Dwayne Volkman v. LEE RYKER, MARC HODGE , and BARBARA HESS

In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐1778
D WAYNE VOLKMAN ,
Plaintiff‐Appellant,
v.
LEE R YKER, MARC HODGE , and
BARBARA HESS,
Defendants‐Appellees.
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:10‐CV‐02132— Sue E. Myerscough, Judge.
A RGUED SEPTEMBER 19, 2013—D ECIDED D ECEMBER 2, 2013
Before MANION , KANNE , and SYKES, Circuit Judges.
K ANNE , Circuit Judge. Dwayne Volkman was employed as
a casework supervisor at the Lawrence Correctional Center in
Illinois when he called the local State’s Attorney to comment

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2 No. 12‐1778
on the criminal prosecution of a co‐worker for violations of
Illinois Law and Department of Corrections policy. After an
internal investigation, Volkman received a written reprimand
and was suspended for five days. He sued various officials
connected to the disciplinary process under 42 U.S.C. § 1983,
alleging retaliation in violation of the First Amendment to the
United States Constitution. The district court bifurcated trial
proceedings so that potentially dispositive issues of law could
be tried to the bench before calling in a jury. After bench
proceedings concluded, the district court issued an opinion
finding that the defendants were entitled to qualified immu‐
nity and that, even if they were not, Volkman had failed to
prove his case as a matter of law. Volkman appeals the adverse
judgment of the district court, and we affirm.
I. BACKGROUND
In June 2008, the Illinois Department of Corrections
(“IDOC”) investigated Jody Burkhardt, a correctional officer at
the Lawrence Correctional Center (the “LCC”). The investiga‐
tion revealed that Burkhardt brought his cell phone into the
LCC on or about May 8, 2008, and that he used it to make
about thirty calls from inside the facility. His conduct violated
internal IDOC policies, as well as the laws of the State of
Illinois. IDOC referred the results of the investigation to the
Lawrence County State’s Attorney, Patrick Hahn, who filed
felony charges against Burkhardt on June 30, 2008.
At lunch a few days after the charges were filed, another
correctional officer, Chad Ray, told a number of employees
that Burkhardt was being prosecuted on felony charges for
accidentally bringing his cell phone into the facility. Ray

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No. 12‐1778 3
suggested that the others should feel free to voice their
opinions to the State’s Attorney as to how to pursue the matter.
One of the employees involved in that conversation was the
appellant, Dwayne Volkman, a casework supervisor at the
LCC. After work, Volkman called the State’s Attorney from his
personal cell phone. The State’s Attorney was unavailable, so
Volkman left a message with his secretary. Volkman told the
secretary that, as a citizen of the county, he did not believe that
any term of incarceration should be pursued in Burkhardt’s
case, and that the State’s Attorney should consider allowing
the matter to be handled internally through the IDOC disci‐
plinary process. He stressed that he was only calling to express
his opinion as a citizen, and not as an employee of the LCC.
State’s Attorney Hahn called Volkman back later that night
to ask what was going on at the LCC. During the ensuing
conversation, Volkman told Hahn that he did not personally
know all of the facts pertaining to Burkhardt’s case, but that he
did have an opinion. If Burkhardt had allowed an inmate to
use the cell phone, Volkman felt prosecution to the fullest
extent of the law would be warranted. If, on the other hand,
Burkhardt had merely carried the cell phone into the facility,
and it was not used improperly, Volkman felt the matter
should be sent back and handled by IDOC internally.
News of Volkman’s conversation with the State’s Attorney
reached Marc Hodge, the internal affairs investigator at the
LCC, and Hodge commenced an investigation. First, he
interviewed Chad Ray, who admitted that he asked his
co‐workers to contact the State’s Attorney and to voice their
displeasure with the Burkhardt prosecution. Next, he spoke to

