Easter House, an Illinois Not-For-Profit Corporation v. Thomas Felder, Florence McGuire and Joan Satoloe

ap- inconsistent with the reasons the always gone forever. Since when the plied the prejudice” “cause and to col- Supreme rule Court decided Sykes, the trial and (a) require lateral appeal defendants have become the principal forum for attack — arguments make place their at the time and the decision of all questions. constitutional law, required by so state errors Teague closes what was the principal last be avoided or cured at the first opportuni- exception. No one weep should for Priho- (b) ty, respect states’ legitimate escape da: his from custody, and not Wis- interest the enforcement of own their consin’s niggling rules, devotion to is the rules. principal inability source of his to obtain further review. Other defendants should possibility Such a lurks in back- not miss the lesson Sykes, of Teague, and ground of this Suppose case. we were cases such as this one. The vise has agree with Prihoda that he had for “cause” closed. raising not all of his claims in 1980. There other, would remain powerful, even more AFFIRMED. grounds, state which the state court did not need 974.06(4) to mention because SNEED, Senior Judge, Circuit adequate purposes. own such One concurring separately: ground through: shines Prihoda forfeited I Judge concur Part I of Easterbrook’s appeal his direct by taking to the lam. opinion the result reached in Part II. holds preserve Carrier that failure to a Prihoda’s failure to include in ap- his 1980 appeal claim on direct cuts out federal re- plication for relief the “battery of argu- view if requires arguments the state to be ments” raised in his for- appeal raised on pain on of forfeiture. Giv- arguments feited those under Wisconsin 974.06(4), en appeals court Wisconsin’s law. That applied law as in this case met did not need to question. address this Un- requirements Reed, of Harris v. 489 308, raising procedural less under Harris bar- S.Ct. L.Ed.2d (see 12) rier 1044 n. (1989), Judge opinion Easterbrook’s preserves procedural barriers, all then the holds. It constitutes independent state advisory opinions must render on all adequate ground state that precludes re- potential procedural issues to avoid forfeit- view a federal court. ing its claims forfeiture. Because we that, have held Teague, based on Prihoda omitting

failed to “cause” for establish oth- grounds not,

er we need and do

not, problem resolve the state additional procedural grounds presumably available HOUSE, an EASTER Illinois to, but by, the state court. invoked not-for-profit corporation, Plaintiff-Appellee, Prihoda, Since 1985 with the assistance vigorous capable counsel, been has FELDER, Thomas Florence McGuire seeking collateral relief from his convic- Satoloe, and Joan tion. Three courts and two federal Defendants-Appellants. rejected courts have these claims with scarcely a word about merits. No. 86-2164. length of opinion this testifies to diffi- Appeals, United States Court of culty administering system rules Seventh Circuit. (albeit rarely) that sometimes for- excuses separating feitures in court. Labors Aug. cases into forfeiture-enforced and forfei- categories may ture-waived mask point: finally

broader Claims not resolved appeal

at trial and on direct are almost Figliulo, Foran, Schultz,

James Wiss & Ill., Chicago, plaintiff-appellee. for Ioppolo, Gen., A. Atty. Thomas Asst. Of- Gen., Ill., Atty. Chicago, fice of for defen- dants-appellants. BAUER, Judge,

Before Chief and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION KANNE, Judges. and Circuit KANNE, Judge. Circuit The en banc review which we undertake today constitutes the second of its sort for original this case. Our banc decision in en Felder, this case was Easter House v. (7th Cir.1989). decision, F.2d 1458 concluded that Easter House we could not pursue remedy under either of alleged deprivations property two purportedly resulted from actions taken appellants of the Illinois Family Department Children Servic- regard alleged depri- es. With to the first vation, Taylor, we held that Parratt v. 68 L.Ed.2d 420 (1981) progeny precluded impo- and its sup- forth the facts conspiracies set appel- liability in that sition of § porting unautho- each. “random was conduct lants’ remedies law adequate rized” Conspiracy Licensing A. The process which provided all A sec- amendment. the fourteenth appellants alleged that the House property was alleged ond Ex- former Easter House’s conspired with had not in that dismissed of, among deprive it Director ecutive of which it interest identified This operating license. things, its other decision, how- That deprived. had been separate and dis- two conspiracy involved ever, vacated has been First, alleged prongs. tinct for reexamination remanded in de- improperly appellants acted — Burch, U.S.-, light Zinermon applica- House’s upon Easter laying action (1990). We 108 L.Ed.2d 110 Second, Easter license. for a renewal tion and that reexamination conducted have im- appellants that contended House decision original our banc that en conclude to Easter granted a license properly the dictates of only with is consistent Director in an Executive former House’s the hold- Taylor, but also with Parratt v. claimed Easter House expeditious manner. modify we Accordingly, ing in Zinermon. of action these two courses together that opinion to account banc original en our deprivation in viola- property in a resulted pronouncements the Court’s tion of 1983. disposition previous our reaffirm these issues. Application for House’s 1. Easter License Renewal BACKGROUND1 I. operating license was Easter House’s adop- Chicago-based is a Easter House 30, 1974. expire November to on scheduled Sey- operated by agency, owned tion November, pre- began Easter House In late Illinois by the and licensed Kurtz mour license. Joan of that paring for renewal Family Servic- Children Department of assigned Satoloe, licensing representative a series suit arises from (“DCFS”). This es office, prepared a Chicago to the DCFS’s (1) ap- House’s involving Easter of events re- recommended relicensing study which license, (2) its Exec- for a renewal plication for the House’s license newal Easter depart while the to Director’s decision utive beginning period December two-year open a rival pending and application was forward- 1974. This recommendation name, (3) agency with a similar adoption Springfield, main office in to the DCFS’s ed decisions, employ- as DCFS appellants’ licensing decisions Illinois, the final where House’s ees, upon Easter delay action to ultimately is- licenses are made and upon expedite to action renewal license sued. application to start the former director’s pend- license was House’s Easter While (4) appellants’ decision agency, and new Smith, Director, Millicent ing, its Executive of Easter investigations to order various leave, than apparently on less decided approximate- procedures operating House’s On December terms. amicable Easter According to years later. ly two vacation, met Smith was on while Satoloe taken House, actions were appellants’ Flor- supervisor, immediate Satoloe’s with deprived East- law and under color of licensing supervisor for McGuire, the ence constitutionally- identifiable er House of district, her of tell the DCFS’s central interests violation protected and start leave Easter House plans to Easter her will treat 1983. We 42 U.S.C. § agency.2 adoption separate new involving two as House’s claims trial, testimony consent, According she Smith’s facts largely adopt, his with 1. We prior once McGuire at least met with had original panel Judge Cudahy in the set forth McGuire her to discuss with December (7th reported 904-09 opinion at 852 F.2d However, plans Easter House. to leave Cir.1988). disputed appellants the other McGuire McGuire, meeting, separate the rea- In a letter to Smith indi- Smith described At that growing disenchantment with Riley, only for her cated that Fran Easter House’s sons worker, House.3 She informed McGuire other trained social had decided to planning to leave Easter she had been join Easter House and Easter House leave time, delayed her for some but had House thanked for with- II. Smith also McGuire owner, Kurtz, Easter House’s until action holding Easter House’s license. On Apparent- year-end left on a vacation. had resigning day, same Smith wrote to Kurtz ability facilitate her ly, his absence would position her at Easter House. adoption agency called the to start a rival discussing Easter House’s situa- After Agency, Inc. Adoption McGuire, agreed Felder tion with II”).4 (“Easter told McGuire She House’s li- McGuire that Easter renewed closely decided to use a name that she had Spring- cense should remain on hold at the take East- resembling Easter House 6, 1975, January Felder field office. On leaving ensure that her er House’s files5 to Kurtz, informing him wrote to deprive her of the rewards would not departures Riley, of Smith and long upon her she felt entitled based workers, trained social had House. tenure at Easter put agency compliance the out of with the the meeting, McGuire called After the See licensing DCFS DCFS’s standards. request to a de- Springfield office DCFS’s (1970) (child Regulation agen- 5.10 welfare re- mailing of Easter House’s lay employee must have at least one with cies following day, De- license. On the newed degree a Master of Social Work and two 31, 1974, wrote to Satoloe cember Smith experience in years supervisory social Felder, the chief of the DCFS and Thomas work). if He also stated that Easter House letter, she In that for the central district. operations to it would have wished resume day’s meeting and prior described reapply and to reattain minimum standards rapid action importance stressed application. for a license.6 upon Easter House II’s charter planned agency, and testimony, arguing had new which Smith to own that the DCFS Smith’s apply plans prior operate. apparently knowledge to the De- Smith did not of Smith’s no meeting. name to avoid detection Kurtz of cember 30 her own plan. her 30, subjects discussed at the December 3. The 1974, meeting by a memorandum are evidenced she had removed all 5. Smith told McGuire that licensing rep- prepared by McGuire and sent to and also indi- Easter House’s active case files day. The later that same resentative Satoloe planned to remove the cated that she likewise indicates that Smith detailed her memorandum past Kurtz’s return. All of the closed files before plans adoption actions and future to House II were to be transferred Easter files extensively. quite business agency the new to hit which would allow purportedly example, stated that For Smith running. ground House because decided to leave Easter she had Kurtz, owner-presi- Seymour Easter House’s trial, he withheld re- Felder testified that 6. At dent, long-standing practice of had altered his authority license under newal of Easter House’s day-to-day management delegating to Smith 8(1) Child Care Act of of the Illinois §of play active role. Smith to a more had started (current version at Ul.Rev. Ill.Laws 105 House had McGuire that Easter also told 23, 2218(1) (1986)). provision This Stat. ch. ¶ operation brought people into several new to refuse to renew authorized the DCFS than to her. She to Kurtz rather who answered "consistently agency fail[ed] which license of an by her inabili- that she was frustrated indicated pub- prescribed and maintain the standards to ty practices new which halt of the However, Department.” Felder including objectionable, lished careless han- she found dling during sus- adoption records and tele- conceded cross-examination confidential pension with the Illinois Child phone of affluent former clients was inconsistent solicitation Finally, placements. regulations and en- the number of the DCFS’s increase Act and with manual, vague allegations steps House that Easter Smith made set forth various forcement which agencies foreign adoption bring connected to take to a licensee the DCFS would which expect- through had told Smith he which Kurtz compliance be- minimum standards into ed "to make a million.” refusing revoking to renew a license. fore Act, Haire, 7(c) sister, example, Care of the Child For that her Pacita 4. She told McGuire 23, 2217(c) (1986), stated ch. already signed ¶ for a Ill.Rev.Stat. the charter had thereafter, Easter House visited Satoloe 8, 1975, of a upon the advice January On Director’s Executive the new approved let- a second Felder wrote attorney, DCFS Easter February letter, informed On he credentials. In this ter to Kurtz. oper- license its renewed January letter had been received 6th House Kurtz that during the agency that, to the Illinois welfare pursuant ate as child incorrect through No- Easter House December Act of from period Care Child effect, losing receipt days from never ten 1975—in would have vember hearing adoption before request authority operate letter to as an legal second li- a renewal to issue refusal the DCFS’s agency. However, the final. become cense would to provide offer did not II’s Charter second letter Easter House regula- by the DCFS’s required Application assistance supra manual. See and enforcement tions deprive conspiracy alleged note 6. part. had a second license of its House the decision During period between below contended Easter House response Kurtz’s renewal to withhold license Smith’s granting DCFS’s actions 22, 1975, received the DCFS January on irregular as to so II were Easter House the status inquiries about two Smith to aid intent the DCFS’s evidence representing lawyer House; one from destroying Easter House. a social one from clients

