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Homoky v. Ogden

United States District Court, Northern District of Indiana, Fort Wayne Division

November 24, 2014

KIRK HOMOKY, Plaintiff,
JEREMY OGDEN, et al., Defendants.



The Plaintiff, Kirk Homoky, is a City of Hobart police officer. In a Complaint filed in this Court on November 26, 2012, the Plaintiff sued the City of Hobart Board of Public Works and Safety (the Board), the City of Hobart police officers Jeremy Ogden and Garrett Cisezweski, and Chief of the City of Hobart Police Department, Jeffrey White, claiming that they had deprived him of a property interest without due process of law in violation of the Fourteenth Amendment, and violated his First Amendment rights. The Complaint also asked for injunctive relief against the Board. This matter is before the Court on the Defendants[’] Motion for Summary Judgment [ECF No. 49], filed by Defendants Ogden, Cisezweski, and White, and the related briefs and exhibits. The Defendants have also moved to strike portions of the Plaintiff’s exhibits and object to the Plaintiff’s statement of material facts [ECF No. 78].

The Board filed its own motion for summary judgment, which the Court addresses in a separate Opinion and Order.


Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. Summary judgment is the moment in litigation where the non-moving party is required to marshal and present the court with evidence on which a reasonable jury could rely to find in his favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). The court’s role in deciding a motion for summary judgment “is not to sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe. The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A district court should deny a motion for summary judgment only when the non-moving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (citing United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); Swearnigen–El v. Cook County Sheriff’s Dep’t, 602 F.3d 852, 859 (7th Cir. 2010)). Material facts are those that are outcome determinative under the applicable law. Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). “Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008).

As the Court addresses the legal issues presented by the Defendants’ Motion for Summary Judgment and analyzes the facts under the governing procedural and substantive law, the Court will consider the admissibility of the Plaintiff’s statements, determine whether there are any irrelevant, inadmissible, conclusory, or speculative assertions that should be disregarded, and deal with them accordingly. To the extent that any of the Plaintiff’s statements would be inadmissible if he were to offer them at trial, the Court will not consider them. Where exhibits do not go to facts that are outcome determinative under the applicable law, the Court will likewise ignore them. Additionally, the Court will operate under the principle that “it is simply not true . . . that if a litigant presents an overload of irrelevant or nonprobative facts, somehow the irrelevancies will add up to relevant evidence.” Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001). Consequently, there is no need to strike any part of the Plaintiff’s Affidavit or his exhibits, and the Court will deny the Defendants’ Motion to Strike.


Jeffrey White, as Chief of the Hobart Police Department, initiated an internal investigation into allegations that the Plaintiff engaged in improper and unethical conduct in his position as a police officer. White assigned Jeremy Ogden to conduct the internal investigation into the various complaints of wrongdoing and to prepare a report of his findings. Garrett Cisezweski also participated in the investigation. In an October 19, 2012, letter signed by Deputy Chief Vance Thompson the Plaintiff was informed: “Your conduct is the focus of an internal investigation ordered by the Chief of Police. In accordance with Hobart Police Department Rules, Regulations and General Orders, as well as the Garrity Rule, you are hereby ordered to cooperate fully and truthfully with investigators.” (10-19-12 Letter, ECF No. 50-2 at 133 (emphasis in original).) The Plaintiff acknowledged his receipt and understanding of the order, as well as his rights.

Ogden conducted numerous interviews during the investigation, including interviews with the Plaintiff. Ogden informed the Plaintiff that he was going to be ordered to take a voice stress test (VST). A letter dated November 13 advised the Plaintiff that he was to report to the Porter County Sheriff’s Department for a voice stress analysis interview on November 19 as part of the ongoing internal investigation. (11-13-12 Letter, ECF No. 50-2 at 134.) The letter reminded the Plaintiff that he had been afforded the protections of the Garrity Rule, and that the investigation was at the administrative level and was not a criminal investigation. On the date of the test, Ogden and Cisezweski were present at the Porter County Sheriff’s Department. Sergeant Tim Manteuffel from the Porter County Sheriff’s Department was assigned to administer the test.

