### In the



# United States Court of Appeals

For the Seventh Circuit

No. 12

‐ 1778

D WAYNE V OLKMAN

, Plaintiff

‐ Appellant

,

v.

L EE R YKER

, M ARC H ODGE

, and

B ARBARA H ESS

, Defendants

‐ Appellees.

Appeal from the United States District Court for the

Central District of Illinois.

No. 2:10

‐ CV

‐ 02132— Sue E. Myerscough

, Judge.

A RGUED S EPTEMBER 19, 2013—D ECIDED D ECEMBER 2, 2013

Before M ANION

, K ANNE

, and S YKES

, Circuit Judges.

K ANNE

, Circuit Judge. Dwayne Volkman was employed as

a casework supervisor at the Lawrence Correctional Center in

Illinois when he called the local State’s Attorney to comment2 No. 12

‐ 1778

on the criminal prosecution of a co

‐ worker for violations of

Illinois Law and Department of Corrections policy. After an

internal investigation, Volkman received a written reprimand

and was suspended for five days. He sued various officials

connected to the disciplinary process under 42 U.S.C. § 1983,

alleging retaliation in violation of the First Amendment to the

United States Constitution. The district court bifurcated trial

proceedings so that potentially dispositive issues of law could

be tried to the bench before calling in a jury. After bench

proceedings concluded, the district court issued an opinion

finding that the defendants were entitled to qualified immu

‐ nity and that, even if they were not, Volkman had failed to

prove his case as a matter of law. Volkman appeals the adverse

judgment of the district court, and we affirm.

I. B ACKGROUND

In June 2008, the Illinois Department of Corrections

(“IDOC”) investigated Jody Burkhardt, a correctional officer at

the Lawrence Correctional Center (the “LCC”). The investiga

‐

tion revealed that Burkhardt brought his cell phone into the

LCC on or about May 8, 2008, and that he used it to make

about thirty calls from inside the facility. His conduct violated

internal IDOC policies, as well as the laws of the State of

Illinois. IDOC referred the results of the investigation to the

Lawrence County State’s Attorney, Patrick Hahn, who filed

felony charges against Burkhardt on June 30, 2008.

At lunch a few days after the charges were filed, another

correctional officer, Chad Ray, told a number of employees

that Burkhardt was being prosecuted on felony charges for

accidentally bringing his cell phone into the facility. RayNo. 12

‐ 1778 3

suggested that the others should feel free to voice their

opinions to the State’s Attorney as to how to pursue the matter.

One of the employees involved in that conversation was the

appellant, Dwayne Volkman, a casework supervisor at the

LCC. After work, Volkman called the State’s Attorney from his

personal cell phone. The State’s Attorney was unavailable, so

Volkman left a message with his secretary. Volkman told the

secretary that, as a citizen of the county, he did not believe that

any term of incarceration should be pursued in Burkhardt’s

case, and that the State’s Attorney should consider allowing

the matter to be handled internally through the IDOC disci

‐ plinary process. He stressed that he was only calling to express

his opinion as a citizen, and not as an employee of the LCC.

State’s Attorney Hahn called Volkman back later that night

to ask what was going on at the LCC. During the ensuing

conversation, Volkman told Hahn that he did not personally

know all of the facts pertaining to Burkhardt’s case, but that he

did have an opinion. If Burkhardt had allowed an inmate to

use the cell phone, Volkman felt prosecution to the fullest

extent of the law would be warranted. If, on the other hand,

Burkhardt had merely carried the cell phone into the facility,

and it was not used improperly, Volkman felt the matter

should be sent back and handled by IDOC internally.

News of Volkman’s conversation with the State’s Attorney

reached Marc Hodge, the internal affairs investigator at the

LCC, and Hodge commenced an investigation. First, he

interviewed Chad Ray, who admitted that he asked his

co

‐ workers to contact the State’s Attorney and to voice their

displeasure with the Burkhardt prosecution. Next, he spoke to4 No. 12

‐ 1778

Volkman. When Hodge asked Volkman if he spoke with the

State’s Attorney, Volkman asked if he was personally under

investigation. Hodge suggested that the answer to Volkman’s

question depended on the answer to Hodge’s question;

Volkman declined to respond. Ultimately, Volkman was issued

a written reprimand and suspended for five days as a result of

his decision to contact the State’s Attorney.