prospective agencies such Illinois, child welfare posi- applying for interested worker II must House and Easter held. had previously Smith tion which Department of State Illinois apply that Easter told callers were Both essentially as operates for a charter in- further DCFS license. The had no However, incorporation. of a certificate that job applicant prospective the formed welfare ordinary corporations, child unlike reviewing process of inwas the the DCFS studies subjected to charter agencies are In addi- program.” “entire Easter House’s pro- the to usual addition by the DCFS Comerford, then Judge tion, notified Felder of State. Department by Illinois cessing the adoptions in dealing with Judge the Chief trial, charter testimony at According to was no House County, that Easter Cook in- agencies are for child welfare studies place- adoption to make longer licensed agencies will new tended to ensure that ments. ordinary An public the interest. serve letters on Felder’s Kurtz received both determine, study to seeks DCFS charter January Kurtz 12, 1975. On January agency things, an among whether other hearing and a requesting DCFS wrote the the and public need whether serve a will Febru- charges. On statement a written reputable. forming agency the people a new had after he hired ary weeks two application, the charter to In addition Director, met Felder Kurtz with Executive and Department of State the which both had which Kurtz information to discuss agency review, a welfare child the DCFS operation new about Smith’s obtained initial for an application an must submit At that House. relicensing of Easter the DCFS the DCFS. The directly to license hearing which the meeting, Kurtz waived issuing a prior to investigation, undertaken letter January 8th in the offered had been license, differ does not initial charter absence him that the assured after Felder per- investigation from the significantly the to the barrier staff was proper renewals. license with formed connection Soon license. of Easter issuance facility dards, be re- shall license such assist ... to consultation "shall offer the DCFS addition, of the 15§ renewed.” meeting voked and main- applicants and licensees that also indicated manual DCFS’senforcement Section requirements.” taining minimum or renewals revoked not be regulations state: licenses should 5.02(11) Department's had met state officials until Department shall be withheld by the efforts "Reasonable provided inadequacies and facility discuss licensee to to child care assist licensed made to of viola- days If, for the correction ten to fourteen such ef- after standards. meet minimum tions. forts, applicable stan- facility meet to fails license, application an charter issues either IPs and license had If the DCFS extremely irregular. First, license, been it it showed license or renewal initial appellants that knew of by conduct agen- that the welfare effect certifies child that, minimum, upon Smith at a cast doubt with the DCFS’s minimum cy conforms example, her fitness. For from their direct standards. interactions with Smith and from com- ap- Easter House II submitted a charter lodged Kurtz, plaints appellants Department of State plication to the Illinois (1) (albeit attempted that knew Smith had on December unsuccessfully) to divert Easter House’s appellants was forwarded telephone mail and calls to her new ad- 2, 1975. Chicago January office on DCFS’s (2) dress, upon using she had insisted 6, 1975, II sub- January On confusingly name similar to Easter House’s application to the DCFS. mitted its license warnings despite similarity that could 6, 1975, Chicago February On DCFS’s (3) public,7 mislead Smith had taken Springfield to its office a office forwarded House,8 (4) files from Easter she at- that a charter license be recommendation adopted tempted place child with a House II. issued couple, they were who believed still work- trial, House, produced evidence ing At with Easter before Easter II approval of Easter House House was licensed.9 DCFS’s trial, they confidentiality appellants acknowledged of concern about and took the 7. At public position would be that the return had been concerned records was a similarity strictly of the names for confused matter between Kurtz and Smith. respective agencies. Further- Smith and Kurtz’s Felder, more, McGuire, and Smith all testified 3, 1975, February Kurtz told Felder that he 9.On success, they attempted, without had spoken couple applied had with a that had using name dissuade Smith from Easter House’s prior adoption Easter House for an to Smith’s However, Easter House II was for this reason. couple, thought they departure. The who had Secretary approved by the Illinois of State House, dealing re- were still with Easter had testimony chartering process part baby given ceived the from Smith Smith legal department be- showed that the DCFS’s |3,000.00. they attempted check for When authority block a lieved that the DCFS lacked House, they spoke Smith later at Easter contact type this of confu- charter or license based on Felder with Kurtz instead. When confronted sion. information, initially she Smith with Kurtz’s appellants' participation The lack of active in matter, any knowledge denied of the but called "stealing to aid Smith in Easter a scheme admit that had back fifteen minutes later to she through House’s business theft of its name” placement placement. Because the made the notifying the letter Smith further evinced invalid, legally payment on the check was was approved. letter that her license had been That proceeding arranged stopped a court was to the DCFS could not block her indicated that legalize adoption. appellants appear the The confusion, license on the basis of name episode to have considered this as relevant Easter nonetheless warned Smith that use of adoption agency. fitness to run an to Smith’s legal by Easter House II could result in action days illegal placement after this came to Three House. legalized, light, adoption before the had been Chicago the DCFS’s office recommended to repre- of Easter House’s files 8. Smith’s removal Springfield that Smith's charter and license be matter, since Easter sented more serious approved. cases, manage or to was unable to its House point brought arrange agency manage appellants out that Felder to its The for some other license, the pending the Smith's action to the attention of Attorney. State’s cases renewal of its without However, reporting letter In letters Felder’s the information these files contained. her trial, testimony downplay the incident. The and her at Smith matter seems to Kurtz placement vaguely preserve the letter described the unlawful she had taken the files to claimed confidentiality apparent violation of the Child Care Act” records and not to take as “an However, "primary contrary as and identifies the informant" business. Easter House’s suggesting repre- employer, the Smith’s former that be drawn from Smith’s inference could that, allegation may be inaccurate. The letter also in the words of to McGuire sentations adoption subsequently was le- summary, stressed that the intended to enter McGuire's Smith galized by way the court and indicated that the DCFS that would with Kurtz in a into association approve years subsequently Smith’s license. go saw fit to the drain the eleven not “allow to down appar- put The letter does not mention that Smith experience she had into and hard work trial, agent ently represented herself as an of Easter building up stat- House." At Felder professions Easter biological adoptive parents the House to Smith’s ed that DCFS had believed II. DISCUSSION evidence produced House also Easter were license studies charter that second en presented this issues The normal in accordance not conducted substantially the same review banc jury heard example, the procedures. For banc original en our we addressed those may have fa- appellants that evidence address Specifically, we must decision. in- the charter aspects of certain bricated appli- potential raise arguments which Furthermore, appellants vestigation. conspirato- alleged cability of 1983 § study sever- the license prepared allegedly must doing, we deter- rial conduct. In so deciding approve Smith’s days after al complained (1) the conduct mine: whether study is the license Although application. acting person under by a committed was a March refers to undated, text law; (2) ac- these whether color the DCFS to head of from letter House of constitu- deprived Easter State, indicating it tions that Secretary of interests; and, protected property Chi- days tionally after the forty-one completed was oc- had been (3) alleged whether recommendation cago office’s Par- Springfield. process of law. without due sent curred at 1913. ratt, Conspiracy to Harass B. The each in turn. address issue We will Zinermon, alleged that the Court’s decision light also below House on in second distinct of our reexamination participated primary focus appellants rule harass Easter conspiracy scope of the Parratt conspiracy, a is the remand whether, of 42 U.S.C. that rule in violation after in- the DCFS’s liability concerned conspiracy under This acts as bar still operations Easter House’s vestigation of facts. these 1977, investigations under- during 1976 and the 1974 renewal license long after taken Conspiracy Licensing A. The granted. appellants’ parties concede trial, evidence House offered At licensing applica- processing actions conduct- and McGuire that Felder prove by Easter House Smith submitted tions investigation of Easter intensive ed an law. How- color of state taken were 1976 with House, late beginning ever, dispute Easter House’s appellants House’s subse- review of Easter McGuire’s remaining inquiries satisfy the ability to La- its license. to renew quent and, recently, most dictated Parratt dispatched investi- ter, early DCFS appellants Specifically, Zinermon. to undertake more gator Tom Howard cannot demon- that Easter House contend trial, Howard testi- At thorough review.10 deprivation of an iden- actual strate reported he upon occasions three fied interest occurred. More- property tified of- appellants to the negative results a over, assuming depriva- that such even House was opinion that Easter his fered occurred, appellants believe tion testified that He further legally. operating pro- of the all due House received Easter appellants instruct- upon each occasion Parratt and Ziner- which protection cess evi- his find efforts ed him to redouble contemplate. mon wrongdoing. dence of investiga- "pretextual a 10. Howard conducted initially the incident denied she mother investigator posed as a another in which tion” Felder. language, timing its also parent. also undertook prospective the letter’s Howard Besides appellants. Feld- thorough its usefulness House’s of Easter files undercut review 20, 1975, than March more on the letter upon er sent deal- emphasis House's particular Easter attempted first connections, after learned weeks he apparent- six foreign ings with Kurtz's days only after ten Felder placement, but which, foreign accord- ly from connections Springfield superior the DCFS's office his earlier, planned years Kurtz ing to Smith two upon attorney inquiring letters from received amake million.” "to re- intended to the DCFS’s behalf as Kurtz's actions. sponse to Smith’s Deprivation Property of a Interest could interpreted as an order that East- operations er House 9(b) cease under § identify Easter can Whether House which would constitute an depriva- actual property interest of which it was de tion of its license. That letter prived question.11 Property, informed is a difficult purposes of the due clause of Easter that it House would have “to make amendment, legitimate the fourteenth is “a reapplications for license and to li- meet Regents claim of entitlement.” Board censing standards for a agen- child welfare Roth, 564, 577, cy” operations. before it could resume (1972). 33 L.Ed.2d 548 A claim of argues Easter House further that its read- by existing entitlement is “defined rules or ing supported the letters is understandings indepen that stem from an January Judge DCFS’s 10th letter to Com- dent source as state law.” Id. The such advising erford him that Easter House was upon statutory regulatory limitations longer no appellants’ licensed and the state- authority deny license re DCFS’s prospective job applicant ments to the agencies newals to child welfare created prospective adoptive parents inquired who legitimate such a claim of entitlement. See about Easter House’s status. (current 104-105 version 1969 Ill.Laws as amended at Ill.Rev.Stat. ch. 11112218- appellants respond The that Easter (1988)); generally Reed v. see also January House misreads the 6th letter or Shorewood, 704 F.2d Village 948- improperly attempts at least to read the (7th Cir.1983). Thus, we conclude letter considering surrounding without property Easter House had a interest facts and They point circumstances. out renewal of its license. that Easter House did not receive the letter However, the issue remains whether January until the same date it received House Easter ever suffered January letter granted 8th it ten property Appar- of that identified interest. days request hearing before denial of ently, agencies applications with renewal for renewal would become pending do not need to have a current Thus, January final. 8th letter could Furthermore, operate. in hand license having acknowledged be viewed although expired Easter House’s license right operating to interim sta- 31, 1974, November Easter House never which, statute, tus—a status under the any aspect operations prior curtailed of its departure holding to Smith’s at the end of Decem- could revoke after DCFS importantly, More ber. the DCFS never hearing, reaching formal a decision adverse indicated that it considered Easter House’s House, issuing to Easter and either an or- operation improper.12 interim requiring op- der immediate termination of obtaining erations or a court order affirm- argues January ing 6th letter from Felder to Easter House its determination. jury adoption

