1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION AT LAFAYETTE 

RUSSELL HOAKS, 

Plaintiff, 

vs. 

BENTON COUNTY SHERIFF’S 

DEPARTMENT, and DONALD MUNSON, 

in his individual capacity, 

Defendants. 

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NO. 4:15-CV-18 

OPINION AND ORDER

 This matter is before the Court on Defendants’ Motion for 

Summary Judgment, filed on February 21, 2017 (DE #31). For the 

reasons set forth below, the motion is GRANTED IN PART AND DENIED 

IN PART. The Clerk is hereby ORDERED to DISMISS the claim for 

damages against Defendant Munson in his individual capacity WITH 

PREJUDICE. 

BACKGROUND 

 On March 5, 2015, Plaintiff Russell Hoaks (“Hoaks”) filed a 

complaint against the Benton County Sheriff’s Department 

(“Sheriff’s Department”) and Sheriff Donald Munson (“Sheriff 

Munson” or “Munson”) in his individual capacity (together, 
2 

“Defendants”). Munson was a correctional officer with the 

Sheriff’s Department. In 2014, both Munson and Hoaks ran for 

sheriff on the Republican ticket in the primary election. Hoaks 

lost to Munson. Munson went on to win the general election in 

November and, on his first day in office, he terminated Hoaks. 

Hoaks filed this 42 U.S.C. § 1983 action alleging that he was 

terminated in violation of the First Amendment. 

 Defendants have filed a motion for summary judgment claiming 

there are no genuine issues of material fact and they are entitled 

to judgment as a matter of law. Defendants argue that Hoaks held 

a policymaking position and his termination therefore did not 

violate the First Amendment. They further argue that he is unable 

to produce evidence that his termination was motivated by political 

activity, and that they had legitimate non-political reasons for 

terminating Hoaks. Additionally, Defendants argue that the 

Sheriff’s Department must be dismissed because there is no basis 

for municipal liability under Monell. Finally, Sheriff Munson 

argues that he is entitled to qualified immunity. The instant 

motion is fully briefed and ripe for adjudication. 

DISCUSSION 

Summary judgment must be granted when “there is no genuine 

dispute as to any material fact and the movant is entitled to 
3 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine 

dispute of material fact exists when “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not 

every dispute between the parties makes summary judgment 

inappropriate; “[o]nly disputes over facts that might affect the 

outcome of the suit under the governing law will properly preclude 

the entry of summary judgment.” Id. In determining whether 

summary judgment is appropriate, the deciding court must construe 

all facts in the light most favorable to the nonmoving party and 

draw all reasonable inferences in that party’s favor. Ogden v. 

Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). “However, our favor 

toward the nonmoving party does not extend to drawing inferences 

that are supported by only speculation or conjecture.” Fitzgerald 

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citation omitted). 

 A party opposing a properly supported summary judgment motion 

may not rely on allegations or denials in her own pleading, but 

rather must “marshal and present the court with the evidence she 

contends will prove her case.” Goodman v. Nat’l Sec. Agency, 

Inc., 621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party 

fails to establish the existence of an essential element on which 

he or she bears the burden of proof at trial, summary judgment is 

proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). 
4 

Facts 

 Although no motions to strike have been filed, each party has 

argued that certain evidence must be excluded as hearsay. It is 

the function of the Court, with or without a motion to strike, to 

carefully review the evidence and to eliminate from consideration 

any argument, conclusions, and assertions unsupported by the 

documented evidence of record offered in support of the statement. 

See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 

No. 04 C 5167, 05 C 2253, 2006 WL 980740, at *2 n.2 (N.D. Ill. 

Apr. 10, 2006); Tibbetts v. RadioShack Corp., No. 03 C 2249, 2004 

WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 

324 F.Supp.2d 917, 920 n.1 (N.D. Ind. 2004). Individual 

objections will not be ruled upon, but the Court notes that, in 

ruling on a motion for summary judgment, it only considers evidence 

that would be admissible at trial. See Woods v. City of Chicago, 

234 F.3d 979, 988 (7th Cir. 2000). 

 Hoaks, a Republican, began working for the Benton County 

Sheriff’s Department as a correctional officer in 2005. (Ex. A 

at 7; Ex. 2 ¶2.) He was employed under two Republican sheriffs: 

Sheriff Winchester and Sheriff Pritchett. (Ex. A at 9; Ex. 2 ¶1.) 

 The written description of Hoaks’ position indicates that the 

duties of a corrections officer include but are not limited to the 
5 

following: admitting and discharging inmates, recording jail 

activities, patrolling the jail, verifying safety and security in 

the jail, making written reports of events, inspecting jail 

property, dispensing medication, maintaining supervision of the 

inmates, and enforcing rules and regulations in accordance with 

the standard operating procedures (“SOPs”). (Ex. 5.) Hoaks 

testified that correctional officers report directly to the 

Sheriff. (Ex. A at 11-12.) Although this fact is not material to 

the outcome of this case, the job description, however, states 

that a correctional officer is directly accountable to the Jail 

Commander, followed by the Sheriff. (Ex. 5.) Munson was the Jail 

Commander prior to his election to the position of sheriff. (Ex. 

2, ¶2.) 

 Hoaks testified that correctional officers do what they see 

fit and what is necessary during their shifts, be it breaking up 

a fight or passing out envelopes and paper. (Ex. A at 40.) When 

Hoaks came to work, he “would take care of what was needed to be 

taken care of,” and the sheriff only provided direction if they 

had transports or court. (Id.) It was only a matter of the 

sheriff calling them to arrange transport for the inmates. (Id.

at 40-41.) 

