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BEGG v. MOFFITT

United States District Court, Northern District of Illinois, E.D


February 7, 1983

RICHARD R. BEGG, PLAINTIFF,
v.
G. JOE MOFFITT, DIRECTOR OF PUBLIC SAFETY OF THE CITY OF PARK RIDGE, HERMAN SPAHR, CITY MANAGER OF THE CITY OF PARK RIDGE, ILLINOIS, AND THE CITY OF PARK RIDGE, ILLINOIS, DEFENDANTS.

The opinion of the court was delivered by: Prentice H. Marshall, District Judge.

MEMORANDUM OPINION

Since its enactment as § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1976) has played a critical role in protecting citizens against violations of their constitutional rights by persons acting under color of state law.*fn1 The Supreme Court has written that the original version of § 1983

  was enacted for the express purpose of
  "enforc[ing] the Provisions of the Fourteenth
  Amendment." 17 Stat. 13. The predecessor of § 1983
  was thus an important part of the basic alteration
  in our federal system wrought in the Reconstruction
  era through federal legislation and constitutional
  amendment. As a result of the new structure of law
  that emerged in the post-Civil War era — and
  especially of the Fourteenth Amendment, which was
  its centerpiece — the role of the Federal
  Government as a guarantor of basic federal rights
  against state power was clearly established.
  Section 1983 opened the federal courts to private
  citizens, offering a uniquely federal remedy
  against incursions under the claimed authority of
  state law upon rights secured by the Constitution
  and laws of the Nation.

Mitchum v. Foster, 407 U.S. 225, 238-39, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972) (footnotes and citations omitted).

However, § 1983 has come under criticism. In particular, it is blamed for creating a huge increase in the workload of the federal courts,*fn2 and the Supreme Court has recently expressed its determination to limit the scope of the statute, rejecting the argument that "any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983." Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981). In this case, defendants suggest that Parratt counsels against entertaining this action brought against officials of a municipal police department, claiming that they must "have some degree of freedom and autonomy in the administration, regulation and discipline of its employees," Memorandum in Support of Defendants' Motion to Dismiss Plaintiff's Amended Complaint at 19, which would be undermined by permitting plaintiff Richard Begg, an employee of the department, to challenge its disciplinary actions as violative of his constitutional rights. We must decide at what point the sweeping goals of § 1983 must be limited by the considerations expressed in Parratt V. Taylor.*fn3

I

Plaintiff is a police officer employed by the City of Park Ridge, Illinois. At some point in 1981, plaintiff received an unsatisfactory performance rating and was suspended from his job for three days for his failure to issue enough traffic tickets to satisfy the police department's quota. Plaintiff brought suit in the Circuit Court of Cook County, Illinois challenging his suspension. On November 23, 1981 the circuit court entered an order reversing the three day suspension. After receiving relief from the circuit court, plaintiff spoke out publicly against the quota system. Thereafter, plaintiff alleges, he was subjected to various forms of discipline in retaliation for his public comments,*fn4 in violation of the first amendment.*fn5 Plaintiff also alleges that he has been denied the opportunity to engage in part-time off duty employment and was denied pay increases, in violation of the fourteenth amendment.*fn6 In this lawsuit, he seeks damages and declaratory and injunctive relief. The city manager of Park Ridge and its director of public safety are named as defendants, as is the city itself.

We must first determine whether the amended complaint states a violation of the first and fourteenth amendments. If it does not, then we need not reach the question whether plaintiff may assert a claim under § 1983 in light of Parratt.

II

Plaintiff claims that defendants' refusal to grant him a pay increase or the opportunity to engage in part-time employment violated the due process clause of the fourteenth amendment. The starting point for analysis of this claim is whether plaintiff's interest in his pay increase and part-time employment amounts to a "property" interest since, by its terms, the due process clause only applies to deprivations of "property."*fn7 Jago v. Van Curen, 454 U.S. 14, 17, 102 S.Ct. 31, 34, 70 L.Ed.2d 13 (1981) (per curiam); Greenholtz v. Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976); Board of Regents v. Roth, 408 U.S. 564, 569-72, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1970).

The Supreme Court has written,

  To have a property interest in a benefit, a
  person must clearly have more than an abstract
  need or desire for it. He must have more than a
  unilateral expectation of it. He must, instead,
  have a legitimate claim of entitlement to it.

