Eddie R. Bradley v. Village of University Park, IL ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3456
EDDIE R. BRADLEY,
Plaintiff-Appellant,
v.
VILLAGE OF UNIVERSITY PARK, ILLINOIS,
an Illinois Home Rule municipality, and
VIVIAN COVINGTON, Mayor, in her individual
and official capacities,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15–CV–8489 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 15, 2017 — DECIDED JULY 16, 2019
____________________
Before MANION, ROVNER and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. In 2015, the Village of University
Park’s mayor and board fired police chief Eddie Ray Bradley
without any notice of good cause or any form of hearing—i.e.,
the procedural protections owed to Bradley under the United
States Constitution. Bradley sued the village and mayor in
2 No. 16-3456
federal court under 42 U.S.C. § 1983 for violating his Four-
teenth Amendment rights by depriving him of a property in-
terest in his job without due process of law. He also asserted
several state-law claims. The district court dismissed Brad-
ley’s federal due process claim on the pleadings. We reverse.
The parties agree that Bradley had a protected property
interest in his continued employment. They agree that the
mayor and the village board are the policymakers for their
municipality on the subject. And everyone agrees that al-
though there was ample opportunity for a hearing, Bradley
received no pretermination notice or hearing. Those points of
agreement suffice to prove a due process claim under § 1983
against the individual officials and the village itself, where the
village acted through high-ranking officials with policymak-
ing authority. See, e.g., Cleveland Bd. of Education v. Loudermill,
470 U.S. 532, 542 (1985); Pembaur v. City of Cincinnati, 475 U.S.
469, 485 (1986); Monell v. New York City Dep’t of Social Services,
436 U.S. 658, 694 (1978).1
The defendants seek to avoid this straightforward conclu-
sion. They urge us to follow a line of cases that excuses liabil-
ity for the absence of predeprivation due process if the depri-
vation is the result of a “random, unauthorized act by a state
employee, rather than an established state procedure,” and “if
a meaningful postdeprivation remedy for the loss is availa-
ble.” Hudson v. Palmer, 468 U.S. 517, 532-33 (1985), citing Par-
ratt v. Taylor, 451 U.S. 527, 541 (1981), and Logan v. Zimmerman
1 This case does not present any issues concerning genuine emergen-
cies. Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 300
(1981) (explaining the “emergency situation exception to the normal rule
that due process requires a hearing prior to deprivation of a property
right”); Tavarez v. O’Malley, 826 F.2d 671, 674, 677 (7th Cir. 1987).
No. 16-3456 3
Brush Co., 455 U.S. 422 (1982); see also Easter House v. Felder,
910 F.2d 1387 (7th Cir. 1990) (en banc). Defendants reason that
because the village’s top officials decided as a matter of village
policy to deny an employee due process in a way that also
violated state law, their policy decision should be treated as a
“random and unauthorized act … beyond the control of the
State,” Parratt, 451 U.S. at 541, leaving Bradley to pursue rem-
edies only under state law. In other words, defendants argue
that by intentionally violating plaintiff’s federal due process
rights in a way that also violated state law, they insulated
their actions from federal liability.
This argument is foreclosed for several reasons. First, the
Supreme Court has never suggested that the pragmatic but
narrow rule of Parratt applies to employee due process claims
where predeprivation notice and an opportunity to be heard
could be provided in a practical way. Public employers’ deci-
sions to violate both state and federal procedural require-
ments have never been treated as grounds to excuse federal
due process liability. In addition, in this case, the decision to
fire Bradley was made by the top municipal officials. This
court has held squarely that “a complaint asserting municipal
liability under Monell by definition states a claim to which Par-
ratt is inapposite.” Wilson v. Town of Clayton, 839 F.2d 375, 380
(7th Cir. 1988). That holding is consistent with other circuits
and accords with common sense. A municipality cannot be
held liable under a respondeat superior theory of liability. It
can be held liable for a constitutional violation only if the vi-
olation resulted from a formal policy, an informal custom, or
a decision “made by its lawmakers or by those whose edicts
or acts may fairly be said to represent official policy.” Monell,
436 U.S. at 691, 694 & n.58. In cases alleging due process vio-
lations by municipal policymakers, there is no need to inquire
4 No. 16-3456
separately into whether an employee’s actions were “random
and unauthorized.”
In addition, defendants’ expansive interpretation of Par-
ratt, Hudson and Easter House is at odds with the Supreme
Court’s explication of Parratt and Hudson in Zinermon v. Burch,
494 U.S. 113, 124 (1990), which explained that the Court had
“rejected the view that § 1983 … does not reach abuses of state
authority that are forbidden by the State’s statutes or Consti-
tution or are torts under the State’s common law,” and that
“overlapping remedies are generally irrelevant to the ques-
tion of the existence of a cause of action under § 1983.”
Excusing top municipal officials from federal liability
when they violate constitutional due process rights, so long
as they also violate state laws and the state provides some
post-deprivation recourse, would (1) undermine public em-
ployees’ due process rights and remedies under Loudermill
and its progeny; (2) conflict with Monroe v. Pape, 365 U.S. 167
(1961), and its progeny, which hold that a state or local official
may be sued under § 1983 for actions taken “under color of
state law” even though the official’s actions also violate state
or local law and a remedy exists under state law; and (3) con-
flict with Patsy v. Board of Regents, 457 U.S. 496, 500–01 (1982),
which held that § 1983 plaintiffs need not exhaust state-law
remedies before asserting their federal rights. There is no in-
dication in Parratt, Hudson, Zinermon, or our en banc decision
in Easter House of an intention to undermine or overrule so
much bedrock § 1983 law or to intrude on Monell doctrine in
cases against municipalities. Those decisions should not be
read to provide a defense to Bradley’s due process claim.
Where predeprivation procedures are both required and
practicable, municipal policymakers expose the municipality
No. 16-3456 5
and themselves to liability under § 1983 if they deliberately
disregard an individual’s constitutional due process rights.
This is true even when state law also offers postdeprivation
remedies. We therefore reverse the judgment of the district
court and remand for further proceedings.
I. Factual Background and Procedural History
In 2013, plaintiff Bradley became the police chief of the Vil-
lage of University Park, Illinois. Soon after a municipal elec-
tion in 2015, however, the mayor and village board placed
Bradley on administrative leave. Thirteen days later, they
fired him summarily, without giving him any notice of good
cause or any opportunity to be heard.
The letter terminating Bradley did not try to justify his fir-
ing based on any sort of good cause. It suggested that he was
being ousted by operation of state law because his employ-
ment contract extended his tenure beyond the term of the vil-
lage officeholders who had appointed him, citing 65 Ill.
Comp. Stat. 5/3.1-30-5(c) & 5/8-1-7(b), and Millikin v. Edgar
County, 142 Ill. 528 (1892). This meant, according to the village
board, that Bradley’s appointment as police chief terminated
as of May 15, 2015 without needing a board vote, a statement
of reasons, or a hearing. Bradley responded with a letter de-
manding an opportunity to be heard. He received no answer.
These actions did not comply with the termination provi-
sions of Bradley’s employment contract, the requirements of
state law, or—critical to this case—the Fourteenth Amend-
ment. To effect Bradley’s removal, Illinois state law required
the village to follow a process set forth in 65 Ill. Comp. Stat.
5/10-2.1-17. See also University Park, Ill., Codified Ordinances
part 2, title 8, § 271-02(g) (adopting in its entirety 65 Ill. Comp.
6 No. 16-3456
Stat. 5/10-2.1-17). This process requires a statement of “the
reasons for such removal or discharge,” which must be voted
on by the village’s corporate authorities before the discharge
may take effect. Id. The process also includes “a fair and im-
partial hearing of the charges” in front of the village’s board
of fire and police commissioners. Id. These procedures would,
if followed, satisfy the basic federal constitutional require-
ment that the village offer its tenured employees notice and
an opportunity to be heard before firing them, a right that
“does not depend on a demonstration of certain success.”
Loudermill, 470 U.S. at 542–46; id. at 544, citing Carey v. Piphus,
435 U.S. 247, 266 (1978); see also Gilbert v. Homar, 520 U.S. 924,
929 (1997) (explaining that minimum constitutional require-
ments of “pretermination process need only include oral or
written notice of the charges, an explanation of the employer’s
evidence, and an opportunity for the employee to tell his side
of the story”).
The mayor and the village board had the authority and
discretion to fire Bradley. State law delegated this authority
to their offices. See 65 Ill. Comp. Stat. 5/10-2.1-17 (vesting
power to remove police chief in “the appointing authority”);
University Park, Ill., Codified Ordinances part 2, title 4, § 210-01
(mayor sits on village board); id. at title 6, § 220-02 & -05 (vil-
lage board, which includes the mayor, appoints a municipal
manager, and together the board, mayor, and manager ap-
point and remove police chief).
Bradley sued under § 1983 for deprivation of property
without due process of law, naming as defendants the village
itself and the mayor in her official and individual capacities.
(We need not distinguish between the village and the mayor
in this opinion.) He also sought relief under several state-law
No. 16-3456 7
theories. The village filed an answer admitting that Bradley
was fired without any process and asserting several affirma-
tive defenses, including qualified immunity for the mayor in
her individual capacity. The village has conceded that Brad-
ley held a protected property interest in his job.2
The district court directed the parties to address the qual-
ified immunity defense and to address our decision in
Michalowicz v. Village of Bedford Park, 528 F.3d 530, 532–33 (7th
Cir. 2008), which affirmed dismissal of a federal due process
claim by a local fire inspector. Unlike the present case,
Michalowicz had received hearings both before and after his
firing, but he alleged that his hearings did not comply with
the detailed procedures required under the state statute.
Nonetheless, the district court here rendered judgment on the
pleadings and dismissed Bradley’s due process claim with
prejudice. Dkt. 35 at 3.
The district court reasoned that Bradley simply “attacks
the actions, and inactions, of Defendants in the process of fir-
ing him” and not the “process available to him under Illinois
law” for vindicating his rights. Id. This meant, in the judgment
of the district court, that “Plaintiff’s accusations are that De-
fendants’ actions were ‘random and unauthorized’ by law,”
id. at 2, quoting Michalowicz, 528 F.3d at 535, so that constitu-
tional due process requirements are met as long as a state law
2 This fact distinguishes Bradley’s case from the same village’s firing
of its village manager, also in May 2015. See Linear v. Village of University
Park, 887 F.3d 842, 843–44 (7th Cir. 2018) (finding that plaintiff failed to
state due process claim because he did not have property interest in his
tenure as village manager). The village has expressly waived on appeal
any arguments it might have made to the contrary. See Appellees’ Br. at
14, 23–24.
8 No. 16-3456
remedy “provides for a post-termination hearing.” Id. The
district court found that Bradley’s remedy in state court under
state administrative law would be adequate and his “choice”
not to take advantage of the state administrative process
available to him was “fatal to his claim in federal court.” Id. at
3. The court then dismissed Bradley’s remaining state-law
claims without prejudice.
II. Bradley’s Federal Due Process Claim
A. Due Process Basics
Because the district court dismissed Bradley’s complaint
on the pleadings under Federal Rule of Civil Procedure 12(c)
for failure to state a claim, we review the district court’s legal
conclusions de novo, construing the factual allegations in the
complaint in the light most favorable to Bradley. E.g., Bishop
v. Air Line Pilots Ass’n, 900 F.3d 388, 396–97 (7th Cir. 2018).
The basic legal questions presented by due process cases
like this are familiar: “(1) is there a property or liberty interest
protected by due process; and (2) if so, what process is due,
and when must that process be made available?” Simpson v.
Brown County, 860 F.3d 1001, 1006 (7th Cir. 2017); see gener-
ally Mathews v. Eldridge, 424 U.S. 319, 333–35 (1976).
For public employees, a “protected property interest in
employment can arise from a state statute, regulation, munic-
ipal ordinance, or an express or implied contract.” Crull v.
Sunderman, 384 F.3d 453, 460 (7th Cir. 2004), quoting Johnson
v. City of Fort Wayne, 91 F.3d 922, 943 (7th Cir. 1996). We need
not dwell on this element. As noted, the village concedes that
Bradley had a property interest in his job protected by proce-
dural due process. His protections were not just procedural
but substantive. Cf. Manley v. Law, 889 F.3d 885, 893 (7th Cir.
No. 16-3456 9
2018) (purely procedural rules of state or local law do not sup-
port claim to federal due process rights), citing Swarthout v.
Cooke, 562 U.S. 216, 221–22 (2011).
When a public employee has a property interest in his or
her job, the constitutional requirements for predeprivation
procedures are well-established: notice of the proposed dep-
rivation, a statement of reasons, and an opportunity to be
heard in response. Board of Regents v. Roth, 408 U.S. 564, 569–
70 (1972); Perry v. Sindermann, 408 U.S. 593, 602–03 (1972). As
for “the specific dictates of due process” in any individual
case, we are required to consider “three distinct factors: First,
the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.” Mathews,
424 U.S. at 335. Being fired from a job does not require a pre-
deprivation hearing that approximates a full trial. Cf. Goldberg
v. Kelly, 397 U.S. 254, 266–71 (1970) (termination of welfare
benefits was such a substantial deprivation that plaintiff was
entitled to a predeprivation “evidentiary hearing”). But a job
is nonetheless a substantial enough property interest that, ab-
sent extenuating circumstances such as an emergency, the ba-
sics of predeprivation due process must be provided.
Thus, in the normal course of terminating a public em-
ployee who has a property interest in his or her job, “the root
requirement of the Due Process Clause” is the provision of
adequate notice and “some kind of a hearing” to a public em-
ployee “before he is deprived of any significant property
10 No. 16-3456
interest.” Loudermill, 470 U.S. at 542, 546 (internal quotations
omitted); accord, e.g., Gilbert, 520 U.S. at 929; Zinermon, 494
U.S. at 132 (“In situations where the State feasibly can provide
a predeprivation hearing before taking property, it generally
must do so regardless of the adequacy of a postdeprivation
tort remedy to compensate for the taking.”).
To be clear, Bradley is not complaining about the ade-
quacy of his notice or the procedural details of a hearing. All
parties agree: he received no process at all. In contrast, plain-
tiffs in public employee due process cases often argue that
their rights to due process were violated when state or local
officials failed to comply with additional procedural details
set forth in state statutes or local ordinances. State and local
governments are free to provide more robust protections and
detailed procedures for firing and disciplining public employ-
ees than is constitutionally required. Many have done so.
Those detailed procedural codes are easier to administer than
having to devise ad hoc procedures in each case.
