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Decker v. City of Greenfield

United States District Court, S.D. Indiana, Indianapolis Division

October 31, 2016

COREY DECKER, Plaintiff,
CITY OF GREENFIELD, JOHN JESTER, in his official and individual capacities, and RANDY RATLIFF, in his official and individual capacities, Defendants.



         Plaintiff, 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.

         I. Background

         In 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).

         During 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. at 33).

         Lt. 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[1] 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[2] 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).

         On July 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).

         On July 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.

         II. Discussion

         A. Count II, First Amendment Retaliation

         In 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)).

         The 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)).

         In the 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 mcmichael
• 2/14/14 I'm gonna punch mcchuck in the mouth, then Guinn, then kick mundens belly[3]

(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 protected speech).

         (Filing No. 52, Entry at 10). Nevertheless, the court denied the motion to give Plaintiff the opportunity to conduct discovery into the 71, 000 text ...

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