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4 No. 12‐1778
Volkman. When Hodge asked Volkman if he spoke with the
State’s Attorney, Volkman asked if he was personally under
investigation. Hodge suggested that the answer to Volkman’s
question depended on the answer to Hodge’s question;
Volkman declined to respond. Ultimately, Volkman was issued
a written reprimand and suspended for five days as a result of
his decision to contact the State’s Attorney.
Volkman filed suit pursuant to 42 U.S.C. § 1983, naming six
IDOC employees as defendants in both their individual and
official capacities. Volkman’s complaint alleged that his rights
under the First Amendment to the United States Constitution
were violated when he was retaliated against for engaging in
protected speech, and, in the alternative, that he was retaliated
against for his political affiliation. The defendants moved for
summary judgment, arguing against Volkman’s claims on the
merits and that they were entitled to qualified immunity.
In response to the defendants’ motion, Volkman consented
to the dismissal of his political affiliation claim, and agreed that
three of the six originally‐named defendants were improperly
joined. The district court independently noted that the official
capacity claims against the three remaining defendants were
blocked by the Eleventh Amendment. The court therefore
narrowed the scope of the complaint to an individual‐capacity
free speech retaliation claim against defendants Marc Hodge,
above‐mentioned; Lee Ryker, then the warden at LCC; and
Barbara Hess, an IDOC administrative assistant who was
involved in coordinating disciplinary proceedings against
Volkman.

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No. 12‐1778 5
Turning to the merits, the district court found that Volkman
spoke as a private citizen on a matter of public concern when
he contacted the State’s Attorney. Because the defendants
failed to provide the district court with any argument as to
why IDOC’s interests in suppressing Volkman’s speech
outweighed Volkman’s interest in speaking, the district court
denied summary judgment on the merits. It also found that, on
the record as it existed at that time, the defendants were not
entitled to qualified immunity.
Later, however, the district court reversed course. As trial
approached, the defendants moved to bifurcate proceedings so
that evidence regarding the Pickering factors could be pre‐
sented to the judge alone, and not to a jury. Over Volkman’s
objection, the district court granted the defendants’ motion.
After the bench proceeding concluded, the district court found
that the defendants’ conduct did not violate Volkman’s
constitutional rights, and that even if it did, the defendants
were entitled to qualified immunity. Volkman now appeals the
judgment entered in favor of the defendants.
II. A NALYSIS
Volkman argues that the manner in which the district court
resolved the case—separating a bench trial on the issues of
whether the speech was constitutionally protected and
whether the defendants were entitled to qualified immunity
from a jury trial on causation—was procedurally improper. He
also argues that the defendants were not entitled to qualified
immunity, and that they did, in fact, violate his rights as
secured by the First Amendment.

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6 No. 12‐1778
We find no error in the district court’s procedural approach,
and we conclude that Volkman has not carried his burden of
showing that the defendants’ conduct violated a “clearly
established” constitutional right. Accordingly, the defendants
are entitled to qualified immunity. To the extent that any
justiciable controversy remains after the doctrine of qualified
immunity is applied, we affirm the district court’s conclusion
that Volkman has not shown the violation of his First Amend‐
ment rights.
A. The District Court’s Procedural Approach
After denying summary judgment, the district court
granted the defendants’ motion to bifurcate the trial. In his
opening brief, Volkman suggested that to do so was a proce‐
dural mistake. Volkman may have abandoned this argument
in his reply brief (it is not mentioned at all), but we address it
nonetheless in order to confirm that Volkman’s right to a jury
trial was not impaired.
The district court bifurcated Volkman’s trial pursuant to
Rule 42(b) of the Federal Rules of Civil Procedure. Under the
rule, “[f]or convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or more
separate issues, claims, crossclaims, counterclaims, or third‐
party claims.” Fed. R. Civ. P. 42(b). In doing so, “the court
must preserve any federal right to a jury trial.” Id. A district
court’s decision to bifurcate or to hold separate trials is
reviewable for an abuse of discretion. Houskins v. Sheahan, 549
F.3d 480, 495 (7th Cir. 2008).
The district court did not abuse its discretion in this case.
When a plaintiff brings a Section 1983 claim for retaliation in

