UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

KIRK HOMOKY, )

)

Plaintiff, )

)

v. ) CAUSE NO. 2:12-CV-491-TLS

)

JEREMY OGDEN, et al., )

)

Defendants. )

OPINION AND ORDER

The Plaintiff, Kirk Homoky, is a City of Hobart police officer. In a Complaint filed in this

Court on November 26, 2012, the Plaintiff sued the City of Hobart Board of Public Works and

Safety (the Board), the City of Hobart police officers Jeremy Ogden and Garrett Cisezweski, and

Chief of the City of Hobart Police Department, Jeffrey White, claiming that they had deprived

him of a property interest without due process of law in violation of the Fourteenth Amendment,

and violated his First Amendment rights. The Complaint also asked for injunctive relief against

the Board. This matter is before the Court on the Defendants[’] Motion for Summary Judgment

[ECF No. 49], filed by Defendants Ogden, Cisezweski, and White, and the related briefs and

exhibits. The Defendants have also moved to strike portions of the Plaintiff’s exhibits and object

to the Plaintiff’s statement of material facts [ECF No. 78]. 

The Board filed its own motion for summary judgment, which the Court addresses in a

separate Opinion and Order.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56. Summary judgment is the moment in litigation where the non-moving party is required to

marshal and present the court with evidence on which a reasonable jury could rely to find in his

favor. Goodman v. Nat’l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). The court’s role in

deciding a motion for summary judgment “is not to sift through the evidence, pondering the

nuances and inconsistencies, and decide whom to believe. The court has one task and one task

only: to decide, based on the evidence of record, whether there is any material dispute of fact that

requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A district

court should deny a motion for summary judgment only when the non-moving party presents

admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep’t of Corrs.,

652 F.3d 726, 731 (7th Cir. 2011) (citing United States v. 5443 Suffield Terrace, 607 F.3d 504,

510 (7th Cir. 2010); Swearnigen–El v. Cook County Sheriff’s Dep’t, 602 F.3d 852, 859 (7th Cir.

2010)). Material facts are those that are outcome determinative under the applicable law. Smith v.

Severn, 129 F.3d 419, 427 (7th Cir. 1997). “Irrelevant or unnecessary facts do not deter summary

judgment, even when in dispute.” Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104

(7th Cir. 2008). 

As the Court addresses the legal issues presented by the Defendants’ Motion for

Summary Judgment and analyzes the facts under the governing procedural and substantive law,

the Court will consider the admissibility of the Plaintiff’s statements, determine whether there are

any irrelevant, inadmissible, conclusory, or speculative assertions that should be disregarded, and

deal with them accordingly. To the extent that any of the Plaintiff’s statements would be

inadmissible if he were to offer them at trial, the Court will not consider them. Where exhibits do

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not go to facts that are outcome determinative under the applicable law, the Court will likewise

ignore them. Additionally, the Court will operate under the principle that “it is simply not true . . 

. that if a litigant presents an overload of irrelevant or nonprobative facts, somehow the

irrelevancies will add up to relevant evidence.” Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759,

762 (7th Cir. 2001). Consequently, there is no need to strike any part of the Plaintiff’s Affidavit

or his exhibits, and the Court will deny the Defendants’ Motion to Strike.

STATEMENT OF FACTS

Jeffrey White, as Chief of the Hobart Police Department, initiated an internal

investigation into allegations that the Plaintiff engaged in improper and unethical conduct in his

position as a police officer. White assigned Jeremy Ogden to conduct the internal investigation

into the various complaints of wrongdoing and to prepare a report of his findings. Garrett

Cisezweski also participated in the investigation. In an October 19, 2012, letter signed by Deputy

Chief Vance Thompson the Plaintiff was informed: “Your conduct is the focus of an internal

investigation ordered by the Chief of Police. In accordance with Hobart Police Department

Rules, Regulations and General Orders, as well as the Garrity Rule, you are hereby ordered to

cooperate fully and truthfully with investigators.” (10-19-12 Letter, ECF No. 50-2 at 133

(emphasis in original).) The Plaintiff acknowledged his receipt and understanding of the order, as

well as his rights.

