Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case1:04-cv-00956-GIVIS D0cument212-4 Filed 07/07/2006 Page1 0f4

Case 1:04-cv—00956-G|\/IS Document 212-4 Filed 07/07/2006 Page 2 of 4
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Slip Copy Page 1
Slip Copy, 2006 WL 1750583 (S.D.Ind.)
(Cite as: Slip Copy)
H summary judgment in favor of the City of Evansville
Briefs and other Iiclatcd Docuincnts in a § 1983 First Amendment case. Based on those
Only tna Westlaw citation is currently available. daaisianar fha ramainina Dafandania again raaaaan
United States District Ceurt,S_D_ their entitlement to summary judgment in this case.
Indianarlndianapolis Division- The effect of the holding in Garcetti is to add a new
Barbara LOGAN, plaintitr; test in analyzing the employee's speech in
v_ determining whether it is protected under the First
INDIANA DEPARTMENT OF CORRECTIONS, Amendment. ln applying that test here, we fmd that
Daan Reiger, Rose vaisviias, Jini Ladd, Ron Rice, P1ain1if1`S Spaaah was nai praiaafad and Summary
Doug Gehrker Prison Health Services of Indiana, judgment must be entered in favor of Defendants.
LLC and Craig Underwood, Defendants.
Nc_ 1:04_cv_0797_SEB_JPG_ The Connick/Pickering test w, which has
traditionally been employed to guide constitutional
June 26, 2006_ interpretation of the protections accorded specific
speech by a public employee me and which we
applied in our earlier decisions, has not been
David Robert Brirnrn, Rianard A. Waples, wapiss & abandanad by tha Snprama Cmnt in Gamaffi- Tha
Hanger, Indianapolis) IN, {cr piaintitij initial Connick/Pickering inquiry as to whether the
Iuliana E_ Pierce, plaintiff employee was speaking out on a matter of
EEE, Indiana State Attcmey General, public concem is still an appropriate question
KziHH€’ Zoiglcr Cohen & Koch, Indianapolis, IN, for because, the ZHSWGI is HO, HO constitutional
Defendants- protection attaches to the speech. Garcetti, 126 S.Ct.
at 1958. However, before asking that question,
ENTRY ONDEFENDANTSH MOTION T0 Garcetti requires that "the court must decide whether
RECONSIDER an the plaintiff was speaking ‘as a citizen’ or as part of
her public job." Mills v. City of Evansville, Indiana,
No.05-3207, slip op. at 3 (7th Cir. June 20, 2006).
EQ For a detailed recitation ofthe facts of Stated etherwrsea the eenrt must ask, "Di<1 the
this matter, please refer to cur crder of employee's expression arise from her employment
Ncvemher gr 2005 (Document # duties?". Garcetti, 126 S.Ct. At 1959-60. If the
64)_SARAH EVANS BARKER, Judg€_ speech giving rise to Defendant's punitive action
*1 On November 8, 2005, we entered an order agarnst the speaker/ernPr9Yee aaannad as Part of fha
granting partial summary judgment in favor ar a amp19yaa'Si9brthantha aayannnam asanay dans nat
number of Defendants in this matter. On January 23, infiinsa any Private hbertres beeanse the sPeeeh
2006, on reconsideration, we reinstated Plaintiffs § “eWes its existence fa a Pnbhe ernPleYee's
1983 claim against three ofthe Darandants wna had pmfaasianai raap9nSibi1inaS-" fd- a11960-
previously been allowed to be dismissed from that
particular claim. In both of those orders, we noted
that the Supreme Court had taken a case which LTL Tha test nsad hY rederar eenrts in
involved issues with respect ts tna First Amendment public ampkiyaa fran Spaaah Casas ayaiyad
protections available to public employees, noting that rrem
the resolution of that case would likely impact issues and
before us_ Following the issuance of those two Pickering: V. BO(U`d OZ OZ TOlV]7ShiZ2
orders, Plaintiff settled her claims against all the ~ eh00t Dist- 205- Witt Cr ·· 39] Us- 563 88
"state defendants," leaving only her § 1983 claim
against her employer, Prison Health Services of
Indiana (PHS), and her supervisor, Craig Underwood. ina or annrsar Logan is het a “Pnhhe
Subsequently, as anticipated, the Supreme Court ernPreYee”» as that Phrase is used in
decided Grrraarri ri c:a1ra21ns Us --.. , 126 scr. anmmnn 1>ar1an¤a·H9W<=yar. as described in
1951, L.Ed.2d ---- (2006). In addition, tha Seventh ain aaniar ruling, a § 1983 ¤1aim may ba
Circuit recently applied Gareetti in affmning a successfully pursued if plaintiff establishes
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Case 1:04-cv—00956-G|\/IS Document 212-4 Filed 07/07/2006 Page 3 of 4
Slip Copy Page 2
Slip Copy, 2006 WL 1750583 (S.D.Ind.)
(Cite as: Slip Copy)
sufficient state involvement in the as IDOC and PHSI assert, for IDOC to conclude that
employment decision to trigger the relationship between its own facility Nursing
constitutional protection. Smgman v. Ryan, Director and Logan, as the contract Healthcare
176 F.3d 986, 1003 57th Cii;1999). Here, if Administrator, was irreparable creating a need to
Logan can establish that her private separate them in terms of their daily interactions,
employer, or its agents, jointly participated Logan's speech which generated IDOC's request that
with the state in achieving an PHS transfer her to another facility clearly arose out
unconstitutional goal, they are deemed to of the performance of Logan's employment
have acted "under color of law" and could responsibilities.
be held liable under § 1983. Id.