    Property rights, of course, are not created by
  the Constitution. Rather they are created and
  their dimensions are defined by existing rules or
  understandings that stem from an independent
  source such as state law — rules or understandings
  that secure certain benefits and that support
  claims of entitlements to such benefits.

  Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).*fn8 The standard the Court has developed is one of "cause;" if the plaintiff can assert that he has a "legitimate claim of entitlement" not to lose a valuable governmental benefit except for cause, then the plaintiff has asserted a "property" interest.*fn9

The Court has also explored how it is that a claim of entitlement not to lose a benefit except for cause can be considered "legitimate."

  "[P]roperty" interests subject to procedural due
  process protection are not limited by a few
  rigid, technical forms. Rather, "property"
  denotes a broad range of interests that are
  secured by "existing rules or understandings." A
  person's interest in a benefit is a "property"
  interest for due process purposes if there are
  such rules or mutually explicit understandings
  that support his claim of entitlement to the
  benefit and that he may invoke at a hearing.

Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Thus, a claim may amount to "property" whenever there are "mutually explicit understandings," even if they are not in the form of technical rules of law.*fn10

Applying these principles to the case at hand, and bearing in mind that defendants' motion to dismiss the complaint may not be granted unless it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief,*fn11 we conclude that plaintiff has adequately alleged a constitutionally protected property interest. The complaint alleges that the Park Ridge police department had a long-standing custom and practice of permitting police officers to seek outside employment.*fn12 The letter plaintiff received denying his request for off duty employment cited as a reason plaintiff's allegedly excessive use of sick leave, implying that the department would not have felt free to deny the request without a reason.*fn13 Plaintiff's entitlement to pay increases has an even firmer base. The contract between plaintiff's union and the city provides for pay increases based on length of service. It states, "Longevity will be paid according to the following schedule. . . ."*fn14 The contract goes on to state,*fn15

  Longevity pay shall be effective on the
  anniversary date of employment according

  to the continuous length of service as specified,
  subject to satisfactory merit ratings. It should
  be pointed out that longevity pay is not
  necessarily to be considered automatic upon
  completion of the necessary years.

Defendants rely on the last quoted sentence, arguing that it means plaintiff had no legitimate expectation of a pay increase. However, the mandatory language of the contract, stating the increases "will be paid" and "shall be effective," argues against defendants' position. Moreover, the fact that the contract states that the increases are "subject to satisfactory merit ratings" implies that these ratings constitute "cause" for denying an increase. Defendants' construction of the last sentence also strikes us as odd in that we think it unlikely that plaintiff's union would have entered a contract containing a wholly illusory promise of longevity inereases.*fn16 It is not clear beyond doubt that plaintiff will be unable to prove a mutually explicit understanding between his employer and himself that he would be able to obtain outside employment and longevity pay increases except for cause.*fn17 Accordingly, plaintiff has made out a claim that his interest in obtaining outside employment and longevity pay increases amounts to constitutionally protected "property."*fn18

Once it is determined that plaintiff was deprived of a property interest, the analysis shifts to the question whether the deprivation was without due process of law. In order to answer this question, we must determine what process was due plaintiff. To decide what process is due, three factors must be weighed.

  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 safeguards; and
  finally, the Government's interest, including the
  function involved and the fiscal and
  administrative burdens that the addition of
  substitute procedural safeguards would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).*fn19

Here, the plaintiff was given no process at all prior to the loss of his scheduled longevity increase and denial of the opportunity for off duty employment. Plaintiff was not given any opportunity for hearing; he was simply informed of the loss of these benefits.*fn20 We must determine whether plaintiff was constitutionally entitled to some predeprivation process.

The first Eldridge factor involves the plaintiff's interests. Here the interest asserted is in uninterrupted enjoyment of the disputed benefit pending a hearing.*fn21 Plaintiff was without the additional income generated by the longevity increase and off duty employment. While his job was not at stake, the cushion created by this additional income may have been critical. Plaintiff's interest in a predeprivation hearing is far from insubstantial.*fn22

Provision of a hearing also would have had significant benefits in terms of reducing the risk of error. Plaintiff lost his "property" because of low merit ratings and alleged abuse of sick leave. These are largely subjective determinations, and with such determinations always comes a significant risk of error. Compared to this, the police department's interest in denying plaintiff any predeprivation process is insubstantial. Since plaintiff received no pre-deprivation process at all, he may prevail if, and we assume that, the Constitution requires no more than the most informal of hearings: notice by letter of the charges against him and an opportunity to respond by letter. Such a "hearing" would require minimal effort by defendants: they did in fact send a letter, to which they need have added only one sentence, advising plaintiff of the opportunity to respond. Then, defendants need only have taken the few minutes necessary to review plaintiff's response. Defendants' interest in dispensing with such minimal procedures is, at least on the current record, slight.

