markwell refused to meet with Plaintiff, Markwell provided Plaintiff with an option to view the documents without Steagall being present: confirm (1) receipt of the April 20 e-mail from Steagall and the scope of Steagall's representation, (2) receipt and review of Jacobi's March 2, 2015, letter, (3) review and an understanding of POPAA, and (4) the opportunity to consult with counsel. Plaintiff had over two days to e-mail Markwell back and confirm the four points referenced in Markwell's April 21 e-mail before the Board meeting scheduled for April 23, 2015. Had Plaintiff done so, he could have met with Markwell to review documents without Steagall being present.
Based on these facts, the only deprivation Plaintiff suffered was not being able to view documents with Markwell without either bringing Steagall to Markwell's office or confirming the four points listed in the e-mail Markwell sent to Plaintiff on April 21, 2015. This minor inconvenience is not the sort of deprivation that can serve as the basis for liability on a First Amendment retaliation claim.
This holding is further supported by the fact that Markwell, on April 15, 2015, forwarded to Plaintiff e-mails that Markwell had sent to Sherrie Brown about the settlement agreement relating to the County's lawsuit against Clinton Landfill and a related host fee agreement amendment. Therefore, Markwell's refusal to meet with Plaintiff on April 20 did not leave Plaintiff without any information about the documents he wanted to discuss with Markwell. Although one can reasonably infer that Plaintiff had at least one additional question about the documents or needed clarification on at least one point referenced in Markwell's e-mails, Plaintiff does not clarify what information he was not able to obtain because Markwell refused to meet with him, information that he might have obtained by asking questions at the April 23, 2015, Board meeting.
Plaintiff's actions at the Board meeting, also support the Court's conclusion that Markwell's complained-of actions did not rise to the level of a deprivation likely to deter free speech. Despite the fact that Markwell had Jacobi's letter forwarded to most of the Board members and refused to meet with Plaintiff on April 20, Plaintiff attended the Board meeting, made a motion to table the vote on the approval of the settlement agreement, and asked questions, which were answered, about the settlement agreement. Plaintiff also voted against approving the settlement agreement.
These actions belie any assertion that Markwell's actions deterred Plaintiff from exercising his First Amendment rights. If Markwell's actions did not deter Plaintiff from exercising his right to speak on issues related to the landfill and aquifer—the same type of speech Plaintiff alleges resulted in him being falsely arrested and maliciously prosecuted—there is no reason to think that Markwell's actions would have deterred any other reasonable Board member from exercising their First Amendment rights.
Plaintiff attempts to raise a genuine dispute of material fact as to whether he suffered an actionable deprivation by pointing to the Court's Opinion (d/e 19) entered on March 31, 2016, in which the Court held that Plaintiff had sufficiently alleged a deprivation likely to deter free speech in the Amended Complaint. However, just because Plaintiff pleaded enough facts to survive a motion to dismiss does not mean that Plaintiff has produced evidence of a deprivation sufficient to defeat a summary judgment motion.
Plaintiff has failed to produce evidence upon which a reasonable jury could find that he suffered a deprivation likely to deter the exercise of free speech. Plaintiff has therefore failed to produce evidence that would sustain a finding that Markwell violated his First Amendment rights. Accordingly, Defendant Markwell is entitled to qualified immunity on Plaintiff's First Amendment retaliation claim.
Even if Plaintiff had produced evidence creating a genuine dispute on whether he suffered a deprivation likely to deter the exercise of free speech, Defendant Markwell would still be entitled to qualified immunity and summary judgment on Plaintiff's First Amendment retaliation claim. The plaintiff bears the initial burden of demonstrating that "his conduct was a substantial or motivating factor in the defendant's action against him."
"On summary judgment, of course, the plaintiff's burden is simply to demonstrate that there is a genuine issue of material fact on the question of causation."
Given the undisputed facts in this case, no reasonable jury could find that Markwell's complained-of actions were motivated by a desire to retaliate against Plaintiff for filing his Complaint. Plaintiff admits that Markwell's decision to have Jacobi's letter sent to all but two of the Board members was motivated solely by a desire to keep the Board members apprised of the status of Plaintiff's lawsuit. Plaintiff further admits that Markwell did not have the letter forwarded for the purpose of advising or directing the Board members to take any particular action. Therefore, it is beyond reasonable debate that Markwell's act of having the letter forwarded to most of the Board members was not retaliatory in nature.
Plaintiff fares no better in creating a genuine dispute of material fact on causation with respect to Markwell's refusal to meet with him on April 20, 2015. As on the deprivation prong, Markwell's other actions help to establish that his motive in refusing to meet with Plaintiff was motivated not by a retaliatory intent, but by concerns about Rule 4.2 and POPAA. The e-mails Markwell sent to Plaintiff after learning of Plaintiff's Complaint all referenced Markwell's concerns with either Rule 4.2 or POPAA. Further, if Markwell's refusal to meet with Plaintiff on April 20 was retaliation against Plaintiff for filing his Complaint, why would Markwell forward the April 14 e-mails between him and Brown to Plaintiff? Why would Markwell agree to meet with Plaintiff and allow him to review the settlement agreement if Steagall was also present? Why would Markwell later give Plaintiff an opportunity to review the settlement agreement without Steagall being present merely by responding to an e-mail? The only reasonable conclusion that can be drawn from Markwell's actions is that he was not retaliating against Plaintiff when he refused to meet with Plaintiff on April 20, 2015. Rather, Markwell was acting cautiously on account of concerns he had relating to Rule 4.2 of the Illinois Rules of Professional Conduct and POPAA. This conclusion is further supported by the e-mails Markwell sent Plaintiff after learning about the Complaint, all of which mentioned Markwell's concerns regarding Rule 4.2 or POPAA.