 Hoaks won an election to the Oxford Town Council (“Council”) 

in 2010, and he joined the Council in 2011. (Id. at 10-11.) He 
6 

has been on the Council since 2011. (Id. at 10.) He served on 

the Council with Munson from 2012-2014. (Ex B at 23.) Hoaks 

decided to run for the position of sheriff in 2014. (Ex. A at 11; 

Ex. 2 at ¶2.) Hoaks, Munson, Ernie Winchester (“Winchester”), and 

Matt Shuee (“Shuee”) ran for sheriff in the Republican primary in 

2014. (Ex. B at 19; Ex. 2 ¶2.) Other than Munson, Hoaks was the 

only candidate who worked at the Benton County Sheriff’s 

Department. (Ex. 2, ¶4.) Munson’s campaign slogan was “Time for 

Change.” (Ex. 6 at 20.) 

 Hoaks’ working relationship with Munson was very cordial and 

there was nothing out of the ordinary when they saw each other. 

(Ex. A at 41.) Although Munson won the election, this relationship 

did not change after the election. (Ex. A at 41; Ex. 2, ¶4.) 

Hoaks and Munson did not discuss the election at work. (Ex. B at 

23.) The only discussion was the day before or day of the election 

when the two wished each other good luck. (Id.) Shuee’s wife, 

Mary, still works for the Benton County Sheriff’s Department, and 

Munson promoted her to matron over the kitchen. (Id. at 19-20.) 

The election did not enter the work arena because they kept it 

clean. (Id. at 91). They were able to compartmentalize where 

they might be at odds, and their job was their job. (Id.) 

Munson decided to run for the position of sheriff because 

that was the only way to have any control over change in the 
7 

direction the Sheriff’s Department was going. (Id. at 20.) He 

believed the Sheriff’s Department needed a change in direction. 

(Id.) Munson won fifty percent of the primary vote, Winchester 

won twenty-three percent, Hoaks won seventeen percent, and Shuee 

won ten to eleven percent of the vote. (Id. at 20-21.) Munson 

believed that Hoaks was technically qualified under the law to run 

for Sheriff, but he does not think Hoaks would have done a good 

job as Sheriff. (Id. at 28.) Munson believed Hoaks would have 

served under the “good ole boy system,” which he viewed as 

problematic. (Id. at 29.) Former Sheriff Pritchett believed in 

trying to appease the inmates the best he could. (Ex. C at 38.) 

It did not bother Munson that Hoaks ran, as he did not believe 

Hoaks was a threat to his campaign. (Ex. B at 29.) Nonetheless, 

Munson made comments to Sheriff Pritchett such as “why does he 

think he’s got to run” during the primary season. (Ex. 3. at 22-

23.) Furthermore, Timothy Piercy (“Piercy”) overheard a 

conversion in May of 2014 between Munson and Bruce Buchannan, the 

Lead Chair of the Republican Party in Benton County. (Ex. 7 ¶¶3-

5.) In that conversation, Munson indicated that, as sheriff, he 

would “clean house” and that Hoaks would be the first to go. (Id.

¶6.) 

 Hoaks was aware that an employee previously received a threeday suspension for passing contraband. (Ex. A at 10.) The 
8 

employee passed a cell phone and cigarettes. (Id.) Hoaks 

believes sometimes he needs to make an inmate think he got away 

with something because if he tells them no he will have a mess 

from them banging their head on the wall. (Id. at 34-35.) 

According to Hoaks, “[i]f giving him two Tylenol and telling him 

to not flash the camera keeps him on the down low, that’s 

corrections officer 101.” (Id. at 35.) 

 Munson believes that jailers and jail commanders are there to 

maintain the health and well-being of inmates, not to be friends. 

(Ex. B at 30.) He believed Hoaks decided he needed to be friends 

with the inmates. (Id.) They have personality differences on 

that basic level. (Id.) 

 On October 25, 2014, inmates Cody Adams (“Adams”) and Greg 

Fultz (“Fultz”) were in a physical altercation. (Id. at 31.) 

Adams was injured and transported by Munson. (Ex. 2 ¶8.) Fultz 

injured his left hand and was taken to Clarian Hospital. (Id.) 

Upon his return to the jail, Fultz was placed in isolation by 

Munson. (Id. ¶9.) While in isolation, inmates are not permitted 

to make phone calls. (Id.) 

 Hoaks explained that, the following morning, Fultz informed 

him that his girlfriend was scheduled to visit that afternoon and 

was coming from Lafayette. (Ex. 2 ¶9.) To save her the trouble 

of traveling to the jail when she would not be able to see Fultz, 
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Hoaks allowed Fultz to use the jail phone. (Id.) According to 

Hoaks, this was something that occurred regularly by the 

correctional officers. (Id.) Hoaks asserts that Fultz’s injury 

required medical attention and Hoaks allowed Fultz to call his 

girlfriend to let her know and to see if she could arrange care. 

(Id.) During the phone call, Fultz told his girlfriend that he 

was not supposed to make the call but that Hoaks had let him, so 

after the call, Hoaks told Fultz that he was “throwing him under 

the bus.” (Ex. 1 at 34; Ex. 2, ¶9.) Hoaks claims that said this 

to allow Fultz to think he had one-up on him. (Ex. 2, ¶9.) Hoaks 

was aware they were being recorded and did not believe he was 

violating any rules. (Id.) 

 On October 29, 2014, Munson learned from Hoaks’ partner, Lou 

Villinski (“Villinski”), that Hoaks provided Fultz improper phone 

privileges on October 26, 2014. (Ex. B at 35.) Munson reviewed 

the video footage regarding this incident on October 31, 2014. 

(Id. at 36.) Fultz told Hoaks that he wanted to use the phone, 

and Hoaks allowed him to use the admin phone instead of making him 

use a calling card on the inmate phone. (Id. at 36.) Munson 

believes that, during and before the phone call, Hoaks coached 

Fultz to tell his girlfriend to call the jail commander and Sheriff 

to put pressure on them to get Fultz out of jail in order to not 

pay for his hand injury. (Id. at 37.) Fultz also told his 
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girlfriend that he was not supposed to make his phone call, but 

Hoaks let him. (Ex. A at 34.) 

