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Oszust v. Town of St. John

United States District Court, N.D. Indiana, Hammond Division

August 31, 2016

TOWN OF ST. JOHN, et al., Defendants.


          JON E. DEGUILIO Judge

         In this case, police officer David Oszust alleges that the Town of St. John, Indiana (the Town) retaliated against him for engaging in activity protected by Title VII. Further, he alleges that the Town's Metropolitan Board of Police Commissioners (the Board) commenced disciplinary proceedings against him that do not comply with Indiana Code § 36-8-3-4 (which governs police board disciplinary proceedings)[1] and will force him to disclose his medical records in violation of his Fifth Amendment right against self-incrimination.[2] He also brings claims against Chief of Police Fred Frego and James Turturillo, a police sergeant, under 42 U.S.C. § 1983 for First Amendment retaliation. Finally, Oszust and St. John citizen Thomas Parada allege that the Board has held non-public disciplinary meetings pertaining to Oszust (and plans to hold more) in violation of Indiana Code § 5-14-1.5-1 et seq. (Indiana's Open Door Law) and the First Amendment. The Defendants have now filed three motions to dismiss for failure to state a claim upon which relief can be granted.[3] [DE 47, 65, 70].[4] First, the Town moved to dismiss the Fifth Amendment and Title VII retaliation claims against it. [DE 47, 48, 55, 59]. Second, Defendant Turturillo filed a motion to dismiss the First Amendment retaliation claim against him. [DE 65, 66, 67, 72]. Third, the Town filed another motion to dismiss as to the claims against it under Indiana's Open Door Law, the police disciplinary board statute and the First Amendment. [DE 70, 71, 79, 82]. Thus, the Defendants have now moved to dismiss all of the Plaintiffs' claims except for the First Amendment retaliation claim against Frego. Their motions are ripe for review.


         In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the Court will take the facts alleged by the Plaintiffs to be true and draw all reasonable inferences in their favor. A complaint must contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, that statement must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Evaluating whether a Plaintiff's claim is sufficiently plausible to survive a motion to dismiss is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).


         Plaintiff David Oszust has been an officer of the St. John, Indiana police department since 2004. In 2013, he was injured in a work-related car accident. He was then placed on medical leave and began to receive workers' compensation benefits. Police Chief Fred Frego accused Oszust of committing fraud in obtaining some or all of those benefits. In November 2014, Frego brought disciplinary charges against Oszust before the Board. Those charges were dismissed the same month because, Oszust says, the Town was not sufficiently prepared to proceed with them. Frego refiled charges against Oszust on January 30, 2015, but again dismissed them as the Board was not prepared to proceed with a hearing.

         Around this time, three women purportedly experienced sexual harassment by Frego, Turturillo and other members of the St. John Police Department. Oszust encouraged them to bring their allegations to a lawyer, the EEOC, a state prosecutor and law enforcement. Those women filed suit against the Town in March 2015. The Defendants were aware of Oszust's involvement in this matter.

         Charges were refiled against Oszust for a third time on August 11, 2015. Two weeks later, on August 25, 2015, Frego filed a motion with the Board seeking to compel Oszust to sign authorizations disclosing his medical records. The Board granted the motion without giving Oszust an opportunity to respond. Oszust filed a motion for reconsideration as to the Board's decision on August 29, 2015, but the Board denied it and again ordered Oszust to execute a medical records release.

         Throughout these proceedings, the Board convened several times in executive sessions, which are closed to the public. Oszust and his counsel were present at some or all of those executive sessions. The Board has also indicated that it intends to hold further meetings as to Oszust and an administrative hearing on the charges against him in executive session. While the Board does seek to proceed with charges against Oszust, it has not yet taken further steps to discipline him. He is presently on administrative leave.

         In connection with these events, Oszust filed three lawsuits. First, he filed a suit in federal court (case no. 2:15-cv-339). That complaint, as amended, brings claims against the Town, asserting that the Board's order that Oszust disclose his medical records violates his Fifth Amendment right against self-incrimination and that the Town illegally retaliated against him under Title VII. [DE 41]. It also brings First Amendment retaliation claims under 42 U.S.C. § 1983 against Frego and Turturillo. Id. Second, Oszust filed two lawsuits in Indiana state court, which were later consolidated into a single complaint and removed to federal court (case no. 2:16-cv-22). In that consolidated complaint, as amended, Oszust claims that Indiana law bars the disciplinary charges against him because the Board failed to hold a timely hearing in compliance with Indiana Code § 36-8-3-4. [DE 3, case no. 2:16-cv-22]. Oszust also alleges, in conjunction with Parada (Parada joins this suit as to these allegations only), that the Board's closed-door meetings violate Indiana law and the First Amendment. Id. All of the above-described claims have now been consolidated into the single suit presently before the Court. [DE 63]. The Defendants have now filed motions to dismiss all of the Plaintiffs' claims except for the § 1983 First Amendment claim against Frego. The Court addresses each claim at issue in turn.