Volkman filed suit pursuant to 42 U.S.C. § 1983, naming six

IDOC employees as defendants in both their individual and

official capacities. Volkman’s complaint alleged that his rights

under the First Amendment to the United States Constitution

were violated when he was retaliated against for engaging in

protected speech, and, in the alternative, that he was retaliated

against for his political affiliation. The defendants moved for

summary judgment, arguing against Volkman’s claims on the

merits and that they were entitled to qualified immunity.

In response to the defendants’ motion, Volkman consented

to the dismissal of his political affiliation claim, and agreed that

three of the six originally

‐ named defendants were improperly

joined. The district court independently noted that the official

capacity claims against the three remaining defendants were

blocked by the Eleventh Amendment. The court therefore

narrowed the scope of the complaint to an individual

‐ capacity

free speech retaliation claim against defendants Marc Hodge,

above

‐ mentioned; Lee Ryker, then the warden at LCC; and

Barbara Hess, an IDOC administrative assistant who was

involved in coordinating disciplinary proceedings against

Volkman.No. 12

‐ 1778 5

Turning to the merits, the district court found that Volkman

spoke as a private citizen on a matter of public concern when

he contacted the State’s Attorney. Because the defendants

failed to provide the district court with any argument as to

why IDOC’s interests in suppressing Volkman’s speech

outweighed Volkman’s interest in speaking, the district court

denied summary judgment on the merits. It also found that, on

the record as it existed at that time, the defendants were not

entitled to qualified immunity.

Later, however, the district court reversed course. As trial

approached, the defendants moved to bifurcate proceedings so

that evidence regarding the Pickering factors could be pre

‐

sented to the judge alone, and not to a jury. Over Volkman’s

objection, the district court granted the defendants’ motion.

After the bench proceeding concluded, the district court found

that the defendants’ conduct did not violate Volkman’s

constitutional rights, and that even if it did, the defendants

were entitled to qualified immunity. Volkman now appeals the

judgment entered in favor of the defendants.

II. A NALYSIS

Volkman argues that the manner in which the district court

resolved the case—separating a bench trial on the issues of

whether the speech was constitutionally protected and

whether the defendants were entitled to qualified immunity

from a jury trial on causation—was procedurally improper. He

also argues that the defendants were not entitled to qualified

immunity, and that they did, in fact, violate his rights as

secured by the First Amendment.6 No. 12

‐ 1778

We find no error in the district court’s procedural approach,

and we conclude that Volkman has not carried his burden of

showing that the defendants’ conduct violated a “clearly

established” constitutional right. Accordingly, the defendants

are entitled to qualified immunity. To the extent that any

justiciable controversy remains after the doctrine of qualified

immunity is applied, we affirm the district court’s conclusion

that Volkman has not shown the violation of his First Amend

‐

ment rights.

A. The District Court’s Procedural Approach

After denying summary judgment, the district court

granted the defendants’ motion to bifurcate the trial. In his

opening brief, Volkman suggested that to do so was a proce

‐

dural mistake. Volkman may have abandoned this argument

in his reply brief (it is not mentioned at all), but we address it

nonetheless in order to confirm that Volkman’s right to a jury

trial was not impaired.

The district court bifurcated Volkman’s trial pursuant to

Rule 42(b) of the Federal Rules of Civil Procedure. Under the

rule, “[f]or convenience, to avoid prejudice, or to expedite and

economize, the court may order a separate trial of one or more

separate issues, claims, crossclaims, counterclaims, or third

‐

party claims.” Fed. R. Civ. P. 42(b). In doing so, “the court

must preserve any federal right to a jury trial.” Id

. A district

court’s decision to bifurcate or to hold separate trials is

reviewable for an abuse of discretion. Houskins v. Sheahan

, 549

F.3d 480, 495 (7th Cir. 2008).

The district court did not abuse its discretion in this case.

When a plaintiff brings a Section 1983 claim for retaliation inNo. 12

‐ 1778 7

violation of First Amendment rights in the employment

context, our analysis has traditionally involved three steps.

