United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
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) and will force him to disclose his medical
records in violation of his Fifth Amendment right against
self-incrimination. 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. [DE 47, 65,
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.
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
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
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.
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
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.
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.
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.” FreeEats.com, 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).
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].
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).
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 ...