John Germano , as an Individual and as a Class Representative v. Winnebago County , Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3319
J OHN G ERMANO , as an Individual
and as a Class Representative,
Plaintiff-Appellant,
v.
W INNEBAGO C OUNTY , I LLINOIS ,
Defendant-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Western Division.
No. 01 C 50033—Philip G. Reinhard, Judge.
____________
A RGUED J ANUARY 10, 2005—D ECIDED A PRIL 13, 2005
____________
Before C UDAHY , K ANNE , and E VANS , Circuit Judges.
K ANNE , Circuit Judge. John Germano, individually and
as a class representative, brought suit against Winnebago
County, Illinois, alleging deprivation of a property interest
without due process of law. The plaintiffs argue that their
due process rights were violated when the county required
retired sheriff’s deputies to pay higher health care premi-
ums than were required from currently employed deputies.
The district court granted summary judgment in favor of
Winnebago County. For the reasons set forth in this opin-
ion, we affirm.

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2 No. 04-3319
I. History
John Germano and the class members he represents are
retired deputies of the Winnebago County Sheriff’s Depart-
ment. The county provides two health insurance plans for
employees of the department. Until January 1, 2000, the
base premium rates were the same for all deputies. However,
since that date, the Winnebago County Board has required
that retired deputies pay higher premiums than active
deputies pay for participation in the health plans. In
addition, as of 2001, retired deputies over the age of 65 are
not permitted to enroll or continue participation in the
health plans, even though active deputies aged 65 or older
are permitted to participate in the plans.
The plaintiffs argue that these actions have deprived them
of property rights granted by the deputy’s continuance
privilege, which is codified at 215 Ill. Comp. Stat. 5/367h.
Because the Winnebago County Board did not hold any sort
of pre-deprivation hearing, the plaintiffs assert that a due
process violation occurred. The county concedes that its
actions were contrary to Illinois law but contends that the
actions do not constitute a due process violation under 42
U.S.C. § 1983. Specifically, the county asserts that because
the actions were “random and unauthorized,” no pre-
deprivation hearing procedures were required.
II. Analysis
This case comes to us on a grant of summary judgment in
favor of Winnebago County. The case is thus subject to de
novo review, and we will review the record in the light most
favorable to the nonmoving party. See Grayson v. City of
Chi., 317 F.3d 745, 749 (7th Cir. 2003). Summary judgment
is properly granted when “there is no genuine issue of
material fact and . . . [the moving party] is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).

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No. 04-3319 3
This case is in federal court because a violation of
42 U.S.C. § 1983 is alleged. Such a violation occurs when (1)
the offending conduct was committed by someone who acted
under the color of state law; (2) the actions deprive the
plaintiff of a constitutionally protected property interest;
and (3) the alleged deprivation occurred without due
process of law. See Easter House v. Felder, 910 F.2d 1387,
1394 (7th Cir. 1990) (en banc) (citation omitted).
Winnebago County concedes that the action taken by it
was under the color of state law; thus, the first requirement
is easily established. The second criterion requires a bit
more analysis, but we find that a property interest does ex-
ist here. When considering whether Germano was deprived
of a recognized property interest, we look for “a legitimate
claim of entitlement.” Id. at 1395 (citation omitted). “A claim
of entitlement is defined by existing rules or understand-
ings that stem from an independent source such as state
law.” Id. (quotation omitted).
The state law in question, 215 Ill. Comp. Stat. 5/367h, does
provide property rights to the retired deputies. The statute
states that a county “shall provide continued group insur-
ance coverage for a deputy throughout the retirement. . . .”
§ 5/367h(3). The statute also requires that “[c]ontinued group
insurance shall be provided [to retired deputies] . . . at the
same premium rate from time to time charged . . . to cov-
ered deputies whose retirement or disability period has not
begun . . . .” Id. There is no doubt that the Winnebago
County policy is in violation of this state law. The statute
creates a claim of entitlement to retired deputies; therefore,
the county’s actions deprived Germano and his class of a
constitutionally protected property interest.
The final and most difficult question is whether the dep-
rivation occurred without due process of law. The due process
clause of the Fourteenth Amendment “provides that certain
substantive rights—life, liberty, and property—cannot be
deprived except pursuant to constitutionally adequate pro-

