1 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

DAVID OSZUST and ) 

THOMAS PARADA, ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Case No. 2:15-CV-339 JD 

 ) 

TOWN OF ST. JOHN, et al., ) 

 ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

 In this case, police officer David Oszust alleges that the Town of St. John, Indiana (the 

Town) retaliated against him for engaging in activity protected by Title VII. Further, he alleges 

that the Town’s Metropolitan Board of Police Commissioners (the Board) commenced 

disciplinary proceedings against him that do not comply with Indiana Code § 36-8-3-4 (which 

governs police board disciplinary proceedings)1 and will force him to disclose his medical 

records in violation of his Fifth Amendment right against self-incrimination.2 He also brings 

claims against Chief of Police Fred Frego and James Turturillo, a police sergeant, under 42 

U.S.C. § 1983 for First Amendment retaliation. Finally, Oszust and St. John citizen Thomas 

Parada allege that the Board has held non-public disciplinary meetings pertaining to Oszust (and 

plans to hold more) in violation of Indiana Code § 5-14-1.5-1 et seq. (Indiana’s Open Door Law) 

                                                            

1

 Oszust brings his claim under § 36-8-3-4, though notes that he “possibly” brings a claim under Ind. Code § 36-8-

3.5-17, Indiana’s merit board statute. [DE 3 at 8 & n. 1, case no. 2:16-cv-22]. The Court will evaluate only the 

former claim. If Oszust comes to believe § 36-8-3.5-17 is the appropriate statute under which to proceed, he may 

seek leave to amend his complaint. 

2

 The Fifth Amendment and the First Amendment, as relevant to this order, apply to state and local governments via 

the Fourteenth Amendment Due Process Clause. Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amendment right 

against self-incrimination); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (First Amendment right of 

access). 
2 

and the First Amendment. The Defendants have now filed three motions to dismiss for failure to 

state a claim upon which relief can be granted.3

 [DE 47, 65, 70].4 First, the Town moved to 

dismiss the Fifth Amendment and Title VII retaliation claims against it. [DE 47, 48, 55, 59]. 

Second, Defendant Turturillo filed a motion to dismiss the First Amendment retaliation claim 

against him. [DE 65, 66, 67, 72]. Third, the Town filed another motion to dismiss as to the 

claims against it under Indiana’s Open Door Law, the police disciplinary board statute and the 

First Amendment. [DE 70, 71, 79, 82]. Thus, the Defendants have now moved to dismiss all of 

the Plaintiffs’ claims except for the First Amendment retaliation claim against Frego. Their 

motions are ripe for review. 

STANDARD OF REVIEW 

In reviewing a motion to dismiss for failure to state a claim upon which relief can be 

granted under Federal Rule of Civil Procedure 12(b)(6), the Court will take the facts alleged by 

the Plaintiffs to be true and draw all reasonable inferences in their favor. A complaint must 

contain only a “short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). However, that statement must contain sufficient factual matter, 

accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009). Evaluating whether a Plaintiff’s claim is sufficiently plausible to survive a 

motion to dismiss is “a context-specific task that requires the reviewing court to draw on its 

                                                            

3

 The Defendants also seek to dismiss some of the Plaintiffs’ claims for lack of subject matter jurisdiction. But, their 

argument in this regard is that the Plaintiffs have not exhausted administrative remedies, which as the Defendants 

themselves subsequently recognize, is a contention more properly pursued under Rule 12(b)(6). [DE 71 at 4]; see 

also Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527, 532-33 (7th Cir. 2006). At any rate, the Court does 

not ultimately reach that argument because it finds dismissal appropriate on other grounds. 

4

 All citations to the docket are to case no. 2:15-CV-339 unless otherwise noted. 
3 

judicial experience and common sense.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th 

Cir. 2011) (quoting Iqbal, 556 U.S. at 678). 

FACTS 

 Plaintiff David Oszust has been an officer of the St. John, Indiana police department 

since 2004. In 2013, he was injured in a work-related car accident. He was then placed on 

medical leave and began to receive workers’ compensation benefits. Police Chief Fred Frego 

accused Oszust of committing fraud in obtaining some or all of those benefits. In November 

2014, Frego brought disciplinary charges against Oszust before the Board. Those charges were 

dismissed the same month because, Oszust says, the Town was not sufficiently prepared to 

proceed with them. Frego refiled charges against Oszust on January 30, 2015, but again 

dismissed them as the Board was not prepared to proceed with a hearing. 

 Around this time, three women purportedly experienced sexual harassment by Frego, 

Turturillo and other members of the St. John Police Department. Oszust encouraged them to 

bring their allegations to a lawyer, the EEOC, a state prosecutor and law enforcement. Those 

women filed suit against the Town in March 2015. The Defendants were aware of Oszust’s 

involvement in this matter. 

