United States District Court, Central District of Illinois, Springfield Division
November 10, 1982
JOHN BROWN, ET AL., PLAINTIFFS,
STEVE BRIENEN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: J. Waldo Ackerman, Chief Judge.
On July 12, 1977, the McLean County Board adopted a
personnel policy. The personnel policy, under a section titled
Compensatory Time Off, states:
Employees who work more than thirty-seven and
one-half hours in a given work week or work on a
county holiday may be granted time off in an
amount equal to the overtime worked.
Plaintiffs' ex. C. John King was sheriff when the County Board
passed this policy. The sheriff's informal records indicate
that deputies were not taking their accumulated compensatory
In December of 1978, Defendant Brienen became Sheriff of
McLean County. He adopted a more formal policy to provide for
compensatory time off. He instructed the deputies to keep
records of their overtime, and placed restrictions on when the
deputies could take compensatory time off. Defendant Brienen
established minimum staffing levels for the sheriff's
department. Because of the minimum staffing levels and the
County Board's unwillingness to fund additional staffing, the
sheriff was unable to give all the accumulated compensatory
time. Thus, Plaintiffs accumulated large amounts of
Plaintiffs filed a complaint under 42 U.S.C. § 1983, 1985,
1986, alleging a deprivation of property without due process of
law and a denial of equal protection of laws. Plaintiffs sought
monetary damages, injunctive relief, and attorney fees. This
Court, in the first part of a bifurcated trial, held for
Plaintiffs on the issue of liability.
Later, on July 2, 1982, relying on Parratt v. Taylor,
451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), this Court
vacated its order holding Defendants liable. This holding was
not based on a changed view that Plaintiffs had not been
deprived of a property right, i.e. their compensatory time off,
but rather, since the state provides an adequate remedy to
Plaintiffs to recover whatever compensatory time off is due
them, there has not been a deprivation without due process.
Plaintiffs, pursuant to Fed.R. Civ.P. 59, have filed a motion
for modification of judgment. They contend that this Court's
reliance on Parratt was incorrect. Defendants have filed a
brief in opposition to this motion.
Because the Court believes the State of Illinois provides
sufficient process to Plaintiffs, it denies the motion for
modification of judgment.
This motion presents a question concerning the construction
of 42 U.S.C. § 1983, and the due process clause of the
Fourteenth Amendment. The Fourteenth Amendment provides, in
[N]or shall any state deprive any person of life,
liberty, or property, without due process of
law. . . .
The dispute in this motion revolves around the question of
what constitutes due process of law. The construction of this
simple sounding phrase is not free from difficulty or dispute.
See, e.g., Monroe v. Pape, 365 U.S. 167
, 81 S.Ct. 473, 5
L.Ed.2d 492 (1961). The legislative history of 42 U.S.C. § 1983
has been labeled inconclusive, id. at 193, 81 S.Ct. at 487
(Harlan, J., concurring), and the courts' interpretations are
Compare Monroe v. Pape, supra, with Parratt
v. Taylor, 451 U.S. 527
, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
Plaintiffs assert that the government has deprived them of
a property interest. This property interest, however, is in
the nature of a contract whether the contract be express or
implied. Therefore, the substantive injury in this case was a
breach of contract. If the breach had been committed by
someone other than a governmental entity, the facts would not
raise a constitutional question. Since the County has breached
the contract, Plaintiffs assert they were denied due process
of law. Plaintiffs could have filed their breach of contract
action in an Illinois Circuit Court and sought appropriate
relief. Thus, the focus must be on the due process required
where an agency of government has breached a contract.
It is important to note exactly what comprises due process.
As the court in Ingraham v. Wright explained:
Due process, unlike some legal rules, is not a
technical conception with a fixed context
unrelated to time, place and circumstances. . . .
Representing a profound attitude of
fairness . . . `due process' is compounded of
history, reason, the past course of decisions,
and stout confidence in the strength of the
democratic faith which we profess. . . .
