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Bradley v. Village of University Park

United States Court of Appeals, Seventh Circuit

July 16, 2019

Eddie R. Bradley, Plaintiff-Appellant,
v.
Village of University Park, Illinois, an Illinois Home Rule municipality, and Vivian Covington, Mayor, in her individual and official capacities, Defendants-Appellees.

          Argued September 15, 2017

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:15-CV-8489 - Charles R. Norgle, Judge.

          Before Manion, Rovner and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         In 2015, the Village of University Park's mayor and board fired police chief Eddie Ray Bradley without any notice of good cause or any form of hearing-i.e., the procedural protections owed to Bradley under the United States Constitution. Bradley sued the village and mayor in federal court under 42 U.S.C. § 1983 for violating his Fourteenth Amendment rights by depriving him of a property interest in his job without due process of law. He also asserted several state-law claims. The district court dismissed Bradley's federal due process claim on the pleadings. We reverse.

         The parties agree that Bradley had a protected property interest in his continued employment. They agree that the mayor and the village board are the policymakers for their municipality on the subject. And everyone agrees that although there was ample opportunity for a hearing, Bradley received no pretermination notice or hearing. Those points of agreement suffice to prove a due process claim under § 1983 against the individual officials and the village itself, where the village acted through high-ranking officials with policymaking authority. See, e.g., Cleveland Bd. of Education v. Louder mill, 470 U.S. 532, 542 (1985); Pembaur v. City of Cincinnati, 475 U.S. 469, 485 (1986); Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694 (1978).[1]

         The defendants seek to avoid this straightforward conclusion. They urge us to follow a line of cases that excuses liability for the absence of predeprivation due process if the deprivation is the result of a "random, unauthorized act by a state employee, rather than an established state procedure," and "if a meaningful postdeprivation remedy for the loss is available." Hudson v. Palmer, 468 U.S. 517, 532-33 (1985), citing Parratt v. Taylor, 451 U.S. 527, 541 (1981), and Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); see also Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990) (en banc). Defendants reason that because the village's top officials decided as a matter of village policy to deny an employee due process in a way that also violated state law, their policy decision should be treated as a "random and unauthorized act ... beyond the control of the State/' Parratt, 451 U.S. at 541, leaving Bradley to pursue remedies only under state law. In other words, defendants argue that by intentionally violating plaintiff's federal due process rights in a way that also violated state law, they insulated their actions from federal liability.

         This argument is foreclosed for several reasons. First, the Supreme Court has never suggested that the pragmatic but narrow rule of Parratt applies to employee due process claims where predeprivation notice and an opportunity to be heard could be provided in a practical way. Public employers' decisions to violate both state and federal procedural requirements have never been treated as grounds to excuse federal due process liability. In addition, in this case, the decision to fire Bradley was made by the top municipal officials. This court has held squarely that "a complaint asserting municipal liability under Monell by definition states a claim to which Parratt is inapposite." Wilson v. Town of Clayton, 839 F.2d 375, 380 (7th Cir. 1988). That holding is consistent with other circuits and accords with common sense. A municipality cannot be held liable under a respondeat superior theory of liability. It can be held liable for a constitutional violation only if the violation resulted from a formal policy, an informal custom, or a decision "made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell, 436 U.S. at 691, 694 & n.58. In cases alleging due process violations by municipal policymakers, there is no need to inquire separately into whether an employee's actions were "random and unauthorized."

         In addition, defendants' expansive interpretation of Parratt, Hudson and Easter House is at odds with the Supreme Court's explication of Parratt and Hudson in Zinermon v. Burch, 494 U.S. 113, 124 (1990), which explained that the Court had "rejected the view that § 1983 ... does not reach abuses of state authority that are forbidden by the State's statutes or Constitution or are torts under the State's common law," and that "overlapping remedies are generally irrelevant to the question of the existence of a cause of action under § 1983."