Ogden conducted numerous interviews during the investigation, including interviews

with the Plaintiff. Ogden informed the Plaintiff that he was going to be ordered to take a voice

stress test (VST). A letter dated November 13 advised the Plaintiff that he was to report to the

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Porter County Sheriff’s Department for a voice stress analysis interview on November 19 as part

of the ongoing internal investigation. (11-13-12 Letter, ECF No. 50-2 at 134.) The letter

reminded the Plaintiff that he had been afforded the protections of the Garrity Rule, and that the

investigation was at the administrative level and was not a criminal investigation. On the date of

the test, Ogden and Cisezweski were present at the Porter County Sheriff’s Department. Sergeant

Tim Manteuffel from the Porter County Sheriff’s Department was assigned to administer the test.

Before the test was conducted, Detective Manteuffel presented the Plaintiff with a Truth

Verification Release Form, which provided:

I, ______________________________________, do hereby voluntarily, without

duress, coercion, promise, reward or immunity, submit to examination by the

voice stress analysis truth verification technique and release, absolve and forever

hold harmless the PORTER COUNTY SHERIFF’S DEPARTMENT and it’s [sic]

officers, agents, or anyone acting in it’s [sic] behalf, from all claims, demands, or

other damages from any matter, act, or thing arising out of the examination. I

understand that this examination may be video and/or audio taped and I release

into the possession of the PORTER COUNTY SHERIFF’S DEPARTMENT all

materials, recordings and all other documents for the purpose of testimony and/or

training.

(ECF No. 50-3 at 186.) The Form contained signature and date lines.

The Plaintiff said he needed to talk to his attorney, and then called someone on his cell

phone. After reading the form to the person on the phone, the Plaintiff stated that he was not

going to sign the form because he was not there voluntarily. Sergeant Manteuffel asked if the

Defendant would sign the form if he changed the word voluntary to involuntary on the Form. The

Plaintiff spoke to the person on the phone and stated that he still would not sign because he was

not there voluntarily and was not promising that he would not sue. The Plaintiff disputes that he

was given the option to cross out the word voluntary. Sergeant Eric Jones became involved as the

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situation developed. Jones told the Plaintiff that the Porter County Sheriff’s Department policy

dictated that the test could not be administered without a signed form. According to the Plaintiff,

Cisezweski told the Plaintiff that if he did not sign the form and take the test, he would report the

Plaintiff’s refusal to the Chief. The Plaintiff did not sign the form, and he left the Sheriff’s

Department without taking the test. Sergeant Manteuffel described these events in a written

report.

In a letter drafted on this same date, November 19, Chief White placed the Plaintiff on

unpaid administrative leave. The subject line advised that the letter concerned “Unpaid

Administrative Leave — Pending Termination of Employment.” Chief White charged that the

Plaintiff had failed to follow a lawful order to submit to a voice stress analysis as instructed by

Deputy Chief Thompson in an order dated November 13, 2012. White stated “you have failed to

cooperate truthfully with an internal investigation ordered by the Chief of Police regarding your

conduct.” (11-19-12 Letter, ECF No. 50-3 at 63.) Chief White explained that the failure to obey a

lawful order was a violation of Hobart Police Department rules and regulations, specifically the

section against insubordination. Chief White informed the Plaintiff that “[e]ffective immediately

you are relieved of your duties as a Hobart police officer and placed on unpaid administrative

leave. It is my intention to seek termination of your employment before the Hobart Board of

Public Works & Safety.” (Id.) The Plaintiff was ordered to relinquish his department property,

and told that a lieutenant would keep him informed as the process moved forward.

The next afternoon, Chief White served the Plaintiff with written notice of the charges.

