Fagan was present at the January 27, 2001 event. Sometime during the afternoon, Chesser
approached Fagan to inform him of the protest. Fagan told Chesser that he “was sympathetic to
allowing the students to protest. I was always an advocate of free speech, and the students should be
allowed to protest and in no situation whatsoever should there be any physical altercation at all.”
Defendants’ 56.1 Statement of Facts (“Def. Facts”) 10. Friefeld, who was the only member of the
Board of Trustees to attend the January 27, 2001 event, did not arrive until 6:15 p.m.

DISCUSSION
IL Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its
burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there
is a genuine issue for trial. Fed. R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7" Cir.
1999). The court considers the record as a whole and draws all reasonable inferences in the light most
favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7" Cir.
2000). A genuine issue 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);
Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7" Cir. 2000).

i. Section 1983

Plaintiffs claim defendants, in their individual capacities, conspired to prevent them from

exercising their First Amendment rights at the January 27, 2001 event. “An individual cannot be held

liable in a § 1983 action unless he caused or participated in [the] alleged constitutional deprivation.”


Fagan and the University Strategic Planning Committee scheduled a town meeting on January
27, 2001 at the GSU Center for Performing Arts Theater to obtain input from alumni regarding the
future of GSU. The GSU Alumni Association scheduled a dinner to follow the town meeting,
including separate receptions for the various GSU colleges and the Board of Governors. Illinois state
senator Debbie Halvorson and Cook County Commissioner Jerry Butler were scheduled to speak at
the dinner.

In preparation for the January 27, 2001 event, Department of Public Safety (“DPS”) Director
Albert Chesser (“Chesser”) sent a memorandum addressed to Fagan regarding security. In the
January 18,2001 memorandum, Chesser stated “Campus access will be open and we expecta positive
impact in handling the potential protestors and/or disturbances.” Plaintiffs’ 56.1 Statement of Facts
(“Pl. Facts”) 92. On January 25, 2001, Chesser sent a second memorandum addressed to Fagan
regarding security, stating “There will not be any protestors allowed with posters/picket signs within
the town hall meeting,” “No picket signs will be allowed in the receptions,” “DPS staff will be
assigned to the various college receptions with a concentration on the College of Education (MSW
concern)” and “DPS will only allow picket signs outside in the vestibule area, but not to stop any flow
of guest attendance.” PI. Facts § 93. Fagan denies receiving both memoranda. Chesser recalls
sending the memoranda to his supervisor Arr, rather than to Fagan.

On January 27, 2001, plaintiffs congregated at the front entrance to the Theater; some carried
signs. According to plaintiffs, they could not bring their signs into the Theater lobby and they could
not access other areas of the building, including the bathrooms or the library. As a result of the
restrictions, plaintiffs claim they were unable to attend a previously scheduled meeting with Senator

Halvorson. Plaintiffs disbanded at approximately 5:00 p.m.


Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir. 1996). Defendants argue that plaintiffs
cannot prove that defendants caused or participated in the alleged constitutional deprivation on
January 27, 2001.

Plaintiffs first claim that “it is believed that Fagan actually articulated the order with respect
to excluding plaintiffs from the grounds.” Response p. 7. In support of their speculative belief,
plaintiffs offer the testimony of Christy Polaski, Sue Ashmus and Maria Andorf. Pl. Response to Def.
Facts | 10. Polaski testified that two unknown security guards told her that President Fagan closed
the building. Jd. Polaski’s testimony, which is offered to prove the truth of the matter asserted, is
inadmissible hearsay that cannot be considered on summary judgment. See Eisenstadt v. Centel
Corp., 113 F.3d 738, 741 (7th Cir. 1997).

Nor does the speculative testimony of Ashmus and Andorf constitute evidence that Fagan
excluded them from the event. Ashmus testified, “I think I saw Stuart Fagan.” PI. Response to Def.
Facts { 10, Ex. 19. Andorf testified, “to my recollection, I think I saw President Fagan in the
background talking to the guards.” Jd. at | 10, Ex. 20. Fagan speaking to the security guards during
the event does not support a reasonable inference that Fagan exercised his authority to restrict
plaintiffs’ demonstration. Indeed, Andorf testified that she observed Fagan talking to guards after
she was excluded from the event for carrying a sign. Jd. Fagan testified that he spoke to Chesser
during the protest, telling him that plaintiffs should be allowed to protest. Based on the undisputed
evidence, a reasonable jury could not conclude that Fagan exercised his authority to exclude plaintiffs
from the January 27, 2001 event. See Gorbitz v. Corvilla, Inc., 196 F.3d 879, 882 (7th Cir.

1999)(plaintiffs’ speculation is “not a sufficient defense to a summary judgment motion”).


Minute Order Form (06/97)

able

United States District Court, Northern District of Illinois

| Name of Assigned Judge Suzanne B. Conlon Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 4268 DATE 4/15/2002
CASE JAMES GALDIKAS ET AL. vs. STUART FAGAN ET AL.
TITLE
[In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}

DOCKET ENTRY:

() a Filed motion of [ use listing in “Motion” box above.]
(2) 0 Brief in support of motion due
(3) a Answer brief to motion due Reply to answer brief due
(4) oO Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to} [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) im Trial[set for/re-set for] on at
(8) q [Bench/Jury trial] [Hearing] held/continued to at
(9) Bo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CUFRCP4(m) O General Rule21 OIFRCP41(a)(1) O FRCP4I(a)(2)
‘
(io) «il {Other docket entry] Defendants’ Motion forgummary 4ndgment [44-1] is granted. ENTER
MEMORANDUM OPINION AND ORDER.