430 U.S. 651
, 675, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977)
(quoting Anti-Fascist Comm. v. McGrath, 341 U.S. 123
71 S.Ct. 624
, 643-44, 95 L.Ed. 817 (1951) (Frankfurter, J.,
concurring)). Rather than looking to one technical rule, an
analysis of due process should look to a number of different
factors. The factors usually examined are: one, the private
interest that will be affected; second, the risk of an
erroneous deprivation, and the likely value of additional or
substitute safeguards; and, three, the state interest involved.
Mathews v. Eldridge, 424 U.S. 319
, 335, 96 S.Ct. 893, 903, 47
L.Ed.2d 18 (1976). An examination of the state interest should
include the functions involved, and the fiscal and
administrative burdens entailed by the different procedural
safeguards. The courts have consistently noted that at some
point the societal value of additional procedures is outweighed
by the cost. Id. at 348, 96 S.Ct. at 909.
Here, as previously stated, in my opinion Plaintiffs have
been deprived of a property interest. Generally, due process
requires greater procedures when liberty interests are
implicated as opposed to property interests. Arnett v. Kennedy,
416 U.S. 134, 178-79 n. 6, 94 S.Ct. 1633, 1656 n. 6, 40 L.Ed.2d
15 (1974) (White, J., concurring and dissenting); Kimbrough v.
O'Neil, 523 F.2d 1057, 1065 (7th Cir. 1975) (Stevens, J.,
concurring). In fact, "where only property rights are involved,
mere postponement of the judicial enquiry is not a denial of
due process, if the opportunity given for ultimate judicial
determination of liability is adequate." Parratt v. Taylor,
supra, 451 U.S. at 540, 101 S.Ct. at 1915 (quoting Mitchell v.
Grant Co., 416 U.S. 600, 611, 94 S.Ct. 1895, 1902, 40 L.Ed.2d
406 (1974)). Plaintiffs do not contest the adequacy of the
postdeprivation procedures offered by the State of Illinois,
and it appears that the state offers plaintiffs a fair
opportunity for a judicial determination of liability.
The second prong of the Eldridge test is the risk of
erroneous deprivation of the plaintiffs' interest. Recent
cases, including Parratt, indicate that a subsequent hearing
may satisfy this requirement. The Court's approach is
functional and the risk of erroneous deprivation, of necessity,
is tied to the adequacy of the hearing. Ellis v. Hamilton,
669 F.2d 510 (7th Cir. 1982). The fundamental requirement of a
hearing that complies with due process is an opportunity to be
heard at a meaningful time and in a meaningful manner. Parratt,
supra, 451 U.S. at 540, 101 S.Ct. at 1915 (quoting Armstrong v.
Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62
(1965)). Accord, Logan v. Zimmerman Brush Co., 455 U.S. 422,
429, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982). Plaintiffs
have not contended, and most likely could not contend, that
they were denied the opportunity to have a meaningful hearing.
This hearing, to be meaningful, must come before an individual
is finally deprived of a property interest. Logan, supra, at
430, 102 S.Ct. at 1155; Parratt, supra, 451 U.S. at 540, 101
S.Ct. at 1915; Eldridge, supra, 424 U.S. at 333, 96 S.Ct. at
The timing and nature of the required hearing depends on an
accommodation of the competing interests. Goss v. Lopez,
419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975). It
cannot be said that plaintiffs' property interest in
compensation for overtime is of paramount importance. In this
case it appears the State of Illinois has provided procedures
tailored "to the capacities and circumstances of those who are
to be heard." Eldridge, supra, 424 U.S. at 349, 96 S.Ct. at 909
(quoting Goldberg v. Kelly, 397 U.S. 254, 268-69, 90 S.Ct.
1011, 1020-21, 25 L.Ed.2d 287 (1970)). The due process clause
of the Fourteenth Amendment requires no more.
The third prong of Eldridge examines the effect of the
procedural safeguards on fiscal and administrative functions.
To require a predeprivation hearing every time a government
official's action or inaction might breach a contract, would
create a heavy burden on the operation of government. It is
doubtful that the drafters of the Fourteenth Amendment intended
such a result. Cf. Parratt, supra, 451 U.S. at 544, 101 S.Ct.
at 1917. While fiscal considerations are not the sole
touchstone of procedural due process questions, any fiscal
consideration will weigh heavily against Plaintiffs' cause.
