claim that has already been resolved in another lawsuit between the same parties or those in
privity with them, and the doctrine reaches both claims that were actually asserted in an earlier
lawsuit and those that could have been asserted but were not.” Russian Media Group, LLC v.
Cable Am., Inc., 598 F.3d 302, 310 (7th Cir. 2010). “[R]es judicata applies if two claims ‘arise
from a single group of operative facts, regardless of whether they assert different theories of

relief.”” Jd. (quoting River Park, Inc. v. City of Highland Park, 703 N.E.2d 883, 893 (Ill. 1998)).

Plaintiffs concede that all the elements required for the application of res judicata are
satisfied save one: the identity of claims. (See Pls.” Mem. Law Opp’n Defs.’ Refiled Mot.
Summ. J. 7.) Defendants argue that there is an identity of claims to the extent that plaintiffs’
unlawful detention claims are based on the October 25, 2000 incident that formed the basis for

their previous lawsuit. The Court agrees.

In plaintiffs’ previous lawsuit, Hosty v. Carter, 01 C 500, Hosty and Porche alleged that
on October 25, 2000, the Innovator’s phone lines were disconnected and GSU police denied
them free access to the Innovator’s office. (See, e.g., Hosty v. Carter, 01 C 500, slip op., at 6
(NLD. Ill. Nov. 13, 2001); Defs.’ Ex. J. Hosty Dep. at 95-96 (describing Boyd and Chesser’s
actions in her 2001 deposition in Hosty).) They alleged that their right to freedom of speech and
freedom of the press as well as other constitutional rights were infringed, threatened and

impeded. (See, e.g., Hosty Compl. { 24.)

In the instant lawsuit, plaintiffs allege that on October 25, 2000, Chesser and Boyd
unlawfully detained them. (Fourth Am. Compl. § 25(a), (b).) Plaintiffs’ unlawful detention is

alleged to have occurred on the same day and been perpetrated by the same officers who were



Conclusion

For the reasons provided in this Memorandum Opinion and Order, the Court grants

defendants’ motion for summary judgment [doc. no. 256]. This case is hereby terminated.

7-9-2910

SO ORDERED

ENTERED: JUL @ 92

HON. RONALD A. GU:
US. District Judge

10


to answer these two questions.” Baird v. Renbarger, 576 F.3d 340, 344 (7th Cir. 2009) (referring
to Pearson y. Callahan, --- U.S. ----, 129 S. Ct. 808, 821 (2009) (“Because the two-step Saucier
procedure is often, but not always, advantageous, the judges of the district courts and the courts
of appeals are in the best position to determine the order of decisionmaking [that] will best
facilitate the fair and efficient disposition of each case.”).). Although qualified immunity is a
defense to a section 1983 suit, the plaintiff bears the burden of establishing the two elements of

the qualified immunity test. Spiegel v. Cortese, 196 F.3d 717, 723 (7th Cir. 1999).

Regardless of the order in which the Court addresses the Saucier inquiries, plaintiffs have
not met their burden of satisfying the elements of the qualified immunity test. First, plaintiffs
have not presented evidence from which a reasonable trier of fact could conclude that defendants
retaliated against them in response to their constitutionally protected speech. See Springer v.
Durflinger, 518 F.3d 479, 483 (7th Cir. 2008) (stating that First Amendment retaliation claim
requires plaintiffs to establish they had engaged in constitutionally protected speech). Plaintiffs
have not provided any facts that would support a rational jury’s conclusion that GSU created a
designated public forum. Although they apparently attempted to do so in Hasty, see Hosty v.
Carter, 412 F.3d 731, 736-37 (7th Cir. 2005) (analyzing the first Saucier prong and holding that
viewing the facts in the record in the light most favorable to the plaintiffs, they had raised a
triable issue as to whether the Governors State Student Communications Media Board created a
designated public forum), there simply is not enough information in the record before this Court
to so hold here. Plaintiffs do not argue that the fact-based holding in Hosty with regard to the

first prong of Saucier would govern this case.



present when plaintiffs were denied access to the Innovator’s office as alleged in their previous
lawsuit. (See Defs.’ Ex. C, Porche Dep. at 37.) Accordingly, these two lawsuits arise from a
single core of operative facts. That plaintiffs now assert that the GSU police officers’ conduct
also constitutes a violation of their Fourth Amendment rights does not change the result because
res judicata applies regardless of whether plaintiffs assert different theories of relief. See Russian
Media Group, 598 F.3d at 310. Accordingly, the Court grants defendants’ motion for summary

judgment as to plaintiffs’ unlawful detention claims.

