United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANTS' MOTION FOR SUMMARY
RICHARD L. YOUNG, CHIEF JUDGE
Corey Decker, is a police officer with the Greenfield Police
Department (“GPD”). He brings claims against the
City of Greenfield, Chief John Jester, and Lt. Randy Ratliff
in their individual and official capacities, arising out of
text messages he sent to GPD Lt. Terry Austin on his private
cell phone and for which he was disciplined. Defendants now
move for summary judgment on Counts II and IV of
Plaintiff's Complaint, both of which assert First
Amendment claims under 42 U.S.C. § 1983. Having reviewed
the parties' submissions and the applicable law, the
court finds the motion should be GRANTED.
early March 2014, Detective Amy Johnson of the Indiana State
Police began an investigation into allegations concerning Lt.
Terry Austin for official misconduct. (Filing No. 60-3,
Deposition of John Jester (“Jester Dep.”) at
31-32). On March 22, she obtained a search warrant to seize
and search his private cell phone. (Filing No. 60-5, Search
Warrant). Based upon Detective Johnson's investigation,
Lt. Austin was charged with bribery and official misconduct.
(Filing No. 60-6, Information, Affidavit of Probable Cause,
Criminal Notice, and Felony Arrest Warrant).
the investigation, Detective Johnson documented and
downloaded almost 71, 000 text messages sent or received by
Lt. Austin. (Filing No. 60-4, Deposition of Randy Ratliff
(“Ratliff Dep.”) at 17-18). Lt. Ratliff reviewed
the text messages “to further the investigation, make
sure there wasn't anything that would exonerate
Lieutenant Austin in those messages.” (Id. at
20). During his review, he came across “the Corey
Decker ones concerning punching people and kicking people,
and the fact that he was planning on wrecking a police
car.” (Id. at 21). Lt. Ratliff contacted
Captain Joe Munden and Chief Jester due to his concerns over
those messages. (Id.). Chief Jester instructed Lt.
Ratliff to begin an internal affairs investigation as to
whether any GPD officer had sent text messages to Lt. Austin
which were in violation of the GPD Standard Operating
Procedures (“SOPs”) and/or the City of
Greenfield's Policies and Procedure Manual. (Jester Dep.
Ratliff prepared a report detailing his investigation.
(Ratliff Dep. at 22; Filing No. 60-8, Ratliff's Report).
The last three pages of his report consist of a section
entitled “Complaints from Text Messages, ” which
includes a list of the content of 24 text messages sent by
Plaintiff to Lt. Austin as well as ten text messages sent by
Lt. Austin to Plaintiff. (See Ratliff's Report
at 10-12). Ratliff presented the report to Chief Jester and
the entire GPD command staff at a meeting held at the Hancock
County Fraternal Order of Police building. (Jester Dep. at
40; Ratliff Dep. at 50-51). There, the command staff reviewed
the information gathered by Lt. Ratliff during his internal
affairs investigation pertaining to Officers Steven Kalk, Jim
Condra, Matt Holland and Plaintiff. (Jester Dep. at 35,
41-42; see also Filing No. 64, Statement of Claims
at 3). Chief Jester determined that all four officers,
including Plaintiff, would receive discipline for violating
the GPD's SOPs and the City's policy and procedure
manual. (Id. at 42).
28, 2014, Chief Jester issued a memorandum notifying
Plaintiff of his three-day suspension without pay. In
pertinent part, it reads:
As you are aware Lt. Randy Ratliff, [sic] has been conducting
an internal investigation at my request. During his
investigation it was determined that you have violated
several Standard Operating Procedures of the Greenfield
Police Department. During that investigation, it was
determined that you had sent several disturbing text
messages. Several of those messages would be considered
threats of physical violence to members of the Command Staff
of the police department. There was also a text message that
stated you would be actively trying to get into a crash, in
order to get a day off, like “bitch ass
McMichael.” These text messages are violations of the
Standard Operating Procedures, and the City of Greenfield
Policy and Procedure Manual.
(Filing No. 60-9, Notice of Suspension).
30, 2014, Plaintiff requested a review of his suspension by
the City's Board of Public Works and Public Safety
(“Board”). (Filing No. 28, First Amended
Complaint (“Am. Compl.”) ¶ 41; Filing No.
31, Amended Answer ¶ 41). During the September 9, 2014
Board meeting, a motion to uphold Chief Jester's decision
and deny the request for a hearing was approved by a 3-2
vote. (Filing No. 60-11, Minutes from Board of Public Works
and Safety at 6). This lawsuit followed.
Count II, First Amendment Retaliation
Count II of his Complaint, Plaintiff alleges Chief Jester
retaliated against him in violation of the First Amendment by
disciplining him over his personal text messages. A prima
facie case of First Amendment retaliation requires a
plaintiff to show 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 employer's action. George v. Walker, 535
F.3d 535, 538 (7th Cir. 2008) (citing Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006)).
first step in the analysis-whether the plaintiff's speech
is constitutionally protected-is a question of law.
“[S]peech is constitutionally protected if ‘(1)
the employee spoke as a citizen on matters of public concern,
and (2) the interest of the employee as a citizen in
commenting upon matters of public concern outweighs the
interest of the State as an employer in promoting the
efficiency of the public services it performs through its
employees.'” Nagle v. Village of Calumet
Park, 554 F.3d 1106, 1123 (7th Cir. 2009) (quoting
Sigsworth v. City of Aurora, 487 F.3d 506, 509 (7th
Cir. 2007)). “Speech deals with a matter of public
concern when it can ‘be fairly considered as relating
to any matter of political, social, or other concern to the
community, ' or when it ‘is a subject of legitimate
news interest; that is, a subject of general interest and of
value and concern to the public.'” Snyder v.
Phelps, 562 U.S. 443, 453 (2011) (quoting Connick v.
Myers, 461 U.S. 138, 146 (1983)). Conversely, speech is
not a matter of public concern if it involves “merely a
personal grievance of interest only to the employee.”
Gustafson v. Jones, 290 F.3d 895, 907 (7th Cir.
2002) (citing Connick, 461 U.S. at 146). The
court's inquiry is guided by the “content, form,
and context” of the employee's statement based on
the record as a whole. Connick, 461 U.S. at 147-48.
Of those factors, content is the most important.
Kristofek v. Village of Orland Hills, 712 F.3d 979,
984 (7th Cir. 2013) (citing Chaklos v. Stevens, 560
F.3d 705, 712 (7th Cir. 2009)).
Defendants' Motion for Judgment on the Pleadings, the
Defendants argued that Plaintiff's suspension was based
on the following two text messages, sent on February 14 and
15, 2014, respectively:
• 2/14/14 I ain't doing dick for this place, I keep
trying to get t boned so I can get a PTS Day, like bitch ass
• 2/14/14 I'm gonna punch mcchuck in the mouth, then
Guinn, then kick mundens belly
(Filing No. 60-8, Lt. Ratliff's Report to Chief Jester).
The court found the text messages did not constitute a matter
of public concern because:
[they] discuss threats of violence to other members of the
GPD and a threat to wreck Plaintiff's vehicle (City
property) in order to get a day off. Threats of this sort do
not merit constitutional protection. Virginia v.
Black, 538 U.S. 343, 359 (2003) (citing Watts v.
United States, 394 U.S. 705, 708 (1969)) (holding that
“true threats” - statements where the speaker
means to communicate a serious expression of an intent to
commit an act of unlawful violence to another - are not
No. 52, Entry at 10). Nevertheless, the court denied the
motion to give Plaintiff the opportunity to conduct discovery
into the 71, 000 text ...