Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 7037 -- James B. Moran, Judge.
Before CUMMINGS, Chief Judge, WOOD and ESCHBACH, Circuit Judges.
CUMMINGS, Chief Judge. Plaintiff Edward F. Greene, former employee of the Office of the Clerk of the Circuit Court of Cook County, Illinois, filed this civil rights action against that court, its clerk Morgan M. Finley, and its Executive Director of Operations, John E. Goggin, pursuant to 42 U.S.C. § 1983. The district court granted defendants' motion to dismiss for failure to state a claim upon which relief could be granted and denied plaintiff's motion for reconsideration. On appeal plaintiff claims that he was discharged from his employment without due process of law in violation of the Fifth Amendment of the Constitution. For the reasons set forth below, we affirm.
In determining the propriety of the grant of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, all the allegations in the complaint must be taken as true. Jenkins v. McKeithen, 395 U.S. 411, 23 L. Ed. 2d 404, 89 S. Ct. 1843 ; National Van Lines v. United States, 326 F.2d 362 (7th Cir. 1964).
Plaintiff Edward F. Greene was convicted under Count III of an August 15, 1980, indictment for conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951. The Hobbs Act provides, inter alia, that:
(a) whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article of commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years or both.
Greene invoked his Fifth Amendment privilege against self-incrimination at his bench trial before District Judge Bernard Decker. The court acquitted the plaintiff on the first two counts involving a direct violation of the Act and aiding and abetting the direct violation. The court entered its Memorandum Opinion and Order on January 15, 1981. For a detailed discussion of the facts of the case, see United States v. Mattson, 671 F.2d 1020 (7th Cir. 1982).
On appeal this Court reversed Greene's conviction solely on the ground that the evidence failed to establish the necessary nexus between extortion and interstate commerce required for federal jurisdiction under the Hobbs Act. Id. The court consequently did not reach Greene's arguments that his wrongdoing did not constitute conspiracy to commit "extortion" under the Hobbs Act. Greene was suspended from his position with the Office of the Clerk of the Circuit Court of Cook County, Illinois, on August 15, 1980, "pending the outcome of the indictment * * *" (Exhibit A of R. Item 1). Shortly after the reversal of his conviction Greene sought to return to his job but was told that his job and title had been given to someone else and that therefore he could not resume his job or duties (Br.1). No specific reasons were given for his dismissal nor was a pre-termination or post-termination hearing held.
On November 16, 1982, Greene filed this lawsuit under 42 U.S.C. § 1983 alleging deprivation of procedural and substantive due process rights arising from property and liberty entitlements. he requested relief in the form of damages and reinstatement to his employment with backpay. (Complaint, PP14, 18 of R. Item 1.)
The district court in its October 5, 1983, Memorandum Opinion and Order dismissed plaintiff's complaint on the basis that Greene's criminal trial provided him with all the due process safeguards and opportunity to be heard to which he was entitled. The defendants, in the lower court's view, were completely justified in "relying upon the results" of the trial court proceedings which convicted Greene and in refusing him a post-termination hearing because his conduct established during the criminal proceedings provided "compelling reasons" for his suspension and discharge. Judge Moran noted that the appellate reversal was solely based on jurisdictional grounds and that the virtually undisputed facts of the case "disclose that Greene was directly involved in extortion" (p.2 of the lower court's opinion).
Plaintiff's action falls into a familiar category of cases that involve an alleged unconstitutional denial of due process flowing from a loss of government employment or a government benefit. The initial inquiry in such cases is ordinarily whether the plaintiff's interest "rises to the level of a constitutionally protected "liberty" or "property" interest." Larry v. Lawler, 605 F.2d 954, 957 (7th Cir. 1978). The district court, however, only briefly and tangentially considered the constitutional status of plaintiff's property and liberty interests. Consequently, it would be inappropriate for us to review this issue on appeal in that the ...