Charges were refiled against Oszust for a third time on August 11, 2015. Two weeks 

later, on August 25, 2015, Frego filed a motion with the Board seeking to compel Oszust to sign 

authorizations disclosing his medical records. The Board granted the motion without giving 

Oszust an opportunity to respond. Oszust filed a motion for reconsideration as to the Board’s 

decision on August 29, 2015, but the Board denied it and again ordered Oszust to execute a 

medical records release. 

 Throughout these proceedings, the Board convened several times in executive sessions, 
4 

which are closed to the public. Oszust and his counsel were present at some or all of those 

executive sessions. The Board has also indicated that it intends to hold further meetings as to 

Oszust and an administrative hearing on the charges against him in executive session. While the 

Board does seek to proceed with charges against Oszust, it has not yet taken further steps to 

discipline him. He is presently on administrative leave. 

 In connection with these events, Oszust filed three lawsuits. First, he filed a suit in 

federal court (case no. 2:15-cv-339). That complaint, as amended, brings claims against the 

Town, asserting that the Board’s order that Oszust disclose his medical records violates his Fifth 

Amendment right against self-incrimination and that the Town illegally retaliated against him 

under Title VII. [DE 41]. It also brings First Amendment retaliation claims under 42 U.S.C. § 

1983 against Frego and Turturillo. Id. Second, Oszust filed two lawsuits in Indiana state court, 

which were later consolidated into a single complaint and removed to federal court (case no. 

2:16-cv-22). In that consolidated complaint, as amended, Oszust claims that Indiana law bars the 

disciplinary charges against him because the Board failed to hold a timely hearing in compliance 

with Indiana Code § 36-8-3-4. [DE 3, case no. 2:16-cv-22]. Oszust also alleges, in conjunction 

with Parada (Parada joins this suit as to these allegations only), that the Board’s closed-door 

meetings violate Indiana law and the First Amendment. Id. All of the above-described claims 

have now been consolidated into the single suit presently before the Court. [DE 63]. The 

Defendants have now filed motions to dismiss all of the Plaintiffs’ claims except for the § 1983 

First Amendment claim against Frego. The Court addresses each claim at issue in turn. 

ANALYSIS 

Younger Abstention

The Court first considers Younger abstention. That doctrine requires federal courts to 
5 

“abstain from enjoining ongoing state proceedings that are (1) judicial in nature, (2) implicate 

important state interests, and (3) offer an adequate opportunity for review of constitutional 

claims, (4) so long as no extraordinary circumstances—like bias or harassment—exist which 

auger against abstention.” FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 596 (7th Cir. 2007) 

(quoting Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998)). While Younger involved a 

Plaintiff that sought to enjoin a pending state court criminal proceeding by bringing a 

constitutional claim in federal court, 401 U.S. 37 (1971), it has since also been applied to state 

administrative proceedings. Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 

423 (1982). The Supreme Court recently clarified that Younger is not a doctrine of broad 

applicability, but rather applies only in three types of exceptional cases: (1) ongoing state 

criminal prosecutions, (2) civil enforcement proceedings and (3) civil proceedings involving 

certain orders uniquely in furtherance of the state courts’ ability to perform their judicial 

functions. Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013). 

 Oszust’s claim under the Fifth Amendment implicates Younger. It seeks declaratory 

relief that would prohibit the Board from demanding Oszust’s medical records and would thus 

directly interfere with proceedings against Oszust. The parties did not, however, raise Younger

in their initial submissions. So, the Court issued a show cause order requesting them to brief it. 

[DE 83]; see also Time Warner Cable v. Doyle, 66 F.3d 867, 883 (7th Cir. 1995) (federal courts 

may, and are perhaps even required to, raise Younger abstention sua sponte); Boothe v. Sherman, 

66 F. Supp. 3d 1069, 1074 (N.D. Ill. 2014) (“Although no party has formally moved for Younger

abstention, the court may raise the issue sua sponte.”). The Defendants have since responded 

that they believe that the criteria for Younger abstention are met. [DE 86]. The Plaintiffs’ filing 

is more difficult to parse. It discusses numerous considerations wholly unrelated to Younger, 
6 

including other abstention doctrines and issues that go to the merits of the Plaintiffs’ claims. The 

Plaintiffs do not appear to generally oppose federal restraint. [DE 87 at 14]. As to Younger, 

though, they oppose abstention on the grounds that no state proceeding is currently pending 

against Oszust. [DE 87 at 9]. 