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No. 12‐1778 7
violation of First Amendment rights in the employment
context, our analysis has traditionally involved three steps.
First, the court must decide whether the employee’s speech
was constitutionally protected. Hutchins v. Clarke, 661 F.3d 947,
955 (7th Cir. 2011) (citing Phelan v. Cook County, 463 F.3d 773,
790 (7th Cir. 2006)). Second, the plaintiff must establish that the
speech was a substantial or motivating factor in the alleged
retaliatory action. Hutchins, 661 F.3d at 955–56. Finally, if the
plaintiff satisfies the first two steps, the defendant has an
opportunity to establish that the same action would have been
taken in the absence of the employee’s protected speech. Id.
Not all of these questions fall within the province of the
jury. The latter two do; they concern causation as a factual
matter, and are best answered by the traditional finder of fact.
See Clairmont v. Sound Mental Health, 632 F.3d 1091, 1106 (9th
Cir. 2011); Thomas v. City of Blanchard, 548 F.3d 1317, 1327 (10th
Cir. 2008); Morris v. City of Chillicothe, 512 F.3d 1013, 1018 (8th
Cir. 2008). But the first question—whether the employee’s
speech was constitutionally protected—is a question of law to
be decided by the court. Messman v. Helmke, 133 F.3d 1042, 1046
(7th Cir. 1998); see also Connick v. Myers, 461 U.S. 138, 148 n.7
(1983). The same goes for the subsidiary considerations which
supply the answer to that question, such as whether the
plaintiff spoke as a private citizen on a matter of public
concern, and whether the governmental interests served by
suppression of the speech outweigh the interests of the
employee in engaging in that speech. Messman, 133 F.3d at
1046.
The district court in this case simply separated the bench
trial on issues of law—particularly, whether Volkman engaged

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8 No. 12‐1778
in protected speech—from the jury trial on issues of fact. Not
only was this not an abuse of discretion, it was the most
efficient way to proceed. If a plaintiff’s speech is not constitu‐
tionally protected as a matter of law, his claim fails. In such
instances, it is unnecessary to waste judicial resources on a jury
trial to determine whether said unprotected speech was the
reason for any adverse action taken against the plaintiff,
because it makes no difference to the outcome of the case. We
conclude that the district court’s procedure was constitution‐
ally adequate and was appropriately explained.
B. Qualified Immunity and “Clearly Established” Rights
In addition to ruling against Volkman outright on the
issue of constitutional protection, the district court found that
the defendants were shielded by the doctrine of qualified
immunity, and that Volkman’s case must therefore be dis‐
missed. Volkman challenges that conclusion. We review the
validity of a qualified immunity defense de novo. Elder v.
Holloway, 510 U.S. 510, 516 (1994).
Governmental actors performing discretionary functions
enjoy “qualified immunity,” meaning that they are “shielded
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.” Estate of
Escobedo v. Bender, 600 F.3d 770, 778 (7th Cir. 2010) (quoting
Sallenger v. Oakes, 473 F.3d 731, 739 (7th Cir. 2007)); Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity
analysis therefore traditionally involves a two‐part inquiry.
The first question is whether the defendants’ conduct violated
a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001)

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No. 12‐1778 9
(overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009)).
The second question is whether that particular constitutional
right was “clearly established” at the time of the alleged
violation. Id. We may consider the two questions in either
order. Pearson, 555 U.S. at 236–242. In this case, we begin by
asking whether the right alleged to be violated is “clearly
established.”
Volkman bears the burden of establishing that the constitu‐
tional right at issue was clearly established. Estate of Escobedo,
600 F.3d at 779 (citing Koger v. Bryan, 523 F.3d 789, 802 (7th Cir.
2008)). Typically, “[t]he difficult part of this inquiry is identify‐
ing the level of generality at which the constitutional right
must be clearly established.” Casey v. City of Fed. Heights, 509
F.3d 1278, 1284 (10th Cir. 2007). The Supreme Court has
“repeatedly told courts … not to define clearly established law
at a high level of generality,” Ashcroft v. al‐Kidd, 131 S. Ct. 2074,
2084 (2011), and the Seventh Circuit has long held that “the test
for immunity should be whether the law was clear in relation
to the specific facts confronting the public official when he
acted.” Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir. 1987). At
minimum, Volkman must show that the contours of the right
he alleges was violated are “sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.” Estate of Escobedo, 600 F.3d at 779 (quoting Hope v. Pelzer,
536 U.S. 730, 739 (2002)). And, although we are mindful that
“an official action is not protected by qualified immunity only
when the very action in question has previously been held
unlawful,” id., we have also said that “[f]or qualified immunity
to be surrendered, preexisting law must dictate, that is, truly
compel … the conclusion for every like‐situated, reasonable