In sum, defendants have advanced no justification for denying plaintiff any predeprivation process at all. Yet the Constitution requires a compelling justification before predeprivation process is dispensed with. Absent a necessity for quick action or the impracticability of providing any pre-deprivation process at all, the Constitution requires pre-deprivation notice and opportunity for hearing.*fn23 This principle is uniformly adhered to in the cases.*fn24 Even where a formal predeprivation evidentiary hearing is not required, the Court has always required, at a minimum, that the person affected by governmental action be given some sort of informal opportunity to present his or her side of the story.*fn25

The rationale for this principle is clear.

    The requirement of notice and an opportunity to
  be heard raises no impenetrable barrier to the
  taking of a person's possessions. But the fair
  process of decision making it guarantees works,
  by itself, to protect against arbitrary
  deprivation of property. For when a person has
  the opportunity to speak up in his own defense,
  and when the State must listen to what he has to
  say, substantively unfair and simply mistaken
  deprivations of property interests can be
  prevented. It has long been recognized that
  "fairness can rarely be obtained through a
  one-sided determination of facts decisive of
  rights . . . [And n]o better instrument has been
  devised for arriving at truth than to give a
  person in jeopardy of serious loss notice of the
  case against him and opportunity to meet it."

    If the right to notice and a hearing is to
  serve its full purpose, then, it must be granted
  at a time when the deprivation can be prevented.
  At a later hearing, an individual's possessions
  can be returned to him if they were unfairly or
  mistakenly taken in the first place. Damages can
  even be awarded to him for the wrongful
  deprivation. But no later hearing can undo the
  fact that an arbitrary taking that was subject to
  the right of procedural due process has already
  occurred. "This Court has not . . . embraced the
  general proposition that a wrong may be done if
  it can be undone."

Fuentes v. Shevin, 407 U.S. 67, 81-82, 92 S.Ct. 1983, 1994-95, 32 L.Ed.2d 556 (1972) (citations omitted) (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-72, 71 S.Ct. 624, 647-49, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring) and Stanley v. Illinois, 405 U.S. 645, 647, 92 S.Ct. 1208, 1210, 31 L.Ed.2d 551 (1972)).*fn26

Here, there is no showing of a necessity for quick action or the impracticability of providing any predeprivation process. Defendants did send a letter, which easily could have, but did not, invite a response prior to their deprivation of plaintiff's property. We have found no case which permits a state employer to provide no predeprivation process at all when depriving an employee of a valuable benefit.*fn27 By providing no predeprivation process whatsoever, defendants failed to adhere to the commands of the fourteenth amendment. The complaint states a claim under the due process clause.

III

It has long been clear that the due process clause of the fourteenth amendment prohibits the state from denying a person a valuable governmental benefit in retaliation for that person's exercise of his first amendment right of free speech. This is the case even where the plaintiff has no legitimate claim of entitlement to the benefit.

    For at least a quarter-century, this Court has
  made it clear that even though a person has no
  "right" to a valuable governmental benefit and
  even though the government may deny him the
  benefit for any number of reasons, there are some
  reasons upon which the government may not rely.
  It may not deny a benefit to a person on a basis
  that infringes his constitutionally protected
  interests — especially his interest in freedom of
  speech. For if the government could deny a benefit
  to a person because of his constitutionally
  protected speech or associations, his exercise of
  those freedoms would be penalized and inhibited.
  This could allow the government to "produce a
  result which [it] could not command directly." Such
  interference with constitutional rights is
  impermissible.

Perry v. Sindermann,
408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)).*fn28

The parties agree that plaintiff could not have been disciplined consistently with due process if the discipline was in retaliation for the exercise of his first amendment rights. Defendants concede for present purposes that plaintiff was disciplined as a result of his comments about defendants' ticket quota system. However, defendants argue that plaintiff's comments were unprotected by the first amendment.