 Younger abstention does generally require an ongoing, or at least imminent, state 

proceeding. Mulholland v. Marion Cty. Election Bd., 746 F.3d 811, 817 (7th Cir. 2014); see also 

17B Charles Alan Wright et al., Federal Practice and Procedure § 4253 (3rd ed. 2007). Here, 

the Plaintiffs allege that the Board filed charges against Oszust on August 11, 2015, and those 

charges are still pending. Moreover, the parties agree that the Board intends to move forward 

with those charges. [DE 71 at 3]; [DE 55 at 19 n. 6]; [DE 3 at 10-11, case no. 2:16-cv-22]. That 

makes the proceedings against Oszust ongoing. See Crenshaw v. Supreme Court of Indiana, 170 

F.3d 725, 728 (7th Cir. 1999) (finding an ongoing state disciplinary proceeding where a Supreme 

Court disciplinary commission docketed a grievance and began a formal investigation against an 

attorney); In re Franceschi, 43 F. App’x 87, 90 (9th Cir. 2002) (finding state proceedings 

ongoing where the state bar had filed a notice of disciplinary charges against an attorney). 

The Plaintiffs nevertheless argue that “there is not an active disciplinary proceeding,” 

[DE 87 at 9] since proceedings against Oszust are foreclosed by a timeliness requirement set 

forth in Indiana Code § 36-8-3-4. But this is not an argument that proceedings are not imminent 

or underway, it is an argument that they are not legal. Younger does not ask whether 

proceedings are permissible—which often goes to the merits of a case—but only whether a 

proceeding is pending such that federal interference with it might undermine principals of equity, 

comity and federalism. See Steffel v. Thompson, 415 U.S. 452, 462 (1974). Here, that is so. 

Indeed, if there were no ongoing proceeding against Oszust, it would moot many of the 
7 

Plaintiffs’ claims and obviate the need for much of this litigation. As such, the Court concludes 

that proceedings against Oszust are sufficiently ongoing to implicate Younger.

5

 The parties do not appear to contest that the remaining Younger criteria are met, and the 

Court finds them to be satisfied here. As a threshold matter, this case falls within one of the 

three categories of cases appropriate for Younger abstention enumerated by the Supreme Court in 

Sprint. Gonzalez, 755 F.3d at 182 (finding an administrative disciplinary hearing against a law 

enforcement officer to be a “textbook example” of a civil enforcement proceeding encompassed 

by Sprint). 

Relatedly, the disciplinary charges against Oszust amount to a judicial or quasi-judicial 

proceeding. Proceedings are judicial in nature when they are coercive, rather than remedial. 

Majors, 149 F.3d at 712. This matter involves charges of “violations of police department 

policies commensurate with Worker’s Compensation insurance fraud” and could result in 

Oszust’s suspension without pay, demotion or dismissal. [DE 41 at 3] (alteration omitted); Ind. 

Code § 36-8-3-4(c). As such, there is little question the proceedings at issue here are coercive. 

See Murphy v. City of Manchester, 70 F. Supp. 2d 62, 67 (D.N.H. 1999) (“The record in this case 

establishes that the police department's disciplinary proceedings are precisely the type of 

coercive administrative proceedings to which the Younger doctrine was intended to apply.”). 

 Next, the proceeding against Oszust implicates Indiana’s important interest in ensuring 

the integrity of its police officers and administering the disciplinary scheme it has established to 

address police misconduct. See Nudell v. Nevius, No. 98 C 3719, 1999 WL 608717, at *2 (N.D. 

Ill. Aug. 5, 1999) (finding “the regulation of police officer conduct” to be an important state 

                                                            

5

 The Plaintiffs appear to believe that a ruling by the Court that Younger abstention is appropriate amounts to a 

conclusion that the Board may legally proceed with charges against Oszust. That is not true. Rather, the Court 

concludes that the question of whether the Board may legally bring charges against Oszust is better left to a state 

tribunal and expresses no opinion as to it. 
8 

interest); Dowden v. City of Sacramento, 40 F. Supp. 2d 1146, 1149 (E.D. Cal. 1999) 

(“California has a strong interest in both the conduct of its peace officers and the disciplinary 

scheme it has established to address officer misconduct.”); Murphy, 70 F. Supp. 2d at 68 

(“Murphy was charged with multiple violations of the police department's regulations. The 

supervision of law enforcement personnel sworn to protect and serve the public unquestionably 

involves an interest of vital importance to state (or, in this case, municipal) government.”). 