The notice indicated that the Plaintiff had been advised of Chief White’s intention to seek the

Plaintiff’s dismissal from employment with the Hobart Police Department. Chief White indicated

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that he would be presenting formal charges to the Board on Wednesday, November 21, 2012, and

advised the Plaintiff of his statutory right under Indiana Code § 36-8-3-3 to request a hearing

from the Board, which had to be received “within five days from your notice of intent to dismiss

(termination of employment).” (11-20-12 Advise of Rights Letter, ECF No. 61-5 at 3.) Chief

White advised the Plaintiff that, due to the impending Thanksgiving holiday, his written request

for a hearing had to be received by the Board no later than Wednesday, November 28, 2012. 

On this same date, Chief White served a letter on the members of the Board, with a copy

to the Plaintiff. He stated, “It is my intention to seek termination of employment of Officer Kirk

A. Homoky, without delay, for the following violations of the rules and regulations of the Hobart

Police Department and Indiana law.” (11-20-12 Statement of Charges, ECF No. 61-5 at 2.) The

Statement of Charges went on to specify two counts of misconduct. In the closing paragraph,

Chief White wrote: “I would ask the Board to consider these charges and render a decision to

affirm the termination of Officer Kirk A. Homoky’s employment with the Hobart Police

Department at the earliest opportunity.” (Id.) The Chief confirmed that he had sent a copy of the

letter to the Plaintiff and to his counsel, Christopher C. Cooper.

Attorney Cooper, believing that the letters and notices from the City of Hobart meant that

a hearing to decide whether to terminate the Plaintiff’s employment would occur the next day,

November 21, sent the Board a document to complain about the lack of reasonable notice and

due process. Attorney Cooper wrote that the notice informed him “that tomorrow, in perhaps less

than 15 to 20 hours, there will be meeting before the Hobart Board of Public Works & Safety,

and there and then, an effort to terminate my client, Kirk Homoky, as a Hobart police officer.”

(11-20-12 Response, ECF No. 62-3.) Attorney Cooper asked the Board to adhere to Indiana Code

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§ 36-8-3-4 & 4.1, and demanded an evidentiary due process hearing.

The next day, the Board conducted its regular meeting. According to the minutes of the

meeting, the Board heard Chief White’s review of the charges against the Plaintiff and his

request for termination of employment. Chief White told the Board that an internal investigation

was still ongoing. The City Attorney advised that his review of the law and the documents

presented by Chief White led him to conclude that there was no basis for the administrative leave

to be unpaid where the officer was awaiting further proceedings on threatened disciplinary

action. The City Attorney recommended that the Board confirm the administrative leave, but that

it be with pay until further notice. He noted the filings from Attorney Cooper, including his

appeal and hearing demand pursuant to Indiana Code § 36-8-3-4 & 4.1. The Board then

scheduled a hearing for City of Hobart v. Kirk Homoky for January 23, 2013, confirmed the

administrative leave with pay, and directed and authorized the City Attorney to provide the

Plaintiff and his attorney with notice of the scheduled hearing and advise them of the Plaintiff’s

rights. (11-21-12 Minutes, ECF No. 62-4.) The City Attorney then provided Attorney Cooper

with notice of the hearing date and time, explained the charges and the Plaintiff’s rights, and

informed him that the Board had changed the terms of the Plaintiff’s leave to administrative

leave with pay.

On November 26, 2012, the Plaintiff initiated litigation against the Board, Chief White,

and the officers conducting the internal investigation. One of the counts asserted in the

Complaint was for injunctive relief to obtain a hearing no later than December 19, 2012, as was

the Plaintiff’s statutory right. Four days later, on November 30, the Plaintiff, through Attorney

Cooper, informed the City Attorney that he objected to scheduling the hearing on January 23,

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2013, citing the requirement in Indiana Code § 34-8-3-4 (c), which requires that a hearing be held

within 30 days of the request. On December 3, the City Attorney responded in writing to

Attorney Cooper, stating that the evidentiary hearing had been rescheduled to December 13,

2012, per his request. 