         Excusing top municipal officials from federal liability when they violate constitutional due process rights, so long as they also violate state laws and the state provides some post-deprivation recourse, would (1) undermine public employees' due process rights and remedies under Loudermill and its progeny; (2) conflict with Monroe v. Pope, 365 U.S. 167 (1961), and its progeny, which hold that a state or local official may be sued under § 1983 for actions taken "under color of state law" even though the official's actions also violate state or local law and a remedy exists under state law; and (3) conflict with Patsy v. Board of Regents, 457 U.S. 496, 500-01 (1982), which held that § 1983 plaintiffs need not exhaust state-law remedies before asserting their federal rights. There is no indication in Parratt, Hudson, Zinermon, or our en banc decision in Easter House of an intention to undermine or overrule so much bedrock § 1983 law or to intrude on Monell doctrine in cases against municipalities. Those decisions should not be read to provide a defense to Bradley's due process claim.

         Where predeprivation procedures are both required and practicable, municipal policymakers expose the municipality and themselves to liability under § 1983 if they deliberately disregard an individual's constitutional due process rights. This is true even when state law also offers postdeprivation remedies. We therefore reverse the judgment of the district court and remand for further proceedings.

         I. Factual Background and Procedural History

         In 2013, plaintiff Bradley became the police chief of the Village of University Park, Illinois. Soon after a municipal election in 2015, however, the mayor and village board placed Bradley on administrative leave. Thirteen days later, they fired him summarily, without giving him any notice of good cause or any opportunity to be heard.

         The letter terminating Bradley did not try to justify his firing based on any sort of good cause. It suggested that he was being ousted by operation of state law because his employment contract extended his tenure beyond the term of the village officeholders who had appointed him, citing 65 Ill.Comp.Stat. 5/3.1-30-5(c) & 5/8-1-7(b), and Millikin v. Edgar County, 142 111. 528 (1892). This meant, according to the village board, that Bradley's appointment as police chief terminated as of May 15, 2015 without needing a board vote, a statement of reasons, or a hearing. Bradley responded with a letter demanding an opportunity to be heard. He received no answer.

         These actions did not comply with the termination provisions of Bradley's employment contract, the requirements of state law, or-critical to this case-the Fourteenth Amendment. To effect Bradley's removal, Illinois state law required the village to follow a process set forth in 65 Ill.Comp.Stat. 5/10-2.1-17. See also University Park, 111., Codified Ordinances part 2, title 8, § 271-02(g) (adopting in its entirety 65 Ill.Comp.Stat. 5/10-2.1-17). This process requires a statement of "the reasons for such removal or discharge/' which must be voted on by the village's corporate authorities before the discharge may take effect. Id. The process also includes "a fair and impartial hearing of the charges" in front of the village's board of fire and police commissioners. Id. These procedures would, if followed, satisfy the basic federal constitutional requirement that the village offer its tenured employees notice and an opportunity to be heard before firing them, a right that "does not depend on a demonstration of certain success." Loudermill, 470 U.S. at 542-46; id. at 544, citing Carey v. Piphus, 435 U.S. 247, 266 (1978); see also Gilbert v. Homar, 520 U.S. 924, 929 (1997) (explaining that minimum constitutional requirements of "pretermination process need only include oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to tell his side of the story").

         The mayor and the village board had the authority and discretion to fire Bradley. State law delegated this authority to their offices. See 65 Ill.Comp.Stat. 5/10-2.1-17 (vesting power to remove police chief in "the appointing authority"); University Park, 111., Codified Ordinances part 2, title 4, § 210-01 (mayor sits on village board); id. at title 6, § 220-02 & -05 (village board, which includes the mayor, appoints a municipal manager, and together the board, mayor, and manager appoint and remove police chief).

         Bradley sued under § 1983 for deprivation of property without due process of law, naming as defendants the village itself and the mayor in her official and individual capacities. (We need not distinguish between the village and the mayor in this opinion.) He also sought relief under several state-law theories. The village filed an answer admitting that Bradley was fired without any process and asserting several affirmative defenses, including qualified immunity for the mayor in her individual capacity. The village has conceded that Bradley held a protected property interest in his job.[2]

         The district court directed the parties to address the qualified immunity defense and to address our decision in Michalowicz v. Village of Bedford Park, 528 F.3d 530, 532-33 (7th Cir. 2008), which affirmed dismissal of a federal due process claim by a local fire inspector. Unlike the present case, Michalowicz had received hearings both before and after his firing, but he alleged that his hearings did not comply with the detailed procedures required under the state statute. Nonetheless, the district court here rendered judgment on the pleadings and dismissed Bradley's due process claim with prejudice. Dkt. 35 at 3.