As we have written for decades, however, those additional
procedural details in state and local law should not be con-
fused with the minimal federal constitutional requirements of
predeprivation notice and an opportunity to be heard. See,
e.g., Schultz v. Baumgart, 738 F.2d 231, 236 (7th Cir. 1984) (ex-
plaining that “it is not the task of this [federal] court to enforce
in every procedural detail the elaborate requirements of [state
law]”); accord, e.g., Linear, 887 F.3d at 844 (“We regularly dis-
parage arguments … that procedures required by state law
create property interests and hence lead to a federal
No. 16-3456 11
requirement that state procedures be used.”), citing Snowden
v. Hughes, 321 U.S. 1, 11–13 (1944).3
Furthermore, “[j]ust as a violation of state law does not a
constitutional claim make, so the [state law] violation does not
protect officials from the federal consequences of their other-
wise-unconstitutional conduct,” as Supreme Court precedent
has “establish[ed] the indifference of constitutional norms to
the content of state law.” Archie, 847 F.2d at 1217 n.6, citing
Home Telephone & Telegraph Co. v. City of Los Angeles, 227 U.S.
278 (1913), and Snowden, 321 U.S. 1.
This point has been clear since Monroe v. Pape, 365 U.S. 167,
183 (1961), which was overruled in part not relevant here by
Monell, 436 U.S. at 664–89. Monroe held that the defendant po-
lice officers were acting “under color of” state authority and
could be held liable under § 1983 for violations of the United
States “Constitution and laws of Illinois,” despite the existence
3 Our cases reiterating this principle are legion. See, e.g., Martin v.
Shawano-Gresham School Dist., 295 F.3d 701, 706 (7th Cir. 2002) (“the failure
to conform with the procedural requirements guaranteed by state law
does not by itself constitute a violation of federal due process”); Wallace v.
Tilley, 41 F.3d 296, 301 (7th Cir. 1994) (holding that “denial of state proce-
dures in and of itself does not create inadequate process under the federal
constitution” because constitutional requirements are satisfied with suffi-
cient predeprivation notice and an opportunity for a hearing—even if
plaintiff did not have an attorney present at the hearing, and such hearing
was not conducted by an impartial decision-maker); Osteen v. Henley, 13
F.3d 221, 225 (7th Cir. 1993) (“As we tirelessly but unavailingly remind
counsel in this court, a violation of state law … is not a denial of due pro-
cess, even if the state confers a procedural right. … The standard of due
process is federal.”); Archie v. City of Racine, 847 F.2d 1211, 1216–17 (7th
Cir. 1988) (en banc) (“Once state law defines the substance [of the property
right], constitutional law establishes the minimum procedures. … [But]
violation of state law is not itself the violation of the Constitution.”).
12 No. 16-3456
of “a simple remedy” under Illinois law and the fact that “the
courts of Illinois are available to give petitioners that full re-
dress.”365 U.S. at 172 (emphasis added). This was so because
§ 1983 was designed to provide a remedy “against those who
representing a State in some capacity were unable or unwilling
to enforce a state law.” Id. at 176. Monroe explained: “It is no
answer that the State has a law which if enforced would give
relief. The federal remedy is supplementary to the state rem-
edy, and the latter need not be first sought and refused before
the federal one is invoked. Hence the fact that Illinois by its
constitution and laws outlaws unreasonable searches and sei-
zures is no barrier to the present suit in the federal court.” Id.
at 183.
In sum, the simultaneous violation of both federal and
state law does not provide defendants with a defense to lia-
bility, nor does the existence of a state remedy bar aggrieved
plaintiffs from pursuing federal claims.
B. Monell Basics
The legal issues are undisputed until this point: Bradley
had a protected property interest, which he lost without any
due process. And since Monell v. New York City Dep’t of Social
Services, 436 U.S. 658, 694 (1978), a municipal corporation may
be held liable under § 1983 in such circumstances. As we re-
cently explained, “[t]he critical question under Monell, reaf-
firmed in Los Angeles County v. Humphries, 562 U.S. 29 (2010),
is whether a municipal (or corporate) policy or custom gave
rise to the harm (that is, caused it), or if instead the harm re-
sulted from the acts of the entity’s agents.” Glisson v. Indiana
Dep’t of Corrections, 849 F.3d 372, 379 (7th Cir. 2017) (en banc).
Determining what caused the violation is crucial because Mo-
nell held that “municipalities are not liable for the torts of their
No. 16-3456 13
employees under the strict-liability doctrine of respondeat su-
perior, as private employers are.” Vodak v. City of Chicago, 639
F.3d 738, 747 (7th Cir. 2011). Local governments are liable for
damages under § 1983 only for violations of federal rights that
occur “pursuant to official municipal policy of some nature.”
Monell, 436 U.S. at 691.
The “official policy” requirement for Monell claims is “in-
tended to distinguish acts of the municipality from acts of em-
ployees of the municipality” and to limit liability to “action for
which the municipality is actually responsible.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 479–80 (1986). A plaintiff might
prove this essential element by showing that (1) “the action
that is alleged to be unconstitutional implements or executes
a policy statement, ordinance, regulation, or decision offi-
cially adopted and promulgated by that body’s officers,” Mo-
nell, 436 U.S. at 690; or (2) the “constitutional deprivations
[were] visited pursuant to governmental ‘custom’ even
though such a custom has not received formal approval
through the body’s official decisionmaking channels,” id. at
690–91; or (3) the deprivation was “made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy,” id. at 694. See also Los Angeles County v. Hum-
phries, 562 U.S. at 36; Board of County Com’rs of Bryan County v.
Brown, 520 U.S. 397, 403–04 (1997).
The Monell requirement can be satisfied by “a single deci-
sion attributable to a municipality.” Bryan County, 520 U.S. at
405. “[I]t is plain that municipal liability may be imposed for
a single decision by municipal policymakers” to adopt “a
course of action tailored to a particular situation … whether
that action is to be taken only once or to be taken repeatedly.”
Pembaur, 475 U.S. at 480–81, 485 (municipality was liable
14 No. 16-3456
under § 1983 when county prosecutor acting as county’s final
decisionmaker directed subordinates to engage in actions that
violated plaintiff’s rights); City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 252,268 (1981) (municipal liability for compensa-
tory—but not punitive—damages was appropriate under
§ 1983 when city council canceled performer’s concert license
without due process).
Contrary to defendants’ position here, such an unconsti-
tutional act of municipal decisionmakers can result in munic-
ipal liability even if their act also violated state law. For exam-
ple, in Owen v. City of Independence, 445 U.S. 622 (1980), the
Supreme Court made clear that both a city and its manager
could be held liable under § 1983 for firing the city police chief
without due process, even if the defendants’ actions also vio-
lated state law. Id. at 627 n.4 & 633 (holding qualified immun-
ity does not apply to damage claims against municipal gov-
ernment itself).
If a plaintiff cannot prove, however, that a policy is at-
tributable to the municipality itself—i.e., that the deprivation
was due to “[e]ither the content of an official policy, a decision
by a final decisionmaker, or evidence of custom”—then there
is no municipal liability. Glisson, 849 F.3d at 379. Any inquiry
into whether the actions of a municipal employee may be at-
tributed to the municipality can be answered by applying the
Monell test for liability.
In Bradley’s case, this component is also undisputed. The
mayor and the board concede that they had sole discretion
and authority to fire Bradley. “[P]roof that a municipality’s
legislative body or authorized decisionmaker has intention-
ally deprived a plaintiff of a federally protected right neces-
sarily establishes that the municipality acted culpably.” Bryan
No. 16-3456 15
County, 520 U.S. at 405. Under Monell, the actions of the mayor
and village board in firing Bradley are, by virtue of the de-
fendants’ authority as policymakers, automatically consid-
ered actions of the municipality itself under § 1983. Their de-
cision to deprive Bradley of due process is the municipal pol-
icy that forms the basis for defendants’ liability.
III. Defendants’ Counter-argument
A busy reader might be forgiven for thinking that this
opinion should end here. The municipal defendants seem to
have conceded that the municipality’s policymakers uncon-
stitutionally deprived Bradley of a recognized property inter-
est without any due process. Yet defendants instead contend
that their official action—taken by the village’s highest-rank-
ing officials with final policymaking authority—should be
considered “random and unauthorized” and thus excused
under Parratt. We reject this defense.
To explain why, we first describe Parratt and its progeny
(Hudson, Logan, Zinermon, and our circuit’s application of the
Parratt exception in Easter House). We then explain why de-
fendants’ proposal to extend the Parratt exception to munici-
pal § 1983 liability is contrary to our own and other circuits’
precedent—and for good reasons. It makes no sense to speak
of such official policymaking as “random and unauthorized”
in terms of Parratt. That’s why the Supreme Court has never
suggested that Parratt can be extended to defend against an
otherwise valid Monell claim. The defendants’ proposed ex-
ception is not necessary given Monell’s test for liability. And
accepting defendants’ argument would conflict directly with
Monroe, Monell, Pembaur, Owen, and Bryan County. We would
have to reach the improbable conclusion that a municipality
16 No. 16-3456
is not liable for its highest officials’ decision to deprive a per-
son of his federal constitutional rights.
Finally, even if the Parratt exception were relevant here,
neither Supreme Court precedent nor our decision in Easter
House supports defendants’ theory that, so long as municipal
policymakers violate both the federal Constitution and state
law, and some state remedy exists, the municipality is ex-
cused from § 1983 liability. In the past we have disparaged
similar attempts to evade municipal liability, dismissing as
“extravagant” a claim that the “acts of [a] Mayor … are merely
acts of an errant employee.” Vodak, 639 F.3d at 747. Defend-
ants’ proposal would also undermine (1) the constitutional
protection for public employees in Roth, Sindermann, and
Loudermill, while creating a direct conflict with (2) the Monroe
v. Pape line of cases recognizing that state or local officials may
be liable under § 1983 for actions taken “under color of state
law,” even if the official’s actions also violate state or local
law, as well as (3) Patsy v. Board of Regents’ holding that § 1983
plaintiffs need not exhaust state-law remedies before assert-
ing their federal rights. We see no reason to avoid Supreme
Court precedent or to read our precedent in such a disruptive
manner.
A. Parratt and State Employees’ “Random and Unauthorized”
Actions
1. Supreme Court Precedent
“Parratt is a rare exception to due process norms.” Brunson
v. Murray, 843 F.3d 698, 715 n.9 (7th Cir. 2016). A close look at
the facts and holdings of Parratt and its progeny demonstrates
the narrow, pragmatic reasoning underlying this exception to
§ 1983 due process liability.
No. 16-3456 17
In Parratt, a state prisoner ordered the famous “hobby ma-
terials valued at $23.50.” 451 U.S. at 529. Due to the actions of
state prison guards, the hobby materials were lost before they
reached the prisoner. He sued under 42 U.S.C. § 1983 to re-
cover their value as damages for depriving him of property
without due process of law. In that situation, it would have
been impossible for the state to provide a predeprivation
hearing. The initial deprivation—the property loss—was as a
practical matter “beyond the control of the State.” Id. at 541.
Parratt is thus based on the following narrow grounds: If a
predeprivation hearing “is not only impracticable, but impos-
sible,” and yet “some meaningful opportunity subsequent to
the initial taking” is available to provide redress, then that is
all the due process the state can be expected to provide, and
the aggrieved person’s constitutional rights have not been vi-
olated. Id. at 541–43.
In later cases, the Supreme Court elaborated on Parratt’s
limits. The Court emphasized that “absent ‘the necessity of
quick action by the State or the impracticality of providing
any predeprivation process,’ a postdeprivation hearing [ ]
would be constitutionally inadequate,” which “is particularly
true where … the State’s only post-termination process comes
in the form of an independent tort action.” Logan v. Zimmer-
man Brush Co., 455 U.S. 422, 436 (1982), quoting Parratt, 451
U.S. at 539. If the state lacks the opportunity to provide any
predeprivation process (e.g., due to an emergency or the ac-
tions of a rogue employee), the state can still meet its consti-
tutional due process obligations by providing adequate post-
deprivation procedures because the “state’s action is not com-
plete until and unless it provides or refuses to provide a suit-
able postdeprivation remedy.” Hudson, 468 U.S. at 533 (ex-
tending Parratt to intentional but random and unauthorized
18 No. 16-3456
deprivations of prisoners’ property). In essence, “[t]he con-
trolling inquiry is solely whether the state is in a position to
provide for predeprivation process;” if “the property depri-
vation is effected pursuant to an established state procedure,”
Parratt is irrelevant. Id. at 534.
Parratt generated disagreement among circuit courts of ap-
peals, and the Supreme Court stepped in to clarify the scope
and rationale of Parratt (and Hudson) in the context of Flor-
ida’s civil commitment process for people with serious mental
illness in Zinermon v. Burch, 494 U.S. 113, 116 & n.2 (1990). The
Zinermon plaintiff alleged that he had been committed to a
state mental hospital as a voluntary admittee even though his
condition should have prompted assessment under the state’s
more elaborate procedures for involuntary commitment. Id.
at 115, 122–23.
The plaintiff made clear that he was “not attacking the fa-
cial validity of Florida’s voluntary admission procedures any
more than he is attacking the facial validity of Florida’s invol-
untary admission procedures.” 494 U.S. at 117 n.3. In fact, he
conceded “that, if Florida’s statutes were strictly complied
with, no deprivation of liberty without due process would oc-
cur.” Id. Furthermore, the plaintiff did “not dispute that he
had remedies under Florida law for unlawful confinement,”
including damage remedies under state mental health stat-
utes and recourse to the state’s common-law tort of false im-
prisonment. Id. at 130 n.15.
The defendants, who were state hospital officials, argued
that Parratt and Hudson should excuse them from § 1983 lia-
bility. The plaintiff was alleging at most “only a random, un-
authorized violation of the Florida statutes governing admis-
sion of mental patients,” they argued, and he thus should be
No. 16-3456 19
limited to “the postdeprivation remedies provided by Flor-
ida’s statutory and common law.” Id. at 115, 130.
The Supreme Court rejected that argument. The Court first
acknowledged that the state could have imposed additional
safeguards at a predictable juncture in the hospital admission
process—i.e., upon admission. 494 U.S. at 135. But the Court
also noted the evidence that the hospital staff had disregarded
existing procedures in determining whether plaintiff was
competent to be admitted voluntarily, noting the psychia-
trist’s admission notes on petitioner’s confused mental state.