At a December 5 regular meeting of the Board, Chief White, through counsel, filed a

Motion to Dismiss the charges against the Plaintiff that were pending before the Board. The

Motion stated: 

That an internal investigation which may involve Officer Homoky is nearing

completion, and that given statutory time constraints, and the police department’s

efforts will be better directed to the ongoing investigation. It would be better for

all parties involved for these charges to be dismissed. Therefore, the respondent

requests that the current charges against Officer Homoky be dismissed.

(12-5-12 Motion to Dismiss, ECF No. 42-9.) The minutes of the Board meeting reflect the

following:

Attorney Whitten [the Police Department Attorney] filed a written Motion to

Dismiss on this case to allow for the police department efforts to be directed

toward the completion of an internal investigation regarding this officer. Attorney

Whitten stated the officer has been on paid leave and will be going back to work

once the current case is dismissed. Attorney DeBonis [the City Attorney] noted

that the Chief has the authority and responsibility of assigning duties of each

officer and will be assigning duties for Officer Homoky.

(12-5-12 Minutes, ECF No. 62-2 at 2.) The Board granted the Motion to dismiss the charges

against the Plaintiff and struck the hearing date of December 12, 2012, because it was no longer

necessary. 

The Hobart Police Department’s internal investigation concerning the Plaintiff continued.

Eventually, criminal charges were brought against the Plaintiff in state court.

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ANALYSIS

A. First Amendment Interference and Retaliation

In Count I of the Complaint, the Plaintiff alleges that Defendants White and Cisezweski

interfered with his First Amendment rights by taking adverse employment action against him

“because Plaintiff asserted\expressed that his submission to a Voice Stress was not voluntary.”

(Compl. ¶ 36.) In Count II, the Plaintiff asserts the same facts against these same Defendants, and

alleges that the employment action constituted unlawful retaliation. Because the Plaintiff is

claiming, in both Counts, that the Defendants took adverse action against him by initiating

insubordination charges in response to his speech concerning the VST, the Court will analyze the

Counts as a single First Amendment claim for retaliation in the public employment context. 

To make out a prima facie case of First Amendment retaliation, a public employee must

present evidence that “(1) his speech was constitutionally protected; (2) he has suffered a

deprivation likely to deter free speech; and (3) his speech was at least a motivating factor in the

employer’s actions.” Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012) (quoting Massey

v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). 

Government employees do not lose the right to comment as citizens on matters of public

concern as an incidence of their employment. City of San Diego v. Roe, 543 U.S. 77 (2004);

Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir. 2002) (describing constitutionally protected

government employee speech). But if a government employee did not speak as a citizen to

address a matter of public concern, “the employee has no First Amendment cause of action based

on his or her employer’s reaction to the speech.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

This determination “depends upon ‘the content, form, and context of [the speech] as revealed by

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the whole record.’” Gustafson, 290 F.3d at 907 (brackets in original) (quoting Connick v. Myers,

461 U.S. 138, 147–48 (1983)). “The ‘public concern’ element is satisfied if the speech can fairly

be said to relate to a matter of political, social, or other concern to the community, rather than

merely a personal grievance of interest only to the employee.” Id.

It would be disingenuous to construe the Plaintiff’s statements—that he would not submit

to a voice stress test unless he could first indicate that it was not voluntary—as deriving from

anything other than a purely personal interest. The Plaintiff was not attempting to “bring to light

actual or potential wrongdoing or breach of public trust.” Connick, 461 U.S. at 149. His

statements did not involve matters of police protection, public safety, or government

malfeasance. The Plaintiff expressed his personal objection to signing a statement that would

indicate that he voluntarily took the test when, in reality, he had been ordered to take the test, and

to relinquishing his right to initiate litigation related to the test. As framed in his Complaint, the

Plaintiff did not want to sign the form and thereby waive his right to bring legal action in

connection with the VST. (Compl. ¶ 16.) The Plaintiff did not purport to speak on behalf of

anyone but himself. 

