The final type of due process is commonly called procedural due process.
Hakemian claims a deprivation only of his right to substantive due process. While procedural due process assures fair procedure in the decision-making process, the substantive due process clause is concerned with the decision itself. Polenz v. Parr ott, 883 F.2d 551, 557 (7th Cir. 1989). The substantive component of the due process clause has been referred to as an area of the law "famous for its controversy, and not known for its simplicity." Schaper v. City of Huntsville, 813 F.2d 709 (5th Cir. 1987). Its precise parameters have been the subject of much confusion and the Supreme Court has yet to define its limits. See, e.g., Reich v. Beharry, 883 F.2d 239, 243 (3rd Cir. 1989) (whether and when state created property interest invokes the substantive due process clause is subject to varying analyses). Nevertheless, our inquiry is guided and controlled by the precedent of this circuit. The Seventh Circuit has set out a two-prong test by which to measure an alleged violation of the substantive due process clause. In order to state a claim for a violation of substantive due process, a plaintiff must allege first that the government official's decision was arbitrary and irrational, and second, either that state remedies are inadequate or that an additional constitutional provision has been violated. New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990); Polenz, 883 F.2d at 558; Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951, 958 (7th Cir. 1988).
Before applying this test, however, we first observe that Hakemian's claims would appear to suffer from certain threshold problems, which we will discuss briefly. The due process clause of the Fourteenth Amendment protects persons from deprivations of liberty and property. Thus, in order to state a claim based on the due process clause, a plaintiff must allege a constitutionally protected property or liberty interest. Polenz, 883 F.2d at 555. A property interest arises from some "legitimate claim of entitlement," which can be found in "existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). A liberty interest may be found under state law, but it may also be created directly from the Constitution. Polenz, 883 F.2d at 555.
The Seventh Circuit has indicated that it does not believe that substantive due process protects a state-created property interest, and has also questioned whether substantive due process may be invoked when the plaintiff does not challenge the constitutionality of a statutory scheme, as is the case here. See Kauth, 852 F.2d at 957-58. According to the Seventh Circuit, substantive due process has been used primarily in cases of deprivations of a liberty interest. Id. Therefore, whether a claim based on substantive due process is available to Hakemian may depend upon what type of interest he has asserted.
That question is difficult to answer in this case, since Hakemian's complaint fails to articulate precisely which type of interest he claims to have been deprived. Hakemian's complaint only details Koefoed's actions, which, according to Hakemian, "constitute an abuse of governmental power so gross and outrageous that it constitutes a violation of plaintiffs' substantive due process rights." In his response to the motion to dismiss, Hakemian attempts to define his interest as "the right to be free from unwarranted, secretive, and baseless attacks from one apparently speaking with the implicitly authoritative voice of the government," and as the "right to be free from slanderous, unwarranted and secretive attacks." Yet, even these allegations fail to explain precisely what Hakemian has lost in terms of liberty or property as a result of Koefoed's conduct.
In Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990), the Seventh Circuit found that similar allegations failed to sufficiently define a protected liberty or property interest and therefore warranted dismissal of the claim. The plaintiff in Easter House, a private adoption agency, alleged that officials of the Illinois Department of Children and Family Services ("DCFS") conducted repeated unwarranted investigations of its operating procedures and that such harassment violated § 1983.
Id. at 1390. The evidence of harassment included a statement by a DCFS official that on three occasions he told the department that the agency was operating legally but each time he was instructed to return and find evidence of wrongdoing. Id. at 1394. Similar to Hakemian, the plaintiff in Easter House defined its interest as a "due process right to be free from unfounded harassment." In reaching its decision to dismiss the plaintiff's claim, the Seventh Circuit noted the plaintiff's failure to provide any support for its interest and failure to identify whether the interest was based on liberty or property. The opinion, however, does not clearly indicate whether dismissal was warranted on this ground alone.
Even if that consideration alone was not dispositive, the court in Easter House further determined that, regardless of how the plaintiff's interest was defined, the plaintiff's claim essentially was one for malicious prosecution, which ordinarily does not present a viable claim under § 1983. Id. at 1407. In order to bring such a claim under § 1983, a plaintiff must allege that, in addition to being the target of a improperly motivated investigation, he was subject to a deprivation of constitutional magnitude.
Id. The court then proceeded to dismiss the plaintiff's claim because it did not suffer a deprivation of constitutional magnitude. The plaintiff's only injury was the cost of making files available to DCFS and having to put up with the repeated investigations. According to the court, such an injury was not enough.