 The requirement Oszust have an adequate opportunity to raise his constitutional 

arguments in state proceedings is also satisfied. “A federal court ‘should assume that state 

procedures will afford an adequate remedy, in the absence of unambiguous authority to the 

contrary.’” Olsson v. O'Malley, 352 F. App’x 92, 94 (7th Cir. 2009) (quoting FreeEats.com, 502 

F.3d at 598). Here, Oszust offers no argument that the Board will not entertain his Fifth 

Amendment claim. Indeed, it appears that he already advanced it in a motion before the Board, 

which the Board denied. [DE 41 at 4]. Further, to the extent Oszust fears a subpoena may issue 

that violates his Fifth Amendment rights, he will have another chance to make his argument to a 

state court if the Board moves to enforce its subpoena. See Crenshaw v. Supreme Court of 

Indiana, 170 F.3d 725, 729 (7th Cir. 1999) (“We agree with the district court that nothing in the 

record suggests that the Supreme Court of Indiana could not or would not fairly entertain a 

constitutional challenge to the subpoena.”); Ind. Code § 36-8-3-4(d) (providing that Ind. Code § 

36-4-6-21 controls procedures for compelling witness testimony); Ind. Code. § 36-4-6-21(c) 

(directing that “the court shall hear all questions relating to [a witness’] refusal to testify or 

produce evidence”). 

 Finally, no party raises any extraordinary circumstances such as bias or harassment that 

would make abstention inappropriate in this case. As such, abstention is warranted. Green v. 
9 

Benden, 281 F.3d 661, 667 (7th Cir. 2002) (dispensing with the extraordinary circumstances 

inquiry where no party raised such circumstances, because the “party claiming extraordinary 

circumstances must demonstrate their existence”) (citing Ramsden v. AgriBank, FCB, 214 F.3d 

865, 871 (7th Cir. 2000)). The Court accordingly dismisses Oszust’s Fifth Amendment claim 

and turns to the Plaintiffs’ remaining claims at issue in this order: the Title VII retaliation, First 

Amendment, Open Door Law (§ 5-14-1.5-1 et seq.) and police disciplinary board statute (§ 36-8-

3-4) claims against the Town and the First Amendment retaliation claim via § 1983 against 

Turturillo (but not Frego). 

 Title VII Retaliation - Town 

 To state a claim for Title VII retaliation, a plaintiff must allege that he engaged in 

statutorily protected activity and was subjected to an adverse action as a result. Carlson v. CSX 

Transp., Inc., 758 F.3d 819, 828 (7th Cir. 2014). The Town contends that Oszust does not 

plausibly allege this claim. It says this is true for three reasons: First, Oszust is not within the 

“zone of interest” of the women purportedly harassed by members of the St. John police 

department such that he has standing to bring a retaliation claim. Second, Oszust has not 

adequately alleged that he suffered any materially adverse action. Third, Ozsust has not 

adequately alleged a causal connection between his purported protected activity and the 

proceedings against him. 

 The Court finds that Oszust has adequately pled his Title VII claim. First, whether or not 

Oszust is within the “zone of interest” of his coworkers’ complaints, he has a direct retaliation 

claim himself. He claims that he “supported,” “assisted” and “encouraged” three women in 

reporting sexual harassment. [DE 41 at 5]. That is squarely within the scope of Title VII 

protected activity. Ray v. Ropes & Gray LLP, 799 F.3d 99, 107 (1st Cir. 2015) (noting that 
10 

protected activity under Title VII includes “assisting [a] co-worker in exercising rights”) (citing 

Eichman v. Ind. State Univ. Bd. Of Trs., 597 F.2d 1104, 1107 (7th Cir. 1979)); Corcoran v. City 

of Chicago, No. 10-CV-06825, 2015 WL 1345545, at *4 (N.D. Ill. Mar. 23, 2015) (“Assistance 

in the preparation of later-filed charges is protected from retaliation by Title VII.”). 

 Second, the Town asserts that Oszust has not adequately identified a materially adverse 

action because paid administrative leave is insufficient to support a Title VII claim. Oszust 

responds that, while the harm he complains of may not suffice to support a claim under the 

substantive provision of Title VII, a retaliation claim is evaluated under a different standard. He 

is correct that the standards for these claims are not entirely coextensive. Burlington N. & Santa 

Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (“Title VII's substantive provision and its 

antiretaliation provision are not coterminous. The scope of the antiretaliation provision extends 

beyond workplace-related or employment-related retaliatory acts and harm.”). However, both 

the Seventh Circuit and this Court have concluded that placement on paid leave is not a 

materially adverse employment action sufficient to support a retaliation claim. Nichols v. S. 

Illinois Univ.-Edwardsville, 510 F.3d 772, 787 (7th Cir. 2007); Calderaro v. Town of 

Schererville, No. 2:13-CV-385, 2016 WL 1270396, at *10, 14 (N.D. Ind. Mar. 31, 2016). That 

is not determinative of this issue, though, as Oszust also alleges that his harm has included “loss 

of wages.” [DE 41 at 15]. That clearly suffices to plead a materially adverse action in this 

circuit. See, e.g., Atanus v. Perry, 520 F.3d 662, 677 (7th Cir. 2008); Moser v. Indiana Dep't of 

Corr., 406 F.3d 895, 904 (7th Cir. 2005). 

