The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, John Germano, individually and as a class
representative, brings this action against defendant, Winnebago
County, under 42 U.S.C. § 1983 alleging deprivation of a property
interest without due process of law in violation of the
Fourteenth Amendment to the United States Constitution.
Jurisdiction is proper under 28 U.S.C. § 1331. Plaintiff is
retired as a deputy sheriff from defendant. He maintains
continued group health insurance through defendant. Prior to
January 1, 2000, the base rate for determining premiums to be
paid was the same for employed deputies and retired deputies.
After that date, defendant required retired deputies, and their
eligible dependents, over the age of 65 who elect continued
health care coverage to migrate to a purchased insurance policy
which results in them paying a higher premium for health care
coverage than currently employed deputies. Defendant also
required retirees prior to age 65 to pay greater amounts for the
defendant's Health Benefit Plan or group health insurance
coverage than non-retired deputies and charged retired deputies
under age 65 at a different premium rate than charged non-retired
deputies. Plaintiff maintains this violates Illinois law, 215
ILCS 5/367h, and that in establishing this premium differential
defendant deprived plaintiff of due process of law. Defendant
concedes that requiring retired employees over 65 to migrate to a
separate health insurance plan is contrary to 215 ILCS 5/367h but
argues no procedural due process violation because adequate post
deprivation remedies are available. Plaintiff moves for partial
summary judgment and defendant moves for summary judgment.
Plaintiff also moved to strike paragraph 10 of defendant's LR
56.1(a). Defendant agreed to voluntarily strike paragraph 10
and, therefore, it is stricken.
Under Illinois law, any group accident and health insurance
policy offered to "deputies employed by a municipality" must
provide "for the election of continued group insurance coverage"
to retired deputies as well. See 215 ILCS 5/367h. The "deputy's
continuance privilege," as it is called, also generally requires
that the premium charged to retired deputies who choose to elect
the "continued group insurance coverage" must be the same as
non-retired deputies receiving equivalent coverage under the
group policy. Id.
Generally, "[f]ailure to implement state law violates that
state law, not the Constitution; the remedy lies in state court."
Civil Liberties for Urban Believers v. City of Chicago,
342 F.3d 752, 766 (7th Cir. 2003), cert. denied, ___ U.S.
___, 2004 WL 759441 (June 7, 2004). Plaintiff's argument is that
the defendant deprived him of something to which he was
statutorily entitled. However, plaintiff is not arguing that if
defendant had simply followed the appropriate process, notice and
a pre-deprivation hearing, that defendant would have acted
appropriately. His argument is that defendant lacked the
authority to treat him, and the class, differently than the
non-retired deputies because state law prohibits such different
treatment. This is not a case where a hearing would have revealed
that plaintiff had not acted in such a way as to warrant
deprivation of a property interest. Plaintiff's actions are not
at issue. No process afforded plaintiff would have been
sufficient to establish defendant could charge plaintiff rates
different than those charged non-retired deputies. This case is a
straightforward claim that defendant treated plaintiff in a way
that state law prohibits.
Defendant argues that to the extent a deprivation of property
occurred it was "random and unauthorized." Plaintiff argues
defendant's action could not be "random and unauthorized" since
it was action taken by the county board, defendant's ultimate
policymaker. However, plaintiff's argument really is that as to
the state law, defendant acted in an unauthorized fashion.
Plaintiff has previously survived a motion to dismiss in this
matter but the court's finding that a claim is properly stated
for Fed.R.Civ.P. 12(b)(6) purposes is not determinative on
summary judgment. Civil Liberties, 343 F.3d at 767. This case
is similar to Lolling v. Patterson, 966 F.2d 230 (7th Cir.
1992). In Lolling, plaintiff, a deputy sheriff, sued the
sheriff and the county for suspending him without pay for more
than thirty days in violation of state statute. The court noted
that procedural due process claims may be made where the
deprivation occurs pursuant to an established state procedure.
Id. at 234. The sheriff exercised discretion and authority in
disciplining the plaintiff, but that discretion was circumscribed
by state law. Id. n. 6. The sheriff's acts could not have been
predicted or prevented by the state through any additional
predisposition safeguards. Id. Likewise, here, the state could
not have predicted defendant would violate the statute nor
prevented the violation through any additional procedures.
Plaintiff's procedural due process claim must fail. His remedy is
under state law.
To the extent plaintiff's complaint advances a claim under
Illinois law, the court declines to exercise supplemental
jurisdiction over the state law claims. See Contreras v.
Suncast Corp., 237 F.3d 756, 766 (7th Cir.), cert.
denied, 534 U.S. 824 (2001).
For the foregoing reasons, defendant's motion for summary
judgment is granted and plaintiff's motion for partial summary
judgment is denied. State law claims are dismissed for lack of
subject matter jurisdiction without prejudice to being filed in
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