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10 No. 12‐1778
government agent that what [he] is doing violates federal law
in the circumstances.” Khuans v. Sch. Dist. 110, 123 F.3d 1010,
1019–20 (7th Cir. 1997) (quoting Lassiter v. Ala. A & M Univ., 28
F.3d 1146, 1150 (11th Cir. 1994)).
The cases Volkman has put forward demonstrate little more
than that the First Amendment right against retaliation, writ
large, is clearly established. But this is not so easy a case that
citing to a general proposition of law is enough to show that
any reasonable official would have known that to restrict or
punish Volkman’s speech was unconstitutional. Brosseau v.
Haugen, 543 U.S. 194, 199 (2004) (suggesting that general
propositions of law give “fair warning” only in the most
obvious cases). There are fact‐intensive considerations at play,
including whether Volkman spoke as a private citizen or in his
capacity as a public employee, whether he spoke on a matter
of public concern, and whether IDOC had an adequate
justification for treating Volkman differently from any other
member of the general public. See Pickering v. Bd. of Ed. of Twp.
High Sch. Dist. 205, 391 U.S. 563 (1968). The defendants
highlighted the weakness of Volkman’s effort to show that his
rights were clearly established in their response brief, but he
did nothing to buttress his position in his reply. As a result, we
need not say at exactly what level of specificity Volkman was
required to show that his rights were clearly established on
these facts; it is enough to note that what he has done is plainly
not enough.
C. Volkman’s Rights Were Not Violated
Finally, Volkman argues that even if the defendants are
entitled to qualified immunity, his requests for injunctive and

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No. 12‐1778 11
declaratory relief still remain, thus keeping the case alive.
Denius v. Dunlap, 209 F.3d 944, 959 (7th Cir. 2000) (“The
doctrine of qualified immunity does not apply to claims for
equitable relief.”). There are serious questions about the
continued justiciability of Volkman’s non‐monetary demands.1
Putting those aside, however, there is a simpler reason why the
district court’s resolution of the case was correct: Volkman
failed to prove his case.
As we have mentioned, our analysis of a First Amend‐
ment retaliation claim involves three steps. First, the court
must decide whether the employee’s speech was constitution‐
ally protected. Hutchins, 661 F.3d at 955–956. Second, the
plaintiff must establish that the speech was a substantial or
motivating factor in the alleged retaliatory action. Id. Third, if
the plaintiff satisfies the first two steps, the defendant has an
opportunity to establish that the same action would have been
taken in the absence of the employee’s protected speech. Id.
Answering the first question—whether the speech was
constitutionally protected—requires answering the subsidiary
questions laid out in the Connick‐Pickering test: whether
1 The injunctive relief he seeks is an order directing IDOC to vacate his
written reprimand, but they may have done so internally already. If the
injunctive relief is moot, we doubt whether, on these facts, the declaratory
judgment request can stand alone. See Rhodes v. Stewart, 488 U.S. 1, 4 (1988)
(a declaratory judgment request cannot sustain a live case or controversy
where granting the declaratory judgment would not “affect[ ] the behavior
of defendant toward the plaintiff”); Ashcroft v. Mattis, 431 U.S. 171, 172
(1977) (holding that a claim for declaratory relief is moot where the
“primary claim of a present interest in the controversy is that [the plaintiff]
will obtain emotional satisfaction from [the] ruling”).