 Finally, the Town contends that there cannot be a causal connection between Oszust’s 

protected activity and any adverse action, because Oszust was first charged with disciplinary 

violations in November 2014 but the women he assisted filed suit in March 2015. That is not 
11 

persuasive. While the Town first initiated disciplinary proceedings against Oszust in November 

2014, that does not preclude the possibility that retaliatory animus arising after that date could 

have caused the August 2015 proceedings (and any associated loss of wages Oszust incurred). 

Further, the Court notes that a Plaintiff in a Title VII retaliation case may plead causation in a 

conclusory statement. Stone v. Bd. of Trustees of N. Illinois Univ., 38 F. Supp. 3d 935, 944 

(N.D. Ill. 2014) (citing Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1028 (7th Cir. 2013)). 

That is a minimal standard, and Oszust has satisfied it. 

 As such, the Court finds that Oszust has adequately made out a case for Title VII 

retaliation.6

 While perhaps not as cogent as it could be, his complaint sufficiently alleges that he 

assisted three women in lodging a sexual harassment complaint and that his wages were 

adversely affected as a result. It further identifies those women by name, and provides an 

approximate timeframe. That is enough to satisfy the basic purpose of federal pleading standards 

and provide St. John with notice of the claims against it. See Hatcher v. Bd. of Trustees of S. 

Illinois Univ., No. 15-1599, 2016 WL 3770555, at *4 (7th Cir. July 14, 2016). To the extent the 

Town seeks further clarity as to any of Oszust’s allegations, it may request a more definite 

statement. See id; Fed. R. Civ. P. 12(e). 

 First Amendment – Town 

 The Court next turns to Oszust and Parada’s purported First Amendment claim against 

the Town. In their complaint, the Plaintiffs make passing reference to the First Amendment 

serving as the foundation for Indiana’s Open Door Law. Now, they make the bare assertion that 

                                                            

6

 The Court notes that even though Oszust’s Title VII claim and First Amendment § 1983 claims only seek damages, 

Younger abstention may nevertheless be implicated where an award of damages would be tantamount to an 

injunction. Am. Fed'n of State, Cty. & Mun. Employees v. Tristano, 898 F.2d 1302, 1304 (7th Cir. 1990). Here, 

however, a conclusion that Oszust suffered illicit retaliation would not preclude the Board from continuing with the 

proceedings against him and, if warranted, disciplining him for a legal reason. See Harder v. Vill. of Forest Park, 

466 F. Supp. 2d 1000, 1006 (N.D. Ill. 2006) (permitting First Amendment retaliation claim to proceed despite 

termination proceedings pending before the police board).
12 

this suffices to state an independent claim for First Amendment relief. 

 The Court disagrees for several reasons. First, the Plaintiffs have not sufficiently pled a 

First Amendment claim. They allege in a footnote that “the First Amendment is implicated” in 

their open door law claim under Indiana Code § 5-14-1.5-1 et seq. (over which, as described 

below, the Court declines supplemental jurisdiction). [DE 3 at 14, n. 4, case no. 2:16-cv-22]. 

But neither that cursory allegation nor any other facts in the Plaintiffs’ complaint provide any 

colorable basis for relief under the First Amendment. That alone makes dismissal appropriate 

under Rule 12(b)(6). See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (noting that, while a 

complaint need not provide “specific facts” it must at least “give the defendant fair notice of 

what the . . . claim is and the grounds upon which it rests.”) (quoting Erickson v. Pardus, 551 

U.S. 89, 92 (2007)). Second, the Plaintiffs do not meaningfully respond to the Town’s 

arguments that the Board can hold executive session meetings under the conditions alleged in the 

complaint without violating the First Amendment. In fact, they provide no substantive 

discussion of their purported First Amendment claim at all. [DE 79 at 10]. As such, even if they 

had adequately pled their claim, they would have forfeited it by failing to sufficiently respond to 

the Town’s motion to dismiss. Roney v. Indianapolis Power & Light Co., No. 1:14-CV-01646, 

2015 WL 5554003, at *5 (S.D. Ind. Sept. 21, 2015) (finding that a plaintiff “waived and 

abandoned any counterarguments she may have had” by failing to substantively respond to the 

defendants’ argument on a motion to dismiss). 

 Finally, even if the Court construes the Plaintiffs’ claim under what would appear to be 

the most applicable First Amendment doctrine and analyzes the claim on its merits, it still fails to 
13 

state a valid basis for relief.7 In referencing the First Amendment, the Plaintiffs invoke the 

familiar test for the constitutionality of government regulations affecting the time, manner and 

place of speech in a public forum. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) 

(“the government may impose reasonable restrictions on the time, place, or manner of protected 

speech, provided the restrictions are justified without reference to the content of the regulated 

speech, that they are narrowly tailored to serve a significant governmental interest, and that they 

leave open ample alternative channels for communication of the information”) (internal 

quotation marks omitted). They do not, however, identify any affected speech or expression 

subject to regulation. Instead, their primary grievance appears to be the Parada and other 

members of the general public cannot attend the proceedings against Oszust. 