Thus, this is a case where Plaintiffs have been temporarily
denied a property interest and have an opportunity for an
adequate hearing at a meaningful time. Since an analysis of
the competing interests favors a postdeprivation remedy,
Plaintiffs fail all prongs of the Eldridge test. Therefore,
they were not deprived of their due process rights.
Recent cases support this Court's ruling that Defendants did
not violate Plaintiffs' constitutional right to due process of
law. In Parratt v. Taylor, supra, the Court held that a
negligent tort injury, committed by state officials acting
under color of law, did not constitute a deprivation of
property without due process of law where there was an
adequate, postdeprivation opportunity for an ultimate judicial
determination of liability. The Parratt majority relied, in
part, on the practical difficulty of having the state provide a
hearing before the deprivation takes place. Parratt v. Taylor,
supra, at 541, 101 S.Ct. at 1916. That same difficulty exists
in the facts of this case. Remedies provided by the state in
its courts can fully compensate the Plaintiffs, and the
requirements of due process require no more than this. Id. at
544, 101 S.Ct. at 1917.
In Parratt, the court relied on Bonner v. Coughlin,
517 F.2d 1311 (7th Cir. 1975), modified en banc, 545 F.2d 565 (1976), an
opinion authored by Justice Stevens. There the
prisoner-plaintiff returned to his cell and found that some of
his property was missing.
He alleged a deprivation of property prohibited by the Due
Process Clause of the Fourteenth Amendment. The Court examined
the negligent behavior of the guards in failing to close the
cell door. It acknowledged that the plaintiff had a damage
claim arising out of the state officers' misconduct.
Id. at 1319. The court concluded that there could be no
constitutional deprivation of property without due process of
law until the completion of the state action. The state action
was not complete while the state provided an adequate remedy to
redress the plaintiff's property damage. "In this case the fact
that Illinois stands ready to return Plaintiff's property or
its economic equivalent is inconsistent with the conclusion
that it has finally deprived Plaintiff of that property without
due process of law." 517 F.2d at 1320 n. 7.
Justice Stevens had occasion to explain his Bonner decision
in Kimbrough v. O'Neil, 523 F.2d 1057 (7th Cir. 1973), rev'd en
banc, 545 F.2d 1059 (1976). In Kimbrough, the plaintiff's
property was taken while he was incarcerated at a county jail.
The complaint alleged that the defendants had acted
deliberately with an intent to punish the plaintiff. Justice
Stevens, concurring on other grounds, believed that there was
no action taken by the state without due process of law. 523
F.2d at 1066. He reached this conclusion because the
deprivation of property was occasioned by the unauthorized acts
of the guards. He explained his Bonner opinion as holding that
the federal interest in due process was vindicated by an
adequate state procedure to redress the wrong. He was
unconcerned with the intent of the particular actor as long as
no constitutional safeguards other than due process were
alleged. "The mere fact that the plaintiff is the victim of a
tort committed by a state official rather than a private party
does not, in my judgment, provide an adequate basis for
affording him a federal remedy." Id.
The viewpoint of the United States Court of Appeals for the
Seventh Circuit on what constitutes a deprivation of due
process is elucidated by Ellis v. Hamilton, 669 F.2d 510 (7th
Cir. 1982). The Ellis plaintiffs were the natural parents and
adoptive parents of Larry Frazier. Larry, a most unsatisfactory
parent by any definition of the term, had four children who
lived with the plaintiffs for long periods of time. Larry
eventually abandoned the children with the plaintiffs. The
defendant welfare officials ordered the plaintiffs to surrender
the children to them. Defendants placed the children in foster
homes, began proceedings to terminate the rights of Larry
Frazier, and eventually the children were adopted by others
even though plaintiffs attempted to adopt the children.*fn2
669 F.2d at 511-12. For the purpose of his Ellis opinion, Judge
Posner assumed that the plaintiffs, as custodians of the
children, had been deprived of a liberty interest. This
interest was sufficient to support an action under section
1983. Id. at 514. Thus, the court was faced with a
situation where the plaintiffs had been intentionally deprived
of a liberty interest by individuals acting under color of law.