         The district court reasoned that Bradley simply "attacks the actions, and inactions, of Defendants in the process of firing him" and not the "process available to him under Illinois law" for vindicating his rights. Id. This meant, in the judgment of the district court, that "Plaintiff's accusations are that Defendants' actions were 'random and unauthorized' by law," id. at 2, quoting Michalowicz, 528 F.3d at 535, so that constitutional due process requirements are met as long as a state law remedy "provides for a post-termination hearing." Id. The district court found that Bradley's remedy in state court under state administrative law would be adequate and his "choice" not to take advantage of the state administrative process available to him was "fatal to his claim in federal court." Id. at 3. The court then dismissed Bradley's remaining state-law claims without prejudice.

         II. Bradley's Federal Due Process Claim

         A. Due Process Basics

         Because the district court dismissed Bradley's complaint on the pleadings under Federal Rule of Civil Procedure 12(c) for failure to state a claim, we review the district court's legal conclusions de novo, construing the factual allegations in the complaint in the light most favorable to Bradley. E.g., Bishop v. Air Line Pilots Ass'n, 900 F.3d 388, 396-97 (7th Cir. 2018).

         The basic legal questions presented by due process cases like this are familiar: "(1) is there a property or liberty interest protected by due process; and (2) if so, what process is due, and when must that process be made available?" Simpson v. Brown County, 860 F.3d 1001, 1006 (7th Cir. 2017); see generally Mathews v. Eldridge, 424 U.S. 319, 333-35 (1976).

         For public employees, a "protected property interest in employment can arise from a state statute, regulation, municipal ordinance, or an express or implied contract." Crull v. Sunderman, 384 F.3d 453, 460 (7th Cir. 2004), quoting Johnson v. City of Fort Wayne, 91 F.3d 922, 943 (7th Cir. 1996). We need not dwell on this element. As noted, the village concedes that Bradley had a property interest in his job protected by procedural due process. His protections were not just procedural but substantive. Cf. Manley v. Law, 889 F.3d 885, 893 (7th Cir. 2018) (purely procedural rules of state or local law do not support claim to federal due process rights), citing Swarthout v. Cooke, 562 U.S. 216, 221-22 (2011).

         When a public employee has a property interest in his or her job, the constitutional requirements for predeprivation procedures are well-established: notice of the proposed deprivation, a statement of reasons, and an opportunity to be heard in response. Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972); Perry v. Sindermann, 408 U.S. 593, 602-03 (1972). As for "the specific dictates of due process" in any individual case, we are required to consider "three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews, 424 U.S. at 335. Being fired from a job does not require a predeprivation hearing that approximates a full trial. Cf. Goldberg v. Kelly, 397 U.S. 254, 266-71 (1970) (termination of welfare benefits was such a substantial deprivation that plaintiff was entitled to a predeprivation "evidentiary hearing"). But a job is nonetheless a substantial enough property interest that, absent extenuating circumstances such as an emergency, the basics of predeprivation due process must be provided.

         Thus, in the normal course of terminating a public employee who has a property interest in his or her job, "the root requirement of the Due Process Clause" is the provision of adequate notice and "some kind of a hearing" to a public employee "before he is deprived of any significant property interest." Loudermill, 470 U.S. at 542, 546 (internal quotations omitted); accord, e.g., Gilbert, 520 U.S. at 929; Zinermon, 494 U.S. at 132 ("In situations where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking.").

         To be clear, Bradley is not complaining about the adequacy of his notice or the procedural details of a hearing. All parties agree: he received no process at all. In contrast, plaintiffs in public employee due process cases often argue that their rights to due process were violated when state or local officials failed to comply with additional procedural details set forth in state statutes or local ordinances. State and local governments are free to provide more robust protections and detailed procedures for firing and disciplining public employees than is constitutionally required. Many have done so. Those detailed procedural codes are easier to administer than having to devise ad hoc procedures in each case.

