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February 7, 1983


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


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


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.


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

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 ...

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