First, the court must decide whether the employee’s speech

was constitutionally protected. Hutchins v. Clarke

, 661 F.3d 947,

955 (7th Cir. 2011) (citing Phelan v. Cook County

, 463 F.3d 773,

790 (7th Cir. 2006)). Second, the plaintiff must establish that the

speech was a substantial or motivating factor in the alleged

retaliatory action. Hutchins

, 661 F.3d at 955–56. Finally, if the

plaintiff satisfies the first two steps, the defendant has an

opportunity to establish that the same action would have been

taken in the absence of the employee’s protected speech. Id

.

Not all of these questions fall within the province of the

jury. The latter two do; they concern causation as a factual

matter, and are best answered by the traditional finder of fact.

See Clairmont v. Sound Mental Health

, 632 F.3d 1091, 1106 (9th

Cir. 2011); Thomas v. City of Blanchard

, 548 F.3d 1317, 1327 (10th

Cir. 2008); Morris v. City of Chillicothe

, 512 F.3d 1013, 1018 (8th

Cir. 2008). But the first question—whether the employee’s

speech was constitutionally protected—is a question of law to

be decided by the court. Messman v. Helmke

, 133 F.3d 1042, 1046

(7th Cir. 1998); see also Connick v. Myers

, 461 U.S. 138, 148 n.7

(1983). The same goes for the subsidiary considerations which

supply the answer to that question, such as whether the

plaintiff spoke as a private citizen on a matter of public

concern, and whether the governmental interests served by

suppression of the speech outweigh the interests of the

employee in engaging in that speech. Messman

, 133 F.3d at

1046.

The district court in this case simply separated the bench

trial on issues of law—particularly, whether Volkman engaged8 No. 12

‐ 1778

in protected speech—from the jury trial on issues of fact. Not

only was this not an abuse of discretion, it was the most

efficient way to proceed. If a plaintiff’s speech is not constitu

‐ tionally protected as a matter of law, his claim fails. In such

instances, it is unnecessary to waste judicial resources on a jury

trial to determine whether said unprotected speech was the

reason for any adverse action taken against the plaintiff,

because it makes no difference to the outcome of the case. We

conclude that the district court’s procedure was constitution

‐ ally adequate and was appropriately explained.

B. Qualified Immunity and “Clearly Established” Rights

In addition to ruling against Volkman outright on the

issue of constitutional protection, the district court found that

the defendants were shielded by the doctrine of qualified

immunity, and that Volkman’s case must therefore be dis

‐

missed. Volkman challenges that conclusion. We review the

validity of a qualified immunity defense de novo

. Elder v.

Holloway

, 510 U.S. 510, 516 (1994).

Governmental actors performing discretionary functions

enjoy “qualified immunity,” meaning that they are “shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Estate of

Escobedo v. Bender

, 600 F.3d 770, 778 (7th Cir. 2010) (quoting

Sallenger v. Oakes

, 473 F.3d 731, 739 (7th Cir. 2007)); Harlow v.

Fitzgerald

, 457 U.S. 800, 818 (1982). The qualified immunity

analysis therefore traditionally involves a two

‐ part inquiry.

The first question is whether the defendants’ conduct violated

a constitutional right. Saucier v. Katz

, 533 U.S. 194, 201 (2001)No. 12

‐ 1778 9

(overruled in part by Pearson v. Callahan

, 555 U.S. 223 (2009)).

The second question is whether that particular constitutional

right was “clearly established” at the time of the alleged

violation. Id

. We may consider the two questions in either

order. Pearson

, 555 U.S. at 236–242. In this case, we begin by

asking whether the right alleged to be violated is “clearly

established.”

Volkman bears the burden of establishing that the constitu

‐

tional right at issue was clearly established. Estate of Escobedo

,

600 F.3d at 779 (citing Koger v. Bryan

, 523 F.3d 789, 802 (7th Cir.

