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Schenke v. Griffith

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

September 29, 2017

JAMES K. SCHENKE, Plaintiff,
v.
MITCH DANIELS, et al., Defendants.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on the Motion of Defendants Daniels, Griffith, Klingerman, Rosa, Zink, and Triol to Dismiss Amended Complaint [DE 68] filed by the defendants, Mitch Daniels, Julie Griffith, Trent Klingerman, Julie Rosa, Brian Zink, and Shelley Triol, on November 4, 2016. For the following reasons, the motion is GRANTED IN PART and DENIED IN PART.

         Background

         On October 18, 2016, the plaintiff, James Schenke, filed an Amended Complaint [DE 64] against the defendants, Julie Griffin, Trent Klingerman, Julie Rosa, Shelley Triol, Brian Zink, Mitch Daniels (Purdue defendants), John Dennis, and Randy Truitt. The amended complaint has alleged that the Purdue News Service Guidelines as enforced by the Purdue defendants violates Schenke's First Amendment right to speak as a private citizen on a matter of public concern, and that the Purdue defendants retaliated against Schenke for his exercise of free speech.

         Schenke was employed as a Broadcast Media Liaison by Purdue University's Office of News and Information. During the Spring and Summer of 2013, the City of Lafayette was attempting to annex certain property along the U.S. 231 corridor. The subdivision Wake Robin Estates, where Schenke resided and was a member of the Homeowners Association, would have been annexed under the plan. Schenke spoke and wrote against the annexation and was involved in protests concerning excessive noise in Wake Robin after the opening of the U.S. 231 bypass.

         The factual allegations contained in the amended complaint have alleged that Schenke began speaking out against the annexation in the Spring of 2013. Schenke spoke at the West Lafayette City Council Meeting, started an on-line petition opposing the annexation, and wrote a guest op-ed piece for the Lafayette Journal and Courier in which he opposed the annexation. He then appeared on local television newscasts, where he was identified as a board member of Wake Robin HOA.

         On September 9, 2013, Schenke wrote a letter to the editor of the Purdue Exponent in an attempt to correct false statements made about the annexation opponents. This letter was not published. However, Brian Zink approached Schenke “in an apparent panic” to ask whether Schenke had written a letter to the Exponent. Schenke affirmed that he had, and Zink advised Schenke to withdraw the letter, stating that “if that [letter] had already run, [Schenke] would likely have been fired.” Zink further informed Schenke that he must notify his supervisors and obtain permission before engaging in any media contacts, even personal ones not related to Purdue. Schenke was informed on September 10, 2013, that he did not receive the promotion that he applied for in July of 2013.

         On September 17, 2013, Schenke was interviewed by a local television station regarding the noise from U.S. 231. After his television appearance, Zink informed Schenke that he must discuss what would be said in any media interactions in addition to notifying his supervisors of any interactions in advance. Zink also informed Schenke that while he could prepare his neighbors to speak to the media, he could not appear himself and that any violation of these terms would lead to termination. On October 2, 2013, Schenke expressed frustration at not only being denied a new position but also for not being interviewed for any of the positions he had applied for. He was told by defendant Julie Griffith that “we all have track records. Perhaps this whole annexation thing was the problem.” On November 4, Schenke told Zink that he wanted to speak at an upcoming West Lafayette City Council meeting regarding the annexation plan. After repeated requests, the Purdue defendants, Brian Zink, Shelly Triol, and Trent Klingerman, held a meeting at which Schenke was told that he was allowed to address the City Council, but he was advised not to speak to the media. This meeting was the first time Schenke saw Purdue's News Service Guidelines, which the Purdue defendants claimed he violated. After the City Council meeting, a reporter approached Schenke and asked him a question, which he answered in order to explain to the reporter that he was not publically opposing a plan that Purdue had favored. Purdue had not yet expressed an official opinion on the matter, and the story that ran the next day did not imply that Schenke was publically opposing a plan that Purdue approved.

         The Purdue defendants held a meeting at which Schenke was reprimanded because he violated the News Service policies, which the Purdue defendants alleged he had been warned about repeatedly. Schenke was told to read and sign the reprimand, but that no changes would be made. Schenke, after talking to a colleague, learned that he could file a grievance, which he did on November 26. At the grievance hearing, the reprimand was rescinded based on the fact that Schenke had not been aware of the guidelines at the time of his violations. Schenke no longer is employed by Purdue and was terminated because of his arrest on charges of domestic violence and public intoxication.