 On November 4, 2014, Munson brought the matter to Sheriff 

Pritchett’s attention. (Ex. B at 38.) Sheriff Pritchett did not 

indicate an intention to discipline Hoaks for the phone call 

incident, although Pritchett did indicate that he would take care 

of it. (Id. at 39; Ex. 3 at 30.) Munson concedes that Sheriff 

Pritchett had no obligation to discuss any disciplinary matters 

with him. (Id. at 39-40.) However, he believed that, if 

Pritchett intended to discipline Hoaks, he would have discussed it 

with him. (Id.) That is what occurred in the past. (Id.) 

Munson did not press the issue of discipline for Hoaks further 

with Sheriff Pritchett. (Id. at 40.) 

 Later that day, Munson spoke with Villinski again, and she 

asked if Munson viewed the video. (Id. at 41.) Munson advised 

that he reviewed the video about the phone call, and Villinski 

asked about the pills Hoaks gave Fultz. (Id.) Munson was 

previously unaware of a separate incident with pills, and Villinski 

advised that the incident occurred around 10:00 a.m. on October 

26, 2014. (Id.) She believed that Hoaks provided Fultz with 

pills, but she did not think Fultz had anything prescribed. (Id.) 

The next day, Munson reviewed the video, and he observed Hoaks 

in the nurse’s office digging around searching for something. 
11 

(Id.) When Hoaks went to the cell, Fultz said something about 

needing Norcos, and Hoaks handed him something and said to take 

these four and don’t flash them in front of the camera. (Id. at 

42.) There was nothing that the jail medical provider had 

prescribed Fultz for pain at that point. (Id.) He was not 

prescribed ibuprofen until days later. (Id. at 43.) Munson 

reviewed the medical chart to make sure there had been no 

medication prescribed or logged for October 26, 2014. (Ex. B at 

44; Ex. 2 at ¶10.) Anker reviewed her documentation, which 

reflected that no medical slip had been turned in. (Ex. D at 11.) 

The medical chart does not reflect an order for Ibuprofen until 

October 29, 2014. (Ex. E.) 

 Hoaks admitted that at the time he provided the medication 

and phone privileges to Fultz, he was aware that doing so may 

violate the department policies. (Ex. A at 12-13.) Correctional 

officers are forbidden from passing medication to inmates without 

permission. (Ex. C at 6.) According to Renee Anker (“Anker”), 

medication provided to inmates must be cleared by medical and 

written on the chart, or it should not be given. (Ex. D at 10.) 

At some point in 2013, the policy changed to allow correctional 

officers to provide Tylenol and ibuprofen without medical 

approval. (Ex. 2 at ¶10; Ex. 3 at 8-9.) The medications were 

still supposed to be logged. (Ex. 2 at ¶10; Ex. 3 at 8-9.) 
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Approximately three or four times a year, a correctional officer 

would forget to log medication given to an inmate. (Ex. 8 at 17-

18; Ex. 4 at 26-27.) Munson’s mother, Sharon Vanderwall, was one 

of the employees that forgot to log medication. (Id.) Marylou 

Shuee also forgot to log medication. (Id.) Hoaks did not have a 

history of failing to log medications. (Id. at 27.) In Sheriff 

Pritchett’s words, “you don’t fire somebody for that.” (Id. at 

27.) Ibuprofen and Tylenol can be purchased by prisoners from the 

commissary. (Ex. 8 at 6-7.) 

 At the time the events of October 26, 2014, were revealed to 

Munson, he had already won the general election, and he knew that 

he would become Sheriff on January 1, 2015. (Ex. B at 44.) Based 

on Sheriff Pritchett’s reluctance to discipline Hoaks for obvious 

signs of fraternization and trafficking, Munson decided in early 

November to terminate Hoaks once he became Sheriff. (Id. at 44-

46.) Munson considered Hoaks’ actions to be worthy of 

termination. (Id. at 91.) The series of incidents combined made 

it easier to make the determination that Hoaks should be terminated 

because it showed a pattern of behavior. (Id. at 92.) Munson had 

only discussed the phone incident with Sheriff Pritchett, and he 

did not reconvene with Sheriff Pritchett after learning about the 

pills because he decided to take care of the issue when he became 

Sheriff in January. (Id. at 46.) 
13 

 Munson believed that Hoaks had been doing a lot of things 

with inmates that he should not be doing besides the events of 

October 26, 2014. (Id.) Munson believed Hoaks was engaging in 

improper conversations and providing extra privileges and extra 

information. (Id. at 47.) To Munson, it went back to his campaign 

slogan that it was time for change. (Id.) Munson did not have 

proof of Hoaks’ misconduct prior to October 26, 2014. (Id. at 

49.) According to Munson, Hoaks did whatever he wanted to do. 

(Id. at 54.) By fraternizing, Munson meant that Hoaks was being 

friends with the inmates. (Id.) According to Munson, he was 

giving them favors and letting them do things he should not be 

letting them do. (Id.) He was, in Munson’s opinion, doing things 

not normal to his job based on his feelings about the inmates. 

(Id.) He has no idea what medication Hoaks actually provided 

Fultz, but he gave him pills in order to do something nice as a 

friend, not as a jailer. (Id. at 55.) In Munson’s estimation, 

Hoaks’ conduct was harmful to the safety and security of the jail. 

(Id. at 99.) When inmates become too close with correctional 

officers, they try to gain information about inmate movement which 

can be used to coordinate an escape. (Id. at 98.) 

 According to former Sheriff Pritchett, “just about every 

jailer back there, including [Munson’s] own mother” allowed 

inmates to use the jail phone. (Ex. 3 at 28-29.) While this 
14 

violated the jail’s policies, Sheriff Pritchett did not view this 

as an offense worthy of discipline, and he did not discipline Hoaks 

for allowing Fultz to use the jail phone. (Id.) 