2008)). Typically, “[t]he difficult part of this inquiry is identify

‐ ing the level of generality at which the constitutional right

must be clearly established.” Casey v. City of Fed. Heights

, 509

F.3d 1278, 1284 (10th Cir. 2007). The Supreme Court has

“repeatedly told courts

... not to define clearly established law

at a high level of generality,” Ashcroft v. al

‐ Kidd

, 131 S. Ct. 2074,

2084 (2011), and the Seventh Circuit has long held that “the test

for immunity should be whether the law was clear in relation

to the specific facts confronting the public official when he

acted.” Colaizzi v. Walker

, 812 F.2d 304, 308 (7th Cir. 1987). At

minimum, Volkman must show that the contours of the right

he alleges was violated are “sufficiently clear that a reasonable

official would understand that what he is doing violates that

right.” Estate of Escobedo

, 600 F.3d at 779 (quoting Hope v. Pelzer

,

536 U.S. 730, 739 (2002)). And, although we are mindful that

“an official action is not protected by qualified immunity only

when the very action in question has previously been held

unlawful,” id

., we have also said that “[f]or qualified immunity

to be surrendered, preexisting law must dictate, that is, truly

compel

... the conclusion for every like

‐ situated, reasonable10 No. 12

‐ 1778

government agent that what [he] is doing violates federal law

in the circumstances .” Khuans v. Sch. Dist. 110

, 123 F.3d 1010,

1019–20 (7th Cir. 1997) (quoting Lassiter v. Ala. A & M Univ.

, 28

F.3d 1146, 1150 (11th Cir. 1994)).

The cases Volkman has put forward demonstrate little more

than that the First Amendment right against retaliation, writ

large, is clearly established. But this is not so easy a case that

citing to a general proposition of law is enough to show that

any reasonable official would have known that to restrict or

punish Volkman’s speech was unconstitutional. Brosseau v.

Haugen

, 543 U.S. 194, 199 (2004) (suggesting that general

propositions of law give “fair warning” only in the most

obvious cases). There are fact

‐ intensive considerations at play,

including whether Volkman spoke as a private citizen or in his

capacity as a public employee, whether he spoke on a matter

of public concern, and whether IDOC had an adequate

justification for treating Volkman differently from any other

member of the general public. See Pickering v. Bd. of Ed. of Twp.

High Sch. Dist. 205

, 391 U.S. 563 (1968). The defendants

highlighted the weakness of Volkman’s effort to show that his

rights were clearly established in their response brief, but he

did nothing to buttress his position in his reply. As a result, we

need not say at exactly what level of specificity Volkman was

required to show that his rights were clearly established on

these facts; it is enough to note that what he has done is plainly

not enough.

C. Volkman’s Rights Were Not Violated

Finally, Volkman argues that even if the defendants are

entitled to qualified immunity, his requests for injunctive andNo. 12

‐ 1778 11

declaratory relief still remain, thus keeping the case alive.

Denius v. Dunlap

, 209 F.3d 944, 959 (7th Cir. 2000) (“The

doctrine of qualified immunity does not apply to claims for

equitable relief.”). There are serious questions about the

continued justiciability of Volkman’s non

‐ monetary demands. 1

Putting those aside, however, there is a simpler reason why the

district court’s resolution of the case was correct: Volkman

failed to prove his case.

As we have mentioned, our analysis of a First Amend

‐

ment retaliation claim involves three steps. First, the court

must decide whether the employee’s speech was constitution

‐ ally protected. Hutchins

, 661 F.3d at 955–956. Second, the

plaintiff must establish that the speech was a substantial or

motivating factor in the alleged retaliatory action. Id

. Third, if

the plaintiff satisfies the first two steps, the defendant has an

opportunity to establish that the same action would have been

taken in the absence of the employee’s protected speech. Id

.

Answering the first question—whether the speech was

constitutionally protected—requires answering the subsidiary

questions laid out in the Connick

‐ Pickering test: whether

1 The injunctive relief he seeks is an order directing IDOC to vacate his

written reprimand, but they may have done so internally already. If the

injunctive relief is moot, we doubt whether, on these facts, the declaratory

judgment request can stand alone. See Rhodes v. Stewart

, 488 U.S. 1, 4 (1988)

(a declaratory judgment request cannot sustain a live case or controversy

where granting the declaratory judgment would not “affect[ ] the behavior

of defendant toward the plaintiff”); Ashcroft v. Mattis

, 431 U.S. 171, 172

(1977) (holding that a claim for declaratory relief is moot where the

“primary claim of a present interest in the controversy is that [the plaintiff]

will obtain emotional satisfaction from [the] ruling”).12 No. 12

‐ 1778

Volkman spoke as a private citizen or in his capacity as a

public employee; whether he spoke on a matter of public

concern; and whether the IDOC defendants had an adequate

justification for treating Volkman differently than any other

member of the general public. See Hutchins

, 661 F.3d at 955;

Phelan

, 463 F.3d at 790. Throughout the pendency of this

litigation, the district court maintained that Volkman did speak

as a private citizen and that he spoke on a matter of public

concern. With that, we summarily agree. The district court

ruled against Volkman after the bench trial, however, because

IDOC showed that its interests in suppressing the speech

outweighed Volkman’s interests in making it. The balancing of

interests presents a question of law, which we review de novo

.