The parties agree that the test for whether plaintiff's comments were protected by the first amendment is whether they were likely to substantially interfere with the proper performance of his duties.*fn29 Defendants contend that plaintiff's criticisms of the department would have eroded its morale and discipline. However, defendants have not supported their assertions with affidavits or other evidentiary materials. We doubt our ability to resolve this question on the current record. However, we need not go even so far as to hold that defendants have not adequately documented their claim, since we find that the complaint alleges affirmative and thus far uncontested facts which demonstrate that plaintiff's comments were protected by the first amendment.

The complaint alleges that plaintiff's comments only came after he had prevailed in circuit court, and that they related to the court's ruling. The first amendment protects plaintiff's right to seek judicial redress of his grievances. See Bates v. State Bar, 433 U.S. 350, 376 n. 32, 97 S.Ct. 2691, 2705 n. 32, 53 L.Ed.2d 810 (1977).*fn30 It also protects accurate public comment about proceedings in open court, absent a compelling state interest in prohibiting such comment.*fn31 Here, there is no contention that plaintiff's comments were in any way inaccurate. The only interest put forward in justification of defendants' actions is their interest in ensuring the department could properly perform its duties. However, the only comments of plaintiff at issue relate to the traffic ticket quota, and the circuit court had just held the quota invalid. Under the circumstances, the department can hardly assert a compelling interest in preventing officers from speaking out against the quota in order to ensure the department functions smoothly; the court had stated that the quota was not proper and the department's interest in enforcing it was not legitimate as long as the court's judgment stood (the judgment was reversed on appeal). Defendants have not made out a substantial interest in preventing plaintiff from commenting on the quota; his comments were protected by the first amendment and could not constitutionally be the basis for discipline. Plaintiff has stated a claim under the first and fourteenth amendments.*fn32

IV

Having concluded that plaintiff's complaint properly states a claim for deprivation of federal rights, the question becomes whether that deprivation is actionable under § 1983. Thus, we turn to defendants' argument that this suit is barred by the principles enunciated in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

Taylor was an inmate at the Nebraska Penal and Correctional Complex. He mail ordered a hobby kit valued at $23.50, paying for it with funds in his prison account. The kit was received by the prison, but lost at some point before it could be given to Taylor. Taylor filed suit under § 1983, contending that he had been negligently deprived of property without due process of law. The Supreme Court reversed the judgment in favor of Taylor.

The Court began its analysis by noting that nothing in § 1983's text or its judicial construction precluded a claim based on negligence, holding that

  § 1983 affords a "civil remedy" for deprivations of
  federally protected rights caused by persons acting
  under color of state law without any express
  requirement of a particular state of mind.
  Accordingly, in any § 1983 action the initial
  inquiry must focus on whether the two essential
  elements to a § 1983 action are present: (1)
  whether the conduct complained of was committed by
  a person acting under color of state law; and (2)
  whether this conduct deprived a person of rights,
  privileges, or immunities secured by the
  Constitution or laws of the United States.

451 U.S. at 535, 101 S.Ct. at 1912.
*fn33

Taylor's claim was that he was deprived of property without due process. The Court noted that Taylor's case satisfied the first three elements of a § 1983 due process claim: the prison officials acted under color of state law in receiving and losing the kit, the kit was "property,"*fn34 and the alleged loss, although negligent, amounted to a deprivation.*fn35 See 451 U.S. at 536-37, 101 S.Ct. at 1913. However, Taylor's claim foundered on the fourth requirement — the deprivation was not "without due process of law."

The Court wrote that in most cases where it had held that due process required a predeprivation hearing, "the deprivation of property was pursuant to some established procedure and `process' could be offered before any actual deprivation took place." 451 U.S. at 537, 101 S.Ct. at 1913. However, under certain circumstances, the Court had recognized that a postdeprivation hearing could provide due process.

  [We] recognize that either the necessity of quick
  action by the State or the impracticality of
  providing any meaningful predeprivation process
  can, when coupled with the availability of some
  meaningful means by which to assess the propriety
  of the State's action at some time after the
  initial taking, satisfy the requirements of
  procedural due process.