Perhaps Plaintiff could have pointed to evidence raising a factual dispute as to whether Markwell's proffered reasons for refusing to meet with him on April 20 were pretextual. But Plaintiff does not dispute that Markwell would have met with him to discuss the settlement agreement had Plaintiff brought Steagall to the meeting or that the e-mail Steagall sent Markwell on April 20 did not alleviate Markwell's concerns regarding Rule 4.2. Plaintiff also does not dispute that Markwell did not have time to confer with Jacobi about Steagall's April 20 e-mail or that Markwell would have met with him to discuss the settlement agreement without Steagall being present had Plaintiff confirmed the four points referenced in Markwell's April 21 e-mail. Finally, Plaintiff does not dispute that he had enough time to confirm the points referenced in Markwell's April 21 e-mail and meet with Markwell to discuss the settlement agreement prior to the April 23 Board meeting.
Plaintiff does argue that the e-mail Steagall sent Markwell on April 20 gave Markwell permission to discuss the settlement agreement with Plaintiff. Plaintiff also argues that his participation as a Board member on issues related to the landfill and aquifer did not violate POPAA. But even if Plaintiff is right on these legal issues, summary judgment in favor of Defendants is not improper here. The relevant questions regarding causation are not whether Markwell would have violated Rule 4.2 if he had discussed the settlement agreement with Plaintiff on April 20 or whether Plaintiff violated POPAA when he participated in Board matters related to the landfill and aquifer. The relevant question is whether Markwell's reasons for refusing to meet with Plaintiff on April 20 were concerns that he would violate Rule 4.2 in meeting with Plaintiff and that discussing the settlement agreement with Plaintiff might lead Plaintiff to violate POPAA.
Now, in one sense, Plaintiff's Complaint was the reason that Markwell took the actions that Plaintiff asserts violated his First Amendment rights. Indeed, had Plaintiff not filed suit against DeWitt County in January 2015, Markwell would not have been concerned about Rule 4.2 or POPAA when Plaintiff sought information from him about the landfill and the settlement agreement. However, just because Markwell's actions were taken because Plaintiff filed a lawsuit does not mean that those actions were retaliatory. Holding otherwise would mean that Markwell would have violated Plaintiff's First Amendment rights if he had refused to discuss Plaintiff's lawsuit with Plaintiff on April 20, a proposition that not even Plaintiff would likely adopt. The undisputed facts establish that Markwell's actions were undertaken in a desire to navigate the potential pitfalls the filing of Plaintiff's Complaint created for Markwell, who represents the County on certain matters in his official capacity.
Because Plaintiff has failed to produce evidence upon which a jury could find a First Amendment violation by Defendant Markwell, Plaintiff cannot demonstrate a violation of a clearly established constitutional right of which a reasonable person would have known.
Even if Markwell's actions constituted a First Amendment violation, Markwell is still entitled to qualified immunity because the right he violated was not clearly established at the time Markwell took those actions. With respect to qualified immunity, the plaintiff bears the burden of showing that the constitutional right at issue was clearly established.
Here, the relevant question is whether Markwell, at the time he directed that Jacobi's letter be sent to Board members and refused to meet with Plaintiff, could have reasonably believed that he could take those actions without violating Plaintiff's First Amendment rights. Because the answer to that question is yes, Markwell is entitled to qualified immunity.
The Seventh Circuit has long held that "an entire campaign of harassment which though trivial in detail may have been substantial in gross" can violate a person's First Amendment rights.
All Markwell did was (1) direct that a letter detailing the conflicts created when Plaintiff, a Board member, filed suit against DeWitt County and several county employees be forwarded to other Board members and (2) require Plaintiff to either bring his attorney with him or confirm the four points in Markwell's April 21, 2015, e-mail before meeting with Markwell to review and discuss a settlement agreement involving the Clinton landfill, a document that had been accurately summarized in e-mails forwarded to Plaintiff by Markwell. Plaintiff has identified no Supreme Court or Seventh Circuit case law—and the Court has found none in its research—that would have put Markwell on notice that his actions undoubtedly constituted an actionable deprivation as opposed to a mere inconvenience that would not deter an ordinary person from exercising his First Amendment rights.
Plaintiff has not satisfied his burden of showing that Markwell violated a "clearly established" right. Accordingly, Defendant Markwell is entitled to qualified immunity on Plaintiff's First Amendment retaliation claim.
Plaintiff's
For the reasons stated, the Motion for Summary Judgment (d/e 34) filed by Defendants DeWitt County, Illinois, and Dan Markwell is GRANTED. The Clerk is DIRECTED to enter judgment in favor of Defendants against Plaintiff. Any pending deadlines are TERMINATED. Any scheduled settings are VACATED. This case is CLOSED.