Even under these circumstances, the court held "that there is
no denial of due process if the state provides reasonable
remedies for preventing families from being arbitrarily broken
up by local domestic relations officers such as the defendants
in this case." Id. at 515. Judge Posner then outlined several
remedies available to the plaintiffs under Indiana law. On the
practical side he noted:
If due process were denied every time local
officials blundered, then any plaintiff in state
court who was asserting a right within the
broadly defined categories of liberty or property
and who lost his case because the judge made an
error could attack the judgment indirectly by
suing the judge under 1983. That would be an
intolerable interference with the orderly
operations of state courts. Due process is denied
in such a case only if the state fails to provide
adequate machinery for the correction of the
that occur in legal proceedings — unless the
defendants act with such ruthless speed that the
machinery of correction cannot be brought into play
Id. at 514.
Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d
711 (1977), like Ellis, involved a restraint on the personal
liberties of an individual. Ingraham concerns corporal
punishment of school children, and the timing and extent of the
procedure due. Where the school authorities could be held
liable in a state court for damages inflicted on a recalcitrant
child, a postdeprivation remedy was all due process required
under the Fourteenth Amendment.
Plaintiffs argue that they were denied due process because
an established state procedure or practice denied them
property. In support of this contention, Plaintiffs rely on
Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71
L.Ed.2d 265 (1982). In Logan, the plaintiff filed a charge with
the Illinois Fair Employment Commission alleging that his
employment was unlawfully terminated. The filing of the charge
created a statutory obligation on the part of the commission to
hold a fact-finding conference within 120 days, but the
Commission scheduled the conference for after the statutory
period. The Illinois Supreme Court held that the faulty
scheduling deprived the Commission of jurisdiction. Logan,
supra, at 422-423, 102 S.Ct. at 1150-51. The United States
Supreme Court distinguished its Parratt decision because that
decision dealt with a "tortious loss of . . . property as a
result of some unauthorized act by a state employee . . . not a
result of some established state procedure." Id. at 435, 102
S.Ct. at 1158 (quoting Parratt v. Taylor, 451 U.S. at 541, 101
S.Ct. at 1916). In Logan, the state system or procedure
deprived a person of his claim in a random manner.
While Plaintiffs' argument is not completely without merit,
a consideration of all the cases leads me to disagree with its
conclusion. Logan is consistent with this analysis. The
plaintiff in Logan was denied an opportunity to file a claim
before the Illinois Fair Employment Commission. Logan, supra,
455 U.S. at 435, 102 S.Ct. at 1158. In this way, the state
"terminated potentially meritorious claims in a random manner."
Id. at n. 10. The plaintiff was denied certain remedies and he
could never receive these remedies before other courts in
Illinois' system. The system itself terminated the claims
without ever granting the plaintiff an "opportunity at a
meaningful . . . time and in a meaningful manner for a hearing
appropriate to the nature of the case." Id. at 437, 102 S.Ct.
at 1159. Plaintiffs in this case, unlike Mr. Logan, are not
denied meaningful remedies by the State of Illinois.
Plaintiffs may argue, with some support, that defendants
have intentionally deprived them of property, and that an
intentional deprivation denies them due process. Evans v. City
of Chicago, 689 F.2d 1286 (7th Cir. 1982); Kimbrough, 523 F.2d
at 1061; Tarkowski v. Hoogasian, 532 F. Supp. 791, 795 (N.D.Ill.
1982). The cases, however, are not in harmony, and there are
cases where a postdeprivation remedy was sufficient process for
the government's intentional act. See, eg., Ingraham, 430
U.S. at 651, 97 S.Ct. at 1402; Eldridge, 424 U.S. at 319, 96
S.Ct. at 895; Ellis, 669 F.2d at 510. Further, Justice Stevens,
the author of the Bonner opinion relied on by the Supreme Court
in Parratt, apparently believed a postdeprivation remedy was
sufficient process for an intentional government act.
Kimbrough, 523 F.2d at 1062 (Stevens, J., concurring). This
Court believes the latter cases are better reasoned.
Accordingly, for the reasons previously stated, the Court
denies Plaintiffs' motion for modification of judgment.