11. instructions identified four forms Easter House in connection with an agency jury Illinois. which the could find the defen- deprived dants to have Easter House of without practice supported, 12. Such interim if not of law: time, 9(b) explicitly authorized at that license; (1) (2) agency welfare Its child Act, agencies the Child Care which allowed expectant Records and files related to moth- operate pending judicial continue to review of a care, relating ers under its records and files revoke, suspend, DCFS decision to or withhold applicants prospective adoptive parents, and renewal of a license unless the DCFS issued an relating and ... records and files to various "directing operation facility the the order that of organizations adoption involved in the field immediately.” 106 terminate 1969 Ill.Laws may (current ... that be a source for babies in need of as amended at Ill.Rev.Stat. ch. version (3) 23, Thus, adoption; expectations (1988)). 2219(b) agencies Reasonable that if could ¶ applicants prospective operations Easter House’s an continue even after administra- adoptive parents may they a child ... that should not be reli- [obtain] tive determination censed, study require from Easter House or have ... a home seem unreasonable to it would House; (4) by operation The an administrative them to cease while [conducted] legal right pending. to the exclusive use of the name determination was 1396 deprivations rather, only those prohibits this not resolve need Fortunately, we law. of process due wholly con- occur without not which are definitively. We

issue The 1914. 537, at at 101 S.Ct. of constitutional 451 U.S. a that vinced that a proposition rejected of the DCFS’s the light then Court occurred magnitude a hear- provide always required granting is January 8th letter state 540, predeprivation a at request 451 U.S. prior deprivation. ing a opportunity an Nevertheless, appel- the because The Court stated: hearing. at 1915. 101 S.Ct. the value of East- undercut may have by lants quick action necessity of either by their commu- “legal license” er House’s provid- of impracticality or the the State Judge Comerford nications both with pro- meaningful predeprivation ing any adoptive par- potential availability cess, coupled when depriva- a that such ents, we will assume by meaningful which means of some however, assumption, This tion occurred. action the State’s propriety of assess the liability, issue of resolve does not taking ... initial after the at some time the princi- whether now determine we must procedural of requirements satisfies] Parratt, Court ples announced process. due preclude applied (footnote at 101 S.Ct. 1915 at 451 U.S. 1983. under damages of § award omitted). prom- that the state had noted The Court Process Guarantees Due procedures which predeprivation ulgated Parratt After plaintiff’s protect adequate to were decision, we original en banc our In interests, em- that the state property not could concluded poli- follow established ployee failed to dam to recover action a 1983 maintain § The 101 S.Ct. at 1917. at cy. 451 U.S. proper of deprivations alleged ages for “involving that situations concluded Court all the received it had ty because as a result property ... of a tortious loss the fourteenth under was due which by a act and unauthorized of a random premised Our decision amendment. is not by definition employee”, which state Par decisions in Supreme Court’s upon the some “established resulting from a loss Palmer, 468 U.S. Hudson ratt beyond state’s procedure”, state depri (1984) hold which 3194 451 U.S. predicted. and cannot be control “ran resulting from property vations conse- 1916. The Court at at S.Ct. state actors acts and unauthorized” dom negligent deprivations quently held the proce a violation do constitute not prior hearing do occur without fourteenth requirements dural due amendment’s the fourteenth violate if a mean process clause due amendment provides long process clause as remedy for loss ingful post-deprivation remedy.” “meaningful post-deprivation ratio this again review available. We To hold at 1917. U.S. at S.Ct. in Ziner having in mind nale otherwise, “result opined, would the Court briefly analysis by begin our We mon. alleged injury which turning every au Court Supreme reviewing the relevant acting by a state official been inflicted have Parratt. spawned thority into violation ‘color state law’ under Amendment Fourteenth Logan—Hudson—Zinermon a. Parratt — make of the Fourteenth ... ‘would [and] brought a Parratt, prisoner super- law to be font of tort Amendment alleging prison officials against action may al- systems imposed upon whatever his mail-ordered loss of negligent that their ” by the States.’ ready be administered without him of deprived kit hobby (citations at of the four- in violation of law omitted). amendment. teenth ratio the Parratt reaffirmed The Court four- nothing in the noting that disagreed, Co., Brush Logan v. Zimmerman in against dep- nale all protects amendment teenth S.Ct. 1148, 265 422, 71 L.Ed.2d 102 U.S. life, liberty, property, but 455 of rivations 1397 (1982). In Logan, plaintiff a timely Parratt, filed a the Court stated the “controlling charge of unlawful conduct with a state inquiry is solely whether the state is ain employment According commission. to position provide to for predeprivation pro- law, the state commission then had 120 cess.” Id. days in which to a fact-finding convene pronouncement Court’s latest on this conference. Through the commission’s in- issue in came Zinermon v. Burch. In Zin advertence, however, plaintiffs hearing ermon, plaintiff alleged that the staff was scheduled days beyond juris- five members at the Florida Hospital State had dictional deadline. The commission there- deprived him of liberty his without due after refused to consider claim. Con- process of law admitting him to the cluding plaintiffs that the complaint was hospital under a error, “voluntary” statutory pro directed not at the commission’s rather at an cedure when inadequate they “established state knew or should have procedure”, the Court held that Parratt known that he was “competent” sign did not bar his 1983 action. The Court § admission expressly forms re stated that the procedure established state quired by that statutory procedure. The “destroys his entitlement without accord- Court held that the grant district court’s ing him proper procedural safeguards.” 12(b)(6) a Rule motion favor of the hospi 436, 455 U.S. at 102 at S.Ct. 1158. Con- tal staff was improper that the factual trasting this with the presented situation in circumstance presented which was did not agent Parratt which a had failed state fall within that category of cases in which adequate procedures, follow state the Parratt preclude Hudson should noted, Court “it is the system itself liability. 1983 According Court, § destroys a complainant’s property in- represent “Parratt and special Hudson terest, law, by operation of whenever the case of the general Mathews Eldridge Commission timely fails to convene con- U.S. [424 L.Ed.2d 18 ference....” Id. (1976)] analysis, in which postdeprivation Palmer, In Hudson v. 468 U.S. 104 tort remedies process all that is (1984), S.Ct. 82 L.Ed.2d 393 the Court due, simply they because are the rem extended Parratt cover random and edies the State expected could be pro unauthorized “intentional conduct” of state — at-, vide.” U.S. at S.Ct. employees. In that case, a federal inmate Thus, in concluding that Parratt should brought a against 1983 action a correc- § applied preclude not be imposition alleging deprivation tional officer prop- liability presented under the facts erty without due During law. review, the Court did not abandon the plaintiff’s cell, shakedown of the the officer principles established Parratt and Hud- destroyed certain personal non-contraband Indeed, son. the Court’s determination in belonging plaintiff. Reasoning items Zinermon liability may lie was that “a state can anticipate no more premised on its conclusion depriva- control advance the random and unau- tion which occurred under the Florida stat- conduct thorized of its than it utory scheme for mental health commit- anticipate conduct”, can negligent similar ment was not “random unauthorized” Hudson, 468 U.S. at 104 S.Ct. at as those terms previously had been con- the Court found that the officer’s intention- strued in Specifical- Parratt and Hudson. al conduct fell within the Parratt doctrine. ly, “predictable” the Court focused on the concluding, so rejected an deprivation nature of the which was at argument agent that “because an issue and the extent to which additional who deprive person intends to of his predeprivation procedural safeguards provide predeprivation pro- ‘can could, cess, statutory scheme, under the then Florida as a matter he ” possibly prevent type do must so.’ at 104 S.Ct. at — (emphasis original). Reaffirming recurring from in the future. Id. principles its adherence to the adopted at-, 987-90.

