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April 29, 1985


The opinion of the court was delivered by: Getzendanner, District Judge:


This action under 42 U.S.C. § 1983 for deprivation of civil rights is currently before the court on the motion of defendants Steven L. Weidenbach and Robert B. Benstein to dismiss for failure to state a claim. Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the motion is granted.

For purposes of the present motion, the court accepts the well-pleaded allegations of plaintiff's complaint as true. Plaintiff Kenneth LeCuyer is an Illinois citizen. Defendants Steven L. Weidenbach and Robert B. Benstein are conservation officers employed by the State of Illinois who were at all times pertinent to the events underlying plaintiff's complaint acting within the scope of their duties.

On October 4, 1982, at approximately 6:45 p.m., plaintiff was operating a Kawasaki motorcycle in Silver Springs State Park in Kendall County, Illinois. As he approached the Fox Road exit, defendant Benstein intentionally and without justification stopped his vehicle in front of the exit so as to block plaintiff's egress out of the park. Nonetheless, plaintiff turned onto Fox Road and proceeded east in the eastbound lane. Defendant Weidenbach then, intentionally and without justification, drove his vehicle in front of plaintiff so as to cause a collision and inflict personal injury on the plaintiff. At no time during the course of these events did either defendant use any official lights or signals to indicate that they were attempting to stop plaintiff. Plaintiff was subsequently found guilty, after a jury trial, of reckless driving for going eastward in the westbound lane of Fox Road.

Plaintiff's complaint states that the above acts of defendants violated his first, fourth, and fourteenth amendment rights. Plaintiff has alleged no facts to suggest that defendants abridged his freedom of expression or subjected him to an unlawful search and seizure. Perhaps in recognition of this deficiency. plaintiff's brief ignores these potential claims, and argues only that the defendants deprived him of liberty without due process of law by intentionally blocking his path and causing him personal injury. Accordingly, the court confines its discussion to this latter allegation.

The defendants' principal argument for dismissal is that plaintiff has alleged no more than a common law tort for which state law provides constitutionally adequate post-deprivation remedies, and that no due process violation can therefore be shown. Defendants rely on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in which a state prisoner alleged that the negligence of state officials in losing a hobby kit he had ordered through the mails had deprived him of property without due process of law. The Supreme Court reversed a grant of summary judgment in the prisoner's favor, and held that the due process clause of the fourteenth amendment is not violated when a state official negligently deprives an individual of property, provided that the state makes available a meaningful postdeprivation remedy.

The Court in Parratt reasoned that where a loss of property is occasioned by the random and unauthorized act of a state employee, rather than through an established state procedure, the state cannot predict in advance when the loss will occur. 451 U.S. at 541, 101 S.Ct. at 1916. Since a prior hearing is either impossible or impracticable under such circumstances, the Court concluded that postdeprivation remedies provide all the process that is due.

The decision in Parratt generated conflicting decisions and scholarly controversy over its applicability to intentional acts and to deprivations of liberty. Although the Seventh Circuit has applied Parratt to some state-inflicted liberty deprivations, State Bank of St. Charles v. Camic, 712 F.2d 1140, 1147 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983); Wolf-Lillie v. Sonquist, 699 F.2d 864, 871 (7th Cir. 1983); Ellis v. Hamilton, 669 F.2d 510, 515 (7th Cir.), cert. denied, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982), it has also suggested in dicta that postdeprivation process may not be constitutionally adequate to remedy cases involving intentional misconduct of state officials. Jackson v. City of Joliet, 715 F.2d 1200, 1202 (7th Cir. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984); State Bank of St. Charles, 712 F.2d at 1147-48. Plaintiff argues that Parratt has no applicability to either intentional acts or liberty deprivations, and that intentional encroachments on liberty by state officers are constitutionally impermissible no matter what procedural protections the state provides.

The court cannot accept either of these arguments. Plaintiff's contention that Parratt has no applicability to intentional acts, while arguably supported by dicta in this circuit, was squarely rejected by the Supreme Court last year in Hudson v. Palmer, ___ U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). The reasoning of the court is instructive:

  While Parratt is necessarily limited by its facts to
  negligent deprivation of property, it is evident . . . that its
  reasoning applies as well to intentional deprivations of
  property. The underlying rationale of Parratt is that when
  deprivations of property are effected through random and
  unauthorized conduct of a state employee, predeprivation
  procedures are simply "impracticable" since the state

  cannot know when such deprivations will occur. We can discern
  no logical distinction between negligent and intentional
  deprivations of property insofar as the "practicability" of
  affording predeprivation process is concerned. The State can no
  more anticipate and control in advance the unauthorized
  intentional conduct of its employees than it can anticipate
  similar negligent conduct. Arguably, intentional acts are even
  more difficult to anticipate because one bent on intentionally
  depriving a person of his property might well take affirmative
  steps to avoid signalling his intent.
    If negligent deprivations of property do not violate the Due
  Process Clause because pre-deprivation process is
  impracticable, it follows that intentional deprivations do
  not violate that Clause provided, of course, that adequate
  state post-deprivation remedies are available. Accordingly,
  we hold that an unauthorized intentional deprivation of
  property by a state employee does not constitute a violation
  of the procedural requirements of the Due Process Clause of
  the Fourteenth Amendment if a meaningful postdeprivation
  remedy for the loss is available. For intentional, as for
  negligent deprivations of property by state employees, the
  State's action is not complete until and unless it provides
  or refuses to provide a suitable postdeprivation remedy.

Id. at 3203-04.

Neither Parratt nor Hudson dealt with liberty deprivations. Even were this court not bound by applicable Seventh Circuit precedent applying Parratt to liberty cases, see, e.g., Wolf-Lillie, 699 F.2d at 871, plaintiff's argument would fail. The reasoning of Hudson indicates without doubt that any rigid distinction between "liberty" and "property," like that between negligent and intentional deprivations, is meaningless insofar as the practicability of affording predeprivation process is concerned. It would be anomalous, for example, to uphold a § 1983 claim for a state-caused automobile collision simply because the accident resulted in death or personal injury as opposed to mere property damage. The state can no more anticipate and control random and unauthorized deprivations of liberty than it can anticipate similarly unauthorized property deprivations. The difference in injury is entirely unforeseen, and therefore irrelevant in determining the degree of procedural protections constitutionally required.

The conclusion that Parratt applies to liberty as well as property deprivations is further implicit in that opinion's citation and discussion of Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In Ingraham, the Court had held the administering of corporal punishment in schools without a prior hearing was not constitutionally impermissible on the ground that the state's common-law postdeprivation remedies provided all the process that was due. The Court in Parratt noted that its analysis was "quite consistent" with that in Ingraham, even though the earlier case had involved both an intentional act and a deprivation of liberty. Parratt, 451 ...

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