In Mills, after determining that the plaintiff
That said, we concede that the case before us does employee's speech occurred pursuant to her job duties
not permit a straightforward application of this and thus was not protected under the First
analytical template. We are confronted with a hybrid Amendment, Judge Easterbrook, writing for a
situation, involving a private employee suing her unanimous panel, explicated the public policy
private employer based on the claim that her underpimiings in a public employer's retention of
supervisor conspired with the State of Indiana and its power to transfer employees (as opposed to firing
agents to violate her First Amendment rights. Logan's them) in response to circumstances which suggest
broad responsibilities included those owed not only that the employee is unlikely to offer her fiill support
to her private employer, but those which were for implementation of the decisions of agency
required of her by her employer's client, the Indiana leaders. Mills, slip op. at 3-4.
Department of Corrections (IDOC). Public employers must be able to change assigmnents
in response to events (including statements) that
*2 In our previous ruling, we noted that as Healthcare reveal whether employees will be faithful agents of
Administrator at the New Castle correctional facility, the decisions made by the politically accountable
Logan had no direct responsibility for the state's managers. It promotes rather than undermines first
nursing personnel decisions. After Garcetti, Plaintiff amendment values when those who make decisions,
has latched on to this fmding, claiming that it and are held accountable at the polls, can ensure their
establishes that her comments to IDOC officials implementation within the bureaucracy.
regarding the need for removing the Director of
Nursing at New Castle did not arise out of her job Mills, slip op. at 4. Logan was fired in the case at bar
responsibilities. We are not persuaded by that only after she also had refused a transfer to another
argument, however, because as the lead healthcare nearby facility because, as she explains, the transfer
administrator at the facility, Logan's broad would have added another 25 to 30 minutes to her
responsibilities included acting "as liaison between commute and kept her during the workdays at a
correctional personnel, public agencies and Prison greater distance from her ill husband. This dicta in
Health Services." Moreover, three of the essential Mills regarding the necessity of a public employer's
duties listed in her job description included: (1) retaining the power to assign or to transfer employees
reviewing the status of imnates with serious health in order to ensure effective implementation of public
problems and assuring that intervention and treatment policy decisions underscores the correctness of our
was completed; (2) evaluating the provision of all decision that Logan's speech, criticizing the prison's
medical services to prevent inappropriate use or head nurse and recommending her removal from that
duplication; and (3) meeting with designated client position was not constitutionally protected.
personnel on a regular basis to discuss and evaluate
the program. Even though her speech in
recommending the removal of the head nurse at the Canclusion
prison may have addressed a matter of public
concern, Plaintiffs statements to IDOC officials *3 Garcetti and Mills have changed the analysis in §
regarding the persistent serious problems with 1983 First Amendment speech cases, requiring a new
nursing care for the imnates and her recommendation question to be asked and answered as a part of the
that the Nursing Director be replaced were clearly Connick/Pickering test. In applying this newly-
statements made "ptu·suant to" her official duties. formulated template here, it becomes plain that
Mills, slip op. at 1. About this, there simply is no Plaintiff made her statements pursuant to her job
longer any basis for "reasonable debate." Garcetti. duties and thus they fall outside the scope of First
126 S.Ct. at 1961.. Whether or not it was reasonable, Amendment protection. Accordingly, the First
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Case 1:04-cv—00956-G|\/IS Document 212-4 Filed 07/07/2006 Page 4 of 4
Slip Copy Page 3
Slip Copy, 2006 WL 1750583 (S.D.Ind.)
(Cite as: Slip Copy)
Motion to Reconsider Defendant's Motion for
Summary Judgment (Document # 74) is GRANTED
in favor of Defendants PHS and Craig Underwood on
the only remaining claims in this case. Defendants'
Motion to Continue Jury Trial (Document # 76) is
DENIED as moot.
IT IS SO ORDERED
S.D.Ind.,2006.
Logan v. Indiana Dept. of Corrections
Slip Copy, 2006 WL 1750583 (S.D.Ind.)
Briefs and Other Related Documents (Back to top)
• 2005 WL 3605941 (Trial Motion, Memorandum
and Affidavit) Plaintiff‘s Memorandum in Support of
Motion to Reconsider (Nov. 18, 2005)
· 2005 WI. 2871636 (Trial Motion, Memorandum
and Affidavit) Plaintiffs Surreply on Summary
Judgment (Sep. 16, 2005)
· 2005 WL 2871632 (Trial Motion, Memorandum
and Affidavit) Reply in Support of State Defendants'
Motion for Summary Judgment (Sep. 12, 2005)
• 2005 WL 2871634 (Trial Motion, Memorandum
and Affidavit) Reply Memorandum of Law in
Support of Summary Judgment (Sep. 12, 2005)
· 20()5 WL 2247985 (Trial Motion, Memorandum
and Affidavit) Plaintiffs Response to Defendants'
Motions for Summary Judgment (Jul. 29, 2005)
• 1:04cv00797 (Docket) (May 5, 2004)
END OF DOCUMENT
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