Id. at 539, 101 S.Ct. at 1914 (footnote omitted).*fn36

The Court concluded that Taylor's claim fell into this category of cases where due process required only a post-deprivation remedy. Since the deprivation was not the result "of some established state procedure," but rather "occurred as a result of unauthorized failure of agents of the State to follow established state procedure," 451 U.S. at 543, it would not have been possible for the state to have given Taylor a predeprivation hearing. Instead, the state offered Taylor a postdeprivation hearing in the form of the right to bring a tort action for the wrongful deprivation of his property in the Nebraska state courts. Id. at 543-44, 101 S.Ct. at 1916-17. This postdeprivation hearing was sufficient to provide Taylor due process of law.*fn37

Justice Blackmun wrote a concurring opinion stating that he did not read the majority's opinion as applicable to the deprivation of life or liberty, or to governmental actions that are substantively, rather than procedurally, unconstitutional. "[T]here are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process." 451 U.S. at 545, 101 S.Ct. at 1917. He also stated that a state postdeprivation remedy should not be considered to satisfy due process when it would have been possible for the state to have provided a predeprivation hearing. Id. at 546, 1918.3*fn38

The implications of Parratt were explored by the Court in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Logan had charged his employer with unlawful discrimination under Illinois state law. The Illinois Fair Employment Practices Commission negligently failed to convene a factfinding conference on the charge within 120 days as required by state law. The Illinois Supreme Court held that this deprived the commission of jurisdiction over Logan's charge, and ordered it dismissed.

The Supreme Court reversed. It held that Logan's state law cause of action against his employer was "property" within the meaning of the due process clause, and that he had been deprived of it. See 455 U.S. at 428-33, 102 S.Ct. at 1153-56. The Court then held that the deprivation was without due process of law since Logan never got a hearing on the merits of his claim. Rather, he was deprived of his claim "in a random manner," Id. at 433-35, 102 S.Ct. at 1156-57, and that this deprivation was unconstitutional whether or not it was malicious or merely negligent, id. at 435-36, 102 S.Ct. at 1157-58.

The company argued, however, that Logan could receive due process in the form of a tort action against the commission for negligently depriving him of his property. The Court replied,

    This argument misses Parratt's point. In Parratt,
  the Court emphasized that it was dealing with "a
  tortious loss of . . . property as a result of a
  random and unauthorized act by a state
  employee . . . not a result of some established
  state procedure." 451 U.S. at 541 [101 S.Ct. at
  1915]. Here, in contrast, it is the state system
  itself that destroys a complainant's property
  interest, by operation of law, whenever the
  Commission fails to convene a timely conference —
  whether the Commission's action is taken through
  negligence, maliciousness, or otherwise. Parratt
  was not designed to reach such a situation. See
  id., at 545 [101 S.Ct. at 1917] [(Blackmun, J.,
  concurring)]. Unlike the complainant in Parratt,
  Logan is challenging not the Commission's error,
  but the "established state procedure" that destroys
  his entitlement without according him proper
  procedural safeguards.

455 U.S. at 435-36, 102 S.Ct. at 1158.

Parratt suggests that if plaintiff has post-deprivation state remedies available, due process may be satisfied. In the case at bar, plaintiff presumably could seek redress against defendants in a state court action brought under the common law of Illinois.*fn39 Therefore, Parratt raises the question of whether plaintiff has truly been denied due process of law given that he can seek to be made whole in the courts of Illinois. This potential implication of Parratt has generated great controversy among both courts *fn40 and commentators.*fn41 In particular, some courts and commentators have concluded, based on Logan and Parratt, that where a state postdeprivation remedy exists, § 1983 is no longer available unless the plaintiff challenges an "established state procedure" rather than a "random and unauthorized act."*fn42 If that is the case, then Parratt and Logan preclude the instant suit, since the challenge made here does not involve an established state procedure, but rather a single act that, if wrongful, can presumably be redressed in the courts of Illinois. It is to this question that we now turn.

V

The starting point for any analysis of the availability of § 1983 relief where a state postdeprivation remedy exists must be Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), overruled in part on other grounds, Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In that case, the complaint alleged that 13 Chicago police officers broke into the plaintiffs' home in the early morning, ransacked it, arrested Monroe and detained him at a stationhouse on "open" charges for ten hours before releasing him. All this was done without an arrest or search warrant, allegedly in violation of the fourth amendment's prohibition on unreasonable search and seizure.