Sheriff Munson and Deputy Sallee delivered a notice of 

termination to Hoaks at his home on the first day Munson took 

office. (Ex. 6 at 51-52.) The notice informed Hoaks that he was 

being terminated for policy violations. (Ex. F.) The notice 

indicates that Hoaks is being discharged for disclosing 

confidential information and fraternizing/conspiring with an 

inmate on October 26, 2014. (Id.) The attached report explains 

that Hoaks was being terminated based on the phone call and the 

improper providing of medication. (Id.) The notice specifically 

notes that Hoaks’ familiarity with the inmates represents a clear 

risk to the department. (Id.) When Sheriff Munson arrived at 

Hoaks’ home to deliver the notice, Hoaks saw that the notice 

alleged “fraternization,” and, because of this allegation, he 

asked if he was being arrested. (Ex. A at 37; Ex. B at 52; Ex. 

2, ¶13.) Hoaks observed that the word fraternization with inmates 

in a jail setting means you are playing with something you should 

not be. (Ex. A at 37.) 

 Prior to October 2014, Hoaks had not received any discipline. 

(Ex. 2 at ¶3.) On October 29, 2014, Sheriff Pritchett issued a 

written reprimand. (Id. ¶11; Ex. 4.) The reprimand was issued 
15 

solely because Hoaks failed to log the medication, not because he 

provided unauthorized medication. (Ex. 3 at 26; Ex. 4.) The 

reprimand stated: 

On October 28, 2014 the Benton County Jail Nurse (Renee) 

reported to me that the medication was not being logged 

on inmate’s medical log. Renee advised that Rusty Hoaks 

had failed to log ibuprofen that he gave to Greg Fultz. 

On October 29, 2014 I had a meeting in my office with 

correctional officer Rusty Hoaks. This meeting was of 

two fold. First I wanted a review of the fight that had 

taken place between inmates Greg Fultz and Cody Adams. 

CO Hoaks reported that the fight had broken out between 

the two and Adams had required several switches [sic]. 

Fultz appeared to have broken his hand. . . . 

I asked Hoaks if he had given Fultz any medication. Hoaks 

advised that he had given Fultz two ibuprofen in the 

morning and two again that evening according to medical 

protocol. I then asked Hoaks why he didn’t log the 

medication in Fultz’s medical sheet. Hoaks stated that 

it was his oversight. 

Hoaks went on to explain that he had let Fultz use the 

jail’s phone. Hoaks advised that Fultz could not get 

through on the inmate phones to call his girlfriend. 

Hoaks advised that Fultz wanted to be ORed so he could 

have his hand looked at sooner. Hoaks advised Fultz that 

the Jail Commander would have to take care of that. Hoaks 

advised Fultz to have his girlfriend call the Jail 

Commander in the morning and see what he could do about 

getting him Ored. Since Fultz couldn’t get through on 

the inmates phone, he let Fultz use the jail phone. 

(Ex. 4.) 

 Thus, at the time of his termination, Hoaks had already been 

disciplined for his conduct by then Sheriff Pritchett. (Ex. 3 at 

11; Ex. 4.) Munson never asked Hoaks about the Tylenol incident. 
16 

(Ex. 2, ¶11.) Hoaks has no knowledge as to whether or not the 

statement that he was terminated for policy violations is true. 

(Ex. A at 61.) Hoaks has told people that he was terminated 

because of a change in sheriff and that he was let go by the new 

sheriff for reasons he did not understand. (Id. at 48-49.) Hoaks 

never heard comments from Munson regarding an intent to terminate 

him. (Id. at 26.) Hoaks was never present when it appeared 

Munson was talking about him to someone else. (Id.) 

ANALYSIS 

 Position Subject to First Amendment 

 Defendants argue that Hoaks’ First Amendment claim fails 

because his position was exempt from the First Amendment’s ban on 

patronage dismissals. Generally, “public employees may not be 

made to suffer adverse job actions because of their political 

beliefs.” Carlson v. Gorecki, 374 F.3d 461, 464 (7th Cir. 2004) 

(citations omitted). 

The Supreme Court has held in the name of freedom of 

speech that a public official cannot be fired on the 

basis of his political affiliation unless the nature of 

his job makes political loyalty a valid qualification; 

this could be either because the job involves the making 

of policy and thus the exercise of political judgment or 

the provision of political advice to the elected 

superior, or because it is a job (such as speechwriting) 

that gives the holder access to his political superiors’ 

confidential, politically sensitive thoughts. 
17 

Riley v. Blagojevich, 425 F.3d 357, 359 (7th Cir. 2005) (citing 

Elrod v. Burns, 427 U.S. 347, 367-68 (1976); Branti v. Finkel, 445 

U.S. 507, 518 (1980)). In other words, “[p]olitical affiliation 

is an appropriate criterion for public employment when the 

effective operation of government would be compromised by 

requiring a public official to retain a potential political enemy 

in a position of responsibility.” Pleva v. Norquist, 195 F.3d 

905, 912 (7th Cir. 1999) (citation omitted). Ultimately, the 

defendant bears the burden of establishing that a plaintiff’s 

position falls within the exception to the general prohibition on 

patronage dismissals. Kiddy-Brown v. Blagojevich, 408 F.3d 346, 

354 (7th Cir. 2005) (citation omitted). 

 The Supreme Court first articulated the test for whether 

political affiliation is an appropriate requirement for employment 

as whether a particular position involved confidential and 

policymaking responsibilities. See Elrod, 427 U.S. at 360. 

However, the Court has since recognized that “[u]nder some 

circumstances, a position may be appropriately considered 

political even though it is neither confidential nor policymaking 

in character,” and that “party affiliation is not necessarily 

relevant to every policymaking or confidential position.” Branti, 

445 U.S. at 518. Thus, “the ultimate inquiry is not whether the 

label ‘policymaker’ or ‘confidential’ fits a particular position; 
18 

rather, the question is whether the hiring authority can 

demonstrate that party affiliation is an appropriate requirement 

for the effective performance of the public office involved.” Id.