(il) sf {For further detail see order attached to the original minute order.]

No notices required. advised in open court Document

. . Number

No notices required. number of notices

V | Notices mailed by judge’s staff,

Notified counsel by telephone.

R 16.2002

Docketing to mail notices. erm

. sok : 7
Mait AO 450 form, re St

docketing deputy initials

Copy to judge/magistrate judge.
srisra002

date mailed notice

courtroom Grete ob ea
eb deputy’s bb
initials

Date/time received in- +
central Clerk's Office ailing deputy initials



Plaintiffs next claim that defendants’ participation in the alleged constitutional violation can
be inferred from defendants’ discussion of the MSW accreditation issue during several executive
sessions. Pl. Resp. to Def. Facts {J 10-12. However, plaintiffs fail to provide evidence showing that
defendants discussed anything other than the MSW accreditation issue, including plaintiffs, plaintiffs’
demonstrations or the January 27, 2001 event. “[A] claim of conspiracy cannot survive summary
judgment if the allegations are vague, conclusionary and include no overt acts reasonably related to
the promotion of the alleged conspiracy.” Admunsen v, Chicago Park District, 218 F.3d 712, 718
(7th Cir. 2000). A reasonable jury could not infer defendants conspired to suppress plaintiffs’ First
Amendment rights based on their discussions of the MSW accreditation issue.

Finally, plaintiffs claim that defendants’ participation in the alleged constitutional violation
can be inferred from Chesser’s memoranda to Fagan. Pl. Resp. to Def. Facts ff 10-12. However, the
memoranda show that Chesser, rather than defendants, made the security decisions, including the
decision to exclude picket signs. Plaintiffs have not offered any evidence that defendants were
personally involved in the decision to restrict plaintiffs to the lobby without picket signs. Summary
judgment is appropriate on plaintiffs’ Section 1983 claims. See Zimmerman v. Tribble, 226 F.3d 568,
574 (7th Cir. 2000)(“Section 1983 does not allow actions against individuals merely for their
supervisory role of others”).

CONCLUSION

Plaintiffs have failed to raise a disputed issue of any material fact. Defendants are entitled to
judgment as a matter of law on all claims advanced by plaintiffs.
April 15, 2002 ENTER:

Suzanne. Conlon
United States District Judge


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

EASTERN DIVISION pack
APR i 6 2002
JAMES GALDIKAS ET AL. )
Plaintiff, } No. 01 C 4268
Vv. } Suzanne B. Conlon, Judge
STUART FAGAN ET AL. }
Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs are a group of 35 former graduate students in the Masters of Social Work (“MSW”)
program at Governors State University (“GSU”). Plaintiffs sue GSU officers and members of the
GSU Board of Trustees (collectively, defendants”) pursuant to 42 U.S.C. § 1983 (“Section 1983")
for violation of their Fourteenth Amendment substantive and procedural due process rights (Counts
I and IV), conspiracy to prevent the exercise of their First Amendment rights (Count II) and
retaliation for exercising their First Amendment rights (Count III). Plaintiffs also brought common
law claims for promissory estoppel (Count V) and fraud (Count V1). The court previously dismissed

Counts I and 1V with prejudice and Counts V and VI without prejudice. The court thereafter declined


to exercise supplemental jurisdiction over Counts V and VI. Defendants now move for summary
judgment on Counts II and II’ pursuant to Federal Rule of Civil Procedure 56.7
BACKGROUND

The following facts are undisputed. On December 5, 2000, Fagan met with students to
discuss the denial of accreditation candidacy status for the MSW program. Thereafter, Fagan met
with Vice President for Administration and Planning Timothy Arr (“Arr”) to discuss the possibility
that MSW students would attend the board meeting scheduled for December 15, 2000. Fagan and
Arr agreed to allow student protestors to attend the meeting. At the board meeting, students,
including plaintiffs, were allowed to demonstrate with picket signs. After the meeting, Fagan was
approached by students carrying picket signs regarding the MSW accreditation issue. Later that
evening, several students carried signs at a GSU holiday party attended by defendants. Plaintiff Sue
Ashmus distributed approximately 200 copies of a letter expressing plaintiffs’ views on the MSW
accreditation issue.

On January 12, 2001, defendants met in executive session to discuss the MSW program.
During the meeting, an attorney for GSU summarized his research on the MSW accreditation issue,
including the possibility of litigation. Defendants discussed the budgetary impact of various

settlement options.

‘ Plaintiffs Jennifer Foley, Melissa Sullivan and Anika Todd previously dismissed their claims with prejudice.

The remaining plaintiffs with claims under Counts II and III are Maria Andorf, Sherry Anicich, Sue Ashmus, Karen
Bartmann, Leianne Biehl, Mary Brice, Thelma Cartwright, Ronald Chew, Dan Davis, Bryan Dunlap, Jerri Ganz,
Kathleen Hubeck, Jenny Jankowicz, John LaMantia, Eugenie Marco, Delores Mays, Jerry Pierson, Christy Polaski, Amy
Skold, Kathryn Stanley, Benita Uti, Amanda Volin, Rhilender Wilson and Debra Wolleck (collectively, “plaintiffs”).
2 In response to defendants’ motion for summary judgment, plaintiffs voluntarily withdrew Counts II and III
against defendants Paula Wolff and Joan Porche. The remaining defendants are GSU President Stuart Fagan (“Fagan”)
and members of the GSU Board of Trustees, Harry Klein, William McGee, Kristi DeLaurentiis, Lorine Samuels,
Kathleen Field Orr, Jack Beaupre and Bruce Friefeld (collectively, “Board of Trustees”).

2