         As we have written for decades, however, those additional procedural details in state and local law should not be confused with the minimal federal constitutional requirements of predeprivation notice and an opportunity to be heard. See, e.g., Schuliz v. Baumgart, 738 F.2d 231, 236 (7th Cir. 1984) (explaining that "it is not the task of this [federal] court to enforce in every procedural detail the elaborate requirements of [state law]"); accord, e.g., Linear, 887 F.3d at 844 ("We regularly disparage arguments ... that procedures required by state law create property interests and hence lead to a federal requirement that state procedures be used."), citing Snowden v. Hughes, 321 U.S. 1, 11-13 (1944).[3]

         Furthermore, "[j]ust as a violation of state law does not a constitutional claim make, so the [state law] violation does not protect officials from the federal consequences of their otherwise-unconstitutional conduct," as Supreme Court precedent has "established] the indifference of constitutional norms to the content of state law." Archie, 847 F.2d at 1217 n.6, citing Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S. 278 (1913), and Snowden, 321 U.S. 1.

         This point has been clear since Monroe v. Pope, 365 U.S. 167, 183 (1961), which was overruled in part not relevant here by Monell, 436 U.S. at 664-89. Monroe held that the defendant police officers were acting "under color of" state authority and could be held liable under § 1983 for violations of the United States "Constitution and laws of Illinois," despite the existence of "a simple remedy" under Illinois law and the fact that "the courts of Illinois are available to give petitioners that full re-dress."365 U.S. at 172 (emphasis added). This was so because § 1983 was designed to provide a remedy "against those who representing a State in some capacity were unable or unwilling to enforce a state law." Id. at 176. Monroe explained: "It is no answer that the State has a law which if enforced would give relief. The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Hence the fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal court." Id. at 183.

         In sum, the simultaneous violation of both federal and state law does not provide defendants with a defense to liability, nor does the existence of a state remedy bar aggrieved plaintiffs from pursuing federal claims.

         B. Monell Basics

         The legal issues are undisputed until this point: Bradley had a protected property interest, which he lost without any due process. And since Monell v. New York City Dep't of Social Services, 436 U.S. 658, 694 (1978), a municipal corporation may be held liable under § 1983 in such circumstances. As we recently explained, "[t]he critical question under Monell, reaffirmed in Los Angeles County v. Humphries, 562 U.S. 29 (2010), is whether a municipal (or corporate) policy or custom gave rise to the harm (that is, caused it), or if instead the harm resulted from the acts of the entity's agents." Glisson v. Indiana Dep't of Corrections, 849 F.3d 372, 379 (7th Cir. 2017) (en banc). Determining what caused the violation is crucial because Monell held that "municipalities are not liable for the torts of their employees under the strict-liability doctrine of respondeat superior, as private employers are." Vodak v. City of Chicago, 639 F.3d 738, 747 (7th Cir. 2011). Local governments are liable for damages under § 1983 only for violations of federal rights that occur "pursuant to official municipal policy of some nature." Monell, 436 U.S. at 691.

         The "official policy" requirement for Monell claims is "intended to distinguish acts of the municipality from acts of employees of the municipality" and to limit liability to "action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986). A plaintiff might prove this essential element by showing that (1) "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers," Monell, 436 U.S. at 690; or (2) the "constitutional deprivations [were] visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decisionmaking channels," id. at 690-91; or (3) the deprivation was "made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy," id. at 694. See also Los Angeles County v. Humphries, 562 U.S. at 36; Board of County Com'rs of Bryan County v. Brown, 520 U.S. 397, 403-04 (1997).

         The Monell requirement can be satisfied by "a single decision attributable to a municipality." Bryan County, 520 U.S. at 405. "[I]t is plain that municipal liability may be imposed for a single decision by municipal policymakers" to adopt "a course of action tailored to a particular situation ... whether that action is to be taken only once or to be taken repeatedly." Pembaur, 475 U.S. at 480-81, 485 (municipality was liable under § 1983 when county prosecutor acting as county's final decisionmaker directed subordinates to engage in actions that violated plaintiff's rights); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 252, 268 (1981) (municipal liability for compensatory-but not punitive-damages was appropriate under § 1983 when city council canceled performer's concert license without due process).

         Contrary to defendants' position here, such an unconstitutional act of municipal decisionmakers can result in municipal liability even if their act also violated state law. For example, in Owen v. City of Independence, 445 U.S. 622 (1980), the Supreme Court made clear that both a city and its manager could be held liable under § 1983 for firing the city police chief without due process, even if the defendants' actions also violated state law. Id. at 627 n.4 & 633 (holding qualified immunity does not apply to damage claims against municipal government itself).