 If anything, that would be a First Amendment right of access claim. The Supreme Court 

has recognized “a qualified right of the press and public to attend certain governmental 

proceedings, at least where the proceeding ‘historically has been open to the press and general 

public,’ and public access ‘plays a particularly significant role’ in the functioning of the 

proceeding in question and ‘the government as a whole.’” Am. Civil Liberties Union of Illinois 

v. Alvarez, 679 F.3d 583, 599 n. 7 (7th Cir. 2012) (quoting Globe Newspaper Co. v. Super. Ct. 

for the Cnty. Of Norfolk, 457 U.S. 596, 605-06 (1982)). But the Plaintiffs do not allege that the 

Board proceedings at issue satisfy these criteria, other than a conclusory allegation that “events 

at which an accused police officer and his attorney are present . . . have always been the types of 

board events open to the public.” [DE 3 at 5, case no. 2:16-CV-22]. And even if they had, they 

would not have prevailed since courts have found no First Amendment right of access to police 

                                                            

7

 Due to the cursory articulation of this claim, the Court cannot ascertain whether it would implicate Younger 

abstention. As such, the Court addresses it under Rule 12(b)(6) and finds that it fails to state a claim upon which 

relief can be granted. 
14 

disciplinary hearings. See Marion Cty. Sheriff's Merit Bd. v. Peoples Broad. Corp., 547 N.E.2d 

235, 240 (Ind. 1989) (First Amendment does not proscribe county sheriff’s merit board from 

meeting in executive session to discuss evidence presented at a public hearing); Smith v. 

Cleveland, 641 N.E.2d 828, 832-33 (Ohio Ct. App. 1994) (First Amendment does not require 

public access to police disciplinary proceedings); see also Town of Merrillville, Lake Cty. v. 

Peters, 655 N.E.2d 341, 343 (Ind. 1995) (condoning police disciplinary hearings held in 

executive session under a due process analysis); United States v. Miami Univ., 294 F.3d 797, 

821-23 (6th Cir. 2002) (no First Amendment right of access to records from student disciplinary 

proceedings). Accordingly, to the extent the Plaintiffs seek to plead a First Amendment right of 

access claim against the Town, they do not state a valid claim for relief and their claim is 

appropriately dismissed. See PG Pub. Co. v. Aichele, 705 F.3d 91, 113-14 (3d Cir. 2013) 

(affirming district court’s dismissal of First Amendment right of access claim for failure to state 

a claim). 

 First Amendment Retaliation – Turturillo 

 The Court next addresses Oszust’s § 1983 First Amendment retaliation claim against 

Turturillo. Making out a claim for First Amendment retaliation requires alleging (1) protected 

activity, (2) a deprivation that would likely deter First Amendment activity in the future and (3) 

that the First Amendment activity was a motivating factor in the defendants’ decision to take the 

retaliatory action. Novoselsky v. Brown, 822 F.3d 342, 354 (7th Cir. 2016). Turturillo contends 

that Oszust’s complaint fails to allege how Turturillo retaliated against Oszust. In his response, 

Oszust indicates that Turturillo was involved in the charges and investigation leveled against 

him. Further, he newly alleges that Turturillo “harassed and intimidated witnesses in the 
15 

furtherance of causing harm to the Plaintiff” and “attempted to cause the termination” of Oszust. 

[DE 67 at 4]. 

 The Court finds that Oszust’s allegations come up short. While a First Amendment 

retaliation plaintiff need not contend that the actor had the authority to violate the plaintiff's 

rights, Hoffman v. Dewitt Cty., No. CV 15-3026, 2016 WL 1273163, at *8 (C.D. Ill. Mar. 31, 

2016), he must at least allege that the “defendant set in motion a series of events that the 

defendant knew or should reasonably have known would cause others to deprive the plaintiff of 

her constitutional rights.” Conner v. Reinhard, 847 F.2d 384, 397 (7th Cir. 1988). Oszust’s 

complaint offers no indication of how he believes Turturillo harmed him for exercising his First 

Amendment rights. In his response to Turturillo’s motion to dismiss, Oszust represents that 

Turturillo contributed to the investigation against Oszust and newly alleges outside the pleadings 

that “Mr. Turturillo harassed and intimidated witnesses in the furtherance of causing harm to the 

Plaintiff” and “Mr. Turturillo attempted to cause the termination . . . of Plaintiff Oszust.” [DE 67 

at 4]. But there are two problems with these new allegations. First, they are not properly 

advanced in a response to a motion to dismiss. While a plaintiff is free to raise facts that support 

the viability of his claim in a response, his complaint must also state an adequate claim for relief 

in the first instance. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir. 2010). 