Additionally, the form of his statements do not indicate that the matter was one of public

concern. The only individuals the Plaintiff complained to were those who were present as part of

the investigation. As such, the speech did nothing to “promot[e] the public’s interest in receiving

the well-informed views of government employees engaging in civic discussion.” Garcetti, 547

U.S. at 419. 

The context of the speech was that the Deputy Chief ordered the Plaintiff to take the test

as part of an ongoing internal investigation into allegations that had been lodged against the

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Plaintiff. Within this context, there was no suggestion of public motivation when the Plaintiff

objected. This was a “personal grievance of interest only to the [Plaintiff].” Wainscott v. Henry,

315 F.3d 844, 849 (7th Cir. 2003); see also Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994)

(emphasizing that the appropriate inquiry takes into account “the point of the speech in question”

in addition to its content: “was it the employee’s point to bring wrongdoing to light? Or to raise

other issues of public concern, because they are of public concern? Or was the point to further

some purely private interest?” Smith, 28 F.3d at 651 (quoting Linhart v. Glatfelter, 771 F.2d

1004, 1010 (7th Cir. 1985)). 

The Plaintiff’s argument regarding the nature of his speech, in its entirety, is as follows:

Plaintiff’s presence at the VST site was pursuant to having been ordered by the

Chief of Police. When he arrived, he had a substantive due process right to voice

that he was onsite not of his own volition and that he sought to cross-out the word

voluntary and replace it with involuntary. That is a public issue, not personal. It

involves a substantive right.

(Pl.’s Resp. 16, ECF No. 61-1.) According to the Plaintiff, because the speech concerned what he

believed to be a substantive due process right, it became a matter of public concern. That is not

the test, as outlined above. While the Plaintiff’s speech in its broadest sense may have touched on

a matter of public concern in regard to waivers, the undisputed facts show that at the time the

Plaintiff engaged in the speech in question he was merely seeking to protect his own welfare and

addressing issues concerning his personal interests. See Bivens v. Trent, 591 F.3d 555, 561 (7th

Cir. 2010) (stating that “if the speech concerns a subject of public interest, but the expression

addresses only the personal effect upon the employee, then as a matter of law the speech is not of

public concern”) (internal quotation marks omitted) (quoting Marshall v. Porter Cnty Plan

Comm’n, 32 F.3d 1215, 1219 (7th Cir. 1994)); Hartman. Bd. of Trs. of Comty. Coll., 4 F.3d 465,

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471 (7th Cir. 1993) (noting that a showing of public concern does not turn on the general subject

matter of the employee’s speech and that a “court is not required to assume that because an

employer’s action could be objected to as an issue of public concern, the employee must have

objected to it on that basis”). Because the Plaintiff spoke, “not as a citizen upon matters of public

concern but instead as an employee upon matters only of personal interest . . . a federal court is

not the appropriate forum in which to review the wisdom of the personnel decision taken by a

public agency.” Connick, 461 U.S. at 147. 

In consideration of the content and form of the Plaintiff’s remarks, along with the

underlying circumstances, including his reasons for speaking, the Court finds that the Plaintiff’s

speech was not constitutionally protected. Rather, the Plaintiff is improperly attempting to

“constitutionalize the employee grievance.” Id. at 154. Accordingly, Defendants White and

Cisezewski are entitled to judgment as a matter of law on the Plaintiff’s First Amendment claims

set forth in Counts I and II of the Complaint.

B. Due Process Claims

Count III of the Plaintiff’s Complaint is that Defendant White deprived the Plaintiff of a

property interest without due process of law.1

 Specifically, the Plaintiff alleges that White

violated his due process rights by suspending him without pay and without first affording him

due process, and attempting to terminate his employment without sufficient time to be heard. In

Count IV, the Plaintiff repeats these due process allegations against White and alleges that

1 Count III also named Defendant City of Hobart Board of Public Works and Safety. The Board

filed a separate motion for summary judgment, which is addressed in a separate Opinion and Order. 