         If a plaintiff cannot prove, however, that a policy is attributable to the municipality itself-i.e., that the deprivation was due to "[e]ither the content of an official policy, a decision by a final decisionmaker, or evidence of custom"-then there is no municipal liability. Glisson, 849 F.3d at 379. Any inquiry into whether the actions of a municipal employee may be attributed to the municipality can be answered by applying the Monell test for liability.

         In Bradley's case, this component is also undisputed. The mayor and the board concede that they had sole discretion and authority to fire Bradley. "[P]roof that a municipality's legislative body or authorized decisionmaker has intentionally deprived a plaintiff of a federally protected right necessarily establishes that the municipality acted culpably." Bryan County, 520 U.S. at 405. Under Monell, the actions of the mayor and village board in firing Bradley are, by virtue of the defendants' authority as policymakers, automatically considered actions of the municipality itself under § 1983. Their decision to deprive Bradley of due process is the municipal policy that forms the basis for defendants' liability.

         III. Defendants' Counter-argument

         A busy reader might be forgiven for thinking that this opinion should end here. The municipal defendants seem to have conceded that the municipality's policymakers unconstitutionally deprived Bradley of a recognized property interest without any due process. Yet defendants instead contend that their official action-taken by the village's highest-ranking officials with final policymaking authority-should be considered "random and unauthorized" and thus excused under Parratt. We reject this defense.

         To explain why, we first describe Parratt and its progeny (Hudson, Logan, Zinermon, and our circuit's application of the Parratt exception in Easter House). We then explain why defendants' proposal to extend the Parratt exception to municipal § 1983 liability is contrary to our own and other circuits' precedent-and for good reasons. It makes no sense to speak of such official policymaking as "random and unauthorized" in terms of Parratt. That's why the Supreme Court has never suggested that Parratt can be extended to defend against an otherwise valid Monell claim. The defendants' proposed exception is not necessary given Monell''s test for liability. And accepting defendants' argument would conflict directly with Monroe, Monell, Pembaur, Owen, and Bryan County. We would have to reach the improbable conclusion that a municipality is not liable for its highest officials' decision to deprive a person of his federal constitutional rights.

         Finally, even if the Parratt exception were relevant here, neither Supreme Court precedent nor our decision in Easter House supports defendants' theory that, so long as municipal policymakers violate both the federal Constitution and state law, and some state remedy exists, the municipality is excused from § 1983 liability. In the past we have disparaged similar attempts to evade municipal liability, dismissing as "extravagant" a claim that the "acts of [a] Mayor ... are merely acts of an errant employee." Vodak, 639 F.3d at 747. Defendants' proposal would also undermine (1) the constitutional protection for public employees in Roth, Sindermann, and Loudermill, while creating a direct conflict with (2) the Monroe v. Pope line of cases recognizing that state or local officials may be liable under § 1983 for actions taken "under color of state law," even if the official's actions also violate state or local law, as well as (3) Patsy v. Board of Regents' holding that § 1983 plaintiffs need not exhaust state-law remedies before asserting their federal rights. We see no reason to avoid Supreme Court precedent or to read our precedent in such a disruptive manner.

         A. Parratt and State Employees' "Random and Unauthorized" Actions

         1. Supreme Court Precedent

         "Parratt is a rare exception to due process norms." Brunson v. Murray, 843 F.3d 698, 715 n.9 (7th Cir. 2016). A close look at the facts and holdings of Parratt and its progeny demonstrates the narrow, pragmatic reasoning underlying this exception to § 1983 due process liability.

         In Parratt, a state prisoner ordered the famous "hobby materials valued at $23.50." 451 U.S. at 529. Due to the actions of state prison guards, the hobby materials were lost before they reached the prisoner. He sued under 42 U.S.C. § 1983 to recover their value as damages for depriving him of property without due process of law. In that situation, it would have been impossible for the state to provide a predeprivation hearing. The initial deprivation-the property loss-was as a practical matter "beyond the control of the State." Id. at 541. Parratt is thus based on the following narrow grounds: If a predeprivation hearing "is not only impracticable, but impossible," and yet "some meaningful opportunity subsequent to the initial taking" is available to provide redress, then that is all the due process the state can be expected to provide, and the aggrieved person's constitutional rights have not been violated. Id. at 541-43.