Id. at 134, 118 (after plaintiff was found wandering on a high-
way “bruised and bloodied,” hospital staff gave him voluntary
admission forms to sign while he “was hallucinating, con-
fused, and psychotic and believed he was ‘in heaven’”). The
staff “knew or should have known that he was incapable of
informed consent,” and the way in which he was admitted
“certainly did not ensure compliance with the statutory
standard for voluntary admission.” Id. at 134; see also id. at
135 (“The [hospital] staff are the only persons in a position to
take notice of any misuse of the voluntary admission process
and to ensure that the proper procedure is followed.”). Thus,
the additional guidance the Court apparently envisioned
Florida providing was: do not direct incompetent patients to
sign the voluntary admission forms for competent patients.
That would have come close to “a rule forbidding a prison
guard to maliciously destroy a prisoner’s property,” which
would have seemed futile. Id. at 137.
Zinermon took care to distinguish Parratt and Hudson:
[P]etitioners cannot characterize their conduct
as ‘unauthorized’ in the sense the term is used
in Parratt and Hudson. The State delegated to
20 No. 16-3456
them the power and authority to effect the very
deprivation complained of here, Burch’s con-
finement in a mental hospital, and also delegated
to them the concomitant duty to initiate the proce-
dural safeguards set up by state law to guard against
unlawful confinement. In Parratt and Hudson, the
state employees had no similar broad authority
to deprive prisoners of their personal property,
and no similar duty to initiate (for persons una-
ble to protect their own interests) the procedural
safeguards required before deprivations occur.
The deprivation here is ‘unauthorized’ only in
the sense that it was not an act sanctioned by
state law, but, instead, was a ‘depriv[ation] of
constitutional rights ... by an official’s abuse of
his position.’ Monroe [v. Pape, 365 U.S. 167, 172
(1961)].
494 U.S. at 138 (emphasis added). The Court’s citation to Mon-
roe v. Pape confirmed that a defendant’s admissions that he
had violated state law and that state law provides a postdep-
rivation remedy, as defendants admit here, are not by them-
selves a defense to the federal constitutional claim. And the
quoted passage from Zinermon maps exactly onto the facts of
this case: Illinois law “delegated to [defendants] the power
and authority to effect the very deprivation complained of
here, [Burch’s confinement or Bradley’s termination], and also
delegated to them the concomitant duty to initiate the proce-
dural safeguards set up by state law to guard against unlaw-
ful [confinement or termination].” Id. at 138.
This point was hammered home further by the Court’s ex-
plicit rejection of the village’s position here. The Court
No. 16-3456 21
reiterated that Parratt and Hudson “do not stand for the prop-
osition that in every case where a deprivation is caused by an
‘unauthorized … departure from established practices,’ state
officials can escape § 1983 liability simply because the State
provides tort remedies.” 494 U.S. at 138 n.20. Such a “reading
of Parratt and Hudson detaches those cases from their proper
role as special applications of the settled principles expressed
in Monroe [v. Pape] and Mathews [v. Eldridge].” Id.
Zinermon insisted that Parratt and Hudson remained teth-
ered to a long line of § 1983 jurisprudence, emphasizing that
those cases merely “represent a special case of the general
Mathews v. Eldridge analysis, in which postdeprivation tort
remedies are all the process that is due, simply because they
are the only remedies the State could be expected to provide.”
494 U.S. at 128. In fact, the Court continued, “Parratt is not an
exception to the Mathews balancing test, but rather an appli-
cation of that test to the unusual case in which one of the var-
iables in the Mathews equation—the value of predeprivation
safeguards—is negligible in preventing the kind of depriva-
tion at issue.” Id. at 129. This consideration swamped the
other Mathews factors in Parratt itself because “no matter how
significant the private interest at stake and the risk of its erro-
neous deprivation, see Mathews, 424 U.S. at 335, the State can-
not be required constitutionally to do the impossible by
providing predeprivation process.” Id. Thus, Zinermon made
clear that Parratt and Hudson had not broadly repudiated ex-
isting § 1983 law.
2. Seventh Circuit Application of Parratt in Easter House
Shortly after Zinermon was decided, we considered these
questions in a case the Supreme Court had remanded for fur-
ther consideration in light of Zinermon. Easter House v. Felder,
22 No. 16-3456
910 F.2d 1387 (7th Cir. 1990) (en banc). It would be difficult to
overstate how unusual the facts were in Easter House, or how
much they differed from mainstream public employee due
process cases like Bradley’s. Plaintiff Easter House was a pri-
vate adoption agency that had been betrayed by a former di-
rector named Smith. Stung by some management decisions,
Smith abruptly quit Easter House to start a competing adop-
tion agency that she also named Easter House (for clarity’s
sake, both we and the Easter House opinion refer to the imita-
tor agency as “Easter House II”). Id. at 1391 & n.4, 1393 & n.7.
She stole Easter House’s open and closed case files on adop-
tive families and children. She also induced Easter House’s
only other trained social worker to join Easter House II, at-
tempted to divert Easter House’s mail and telephone calls to
her new address, and deceived a family in the middle of the
adoption process to deal with and pay her rather than Easter
House. Id. at 1391, 1393 & nn.7–9.
The constitutional claims stem from the fact that Smith
also roped into her scheme some state licensing officials in the
Illinois Department of Children and Family Services (DCFS).
She told them that Easter House was careless in handling con-
fidential adoption records and would solicit affluent former
clients to increase the number of placements. She also “made
vague allegations that Easter House was connected to foreign
adoption agencies” and expected to “make a million” from
those connections. 910 F.2d at 1391 & n.3. Although Easter
House never lost its license and continued operating through-
out this debacle, DCFS officials acted contrary to state licens-
ing procedures and: (a) delayed Easter House’s license re-
newal, (b) sent Easter House a letter with some inaccurate li-
censing information that was corrected shortly thereafter, (c)
incorrectly told three people that Easter House’s license had
No. 16-3456 23
lapsed, and (d) did not offer Easter House assistance in the
license renewal process “as required by the DCFS’s regula-
tions and enforcement manual.” Id. at 1391–92.
At trial, a jury found that the defendant state officials had
conspired with Smith to deprive Easter House of its state-is-
sued license and had spread false information about it. 910
F.2d at 1390–94. The jury awarded damages on Easter House’s
federal claim that the defendants temporarily deprived it of
property—its interest in the prompt renewal of its license—
without due process of law. We were “not wholly convinced”
this property interest was “of constitutional magnitude,”
given the fact that Easter House was able to operate without
interruption, but we elected to “assume” this “difficult ques-
tion” was answered in the affirmative. Id. at 1395–96.
We reversed the judgment in favor of Easter House, find-
ing that the due process claim was barred by Parratt. To the
extent the state defendants conspired with Smith (and we
found that much of the evidence seemed to indicate their
“lack of active participation,” 910 F.2d at 1393 n.7), we held
that the state employees’ actions to undermine the state’s li-
censing scheme to assist a competitor were “random and un-
authorized” and that the state’s due process obligations could
be met by existing state-law tort remedies after the fact. Id. at
1404–05.
The en banc majority grappled with the tension between
the Parratt-Hudson exception and Zinermon. Our circuit prece-
dent had previously acknowledged that Parratt could be read
more narrowly to focus on the fact that “the officials author-
ized to grant such a hearing are unaware of the deprivation
before it occurs,” or could be read more broadly to “place[]
beyond the reach of section 1983 any loss that ‘is not a result
24 No. 16-3456
of some established state procedure’ … [because] the state
cannot predict when a loss will occur.” Matthiessen v. Board of
Education, 857 F.2d 404, 407 n.3 (7th Cir. 1988) (holding that
Parratt did not apply to municipal liability analysis under Mo-
nell), quoting Tavarez v. O’Malley, 826 F.2d 671, 677 (7th Cir.
1987), and Wilson v. Town of Clayton, 839 F.2d 375, 380 (7th Cir.
1988). We recognized in Easter House that the Supreme Court’s
rejection of the Parratt defense in Zinermon “hints that a ‘nar-
row’ application of the Parratt rule may be the appropriate
course,” and we tried to ascertain what that meant for Easter
House. 910 F.2d at 1400, citing Matthiessen, 857 F.2d 404, Wil-
son, 839 F.2d 375, and Tavarez, 826 F.2d 671.
Easter House saw the primary distinctions between Parratt
and Zinermon as: (1) the Zinermon state hospital defendants
had both the authority and duty to initiate predeprivation
safeguards, while the Parratt state prison defendants had nei-
ther; and (2) although predeprivation process was impossible
in Parratt, in Zinermon the state could have required additional
procedures to determine if the existing predeprivation hospi-
tal admission procedure should be used. 910 F.2d at 1400–02.
To apply this teaching in Easter House, we noted that, unlike
the Zinermon defendants, the “DCFS officials did not have the
duty to initiate [formal hearing] predeprivation safeguards,”
but “[r]ather, the responsibility to initiate the procedural safe-
guards rested with the party aggrieved by the preliminary
DCFS decision—in this case Easter House.” Id. at 1402. In ad-
dition, the appropriate lens for deciding state responsibility
under § 1983 was whether “the state knew or should have
known” about the defendants’ disregard of state law and pro-
cedure. Id. at 1401. Given that “Easter House point[ed] to
nothing which would indicate that the state knew or should
have known” that DCFS officials might engage in a
No. 16-3456 25
conspiracy to give Easter House some incorrect advice and
delay the renewal of their license in contravention of state
procedure, § 1983 liability was inappropriate. Id. at 1401.
Also, the Easter House opinion did not even cite Monell,
and we rejected Easter House’s attempt to impose a Monell-
like framework for determining state liability, declining to
adopt Easter House’s proposed test that “the single act of a
sufficiently high-ranking policy-maker may equate with or be
deemed established state procedure.” 910 F.2d at 1402. To the
contrary, “we [did] not believe that Zinermon create[d] a per se
‘employee status’ exception to Parratt.” Id. at 1400. To be sure,
“whether a state official ranks ‘high’ or ‘low’ in the state hier-
archy” would be “relevant as indicia of the discretion which
that official exercises.” Id.; see also id. at 1402 (“Without a
doubt, the employee’s position in the governmental hierarchy
is relevant to this inquiry.”). But in determining whether a
state official is liable for a constitutional violation, Easter
House directs us to look to whether (1) “a state’s policy and
procedures in a given area are delegated to a specified policy-
maker, be it a single person, a committee, or the state legisla-
ture,” in which case that entity’s “pronouncement in a given
case reflects the state’s position,” even if informally made; or
(2) if the state’s policy could be said to have “change[d] if the
policymaker repeatedly deviates from established policy and
procedure until his practice and custom has replaced the for-
mal policy and procedures.” Id. at 1403. This liability analysis
is at odds with the liability analysis required by Monell in
cases against municipalities. But we can easily read Easter
House as not creating a conflict with Monell because Easter
House dealt with state officials, not local governments. We
26 No. 16-3456
simply did not address in Easter House any question of munic-
ipal liability under Monell.4
Applying this analysis to Easter House’s claim, we noted
that it was the state that “promulgated policy and procedure
by formal means,” rendering “the employment status of the
state employee violating that procedure … much less im-
portant in determining whether a deviation from the policy
may be characterized as random and unauthorized under Par-
ratt.” 910 F.2d at 1403. Thus, “[e]ven if we assume that the
[DCFS defendants] qualify as ‘policymakers’ themselves—
which we doubt given their position in the governmental hi-
erarchy—their ‘policy’, which at absolute best may be charac-
terized as informal, cannot be said automatically to preempt
or displace otherwise adequate existing state policy and pro-
cedure.” Id.
In the end, Judge Easterbrook’s concurrence in Easter
House accurately described our efforts to reconcile the tension
between Parratt and Zinermon and showed how narrow the
majority opinion had to be to thread its way between “a line
of precedent already resembling the path of a drunken
sailor.” 910 F.2d at 1408–10. The majority read Parratt and
Hudson as cautioning against “the use of § 1983 as just another
opportunity for parties to shop between state and federal
4Easter House held that the high rank of a state official does not pro-
vide a per se bar to application of Parratt. It would be unwarranted, how-
ever, to read Easter House as also announcing a per se rule that the existence
of a state law at odds with a high state official’s actions mandates applica-
tion of Parratt. Such a reading is not grounded in the facts present in Easter
House, and it would conflict with broader Supreme Court jurisprudence,
as discussed below.
No. 16-3456 27
forums.” Id. at 1404. And we concluded the discussion of Par-
ratt and Zinermon this way:
Section 1983 must be preserved to remedy only
those deprivations which actually occur with-
out adequate due process of law, such as those
which result from a state’s conscious decision to
ignore the protections guaranteed by the Con-
stitution. It should not be employed to remedy
deprivations which occur at the hands of a state
employee who is acting in direct contravention
of the state’s established policies and proce-
dures which have been designed to guarantee
the very protections which the employee now has
chosen to ignore. Such a limitation upon § 1983
maintains the delicate balance between the state
and federal judicial systems, leaving the former
to remedy individual torts and the latter to ad-
dress property deprivations which occur with-
out adequate due process protection.
Id. at 1404–05.
Moving forward from Easter House, it is important to
acknowledge what Easter House did not do. It did not address
Monroe v. Pape’s holding that a state official acts under color
of state law for purposes of § 1983 even if he violates state law.
It also did not address Loudermill or Roth or the due process
rights of public employees who have property interests in
their jobs. The Easter House majority did not even mention Mo-
nell or the major differences under § 1983 between state and
local governments. In addition, as explained further below,
we and other circuits have squarely rejected efforts to apply
Parratt to Monell claims. Easter House did not criticize, let alone
28 No. 16-3456
overrule, the line of our cases rejecting Parratt defenses to due
process claims against municipal policymakers, such as Mat-
thiessen, Wilson, and Tavarez.5
B. The Gap Between Monell and Parratt
The village contends that Bradley’s firing without notice
or opportunity to be heard presents a “single act of employee
misconduct” that cannot “automatically become[] the state’s
new position” and lead to liability because the State of Illinois
has not authorized the action. See Easter House, 910 F.2d at
1402; Appellees’ Br. at 22, citing Clifton v. Schafer, 969 F.2d 278,
281–82 (7th Cir. 1992). This argument focused on state policy
might have more force (apart from its conflict with canonical
§ 1983 precedent such as Monroe v. Pape) if the State of Illinois
were somehow a defendant here, or perhaps if a village de-
partment had been acting as the State’s agent in administering
a state benefits program (the issue in Clifton). But for the last
four decades, different rules of liability under § 1983 apply to
municipalities making and carrying out their own policies.