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Defendants Ogden and Cisezweski violated his due process rights by repeatedly pressuring him

to waive his Fifth Amendment right against self-incrimination. He alleges that, although they

described their investigation as administrative, it was a “vindictive and personal ‘fishing

expedition’ to try to cause a criminal investigation.” (Compl. ¶ 59.) Finally, the Plaintiff alleges

that Ciseweski denied the Plaintiff an opportunity to submit to a VST. 

1. Voice Stress Test

The Plaintiff attempts to fashion several claims out of the circumstances surrounding his

request to document that his submission to the VST that his employer had ordered him to take

was involuntary. He contends that the manner in which he was ordered to submit to a VST, by

way of Garrity assurances, “is of great significance in determining whether or not Defendant

violated [his] 14th Amendment due process rights (the source of which is IC 36-8-3-4). Plaintiff

alleges that Defendants attempted to cause him to waive his Fifth Amendment right to remain

silent.” (Pl.’s Resp. 6, ECF No. 61-1.) The Plaintiff believes that, despite receiving Garrity

assurances, Defendants Ciseweski, Ogden, and White were intending to charge him criminally

based on his responses. He points to the fact that Ogden in fact swore out affidavits to initiate

criminal charges, and that Ogden had reasons to personally dislike the Plaintiff.

“The first inquiry in any [§] 1983 suit is whether the plaintiff has been deprived of a right

secured by the Constitution and laws of the United States.” Reichenberger v. Pritchard, 660 F.2d

280, 284–85 (7th Cir. 1981). “In § 1983 cases, the plaintiff bears the burden of proof on the

constitutional deprivation that underlies the claim, and thus must come forth with sufficient

evidence to create genuine issues of material fact to avoid summary judgment.” Padula v.

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Leimbach, 656 F.3d 595, 600 (7th Cir. 2011) (quoting McAllister v. Price, 615 F.3d 877, 881

(7th Cir. 2010) (internal quotation marks omitted). In his submission to this Court, the Plaintiff

invokes the Fifth Amendment, which has been made applicable to the States by the Fourteenth

Amendment, Malloy v. Hogan, 378 U.S. 1, (1964), and requires that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V. “The

Amendment not only protects the individual against being involuntarily called as a witness

against himself in a criminal prosecution but also privileges him not to answer official questions

put to him in any other proceeding, civil or criminal, formal or informal, where the answers

might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77

(1973). In Garrity v. New Jersey, 385 U.S. 493, 500 (1967), the Supreme Court held that “the

protection of the individual under the Fourteenth Amendment against coerced statements

prohibits use in subsequent criminal proceedings of statements obtained under threat of removal

from office, and that it extends to all, whether they are policemen or other members of our body

politic.” 

Under Garrity, the Plaintiff could only be compelled to respond to questions about the

performance of his duties if his answers were not then used against him in a subsequent criminal

prosecution. The Plaintiff does not dispute that these assurances were provided, but argues that

the Defendants intended to use his answers against him nevertheless. The “subjective beliefs of

the plaintiff . . . are insufficient to create a genuine issue of material fact.” Hanners v. Trent, 674

F.3d 683, 694 (7th Cir. 2012) (quoting McMillian v. Svetanoff, 878 F.2d 186, 190 (7th Cir.

1989)). For summary judgment, simply “saying so doesn’t make it so; summary judgment may

only be defeated by pointing to admissible evidence in the summary judgment record that creates

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a genuine issue of material fact.” United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d

504, 510-11 (7th Cir. 2010).2 But regardless of the Defendants’ intentions (or the Plaintiff’s

speculation about the Defendants’ intentions), the Plaintiff never actually submitted to the VST,

did not make any statements, and did not incriminate himself. The Plaintiff cannot identify a

deprivation of his Fifth Amendment rights brought about by the Defendants’ request that he

submit to a VST. See, e.g.,Chavez v. Martinez, 538 U.S. 760, 771 (2003) (“Rules designed to

safeguard a constitutional right do not extend the scope of the constitutional right itself, just as

violations of judicially crafted prophylactic rules do not violate the constitutional rights of any

person.”); Hanson v. Dane Cnty., Wis., 608 F.3d 335, 339 (7th Cir. 2010) (The Fifth Amendment

“privilege against self-incrimination . . . concerns the use of compelled statements in criminal

prosecutions.”). 