 The test for whether a position is protected is “whether the 

position held by the individual authorizes, either directly or 

indirectly, meaningful input into government decisionmaking on 

issues where there is room for principled disagreement on goals or 

their implementation.” Nekolny v. Painter, 653 F.2d 1164, 1170 

(7th Cir. 1981). Even “if an officeholder performs fewer or less 

important functions than usually attend his position, he may still 

be exempt from the prohibition against political terminations if 

his position inherently encompasses tasks that render his 

political affiliation an appropriate prerequisite for effective 

performance.” Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th 

Cir. 1985). As this Court noted in Harney v. McDermott, No. 2:04-

cv-131, 2006 WL 1544389, at *7 (N.D. Ind. June 2, 2006), “[w]hile 

the law is clear, its application has been fraught with 

difficulty.” See also Riley, 425 F.3d at 359 (noting that drawing 

the line between protected and unprotected positions is 

“inescapably arbitrary”); Nekolny, 653 F.2d at 1169 (finding the 

question of whether an employee has policymaking powers “in many 

cases presents a difficult factual question”). The question of 

whether a position is exempted from the First Amendment patronage 
19 

dismissal ban is typically a factual one that should ordinarily be 

left for a jury to determine. Pleva, 195 F.3d at 912. Only in 

limited cases where the duties and responsibilities of a particular 

position are clearly outlined in an official job description may 

a court make such a determination as a matter of law. Id. 

 Defendants rely on two cases in support of their argument 

that Hoaks held a policymaking position: Flenner v. Sheahan, 107 

F.3d 459 (7th Cir. 1997), and Upton v. Thompson, 930 F.2d 1209 

(7th Cir. 1991). In Flenner, the Seventh Circuit considered 

whether correctional officers were protected by the First 

Amendment. 107 F.3d 459. The district court had found that the 

sheriff had qualified immunity for his decision to terminate two 

correctional officers for patronage reasons. The Seventh Circuit 

reversed, noting: 

According to appellants, they received daily 

instructions from their immediate supervisors as to the 

handling, care and supervision of the prisoners to whom 

they were assigned. Accepting these allegations as 

true, it would appear that appellants are among those 

government workers who are clearly and completely 

protected from patronage firing. Dismissal of 

appellants’ case on the pleadings was therefore 

inappropriate.

Of course, on remand, the district court may be presented 

with evidence that the position of correctional officer 

involves more autonomy or discretion than is alleged in 

appellants’ complaint. Once the factual record is 

developed, the district court may be required to revisit 

the qualified immunity issue. 
20 

Id. at 465 (internal citations and quotation marks omitted). 

 In Upton v. Thompson, the Seventh Circuit determined that two 

sheriffs were entitled to qualified immunity in their decision to 

terminate deputy sheriffs. 930 F.2d 1209 (7th Cir. 1991). The 

Seventh Circuit noted the following: 

Given the dependency of the sheriff (and his political 

survival) on his deputies' job performance, it is 

understandable why a sheriff might believe that party 

loyalty is an appropriate consideration for a deputy 

sheriff. This conclusion is especially true in the case 

of Jack Thulen, who was the outgoing sheriff's brother 

and chief deputy in a very small department for many 

years. Thulen took a high profile in a hotly contested 

campaign which involved critical policy disputes 

relating to the proper operation of the Sheriff's 

Department. Thulen's political involvement extended 

beyond mere party affiliation; it included active 

opposition to Marvin Bausman, who became the newly 

elected Sheriff. To the voting public this could make 

Thulen appear hostile and unreliable in carrying out the 

policies of the new Sheriff. Deputy Upton, while 

apparently not as active (or at least as high profile) 

in campaign events as Jack Thulen, had certainly made 

his opposition to candidate (later Sheriff) Thompson 

well known. In addition, Upton's leadership of a 

policemen's union which opposed Thompson's candidacy 

made it questionable whether he could execute Thompson's 

policies. Even though Thompson's department was larger, 

thus diluting the potential disruptiveness of one 

deputy's opposing political alignment, Tomczak [v. City 

of Chicago, 765 F.2d 633 (7th Cir. 1985),] and Livas [v. 

Petka, 711 F.2d 798 (7th Cir. 1983),] would still provide 

a reasonable legal foundation for the sheriff to 

terminate a deputy whom he concluded would interfere in 

carrying out his stated policies based upon that 

deputy's prior political activity. Thus it was not 

clearly established at the time of Upton's and Thulen's 

discharges that deputy sheriffs were protected from 

patronage firings under Elrod and Branti. 
21 

Id. at 1216.

 Rather than support Defendants’ position, the Court believes 

Flenner and Upton indicate that Hoaks’ position was not one that 

authorized meaningful input into governmental decisions. The 

plaintiff-employees in Flenner and Upton held positions and 

responsibilities that differ from those held by Hoaks in the 

present case. Unlike those employees, the proffered evidence does 

not demonstrate that Hoaks had “meaningful input into government 

decisionmaking on issues where there is room for principled 

disagreement on goals or their implementation.” Nekolny, 653 F.2d 

at 1170. The Court does not believe that Hoaks’ status as a 

correctional officer necessarily makes his position exempt from 

the prohibition against patronage dismissals, nor is it aware of 

any case law holding that any similar position is a per se

policymaker as a matter of law. See Hadfield v. McDonough, 407 

F.3d 11, 18 (1st Cir. 2005) (“[A]n employee is not protected merely 

because he is a subordinate within his own office. It is 

sufficient that an officeholder is responsible for implementing 

policies that derive from partisan decisions made by others.”) 

(quotation marks and internal citation omitted). 

In Riley v. Blagojevich, the Governor of Illinois had fired 

assistant wardens of Illinois state prisons who were “the top 

officials in an Illinois prison below the warden himself.” 425 
22 

F.3d at 363. The Seventh Circuit explained that “[i]n general, 

employees who have merely ministerial duties - who really have 

very little discretion - and employees whose discretion is 

channeled by professional rather than political norms (a surgeon 

often exercises judgment, but it is professional rather than 

political judgment), are not within the exception for 

policymakers.” Id. at 360. Recognizing the uncertainty of the 

case law in the Seventh Circuit, the Riley court concluded that 

elected officials could rely on official written job descriptions 

if the job description was reliable and authoritative. Id. at 

360-61. 