The Supreme Court has never suggested that Parratt could
apply to a Monell claim. The test for liability under Monell is
already designed to identify conduct that is attributable to the
municipality itself—which includes actions taken by an offi-
cial with policymaking authority. There is no need to impose
a separate inquiry as to whether a municipal policymaker’s
5
Since Easter House did not address Monell or claims against munici-
pal governments or employees, our dissenting colleague’s emphasis here
on the perspective of the State of Illinois, in a case against a local govern-
ment and its policymakers, misses the limits of Easter House. See post at 52
& 56–57. In addition, the Easter House majority did not reject Matthiessen,
Wilson, and Tavarez, despite the opportunity to do so.
No. 16-3456 29
conduct is “random and unauthorized.” Parratt, Hudson, and
Zinermon were all decided after Monell, and they either did
not cite Monell at all or merely noted that it overruled the por-
tion of Monroe v. Pape rejecting any form of municipal liability
under § 1983. Parratt and its progeny also did not cite any of
the Supreme Court cases holding that a single act of a munic-
ipality or one of its high-ranking or policy-making officials
can be sufficient for § 1983 liability under Monell, including
Owen v. City of Independence, 445 U.S. 622, 627 & n.4 (1979)
(§ 1983 liability appropriate for municipality that fired police
chief without due process, despite fact that it was also violat-
ing state law), City of Newport v. Fact Concerts, 453 U.S. 247
(1981) (decided weeks apart from Parratt), or Pembaur v. City
of Cincinnati, 475 U.S. 469 (1986) (decided four years before
Zinermon).
Conversely, the Supreme Court’s Monell line of jurispru-
dence, including Bryan County and Pembaur, has never even
suggested importing the Parratt framework, despite facts of-
ten showing concurrent violations of state law and available
state remedies. Because it does not make sense to treat a mu-
nicipal policymaker’s actions as “random and unauthorized,”
and absent any indication from the Supreme Court that Par-
ratt and its progeny were intended to upend the Monell frame-
work, we have flatly rejected efforts to apply Parratt defenses
to Monell claims. In Wilson v. Town of Clayton, the plaintiff al-
leged, among other claims, that the governing town board de-
prived him of property without due process of law by acting
to shut down his business through a campaign of harassment.
839 F.2d at 377–78. The district court had dismissed the claim
by applying a broad reading of Parratt and left the plaintiff to
his tort remedies under state law. We reversed, making clear
30 No. 16-3456
that actions of municipal policymakers simply cannot be
treated as “random and unauthorized” under Parratt:
Because a municipality may only be liable for
“acts which the municipality has officially sanc-
tioned or ordered,” Pembaur v. City of Cincinnati,
475 U.S. 469[, 480] (1986), its liability can never
be premised on the result of a random and un-
authorized act. The district courtʹs dismissal of
[the plaintiff]’s claim against the Town on the
basis of Parratt misses the point of Parratt. “In
Parratt, the Court emphasized that it was deal-
ing with ‘a tortious loss of … property as a result
of a random and unauthorized act by a state em-
ployee … not a result of some established state
procedure.’” Logan v. Zimmerman Brush Co., 455
U.S. 422, 435–36 (1982) (quoting Parratt, 451 U.S.
at 541). When it is the Town itself that is being
sued, and the suit is allowed under Monell be-
cause the action was executed in accordance
with “official policy,” the tortious loss of prop-
erty can never be the result of a random and un-
authorized act. Therefore, a complaint asserting
municipal liability under Monell by definition states
a claim to which Parratt is inapposite.
Id. at 380 (emphasis added).
Other circuits have agreed with this line of our cases. For
example, in Woodard v. Andrus, 419 F.3d 348, 351–53 (5th Cir.
2005), the district court dismissed a claim against a municipal
court’s County Clerk who had charged fees in excess of those
permitted by state law, reasoning that under Parratt the clerk’s
actions were “random and unauthorized” and plaintiff had
No. 16-3456 31
recourse to adequate state remedies. The Fifth Circuit re-
versed, holding that the defendant was the municipality’s ul-
timate repository of county power for assessing court fees, so
that Monell permitted municipal liability for the “official pol-
icy” embodied by the clerk’s actions. Id. at 352–53. In short,
“the Parratt/Hudson doctrine is inapposite” because “actions
in accordance with an ‘official policy’ under Monell can hardly
be labeled ‘random and unauthorized.’” Id. at 353, quoting
Brooks v. George County, 84 F.3d 157, 165 (5th Cir. 1996) (affirm-
ing liability for plaintiff and rejecting Parratt defense to due
process claim: “Where a municipal officer operates pursuant
to a local custom or procedure, the Parratt/Hudson doctrine is in-
apposite”).
Similarly, in Pangburn v. Culbertson, 200 F.3d 65 (2d Cir.
1999), the Second Circuit held that if an “alleged loss results
from adherence to an established state or municipal policy,”
which for municipal liability can include the act of “even ‘a
single decision’ by an official with final policymaking author-
ity,” quoting Pembaur, 475 U.S. at 480, then “the availability of
post-deprivation remedies does not defeat a Section 1983
claim.” Pangburn cited Sullivan v. Town of Salem, 805 F.2d 81,
86 (2d Cir. 1986), which reversed a Parratt dismissal of a Mo-
nell due process claim: “If the conduct of the building official
either established or was pursuant to town policy, Parratt and
its progeny, which apply only to random, unauthorized con-
duct, are simply inapposite to this case.” Accord, Sanders v.
Kennedy, 794 F.2d 478, 482 (9th Cir. 1986) (reversing Parratt
dismissal where plaintiffs alleged Monell due process claim
based on local government’s official policy, practice, or cus-
tom, and the “availability of a state tort remedy” was irrele-
vant); McKee v. Heggy, 703 F.2d 479, 482–83 & n. 6 (10th Cir.
1983) (reversing dismissal of Monell due process claim where
32 No. 16-3456
local officials auctioned plaintiff’s car without complying
with state forfeiture laws and possibly pursuant to city police
custom, and explaining “an act by state officials need not com-
port with state law to be a deprivation of due process, Home
Telephone, [227 U.S. 278], or to be actionable under § 1983,
Monroe[, 365 U.S. 167]” and “the availability of a state post
deprivation remedy does not provide [plaintiff] with due pro-
cess”); see also Gonzalez v. City of Castle Rock, 366 F.3d 1093,
1113–14 (10th Cir. 2004) (en banc) (“when the issue is a depri-
vation resulting from a municipal policy … neither the city
nor individual officers can seek refuge under Parratt”), rev’d
on other grounds, 545 U.S 748 (2005).
So too here. The actions of the defendants as municipal
policymakers simply cannot be deemed “random and unau-
thorized” within the meaning of Parratt. Their actions against
Bradley were village policy. Monell provides the applicable le-
gal standard, and it is satisfied here.6
6The defendants also cite cases in which we held that a plaintiff must
challenge the adequacy of the required state procedures in order to hold
the government entity liable for its employees’ due process violations.
These cases did not involve complaints about a municipality’s formal pol-
icy or an employee with policymaking authority, so there could have been
no municipal liability under Monell. See Gable v. City of Chicago, 296 F.3d
531, 535, 537, 539–40 (7th Cir. 2002) (city employees damaged and stole
from impounded vehicles in violation of city policy; plaintiffs “concede
that their injuries did not result from the application of an express policy
or from any particular act of an individual with policymaking authority,”
and there was no evidence the employees’ actions could be considered
“City customs”); Doherty v. City of Chicago, 75 F.3d, 318, 321, 323–24 (7th
Cir. 1996) (bingo hall operator alleged she was overcharged for bingo li-
cense and was improperly denied a permit due to political bias and neigh-
borhood opposition; although Monell is not cited, there was no allegation
that the city employees who charged the licensing fee and issued permits
No. 16-3456 33
Defendants here are not the first to argue that Parratt
should excuse a municipality for acts of the municipality’s
policymakers. Although we have consistently reached out-
comes that are in line with Monell (or rejected liability for non-
constitutional violations when employees do not adhere to
state-specific procedures), we have at times included the “ran-
dom and unauthorized” language from Parratt to buttress
those decisions. Such doctrinal confusion, however, should
not be taken as authority to read our circuit precedent as cre-
ating a conflict with Monell and, as discussed further below,
other Supreme Court § 1983 precedents.
had any policymaking authority or were acting pursuant to city custom).
In addition, Hamlin v. Vaudenberg, 95 F.3d 580, 582–85 (7th Cir. 1996), is
inapposite on all scores: (1) there was a state, not municipal, defendant;
(2) the plaintiff inmate’s sole allegation was that state prison officials did
not comply with state procedures—which is not a constitutional due pro-
cess claim, see above at 11–12 & n.3; and (3) the defendants were entirely
“without discretionary power.” On a different footing, Germano v. Winne-
bago County, 403 F.3d 926, 929 (7th Cir. 2005), affirmed dismissal of a class
action challenging a county board’s class-wide legislation regarding
health insurance for retired sheriff deputies that was inconsistent with
state insurance provisions. We did so without citing Monell or our cases
rejecting application of Parratt to Monell claims, and we directed plaintiffs
to their state remedies. We reasoned that the state “could not have pre-
dicted or prevented” the county’s action, and thus the county’s actions
were unauthorized. In any event, the result in Germano was certainly cor-
rect. When legislatures enact such class-wide legislation that arguably im-
pairs individuals’ property rights, the legislative process provides the pro-
cedures that are due, though individuals harmed by legislation may still
have takings claims in some cases. See generally Atkins v. Parker, 472 U.S.
115, 129–30 (1985) (legislation changed eligibility for federal food stamps);
Logan v. Zimmerman Brush Co., 455 U.S. 422, 432–33 (1982) (collecting cases
where “the legislative determination provides all the process that is due”).
34 No. 16-3456
Most recently, in Breuder v. Board of Trustees of Community
Coll. Dist. No. 502, 888 F.3d 266, 271 (7th Cir. 2018), we rejected
the village’s position here in a case where another senior pub-
lic employee was fired. In Breuder, a community college board
fired the college president using essentially the same maneu-
ver the village board used to fire Bradley. The college board
claimed that the president’s contract was invalid under Illi-
nois law because it extended beyond the terms of some board
members. Id. at 268. Because the board viewed the contract as
invalid, it took the position that the president had no right to
any hearing.
We rejected that argument. Under clearly established fed-
eral law, “a hearing is required whenever the officeholder has
a ‘legitimate claim of entitlement,’ to keep the job.” 888 F.3d
at 270, quoting Board of Regents v. Roth, 408 U.S. 564, 577
(1972). (Recall that the village does not dispute that point re-
garding Bradley.) We then explained why a refusal to listen to
the community college president regarding his contract vio-
lated due process:
Breuder, who had a written contract for a term
of years, assuredly had a legitimate claim of en-
titlement to have the Board honor its promise.
The claim may have failed in the end, but that
did not eliminate the claim’s existence.
.... Imagine the Board saying: “You have com-
mitted misconduct; therefore your tenure has
ended; since you no longer have tenure, we
need not offer you a hearing at which we have
to demonstrate that misconduct occurred.” The
Supreme Court clearly established in Roth and
its many successors that this maneuver won’t
No. 16-3456 35
work. A hearing is required to establish whether
misconduct occurred. Just so here. The Board
believes that Breuder’s contract was invalid,
making him an at-will employee … or that the
contract could be cancelled for misconduct. But
whether the contract was valid was subject to le-
gitimate debate, and a hearing would have al-
lowed Breuder to articulate his position and in-
sist that the contract be enforced. Both the dura-
tion of Breuder’s tenure and the existence of
misconduct … were debatable subjects. The
members who refused even to listen to him vio-
lated his clearly established rights.
Id. at 270.
Breuder squarely rejected a reading of Parratt identical to
the village’s argument here. We pointed out that even if the
board had “contended that the process due for a summary
termination is the opportunity to sue in state court”—the vil-
lage’s position here, it would lose: “When the decision is
made by a body’s governing board, it would be hard to con-
tend that the action is random and unauthorized for the pur-
pose of Parratt v. Taylor, 451 U.S. 527 (1981), and its succes-
sors.” 888 F.3d at 271.
We have at times characterized this ground for “distin-
guishing” Parratt as giving Parratt a “narrow” construction
(which is true, to the extent we have construed it to avoid con-
flict with Monell). In Matthiessen v. Board of Education, 857 F.2d
404 (7th Cir. 1988), for example, a school board fired a teacher
who was assumed to be entitled to the extensive procedural
protections under state law for tenured teachers. We rejected
the board’s argument that Parratt showed that its failure to use
36 No. 16-3456
the procedures required by state law showed that its actions
were “random and unauthorized”:
“Random and unauthorized” has been inter-
preted both narrowly and broadly. “Read nar-
rowly it merely identifies the situation where a
pre-deprivation remedy is infeasible because
the officials authorized to grant such a hearing
are unaware of the deprivation before it occurs.”
[Tavarez, 826 F.2d] at 677. This may be because
“the person committing the unconstitutional act
may be employed at such a low level of state or
local government that the official authorized to
grant a pre-deprivation hearing would be una-
ware of the person’s actions.” Wilson v. Civil
Town of Clayton, 839 F.2d 375, 380 (7th Cir.1988).
“Read more broadly, ... Parratt places beyond
the reach of section 1983 any loss that ‘is not a
result of some established state procedure,’ 451
U.S. at 541, ... even if the loss might have been
averted by a predeprivation hearing.” Tavarez,
826 F.2d at 677. In such a case the state cannot
predict when a loss will occur. Wilson, 839 F.2d
at 380.
Under the narrow reading the Board’s action is
not random and unauthorized. The Board is the
body that is authorized to grant hearings, and
thus it cannot be unaware that a hearing was not
provided. Likewise under the broad reading the
Board’s action was not random and unauthor-
ized. It is true that the Board’s alleged action
was not pursuant to the School Code, but in
No. 16-3456 37
contravention of it, and thus would seem not to
be pursuant to established state procedure.
However, the single act of a sufficiently high-
ranking policymaker may equate with or be
deemed established state procedure; therefore,
here Parratt is inapposite even under the broad
reading. Tavarez, 826 F.2d at 677; Wilson, 839
F.2d at 381 (defining “official policy” for the
purpose of finding Monell v. New York City Depʹt
of Social Servs., 436 U.S. 658 (1978), satisfied and
Parratt necessarily inapplicable). The Board’s
Parratt argument fails.
857 F.2d at 407 n.3.
In Tavarez, we rejected a similar Parratt defense to a Monell
claim. The plaintiffs owned a store where a gas heater mal-
functioned, causing injuries to several people. 826 F.2d at 673.