The Court held that any deprivation of a right secured by the fourteenth amendment is actionable under § 1983. 365 U.S. at 171, 81 S.Ct. at 475-76. Since fourth amendment rights are secured against the states by operation of the fourteenth amendment, the Court held that the rights plaintiffs asserted were cognizable under § 1983. Id. The Court went on to observe that § 1983 was originally enacted because Congress believed the states were unwilling or unable to protect rights secured by the fourteenth amendment, so that a federal remedy was needed. Id. at 174-80, 81 S.Ct. at 477-80. This led the Court to conclude that the act permitted plaintiffs to proceed in federal court even if a state remedy was available.

    Although the legislation was enacted because of
  the conditions that existed in the South at that
  time, it is cast in general language and is as
  applicable to Illinois as it is to the States
  whose names were mentioned over and again in the
  debates. 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 federal court.

Id. at 183, 81 S.Ct. at 482 (emphasis supplied).*fn43

Finally, the Court held that the police officers were acting under color of state law within the meaning of the statute even though their conduct had not been authorized by the state, stating that § 1983 was intended to reach any act under color of state law, even if unauthorized under state law, since the statute reaches abuse of authority as well as authorized but unconstitutional acts. See 365 U.S. at 183-87, 81 S.Ct. at 481-84.

Monroe established a cardinal principle of the jurisprudence of § 1983: persons who have been deprived of constitutional rights may seek federal relief even if a remedy could also be obtained in the state courts. This principle has been consistently followed in post-Monroe cases.*fn44 Any interpretation of Parratt, therefore, must also accommodate the holding of Monroe, which remains the law of the land.

VI

For at least two reasons, it seems unlikely that Parratt was intended to preclude any § 1983 action other than a challenge to an established state procedure. First, there is no evidence in the legislative history of § 1983 that Congress intended to provide federal relief only to those injured by established state procedures, yet leave victims of persons who, acting under color of state law, abused their authority, to the state courts.

    Since the suggested narrow construction of
  § 1983 presupposes that state measures were
  adequate to remedy unauthorized deprivations of
  constitutional rights and since the identical state
  relief could be obtained for state-authorized acts
  with the aid of Supreme Court review, this narrow
  construction would reduce the statute to having
  merely a jurisdictional function, shifting the load
  of federal supervision from the Supreme Court
  [which could review state post-deprivation actions
  for constitutional error without the aid of §
  1983] to the lower courts and providing a federal
  tribunal for fact findings in cases involving
  authorized action. Such a function could be
  justified on various grounds. It could, for
  example, be argued that the state courts would be
  less willing to find a constitutional violation in
  cases involving "authorized action" and that
  therefore the victim of such action would bear a

  greater burden in that he would more likely have
  to carry his case to this Court, and once here,
  might be bound by unfavorable state court
  findings. But the legislative debates do not
  disclose congressional concern about the burdens
  of litigation placed upon the victims of
  "authorized" constitutional violations contrasted
  to the victims of unauthorized violations.
  Neither did Congress indicate an interest in
  relieving the burden placed on this Court in
  reviewing such cases.

    The statute becomes more than a jurisdictional
  provision only if one attributes to the enacting
  legislature the view that a deprivation of a
  [federal] constitutional right is significantly
  different from and more serious than a violation
  of a state right and therefore deserves a
  different remedy even though the same act may
  constitute both a state tort and the deprivation
  of a [federal] constitutional right. This view,
  by no means unrealistic as a common-sense matter,
  is, I believe, more consistent with the flavor of
  the legislative history than is a view that the
  primary purpose of the statute was to grant a
  lower court forum for fact findings. For example,
  the tone is surely one of overflowing protection
  of constitutional rights, and there is not a hint
  of concern about the administrative burden on the
  Supreme Court, when Senator Frelinghuysen says:

      "As to the civil remedies, for a violation of
    these privileges, we know that when the courts
    of a State violate the provisions of the
    Constitution or the law of the United States
    there is now relief afforded by a review in the
    Federal courts. And since the 14th Amendment
    forbids any state from making or enforcing any
    law abridging these privileges and immunities,
    as you cannot reach the Legislatures, the
    injured party should have an original action in
    our Federal courts, so that by injunction or by
    the recovery of damages he could have relief
    against the party who under color of such law
    is guilty of infringing his rights. As to the
    civil remedy no one, I think, can object."