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12 No. 12‐1778
Volkman spoke as a private citizen or in his capacity as a
public employee; whether he spoke on a matter of public
concern; and whether the IDOC defendants had an adequate
justification for treating Volkman differently than any other
member of the general public. See Hutchins, 661 F.3d at 955;
Phelan, 463 F.3d at 790. Throughout the pendency of this
litigation, the district court maintained that Volkman did speak
as a private citizen and that he spoke on a matter of public
concern. With that, we summarily agree. The district court
ruled against Volkman after the bench trial, however, because
IDOC showed that its interests in suppressing the speech
outweighed Volkman’s interests in making it. The balancing of
interests presents a question of law, which we review de novo.
Messman, 133 F.3d at 1046.
We have derived seven factors from Pickering which we
consider when conducting the balancing of interests:
(1) whether the speech would create problems in
maintaining discipline or harmony among co‐workers;
(2) whether the employment relationship is one in
which personal loyalty and confidence are necessary; (3)
whether the speech impeded the employee’s ability to
perform her responsibilities; (4) the time, place, and
manner of the speech; (5) the context within which the
underlying dispute arose; (6) whether the matter was
one on which debate was vital to informed
decision‐making; and (7) whether the speaker should be
regarded as a member of the general public.
Gustafson v. Jones, 290 F.3d 895, 909 (7th Cir. 2002) (citing Greer
v. Amesqua, 212 F.3d 358, 371 (7th Cir. 2000)). When reviewing

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No. 12‐1778 13
these factors, we have observed that “[t]he initial, and often
determinative, question is whether the speech interferes with
the employee’s work or with the efficient and successful
operation of the office.” Knapp v. Whitaker, 757 F.2d 827, 842
(7th Cir. 1985). Moreover, because Pickering is a balancing
test—requiring us to weigh factors against each other, rather
than to merely count how many factors line up on each
side—one factor of great weight may offset several which lean
slightly in the other direction.
The primary consideration here is the nature of the
employer‐employee relationship in the paramilitary context of
a correctional center, a concern which goes to the first, second,
third and fifth factors, in particular. We have acknowledged
that, “[b]ecause police departments function as paramilitary
organizations charged with maintaining public safety and
order, they are given more latitude in their decisions regarding
discipline and personnel regulations than an ordinary
government employer.” Kokkinis v. Ivkovich, 185 F.3d 840, 845
(7th Cir. 1999) (quoting Tindle v. Caudell, 56 F.3d 966, 971 (8th
Cir. 1995)). The same logic applies to the law enforcement
bodies tasked with protecting and maintaining our correctional
centers, where safety and order are paramount concerns. In
such settings, we afford considerable deference to the
government employer’s assessment of the risks that employee
speech creates. Id. at 845–46; see also Fuerst v. Clarke, 454 F.3d
770, 774 (7th Cir. 2006).
Viewing the case against this backdrop, we agree with the
district court that IDOC’s interests in restricting Volkman’s
speech weigh more heavily in the balance. Volkman was
employed in a supervisory capacity. Supervisors are tasked

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14 No. 12‐1778
with enforcing rules and regulations. When a supervisor, like
Volkman, criticizes a disciplinary decision (such as the decision
to move the Burkhardt matter “out of house” to the
prosecutor), it undermines other employees’ respect for the
chain‐of‐command, and for the rules which were violated in
the first place. There is value in maintaining order and respect
for their own sake in a paramilitary context like this one, and
we will not second‐guess prison officials’ conclusion that the
example Volkman set through his conduct was a detrimental
one. To be sure, none of this is meant to suggest that
Volkman’s right to express his opinion on a matter of public
concern is not also an important one. But in the paramilitary
context of a correctional center, we agree with the district court
that the LCC officials’ interests in maintaining order and
security in the workplace outweighed Volkman’s interests in
expressing his opinion on a work‐related prosecution.
III. CONCLUSION
The district court’s decision to bifurcate the bench trial on
issues of law from the jury trial on issues of fact was not an
error, and we agree with the district court that Volkman has
not provided sufficient authority for us to set aside the
defendants’ qualified immunity. To the extent that any
justiciable request for relief survives the application of that
doctrine, we further agree that Volkman’s speech was not
constitutionally protected as a matter of law. We AFFIRM the
judgment of the district court.

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