Local officials evacuated and sealed the store. They kept it
sealed for a month during winter. Because repairs could not
be made, pipes burst and damaged the store and its inven-
tory. Id. at 673–74. We recognized that officials could of course
take emergency action to evacuate and seal the store. No pre-
deprivation hearing was required for that step, and no one
suggested otherwise. Id. at 674. The problem was the defend-
ants’ bureaucratic refusal to let the plaintiffs return after the
emergency had passed and the officials’ failure to provide
plaintiffs with any opportunity to be heard as they were de-
nied continuing access to the premises. The district court dis-
missed the plaintiffs’ due process claim on the theory that Par-
ratt rendered the deprivation “unauthorized,” leaving plain-
tiffs to their tort remedies under state law. Id. at 674–75.
38 No. 16-3456
We reversed on the claim against defendants who were as-
sumed to have municipal policymaking authority in the mat-
ter. 826 F.2d at 677–78. We explained that Parratt “does not
place all ultra vires conduct beyond the reach of section 1983,
but only conduct that occurs at such a low level of state or
local government that it would be infeasible for the state to
provide an opportunity for a hearing before the conduct oc-
curred.” Id. at 677. Even under a broader reading of Parratt,
we explained, those defendants “cannot escape liability under
section 1983 simply by exceeding the scope of their author-
ity.” Id. We reasoned that although Monell prohibits munici-
pal liability “based on the doctrine of respondeat superior,” if
the municipal defendant (as head of the relevant agency) pos-
sessed “final authority to establish municipal policy,” then
“he was [the] County, in which event the county was a proper
defendant, too.” Id. at 677–78, citing Pembaur, 475 U.S. 469.
We offered a different basis for importing language from
Parratt into the municipal context in Michalowicz v. Village of
Bedford Park, 528 F.3d 530 (7th Cir. 2008), but that basis is sim-
ilarly inadequate to support the village’s argument here. In
Michalowicz a village fire inspector was fired for conflicts of
interest. Before he was fired, he was given written notice that
he was in danger of being fired, along with a statement of the
reasons. He was interviewed twice by village officials and
then received an additional letter regarding the possible fir-
ing, along with a notice of hearing and a document listing the
charges and statutes he allegedly violated. Id. at 533. At the
hearing he was accompanied by his attorney, who made a
statement on his behalf. The plaintiff was also given notice of
post-termination process, including a hearing at which he
presented evidence and witnesses, as well as cross-examined
the witnesses against him. Id.
No. 16-3456 39
In Michalowicz, the village easily cleared the constitutional
hurdle for predeprivation due process. The plaintiff’s com-
plaint that a local ordinance entitled him to a more thorough
explanation of the incriminating evidence is not cognizable as
a constitutional violation. 528 F.3d at 537–38. The crux of the
case was that the plaintiff was trying to enforce under the
United States Constitution a particular detail of state or local
procedural law. That simply does not work, for reasons we
have explained in Schultz v. Baumgart, Wallace v. Tilley, Osteen
v. Henley, Archie v. City of Racine, and many other cases. See
cases discussed above at 11–12 & n.3. Our decision in
Michalowicz regarding plaintiff’s pretermination process was
fully in accord with this analysis, and we did not cite or refer
to Parratt. Id. at 536–38.
With respect to his post-termination hearing, the plaintiff
in Michalowicz similarly tried to enforce under the federal
Constitution a specific provision of a local ordinance limiting
who could serve as a decision-maker—another procedural
detail not mandated by the federal Constitution. 528 F.3d at
534–35. We cited the Parratt doctrine in that portion of
Michalowicz, but we did not cite it on the theory that top-level
municipal officials are excused from liability when they vio-
late both state law and federal due process rights, which is the
village’s position here. Instead, we cited Parratt because of the
“inherently unpredictable” nature of the specific kind of pro-
cedural missteps in Michalowicz—assigning a post-termina-
tion hearing to the wrong municipal body. Id.
The dissent asserts: “The substance of Bradley’s claim”—
i.e., a constitutional violation—compared to Michalowicz’s
claim—i.e., failure to follow state procedures—“is simply ir-
relevant under the Parratt doctrine.” Post at 72. To the
40 No. 16-3456
contrary, the substance of that claim is decisive. To reiterate,
Michalowicz involved the sorts of “procedural details” of state
and local law which, even if violated, do not violate the fed-
eral constitutional standards for due process that are enforce-
able via § 1983—notice and an opportunity to be heard before
firing. State and local laws often provide very detailed proce-
dures for terminating public officials and employees. As we
have noted so often, those procedural details of those state
and local laws simply are not matters of federal due process.
Where the plaintiff received the constitutionally required no-
tice and opportunity to be heard before termination, and a
more extensive hearing afterward, the “remedies guaranteed
by state law” in state court were enough to protect against the
kind of state-law mistakes that happened in Michalowicz. 528
F.3d at 535, quoting Doherty, 75 F.3d at 323; see also Cannici v.
Village of Melrose Park, 885 F.3d 476, 479–80 (7th Cir. 2018) (af-
firming decision applying Michalowicz where plaintiff com-
plained that hearing was not fair).
The village’s argument here, however, asks us to stretch
well beyond that limited point about the differences between
detailed state-law procedural requirements and the minimum
federal constitutional requirements in Michalowicz and
Schultz. The village would have us hold that Parratt excuses a
municipality from liability when its top officials decide as a
matter of village policy to ignore an employee’s due process
rights completely. This unnecessary and expansive reading of
Parratt—as we discuss next—runs contrary to the core proce-
dural due process cases for public employees like Roth and
Loudermill and their progeny, as well as other lines of Su-
preme Court precedent.
No. 16-3456 41
C. Parratt and the Supreme Court’s Other § 1983 Precedents
Recall that Zinermon explicitly rejected the argument the
village makes here for applying Parratt and highlighted the
rule’s lineage as consistent with, not contrary to, existing
§ 1983 precedent:
Contrary to the dissent’s view of Parratt and
Hudson, those cases do not stand for the propo-
sition that in every case where a deprivation is
caused by an “unauthorized … departure from
established practices,” post, at 146, state officials
can escape § 1983 liability simply because the
State provides tort remedies. This reading of
Parratt and Hudson detaches those cases from
their proper role as special applications of the
settled principles expressed in Monroe and
Mathews.
494 U.S. at 138 n.20. Here, too, the defense theory overlooks
the limits of the narrow and pragmatic rationales of Parratt
and Hudson and seeks to extend them in ways that would un-
dermine other principles and precedents governing § 1983
cases.
Defendants’ broad reading of Parratt would also under-
mine the bedrock of § 1983 jurisprudence, Monroe v. Pape, 365
U.S. 167, 172, 187 (1961), which held that the statute offers a
remedy for actions “under color of” state law even if the ac-
tions violate state law. As we explained in Wilson, “virtually
no interference with property would be actionable in federal
court under § 1983” if Parratt were extended to cover every
ultra vires tort of a public official or agency because “ordinary
state judicial remedies for torts” exist for many kinds of
42 No. 16-3456
property deprivation. 839 F.2d at 379. “The Supreme Court
could not have meant to deny every § 1983 plaintiff his or her
day in federal court, no matter how egregious the constitu-
tional violation, simply because of the availability of a similar
state tort action.” Id. Such an approach would mistakenly
read the first requirement of Parratt—“impracticability”—out
of the opinion. See 451 U.S. at 540–41.
Defendants’ theory also runs into the line of § 1983 prece-
dent capped by Patsy v. Board of Regents, 457 U.S. 496 (1982).
Patsy was a state employee, at a state university. She alleged
that her employer had violated her constitutional rights by
discriminating on the basis of race and sex, and she sued un-
der § 1983. The district court had dismissed her claims be-
cause she had failed to exhaust available state administrative
remedies. The Fifth Circuit had affirmed. The Supreme Court
reversed, holding that a § 1983 claim should not be dismissed
for failure to exhaust available state administrative or judicial
remedies. Id. at 500–01 (collecting the “numerous” cases in
which the Court had already “rejected th[is] argument”). The
broad reading of Parratt urged by defendants here seeks to
impose, in effect, the kind of exhaustion requirement rejected
in Patsy.7
7The Supreme Court had recognized one exception to Patsy, when a
plaintiff claims that her property has been taken for a public purpose but
without just compensation. See Williamson Cty. Reg’l Planning Com’n v.
Hamilton Bank, 473 U.S. 172, 192–93 (1985). The Supreme Court recently
overruled that holding in an opinion that noted again in passing the nar-
row, pragmatic view of Parratt. See Knick v. Township of Scott, 139 S. Ct.
2162, 2174 (2019).
No. 16-3456 43
Conclusion
Bradley has alleged a due process claim that follows the
mainstream of due process law for public employees with for-
cause protection: he was summarily fired, without notice or
an opportunity to be heard before he was fired (or even after
he was fired). The village does not dispute these points. The
village’s Parratt defense fails because it reads Parratt far too
broadly, in a way that would conflict with Monroe, Zinermon,
Monell, Patsy, and substantial precedent of this court. The
judgment of the district court is REVERSED and the case is
REMANDED for proceedings consistent with this opinion.
44 No. 16-3456
MANION, Circuit Judge, dissenting. Eddie Bradley alleges
he was summarily fired from his position as Chief of Police of
the Village of University Park, Illinois. He says the mayor and
the Village Board disregarded procedural protections en-
shrined in state law. If this is true, the conduct of the Village
officials is quite troubling. Nevertheless, under prevailing Su-
preme Court and Seventh Circuit precedent, he has not
pleaded a cognizable federal procedural due process claim.
Therefore, the district court correctly dismissed his case.
This case should be governed by the principle first set
forth in Parratt v. Taylor, 451 U.S. 527, 541 (1981), that “random
and unauthorized” acts by a state actor resulting in the depri-
vation of property without adequate pre-deprivation process
do not state a federal claim if the state provides an adequate
post-deprivation remedy. Under Seventh Circuit precedent
interpreting Parratt and its progeny, the actions of the mayor
and the Village Board in Bradley’s case were “random and
unauthorized.” Since Illinois provides a post-deprivation
remedy through the State’s Administrative Review Act, Brad-
ley must pursue that relief rather than an action in federal
court.
The court today concludes otherwise. Because of its mis-
application of Supreme Court precedent and divergence from
our own, today’s decision will create confusion for litigants
and the district courts of our circuit, not to mention future
panels of this court. In my view, we would do well to remain
on the course we have been plotting for the past three dec-
ades. I respectfully dissent.
No. 16-3456 45
I. Background
Illinois law provides that, with some exceptions not rele-
vant here, “no officer or member of the fire or police depart-
ment of any municipality … shall be removed or discharged
except for cause, upon written charges, and after an oppor-
tunity to be heard in his own defense.” 65 ILCS 5/10-2.1-17.
Bradley alleges the mayor and Village Board disregarded this
requirement and summarily fired him. The district court held
Bradley’s federal procedural due process claim was barred by
Parratt and he appealed.
II. Discussion
This case raises the question whether a claim may lie in
federal court for the Village’s violation of state procedural
law. The court answers in the affirmative, holding that “[i]n
cases alleging due process violations by municipal policy-
makers, there is no need to inquire separately into whether an
employee’s actions were ‘random and unauthorized.’” Maj.
Op. at 3–4. Such a conclusion is contrary to our precedent and
results from a misapplication of Supreme Court case law.
A. Supreme Court Decisions
In general terms, the Parratt doctrine bars procedural due
process claims resulting from random and unauthorized acts
of state actors for which the State provides an adequate post-
deprivation remedy. In Parratt, the plaintiff was an inmate
who alleged he was deprived of his property without due
process when prison employees lost $23.50 worth of hobby
materials he had ordered. 451 U.S. at 529. The Supreme Court
began its analysis of his claim by acknowledging:
[I]n any § 1983 action the initial inquiry must fo-
cus on whether the two essential elements to a
46 No. 16-3456
§ 1983 action are present: (1) whether the con-
duct complained of was committed by a person
acting under color of state law; and (2) whether
this conduct deprived a person of rights, privi-
leges, or immunities secured by the Constitu-
tion or laws of the United States.
Id. at 535. Since the defendants in Parratt were state employees
acting through their position of authority, the first question
was clearly answered affirmatively: “the alleged conduct by
the petitioners in this case satisfies the ‘under color of state
law’ requirement.” Id. Accordingly, the Court focused the re-
mainder of its discussion almost entirely in terms of state em-
ployees as actors under color of state law.
Regarding whether the plaintiff was denied due process,
the Court reasoned it would be impracticable (and really, im-
possible) to guarantee a pre-deprivation hearing to everyone,
as the State could hardly predict when such random incidents
might occur. Id. at 540–41. Thus, no pre-deprivation process is
required in cases “involving a tortious loss of a prisoner’s
property as a result of a random and unauthorized act by a
state employee.” Id. at 541. In such situations, post-depriva-
tion process in state court is generally sufficient. The Court
later clarified no federal due process action will lie for the in-
tentional, random, and unauthorized deprivation of property
by a state official unless the post-deprivation remedy is inad-
equate. Hudson v. Palmer, 468 U.S. 517, 533 (1984).
The Court subsequently limited Parratt’s scope in Ziner-
mon v. Burch, 494 U.S. 113 (1990). The plaintiff there alleged
several doctors and administrators at a state hospital de-
prived him of liberty without due process when they admit-
No. 16-3456 47
ted him as a voluntary mental patient even though he was in-
capable of consent. Rejecting the defendants’ argument that
Parratt barred the suit, the Court held the plaintiff had not al-
leged “unauthorized” conduct because “[t]he State delegated
to [the defendants] the power and authority to effect the very
deprivation complained of here … and also delegated to them
the concomitant duty to initiate the procedural safeguards set
up by state law to guard against unlawful confinement.” Id.
at 138. Parratt, in the Court’s view, involved an employee with
“no similar broad authority to deprive prisoners of their per-
sonal property, and no similar duty to initiate (for persons un-
able to protect their own interests) the procedural safeguards
required before deprivations occur.” Id. So the deprivation
was “‘unauthorized’ only in the sense that it was not an act
sanctioned by state law, but, instead, was a ‘depriv[ation] of
constitutional rights … by an official’s abuse of his position.’”
Id. (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)).
Parratt and Hudson make it plain that the intentional dep-
rivation of property resulting from the random and unauthor-
ized act of a state actor will not create a federal cause of action
unless the State does not provide an adequate post-depriva-
tion remedy. Easter House v. Felder, 910 F.2d 1387, 1396 (7th
Cir. 1990) (en banc), cert. denied, 498 U.S. 1067 (1991). But
Zinermon muddied the waters when it comes to the task of
determining which acts are random and unauthorized. See id.
at 1408 (Easterbrook, J., concurring) (arguing that Zinermon is
fundamentally inconsistent with Parratt and Hudson). It was
left to this court to provide clarity.