Monroe, 365 U.S. at 195-97, 81 S.Ct. at 488-89 (Harlan, J., concurring).*fn45 See id. at 178-80, 81 S.Ct. at 479-80 (citing similar comments in the legislative history); id. at 197-98, 81 S.Ct. at 489 (Harlan, J., concurring) (same).*fn46

It is, in short, unlikely that the same Congress that, when enacting § 1983 to enforce the fourteenth amendment, stated its view that all victims of constitutional violations should have access to a federal forum in the first instance would have thought § 1983 permitted persons to obtain federal relief only when the constitutional violation was authorized by the state.

Second, the suggested interpretation of Parratt would create an irreconcilable tension between Parratt and a long line of cases, including at least one post-Parratt decision of the Supreme Court, which have held that even where a state official's conduct is not authorized by state law, abuse of his authority which results in violations of constitutional rights is actionable under § 1983.*fn47 Monroe itself was such a case; the conduct alleged there was fully actionable under state law. Parratt did not purport to overrule Monroe or its multitudinous progeny, yet the suggested interpretation of it would have that effect. We doubt Parratt was intended to be such a dramatic departure from precedent and until Monroe is overruled we think we are obliged to follow it.

What then is the significance of the distinction drawn in Parratt and Logan between "random and unauthorized" conduct and conduct pursuant to "an established state procedure"? To answer this question, we think it essential to examine the context in which the Parratt Court adverted to the random and unauthorized nature of the conduct at issue there. The Court observed that when conduct is random and unauthorized, it is impracticable to provide any type of notice and hearing prior to the conduct.

    The justifications which we have found
  sufficient to uphold taking of property without
  any predeprivation process are applicable to a
  situation such as the present one involving a
  tortious loss of a prisoner's property as a
  result of a random and unauthorized act by a
  state employee. In such a case, the loss is not a
  result of some established state procedure and
  the State cannot predict precisely when the loss
  will occur. It is difficult to conceive of how
  the State could provide a meaningful hearing
  before the deprivation takes place. The loss of
  property, although attributable to the State as
  action under "color of law," is in almost all
  cases beyond the control of the State.
  Indeed, in most cases it is not only impracticable,
  but impossible to provide a meaningful hearing
  before the deprivation.

Parratt, 451 U.S. at 541, 101 S.Ct. at 1915 (emphasis supplied). The Court concluded that Parratt was a case with no "contention that it was practicable for the state to provide a predeprivation hearing." Id. at 543, 101 S.Ct. at 1916. Since the only claim Taylor had forwarded was the right to a predeprivation hearing,*fn48 it was inevitable that the Court would conclude that since that state simply could not have provided a predeprivation hearing, due process, not requiring the impossible, would be satisfied by a postdeprivation hearing in the Nebraska state courts.

That a due process claim can still be made based on a random and unauthorized act is demonstrated by Logan. There, the negligent failure to timely convene a factfinding conference was negligent, random and unauthorized, and Logan could have sought relief against the commission in state court for its failure to comply with state law. Nevertheless, the Court held that Logan had been denied due process since Illinois had "destroy[ed] his entitlement without according him proper procedural safeguards." 455 U.S. at 436, 102 S.Ct. at 1158. Logan squarely holds that, where it is practicable for the state to provide a predeprivation hearing, due process requires it to do so and the availability of a postdeprivation remedy does not provide due process. "[T]he Court's decisions suggest that, absent `the necessity of quick action by the State or the impracticality of providing any predeprivation process,' a postdeprivation hearing here would be constitutionally inadequate." Logan, 455 U.S. at 436, 102 S.Ct. at 1158 (quoting Parratt, 451 U.S. at 539, 101 S.Ct. at 1914). Logan confines Parratt to the situation where state postdeprivation remedies supply due process because it was impracticable for the state to have offered any predeprivation process.*fn49 This result is consistent with general principles of due process,*fn50 and provides an interpretation of Parratt that creates no conflict with prior precedents.*fn51

The preceding analysis suggests two limitations on Parratt.*fn52 First, where it is practicable, and hence constitutionally required that the state provide a predeprivation hearing, the availability of postdeprivation remedies will not be a defense to a § 1983 action. In such a case, the state has failed to provide due process precisely because the only remedy available has come after the deprivation has occurred. Since the state has failed to provide a constitutionally required predeprivation hearing, the constitutional violation is complete at the time the deprivation occurs. By failing to provide the requisite predeprivation hearing, the state official has deprived the plaintiff of a constitutionally protected interest without due process of law and the four elements of a § 1983 due process action described in Parratt are complete.*fn53 This limitation is commonsensical: where due process requires a predeprivation hearing, the availability of a postdeprivation hearing is no defense. Thus, we conclude that Parratt was not intended to overrule the line of cases holding that failure to provide a constitutionally required predeprivation hearing is actionable under § 1983.*fn54