1398 in the case that test to unusual tion of the Application b. of in the Math- of the variables which one Parratt-Hudson-Zinermon predepriva- value of equation Formulation ews —the prevent- negligible in safeguards tion —is in for our review presented question The deprivation at issue. kind of ing the decision light of the Court’s Therefore, significant how no matter appellants’ con- therefore, the is whether at stake and private interest as “random may be characterized duct still see deprivation, erroneous risk will that Parratt such of and unauthorized” S.Ct., U.S., at Mathews, at As liability. of preclude an award required consti- be the State cannot in all consistently argued proceed- it has by provid- impossible tutionally to do the review, present up to our leading ings process. ing predeprivation appel- maintains House Easter — so character- not be conduct should lants’ (emphasis -, at 985 atU.S. argues House Easter Specifically, ized. reject language, added). this we light In of made it has clear now that Zinermon contrary. to the arguments House’s Easter of an preclude award does not Parratt this, cases, damages in such as Conspiracies as Random ii. deprivation results Conduct where Unauthorized “high-level state action of from the contends that be next Easter House a con- “engaged in officials” who are local under actions were appellants’ cause constitutional a citizen’s spiracy to violate deprive it conspiracy to part as of a taken framed, argument which As rights.” their protected rights, constitutionally subparts: three has House raises Easter as “ran characterized cannot be conduct limited progeny are (1) and its Parratt While the Court’s Parratt. dom” under (2) that property; deprivations to minor this not does address decision Zinermon be can never conspiracy” an “intentional support find issue, does (3) act”; and “a random characterized Kelman, 773 proposition in Bretz this employ- high-level state failure banc) Cir.1985)(en and La (9th F.2d charged providing ees, who are (3d Cir.1987). F.2d 220 Lalley, 809 bor v. protections, established due state’s presented with was court Bretz predepriva- admittedly practicable grant govern- certain allegation that plaintiff’s automatically into translates relief tion conspired arrest officials had is ment thus procedure” and “established charges. The burglary upon false try him Finally, “authorized”. per se 12(b)(6)dismissal Rule that, assuming that reversed the even court suggests concluding that Parratt character- claim be of his appellants’ conduct unauthorized, conspira- allegation mean- applicable no to this not ized as random stated, “[b]y def- remedies exist court postdeprivation conduct. The ingful torial protec- a ran- requisite inition, cannot be conspiracy ... provide argu- each of accomplished these with- act, will address if was tion. even it We dom separately. govern- of the state ments out the endorsement F.2d at 1031. apparatus.” mental Substantial Minor -vs-

i. con- manner, circuit Labor like third Property Deprivations pleaded a con- complaint sidered plaintiff of “substan- deprive spiracy attempt to limit the first amend- liberty under according to the interests tive of Parratt agreed with the Bretz is The court issue ment.” magnitude stating that Parratt holding, court’s refuted directly charges apply not vi “do Addressing subsequent the continued cases Zinermon. conspiratorial circum conduct factual certain of intentional tality Parratt conduct, if it can stances, law. Such stated: of state the Court color isolated, un- kind of proved, exception Math- is not an Parratt con- unpreventable predictable, and thus test, applica- rather an balancing ews Supreme duct with which the pur Court future through implementation of addi- ports in to deal the Parratt v. Taylor line tional predeprivation procedural safe- (citing of cases.” 809 F.2d at 223 David guards. In regard, this to the extent a Cir.1984), O’Lone, 817, (3d son v. 752 F.2d “conspiracy” (as is agree intentional we it sub nom. v. Can Davidson by definition), aff must 'd “intentional acts non, 344, 668, 474 U.S. 106 S.Ct. 88 even more anticipate difficult to because (1986)). L.Ed.2d 677 one bent on intentionally depriving per- a contrast, son of his property might In the Fifth and well take Sixth Circuit affirm- steps ative Appeal rejected Courts of have avoid signalling Bretz his intent.” per conspiracy Hudson, court’s se rule. In at Hollo 104 S.Ct. at 3203- Walker, way (5th Cir.), 790 F.2d 04. To recognize that something is a “con- denied, cert. 479 U.S. 107 S.Ct. 93 spiracy” in this context simply recog- is (1986), L.Ed.2d 576 the court held that a nize, circuits, as did the fifth and sixth conspiracy may if, in fact be a random act it is light intentional. of the Court’s point of state[,] view the ... “[f]rom decision in counseling Hudson that Par- the state anticipate cannot such control ratt does apply indeed to “intentional” con- conduct in advance.” 790 F.2d at 1172 duct, in the absence any indication Hudson, (citing 468 U.S. at 104 S.Ct. to the contrary in reject we 3203). reasoned, course, The court “[o]f Easter House’s upon reliance an absolute conspiracy a point is not random from the conspiracy rule that a per se non-random of view of the conspirators but this is to conduct. say more conspiracy no than that a is an act, intentional rather than a one. negligent Nevertheless, Easter House be The effect of the Ninth holding is Circuit’s lieves that alleged licensing because to revive the intentional/negligent act dis conspiracy separate had two prongs—the tinction, rejected Hudson, in another in application renewal and the Easter House Similarly, form.” Id. in National Com II charter in conspiracy —the Sys., munication Inc. v. Public Michigan which, volved multiple acts even under a Comm’n, (6th Service 789 F.2d 372-73 inquiry, traditional Parratt take the con Cir.), denied, cert. spiracy outside the realm of random. How (1986), 93 L.Ed.2d 117 reject the court ever, from the perspective, state’s this rule, conspiracy reasoning ed a se per alleged characterization scheme is conspiracy allegation merely raises the prongs inaccurate. Both single con possibility of opposed “intentional” as spiracy operated simultaneously. The conduct; “negligent” possibility which state opportunity had no to discover that Court’s decision in Hudson v. appellants were disregarding the estab consequence advises is of no

Palmer lished procedures renewing state licens determining apply. whether Parratt should granting es applications. charter The concern of the this context cannot House demonstrate that since the decision Parratt has been to actions, appellants’ if involving even deprivation determine whether the risk of House, conspiracy destroy Easter were predict was such state could when anything single improper instance of and, deprivation might impor- occur more involving multiple conduct employees en- tantly, protect against such occurrence gaged single relatively in a scheme for a implementation through additional period licensing short time. The conspir- process. predeprivation These fundamen- acy nothing remains more than a random tal of concern have not areas been discard- ed in decision of to disregard Zinermon. Indeed the Court’s deter- policy procedure mination in Zinermon that which Parratt was resulted based, inapplicable part, injuries result, was on its con- Easter House. As a clusion occurred Easter has failed to demonstrate “authorized”, predict- conspiracy but also how the existence of a removes capable being able avoided this case from the dictates of Parratt. point Employee from the of view of the state-does iii. Status and the simply not turn on whether that official Definition of Random and degree Unauthorized Conduct exercises a certain of discretion. Rather, we believe that there must be a appellants' "high Does the status as ingredient "predictability" second in the level state or officials" render equation principles inap which focuses on the extent to established in Parratt which the state official's discretion is "Un- plicable? original presentation In its Indeed, appears court, circumscribed". this this en bane Easter House advocat permitting question. have been a decisive factor ed an affirmative answer to this majority negative. in Zinermon to rule that Parratt We answered in the Zinermon, Armed with preclude imposition again would not advocates response. liability. Zinermon, majori- § an affirmative While we ac In knowledge ty plaintiff's allegation that Zinermon narrowed the framed the as an scope attempt of Parratt's in certain "to hold state officials accountable circumstances, broadly delegated, factual we do not believe for their abuse of uncir- per "employee- power deprivation that Zinermon creates a se cumscribecl to effect the exception Accordingly, , status" to Parratt. at issue." - U.S. at 110 S.Ct. at again respond negative. Concentrating question we in the on the "predictability", Initially phrase we can envision a scenario we note that the "ran high-ranking unauthorized", where a state official does dom and as it has been em authority ployed Parratt, exercise the and discretion to ef- since the decision in can be interpreted narrowly broadly. deprivation, yet both fect a that discretion is Educ., by statutory pre- See Matthiessen v. Board of 857 "circumscribed" or other (7th Cir.1988); deprivation procedural safeguards. F.2d 404 Wilson v. Civil In Clayton, (7th scenario, discretion, Town of 839 F.2d 375 Cir. such a an abuse of that 1988); O'Malley, possibly causing deprivation Tavarez v. 826 F.2d 671 while (7th Cir.1987). Indeed, property, necessarily "predict- the Court in Ziner would not mon, -, point - U.S. at 110 S.Ct. at 978 and able" from the of view of the state cognizance split and, according n. takes which to Parratt and developed compensable has in the circuits over this issue not reasons, under 1983. For these and seeks to resolve the conflict. The ulti reject we Easter House's conten- disposition per exception mate of the Parratt issue in tion that there is a se applica Zinermon hints that a "narrow" application of Parratt in situations where appro tion of the Parratt rule be the occupies "high ranking" the state actor priate apparent course. It from the position hierarchy. in the state rationale, however, disposi- Court's determining tive factor in whether Parratt The Court in Zinermon was apply given presented premised will indeed whether the state actor's conduct is "ran in a situation is still with a 1983 claim upon deprivation liberty which resulted or, "voluntary" dom and unauthorized" as the Court from the admission of the rephrased it, plaintiff facility has whether the state actor's to a mental health at a "predictable arguably competent conduct is and authorized". time when he was give "knowing question and informed consent" to The of whether a state official Florida, provisions "high" his admission. ranks or "low" in the state hier- person may archy, possibly under which a be admitted to a while relevant as indicia of facility exercises, mental health are embodied in a the discretion which that official comprehensive statutory dispositive scheme. Not sur cannot itself be of this deter- prisingly, incompetent person question "predictability" could not mination. The "voluntary" patient -i.e., question be admitted as a of whether a state ac- provisions.13 statute, however, tor's conduct can be deemed "random" those hospital any statutory mental adult couldadmitfor treatment 13. Underthe Florida schemeas it ex- showing allegeddeprivation, evidenceof a mentaldiseasewho isted at the time of the any authority mental discretion and not direct doctor at the over the failure or did per applications, success of facility to determine whether renewal that discre- health being “voluntarily” admitted was in tion was not “uncircumscribed” or other- son necessary unregulated. Speaking general con wise competent give fact terms, any offi Nor did the statute direct sent. “involuntary” alleged licensing admission Easter House has in the

cial to initiate the patients thought conspiracy to be was not one that the state procedure for those could Thus, or, incompetent. predicted importantly, pre- as the Court have more found, gave through implementation the officials at the vented the statute of addi- predeprivation facility procedural health broad discretion tional safe- mental provisions guards. admitting patients under scheme, statutory provide did not To the extent Easter deprived House was safeguards necessary to procedural for property, it was the result of a letter protect against any potential abuse of that 6, 1975, January dated in which a DCFS — at-, 110 S.Ct. at discretion. U.S. official informed Easter House that it was statutory oversight, the 988. Based on this compliance licensing out of with DCFS inap majority concluded that Parratt was standards and would have to reattain mini- Specifically, the Court found that plicable. “reapply” mum standards and if it wished type liberty depri exactly the risk of operations. to resume The content of this “pre entirely occurred was vation which i.e., the official’s DCFS statement letter — that Easter House would have to and, importantly, that such dictable” more “reapply” all, occur, deprivation if at at a would operations if it to resume pat- wished —was during specific predictable point the mental ently inconsistent with Illinois law and con- — process. at health admissions Id. outright departure stituted from the addition,

