Cerjan v. Fasula (539 F. Supp. 1226, 1981)

MEMORANDUM OPINION AND ORDER

ANN ALDRICH, District Judge.

This action for monetary damages and equitable relief was initiated by Ronnie Cerjan, a former deputy sheriff, to redress the alleged deprivations of his constitutional rights in violation of 42 U.S.C. § 1983, and the First and Fourteenth Amendments to the United States Constitution. The defendants are Raymond Fasula, the former Sheriff of Ashtabula County, Ohio, and William K. Johnston,' the present Sheriff. This Court has jurisdiction under 28 U.S.C. § 1343(3).

Cerjan contends that (1) he was discharged from his employment as a direct result of exercising rights guaranteed him by the First and Fourteenth Amendments; (2) prior to his discharge defendant Fasula attempted to “chill” the exercise of his First Amendment rights to freedom of speech and freedom of, association by assigning him to a specially created, unnecessary, degrading, and personally hazardous duty within the Sheriff’s- Department; (3) defendant Fasula failed' to afford him a hearing on his dismissal in violation of his right to due process of law; and (4) there was no evidence to support the charge for which he was dismissed. Cerjan further contends that at all times relevant to this action, Fasula acted under color of state law.

Prior to trial, Cerjan waived Count V of his complaint, and also waived his demand for a jury trial. This action was tried before the Court on August 13 and 14, 1980. At the close of the trial, the Court found defendant Fasula liable in his official capacity on all four counts. Fasula was found liable in his individual capacity on Count II. The Court now sets forth its reasons for these rulings.

I

Cerjan was employed as a Deputy Sheriff in the Ashtabula County Sheriff’s Department from November, 1970 until July, 1974, and again from April, 1975 until April 19, 1976. He was at all times a non-policymaking employee whose duties included patrolling the county, arresting wrongdoers, and carrying out the orders of the Sheriff.

Fasula was the Sheriff of Ashtabula County during the latter period of Cerjan’s employment, and was a candidate for reelection to that office in the 1976 November election. Fasula was opposed by William Johnston, an independent candidate, who had also been a deputy in Fasula’s administration until July of 1975. Cerjan was an open and active supporter of Johnston’s candidacy.

At least fifteen months prior to the election William Johnston’s intention to run for Sheriff was well-known in the Department, and Fasula’s expectation of support from his deputies and others in his administration was equally well known. Lee Truckey, one of Fasula’s deputies, testified that as early as August, 1975, Fasula told him to decide who he was going to support and to “stay away from Bill Johnston or find a new job”. This conversation was not disputed by Fasula.

By the Fall of 1975, the members of the Sheriff’s Department were divided according to the candidate each was supporting, and it was during this time that problems began to develop between Fasula and Cerjan. In November, Fasula summoned Cerjan to his office to reprimand him for making “derogatory” remarks about Fasula, and threatened to terminate him if any more remarks were made by him in public. According to Fasula, Cerjan’s remark was a violation of Section III, Paragraph 9 of the Rules and Regulations of the Sheriff’s Department, which prohibits deputies from discussing the characters of other deputies with any persons not connected with the Department. Cerjan’s undisputed testimony was that while discussing Johnston’s candidacy with other deputies at a football practice, he had remarked that if Johnston were elected Sheriff, “maybe a year from now things would be different.”

A mandatory meeting was held for all members of the Sheriff’s Department on November 14, 1975. Although Fasula was present, the meeting was conducted by Chief Deputy Murray Louis, who described it as a purely official one. However, toward the end of-the meeting Fasula’s candidacy for Sheriff became the topic of discussion. At this point, the evidence is in dispute. Cerjan contends that Fasula told the deputies he expected their support because he signed their paychecks and supported their families; and that Louis remarked that things could be made “rough” for them if they did not support Fasula. As an example, Louis stated that rather than firing anyone, the administration could force them to quit by doing such things as scheduling deputies to two hours on duty and two hours off. This latter remark was also recalled by the witness, Audrey Svec, a former employee of the Sheriff’s Department. According to Louis, his statement was that “anyone who could not support the man who hired them should quit”. Fasula testified that he merely asked the deputies for their support. Both Louis and Fasula denied that any threats were made regarding job or shift changes.

The Court is of the opinion that while no actual threats may have been made, both Fasula and Louis attempted to, and did, create the impression that pressure was being exerted to coerce support for Fasula.

II

On Saturday, January 10, 1976, Cerjan and his wife attended a FOP dance where they socialized openly with Bill Johnston and his wife, in the presence of Fasula. The following Monday, January 12, 1976, Fasula appointed Cerjan as a security deputy within the Ashtabula County Jail.

The conditions in the jail were deplorable during this time, and the poor physical condition of the jail as well as incidents within the jail between inmates necessitated the institution of additional security measures. There were approximately 35-40 prisoners in the jail, and there had been outbreaks of vandalism, attempted escapes, and sexual assaults. In December, 1975, the Chief Jailer, William Pitkin, was required to hospitalize and then transfer from the jail a young male prisoner who was sexually assaulted. Pitkin immediately reported the problems to Chief Deputy Louis and to Fasula.

In response to these problems, Fasula established a security detail which consisted of either the jailer or one of the road deputies making hourly walk-through checks of the jail. Fasula then conferred with Lt. Robert Peet, who was in charge of the Uniform Division (Cerjan’s division), and jail security, and decided that it was necessary to place someone inside the jail. On January 12, 1976, Fasula posted a Memorandum announcing the creation of the duty and that Cerjan had been selected to the jail detail.

According to Peet, several deputies were considered for this jail duty, but Cerjan was chosen because he was the “most capable” deputy, had the “most tenure”, the “most training”, and had “firearm training”. Fasula, on the other hand, gave no indication that he ever considered anyone else. In fact, he testified that he felt Cerjan was the only one that could initially be tried in the jail because of his experience and tenure, and because Fasula considered him to be a “tough kid” who excelled in any physical activity. Cerjan contends he was selected for the jail duty because of his activities in support of Johnston, and as a direct result of his association with Johnston at the dance the previous Saturday night.

Cerjan began this jail duty on January 14, 1976, and worked a 6:00 P.M. to 2:00 A.M. shift, Wednesday through Sunday, for six consecutive weeks. He had Mondays and Tuesdays off. He was locked in the jail with the prisoners and was not allowed to leave unless there was an emergency. He testified that most of the time no radio was available to him because the road deputies took them all out before he came on duty, and that when he did receive a radio it was inoperable because the steel structure of the building prevented transmission to the dispatcher’s office. On Mondays and Tuesdays, no replacement deputy was assigned to the jail. On those nights the jailer would visit the jail “as often as possible”. Both Fasula and Peet testified this was because the Sheriff’s Department was “short on manpower”.

One week after Cerjan was assigned to the jail duty, January 19,1976, Fasula posted another Memorandum which specified the procedure to be followed in the event of a “possible hostage situation.” Generally, the Memorandum directed that under no circumstances would prisoner demands be met, and that the shift corporals or jailer would take no overt action until ordered to do so by superior officers. Prior to the creation