Begg v. Moffitt, 82 C 2693.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtThomas H. Neuckranz, Jean C. Harris, Jacobs, Williams & Montgomery, Chicago, Ill., for defendants
Citation555 F. Supp. 1344
PartiesRichard R. BEGG, Plaintiff, v. G. Joe MOFFITT, Director of Public Safety of the City of Park Ridge, Herman Spahr, City Manager of the City of Park Ridge, Illinois, and the City of Park Ridge, Illinois, Defendants.
Docket NumberNo. 82 C 2693.,82 C 2693.
Decision Date07 February 1983

555 F. Supp. 1344

Richard R. BEGG, Plaintiff,
G. Joe MOFFITT, Director of Public Safety of the City of Park Ridge, Herman Spahr, City Manager of the City of Park Ridge, Illinois, and the City of Park Ridge, Illinois, Defendants.

No. 82 C 2693.

United States District Court, N.D. Illinois, E.D.

February 7, 1983.

555 F. Supp. 1345

Stanley H. Jakala, Berwyn, Ill., for plaintiff.

Thomas H. Neuckranz, Jean C. Harris, Jacobs, Williams & Montgomery, Chicago, Ill., for defendants.



Since its enactment as § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1976) has played a critical role in protecting citizens against violations of their constitutional rights by persons acting under color of state law.1 The Supreme Court has written that the original version of § 1983

555 F. Supp. 1346
was enacted for the express purpose of "enforcing the Provisions of the Fourteenth Amendment." 17 Stat. 13. The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment. As a result of the new structure of law that emerged in the post-Civil War era—and especially of the Fourteenth Amendment, which was its centerpiece—the role of the Federal Government as a guarantor of basic federal rights against state power was clearly established. Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation

Mitchum v. Foster, 407 U.S. 225, 238-39, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972) (footnotes and citations omitted).

However, § 1983 has come under criticism. In particular, it is blamed for creating a huge increase in the workload of the federal courts,2 and the Supreme Court has recently expressed its determination to limit the scope of the statute, rejecting the argument that "any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under § 1983." Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981). In this case, defendants suggest that Parratt counsels against entertaining this action brought against officials of a municipal police department, claiming that they must "have some degree of freedom and autonomy in the administration, regulation and discipline of its employees," Memorandum in Support of Defendants' Motion to Dismiss Plaintiff's Amended Complaint at 19, which would be undermined by permitting plaintiff Richard Begg, an employee of the department, to challenge its disciplinary actions as violative of his constitutional rights. We must decide at what point the sweeping goals of § 1983 must be limited by the considerations expressed in Parratt v. Taylor.3


Plaintiff is a police officer employed by the City of Park Ridge, Illinois. At some point in 1981, plaintiff received an unsatisfactory performance rating and was suspended from his job for three days for his failure to issue enough traffic tickets to satisfy the police department's quota. Plaintiff brought suit in the Circuit Court of Cook County, Illinois challenging his suspension. On November 23, 1981 the circuit court entered an order reversing the three day suspension. After receiving relief from the circuit court, plaintiff spoke out publicly against the quota system. Thereafter, plaintiff alleges, he was subjected to various forms of discipline in retaliation for his public comments,4 in violation of the first

555 F. Supp. 1347
amendment.5 Plaintiff also alleges that he has been denied the opportunity to engage in part-time off duty employment and was denied pay increases, in violation of the fourteenth amendment.6 In this lawsuit, he seeks damages and declaratory and injunctive relief. The city manager of Park Ridge and its director of public safety are named as defendants, as is the city itself

We must first determine whether the amended complaint states a violation of the first and fourteenth amendments. If it does not, then we need not reach the question whether plaintiff may assert a claim under § 1983 in light of Parratt.


Plaintiff claims that defendants' refusal to grant him a pay increase or the opportunity to engage in part-time employment violated the due process clause of the fourteenth amendment. The starting point for analysis of this claim is whether plaintiff's interest in his pay increase and part-time employment amounts to a "property" interest since, by its terms, the due process clause only applies to deprivations of "property."7 Jago v. Van Curen, 454 U.S. 14, 17, 102 S.Ct. 31, 34, 70 L.Ed.2d 13 (1981) (per curiam); Greenholtz v. Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976); Board of Regents v. Roth, 408 U.S. 564, 569-72, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1970).

The Supreme Court has written,

To have a property interest in a benefit, a person must clearly have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.
. . . . .
Property rights, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlements to such benefits.
555 F. Supp. 1348
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).8 The standard the Court has developed is one of "cause;" if the plaintiff can assert that he has a "legitimate claim of entitlement" not to lose a valuable governmental benefit except for cause, then the plaintiff has asserted a "property" interest.9

The Court has also explored how it is that a claim of entitlement not to lose a benefit except for cause can be considered "legitimate."

"Property" interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, "property" denotes a broad range of interests that are secured by "existing rules or understandings." A person's interest in a benefit is a "property" interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.

Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). Thus, a claim may amount to "property" whenever there are "mutually explicit understandings," even if they are not in the form of technical rules of law.10

Applying these principles to the case at hand, and bearing in mind that defendants' motion to dismiss the complaint may not be granted unless it appears beyond doubt that plaintiff can prove no set of facts which would entitle him to relief,11 we conclude that plaintiff has adequately alleged a constitutionally protected property interest. The complaint alleges that the Park Ridge police department had a long-standing custom and practice of permitting police officers to seek outside employment.12 The letter plaintiff received denying his request for off duty employment cited as a reason plaintiff's allegedly excessive use of sick leave, implying that the department would not have felt free to deny the request without a reason.13 Plaintiff's entitlement to pay increases has an even firmer base. The contract between plaintiff's union and the city provides for pay increases based on length of service. It states, "Longevity will be paid according to the following schedule ...."14 The contract goes on to state,15

Longevity pay shall be effective on the anniversary date of employment according
555 F. Supp. 1349
to the continuous length of service as specified, subject to satisfactory merit ratings. It should be pointed out that longevity pay is not necessarily to be considered automatic upon completion of the necessary years.

Defendants rely on the last quoted sentence, arguing that it means plaintiff had no legitimate expectation of a pay increase. However, the mandatory language of the contract, stating the increases "will be paid" and "shall be effective," argues against defendants' position. Moreover, the fact that the contract states that the increases are "subject to satisfactory merit ratings" implies that these ratings constitute "cause" for denying an increase. Defendants' construction of the last sentence also strikes us as odd in that we think it unlikely that plaintiff's union would have entered a contract containing a wholly illusory promise of longevity increases.16 It is not clear beyond doubt that plaintiff will be unable to prove a mutually explicit understanding between his employer and himself that he would be able to obtain outside employment and longevity pay increases except for cause.17 Accordingly, plaintiff has made out a claim that his interest in obtaining outside employment and longevity pay increases amounts to constitutionally protected "property."18

Once it is determined that plaintiff was deprived of a property interest, the analysis shifts to the question whether the deprivation was without due process of law. In order to answer this question, we must determine what process was due plaintiff. To decide what process is due, three factors must be weighed.

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 safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the addition of

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