         The Purdue defendants have moved to dismiss the amended complaint. Schenke filed a response in opposition on December 4, 2016, and the Purdue defendants filed a reply in support on December 12, 2016. On May 22, 2017, this case was reassigned to Magistrate Judge Andrew P. Rodovich upon the parties' consent under 28 U.S.C. § 636(c).

         Discussion

         Federal Rule of Civil Procedure 12(b)(6) allows for a complaint to be dismissed if it fails to “state a claim upon which relief can be granted.” Allegations other than those of fraud and mistake are governed by the pleading standard outlined in Federal Rule of Civil Procedure 8(a)(2), which requires a “short and plain statement” to show that a pleader is entitled to relief. See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013). The Supreme Court clarified its interpretation of the Rule 8(a)(2) pleading standard in a decision issued in May 2009. While Rule 8(a)(2) does not require the pleading of detailed allegations, it nevertheless demands something more “than an un-adorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). In order to survive a Rule 12(b)(6) motion, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); Cincinnati Life Ins., 722 F.3d at 946 (“The primary purpose of [Fed.R.Civ.P. 8 and 10(b)] is to give defendants fair notice of the claims against them and the grounds supporting the claims.”) (quoting Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011)); Peele v. Clifford Burch, 722 F.3d 956, 959 (7th Cir. 2013) (explaining that one sentence of facts combined with boilerplate language did not satisfy the requirements of Rule 8); Joren v. Napolitano, 633 F.3d. 1144, 1146 (7th Cir. 2011). This pleading standard applies to all civil matters. Iqbal, 556 U.S. at 684.

         The decision in Iqbal discussed two principles that underscored the Rule 8(a)(2) pleading standard announced by Twombly. See Twombly, 550 U.S. at 555 (discussing Rule 8(a)(2)'s requirement that factual allegations in a complaint must “raise a right to relief above the speculative level”). First, a court must accept as true only factual allegations pled in a complaint-“[t]hreadbare recitals of the elements of a cause of action” that amount to “legal conclusions” are insufficient. Iqbal, 556 U.S. at 678. Next, only complaints that state “plausible” claims for relief will survive a motion to dismiss. Iqbal, 556 U.S. at 678. If the pleaded facts do not permit the inference of more than a “mere possibility of misconduct, ” then the complaint has not met the pleading standard outlined in Rule 8(a)(2). Iqbal, 556 U.S. at 678-79; see Brown v. JP Morgan Chase Bank, 2009 WL 1761101, at *1 (7th Cir. June 23, 2009) (defining “facially plausible” claim as a set of facts that allows for a reasonable inference of liability). The Supreme Court has suggested a two-step process for a court to follow when considering a motion to dismiss. First, any “well-pleaded factual allegations” should be assumed to be true by the court. Next, these allegations can be reviewed to determine if they “plausibly” give rise to a claim that would entitle the complainant to relief. Iqbal, 556 U.S. at 678-79; Bonte v. U.S. Bank, N.A., 624 F.3d 461, 465 (7th Cir. 2010). Reasonable inferences from well-pled facts must be construed in favor of the plaintiff. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995); Maxie v. Wal-Mart Store, 2009 WL 1766686, at *2 (N.D. Ind. June 19, 2009) (same); Banks v. Montgomery, 2009 WL 1657465, at *1 (N.D. Ind. June 11, 2009) (same).

         A complaint that lacks organization and coherence so that it is too confusing to understand the factual basis of the wrongful conduct also is subject to dismissal. Cincinnati Life Ins., 722 F.3d at 946. The court assesses this by considering whether it can make out the essence of the claims. Cincinnati Life Ins., 722 F.3d at 946. A complaint is not unintelligible simply because it contains repetitive and irrelevant matter. Cincinnati Life Ins., 722 F.3d at 946. “Rather, we have found complaints wanting when they present a ‘vague, confusing, and conclusory articulation of the factual and legal basis for the claim and [take] a general “kitchen sink” approach to pleading the case.' . . ...


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