In examining the position, duties, and responsibilities of 

Benton County Jail corrections officers, the Court must view the 

undisputed facts in the light most favorable to the nonmovant 

because this case is before the Court on a motion for summary 

judgment. See Anderson, 477 U.S. at 255. The written job 

description for a corrections officer indicates that the officer’s 

responsibilities included, but were not limited to, admitting and 

discharging inmates, recording jail activities, patrolling the 

jail, verifying safety and security in the jail, making written 

reports of events, inspecting jail property, dispensing 

medication, maintaining supervision of the inmates, and enforcing 

rules and regulations in accordance with the SOPs. (Ex. 5). The 
23 

tasks that Hoaks has described as part of his job as corrections 

officer are consistent with this job description. Hoaks had no 

power over employment decisions, did not have input into the 

budget, and his actions were constrained by the SOPs. See KiddyBrown, 408 F.3d at 355 (applying Nekolny test to find that state 

prison warden was not exempt from the general prohibition on 

political patronage dismissals where she had no autonomous or 

discretionary authority, did not participate in determining 

policy, and her responsibilities were constrained by statutes, 

regulations, and rules). Defendants have put forth no evidence 

that Hoaks had any input to policymaking or that his position 

afforded him meaningful input to Government decision-making. As 

in Kiddy-Brown, Defendants have not carried their burden to show 

that Hoaks is exempt from the general prohibition on political 

patronage dismissals, and have not presented the Court with 

evidence sufficient to allow it to conclude that Hoaks’ position 

“involved the kind of policymaking duties that would make political 

affiliation an appropriate requirement for the position.” Id. at 

356. Therefore, the Court finds that a question of material fact 

exists as to whether Hoaks’ position as Benton County Jail 

corrections officer was exempt from the First Amendment’s ban on 

patronage dismissals. 
24 

First Amendment Claim 

Defendants move for summary judgment on Hoaks’ First 

Amendment claim. To make out a prima facie claim for a violation 

of First Amendment rights, a public employee “must present evidence 

that (1) his speech was constitutionally protected; (2) he suffered 

a deprivation likely to deter free speech; and (3) his speech was 

at least a motivating factor in the employer’s actions.” 

Consolino v. Towne, 872 F.3d 825, 829 (7th Cir. 2017) (citations 

omitted). “[T]he initial burden is on the plaintiff to 

demonstrate that his conduct was constitutionally protected and 

that his conduct was a substantial or motivating factor in the 

defendant’s action against him. The burden then shifts to the 

defendant to show that it would have taken the same action even in 

the absence of the protected conduct.” Id. (citations omitted). 

If the defendant is able to provide alternative explanations for 

its actions, the burden shifts back to the plaintiff to show that 

these explanations were pretextual. McGreal v. Vill. of Orland 

Park, 850 F.3d 308, 314 (7th Cir. 2017). To show pretext and to 

survive summary judgment, a plaintiff must “produce evidence upon 

which a rational finder of fact could infer that the defendant[s’] 

proffered reason[s] [are] lie[s].” Id. (citation omitted). 

The parties do not dispute that Hoaks’ running for the 

position of sheriff was constitutionally protected conduct, or 
25 

that he suffered a deprivation likely to deter free speech. Hoaks 

must prove that running for the position against Munson was a 

motivating factor in the Defendants’ decision to terminate him. 

Hoaks relies on the suspicious timing of his termination - Munson’s 

first day in office as sheriff - as evidence that that running for 

sheriff against Munson was a motivating factor in the decision to 

terminate him. Hoaks also relies upon Piercy’s attestation that 

in May 2014, he overheard a conversion in which Munson indicated 

that, as sheriff, he would “clean house” and that Hoaks would be 

the first to go. (Ex. 7, ¶¶ 3-6.) Defendants maintain that this 

statement makes no reference to Hoaks’ political activity, and 

that the term “clean house” tends to refer to ridding an 

organization of problematic employees, which Munson believed Hoaks 

to be. Defendants note that Munson and Hoaks kept the election 

clean, and that their working relationship was very cordial. At 

the summary judgment stage, the Court must consider the evidence 

in the light most favorable to Hoaks. The Court finds that a 

reasonable trier of fact could conclude that Hoaks’ termination 

politically motivated. See, e.g., Foster v. Deluca, No. 04 C 

5850, 2006 WL 1980197, at *6 (N.D. Ill. July 7, 2006) (holding 

that a question of fact remained as to whether plaintiff's 

termination was politically motivated where he and other employees 
26 

who did not work on defendant’s campaign were fired shortly after 

defendant took office). 

Defendants argue that summary judgment is nevertheless 

appropriate because they have a legitimate nonpolitical reason for 

the decision to terminate Hoaks: Munson believed Hoaks to be a 

danger to the safety and security of the jail. Defendants proffer 

undisputed evidence that Hoaks provided inmate Fultz with improper 

phone privileges and medicine on October 26, 2014. At the time 

of this incident, Munson had been elected Sheriff, but had not yet 

taken office. Munson raised the incident with then-Sheriff 

Pritchett, who told Munson he would take care of it. Munson was 

not aware that Pritchett issued a written reprimand to Hoaks for 

the incident. Munson believed that Hoaks had also engaged in 

improper conversations and provided extra privileges and 

information to inmates, but did not have proof of Hoaks’ misconduct 

before the October 26, 2014 incident. Before taking office, 

Munson decided to terminate Hoaks’ employment based on what he 

perceived to be Sheriff Pritchett’s reluctance to discipline Hoaks 

for obvious signs of fraternization and trafficking. 

