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Lavite v. Dunstan

United States Court of Appeals, Seventh Circuit

August 7, 2019

Bradley A. Lavite, Plaintiff-Appellant,
Alan J. Dunstan, et al., Defendants-Appellees.

          Argued April 2, 2019

          Appeal from the United States District Court for the Southern District of Illinois. No. 3:16-cv-00882-DRH-RJD - David R. Herndon, Judge.

          Before Hamilton, Barrett, and Scudder, Circuit Judges.


         Plaintiff Bradley Lavite is a combat veteran who works in the Administration Building of Madison County, Illinois, as superintendent for the County's Veterans Assistance Commission. In the spring of 2015, government officials in Madison County banned Lavite from the Administration Building indefinitely. They did so shortly after learning that Lavite had experienced a PTSD episode during which he threatened a police officer and then kicked out the windows of a squad car.

         The ban lasted for nearly 20 months. Lavite kept his job the entire time but had to work remotely. A few months before the ban was lifted, Lavite filed this lawsuit against Madison County and the government officials he deemed responsible. He alleged seven federal claims and one state-law claim. The district court granted summary judgment for the defendants on all federal claims and declined to exercise supplemental jurisdiction over the remaining state-law claim. We affirm.

         I. Factual & Procedural Background

         Bradley Lavite is employed by the Veterans Assistance Commission of Madison County, Illinois, where he has served as superintendent since 2009. Commission personnel, including Lavite, are not actually employees of Madison County, but Lavite works frequently with County officials.

         One of Lavite's early projects as superintendent was establishing the first veterans' alternative treatment court in Illinois. The funds for the court were raised by a nonprofit, Friends of McAtac Foundation, which was incorporated in 2010 with the specific purpose of raising money to support this project. Lavite served on the board of the Foundation, which raised $30, 000 in its first three years.

         In the spring of 2013, Madison County's probation department was suffering from budget cuts. County Administrator Joseph Parente asked Lavite whether he would be willing to allocate some of the Veterans Assistance Commission's budget to pay the salary of a probation department employee whose position was in jeopardy. Lavite refused. The same spring, Lavite was again asked to divert money to benefit the County, and he again objected. At a 2013 Commission meeting, someone proposed using a portion of the $30, 000 raised by the Foundation to send several local judges and probation officers to an alternative treatment court conference in California. Lavite objected, arguing that those funds were meant to benefit Madison County veterans directly. He alleged that he was not invited to and has no knowledge of any subsequent meeting of the Foundation's board. As we discuss in detail below, Lavite argues that his 2013 objections to the County's use of Commission funds are examples of free speech protected by the First Amendment and motivated County officials to ban him two years later from the Administration Building.

         Since his release from active duty in 2004, Lavite has suffered from Post-Traumatic Stress Disorder, known as PTSD. On March 5, 2015, Lavite suffered a PTSD episode. His wife called 911 and asked first responders to transport him to the Veterans Administration Medical Center in St. Louis. Police officers responded to the call, took a volatile Lavite into custody, and placed him in a holding cell in the Madison County jail. Lavite's PTSD symptoms did not improve. The officers later placed him in a squad car to transport him to a local mental health facility. Lavite was upset that officers were not transporting him to the St. Louis facility that he and his wife had requested, and his episode escalated. He began yelling profanities and threats at an officer. He then proceeded to kick out the rear windows of the squad car in which he had been placed. No one was injured. Lavite eventually was transported to the VA center in St. Louis. The incident was captured on video by the squad car's dashboard camera. Lavite was charged with criminal damage to government- supported property, which was later amended to disorderly conduct. On June 8, 2015, Lavite was found guilty of this offense.

         Shortly after the incident, Tom Gibbons, the State's Attorney for Madison County, was told about it. He contacted County Sheriff John Lakin. After watching Lavite's behavior on the video, Lakin was troubled to learn that Lavite worked for the Veterans Assistance Commission with its office in the Administration Building. Lakin thought Lavite posed a danger to building employees and the public who might visit the County building. Lakin shared his concerns with County Administrator Joseph Parente, who in turn decided to issue an order barring Lavite from County property. Alan Dunstan, the County Board Chairman at the time, also reviewed the dashboard camera footage and agreed with Parente's decision. The extent of the ban is disputed. Lavite asserts that he was prohibited from entering all County property. Defendants contend that he was barred from entering only the Administration Building.

         In May 2015, the County hired a doctor to examine Lavite, review the video, and determine whether it would be safe for Lavite to work from County property again. The County doctor determined that Lavite was not fit to return for work. Lavite's personal physician disagreed and wrote a letter explaining that she believed it was safe for Lavite to return to County property with no limitations. Defendant Parente did not believe that Lavite's physician viewed the dashboard camera footage in rendering her assessment and recommendation.

         Lavite kept his job and worked remotely until December 2016, when a new County Board Chairman was elected and lifted the ban on Lavite from County property. Throughout the period of the ban, Lavite was paid his full salary by the Veterans Assistance Commission.

         On August 5, 2016, before he was allowed to reenter the Administration Building, Lavite filed this suit in the Southern District of Illinois against Dunstan, Parente, Lakin, Gibbons, the Madison County Sheriff's Department, and Madison County for compensatory and punitive damages.[1] Lavite later filed his operative First Amended Complaint against the same defendants in their individual and official capacities. At the conclusion of discovery, the defendants filed motions for summary judgment. The district court granted defendants summary judgment on all federal claims and declined to exercise supplemental jurisdiction over the sole remaining state-law claim. Lavite v. Dunstan, 2018 WL 5437717 (S.D. Ill. Oct. 29, 2018).

         II. Analysis

         We review a district court's grant of summary judgment de novo, construing all facts and factual disputes in favor of the nonmoving party. Steimel v. Wernert, 823 F.3d 902, 910 (7th Cir. 2016). Summary judgment is proper where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Carmody v. Board of Trustees of University of Illinois, 893 F.3d 397, 401 (7th Cir. 2018) (citations and quotations omitted). First, we review Lavite's First Amendment claims against all defendants and State's Attorney Gibbons specifically. We then proceed to Lavite's due process claims against all defendants and Sheriff Lakin specifically.

         A. First Amendment

         Lavite asserted four First Amendment claims. Counts I and II were against all defendants and Counts VI and VII were against only State's Attorney Gibbons. In Count I, Lavite alleged that the defendants violated his First Amendment right to assembly by banning him from Madison County property. In Count II, he alleged he was illegally banned from County property in 2015 in retaliation for his objections in 2013 to using Friends of the McAtac Foundation funds to pay the salary of a probation department employee and to send judges and probation personnel to the California conference, all in violation of his First Amendment right to free speech and expression. Counts VI and VII alleged that State's Attorney Gibbons violated Lavite's right to free assembly by advising County Chairman Dunstan and County Administrator Parente that banning Lavite from County property was ...

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