The Plaintiff appears to be invoking the Fifth Amendment as a potential explanation for

refusing to submit to the VST. However, the designated evidence supports the conclusion that

any statements the Plaintiff provided during a VST would have been for purposes of the internal

investigation only. Accordingly, there was no Fifth Amendment privilege to assert. Despite being

offered Garrity assurances, the Plaintiff refused to answer questions for the VST. This refusal

prompted administrative charges. The Court understands the Plaintiff to be taking issue with the

Defendant’s characterization of the Plaintiff’s actions as a refusal, which is what led to the

insubordination charges; the Plaintiff maintains that Ciseweski and Ogden “suborned the false

charge” of insubordination because they were aware that he did not refuse to take the test, but

2 The Plaintiff cannot use the fact that criminal charges were brought against him as proof of

Ogden’s intentions when the test was ordered. The criminal charges were brought after the intervening

event of the Plaintiff’s refusal to fully cooperate in the internal investigation.

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only refused to agree that it was voluntary. (Pl.’s Resp. 10.) The Plaintiff submits that he actually

agreed to take the test, as long as the word “voluntary” was crossed out, but that he was not

permitted to cross out the word. 

Even if there is a genuine dispute whether the Plaintiff agreed to take the test if the word

“voluntary” was crossed out, or whether he declined even after being provided that option, it

would make no difference to the outcome of this litigation. The charges lodged against the

Plaintiff were that he failed to follow a lawful order to submit to a voice stress analysis as

instructed by Deputy Chief Thompson, and failed to cooperate truthfully with an internal

investigation ordered by the Chief of Police. Refusing to submit to the test unless “voluntary”

was stricken from the form could reasonably be viewed as conduct falling within these charges.

The Plaintiff has not established that he had any right to clarify that he was involuntarily taking

the test, or to avoid signing the release form—especially if he also expected his involuntary

compliance to be considered full cooperation with the investigation. He could not demand to

have it both ways. If any of the Defendants’ representations about what occurred at the Porter

County Sheriff’s Department in relation to the VST are inaccurate, the Plaintiff has not explained

how their actions deprived him of constitutionally guaranteed rights. The Plaintiff did not have a

Fourteenth Amendment right to avoid charges being brought against him. Cf. Serino v. Hensley,

735 F.3d 588, 593 (7th Cir. 2013) (“there is no such thing as a constitutional right not to be

prosecuted without probable cause”). As discussed below, he had a constitutional guarantee to

procedural due process in the event his employer pursued charges that could impact his continued

employment.

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2. White’s Suspension

The Plaintiff asserts that White violated his rights when he suspended him without pay.

According to Indiana Statute, “[b]efore a member of a police or fire department may be

suspended in excess of five (5) days without pay, demoted, or dismissed, the safety board shall

offer the member an opportunity for a hearing.” Ind. Code § 36-8-3-4(c). White suspended the

Plaintiff on November 19. The Plaintiff argues that White’s letter imposed a suspension for an

indefinite period of time. Although White’s letter was unclear regarding the duration of the

suspension and could have been interpreted as the Plaintiff asserts, the argument ignores what

transpired next. On November 21, just two days later, the unpaid status of the suspension was

changed to render the suspension a paid one. Accordingly, the suspension was in unpaid status

for less than five days. If White had indeed imposed a suspension for an indefinite period of time,

which the Plaintiff notes he was not authorized by Indiana statute to impose, then his actions

were random and unauthorized. See Germano v. Winnebago Cnty., 403 F.3d 926, 929 (7th Cir.

