Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Robert Tenny, et al v. Rod R. Blagojevich

August 25, 2011

ROBERT TENNY, ET AL., PLAINTIFFS-APPELLANTS,
v.
ROD R. BLAGOJEVICH, ET AL., DEFENDANTS-APPELLEES.
MARCOS GRAY, PLAINTIFF-APPELLANT,
v.
ROGERE. WALKER, JR., ET AL. DEFENDANTS-APPELLEES.



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10-CV-03683-Charles R. Norgle, Sr., Judge. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10-CV-04637-Rebecca R. Pallmeyer, Judge.

The opinion of the court was delivered by: Manion, Circuit Judge.

ARGUED JUNE 9, 2011

Before MANION, WOOD, and HAMILTON, Circuit Judges.

Illinois has a statutory cap on the price prison commissaries can charge inmates for any item purchased. The plaintiffs in these consolidated cases are seven inmates incarcerated at Stateville Correctional Center in Joliet, Illinois. They sued current and former officials in the Illinois Department of Corrections, and the former Governor, for marking up the price of commissary goods beyond that cap. In each case, the district court screened the complaint under 28 U.S.C. § 1915A and dismissed the case for failure to state a claim upon which relief may be granted. The plaintiffs appeal, framing the matter as a violation of their procedural due process rights under the Fourteenth Amendment. Because no pre-deprivation process could have predicted or prevented the alleged deprivation, and plaintiffs have not alleged the absence of adequate post-deprivation remedies, we affirm.

I.

By statute, Illinois caps the mark-up on goods sold at prison commissaries to inmates to 25% over the cost of goods sold (35% for tobacco products). 730 Ill. Comp. Stat. 5/3-7-2a. The mark-up covers the wages and benefits of commissary employees. Id. In November 2005, the Illinois Department of Corrections imposed a purported 3% mark-up, which was increased to 7% in early 2006. During an audit of the Department in June 2006, the Illinois Auditor General discovered that commissary goods had already been marked up to the maximum 25%, and that the new 7% mark-up was on top of the existing mark-up-in violation of the Illinois statute. The Auditor General recommended that the Department conform its pricing policy to the statute or seek a formal opinion from the Attorney General.

Despite the Auditor General's findings and recommendations, the Department maintained the unlawful mark-ups. It informed the Auditor General that it "in-tended to work with other authoritative State agencies regarding a more refined interpretation of cost of goods." During his subsequent audit two years later, the Auditor General again found that "inmate commissary goods [were] marked up more than allowed by statute." The Department continues to maintain that commissary prices "have been determined by the Director to be in accordance with State Statutes."

The plaintiffs each filed grievances within the prison system. All appeals were denied. The Stateville prison determined that the pricing policy was controlled by the Department, and the Department concluded that the policy complied with state law. The plaintiffs then filed these suits in federal district court under 42 U.S.C. § 1983, alleging violations of their federal and state constitutional rights. Six of them filed a single complaint on behalf of themselves, seeking to represent all similarly situated inmates (Tenny, et al. v. Blagojevich, et al.). The last plaintiff filed his own complaint, making substantially the same allegations as the first (Gray v. Walker, et al.). In each case, the district court screened and dismissed the complaint under 28 U.S.C. § 1915A, finding that the plaintiffs had failed to state a claim because they had no federal constitutional right to commissary access nor to particular prices for commissary items.*fn1 The district court did not address the Illinois constitutional claims in either case.

II.

On appeal, the plaintiffs claim that the Department is violating their constitutional right to procedural due process under the Fourteenth Amendment by depriving them of a protected property interest (their state-created right to a cap on the mark-up of commissary items) without due process of law. A procedural due process violation occurs when (1) conduct by someone acting under the color of state law (2) deprives the plaintiff of a protected property interest (3) without due process of law. Germano v. Winnebago County, Ill., 403 F.3d 926, 927 (7th Cir. 2005). A protected property interest is a "legitimate claim of entitlement" that is "defined by existing rules or understandings that stem from an independent source such as state law." Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Germano, 403 F.3d at 927.

We review de novo the district court's dismissal under § 1915A. Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009).

The plaintiffs draw their argument extensively from Germano, 403 F.3d 926. In that case, a plaintiff class of retired deputies of the county sheriff's department sued the county, alleging that county policy violated Illinois law. Id. at 927. Illinois law provides that counties cannot offer a group health insurance policy to its active deputies unless it also allows retired deputies to continue on the policy at the same premium rate set for active deputies. Id. The plaintiffs alleged in part that the county was requiring retired deputies to pay higher premiums than active deputies. Id. The court concluded that the Illinois statutes in question did create property interests for retired deputies and that it did not doubt that "[c]county policy is in violation of this state law." Id. at 927-28.

The plaintiffs argue that inmates have a similar property interest in the caps on commissary prices: although the prisons are not required to provide commissary access, where they do provide access, the plaintiffs claim they have a property interest created by the statutory cap.*fn2 The Attorney General cites Ashley v. Snyder, 739 N.E.2d 897 (Ill. App. 2000), which held that Illinois prison regulations do not create substantive interests protected under the Due Process clause. If Ashley were an independent interpretation of the Illinois prison code, that interpretation would conclusively establish that the plaintiffs have no protected property interest. But Ashley merely follows Sandin v. Conner, 515 U.S. 472, 483-84 (1995), in declaring that prison regulations do not generally create protected liberty interests and does not address whether there may be protected property interests.*fn3

But even assuming a protected property interest exists, the plaintiffs' analogy to Germano actually undermines their claim. After recognizing a property interest, the court in Germano held that the county's actions were "random and unauthorized" within the meaning of Parratt v. Taylor, 451 U.S. 527, 541 (1981), and Easter House v. Felder, 910 F.2d 1387, 1404 (7th Cir. 1990) (en banc), and thus due process did not require any sort of hearing before the alleged deprivation occurred. The court explained that "[t]he county's decision to act contrary to this state law was not authorized and could not have been predicted or prevented by the state through any sort of pre-deprivation hearing." Id. at 929. In other words, "no process afforded ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.