In this case, it is difficult to pinpoint what Hakemian was deprived of as a result of Koefoed's alleged conduct. Hakemian principally claims harm as a result of being subject to Koefoed's dissemination of allegedly defamatory information to banks from which Hakemian wished either to obtain or renew financing. The specific injuries that he claims are (1) that a bank revoked his personal line of credit, (2) that renewal of his loans was delayed, and (3) that he was required to provide banks with allegedly needless information. Ultimately, however, he obtained the money he sought. Thus, to the extent any of these events may be deemed to have resulted in a deprivation of property, the deprivation would appear to have been no more significant in magnitude than that administrative costs found constitutionally insufficient in Easter House. Hakemian further claims that he was subject to suit and sanctions for failure to comply with the November 15, 1989 purchase order, yet it is not evident that the suit ever transpired or that sanctions were ever paid. Finally, Hakemian claims that these actions were designed to ruin his personal and business reputation. On this point as well, however, neither his complaint nor his response clearly indicate that in the end he actually lost any business, customers or revenue. Within the framework of Easter House, we do not believe that the threat of being subject to a suit or having one's reputation challenged, without more, would amount to a deprivation of constitutional magnitude either.
Even assuming that Hakemian's claim overcomes the threshold concerns posed by Easter House, his claim must still be dismissed because it does not otherwise satisfy the Seventh Circuit's test for stating a substantive due process claim. While Hakemian clearly makes allegations from which we can infer that Koefoed's conduct was arbitrary and irrational, Hakemian has failed to allege either an additional constitutional violation or the inadequacy of state remedies as required by Kauth and the cases decided subsequent to it.
At root, it would appear that Hakemian has disguised his claim as a substantive due process violation to avoid the hurdles that Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981) (overruled in part, not relevant here, by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)), and its progeny pose to procedural due process claims. Unfortunately for Hakemian, the Seventh Circuit has expressly recognized that a plaintiff should not be able to circumvent the reasoning of Parratt and disguise insufficient procedural due process claims, alleging a deprivation of a state-created property interest, as substantive due process claims. Kauth, 852 F.2d at 957. When properly viewed as procedural due process claims, Hakemian's claims must fail.
In Parratt, the Supreme Court stated that nothing in the Fourteenth Amendment protects against all deprivations of life, liberty or property occasioned by the state. 451 U.S. at 537, 101 S. Ct. at 1914. Where a deprivation occurs as a result of an established state procedure, due process typically requires adequate predeprivation notice and an opportunity to be heard, since under such circumstances a state may predict when a deprivation will occur and is therefore able to institute procedural protections prior to any deprivation. Id. at 537-38, 101 S. Ct. at 1914 (citing Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950)). Where, however, the deprivation is not the result of an established state procedure, the state cannot always predict when the deprivation will occur. For example, random and unauthorized acts of state officials do not offer an opportunity for a predeprivation hearing. For that reason, the Court in Parratt held that procedural due process is satisfied so long as the state provides adequate post deprivation remedies. Id. at 543-44, 101 S. Ct. at 1917.
Three years later, the Court extended Parratt to include intentional deprivations of property. Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204, 82 L. Ed. 2d 393 (1984). The facts of Hudson usefully coincide with the fact of this case. A prisoner alleged that a prison guard had conducted a shakedown search of his cell, brought false disciplinary charges against him, and intentionally destroyed his property solely to harass him. Id. at 520, 104 S. Ct. at 3197. The Court held that such conduct was not a violation of procedural due process because the state provided the prisoner with adequate state remedies. Id. at 537, 104 S. Ct. at 3205.
Hakemian's claim is similar in that he alleges that Koefoed's acts were intentional and done for the purpose of harassment. Hakemian, however, has failed to allege that he cannot pursue his claims against Koefoed under the Illinois tort system. A claim for malicious prosecution would appear to cover the improper investigation, and defamation seemingly covers the false statements. Nor has Hakemian suggested the remedies provided by the State of Illinois are inadequate. The Supreme Court has explicitly stated that, "although the state remedies may not provide [the plaintiff] with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process." Parratt, 451 U.S. at 544, 101 S. Ct. at 1917. Therefore, Hakemian's allegations do not satisfy even the requirements of a procedural due process violation.
B. Equal Protection (Count II)
Hakemian charges that Koefoed used his authority as an official of the State of Illinois in a discriminatory manner, and treated Hakemian differently than other substantially similarly situated parties in violation of his equal protection rights. Hakemian's equal protection claim fails because the equal protection clause is not violated simply because an individual is singled out for disparate treatment. In order to assert an equal protection claim, a plaintiff must allege that such treatment is based on his membership in a particular group. New Burnham Prairie Homes, 910 F.2d at 1481 (discrimination based on individual reasons will not suffice). The complaint contains nothing to suggest that Koefoed's behavior was based on Hakemian's membership in any identifiable group. To the contrary, plaintiff's whole theory is that Koefoed's activities were motivated by a "personal vendetta" and a plot to "bring Sam Hakemian down."
In response, Hakemian states that Koefoed "singled out plaintiff Hakemian to suffer an entirely personal vendetta" and that the defendant's actions were "motivated by a personal dislike of plaintiff." These are hardly the type of allegations necessary to sustain an equal protection claim. Accordingly, the defendant's motion to dismiss the equal protection count is granted.
For the reasons as set forth above, we grant Koefoed's motion to dismiss the complaint. It is so ordered.