Before the test was conducted, Detective Manteuffel presented the Plaintiff with a Truth Verification Release Form, which provided:

I, ____, do hereby voluntarily, without duress, coercion, promise, reward or immunity, submit to examination by the voice stress analysis truth verification technique and release, absolve and forever hold harmless the PORTER COUNTY SHERIFF’S DEPARTMENT and it’s [sic] officers, agents, or anyone acting in it’s [sic] behalf, from all claims, demands, or other damages from any matter, act, or thing arising out of the examination. I understand that this examination may be video and/or audio taped and I release into the possession of the PORTER COUNTY SHERIFF’S DEPARTMENT all materials, recordings and all other documents for the purpose of testimony and/or training.

(ECF No. 50-3 at 186.) The Form contained signature and date lines.

The Plaintiff said he needed to talk to his attorney, and then called someone on his cell phone. After reading the form to the person on the phone, the Plaintiff stated that he was not going to sign the form because he was not there voluntarily. Sergeant Manteuffel asked if the Defendant would sign the form if he changed the word voluntary to involuntary on the Form. The Plaintiff spoke to the person on the phone and stated that he still would not sign because he was not there voluntarily and was not promising that he would not sue. The Plaintiff disputes that he was given the option to cross out the word voluntary. Sergeant Eric Jones became involved as the situation developed. Jones told the Plaintiff that the Porter County Sheriff’s Department policy dictated that the test could not be administered without a signed form. According to the Plaintiff, Cisezweski told the Plaintiff that if he did not sign the form and take the test, he would report the Plaintiff’s refusal to the Chief. The Plaintiff did not sign the form, and he left the Sheriff’s Department without taking the test. Sergeant Manteuffel described these events in a written report.

In a letter drafted on this same date, November 19, Chief White placed the Plaintiff on unpaid administrative leave. The subject line advised that the letter concerned “Unpaid Administrative Leave - Pending Termination of Employment.” Chief White charged that the Plaintiff had failed to follow a lawful order to submit to a voice stress analysis as instructed by Deputy Chief Thompson in an order dated November 13, 2012. White stated “you have failed to cooperate truthfully with an internal investigation ordered by the Chief of Police regarding your conduct.” (11-19-12 Letter, ECF No. 50-3 at 63.) Chief White explained that the failure to obey a lawful order was a violation of Hobart Police Department rules and regulations, specifically the section against insubordination. Chief White informed the Plaintiff that “[e]ffective immediately you are relieved of your duties as a Hobart police officer and placed on unpaid administrative leave. It is my intention to seek termination of your employment before the Hobart Board of Public Works & Safety.” (Id.) The Plaintiff was ordered to relinquish his department property, and told that a lieutenant would keep him informed as the process moved forward.

The next afternoon, Chief White served the Plaintiff with written notice of the charges. The notice indicated that the Plaintiff had been advised of Chief White’s intention to seek the Plaintiff’s dismissal from employment with the Hobart Police Department. Chief White indicated that he would be presenting formal charges to the Board on Wednesday, November 21, 2012, and advised the Plaintiff of his statutory right under Indiana Code § 36-8-3-3 to request a hearing from the Board, which had to be received “within five days from your notice of intent to dismiss (termination of employment).” (11-20-12 Advise of Rights Letter, ECF No. 61-5 at 3.) Chief White advised the Plaintiff that, due to the impending Thanksgiving holiday, his written request for a hearing had to be received by the Board no later than Wednesday, November 28, 2012.

On this same date, Chief White served a letter on the members of the Board, with a copy to the Plaintiff. He stated, “It is my intention to seek termination of employment of Officer Kirk A. Homoky, without delay, for the following violations of the rules and regulations of the Hobart Police Department and Indiana law.” (11-20-12 Statement of Charges, ECF No. 61-5 at 2.) The Statement of Charges went on to specify two counts of misconduct. In the closing paragraph, Chief White wrote: “I would ask the Board to consider these charges and render a decision to affirm the termination of Officer Kirk A. Homoky’s employment with the Hobart Police ...

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