Next, defendants argue that Holdstein, Muhammad and Kennedy should be afforded
qualified immunity with regard to plaintiffs’ claims that their course requirements were
unilaterally changed. “Government officials performing discretionary functions [are generally
provided] with a qualified immunity, shielding them from civil damages liability as long as their
actions could reasonably have been thought consistent with the rights they are alleged to have
violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). A two-step analysis is used to
determine whether a defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194,
201 (2001). “When evaluating a qualified immunity claim, we must first decide whether, taken
in the light most favorable to the plaintiffs, the facts show that the official’s conduct violated a
constitutional right.” Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003). Second, the court
asks whether the right was clearly established at the time of the alleged violation. Saucier, 533
U.S. at 201. “The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable [public official] that his conduct was
unlawful in the situation he confronted.” Jd. at 202. “The Supreme Court recently held that the

Saucier test is not mandatory and that lower courts may decide, in their discretion, in which order


¢

letter or email that required all three people on Hosty’s thesis committee to be tenured or on
tenured track); Defs.’ Ex. C, Porche Dep. at 44-45, 68, 92, 141 (stating that she received
Muhammad’s April 2002 letter requiring that (1) all prerequisites be completed prior to
registering for English 870; (2) her thesis advisor be tenured or on tenured track; and (3) the
members of the thesis committee be tenured or on tenured track).) Thus, given that Hosty was
decided after Holdstein, Muhammad and Kennedy purportedly changed plaintiffs’ course
requirements in retaliation for plaintiff's alleged protected speech, it cannot be said that it would
have been clear to a reasonable public official in Holdstein, Muhammad and Kennedy’s position
that their conduct was unlawful in the situation they confronted. Therefore, the Court grants
defendants’ summary judgment motion as to plaintiffs’ claims based on the allegation that

Holdstein, Muhammad and Kennedy changed plaintiffs’ course requirements.

In sum, the Court grants defendants’ summary judgment motion as to plaintiffs’ claims
based on unlawful detention and changes in their course requirements. This conclusion scotches

any conspiracy claims based on these alleged constitutional violations. SO ORDERED.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JENI PORCHE and
MARGARET L. HOSTY,

Plaintiffs,

v. 02 C7707
ROGER ODEN, ALBERT CHESSER,
DEBRA BOYD, DEBRA CONWAY,
STUART FAGAN, PAUL KEYS,

PEGGY WOODARD, HARRY KLEIN,
WILLIAM McGEE, KRISTI DeLAURENTIS,
LORINE SAMUELS, KATHLEEN FIELD
ORR, JACK BEAUPRE, BRUCE FRIEFELD, )

Judge Ronald A. Guzman

weer

THOMAS STEPKE, DEBORAH HOLDSTEIN, ) fat
RASHIDAH JAMMI’ MUHAMMAD, ) «
JOYCE KENNEDY and LORRAINE SIBBETT, ) ee _
) poe
Defendants. ) ee
MEM [DUM OPINION AND ORDER ¢ s

Jeni Porche and Margaret L. Hosty have sued Roger Oden, Albert Chesser, Debra Boyd,
Debra Conway, Stuart Fagan, Paul Keys, Peggy Woodard, Harry Klein, William McGee, Kristi
Delaurentis, Lorine Samuels, Kathleen Field Orr, Jack Beaupre, Bruce Friefeld, Thomas Stepke,
Deborah Holdstein, Rashidah Jammi’ Muhammad, Joyce Kennedy and Lorraine Sibbett for
violating their constitutional rights as guaranteed by the First, Fourth, and Fourteenth
Amendments pursuant to 42 U.S.C. § (“section”) 1983. Defendants have moved for summary
judgment pursuant to Federal Rule of Civil Procedure 56(e). For the reasons provided in this
Memorandum Opinion and Order, the Court grants the motion.

As an initial matter, plaintiffs have agreed to dismiss the following defendants: Beaupre,

Conway, DeLaurentis, Fagan, Field Orr, Friefeld, Keys, Klein, McGee, Oden, Samuels, Sibbett,

MHA,



Second, even if plaintiffs had presented enough evidence to create a triable issue
regarding the first Saucier issue, plaintiffs have failed to satisfy their burden as to the second
prong. “Even when the general rule has long been clearly established (for instance, the First
Amendment bars retaliation for protected speech), the substantive legal doctrine on which the
plaintiff relies may facilitate summary judgment . .. .” Crawford-El v. Britton, 523 U.S. 574,
592 (1998). For instance, “there may be doubt as to the illegality of the defendant’s particular
conduct.” Jd. at 593. In such an instance, qualified immunity is applicable because “[p]ublic
officials need not predict, at their financial peril, how constitutional uncertainties will be

resolved.” Hosty, 412 F.3d at 739.

Plaintiffs concede, as they must, that in granting GSU’s Dean Carter qualified immunity
in Hosty, the Seventh Circuit held that the law regarding whether students such as Hosty and
Porche had the right to publish their articles in the Jnnovator free from interference by GSU
faculty and administrators was not clear prior to its June 20, 2005 decision. (Pls.” Mem. Law
Opp’n Defs.’ Refiled Mot. Summ, J. 11 (citing Hosty, 412 F.3d at 739 (reviewing uncertainty of
the law in other circuits and stating “[t]his circuit had not spoken on the subject until our panel’s
opinion, which post-dated Dean Carter’s actions”)).) Unfortunately for plaintiffs in the instant
lawsuit, Holdstein, Muhammad and Kennedy’s alleged retaliatory conduct of unilaterally
changing plaintiffs’ course requirements occurred in 2002-03. (See, e.g., Defs.’ Ex. B, Hosty
Dep. at 51-52, 83 (stating that in Spring 2002, she spoke to Holdstein, who told her that her
thesis advisor must be tenured or on tenured track); id. at 45, 77 (stating she received
Muhammad’s May 2002 email requiring that all prerequisites be completed prior to registering

for English 870), id. at 52-53, 58, 87-88 (stating she received Kennedy’s January/February 2003



Muhammad told plaintiffs that they had to finish other English course requirements
before they could take English 870. (/d. 38.) Hosty thought that the course catalog at the time
did not require her to take all of her other English course requirements before she could take
English 870. (Jd. | 39.) Porche also thought that this was not the common practice of the
English Department. (/d. { 40.)