48 No. 16-3456
B. Seventh Circuit Decisions
Just months after Zinermon, this court sitting en banc in
Easter House did just that.1 Easter House was an adoption
agency that alleged employees of the Illinois Department of
Children and Family Services conspired to deprive it of prop-
erty without due process by, among other things, withhold-
ing the renewal of its license. We accepted the defendants’ ar-
gument that Parratt barred Easter House’s suit and rejected
Easter House’s three main arguments: (1) that Parratt applies
only to minor deprivations; (2) that a conspiracy can never be
a “random and unauthorized” act; and (3) that the actions of
high-level policymaking employees are per se “authorized”
because they amount to the policy or established procedure
of the State. See id. at 1398 (majority opinion).
The last of these is particularly relevant here. In rejecting
that argument, we distinguished Zinermon on the grounds
that the statute delegating authority in that case did not in-
clude procedural safeguards, meaning the state officials had
“broadly delegated authority.” Id. at 1401. In effect, we lim-
ited Zinermon’s qualification of Parratt to situations where the
state official in question had unfettered discretion to act. That
1In Easter House, the panel, over a dissent from Judge Kanne, origi-
nally held Parratt inapplicable. Easter House v. Felder, 852 F.2d 901 (7th Cir.
1988). We then granted rehearing en banc and went the other way, holding
over a dissent from Judge Cudahy that Easter House’s claim was barred
by Parratt. 879 F.2d 1458 (7th Cir. 1989) (en banc). The Supreme Court
granted Easter House’s petition for certiorari, vacated our judgment, and
remanded the case back to the en banc court in light of Zinermon. 494 U.S.
1014 (1990) (mem.). On remand, we came out the same way, with only
Judge Posner switching his vote from the majority to the dissent. 910 F.2d
1387 (7th Cir. 1990) (en banc). It is the en banc opinion on remand that is
controlling today.
No. 16-3456 49
much is clear from our statement that “we can envision a sce-
nario where a high-ranking state official does exercise the au-
thority and discretion to effect a deprivation, yet that discre-
tion is ‘circumscribed’ by statutory or other predeprivation
procedural safeguards.” Id. at 1400. In such a case, we said,
“an abuse of that discretion … would not necessarily be ‘pre-
dictable’ from the point of view of the state and, according to
Parratt and Zinermon, not compensable under § 1983.” Id. In-
deed, we went as far as to call the failure to cabin the officials’
discretion in Zinermon a “statutory oversight.” Id. at 1401. In
short, Easter House’s claim was barred because it alleged that
state officials simply failed to heed the procedural safeguards
contained in state law. The “licensing conspiracy was not one
that the state could have predicted or, more importantly, pre-
vented through the implementation of additional predepriva-
tion procedural safeguards.” Id.
Further still, the en banc court rejected Easter House’s re-
lated argument that the acts of certain high-ranking officials
may be considered “established state procedure” and thus
avoid the application of Parratt. Writing for the court, Judge
Kanne framed the issue as “whether a single act of employee
misconduct, which clearly contravenes established state pol-
icy and procedure as contained within formal rules, regula-
tions, and statutes, automatically becomes the state’s new po-
sition in all similar matters or whether the act, when viewed
from the state’s perspective, is merely a ‘random and unau-
thorized’ deviation.” Id. at 1402. We chose the latter: Where
there is a formal pronouncement of state policy (like a state
statute) rather than case-by-case adjudication, even if a poli-
cymaker himself “deviates in a single instance from the more
formal pronouncement, it is less likely to reflect a new trend
in state policy and procedure.” Id. at 1403.
50 No. 16-3456
Thus, Easter House established that (1) Zinermon’s limita-
tion of the Parratt doctrine does not apply when state employ-
ees ignore procedural safeguards guaranteed under state law;
and (2) when they violate state procedural statutes, even high-
ranking officials can commit random and unauthorized acts
from the perspective of the State. To put it differently, a
wrongful decision may be predictable and authorized from
the State’s perspective only when state law does not cabin an
official’s discretion to grant pre-deprivation process.
We have subsequently applied this rule to bar cases where
the plaintiff alleges a violation of state procedural rules. In
Clifton v. Schafer, 969 F.2d 278 (7th Cir. 1992), the plaintiff al-
leged the director of the Lafayette County, Wisconsin, Depart-
ment of Human Services intentionally deprived him of wel-
fare benefits without a hearing even though the state Depart-
ment ordered him not to do so. We held Easter House con-
trolled: “Where established state policy would provide ade-
quate predeprivation process, and that policy circumscribes
the discretion of state officials to act, a single act of a state of-
ficial—even a high-ranking state official—that violates that
established policy is random and unauthorized from the
state’s perspective.” Id. at 281–82 (citing Easter House, 910 F.2d
at 1400–03). It did not matter that the director in some sense
had the power to take the action he took. What mattered was
that “Wisconsin law circumscribed any discretion [the direc-
tor] might have had over the decision to reduce Clifton’s ben-
efits.” Id. at 282.
In Germano v. Winnebago County, 403 F.3d 926 (7th Cir.
2005), retirees from the County Sheriff’s Department alleged
that, contrary to Illinois law, the County through its board re-
quired them—without a pre-deprivation hearing—to pay
No. 16-3456 51
higher health care premiums than current employees. We
held Parratt and Easter House barred their federal procedural
due process claim, writing that “the actions of Winnebago
County were not authorized by the state; indeed, the actions
were in direct violation of state law and should not be consid-
ered a basis for a due process claim.” Id. at 929. “The county’s
decision to act contrary to this state law was not authorized
and could not have been predicted or prevented by the state
through any sort of predeprivation hearing.” Id. The plaintiffs
instead would have to seek a remedy in state court.
Michalowicz v. Village of Bedford Park, 528 F.3d 530 (7th Cir.
2008), reached the same result. There, a Village fire inspector
alleged he was terminated without a proper pre- or post-dep-
rivation hearing. He claimed his pre-deprivation hearing
amounted to a summary termination and his post-depriva-
tion hearing violated established law because it was con-
ducted by the same board that had summarily terminated
him. Id. at 533. Again, we held that because “state law af-
forded him the constitutional protection he alleges he was de-
nied, any violation of that law by the Village must be consid-
ered random and unauthorized.” Id. at 538. “Because such
misconduct is inherently unpredictable, the state’s obligation
under the Due Process Clause is to provide sufficient reme-
dies after its occurrence, rather than to prevent it from hap-
pening.” Id. at 535. Michalowicz thus had to seek his remedy
under the Illinois Administrative Review Act rather than in
federal court.
52 No. 16-3456
These cases and others2 stand for the proposition that even
high-ranking local and state officials like department direc-
tors and county and village boards commit random and un-
authorized acts if they act contrary to established state law.
That is precisely what happened in this case.
C. Bradley’s Case
Bradley alleges he was fired from his position as Chief of
Police of the Village of University Park without any process.
But like the plaintiffs in Easter House, Clifton, Germano, and
Michalowicz, he has not alleged the mayor and Village Board
had unfettered discretion to fire him without a hearing. Ra-
ther, his complaint acknowledges the mayor and Board’s ac-
tions as alleged would violate Illinois law. Put another way,
he alleges the mayor and the Village Board did something
that, as far as the State is concerned, was random and unau-
thorized. Nothing the legislature in Springfield could dream
up could have stopped this conduct. Illinois law already “cir-
cumscribed any discretion [the Village actors] might have had
2See, e.g., Strasburger v. Bd. of Educ., 143 F.3d 351, 358 (7th Cir. 1998)
(“[W]hat [the plaintiff] complains of is a conspiracy by state officials to
deprive him of a state-created property interest. The State of Illinois
should have the first chance to assess the alleged violations of its own
laws.”); Veterans Legal Defense Fund v. Schwartz, 330 F.3d 937, 941 (7th Cir.
2003) (actions of the Illinois Secretary of State and the Director of the Illi-
nois Department of Central Management Services were random and un-
authorized because “[o]nly by acting in a manner patently inconsistent
with Illinois law, could the defendants deprive the plaintiffs of the [veter-
ans] hiring preference”); Leavell v. Ill. Dep’t of Natural Resources, 600 F.3d
798, 806 (7th Cir. 2010) (“[B]ecause Ms. Leavell simply alleges that the
State had in place a procedure to provide notice and that the procedure
was not followed with respect to the February 2008 hearing, she is com-
plaining of a ‘random and unauthorized’ action by a state employee.”).
No. 16-3456 53
over the decision” to fire Bradley without process. Clifton, 969
F.2d at 282. Therefore, Bradley’s claim falls within the scope
of Parratt and Easter House. So long as Illinois provides an ad-
equate post-deprivation remedy, a § 1983 procedural due pro-
cess claim will not lie.
As in Michalowicz, the Illinois Administrative Review Act
provides an adequate remedy for Bradley. We said in that case
“the relief Michalowicz seeks—an independent review of
whether the evidence supports his termination and whether
the Village Board was biased or failed to follow the prescribed
procedure in connection with his termination—falls squarely
within the ambit of the Act, both through the state court’s own
review of the administrative record and through its authority
to remand for rehearing.” 528 F.3d at 536. The fact that no hear-
ing instead of a defective hearing occurred in this case does not
change that outcome. If the state court believes more fact-find-
ing is necessary, it can simply remand to the Village and order
it to conduct a hearing. Therefore, I conclude the Administra-
tive Review Act provides an adequate remedy. Parratt thus
bars Bradley’s federal procedural due process claim.
D. The Court’s Avoidance of Parratt
The court’s primary argument for avoiding Parratt is that
the actions of high-ranking municipal decisionmakers render
the municipality liable under Monell v. New York City Dep’t of
Social Services, 436 U.S. 658 (1978), and thus cannot be random
and unauthorized under Parratt. Maj. Op. at 32. This conclu-
sion, however, results from the conflation of two separate in-
quiries: (1) whether a municipality can be liable for a decision
or action of a municipal employee, and (2) whether a depriva-
tion effected by a person acting under color of state law was
random and unauthorized by state law. Monell addressed the
54 No. 16-3456
first question, holding that a municipality or other local gov-
ernment unit qualifies as a “person” within the meaning of
§ 1983, 436 U.S. at 690, and can be liable when it acts either
through its established policy or through the actions of high-
ranking policymakers, id. at 694. Parratt and its progeny ad-
dress the second question: whether a person acting under
color of state law has acted in a way that was predictable and
preventable by the State through additional pre-deprivation
procedural safeguards, or whether, by contrast, the act was
“random and unauthorized.” Parratt, 451 U.S. at 541.
The court also contends that applying the Parratt exception
to Monell claims would undermine public employees’ consti-
tutional due process protections, conflict with Supreme Court
cases recognizing a state or local official may be liable under
§ 1983 for actions taken “under color of state law” even where
the official’s actions also violate state or local law, and conflict
with Patsy v. Board of Regents, 457 U.S. 496 (1982), which held
§ 1983 plaintiffs need not exhaust state-law remedies before
asserting their federal rights. Maj. Op. at 16. For the reasons
explained below, none of these arguments avail.
1. Interaction between Parratt and Monell
Under Monell, the actions of a municipality’s high-ranking
decisionmakers can create official policy such that the munic-
ipality may be liable for § 1983 purposes. 436 U.S. at 694. Ac-
cording to the court’s decision today, if a municipality is liable
for its policymaker’s actions under Monell, then Parratt by def-
inition does not apply. This conclusion can only result, how-
ever, from an improper conflation of official municipal policy
with established state procedures.
No. 16-3456 55
In Monell, the Supreme Court overturned the portion of
Monroe v. Pape that held Congress had not intended munici-
palities to qualify as “persons” under § 1983. Instead, the
Court concluded “Congress did intend municipalities and
other local government units to be included among those per-
sons to whom § 1983 applies.” Id. at 690. In reaching this con-
clusion, the Court was careful to note a municipality cannot
be vicariously liable for the actions of its employees under a
respondeat superior theory; instead, the municipality can
only be liable for its established policy or an action of a high-
level policymaker “whose edicts or acts may fairly be said to
represent official policy.” Id. at 692–94.
Importantly, this test for municipal liability only deter-
mines whether the action of a particular municipal employee
can be attributed to the municipality as its official policy. See
Wilson v. Town of Clayton, 839 F.2d 375, 381 (7th Cir. 1988)
(“[O]nce the officials who have authority to make policy for
the Town are identified, their actions pursuant to that policy
are attributable to the Town.”). As the Supreme Court ex-
plained in Pembaur v. City of Cincinnati, 475 U.S. 469, 478
(1986), “Monell is a case about responsibility. … [It] make[s]
clear that municipal liability is limited to action for which the
municipality is actually responsible.” Monell did not other-
wise change the basis for liability under § 1983, which is ex-
pressly predicated on an action taken under color of state law.
See 42 U.S.C. § 1983. The statute provides a federal remedy
only when there is a “[m]isuse of power, possessed by virtue
of state law and made possible only because the wrongdoer is
clothed with the authority of state law.” Monroe, 365 U.S. at
184 (quoting United States v. Classic, 313 U.S. 299, 325–326
(1941)); see also Screws v. United States, 325 U.S. 91, 109–113
56 No. 16-3456
(1945) (reaffirming the United States v. Classic definition of
“under color of state law”).
Therefore, Monell takes us as far as the conclusion that the
municipality is indeed a person acting under color of state
law3 when it acts through its high-ranking policymakers, and
a municipal defendant may therefore be subject to liability
under § 1983 for the actions of the municipality’s high-rank-
ing policymakers in the same way that a state employee or
other actor under color of state law may be held liable under
§ 1983. However, reaching that conclusion does not mean
there is no longer a need to examine whether the action taken
under color of state law was random and unauthorized.
While it is true that the actions in cases like Michalowicz
and this one would certainly rise to the level of a municipal
policy under Monell, such a policy would still be random and
unauthorized as far as the State is concerned. Even the official
policy of a municipality established through acts of high-
ranking officials is unpredictable from the State’s perspective
if such policy contravenes established state procedures. See,
e.g., Germano, 403 F.3d at 929. As we said in Clifton, “a single
act of a state official—even a high-ranking state official—that
violates that established [state] policy is random and unau-
thorized from the state’s perspective.” 969 F.2d at 282 (citing
3Since “[m]unicipal corporations are mere creatures of the legislative
will, and can exercise no powers except such as the State has conferred
upon them,” Zanone v. Mound City, 103 Ill. 552, 556 (1882), there is little
question that execution of a municipality’s official policy or the act of a
sufficiently high-ranking policymaker is an act taken “under color of state
law,” in much the same way that a state employee acting within the scope
of his employment is acting under color of state law, see Parratt, 451 U.S.
at 535.