-, 110 S.Ct. at 989. authority which the DCFS official was distinguish found that the case Court granted governing under the statutes and in that the addition of able from Parratt noted, regulations. previously As we have impossi was not “predeprivation process” the DCFS official did not have discre- in here as it was found Parratt. ble tionary authority to revoke Finally, the Court concluded that Id. operating proceed- interim status without of the doctors could not be charac actions procedural ing through a series of safe- light as “unauthorized” in terized holding guards which included the of a authority they given were to effect Moreover, hearing. predeprivation formal complained very deprivation points nothing which plaintiff. Id. indicate that the state or would knew appellants fo- should have known that the or The Court’s concern Zinermon delegated authority disregarded, broadly other state had or cused on likely disregard gave the state statute the doctors to were the state’s estab- deprivation procedure processing ap- at issue and the renewal effect the sub- lished Klehammer, plications. sequent failure of that same statute to See Katz v. Cir.1990) (2d pre-deprivation (deny- safe- F.2d 207 and n. 1 provide for effective statutory ing liability, distinguishes guards. It was view of this court § oversight deprivation that the Court concluded that the Zinermon on the fact that “predicta- alleged from the defendants’ viola- deprivation which occurred was resulted and, such, gov- regulations not “random”. In con- ble” tions of various laws sense, trast, activities). statutory regulatory erning the Illinois their In this “predicta- today scheme which we readdress does not DCFS officials’ actions were not ble”; or, Although these same to the situation raise concerns. contrast appellants presented did exercise a certain amount of application by express explanation to enable the "made sent." Fla.Stat. and informed con- and disclosure ... 394.465(l)(a). knowing The statute de- person and willful deci- ... to make a "express

fines and informed consent” as "con- 394.455(22). sion....” § voluntarily given writing sent after sufficient form, officials' actions here did not constitute an In its most fundamental we believe only predictable dep- broadly delegated, Zinermon holds "abuse of .. uncircum- liberty power rivations of which flow scribed to effect the -, compensable issue." - U.S. at 110 S.Ct. at 989. from authorized conduct are 1983. The conduct which is Nor do we believe the actions of the presented for our review does not fall into DCFS official in this case were "autho- category. rized" as that term is construed in Ziner- Discussing argument, mon. the breadth of the term In a related "unauthorized", argues "employment the Zinermon Court fo- House that the fact of determining cused on the extent to which the Florida status" be relevant employee's given statutory whether a state action can be officials were procedure", power authority depriva- deemed an "established state to effect the removing complained of, thus that action from the realm tion but also the concomi- "unpredictable". Specifi duty procedural of "random" or cally, tant to initiate the safe- single guards guard Easter House asserts that "the established state law to sufficiently high-ranking policy against deprivation. act of a the risk of that may equate professionals maker with or be deemed es Court noted that certain on procedure. See, e.g., Hospital tablished state . . ." the staff at the Florida Mental Matthiessen, 3; Tavarez, "only persons position 857 F.2d at 407 n. were the in a 677; Dwyer Regan, any voluntary 826 F.2d at see also take notice of misuse of the (2d Cir.1985); process, 777 F.2d 832-33 Stana admissions and to ensure that the City Pittsburgh, proper procedure v. School Dist. of is followed." Id. at (3d Cir.1985); Bretz, (emphasis original). F.2d 773 F.2d 110 S.Ct. at 988 1031; City Roanoke, actions of the DCFS officials were not "au- Fetner v. (11th Cir.1987). Although F.2d thorized" in this sense. certain appellants qualify authority House contends that the DCFS officials did have the deny sufficiently high-placed policymakers applications holding as renewal after alleged improper hearing, whose conduct constitutes formal those same DCFS officials inadequate proce duty pre- "established state did not have the to initiate those Logan, thereby precluding deprivation safeguards. Rather, dure" under the re- Parratt, though sponsibility procedural even to initiate the safe- policy guards party aggrieved by conduct contravened formal state rested with the procedure expressed preliminary and as in written stat DCFS decision-in this utes, regulations, procedural case, Thus, although and manuals. Easter House. deprivation alleged arguably disagree did occur at We do not that the acts of a "high ranking official", the hands of a it is employee may be attributable to the clear that it was not the result of that However, analysis, state. in the Parratt broadly delegated, nothing employee official's "abuse of ... this means more than an power depri- during uncircumscribed to effect the acts under color of state law , vation at issue." - U.S. at 110 performance job-related of his duties. The Thus, S.Ct. at 989. we cannot conclude single employee issue is whether a act of was "authorized". misconduct, clearly which contravenes es- policy procedure tablished state and as con- sum, In Justice Blackmun has artic rules, regulations, tained within formal and ulated in Zinermon a factual circumstance statutes, automatically becomes the state's majority under which the has concluded position new in all similar matters or inapplicable. that Parratt and Hudson are act, whether the when viewed from the pointed out, As we have we believe the perspective, merely state's a "random linchpin analysis of the Court's in Ziner- and unauthorized" deviation. mon is the extent to which the conduct of only doubt, employee's position the Florida state actors was not thorized", "au Without a also, governmental hierarchy the circum in the is relevant inquiry. example, case, highly "predictable". to this For consider a stances of that variety poli- of situations in which a state’s true that delegated the state some of the cy procedures given and in a area del- rulemaking power DCFS, but that egated specified policymaker, to a itbe entity likewise set its policies formal and single committee, person, a or the state procedures through a deliberative legislature. policymaker If the establishes which culminated in a set of formal rules policy procedure on an informal basis Thus, regulations. the combination of policy proce- without the aid of formal legislature’s the state and the DCFS’s for- is, guidelines policy dure decides on a —that pronouncements mal comprise the state’s case-by-ease basis—then his pronounce- procedure. established given ment case reflects the state’s Because the promulgated policy position. Thus, party who suffers loss procedure by means, formal the em- process protection without due in his indi- ployment status of the state employee vio- may easily argue vidual ease that the loss lating procedure must be considered occurred inadequate as a result of an estab- important much less in determining wheth- procedure. lished er a deviation from policy may be char- scenario, In policy- another consider a acterized as random and unauthorized un- policymakers maker or series of who estab- der Parratt. if Even we assume that the policy lish procedure through a deliber- appellants qualify “policymakers” them- ative, legislative, process or even given selves—which posi- we doubt their position culminates a certain concrete governmental tion in the hierarchy expressed pronouncement. in a formal —their “policy”, which at absolute best situation, such a it is reasonable to believe informal, characterized as cannot be said the results of that more formal automatically preempt displace poli- reflect the state’s established other- cy procedure. and If the policymaker’s adequate existing wise policy pro- and subordinate, policymaker or even the him- cedure. Because the state through its des- self, single deviates in a instance from the ignated policymaking branches created its pronouncement, more formal it is less like- policies procedures, formal and we cannot ly to policy reflect a new trend in state and single entertain a claim that the act of a procedure. policy A only likely shift employee now reflects the state’s es- First, to occur in one of two situations. a policies procedures. tablished and if steps shift occurs the same formal If, contends, as Easter House this case original policies created the procedures and closely more Logan resembles than Par- repeated pro- and culminate in the Hudson, ratt and then we of course would policy nouncement procedures. of new and be forced to find that the state’s estab- Second, position may change state’s if the procedure inadequate lished was itself policymaker repeatedly deviates from the guarantee requisite process protec- formally policy procedure established and In Logan, passed tion. the state had practice replaced until his and custom has required statute which a claimant under policy procedures. the formal and employment the state’s laws to file a claim closely We believe that this case more employment pri- with the state commission possible reflects the latter of these two filing or to a lawsuit. The law also re- scenarios. The State of Illinois established quired hearing the commission to hold a licensing procedures through the DCFS’s upon However, days. the claim within 120 legislative process, the traditional culminat- provided further law the claim- ing body statutory in a of concrete law any ant’s claim would if for be barred step-by-step policy which established hearing reason the not held within procedure granting renewing for days, although the re- commission was agencies. licenses of child welfare In addi- tion, quired grant hearing automatically. statutory provided law the frame- plain- The commission’s failure to hold the day-to-day policy work for the DCFS’s effect, hearing days procedure “policy- manual. tiff’s within 120 resulted legislature. jurisdictional maker” employment was the state It is bar to his claim Only appellants prompting § when the took action him to file a 1983 due beyond action. which went the realm of the fore- property seeable did Easter House suffer a deprivation. Supreme plain- Court stated that the appellants merely If the had complaint tiff's should not be characterized procedure, refused to follow established challenging high-ranking state em- Easter House would have been able to con- ployees' grant requisite failure to hear- operations pending tinue a final determina- ing timely they in a manner when had a However, tion the courts. because the duty Rather, to do so. the Court noted appellants steps-contacting took further procedure inadequate, itself was adoption responding the rectly court and incor- grant not because the commission failed to inquiries by prospective parents hearing, but because the statute con- job applicants-Easter arguably and experienced provisions tained a series of which would property deprivation. As a "by operation allow a to occur result, Logan we believe that is distin- variety possible of law" under a wide guishable provides and that Parratt scenarios. 455 U.S. at 102 S.Ct. at proper analysis. is, 1158. That because the law mandated that the claimant file a claim with the com- reasons, For all of these we con proceed court, clude that Easter House cannot maintain a mission before he could deprived light and because it further the claim- 1983 action in hearing pronouncements ant of his claim without a any if for Court's in Parratt hearing Supi~eme attempt reason a on the claim was not Hudson. The Court has days, compet held in 120 the law itself was deemed ed to strike a balance between the inadequate protecting ing providing remedy to be the claim- interests of for Thus, contrary injuries ant's interest. sustained in connection with viola assertions, high-rank- rights avoiding Easter House's ing Logan tions of constitutional perform just opportu defendants' failure to the use of 1983 as another their duties did not constitute an "estab- nity parties shop between state and procedure"; federal forums. The Court's decision in lished state the state statute inadequate component appear itself was the in the Zinermon does not to alter this deprivation process. Accordingly, balance. we continue to be broadly lieve that Parratt must be read contrast, In here the State of Illinois enough turning to avoid the fourteenth adopted procedure provided which ade- amendment into a "font of tort law to be quate process protection; due it contained superimposed upon systems may whatever loopholes depriva- no which would allow a already be administered the States." tion to occur without due unless Parratt, 544, 1917; 451 U.S. at 101 S.Ct. at the state acted in an unforeseen Williams, 327, see also Daniels v. way. example, procedure For the state's 333-34, 662, 666, 88 L.Ed.2d 662 detailed the method in which renewal li- (1986). applications censes and charter should be preserved dy provid- Section 1983 must be handled. The law at that time even that, former, deprivations actually ed in the case of the a child those which occur adequate law, agency operate without due such welfare could continue to statelimi- n as thosewhich result from a without a current license in hand while ignore protections awaiting conscious decision to guaranteed by a final decision the state and upon the Constitution. It should the courts for a renew- supra (discussing employed remedy deprivations al license. See note 12 not be (current employ 1969 Ill.Laws 106 version as which occur at the hands of a state acting 23, 2219(b) ¶ ee who is in direct contravention of amended at IlI.Rev.Stat. ch. policies proce (1988))). Thus, procedure the state's established the state designed guaran adequate proce- dures which have been in-and-of-itself unlike the very protections employ promulgated by tee the which the dural scheme Logan. the state in ignore. ee now has chosen to Such a limi