Hoaks argues that Defendants’ explanation for his termination 

is pretextual because Sheriff Pritchett disciplined him for the 

October 26, 2014 incident before Munson took office. However, 

Hoaks makes no claim that Munson was aware of this discipline, and 
27 

therefore this argument “do[es] nothing to undermine the sincerity 

of [Munson’s] reasons for firing him.” Massey, 457 F.3d at 719. 

Hoaks contends that Munson’s assertions that he was likely 

responsible for trafficking a wide range of inappropriate items to 

inmates within the jail and providing a variety of improper 

privileges are speculative, unsubstantiated and unsupported by 

evidence, and thus, should be disregarded by the Court. Hoaks 

also maintains that other correctional officers had engaged in 

similar conduct (i.e., allowed inmates to use the telephone, or 

forgot to log medication), and were not disciplined or terminated. 

Hoaks notes that he had never been disciplined prior to this 

incident. 

When Munson terminated Hoaks on his first day as Sheriff, he 

did not know that Hoaks had been disciplined for the October 26, 

2014 incident. However, then-Sheriff Pritchett’s discipline of 

Hoaks indicates that lesser forms of discipline were available. 

Moreover, the evidence suggests that other employees were not 

disciplined for similar misconduct. Munson insists that he 

terminated Hoaks because he believed that Hoaks was a danger to 

the safety and security of the jail. “It is rarely appropriate 

on summary judgment for a district court to make a finding on a 

state of mind.” McGreal v. Ostrov, 368 F.3d 657, 677 (7th Cir. 

2004) (citation omitted); see Massey, 457 F.3d at 719 (noting “the 
28 

persuasiveness of an employer’s non-retaliatory explanation 

ordinarily is for the finder of fact to assess”); Venters v. City 

of Delphi, 123 F.3d 956, 973 (7th Cir. 1997) (holding a court 

should only grant summary judgment when it “can say without 

reservation that a reasonable finder of fact would be compelled to 

credit the employer's case on this point”). Construing the 

evidence in favor of Hoaks, a finder of fact could conclude that 

Sheriff Munson rejected lesser discipline in favor of termination 

because Hoaks had run against Munson, and that the proffered 

reasons were not the actual motivation for the discharge. Because 

a genuine issue of material fact exists as to whether Munson’s 

termination of Hoaks violated the First Amendment, Defendants’ 

motion summary judgment on Hoaks’ First Amendment claim is denied. 

See Yahnke v. Kane Cty., Ill., 823 F.3d 1066, 1072 (7th Cir. 2016) 

(reversing summary judgment where a fact finder could conclude 

that sheriff rejected lesser sanctions in favor of termination 

because plaintiff expressed a desire to run against the sheriff, 

and that the proffered reasons were not the actual motivation for 

the discharge). 

Municipal Liability 

Defendants argue that Hoaks’ claim against the Sheriff’s 

Department must be dismissed because Hoaks has no evidence of any 

procedure, policy or practice that allegedly caused his 
29 

deprivation. A municipality may only be held liable for 

constitutional violations caused by the municipality through its 

own policy, practice, or custom. Monell v. Dep't of Soc. Servs. 

of the City of New York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. 

Ed. 2d 611 (1978). To recover under Monell, a plaintiff must 

establish that (1) he suffered a deprivation of a federal right; 

(2) as a result of an express municipal policy, a widespread 

custom, or a deliberate act of a decision-maker with final 

policymaking authority for the municipality; which (3) was the 

proximate cause of his injury. King v. Kramer, 763 F.3d 635, 649 

(7th Cir. 2014). Hoaks does not argue that liability attaches due 

to a policy or custom. Rather, he argues that Sheriff Munson was 

a decision-maker with final policymaking authority. 

“The determination of whether a person has policymaking 

authority is a question of state law, and is to be decided by the 

court.” Valentino v. Vill. of S. Chicago Heights, 575 F.3d 664, 

675 (7th Cir. 2009) (citations omitted). “Officials with final 

decisionmaking authority are deemed policymakers for Monell

purposes, and we need to look to state law to determine the scope 

of such authority.” Id. at 676 (citations omitted). The Indiana 

Court of Appeals has found that the Sheriff is “a final 

policymaker.” Trout v. Bouie, 653 N.E.2d 1002, 1007 (Ind. Ct. 

App. 1995). Defendants do not deny that Sheriff Munson was a 
30 

final decisionmaker.1 Rather, they argue that Munson’s actions 

did not violate the First Amendment. Because the Court has 

determined that a genuine issue of material fact exists as to 

whether Sheriff Munson violated the First Amendment when he 

terminated Hoaks, Defendants’ motion for summary judgment on the 

Monell claim is denied. 

Qualified Immunity 

Sheriff Munson asserts the defense of qualified immunity. 

“The doctrine of qualified immunity protects government officials 

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.” Pearson v. Callahan, 

555 U.S. 223, 231 (2009) (citation and internal quotation marks 

omitted). “[Q]ualified immunity ensures that government officials 

had notice that their conduct was unlawful before enduring 

litigation.” Houlihan v. City of Chicago, 871 F.3d 540, 546 (7th 

Cir. 2017) (citation omitted). “These officials are thus entitled 

to some degree of certainty in the law.” Id. “Although the First 

 

1 In their reply brief, Defendants assert in passing that Hoaks’ 

Complaint did not allege a Monell claim based on policymaker 

liability. (DE #37 at 8.) Defendants do not make any further 

argument or provide any additional explanation regarding this 

statement. Such “[p]erfunctory, undeveloped arguments without 

discussion or citation to pertinent legal authority are waived.” 

Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009) (citations 

omitted).
31 

Amendment typically prohibits government employers from making 

politically motivated employment decisions, a court's qualifiedimmunity analysis cannot simply rely on this general principle; 

rather, the court must determine whether there was a clear 

violation in the specific context of the case.” Id. (citing Moss 

v. Martin, 614 F.3d 707, 712 (7th Cir. 2010)). The plaintiff 

bears the burden of defeating a qualified immunity defense. 