No. 16-3456 57
Easter House, 910 F.2d at 1400–03). This is especially true when
the high-ranking official is a municipal official acting on be-
half of the municipality as opposed to a high-ranking state of-
ficial. We’ve applied this reasoning to a county board in Ger-
mano and a village board in Michalowicz. The decisionmakers
in this case are not materially different from those.
From the State of Illinois’ perspective, the actions of the
mayor and board of University Park—even though they are
attributable to the municipality as its official policy under Mo-
nell—are no different than those of the employees in Easter
House. They are actions by a “person” vested with power by
the State, but actions that nonetheless violate established state
procedures. These are precisely the sort of claims barred by
Parratt and Easter House. It makes no difference whether the
defendant is a high-ranking municipal employee creating
municipal policy through his action or a state official acting
with the authority imbued in his office by state law. The ac-
tions may still be random and unauthorized from the State’s
perspective if the defendant’s authority has been circum-
scribed and regulated by state law. See Easter House, 910 F.2d
at 1402; Clifton, 969 F.2d at 281 (“In Easter House, we empha-
sized that whether an act is random and unauthorized de-
pends on the state’s point of view, not the actor’s.”).
The court dismisses this line of reasoning by asserting the
State’s perspective is irrelevant in cases where the State is not
a defendant, and that “different rules of liability under § 1983
apply to municipalities making and carrying out their own
policies.” Maj. Op. at 28. This essentially construes Monell as
creating a wholly new cause of action: one analogous to
§ 1983, but which holds municipal policymakers liable for ac-
tions taken under color of municipal policy in the same way
58 No. 16-3456
that § 1983 holds actors liable for actions taken under color of
state law. If that were the case, then it might be reasonable to
look to the perspective of the municipality when determining
if an action was random and unauthorized. This is not what
Monell purported to accomplish, however, when it held that a
municipality qualifies as a “person” under § 1983 and may be
liable for the actions of high-level policymakers.4
Moreover, the court’s interpretation of Monell and § 1983
misses the essential “under color of state law” linchpin of
§ 1983. Once again, § 1983 provides a federal remedy for con-
stitutional deprivations effected by a misuse of authority
vested in the actor by the State. Monroe, 365 U.S. at 171–72
(“Congress has the power to enforce provisions of the Four-
teenth Amendment against those who carry a badge of au-
thority of a State and represent it in some capacity.”). Even a
Monell claim is presumptively predicated on the municipal
defendant’s misuse of the authority with which the State has
clothed it. See Monell, 436 U.S. at 690 (holding “that Congress
did intend municipalities and other local government units to
be included among those persons to whom § 1983 applies,”
and reciting the “under color of state law” language of
§ 1983); c.f. id. at 682 (discussing the legislative history of
§ 1983 to support the conclusion that § 1983 was intended to
include municipalities and noting “there was no distinction of
4 The Sixth Circuit has rejected the argument that an established “pol-
icy or custom” under Monell automatically renders Parratt inapplicable,
pointing out that this confuses the separate inquiries of Monell and Parratt.
Vinson v. Campbell Cty. Fiscal Court, 820 F.2d 194, 199 (6th Cir. 1987). The
Eleventh Circuit has likewise recognized a distinction between a “policy
or custom” under Monell and “established state procedure” under Parratt.
Rittenhouse v. DeKalb County, 764 F.2d 1451, 1456 n.5 (11th Cir. 1985).
No. 16-3456 59
constitutional magnitude between officers and agents—in-
cluding corporate agents—of the State”).
Thus, the State’s perspective is preeminently relevant in
determining whether that misuse of state-imbued authority
was predictable and preventable through additional proce-
dural safeguards. See Easter House, 910 F.2d at 1401 (finding
that the alleged deprivation “was not one that the state could
have predicted or, more importantly, prevented through the
implementation of additional predeprivation procedural safe-
guards.”).
In Parratt and Easter House, merely proving the prison of-
ficials and the state agency employees had caused depriva-
tions without due process was not sufficient to impose liabil-
ity where their actions were random and unauthorized. In the
same way, proving via Monell that the Village policy created
through the actions of the Mayor and the Board caused a dep-
rivation without due process does not foreclose inquiry as to
whether that municipal policy was random and unauthorized
from the State’s perspective.
Whoever the “person” acting under color of state law is—
be it a municipality via its policymakers, a prison official, a
state agency, or someone else entirely—it is still necessary to
determine if the State could have predicted and prevented the
deprivation. If not, and if the State has provided sufficient
post-deprivation remedies, then there is no justification to
supplant the State’s authority and subvert federalism by al-
lowing the plaintiff to pursue a federal due process claim in-
stead of the State’s provided remedies.
60 No. 16-3456
2. The applicability of Parratt to Monell claims in
Wilson, Breuder, Matthiessen, and Tavarez
The majority cites a collection of Seventh Circuit cases to
support its conclusion that the Parratt exception is inapplica-
ble to Monell claims. If read as the majority suggests, each of
these cases represents the same mistaken conflation of Mo-
nell’s municipal liability inquiry with Parratt’s random and
unauthorized acts inquiry. Three of these cases, however,
were decided prior to the Easter House en banc decision: Tava-
rez v. O’Malley, 826 F.2d 671 (7th Cir. 1987), Wilson v. Town of
Clayton, 839 F.2d 375 (7th Cir. 1988), and Matthiessen v. Board
of Education, 857 F.2d 404 (7th Cir. 1988). Thus, to the extent
that those cases suggest a “narrower” construction of Parratt
than that adopted by Easter House, their continuing status as
good law is suspect. See Easter House, 910 F.2d at 1410–11
(Cudahy, J., dissenting) (observing that Tavarez construed Par-
ratt narrowly while the en banc majority in Easter House
adopted a broad interpretation).5
5 The majority also cites Vodak v. City of Chicago, 639 F.3d 738 (7th Cir.
2011), averring we there “disparaged [a] similar attempt[] to evade mu-
nicipal liability, dismissing as ‘extravagant’ a claim that the ‘acts of [a]
Mayor … are merely acts of an errant employee.’” Maj. Op. at 16. In actu-
ality, however, Vodak rejected the “extravagant claim that the only officials
whose tortious conduct can ever impose liability on it are the members of
the City Council acting through their ordinances.” Vodak, 639 F.3d at 747
(emphasis in original). Viewed in context, the issue was not whether a par-
ticular action was random and unauthorized (the opinion does not cite
Parratt or Hudson at all); rather, it was whether any action by a policy-
maker could ever be attributed to the municipality. Obviously, under Mo-
nell and Pembaur, the answer is yes; but that still leaves unanswered the
question of whether that municipal action was random and unauthorized
by state law.
No. 16-3456 61
First, the majority cites Wilson v. Town of Clayton, 839 F.2d
at 380–82, for the propositions that (1) a single decision by a
municipality’s highest decisionmakers is attributable to the
municipality as “policy” under Monell, and (2) such a deci-
sion, by definition, cannot be random and unauthorized un-
der Parratt. As explained above, I have no quarrel with the
first of these statements; there is no doubt that an action of the
Village Board or the mayor may be the policy of the Village
under Monell. Pembaur, 475 U.S. at 479–81. But, as I have
demonstrated, the second proposition is incorrect. While such
a decision would not be random and unauthorized from the
Village’s perspective, it could be so with respect to the State if
state law circumscribes the discretion of the Village actors.
Michalowicz, 528 F.3d at 535, 538; Germano, 403 F.3d at 929;
Clifton, 969 F.2d at 282.
Regardless, Wilson is distinct from both the present case
and Easter House, because in Wilson, there was no state law to
circumscribe the Town officials’ discretion. The plaintiff com-
plained Town officials conspired to destroy his business, but
the Wilson court cited no state statute or procedural rule
which had been violated. Wilson, then, appears to be one of
the Zinermon species of cases, where the employees in ques-
tion were acting with unfettered discretion and deprived the
plaintiff of due process in a predictable way that could have
been avoided through procedural protections. If it is not in-
terpreted this way, then it conflicts with Easter House.
The court next cites Breuder v. Board of Trustees of Commu-
nity College District No. 502, 888 F.3d 266, 271 (7th Cir. 2018),
for the proposition that a decision made by a body’s govern-
ing board cannot be random and unauthorized. The court
goes so far as to say Breuder “squarely rejected a reading of
62 No. 16-3456
Parratt identical to the village’s argument here.” Maj. Op. at
35. However, in Breuder, we expressly acknowledged that the
defendants “ha[d] not contended that the process due for a
summary termination is the opportunity to sue in state court.”
888 F.3d at 270–71. Thus, a Parratt argument was not properly
before the court in Breuder because the defendants did not ar-
gue it.
Even though the argument was not presented or devel-
oped by the defendants, we suggested that “[w]hen the deci-
sion is made by a body’s governing board, it would be hard to
contend that the action is random and unauthorized for the
purpose of Parratt … and its successors.” Id. at 271 (emphasis
added). This statement may indeed be understood to suggest
the relevant inquiry is whether an action is random and un-
authorized from the perspective of the actor (e.g., a body’s
governing board) rather than the State. However, given that
the defendants did not present or develop a Parratt argument
in Breuder, it was unnecessary for the court to address this is-
sue, and thus this statement is a mere dictum. See United States
v. Crawley, 837 F.2d 291, 292–93 (7th Cir. 1988) (describing as
dictum a passage that “was unnecessary to the outcome of the
earlier case and therefore perhaps not as fully considered as
it would have been if it were essential to the outcome,” or
where “the issue addressed … was not presented as an issue,
hence was not refined by the fires of adversary presentation”).
In any event, the non-absolute language used does not une-
quivocally create a per se rule that a decision by a body’s gov-
erning board can never be random and unauthorized.
Even more fundamentally, as I have already described, if
Breuder is read to mean that the actor’s perspective is the rel-
No. 16-3456 63
evant perspective for determining whether an action is ran-
dom and unauthorized, it would conflict with Easter House,
Germano, and Michalowicz. It would also misunderstand the
reasoning and undermine the purpose of the Parratt excep-
tion: that the State’s role in providing due process should only
be supplanted by federal courts when the deprivation caused
by an actor clothed with state authority was predictable and
preventable by the State, or where the State has not provided
adequate post-deprivation remedies. See Easter House v. Felder,
879 F.2d 1458, 1470 (7th Cir. 1989) (en banc) (describing Par-
ratt’s purpose as “discouraging the use of section 1983 as a
supertort remedy to supplant existing state remedial proce-
dures”), vacated on other grounds, 494 U.S. 1014 (1990) (mem.).
Furthermore, as with Wilson, the outcome of Breuder
squares perfectly with Easter House’s explanation of Parratt,
Hudson, and Zinermon: where an actor under color of state law
is granted discretion to cause a deprivation and such discre-
tion is not circumscribed or regulated by state law, then his
actions are not random and unauthorized from the perspec-
tive of the State. The board in Breuder was not constrained by
any procedural requirements that it provide the dismissed
college president a pretermination hearing, but rather had un-
fettered discretion to act under state law. There is no doubt
that a decision made by a governing board to terminate an
employee without a hearing would not be “unauthorized” in
the absence of any state law requiring such a hearing. There-
fore, Breuder is not inconsistent with the general rule we es-
tablished in Easter House. Where state law does not constrain
an actor’s discretion, a procedural due process claim in fed-
eral court may lie. That is not the case here, however.
64 No. 16-3456
Next, the majority cites Matthiessen v. Board of Education,
857 F.2d 404 (7th Cir. 1988). In Matthiessen, a teacher was ter-
minated by a school board without being afforded the proce-
dural protections to which she would have been entitled un-
der state law if she were a tenured teacher. The school board
raised Parratt before the district court and on appeal, prompt-
ing us to discuss the application of Parratt in a footnote of that
opinion. Id. at 407 n.3.6 The court in Matthiessen held the
school board’s action was not random and unauthorized un-
der either a “narrow” or “broad” reading of Parratt. In so do-
ing, however, the court unjustifiably ignored the difference
between official municipal policy (as enacted by a high-rank-
ing policymaker) and established state procedure, asserting
“the single act of a sufficiently high-ranking policymaker may
equate with or be deemed established state procedure.” Id. (em-
phasis added). The Matthiessen court cited Wilson’s definition
of “official policy” under Monell for this proposition, even
though Wilson does not claim that municipal policy and state
procedure are one and the same, and in fact correctly summa-
rizes the municipal liability holding of Monell and Pembaur by
stating simply: “once the officials who have authority to make
policy for the Town are identified, their actions pursuant to
that policy are attributable to the Town.” Wilson, 839 F.2d at 381
(emphasis added). As I have described, conflating Monell’s
6Matthiessen’s discussion of the applicability of the Parratt exception
was confined entirely to a single (though lengthy) footnote. This is because
the court’s decision focused primarily on whether the plaintiff-teacher
was tenured under Illinois law, which was necessary for her entitlement
to procedural protections. The district court had dismissed the case based
on its holding that she was not tenured, and therefore no due process vi-
olation had occurred. We reversed that holding. Matthiessen, 857 F.2d at
405.
No. 16-3456 65
test for municipal liability with Parratt’s test for random and
unauthorized acts misconstrues both cases.
Matthiessen’s misapplication of Monell and Parratt should
not be considered binding on this court for two reasons. First,
the Matthiessen decision focused primarily on the alternative
issue of whether Matthiessen was tenured, confining the en-
tire discussion of Parratt to a single footnote. Even within that
discussion, the conclusion that Matthiessen’s claim would fail
under a “broad” reading of Parratt was in the alternative to its
initial conclusion embracing a “narrow” reading. Matthiessen,
857 F.2d at 407 n.3; see also Crawley, 837 F.2d at 292 (noting that
a passage in a prior opinion may not be entitled to binding
weight when it “was not an integral part of the earlier opin-
ion”).