2005) (An action taken in violation of state law is unauthorized.). “[A]n unauthorized intentional

deprivation of property by a state employee does not constitute a violation of the procedural

requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful

postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).

“Where state law remedies exist, a plaintiff must either avail herself of the remedies guaranteed

by state law or demonstrate that the available remedies are inadequate.” Doherty v. City of Chi.,

75 F.3d 318, 323 (7th Cir.1996). There is no requirement that a plaintiff exhaust state remedies,

but “this does not change the fact that no due process violation has occurred when adequate state

remedies exist.” Veterans Legal Def. Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir. 2003). Here,

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the Plaintiff availed himself of the state’s procedural protections. He objected to the suspension,

and it was changed to comply with the governing statute. He requested a hearing related to

further disciplinary action, and it was granted. The issue became moot, and a hearing unncessary,

when the charges connected to the suspension were dismissed. As the Supreme Court has

explained, “[t]he constitutional violation actionable under § 1983 is not complete when the

deprivation occurs; it is not complete unless and until the State fails to provide due process.”

Zinermon v. Burch, 494 U.S. 113, 126 (1990).

The Plaintiff maintains that White’s actions led the Plaintiff to believe that he was

terminated from his employment instead of merely suspended. In light of the evidence of record,

the Plaintiff’s subjective—and mistaken—beliefs concerning the meaning of White’s actions are

not dispositive. “In a procedural due process claim, it is not the deprivation of property or liberty

that is unconstitutional; it is the deprivation of property or liberty without due process of

law—without adequate procedures.” Daniels v. Williams, 474 U.S. 327, 339 (1986) (Stevens, J.,

concurring) (emphasis in original)). None of the designated evidence suggests that the Plaintiff

was required to answer for the 2012 insubordination charges without first having been offered all

the procedural protections set forth in Indiana statute. 

Although he was not suspended without pay or terminated from employment, the Plaintiff

maintains that being relegated to garage duty after the dismissal of the insubordination charges

was a demotion in substance. According to the Plaintiff, for a period of more than two months he

was unable to participate in overtime or on-duty employment known as “grants,” and was no

longer eligible to work at Wal-Mart during the Black Friday retail period. The Plaintiff has not

established that he had a protected property interest in performing specific assignments or duties.

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See, e.g., Ulichny v. Merton Cmty. Sch. Dist., 93 F. Supp. 2d 1101, 1030 (E.D. Wis. 2000) (“a

public employee has no property interest in a particular assignment or job duty, as opposed to his

or her employment per se”). Nor has he established that the side jobs, overtime pay, or grants

were included in his protected property interest. For example, Indiana Code § 36-8-1-11 defines

salary, for purposes of all of Article 8, including discipline of public safety officers, as excluding

“remuneration or allowances for fringe benefits, incentive pay, holiday pay, insurance, clothing,

automobiles, firearms, education, overtime, or compensatory time off.” The indirect economic

effect caused by the loss of seasonal retail employment outside the Department did not trigger the

protections of due process. See Luellen v. City of E. Chi., 350 F.3d 604, 614 (7th Cir. 2003) (oncall pay was not protected by statute and was not integral to the plaintiff’s position with fire

department such that loss of this aspect of pay could be deemed a loss of his position); Townsend

v. Vallas, 256 F.3d 661, 676 (7th Cir. 2001) (suspended teacher’s loss of opportunity to earn

additional income from coaching positions was not the “sort of deprivation that triggers the

protection of federal due process”).

C. Abuse of Process 

In response to the Motion for Summary Judgment, the Plaintiff submits that he “dismisses

his Abuse of Process Claim, Count V.” (Pl.’s Resp. 21, ECF No. 61-1.)

CONCLUSION

For the reasons stated above, the Defendants[’] Motion for Summary Judgment [ECF No.

49] is GRANTED, and the Motion to Strike [ECF No. 78] is DENIED. The Clerk will enter

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judgment in favor of the Defendants and against the Plaintiff.

SO ORDERED on November 24, 2014.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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