         In later cases, the Supreme Court elaborated on Parratt's limits. The Court emphasized that "absent 'the necessity of quick action by the State or the impracticality of providing any predeprivation process,' a postdeprivation hearing [ ] would be constitutionally inadequate," which "is particularly true where ... the State's only post-termination process comes in the form of an independent tort action." Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982), quoting Parratt, 451 U.S. at 539. If the state lacks the opportunity to provide any predeprivation process (e.g., due to an emergency or the actions of a rogue employee), the state can still meet its constitutional due process obligations by providing adequate post-deprivation procedures because the "state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy." Hudson, 468 U.S. at 533 (extending Parratt to intentional but random and unauthorized deprivations of prisoners' property). In essence, "[t]he controlling inquiry is solely whether the state is in a position to provide for predeprivation process;" if "the property deprivation is effected pursuant to an established state procedure/' Parratt is irrelevant. Id. at 534.

         Parratt generated disagreement among circuit courts of appeals, and the Supreme Court stepped in to clarify the scope and rationale of Parratt (and Hudson) in the context of Florida's civil commitment process for people with serious mental illness in Zinermon v. Burch, 494 U.S. 113, 116 & n.2 (1990). The Zinermon plaintiff alleged that he had been committed to a state mental hospital as a voluntary admirtee even though his condition should have prompted assessment under the state's more elaborate procedures for involuntary commitment. Id. at 115, 122-23.

         The plaintiff made clear that he was "not attacking the facial validity of Florida's voluntary admission procedures any more than he is attacking the facial validity of Florida's involuntary admission procedures." 494 U.S. at 117 n.3. In fact, he conceded "that, if Florida's statutes were strictly complied with, no deprivation of liberty without due process would occur." Id. Furthermore, the plaintiff did "not dispute that he had remedies under Florida law for unlawful confinement," including damage remedies under state mental health statutes and recourse to the state's common-law tort of false imprisonment. Id. at 130 n.15.

         The defendants, who were state hospital officials, argued that Parratt and Hudson should excuse them from § 1983 liability. The plaintiff was alleging at most "only a random, unauthorized violation of the Florida statutes governing admission of mental patients," they argued, and he thus should be limited to "the postdeprivation remedies provided by Florida's statutory and common law." Id. at 115, 130.

         The Supreme Court rejected that argument. The Court first acknowledged that the state could have imposed additional safeguards at a predictable juncture in the hospital admission process-i.e., upon admission. 494 U.S. at 135. But the Court also noted the evidence that the hospital staff had disregarded existing procedures in determining whether plaintiff was competent to be admitted voluntarily, noting the psychiatrist's admission notes on petitioner's confused mental state. Id. at 134, 118 (after plaintiff was found wandering on a highway "bruised and bloodied," hospital staff gave him voluntary admission forms to sign while he "was hallucinating, confused, and psychotic and believed he was 'in heaven"'). The staff "knew or should have known that he was incapable of informed consent," and the way in which he was admitted "certainly did not ensure compliance with the statutory standard for voluntary admission." Id. at 134; see also id. at 135 ("The [hospital] staff are the only persons in a position to take notice of any misuse of the voluntary admission process and to ensure that the proper procedure is followed."). Thus, the additional guidance the Court apparently envisioned Florida providing was: do not direct incompetent patients to sign the voluntary admission forms for competent patients. That would have come close to "a rule forbidding a prison guard to maliciously destroy a prisoner's property," which would have seemed futile. Id. at 137.

         Zinermon took care to distinguish Parratt and Hudson:

[P]etitioners cannot characterize their conduct as 'unauthorized' in the sense the term is used in Parratt and Hudson. The State delegated to them the power and authority to effect the very deprivation complained of here, Burch's confinement in a mental hospital, and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful confinement. In Parratt and Hudson, the state employees had no similar broad authority to deprive prisoners of their personal property, and no similar duty to initiate (for persons unable to protect their own interests) the procedural safeguards required before deprivations occur. The deprivation here is 'unauthorized' only in the sense that it was not an act sanctioned by state law, but, instead, was a 'deprivation] of constitutional rights ... by an official's abuse of his position.' Monroe [v. Pope, 365 U.S. 167, 172 (1961)].