Second, and more importantly, this court sitting en banc in
Easter House called into question Matthiessen’s conclusion that
the plaintiff’s claim would fail “even under the broad read-
ing” of Parratt. Easter House directly quoted Matthiessen’s
problematic assertion that “a single act of a sufficiently high-
ranking policymaker may equate with or be deemed estab-
lished state procedure,” and then pointed out that “in the Par-
ratt analysis, this means nothing more than an employee acts
under color of state law during the performance of his job-
related duties.” Easter House, 910 F.2d at 1402. Thus, Easter
House implicitly recognized that Matthiessen’s holding could
66 No. 16-3456
only have been based on a reading of Parratt which the en banc
majority chose not to follow.7
Finally, the majority cites Tavarez v. O’Malley, 826 F.2d 671
(7th Cir. 1987), for the same proposition that the highest deci-
sionmakers of a municipality cannot avoid liability for their
decisions under Parratt.8 The Tavarez opinion also seems to im-
properly conflate official municipal policy with established
state procedure, stating “we cannot say” the deprivation was
not the result of “an established state procedure” because the
defendants “appear to be the senior county and town officials
7 Even if Matthiessen’s conflation of official municipal policy with es-
tablished state procedure is considered binding post-Easter House, how-
ever, it represents an aberration that misapplies Supreme Court precedent
and creates an intracircuit conflict with more recent decisions of this court.
See infra Section II.D.3. The court should repair our precedent by denounc-
ing that incorrect reasoning, rather than embracing it. See U.S. v. Welton,
583 F.3d 494, 499 (7th Cir. 2009) (proclaiming a prior decision was not
binding where that decision “relied on a misunderstanding of our prior
precedent” and a mistake in reasoning), vacating on other grounds, 559 U.S.
1034 (2010); United States v. Humphrey, 34 F.3d 551, 560 (7th Cir. 1994) (Pos-
ner, J., concurring) (“[W]e should be quick to terminate gratuitous intracir-
cuit conflicts.”). If circulation to the entire court under Circuit Rule 40(e)
is necessary, then that is the proper course of action rather than perpetu-
ating a conflict and faulty reasoning. See Shropshear v. Corporation Counsel
of Chicago, 275 F.3d 593, 597 (7th Cir. 2001).
8As explained above, it is highly questionable whether this case, like
Matthiessen, remains good law after Easter House. In his Easter House dis-
sent, Judge Cudahy observed that Tavarez construed Parratt narrowly,
while the en banc majority in Easter House adopted a broad interpretation
(and a correspondingly narrow interpretation of Zinermon). 910 F.2d at
1410–11 (Cudahy, J., dissenting). It seems Judge Cudahy was correct that
Easter House implicitly rejected the interpretation of Parratt set forth in
Tavarez.
No. 16-3456 67
(respectively) who have the practical if not the legal authority
to establish procedures for dealing with hazardous prem-
ises.” Id. at 677. But the fact that the defendants were able to
establish official policy for the county and town (respectively)
does not mean they had the power to establish state proce-
dure. Nor does it follow that their acts attributable to the
county and town as official policy were not random and un-
authorized by the State which clothed the county and town
with authority.
Even so, as with Wilson and Breuder, the outcome of Tava-
rez is consistent with the rule espoused by Easter House: that a
federal due process claim may be brought where the State
confers broad, unfettered discretion to the actor. There were
two municipal officials responsible for the deprivation in
Tavarez: a county official and a town official. The district court
had concluded the actions of the officials were unauthorized
not because they contravened a state law limiting their au-
thority, but simply because the county and town did not have
express policies causing the kind of deprivation at issue.9 As
in Wilson, the court in Tavarez cited no state statute or proce-
dural rule that had been violated. Indeed, the court referred
to the officials’ acts as “ultra vires conduct,” id. at 677, only be-
cause “no state or local law authorized” the deprivation, id. at
9 This determination by the district court that there was no official pol-
icy simply because the county and town did not have rules requiring the
deprivation was clearly wrong under Monell and Pembaur, since the ac-
tions of high-ranking policymakers can represent official policy. However,
looking to the county and town policies to determine if the act was unau-
thorized was the wrong question to be asking to begin with. On appeal,
we continued the district court’s error by focusing on the town and
county’s perspective rather than the State that clothed the town and
county with authority to act.
68 No. 16-3456
674–75. There is no indication in Tavarez that the discretionary
authority granted to the county and town by the State was
circumscribed or regulated by the State at all.
In sum, Monell’s test for determining whether a high-rank-
ing official’s actions amount to official policy such that they
are attributable to the municipality is and should be main-
tained as a separate inquiry from Parratt’s question of random
and unauthorized acts. The former focuses on the relationship
between a municipality and its high-ranking official and an-
swers whether the municipality may be liable for an act. See
Pembaur, 475 U.S. at 479–80 (explaining that Monell’s holding
is “intended to distinguish acts of the municipality from acts
of employees of the municipality” and limits liability to “ac-
tion[s] for which the municipality is actually responsible”).
The latter focuses on the relationship between the State and a
person clothed with state authority and answers whether the
State could have predicted or prevented a deprivation caused
by such a person. See Easter House, 910 F.2d at 1399.
Even if some of this circuit’s pre-Easter House cases and
those of other circuits seemingly confuse these two inquiries
(in contrast to our more recent cases properly separating the
inquiries and focusing on the State’s perspective instead of the
actor’s, such as Germano and Michalowicz), we should not com-
pletely eradicate that distinction as the court does today by
proclaiming indelibly that Parratt is simply irrelevant to all
Monell-type claims.
The fact that the mayor and Village Board’s actions may
represent the Village’s official policy under Monell does not
mean those actions were not random and unauthorized from
the State of Illinois’ perspective.
No. 16-3456 69
3. Relevance of Germano and Michalowicz
I must also address the court’s attempt to distinguish two
cases which stand in the way of its claim that Parratt is wholly
inapplicable to Monell claims. Both cases follow logically from
the holding of Easter House and a proper understanding of the
inquiries in Monell and Parratt, and both are much more recent
than Tavarez, Wilson, and Matthiessen.
The court attempts to distinguish the 2005 decision in Ger-
mano primarily because the decision did not cite Monell or any
of the pre-Easter House cases that seem to mistakenly conflate
the Monell and Parratt inquiries. Maj. Op. at 33 n.6. But the lack
of citation to Monell does not change the fact that the munici-
pality’s liability was expressly predicated on the understand-
ing that the actions of its county board were attributable to the
county itself. Germano, 403 F.3d at 928. Monell was not cited in
Germano because we assumed the county was responsible for
the actions of its board without needing to engage in an in-
depth analysis of the question. Indeed, the county even con-
ceded the alleged deprivation occurred because of “the action
taken by [the county] … under the color of state law.” Id. at
927.
Furthermore, the obviousness of the county’s responsibil-
ity for the acts of its board only strengthens the argument that
it is the state’s perspective that is relevant in determining
whether the municipality’s act was random and unauthor-
ized, not the municipality’s own perspective. The court in Ger-
mano rejected the plaintiff’s attempt to focus on the county’s
perspective and instead focused properly on the State’s per-
spective. Id. at 928. Immediately assuming the county was re-
sponsible for its board’s actions, the court stated “even if the
70 No. 16-3456
county is permitted to exercise some discretion …, the discre-
tion is not unregulated. A county only has discretion to act in
a way that is consistent with state law.” Id. (internal citation
omitted).
The court then invoked the reasoning of Easter House:
“Germano, like the plaintiff in Easter House, ‘points to nothing
which would indicate that the state knew or should have
known that the appellants … had disregarded, or were likely
to disregard the state’s established procedure.’” Id. (emphasis
added). Thus, even attributing the acts of the county board
directly to the county itself, the court concluded:
[T]he actions of Winnebago County were not
authorized by the state; indeed, the actions were
in direct violation of state law and should not be
considered a basis for a due process claim. …
The county’s decision to act contrary to … state
law was not authorized and could not have been
predicted or prevented by the state through any
sort of predeprivation hearing.
Id. at 929. Germano is therefore directly on point and thor-
oughly refutes the majority’s contention that Parratt is inap-
plicable in Monell-type cases.
The majority attempts to distinguish Michalowicz by as-
serting “[t]he crux of the case was that the plaintiff was trying
to enforce under the United States Constitution a particular
detail of state or local procedural law.” Maj. Op. at 39. The
majority asserts it was only the “specific kind of procedural
missteps” at issue in Michalowicz’s case that were “inherently
unpredictable,” as opposed to constitutional violations of due
process that are also violations of state law. Id. The analysis in
No. 16-3456 71
Michalowicz, however, which directly applied Parratt to the
acts of the municipality, reveals no such limitation:
“Michalowicz … claims he was denied due pro-
cess [by the Village’s allowance of a biased post-
termination hearing]. This species of due-pro-
cess claim is a challenge to the “random and un-
authorized” actions of the state officials in ques-
tion, i.e., to their unforeseeable misconduct in
failing to follow the requirements of existing
law. Because such misconduct is inherently un-
predictable, the state’s obligation under the Due
Process Clause is to provide sufficient remedies
after its occurrence, rather than to prevent it
from happening.”
Michalowicz, 528 F.3d at 534–35 (internal citations omitted).
Amid this analysis, Michalowicz quoted Doherty v. City of
Chicago, 75 F.3d 318 (7th Cir. 1996), a case that also applied the
Parratt-Hudson “random and unauthorized act” exception to
the acts of municipal employees, and which did not hinge on
a mere violation of local procedural law that was not a consti-
tutional violation. Michalowicz also cited Easter House’s discus-
sion of Parratt, Hudson, and Zinermon when discussing the
“species of due-process claim” at issue. Identifying the claim
in Michalowicz as being of the same “species” as the claims in
those cases—which each involved violations of constitutional
magnitude and not mere “procedural missteps”—would
make no sense if the Michalowicz court intended to limit the
opinion’s reach to violations of state procedure which were
not also constitutional violations. Nothing in Michalowicz sug-
gests the kind of narrow, close-cut ruling the majority ascribes
to it.
72 No. 16-3456
The Michalowicz court did not base its decision on any con-
clusion that Michalowicz had not alleged a substantial depri-
vation of due process that rose to the level of a federal claim.10
Indeed, the court did not pass on the merits of his claim at all.
It said only that the actions he complained of were random
and unauthorized and that his remedy lies in state, not fed-
eral, court. Id. at 538. The substance of Bradley’s claim com-
pared to Michalowicz’s is simply irrelevant under the Parratt
doctrine.
4. Alleged conflict with Supreme Court precedent
Lastly, the court presents a parade of horribles that would
result from applying Parratt in this case. It suggests such a
holding would undermine public employees’ constitutional
due process protections and conflict with longstanding Su-
preme Court precedent allowing municipal officials to be held
liable under § 1983 for acts representing official municipal
policy. Maj. Op. at 41–42. The thrust of these arguments is that
applying the Parratt exception to actions of municipal officials
as representatives of the municipality would eliminate mu-
nicipal liability under § 1983 and would eviscerate public em-
ployees’ due process protections.
As I have already explained in detail, however, a proper
understanding of the Monell municipal-liability inquiry and
the Parratt random-and-unauthorized-acts inquiry demon-
strates that the one does not foreclose the other. Rather than
10Had that been the basis for the court’s decision in Michalowicz, that
case would have conflicted with Easter House, where we held “Easter
House’s attempt to limit the application of Parratt according to the magni-
tude of the deprivation at issue is directly refuted by the Supreme Court
in Zinermon.” 910 F.2d at 1398.
No. 16-3456 73
engage in further refutation of these contentions, I will simply
point to Easter House’s binding interpretation of Parratt and
Zinermon as the answer to the court’s concerns. Applying Par-
ratt to Monell-type claims would no more eliminate public em-
ployees’ procedural protections or municipal liability under
§ 1983 than Easter House’s rule eliminates due process claims
against all state agency employees. Instead, where the State
has conferred broad, unfettered discretion on an actor
(whether that actor is a state employee, municipality, or other
person), a deprivation committed by that actor cannot be said
to be random and unauthorized. In such a case, the State
could predict the deprivation would occur and could have
prevented it through additional procedural safeguards. That
was the case in Zinermon and, as I have pointed out, in Tavarez,
Wilson, and Breuder. That was not the case, however, in Easter
House, Germano, or Michalowicz; nor is it Bradley’s case.
The court’s additional concern that applying Parratt to this
case would conflict with Patsy v. Board of Regents’ holding that
a § 1983 plaintiff need not exhaust her state administrative
remedies before bringing a federal claim, 457 U.S. at 516, is
similarly unfounded. Patsy was not a Parratt-type case: Parratt
dealt with and created an exception applying only to certain
kinds of procedural due process claims, while Patsy was con-
cerned more generally with constitutional deprivations under
§ 1983 (the specific claim at issue in Patsy was sex discrimina-
tion). Id. at 498. Applying Parratt in this case would be no
74 No. 16-3456
more inconsistent with Patsy than Parratt itself is—or Easter
House, for that matter.11
In short, a consistent application of Parratt regardless of
who the actor under color of state law is would harmonize,
not disrupt, Supreme Court precedent.
III. Conclusion
Since our en banc decision in Easter House, the law of this
circuit has been clear: an individual deprived of property
without pre-deprivation process by the random and unau-
thorized act of a state actor may not maintain a due process
action in federal court so long as the State provides an ade-
quate post-deprivation remedy. Whether that state actor is a
municipality or some other person clothed with authority by
the State does not change the essential inquiry of whether the
act was predictable and preventable by the State. We had a
chance 28 years ago to adopt the broader reading of Zinermon
that Judge Cudahy and others12 advocated, but we rejected it.
Today, the court seeks to change direction. Yet we are now
bound by Easter House. Under that decision—and with a
proper understanding of municipal liability under Monell and
the relevance of the State’s perspective under Parratt—the out-
come of this case is clear: Bradley cannot maintain a due pro-
cess claim in federal court.
11 As explained in Kauth v. Hartford Ins. Co. of Illinois, 852 F.2d 951, 955
n.8 (7th Cir. 1988), where Parratt applies, there is no due process violation
and thus no grounds for a § 1983 action; therefore, Patsy is not implicated.
12See, e.g., Caine v. Hardy, 943 F.2d 1406, 1418–19 (5th Cir. 1991) (en
banc) (Williams, J., dissenting).
No. 16-3456 75
Contrary to the court’s concerns, the failure of Bradley’s
federal claim does not mean he has no opportunity for re-
dress. If Bradley’s allegations are true, he will have a remedy
under the Illinois Administrative Review Act. We presume
that “state courts are fully competent to adjudicate constitu-
tional claims,” Doran v. Salem Inn, Inc., 422 U.S. 922, 930 (1975),
so we should trust them to enforce state procedural law.
Today’s decision undermines federalism, embraces a mis-
understanding of the separate inquiries established by Monell
and Parratt, and will sow confusion among the lower courts
by muddying the clear waters of Easter House and its progeny.
I would instead affirm the judgment below.
I respectfully dissent.