1405 upon maintains the delicate interfere tation 1983 with business relationships or judi- right and federal their between the state to conduct generally. balance business leaving See, systems, remedy e.g., Motels, cial the former to American Pet Inc. v. ’n, torts and the latter to address Chicago Veterinary individual Medicine Ass 106 626, deprivations Ill.App.3d 1297, occur property which without 435 N.E.2d 62 Ill.Dec. (1982); adequate process protection. Bovinette, 325 v. 88 Ill. Streif 1079, 341, App.3d 411 N.E.2d 44 Ill.Dec. Adequate iv. Law Remedies State (1980). addition, 372 law, under Illinois injured party an may bring an action if a Having appellants’ decided that the con- party third injured interferes par may characterized as “random and duct ty’s “tortiously contractual relations or if it “unpre- unauthorized” under Parratt injured with the party’s “pro interferes” under must decide dictable” we spective advantage.” See, economic e.g., meaningful postdeprivation reme- whether (N.D.Ill. Singh Curry, F.Supp. 603 parties dies exist under state law. The 1987); Weaver, Ill.App.3d Williams v. not discussed this issue at have much 1147, 495 N.E.2d 99 Ill.Dec. they length, leading us to believe that have (1986); Kessler, Ill.App.3d Galinski v. disagreement pro- little that Illinois law 480 N.E.2d to re- 89 Ill.Dec. vides Easter House with remedies (1985). Nevertheless, injuries. dress its we will general address some of the concerns Illinois courts also have stated that the suggest may Easter House’s briefs right to do “property,” business constitutes preclude application of Parratt. place and access to one’s of business or the enjoyment good apparently attending

Easter House believes that will it are law “property,” respects liability the remedies available under Illinois incidents of See, e.g., are not as substantial as those available interference therewith. Mea It also characterizes the Wagon dowmoor Dairies v. Milk Drivers’ recovery “lengthy road to as a Chicago, Union 371 Ill. 21 N.E.2d (1939). Thus, speculative process”, especially light may of 308 bring business appellants’ potential qualified immunity wrong action for the tort of malicious and result, impairment claims. As it contends that the ful if it is based See, provided “meaning- upon wrong. state has not it with a e.g., civil Nemanich v. Estates, Inc., postdeprivation procedure” Long Country ful as contem- Grove Club (1970). plated by Ill.App.2d Parratt. 255 N.E.2d 466 Finally, protect its interest exclusive Initially, we note that name, might bring use of its variety of relief in state court seek wide deceptive trade action under practice legal numerous theories. exam under For paragraph chapter of Illi 313 12172of the provides ple, Illinois common law a former nois Revised Statutes. Under this statu employer remedy against awith a former tory provision, may in- Easter House seek key employee who solicits clients and im junctive any relief as well “reme as other exploits gained by properly benefits his or against dies otherwise available the same See, prior employment. e.g., her Corroon conduct the and common law other Ill., Ill. Maguer, Black Inc. v. 145 & of statutes of the state.” 151, 785, 494 App.3d N.E.2d 98 Ill.Dec. 663 Smith, (1986); potential Smith-Shrader Co. v. 136 We believe that these causes of 571, 283, 289-90, action, among others, N.E.2d Ill.App.3d adequately 483 91 afford 1, (1985). vein, “meaningful post-deprivation 5-6 In a similar Ill.Dec. recognizes provide requi- Illinois law a tort action which remedies” sufficient to the may bring against parties process protection.14 which site due As for East- businesses may adequate pro- We believe that Easter House have more that the available remedies are meaningful postdeprivation law remedies other than those causes of vide relief. We state However, suggest action listed herein. we need not likewise do not intend to that we believe every possible theory recovery absolutely of find to recov- discuss that Easter House is entitled 1406 of the ade- concerns, is ... determinative not we action immunity qualified House’s er state remedies.” quacy of the adequate the otherwise that think not do Parratt, (citing 535, at 3204-05 the by be curtailed will law remedies state 1917); also 544, see 101 S.Ct. at U.S. at avail 451 ability themselves appellants' Inc., 789 Sys., ordi- officials National public Communication immunity which

the chapter F.2d at 373. Paragraph 801 enjoy. narily prohib- Statutes Revised Illinois 127 wheth- litigation, that all We note almost Illinois, unless State the against suits forum, in a or federal conducted state er Court Illinois the brought in they are and lengthy as a may characterized 37, ¶ 439.8. How- ch. Claims, Ill.Rev.Stat. decry Litigants often process. speculative held has ever, the Illinois jus- which courts administer speed with the im granted not are particu- lament that may tice and likewise by the enjoyed state. to that munity similar re- more favorable yield a may forum lar v. Nursing Center Park See, e.g., Senn of the claim the nature upon depending sult 1029, N.E.2d 470 Miller, Ill.2d 104 they support. position particular and (1984); see 618-19 1038-39, Ill.Dec. 83 reject applica- However, not should we 126, 497 Jones, Ill.2d 113 v. Smith also an remedy which unless of Parratt tion (1986) 740, 100 Ill.Dec. N.E.2d can court pursue party may injured con a state official against (“An action inadequate to as characterized readily be withstand capacity will his official duct non- meaningless or it is point on sover complaint to dismiss motion thus, way can be said and, no existent complaint if grounds immunity eign guaranteed process relief due provide the violating is ... official alleges that Conse- amendment. fourteenth his acting beyond and thus of Illinois law argu- House's hold that quently, we Hosp. v. Memorial authority”); Children’s misplaced. ments N.E.2d Ill.App.3d Mueller, 141 ex- (1986) (“immunity and reading Hudson our upon 96 Ill.Dec. Based where the State adequate state reme- Parratt, to actions we hold that tends defendant, to actions also any injuries as the correct exist to named dies DCFS, as such departments, appellants’ improp- State from against resulted have their acting pursuant decision intend our officers do not and State We conduct. er added)); see (emphasis authority” actions foreclosing be read lawful Inc. Sys., Communication alternative provides National also time a state any Comm’n, 789 However, Serv. Public alterna- Michigan when for relief. forum Cir.1986)(discussing (6th 370, 373 of a case F.2d and facts exists tive relief light of remedies state law adequacy of not render does Zinermon dictate princi- immunity claims potential plain- inapplicable, Hudson Parratt Hudson). established ples not violated rights are tiff’s ex- action for a section no basis reject must also Finally, we Ins. Co. Kauth v. ists. See recov- of the state Hartford characterization (7th n. 8 Illinois, F.2d 955-56 speculative “lengthy as a ery process adequate (“if provides an Cir.1988) a state forecloses process” which depriva- addressing a of Hudson, Supreme means the In of Parratt. has been deprivation tion, of the victim the law that state argument an rejected Court law”). Any action process of inadequate be- accorded deemed be should relief brought in be thus must injuries complete.” certain and far from it “is cause hold that summary, we In forum. 3205. 535, at S.Ct. 104 U.S. at 468 culminating in cases, line of Parratt that an the fact that stated also by Easter an action Zinermon, preclude to recover not be able “might party injured injuries for the 1983 pursuant § full House remedies state law] under [the licensing alleged from resulted 1983 which in a receive might he § which amount belongs. it where Illinois courts matter and leave theories any these ery of under 1407 conspiracy because it received all of the onstrate that he has been “subjected ... process which was due. a deprivation of magnitude” constitutional may we find that he may maintain a 1983 § B. The Conspiracy to Harass15 action. Hampton Hanrahan, 600 F.2d 600,

We now analyze (7th must the second 630 Cir.1979), count part rev’d in on of grounds, other complaint Easter House’s seeks 754, 446 U.S. damages 1987, for the repeated DCFS’s investi- 64 (1980); L.Ed.2d 670 see also Cam gations 1977, to determine whether eo Center, Convalescent it Senn, Inc. v. 738 states a claim for relief 836, (7th 1983. F.2d denied, Cir.1984), 845 cert. again, Once parties dispute 1106, 105 do not 780, S.Ct. 83 L.Ed.2d 775 the appellants acting were (1985). under color of state law they investigated when Easter Clearly, an unwarranted inves However, House. appellants argue tigation by licensing officials conducted that Easter House identify cannot any a manner discourage calculated to custom “constitutionally protected interest” which ers or interfere with a licensee’s business infringed or, the investigations may violate See, e.g., right. a property alternative, cannot demonstrate that Hester, McGee v. (8th 724 F.2d 92 Cir. investigations deprivation constituted a 1983); see Hester, also McGee v. 815 F.2d of magnitude. constitutional (8th Cir.) 1193 (affirming jury verdict for argues it has a due denied, cert. plaintiff), 484