Betker v. Gomez, 692 F.3d 854, 860 (7th Cir. 2012). “Although 

pointing to an analogous case is the typical way to defeat 

qualified immunity, see Humphries v. Milwaukee Cty., 702 F.3d 1003, 

1006 (7th Cir. 2012), it’s not necessarily the only way: ‘if there 

is no such case, then [a plaintiff] needs to offer a different 

explanation for why the constitutional violation is obvious.’ 

Moss, 614 F.3d at 712.” Houlihan, 871 F.3d at 547. 

Defendants argue that Sheriff Munson is entitled to qualified 

immunity because it was not clearly established that a Benton 

County correctional officer lacked discretion and policymaking 

authority in order to place Hoaks’ termination under the First 

Amendment. “A right is clearly established only if its contours 

are sufficiently clear that a reasonable official would understand 

that what he is doing violates that right.” Carroll v. Carman, 

135 S. Ct. 348, 350, 190 L.Ed.2d 311 (2014) (citation and quotation 

marks omitted). 
32 

Given the “considerable uncertainty [that] exists in the 

area of patronage law,” it is often difficult to prove 

that a government official violated a clearly 

established right by considering politics when making an 

employment decision. Flenner v. Sheahan, 107 F.3d 459, 

465 (7th Cir. 1997). The reason for this uncertainty 

is that determining whether it is permissible to 

consider politics is a highly fact-specific inquiry—one 

that requires considering “a wide range of government 

positions, which in turn involve an endless variety of 

job responsibilities and varying degrees of discretion 

and autonomy.” Id. Between the low-level government 

worker (who typically receives protection from patronage 

hiring and firing) and the confidential employee (who 

receives no such protection), there are numerous 

government positions for which the propriety of 

patronage-based employment decisions “has depended 

largely on the courts’ juggling of competing 

constitutional and political values.” Upton v. 

Thompson, 930 F.2d 1209, 1213 (7th Cir. 1991). For that 

reason, “it is difficult to imagine how any plaintiff 

... could have a clearly established right to be free 

from patronage dismissal unless a nearly identical case 

had already been decided.” Pounds v. Griepenstroh, 970 

F.2d 338, 341 (7th Cir. 1992). 

Houlihan, 871 F.3d at 546; see also Riley, 425 F.3d at 359 

(providing a table of cases in which various political affiliations 

were held to be, and not to be, permissible qualifications). 

Hoaks relies upon Flenner v. Sheahan, 107 F.3d 459 (7th Cir. 

1997), to assert that a public official should not be given 

qualified immunity for terminating correctional officers. In 

Flenner, the court held that “an employee who performs primarily 

ministerial functions and who has little autonomy or discretion in 

performing his duties is not subject to patronage dismissal.” Id. 

at 463. There, the sheriff argued that in 1993 an ambiguity 
33 

existed in the law which could lead a reasonable officer to 

conclude that Cook County correctional officers were subject to 

patronage dismissal as a matter of law, regardless of their job 

responsibilities. Id. The Seventh Circuit rejected this premise: 

[W]hile we focus on the inherent powers of the office 

rather than the individual who occupies it, it is 

impossible to generalize about the nature of an 

individual type of position, such as bailiff or 

secretary; job responsibilities can vary greatly between 

different governmental units or even within a 

governmental unit. For this reason the test under 

Branti must be applied to each individual office, and 

status under that formulation is left to the trier of 

fact to be determined. 

Id. at 463–64 (citation omitted). The court noted that “[t]he 

indefiniteness of the applicable Branti standard has resulted in 

judicial confusion and inconsistency, a confusion that has 

naturally transpired to government officials having to apply 

Branti.” Id. at 465 (quoting Upton, 930 F.2d at 1218). It 

recognized that because uncertainty exists within this range, “[a] 

plaintiff has little chance of winning a case of first impression 

unless she occupies an extremely high or low rung on the 

bureaucratic ladder.” Id. (citation omitted). The Seventh 

Circuit considered the correctional officers’ job descriptions and 

reversed the judgment on the pleadings, but noted that it was 

“possible that the position of Cook County correctional officer 

involves more discretion or autonomy than the government positions 
34 

involved in the cases cited and that the position of correctional 

officer is among those positions for which the propriety of 

patronage dismissal has not been clearly established. This is a 

determination which can be made by the district court only after 

it has developed the appropriate factual record.” Id. at 465–66. 

Defendants distinguish Hoaks from the correctional officers 

in Flenner, explaining that in Flenner, the correctional officers 

had no policymaking or decisionmaking authority and received daily 

instruction and immediate supervision regarding the handling, 

supervision and care of inmates. In contrast, Hoaks was a 

correctional officer in a small department with a wide degree of 

discretion in the manner in which to handle inmates. Hoaks 

testified that correctional officers did what they saw fit and 

what was necessary during their shifts. (Ex. A at 40.) He also 

testified that when he came to work, he would take care of what 

was needed to be taken care of, and that the sheriff only provided 

direction if they had transports or court. (Id.) The Court finds 

that, based on the evidence presented, a correctional officer 

position at Benton County Jail involves more than performing 

“primarily ministerial functions [with] little autonomy or 

discretion in performing his duties.” Flenner, 107 F.3d at 643. 

Thus, it cannot be said that Hoaks’ termination was an obvious 

violation of a constitutional right such that Munson should not 
35 

personally be protected by qualified immunity. Therefore, 

Defendants’ motion for summary judgment on the issue of qualified 

immunity is granted, and the claim for damages asserted against 

Munson in his individual capacity is dismissed. 

CONCLUSION 

For the reasons set forth above, the Defendants’ Motion for 

Summary Judgment (DE #31) is GRANTED IN PART AND DENIED IN PART. 

The Clerk is hereby ORDERED to DISMISS the claim for damages 

against Defendant Munson in his individual capacity WITH 

PREJUDICE. 

DATED: January 30, 2018 /s/ RUDY LOZANO, Judge 

 United States District Court