Here, where the complaint completely fails to draw any connection between Turturillo and any 

harm to Oszust, Oszust has not done that. And Oszust cannot amend his complaint in a response 

to a motion to dismiss. GE Capital Info. Tech. Sols., Inc. v. Campbell Ads LLC, No. 2:11-CV-82 

PPS-APR, 2012 WL 1677957, at *3 (N.D. Ind. May 14, 2012). Second, even considering these 

new allegations, they fail to demonstrate how Turturillo caused any harm to Oszust. They allege 

only that Turturillo attempted to cause Oszust’s termination and intimidated witnesses in the 
16 

furtherance of causing harm to Oszust. It is entirely unclear, however, whether these purported 

actions ultimately had any effect on Oszust. 

 Oszust’s claim also suffers from another deficiency. It does not adequately allege that he 

engaged in protected speech. That is an essential element of a First Amendment retaliation 

claim. Hatcher, 2016 WL 3770555, at *4. For a government employee, it requires establishing 

that the plaintiff spoke as a citizen rather than as an employee. Id. “When a public employee 

speaks on matters pursuant to employment duties, that speech is not protected under the First 

Amendment.” Id. That is because “restricting speech that owes its existence to a public 

employee’s professional responsibilities does not infringe on any liberties the employee might 

have enjoyed as a private citizen.” Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 422 (2006)). 

 Here, Oszust alleges that he engaged in protected activity “when he encouraged, 

advocated for, and supported” women he contends were victims of sexual harassment. [DE 41 at 

16]. He does not, however, provide any basis to believe that he did so as a citizen, rather than as 

an employee. 8 While his assistance, seemingly unrequested by the Town, may at first not appear 

to fall within the scope of his employment, the Seventh Circuit has “repeatedly held that an 

employee’s speech about misconduct affecting an area within [his] responsibility is considered 

pursuant to [his] employment even when [he] is not strictly required to make it.” Id. at *5. 

Accordingly, when determining whether a plaintiff spoke as an employee or as a citizen the 

Court takes “a practical view of the facts alleged in the complaint, looking to the employee’s 

level of responsibility and the context in which the statements were made.” Abcarian v. 

McDonald, 617 F.3d 931, 937 (7th Cir. 2010). 

                                                            

8

 Even if Oszust had adequately alleged that he spoke as a citizen, his speech would still not necessarily be 

protected. He would also have to establish that it pertained to a matter of public concern. Here, it is not clear that 

was the case, as purely personal sexual harassment grievances are not entitled to First Amendment protection. See 

Gross v. Town of Cicero, Ill., 619 F.3d 697, 706–07 (7th Cir. 2010). 
17 

 Oszust’s complaint, however, provides no information to contextualize the assistance he 

allegedly rendered. Further, it is “entirely devoid of any job description or other detail of [his] 

affirmative duties.” That is plainly insufficient to survive federal pleading requirements. Id; see 

also Hatcher, 2016 WL 3770555, at *4 (“A mere speculative possibility that an employee speaks 

as a citizen is no longer enough to satisfy federal notice pleading requirements. Abcarian v. 

McDonald, 617 F.3d 931, 937 (7th Cir. 2010). So [the plaintiff] needed to plead specific facts 

that plausibly suggested her speech was not made pursuant to her faculty role, but rather was 

made in her capacity as a private citizen.”) (emphasis in original). Further, while Oszust makes 

the bare allegation that he “spoke as a citizen on a matter of public concern,” [DE 41 at 16], that 

is also insufficient to state a claim. See Abcarian, 617 F.3d at 937 (finding dismissal of a First 

Amendment retaliation claim proper where the complaint pleaded a mere legal conclusion that 

the plaintiff spoke as a citizen outside the duties of his employment). As such, the Court finds 

that Oszust has not plausibly alleged that Turturillo took action against Oszust so as to deter 

expression of Oszust’s First Amendment rights, or that Oszust engaged in protected speech. 

Dismissal of his First Amendment claim is therefore appropriate. 

 Supplemental Jurisdiction 

 Finally, the Court turns to its supplemental jurisdiction over the Plaintiffs’ state-law 

claims. Pursuant to 28 U.S.C. § 1367(a), a district court may exercise jurisdiction to the full 

extent of Article III's case or controversy requirement. McCoy v. Iberdrola Renewables, Inc., 

760 F.3d 674, 682 (7th Cir. 2014). Claims are part of the same case or controversy if they derive 

from a common nucleus of operative fact. Id. at 683. The Court need not hear every claim 

within its supplemental jurisdiction, however, and may decline to exercise supplemental 

jurisdiction in several circumstances. 28 U.S.C. § 1367(c). Among these, is where a state claim 
18 

“substantially predominates over the claim or claims over which the district court has original 

jurisdiction.” 28 U.S.C. § 1367(c)(2). “If it appears that the state issues substantially 

predominate, whether in terms of proof, of the scope of the issues raised, or of the 

comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice 

and left for resolution to state tribunals.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 

726–27 (1966). 