Second, Parratt does not bar a § 1983 action based on the assertion of a substantive constitutional right, rather than the right to have a deprivation accompanied by certain procedural protections. This follows from Justice Blackmun's observation in Parratt, 451 U.S. at 545, 101 S.Ct. at 1917 (Blackmun, J., concurring), subsequently adopted by the Court in Logan, 455 U.S. at 436, 102 S.Ct. at 1158,*fn55 that some governmental conduct violates due process no matter what types of procedural protections accompany the conduct. In such cases, those acting under color of state law violate a substantive constitutional right entirely separate from the right to procedural due process,*fn56 and those injured may seek redress under the due process clause.*fn57 In cases where the right asserted does not depend on the procedural protections accorded the plaintiff, the availability of a postdeprivation hearing is no defense, since the constitutional violation exists independent of the procedures for redressing the deprivation that are available. By violating such substantive rights, the state actors deprive persons of constitutional rights irrespective of the procedures employed, and the constitutional violation is complete at the time of the deprivation. It is for this reason that courts have uniformly held, often with little analysis, that Parratt does not bar substantive § 1983 claims.*fn58

The correctness of this analysis is confirmed by Logan, for it involved a substantive claim. The Court stated that Illinois' rule of law depriving Logan of his property in an arbitrary fashion was substantively unconstitutional because it created an unjustifiable risk of error. "A system or procedure that deprives persons of their claims in a random manner, as is apparently true [of the Illinois rule regarding factfinding conferences], necessarily presents an unjustifiably high risk that meritorious claims will be terminated." 455 U.S. at 434-35, 102 S.Ct. at 1157. The evil condemned in Logan lay not in Illinois' failure to provide Logan with notice and hearing before ordering his claim dismissed; he did receive notice and a hearing in the form of his appeal to the Illinois Supreme Court. Rather, the evil lay in the fact that the reason Illinois gave him for terminating the claim was impermissible, given the unjustifiable risk of error that the Illinois rule created.*fn59

We conclude that Parratt does not bar a § 1983 suit despite the availability of state postdeprivation remedies where either the Constitution requires a predeprivation hearing, or where the deprivation is unconstitutional irrespective of the procedural protections accompanying it which are offered by the state.*fn60 In both situations, the

plaintiff has been denied something he or she is constitutionally entitled to — a predeprivation hearing or the right to be free from some form of substantive governmental misconduct. As a result, the four elements of a § 1983 due process claim are present. Someone (1) acting under color of state law has (2) deprived the plaintiff of (3) a constitutionally protected interest (4) without due process of law. Once that happens, § 1983 is available, whether or not there are also postdeprivation state remedies.

VII

It remains only to apply the analysis we have developed to the facts of this case.

Plaintiff's claim that he was deprived of property without due process of law survives Parratt. As we held in Part II, supra, plaintiff has alleged a constitutionally protected property interest, and on the present record we cannot say that it would have been impractical for defendants to accord him any predeprivation process at all. Since plaintiff has stated a claim of constitutional entitlement to a predeprivation hearing, the availability of a postdeprivation state law remedy is no defense.

Plaintiff's retaliation claim also survives Parratt. Plaintiff has a substantive right not to be punished for exercising his first amendment rights. If defendants did indeed punish him for his protected speech, then the punishment is constitutionally illegitimate no matter what sorts of procedural protections accompany it, and the availability of a postdeprivation state law remedy is no defense. While the Constitution does secure a large measure of "autonomy" for defendants in making employment decisions, that autonomy does not extend to punishing conduct protected by the Constitution. Any such punishment is in itself fundamentally unfair and a violation of the due process clause of the fourteenth amendment.

Defendants' motion to dismiss the complaint is denied. The court will entertain an application for certification of the questions decided herein under 28 U.S.C. § 1292(b) (1976) if the defendants so desire. For the present, the discovery/trial schedule heretofore established will stand.


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