Messman

, 133 F.3d at 1046.

We have derived seven factors from Pickering which we

consider when conducting the balancing of interests:

(1) whether the speech would create problems in

maintaining discipline or harmony among co

‐ workers;

(2) whether the employment relationship is one in

which personal loyalty and confidence are necessary; (3)

whether the speech impeded the employee’s ability to

perform her responsibilities; (4) the time, place, and

manner of the speech; (5) the context within which the

underlying dispute arose; (6) whether the matter was

one on which debate was vital to informed

decision

‐ making; and (7) whether the speaker should be

regarded as a member of the general public.

Gustafson v. Jones

, 290 F.3d 895, 909 (7th Cir. 2002) (citing Greer

v. Amesqua

, 212 F.3d 358, 371 (7th Cir. 2000)). When reviewingNo. 12

‐ 1778 13

these factors, we have observed that “[t]he initial, and often

determinative, question is whether the speech interferes with

the employee’s work or with the efficient and successful

operation of the office.” Knapp v. Whitaker

, 757 F.2d 827, 842

(7th Cir. 1985). Moreover, because Pickering is a balancing

test—requiring us to weigh factors against each other, rather

than to merely count how many factors line up on each

side—one factor of great weight may offset several which lean

slightly in the other direction.

The primary consideration here is the nature of the

employer

‐ employee relationship in the paramilitary context of

a correctional center, a concern which goes to the first, second,

third and fifth factors, in particular. We have acknowledged

that, “[b]ecause police departments function as paramilitary

organizations charged with maintaining public safety and

order, they are given more latitude in their decisions regarding

discipline and personnel regulations than an ordinary

government employer.” Kokkinis v. Ivkovich

, 185 F.3d 840, 845

(7th Cir. 1999) (quoting Tindle v. Caudell

, 56 F.3d 966, 971 (8th

Cir. 1995)). The same logic applies to the law enforcement

bodies tasked with protecting and maintaining our correctional

centers, where safety and order are paramount concerns. In

such settings, we afford considerable deference to the

government employer’s assessment of the risks that employee

speech creates. Id

. at 845–46; see also Fuerst v. Clarke

, 454 F.3d

770, 774 (7th Cir. 2006).

Viewing the case against this backdrop, we agree with the

district court that IDOC’s interests in restricting Volkman’s

speech weigh more heavily in the balance. Volkman was

employed in a supervisory capacity. Supervisors are tasked14 No. 12

‐ 1778

with enforcing rules and regulations. When a supervisor, like

Volkman, criticizes a disciplinary decision (such as the decision

to move the Burkhardt matter “out of house” to the

prosecutor), it undermines other employees’ respect for the

chain

‐ of

‐ command, and for the rules which were violated in

the first place. There is value in maintaining order and respect

for their own sake in a paramilitary context like this one, and

we will not second

‐ guess prison officials’ conclusion that the

example Volkman set through his conduct was a detrimental

one. To be sure, none of this is meant to suggest that

Volkman’s right to express his opinion on a matter of public

concern is not also an important one. But in the paramilitary

context of a correctional center, we agree with the district court

that the LCC officials’ interests in maintaining order and

security in the workplace outweighed Volkman’s interests in

expressing his opinion on a work

‐ related prosecution.

III. C ONCLUSION

The district court’s decision to bifurcate the bench trial on

issues of law from the jury trial on issues of fact was not an

error, and we agree with the district court that Volkman has

not provided sufficient authority for us to set aside the

defendants’ qualified immunity. To the extent that any

justiciable request for relief survives the application of that

doctrine, we further agree that Volkman’s speech was not

constitutionally protected as a matter of law. We AFFIRM the

judgment of the district court.