 Here, Oszust’s state-law claims assert violations of Indiana’s open door law and police 

disciplinary proceeding statutes. These involve questions about the content and mechanics of the 

administrative proceedings against Oszust that are substantially separate from the issue of 

retaliatory intent raised by Oszust’s Title VII claim against the Board and First Amendment 

retaliation claim against Frego (which, per the above analysis, are now the only remaining claims 

over which this Court has original jurisdiction). Indeed, the only commonality between Oszust’s 

state and federal claims appears to be that they all may, in some fashion, be related to the 

disciplinary proceedings against Oszust. But that isn’t enough to support supplemental 

jurisdiction. See Tucker v. Montgomery Ward & Co., No. 86 C 9734, 1987 WL 14616, at *3 

(N.D. Ill. July 17, 1987) (finding that the single overlapping fact of a plaintiff’s discharge was 

not sufficient to warrant a court’s exercise of supplemental jurisdiction over a state-law claim). 

In fact, under these circumstances, §1367 may not even permit jurisdiction over the state claims. 

See Angsten v. Blameuser, No. 05 C 4254, 2005 WL 3095513, at *5 (N.D. Ill. Nov. 16, 2005) 

(“While the claims share a general factual background . . . the operative facts necessary for the 

tort claims are wholly unrelated to the operative facts essential to the elements of the Section 

1983 claim.”) (emphasis in original). Further, the relief the Plaintiffs seek in their state claims, 

which spans pages of requests for declaratory and injunctive relief, substantially predominates 
19 

over the damages sought in Oszust’s Title VII and First Amendment retaliation claims. Lastly, 

the parties now appear to agree that state adjudication of the state-law claims in this matter is 

appropriate. [DE 87 at 7] (“declining jurisdiction pursuant to 28 U.S.C. § 1367, may be 

appropriate”); [DE 86 at 1] (arguing that Plaintiffs’ state-law claims should be dismissed because 

they implicate Younger). As such, the Court declines to exercise jurisdiction over them. See 

Angsten, No. 2005 WL 3095513, at *5 n. 3 (“despite the existence of a separate but ancillary 

federal claim, this lawsuit is really a state-law tort action better heard by the Illinois courts”).9 

CONCLUSION 

For the foregoing reasons, the Defendant Town’s motion to dismiss [DE 47] is 

GRANTED IN PART as to Plaintiff Oszust’s Fifth Amendment claim, which is DISMISSED 

without prejudice. That motion is DENIED as to Oszust’s Title VII retaliation claim. Defendant 

Turturillo’s motion to dismiss [DE 65] is GRANTED and the First Amendment retaliation claim 

against him is accordingly DISMISSED without prejudice. The Defendant Town of St. John’s 

second motion to dismiss [DE 70] is GRANTED IN PART as to the Plaintiffs’ First Amendment 

right of access claim, which is DISMISSED with prejudice. The Court further declines to 

exercise supplemental jurisdiction over the Plaintiffs’ state-law claims and those claims are thus 

REMANDED to state court. Finally, the Town’s motion to strike [DE 58] is DENIED as moot, 

because the contested evidence is not relevant to the issues raised in the above motions.10 

                                                            

9

 The Court also declines supplemental jurisdiction over any cause of action the Plaintiffs purport to bring based on 

Indiana Rule of Trial Procedure 41, see [DE 3 at 20-21, case no. 2:16-cv-22], for the reasons stated above. 

 

10 See Orso v. Bayer Corp., No. 04 C 0114, 2006 WL 2794975, at *5 n. 5 (N.D. Ill. Sept. 27, 2006) (“Urso attached 

a number of exhibits to her response to the motion to dismiss. Bayer has moved to strike most of these exhibits, 

arguing that they are irrelevant and not properly considered on a motion to dismiss. Because the court has not 

considered these exhibits in deciding the motion to dismiss, the motion to strike is denied as moot.”); Babchuk v. 

Indiana Univ. Health, Inc., 299 F.R.D. 591, 594 (S.D. Ind. 2014) (“Finally, because the evidence attached to 

Defendants’ Motion to Dismiss did not factor in the Court's decision, Plaintiffs’ Motion to Strike that evidence is 

DENIED as moot”). 
20 

 SO ORDERED. 

 ENTERED: August 30, 2016 

 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court