In a February 2003 letter, Kennedy told plaintiffs that they needed a thesis advisor that
was either tenured or on tenure track to instruct them in English 970. (Jd. 148.) Kennedy’s
letter also told plaintiffs that their thesis committee must be comprised of three tenured
professors or professors who are on tenure track. (/d. | 49.) This was not GSU policy or

practice, but it is the optimal circumstance. (Id.)

Discussion

A district court will grant a summary judgment motion “only if there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.” Srail v. Vill. of
Lisle, 588 F.3d 940, 943 (7th Cir. 2009). The court “construe[s] all facts and draw[s] all
inferences in the light most favorable to the non-moving party.” Id. “The existence of merely a
scintilla of evidence in support of the non-moving party’s position is insufficient; there must be
evidence on which the jury could reasonably find for the non-moving party.” Delta Consulting

Group, Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th Cir. 2009).

Defendants argue that plaintiffs’ claims based on their unlawful detention are barred by

res judicata. “(T]he doctrine of claim preclusion or res judicata bars a party from asserting a


Hosty made phone calls. (/d. {{] 26-27.) Hosty also used the telephone in another office. (Ud. J
28.) Chesser told Hosty and Porche that they could get their things and leave. (/d. 133.) Dean
Pat Carter arrived and asked Chesser to secure the Innovator’s office, and so Chesser had the
locks changed. (/d. § 30.) Plaintiffs were permitted to use the Innovator’s office again the next
day, but for the next five to six weeks, the campus police would let them into the office and lock
up after they left. (id. 32.)

Defendant Kennedy was GSU’s Division Chair for the Division of Liberal Arts, College
of Arts and Sciences. (/d. 6.) Defendant Muhammad was a university professor of English at
GSU. (/d. 17.) Defendant Holdstein was a university professor of English and rhetoric at GSU
and also held different positions within GSU Provost’s Office. (/d. 8.) Plaintiffs allege that
these defendants have retaliated against them in three ways, by requiring that: (1) each plaintiff
finish other English course requirements before she could take English 870 (graduate thesis
research), (2) each plaintiff's thesis advisor be tenured or on tenure track and (3) the three
members of each plaintiff's thesis committee be tenured or on tenure track. (Jd. J] 37-38.)

The relevant course catalog stated: “[G]enerally, the graduate thesis or project will not be
done until completing the other core courses and the four additional courses.” (Jd. §41.) Dr.
Muhammad's reading of the course catalog includes English 870, graduate thesis research, as
part of the thesis (English 890 course) and students are supposed to complete all other course
work before English 870 because the thesis research is a substantial project. (/d. | 42.) GSU had
no written policy requiring students to complete all other course work prior to taking English 870

and English 890. (Id. 43.)



Stepke and Woodard. (See Defs.’ Mot. Summ. J., Ex. A, Letters of 12/10/08 & 12/16/08.)
Accordingly, the Court grants defendants’ motion for summary judgment as to these defendants.
Further, plaintiffs have agreed to dismiss all claims against the remaining defendants,
Chesser, Boyd, Holdstein, Muhammad and Kennedy, except those based on the following
allegations (see id.): (1) that plaintiffs were unlawfully detained and denied access to Governors
State University’s (“GSU”) school newspaper’s (“the Innovator”) office by Chesser and Boyd
(see Fourth Am. Compl. { 25(a), (b)); and (2) plaintiffs’ course requirements were unilaterally

changed by Holdstein, Muhammad and Kennedy (see id.  25(c)).

Facts

The following facts are undisputed. Plaintiffs Porche and Hosty were also the plaintiffs
in Hosty v. Governors State University, case number 01 C 500, a case in which they alleged
unconstitutional prior restraints on the publication of the Innovator based in part on events that
occurred on October 25, 2000, including GSU’s disconnection of the Innovator’s office’s phone
lines and GSU campus police officers’ denying them free access to the Innovator’s office. (Pls.’
LR 56.1(b)(3)(B) Ff 3, 9.)

Hosty and Porche, who were graduate students at GSU at the time, worked for the
Innovator from April/May 2000 to April 2001. (/d. 44.) On October 25, 2000, Boyd and
Chesser were GSU campus police officers. (/d. | 5.) On that day, Boyd asked Hosty to remain
in the area of the Innovator’s office. (Jd. J 18-19.) Chesser arrived and told Hosty that he
wanted a statement from her, but she refused to talk or provide a written statement. (/d. J] 21-

23.) Porche was also in the office. (/d. 25.) While they were in the office, both Porche and