process right “to be free from unfounded (1987); L.Ed.2d 392 Reed v. However, harassment.” agree we with the Shorewood, Village 704 F.2d appellants that Easter House has not iden- (7th Cir.1983) (opining that “harassment of any tified support argument for its customers, employees relentless, base right such a exists or demonstrated wheth- prosecutions” less may depriva constitute purported “right” er this implicates prop- tion of property). However, Easter erty liberty interest. allegations House’s of impropriety do not substance, Count II of Easter rise to the of a property deprivation level House’s complaint seems to a claim for magnitude. constitutional prosecution. Ordinarily, malicious a claim House’s alleged injuries are the cost prosecution malicious not state a answering questions does of the DCFS’s See, e.g., basis for relief under investigator making files available to Burnham, Antonelli v. F.Supp. them. “injuries” Such do not rise to the (N.D.Ill.1984) (“[M]alicious prosecu level of a constitutional prop tion, alone, erty. See, standing e.g., Reichenberger v. Pritch insufficient to state ard, 1983”); see claim for relief under (7th Section Cir.1981) 660 F.2d (“legal also Guardianship Grove School v. & Ad expended by fees plaintiffs in the ad Comm’n, vocacy 642 F.Supp. 1048 ministrative proceedings qualify cannot (N.D.Ill.1986) (investigation regu injury constitutional showing absent a latory authority does not violation Constitu deprivation of magnitude”). constitutional merely tion because it discredit views We therefore hold that the district court administrator). of school if Only plain in refusing erred grant the appellants’ tiff, being target addition to of a motion for a upon directed verdict Count II properly investigation, motivated can dem- of Easter complaint.16 consent, adopted large 15. With his we have any cognizable shown that it incurred harm. part by Judge analysis Cudahy set consequently forth He jury sent the claim to the original opinion. panel 852 F.2d See instruction that: 909-10. right has constitutional liberty operate its business without un- trial, judge rejected appel- At district 16. founded State harassment officials.... arguments lants' that Easter had not you House If process find Easter House’s due any constitutionally protected violated, identified rights interest were but that it suffered no infringed by investigation violation, which was injury or resulting actual from the should not have sub- ly, district court III. CONCLUSION jury. a claim mitted estab- principles apply the Today, we is decision therefore district court’s The flowing authority from by a line of lished the case and and we Remand Reversed v. through Zinermon Taylor Parratt v. judg- court to enter district ORDER the be- delicate balance maintain a Burch appellants. of the favor ment legislative and federal tween the state postde- adequate Where judicial systems. EASTERBROOK, Judge, Circuit to re- in a state exist remedies privation concurring. has re- deprivation property a dress — -, Burch, v. Zinermon and un- employee’s random from sulted (1990), is incon 108 L.Ed.2d S.Ct. state from established deviation authorized of Parratt the foundations sistent with main- party cannot procedure, policy and 451 U.S. Taylor, he has re- 1983 action because tain § Palmer, (1981),and Hudson v. L.Ed.2d due. process which was of the ceived all 517, 104 82 L.Ed.2d prior decision our reexamined Having if in the (1984). said that errors Zinermon Par- again hold that we light of for civil state’s scheme implementation of a 1983 claims Easter House’s ratt controls foreseeable, process then commitment part in the for their appellants against the inadequate, and it “distin is the fact after conspir- investigation licensing and alleged on the and Hudson guished” Parratt acies. in those wrongs committed that the ground no This is not foreseeable. were cases conspiracy, licensing respect to the With always is foreseeable at all. It distinction in its interest property had a House imple- errors there will be some license, have assumed and we 1974 renewal system, any administrative mentation right it of that appellants deprived which occasions is never foreseeable and it licensing alleged in the by participating fore- errors. It give rise to these will Nevertheless, specifically we conspiracy. lose prison guards would that some seeable (1) arguments that reject Easter (Parratt), just as it prisoners’ deprivations of to minor limited Parratt persons would that some was foreseeable (2) conspiracy can never property, proper authorization without be committed involving random un- characterized case could the (Zinermon); in neither high- conduct, (3) the failure of authorized just when in advance or a court know state provide officials to and local ranking state foreseeability If occur. would errors protections which the the due requires pro- category of blunders estab- amounts to placed in their hands has advance, Parratt and Hudson then cess per au- which is se procedure lished state decided; inability to if the wrongly were (4) activity, improper thorized sub- particular blunder makes foresee meaningful provide failed to has Illinois “due”, all the sequent remedies remedies. postdeprivation wrongly decided. Zinermon was then alleged conspiracy coexist, except perhaps respect to the cannot With cases liberty has harass, between drawing conclude that a distinction we modest important has a that it support property, between assertion failed to majority harass- neither of which deprivations, free unfounded “to be from right had If adopted. Zinermon plainly has failed Zinermon ment.” Hudson, step its Parratt and it overruled suffered demonstrate entailed, I then would logically magnitude analysis sufficient constitutional majori- Judge Cudahy that the agree into prosecution claim malicious turn its did But the analysis is Consequent- ty’s unsound. cognizable one complaint, we conse- of Easter House’s count you Easter House nominal should award then giving instruc- quently that it this damages of one dollar. hold erred in the amount should the district court we believe that Because tion. on second granted a verdict directed have

1409 said, step. not take this Instead it 110 the Fifth Circuit has announced that Ziner- 985, S.Ct. at that Zinermon could live side compels mon us to decide this case for the and by side with Parratt Hudson. plaintiff, see Hardy, 858, Caine v. 905 F.2d (5th Cir.1990), 862 rehearing granted, 905 precedent are com- Inconsistent lines of F.2d at and Judge that Jones could in American law. Zinermon illus- mon pierce majority’s reasoning with at why. reason Four trates one Justices least as O’Connor,Scalia, Judge much force as Cudahy (Rehnquist, Kennedy) and has that, against mustered the law on our majority. when Differ- believe books rules, constitutional complies with ences that would not necessarily persuade redress after a in state court state’s all of the in majority Justices of Ziner- up usually supplies process botch may persuade mon well two, one or and so My opinion concurring in this law. court’s precedent line of already resembling the decision, in 879 first banc F.2d 1478- path of a may drunken sailor take a new (7th Cir.1989), 81 was to the same effect. turn. I believe that despite the force of Barnes, See also Thornton v. 890 F.2d Judge Cudahy’s arguments, Judge Kanne (7th Cir.1989). 1389-90 Three Jus- offers the best estimate of the course a (Brennan, Marshall, Blackmun) tices and majority take, of the Court will and I there- prior hearings that believe are almost al- join opinion. fore his Caine, See also 905 ways necessary, they object and treating (Jones, J., F.2d at 863-867 dissenting). deprivations by judicial process followed Perhaps, however, it is unnecessary to constitutionally adequate. Two Justices rely on case, Parratt at all. That like the (White Stevens) ambivalent, and are more wake, others that in its follow starts from differing emphases and their lead the assumption the Constitution re- as an institution take a meander quires pre-deprivation process. prior If ing remaining line that none of the seven hearings norm, are the constitutional it is Hudson, satisfactory. finds like Ziner easy why to see stingy Court should mon, (with was decided 5-4 Justice White exceptions. with the hearings Prior oral majority in the in Justice Stevens dis always necessary, sent); produced Parratt however. multitude of requires Whether the Constitution opinions; citing other cases Parratt have in placed particular advance of a holding, depriva- different slants on its de kind of pending it; depends part on which Justice tion adequacy describes Jus on the fully any post-deprivation tice Stevens has not process. subscribed inSo both Wil hold, competing colleagues of the views his County Regional liamson Planning Com attempted has to maintain the line of Bank, mission v. Hamilton 473 U.S. Cough demarcation he drew in v. Bonner 195-96, 3108, 3121-22, 105 S.Ct. 87 L.Ed.2d lin, (7th Cir.1975), 517 F.2d 1318-20 (1985), Ingraham Wright, v. banc, (7th modified in 545 F.2d 565 Cir. 651, 674-82, 1401, 1414-18, U.S. 1976), depends a line that on differ (1977), L.Ed.2d 711 the Court held that a liberty (and property ences between quickly (regulating act compelling trifling depriva between way in a that could “taking” amount to a tions). Zinermon could not overrule Par- Williamson, paddling pupil majority ratt because a of the Justices still Ingraham) satisfy its constitutional support support their em it—but does not obligation by opening its courts to those (Justice principles brace its author also, injured by e.g., See Mitchell errors.. Rehnquist) it believes stands for. Co., 600, 619, W.T. Grant (1974); S.Ct. 40 L.Ed.2d 406 hair-splitting judges Such leaves 319, 335, Eldridge, inferior federal Mathews v. posi- courts a difficult 893, 903, tion, (1976). any 47 L.Ed.2d 18 Action because effort to reconcile and now, later, apply litigation cases will be met with a convinc- norm both (which ing Judge Cudahy Ingraham, demonstration Williamson and which the supplied) fly there is a obligation has the Court held satisfied the state’s surprising ointment. So it is not both that to extend due of law.

1410 CUDAHY, Judge, with whom Circuit regulated businesses against Actions POSNER, Circuit cases CUMMINGS hearings, full precede commonly dissenting: 230, Judges, join, 108 Mallen, 486 U.S. v. as FDIC such (1988), hold 265 1780, L.Ed.2d 100 S.Ct. this has remanded Court Supreme The that hear- unyielding rule there is no' of us for reconsideration case to we have Zinermon Since ings come first. in process claim procedural due summary proce- Illinois’ sustained twice — U.S.-, Burch, v. light of Zinermon nursing licenses qualifying the dure (1990). The 975, L.Ed.2d 100 108 110 S.Ct. Turnock, House, v. Inc. homes. Somerset point unfortunately misses majority Cir.1990); (7th Altenheim F.2d 1012 900 surely compel a Zinermon, must Turnock, F.2d 582 902 v. Home German majority’s conclusion opposite to result protect- Cir.1990). Strong interest (7th me, Zinermon, fully it seems to here. them- protect children, cannot who ing my opin- supports analysis contained justify ab- enough to selves, more than case, 852 original panel in this for the ion agencies, reserv- adoption handling of rupt Cir.1988), to (7th my dissent F.2d 901 whether hearings question ing later majority’s prior opinion, 879 banc en precipitously. state acted Cir.1989). 1458, (7th 1481-84 Based F.2d Zinermon, I little choice but have on licenses delay is endemic:

