United States District Court, N.D. Indiana, LaFayette Division
JAMES K. SCHENKE, Plaintiff,
MITCH DANIELS, et al., Defendants.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
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.
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.
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.
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
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.
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.
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
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).
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.
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).
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.' . . ...