494 U.S. at 138 (emphasis added). The Court's citation to Monroe v. Pope confirmed that a defendant's admissions that he had violated state law and that state law provides a postdeprivation remedy, as defendants admit here, are not by themselves a defense to the federal constitutional claim. And the quoted passage from Zinermon maps exactly onto the facts of this case: Illinois law "delegated to [defendants] the power and authority to effect the very deprivation complained of here, [Burch's confinement or Bradley's termination], and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law to guard against unlawful [confinement or termination]." Id. at 138.

         This point was hammered home further by the Court's explicit rejection of the village's position here. The Court reiterated that Parratt and Hudson "do not stand for the proposition that in every case where a deprivation is caused by an 'unauthorized ... departure from established practices/ state officials can escape § 1983 liability simply because the State provides tort remedies." 494 U.S. at 138 n.2O. Such a "reading of Parratt and Hudson detaches those cases from their proper role as special applications of the settled principles expressed in Monroe [v. Pope] and Mathews [v. Eldridge\." Id.

         Zinermon insisted that Parratt and Hudson remained tethered to a long line of § 1983 jurisprudence, emphasizing that those cases merely "represent a special case of the general Mathews v. Eldridge analysis, in which postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide." 494 U.S. at 128. In fact, the Court continued, "Parratt is not an exception to the Mathews balancing test, but rather an application of that test to the unusual case in which one of the variables in the Mathews equation-the value of predeprivation safeguards-is negligible in preventing the kind of deprivation at issue." Id. at 129. This consideration swamped the other Mathews factors in Parratt itself because "no matter how significant the private interest at stake and the risk of its erroneous deprivation, see Mathews, 424 U.S. at 335, the State cannot be required constitutionally to do the impossible by providing predeprivation process." Id. Thus, Zinermon made clear that Parratt and Hudson had not broadly repudiated existing § 1983 law.

         2. Seventh Circuit Application of Parratt in Easter House

         Shortly after Zinermon was decided, we considered these questions in a case the Supreme Court had remanded for further consideration in light of Zinermon. Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990) (en banc). It would be difficult to overstate how unusual the facts were in Easter House, or how much they differed from mainstream public employee due process cases like Bradley's. Plaintiff Easter House was a private adoption agency that had been betrayed by a former director named Smith. Stung by some management decisions, Smith abruptly quit Easter House to start a competing adoption agency that she also named Easter House (for clarity's sake, both we and the Easter House opinion refer to the imitator agency as "Easter House II"). Id. at 1391 & n.4, 1393 & n.7. She stole Easter House's open and closed case files on adoptive families and children. She also induced Easter House's only other trained social worker to join Easter House II, attempted to divert Easter House's mail and telephone calls to her new address, and deceived a family in the middle of the adoption process to deal with and pay her rather than Easter House. Id. at 1391, 1393 & nn.7-9.

         The constitutional claims stem from the fact that Smith also roped into her scheme some state licensing officials in the Illinois Department of Children and Family Services (DCFS). She told them that Easter House was careless in handling confidential adoption records and would solicit affluent former clients to increase the number of placements. She also "made vague allegations that Easter House was connected to foreign adoption agencies" and expected to "make a million" from those connections. 910 F.2d at 1391 & n.3. Although Easter House never lost its license and continued operating throughout this debacle, DCFS officials acted contrary to state licensing procedures and: (a) delayed Easter House's license renewal, (b) sent Easter House a letter with some inaccurate licensing information that was corrected shortly thereafter, (c) incorrectly told three people that Easter House's license had lapsed, and (d) did not offer Easter House assistance in the license renewal process "as required by the DCFS's regulations and enforcement manual." Id. at 1391-92.

         At trial, a jury found that the defendant state officials had conspired with Smith to deprive Easter House of its state-issued license and had spread false information about it. 910 F.2d at 1390-94. The jury awarded damages on Easter House's federal claim that the defendants temporarily deprived it of property-its interest in the prompt renewal of its license- without due process of law. We were "not wholly convinced" this property interest was "of constitutional magnitude," given the fact that Easter House was able to operate without interruption, but we elected to "assume" this "difficult question" was answered in the affirmative. Id. at 1395-96.

         We reversed the judgment in favor of Easter House, finding that the due process claim was barred by Parratt. To the extent the state defendants conspired with Smith (and we found that much of the evidence seemed to indicate their "lack of active participation," 910 F.2d at 1393 n.7), we held that the state employees' actions to undermine the state's licensing scheme to assist a competitor were "random and unauthorized" and that the ...


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