Regulatory my dissent. expire renew sometimes TV operate stations to hold- gets the FCC around years before Zinermon, vigorous was a Before there keep hearings on renewal. Licensees ing the rule an- about reach debate meantime, just as East- broadcasting in the 451 U.S. Taylor, in Parratt v. nounced chil- keep placing House was entitled er (1981), 420 68 L.Ed.2d 101 S.Ct. qualified hired a it adoption once dren for Palmer, U.S. v. Hudson delay modest was Illinois’ social worker. (1984). In Parratt 82 L.Ed.2d li- The old standards. by administrative depri- Hudson, held that the the Court 1, 1974; the new expired December cense by the caused property interest vation of a February on through came one of a state act and unauthorized” “random employee state interim a Although in the the Constitu- not violate employee does au- Easter House’s judge that a state told guarantee process procedural due tion’s this undisputed that lapsed, it is thority had adequate provided the state has where law. matter of state mistaken as was As the remedies. postdeprivation a mistaken statement proposition Zinermon, some circuits observed Court single vio- by a state official law of state rule applied the had Parratt/Hudson of the four- clause lates the very effected deprivations “even to out of make hash would teenth amendment providing pre- charged with officials state pay not government need norm that a n. 2 110 S.Ct. at 978 deprivation process.” utter mistaken just because course, has, cases). It (collecting been v. Rich- See OPM of law. statements Logan v. decision since the Court’s clear — 2465, 110 -, S.Ct. mond, Co., Brush Zimmerman (1990). L.Ed.2d 387 (1982),that Par- L.Ed.2d 265 in which extend cases does not liberty, and the ratt dealt Zinermon destroys procedure” impor- protect the “established required states according without property right pro- someone’s could of those who tant interests process. proper predeprivation person seeks to that themselves. tect county official’s involving a abuse can be In a case interests that the kind vindicate recog- office, panel of this court long af- of his money and redressed measured be construed both could that Parratt nized event; state’s interest ter the opted for a narrowly and nar- broadly and ex- potential young at protecting rule under the of the construction If row agency. pense adoption O’Malley, 826 presented. Tavarez facts erred, supply all its courts J.). Cir.1987) (Posner, But (7th F.2d 671 that is due. territory before the vast (“[WJhen be- id. at 1401 alternative relief ex- the Parratt situation on the one tween ists and the facts of the case dictate that Logan hand and the scenario on the other Zinermon does not render Parratt largely remained uncharted. The Court inapplicable, Hudson plaintiff’s pro- due in granted precisely certiorari Zinermon rights cess are not violated and no basis for order to resolve the circuit conflict over exists.”). section 1983 action majori- The proper scope. Parratt’s ty’s niggardly interpretation of Zinermon could not wrong. be more

The Court’s decision Ziner- certainly ismon consistent with a narrow- The majority’s failure to confront Ziner- interpretation Parratt, er like that em- mon head-on has forced it into a series of ployed in Tavarez. Zinermon holds that a contradictions. These contradictions in predeprivation hearing required, is where turn majority have led the to enlist a bat- possible, when the occurrence of a constitu- talion of straw men in order help to evade deprivation tional is not unforeseeable. the real issues majority’s predic- here. The This is a far fetch only from the view that ament is most evident in its continued diffi- Logan paradigmatic defines the circum- culty defining who or what is the “state” predeprivation process stances in which is and what conduct employ- which state required. Guss, v. 775 F.2d See Greco may give ees rise to a section 1983 action (7th Cir.1985)(Wood,Jr., J.) (“The con- against the view, state. In the majority’s trolling inquiry Parratt Lo- [under only “policymakers” may equated be gan is not whether the result- ] the “state” only because “policy” that procedure ed from an established results from policymaking pro- “formal predeprivation process rather whether was cess” amounts to an pro- “established state indeed, practical.”). explains, Zinermon cedure.” Majority op. See at 1402-1403. rule, predeprivation process that is the majority’s The regard error this obvious- exception. majority Yet has ly derives from its intransigent adherence glossed import in over Zinermon’s an ef- to the Logan view that describes the preserve application fort to the broad exception applicability of the Par- employed in Parratt it its first en banc rule. ratt opinion. casting In problem of what consti- Zinermon, majority’s Before question tutes “state” action as a whether plausible. analysis was But particular or not a employee’s status Zinermon, longer view of it is no conceiva- in the hierarchy official will make em- may applied rule ble Parratt be so ployee’s per conduct se attributable to the broadly majority applies as the it here. state, majority simply tilting is at wind- majority opinion goes great lengths The to mills. person Whether a is the “state” will distinguish factually to Zinermon from the inevitably depend upon scope of that doing so, present majority case. person’s authority official and the facts of demonstrates its continued adherence to particular case. It should be clear in view, wholly rendered untenable light Zinermon, however, that, pur- applied that Parratt poses determining whether the “state” any except involving case one an “estab- has violated an individual’s constitutional procedure,” Logan. lished state as in In- right process, to due deed, generally the “state” majority dangerously treads close any person includes delegated to whom is categorizing Zinermon as a Logan-type responsibility giving predeprivation op. Majority (opining case. at 1401 See (“The process. legislature’s delegation Florida See State broad delegated hospital authority power hospital of uncircumscribed [the staff] authority “statutory oversight” very deprivation was to effect the staff which ren- liberty deprivation predictable). complained delegated dered The of here ... and also evidently majority duty considers Zinermon to them the concomitant initiate the narrowly merely exception procedural another factual safeguards up by set state law guard confinement.”). to the broad against Parratt. See unlawful it is key is whether The impracticable. unquestionably includes This definition hearing. possible hold a reasonably who was official Felder, Illinois announced Mathews a hear- balancing notice test providing charged with declining to renew Eldridge, ing before not, majority (1976), license. as the L.Ed.2d 18 prop with whether supposes, concerned au Felder’s no difference It makes to a pursuant occurred erty deprivation by state laws thority “circumscribed” policy, but state or “informal” “formal" The decision to regulations. agency and was process predeprivation rather whether scope of au his within grant process was Indeed, has Supreme Court the absolved of not be he thority, and should feasible. that Par- simply proposition the explicitly rejected discretion abusing his liability for pro predeprivation had regulations, may apply when ratt laws and the state because pro have satisfied the them, feasible, long as the state would as cess is he followed requirement. process process. adequate post deprivation due Constitution's vides heavily on Zinermon, relied (“In Zinermon, the situations Court 987 110 S.Ct. at 167, Pape, U.S. 81 v. 365 in Monroe holding pre- provide a feasibly can State where the (overruled (1961) in 492 L.Ed.2d 5 prop S.Ct. taking the hearing before v. New York by Monell relevant part not so, of regardless must do generally it erty, Servs., 98 Dept. Soc. 436 City tort a of adequacy post-deprivation of the (1978)), that 611 L.Ed.2d taking.”); the compensate for remedy to of to all violations applies section v. Louder Bd. see also Cleveland of Educ. only those that rights constitutional —not mill, 105 S.Ct. 470 U.S. law, also those by state authorized (1985). emphasized The Court L.Ed.2d 494 authority of state from abuses that result and Hudson that “Parratt in Zinermon 110 S.Ct. by state law. forbidden and are v. Mathews special a represent case Tavarez, at F.2d 982; see also at postdeprivation in Eldridge analysis, which liability “escape not (State could officials is are all the tort remedies exceeding simply by the section 1983 under rem they only are the due, simply because confound authority.”). I am scope their pro to expected could be edies the State majority’s persistence therefore, by ed, Zinermon, (empha at 985 110 S.Ct. vide.” his offi characterizing Felder's abuse in added). sis and unauthorized” “random power as cial simply reaffirms Zinermon may Thus, not state for which conduct El by Mathews v. the Parratt supplied rule.* test functional liable held predictable dridge. deprivation was If the imaginary adver jousting with it is While possible, process was predeprivation Zin gist saries, majority ignores for liable failure state be held should dis principles The constitutional ermon. emi It is process. predeprivation provide all situations apply to in Zinermon cussed unfortunately, (and not, predictable nently imple charged with officials in state as Felder unusual) such that an official constitu provide fail menting a statute determining who acts predeprivation required tionally will be renewed not a license impossible whether or or not be to do so when would depriving of their individuals state in majority five of the liberty stumbles over to me that *It seems authority car- This interests. key "autho or word: another definition duty provide predeprivation it the explains Ziner ried with Court As the rized." Zinermon, Thus, depri- process. "[t]he as mon, due employees' in Parratt and acts the state sense in the vation here ‘unauthorized’ the sense that were "unauthorized" Hudson law, by an act state-delegated power that it sanctioned no had those instead, but, 'depriv[ation] of constitution- was a deprivations that oc authority or effect discre- cases, rights abuse of his they ... an official's no corre al had those curred Zinermon, (quoting at 990 proce 110 S.Ct. tion.”' sponding duty provide the victims 476). contrast, at authority Pape, Monroe v. safeguards. In del dural dep- explicitly that such hospital determined officials egated by the state Parratt in the authority rivation is not "unauthorized” vested Illinois Zinermon—like representa- sense. power act as in Felder—was the hearing and whether or not notice precede

will the renewal decision Leroy THOMAS, Jr., authority his simply deny abuse Petitioner-Appellee, furnishing renewal without the licensee process. Under Mathews Ziner INDIANA, al., STATE OF et mon, designated process-giver who refus Respondents-Appellants. give process es to violates the Constitution legislature much as that establishes No. 89-3040. inadequate procedural protections for prop United Court Appeals, States erty liberty deprivations. Seventh Circuit. unpersuaded by I majority’s remain cursory possible postdeprivation review Argued 9,May 1990. legal remedies available to Easter House. Aug. Decided Under the mere of a existence (or postdeprivation claim battery tort claims)

potential tort cannot excuse the provide predeprivation failure to

state’s

process Tavarez, in most cases. See also (“If

826 F.2d at 675 due is satisfied ordinary judicial state remedies

torts, virtually then not would no in-

terference be actionable un-

der section but even such classic con- police-

stitutional-tort cases as that of the suspect

man bypass who kills a in order to procedures

the cumbersome criminal

justice system actionable, pro- would not be killing

vided the was a tort

law.”). Further, majority persists in its

superficial thorny ques- treatment of the immunity.

tion of state thought

I had Court’s

decision Zinermon would have resolved dispute validity over the of Easter procedural claim. In-

stead, majority has danced around Zin-

ermon, disregarding the precedential broad

impact merrily tripping of that case and path tortuous

down own toward what obviously wrong to me an

seems conclu- regrettable It

sion. is indeed ma- again

jority has once chosen a course that unquestionably protections

will weaken the 1983 and leave section citizens vulnera- power by

ble to unconstitutional abuses of I respectfully officials. dissent.

Case Details

Case Name: Easter House, an Illinois Not-For-Profit Corporation v. Thomas Felder, Florence McGuire and Joan Satoloe

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 14, 1990

Citation: 910 F.2d 1387

Docket Number: 86-2164

Court Abbreviation: 7th Cir.