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4 No. 04-3319
cedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541 (1985). So, when property is taken by government
action, due process generally requires that the government
provide an “opportunity to present reasons, either in person
or in writing, why proposed action should not be taken . . . .”
Id. at 546. It is undisputed that Germano and his class were
not given such an opportunity. The analysis, however, does
not end here.
The Supreme Court found that when the deprivation of a
property right by a governmental agency is “random and
unauthorized,” the action does not violate the due process
clause. Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled
in part on other grounds by Daniels v. Williams, 474 U.S.
327 (1986). In Parratt, the plaintiff, an inmate of a state pris-
on, did not receive hobby materials he had ordered because
normal procedures for the handling of mail at the prison
were not followed. Id. at 530. He argued that the conduct of
the prison officials deprived him of property without due
process of law. Id. The Court explained that although the
plaintiff had been deprived of property by the state, “the
deprivation did not occur as a result of some established
state procedure. Indeed, the deprivation occurred as a re-
sult of the unauthorized failure of agents of the State to
follow established state procedure.” Id. at 543. Similarly, in
Easter House, a case where a state agency wrongfully refused
to renew the license of an adoption agency, we found that
there was no viable § 1983 claim when “the State of Illinois
adopted a procedure which provided adequate due process
protection; it contained no loopholes which would allow a
deprivation to occur without due process unless the state
employees acted in an unforeseen way.” 910 F.2d at 1404.
In fact, there was no property deprivation until the party
acting under color of state law “took action which went be-
yond the realm of the foreseeable.” Id. The actions of the
state were, in other words, random.

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No. 04-3319 5
Germano and his class argue that the action by the
county board cannot possibly be considered unauthorized
because the county board acts as Winnebago County and is
the final decision maker on issues delegated to it by the
state. However, even if the county is permitted to exercise
some discretion on issues such as health insurance for re-
tired deputies, the discretion is not unregulated. See id. at
1401. A county only has discretion to act in a way that is
consistent with state law.
In determining whether a due process violation occurred,
it is important to consider whether the deprivation was
predictable. See id. at 1400. Germano, like the plaintiff in
Easter House, “points to nothing which would indicate that
the state knew or should have known that the appellants or
other state employees had disregarded, or were likely to
disregard the state’s established procedure. . . .” Id. at 1401.
The issue is whether the action of the county board, “which
clearly contravenes established state policy and procedure
as contained within formal rules, regulations, and statutes,
automatically becomes the state’s new position in all similar
matters or whether the act, when viewed from the state’s
perspective, is merely a ‘random and unauthorized’ devia-
tion.” Id. at 1402. It is clear 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
considered a basis for a due process claim.
Another factor worth discussing is whether there are
adequate state remedies for the deprivation at issue. Such
remedies would make it less likely that a § 1983 claim
should survive. In Parratt, the Supreme Court noted that
state remedies were available, and even though “the state
remedies may not provide [plaintiff] with all the relief which
may have been available if he could have proceeded under
§ 1983, that does not mean that the state remedies are not
adequate to satisfy the requirements of due process.”
451 U.S. at 544. We interpreted Supreme Court precedent

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6 No. 04-3319
as an “attempt[ ] to strike a balance between the competing
interests of providing a remedy for injuries sustained in
connection with violations of constitutional rights and
avoiding the use of § 1983 as just another opportunity for
parties to shop between state and federal forums.” Easter
House, 910 F.2d at 1404.
When applying the facts of this case to the law as set
forth in Parratt and its progeny, we find that the random
and unauthorized exception applies to the plaintiffs’ case.
Illinois law prohibits the actions taken by Winnebago County
with regard to the health insurance policies of retired
sheriff’s deputies. 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 pre-
deprivation hearing. The district court correctly found that
“[n]o process afforded plaintiff would have been sufficient to
establish [that the county] could charge [the retired depu-
ties] rates different than those charged non-retired depu-
ties.”
The retired deputies were denied their rights under the
deputy’s continuance privilege. However, “[f]ailure to imple-
ment state law violates that state law, not the Constitution;
the remedy lies in state court.” Civil Liberties for Urban
Believers v. City of Chi., 342 F.3d 752, 767 (7th Cir. 2003)
(citation omitted).
III. Conclusion
For the reasons set forth in this opinion, the district
court’s decision to grant summary judgment in favor of
Winnebago County is AFFIRMED. The district court properly
declined to exercise supplemental jurisdiction over the state
law claims. These claims are D ISMISSED without prejudice.

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No. 04-3319 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-13-05

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