         Younger Abstention

         The Court first considers Younger abstention. That doctrine requires federal courts to “abstain from enjoining ongoing state proceedings that are (1) judicial in nature, (2) implicate important state interests, and (3) offer an adequate opportunity for review of constitutional claims, (4) so long as no extraordinary circumstances-like bias or harassment-exist which auger against abstention.”, Inc. v. Indiana, 502 F.3d 590, 596 (7th Cir. 2007) (quoting Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998)). While Younger involved a Plaintiff that sought to enjoin a pending state court criminal proceeding by bringing a constitutional claim in federal court, 401 U.S. 37 (1971), it has since also been applied to state administrative proceedings. Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982). The Supreme Court recently clarified that Younger is not a doctrine of broad applicability, but rather applies only in three types of exceptional cases: (1) ongoing state criminal prosecutions, (2) civil enforcement proceedings and (3) civil proceedings involving certain orders uniquely in furtherance of the state courts' ability to perform their judicial functions. Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 591 (2013).

         Oszust's claim under the Fifth Amendment implicates Younger. It seeks declaratory relief that would prohibit the Board from demanding Oszust's medical records and would thus directly interfere with proceedings against Oszust. The parties did not, however, raise Younger in their initial submissions. So, the Court issued a show cause order requesting them to brief it. [DE 83]; see also Time Warner Cable v. Doyle, 66 F.3d 867, 883 (7th Cir. 1995) (federal courts may, and are perhaps even required to, raise Younger abstention sua sponte); Boothe v. Sherman, 66 F.Supp.3d 1069, 1074 (N.D. Ill. 2014) (“Although no party has formally moved for Younger abstention, the court may raise the issue sua sponte.”). The Defendants have since responded that they believe that the criteria for Younger abstention are met. [DE 86]. The Plaintiffs' filing is more difficult to parse. It discusses numerous considerations wholly unrelated to Younger, including other abstention doctrines and issues that go to the merits of the Plaintiffs' claims. The Plaintiffs do not appear to generally oppose federal restraint. [DE 87 at 14]. As to Younger, though, they oppose abstention on the grounds that no state proceeding is currently pending against Oszust. [DE 87 at 9].

         Younger abstention does generally require an ongoing, or at least imminent, state proceeding. Mulholland v. Marion Cty. Election Bd., 746 F.3d 811, 817 (7th Cir. 2014); see also 17B Charles Alan Wright et al., Federal Practice and Procedure § 4253 (3rd ed. 2007). Here, the Plaintiffs allege that the Board filed charges against Oszust on August 11, 2015, and those charges are still pending. Moreover, the parties agree that the Board intends to move forward with those charges. [DE 71 at 3]; [DE 55 at 19 n. 6]; [DE 3 at 10-11, case no. 2:16-cv-22]. That makes the proceedings against Oszust ongoing. See Crenshaw v. Supreme Court of Indiana, 170 F.3d 725, 728 (7th Cir. 1999) (finding an ongoing state disciplinary proceeding where a Supreme Court disciplinary commission docketed a grievance and began a formal investigation against an attorney); In re Franceschi, 43 F. App'x 87, 90 (9th Cir. 2002) (finding state proceedings ongoing where the state bar had filed a notice of disciplinary charges against an attorney).

         The Plaintiffs nevertheless argue that “there is not an active disciplinary proceeding, ” [DE 87 at 9] since proceedings against Oszust are foreclosed by a timeliness requirement set forth in Indiana Code § 36-8-3-4. But this is not an argument that proceedings are not imminent or underway, it is an argument that they are not legal. Younger does not ask whether proceedings are permissible-which often goes to the merits of a case-but only whether a proceeding is pending such that federal interference with it might undermine principals of equity, comity and federalism. See Steffel v. Thompson, 415 U.S. 452, 462 (1974). Here, that is so. Indeed, if there were no ongoing proceeding against Oszust, it would moot many ...

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