In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3188

JOHN LUELLEN,

Plaintiff-Appellant,

v.

CITY OF EAST CHICAGO, ROBERT A. PASTRICK, in

his official capacity as Mayor of the City of East

Chicago, FRANK ALCALA, individually and in his 

official capacity as East Chicago Police Chief, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 00 C 40—Allen Sharp, Judge.

____________

ARGUED APRIL 15, 2003—DECIDED NOVEMBER 18, 2003

____________

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,

Circuit Judges.

RIPPLE, Circuit Judge. John Luellen brought this action

pursuant to 42 U.S.C. § 1983 and Indiana state law for

alleged constitutional violations and other torts as a result

of the search of his vehicle and of being placed on administrative leave without a hearing. The defendants moved for

summary judgment on all of Mr. Luellen’s claims, and the

district court granted the defendants’ motion. Mr. Luellen

appealed. We now affirm the judgment of the district court.
2 No. 02-3188

I

BACKGROUND

A. Facts

1. Events of April 18, 1999

John Luellen was Chief Inspector for the East Chicago Fire

Department (“ECFD”) in April 1999; Mr. Luellen also was

a supporter of Stephen Stiglich, a mayoral candidate who

was challenging incumbent Robert Pastrick in the May 1999

East Chicago Democratic primary. 

On April 18, 1999, Mr. Luellen picked up his girlfriend,

Yvette Millender, who was attending a house party for local

political candidates at the home of Lilly Branford-Brown.

When Mr. Luellen arrived, there were only about five

people left at the party. He stayed there for about fifteen

minutes. 

That evening, a confidential informant (“CI”) called the

East Chicago Police Department (“ECPD”) and informed

Lieutenant Ricardo Chavarria that Mr. Luellen “was at a

house party and he was getting people’s absentee ballots.”

Chavarria Dep. (8/14/01) at 22. The CI named and described Mr. Luellen, his city-owned vehicle and the bag in

which the ballots were placed. See id. at 38 & Ex.1. Lt.

Chavarria had known the CI for several years and considered the CI to be reliable.

Lt. Chavarria contacted ECPD Chief, Frank Alcala, at

home and related the information received from the informant. Chief Alcala referred Lt. Chavarria to Thomas Ryan,

the ECPD’s legal counsel who could better advise Lt.

Chavarria concerning the legality of Mr. Luellen’s actions.

In a series of conversations, Ryan told Lt. Chavarria that he

believed that the police had enough information to search

Mr. Luellen’s vehicle based on the mobile conveyance exception to the warrant requirement of the Fourth Amend-
No. 02-3188 3

1 When Lt. Chavarria called the ECFD, he requested to speak to

Chief Dawson. Chief Dawson was paged; however, in the meantime, Lt. Chavarria spoke with Asst. Chief Vanselow. At some

point during the evening, Chief Dawson returned a call from the

police department. Chief Dawson spoke to Lt. Chavarria who

said that the police “suspected some wrongdoing” and “mentioned something about some ballots” in Mr. Luellen’s vehicle.

Dawson Dep. at 58. Chief Dawson gave Lt. Chavarria permission

to search the vehicle. See id. at 59.

2 The following day, Mr. Luellen went to see an attorney who

prepared an affidavit for Mr. Luellen to sign. It stated that the bag

(continued...)

ment. However, in order to escape inevitable criticism, Ryan

also advised Lt. Chavarria to determine whether the city

had a policy regarding its vehicles and whether there was

another key for the city vehicle in question. While Lt.

Chavarria was tracking down this information on the city’s

policy, he left two other officers, Louis Arcuri and William

Jansky, at Mr. Luellen’s home to conduct surveillance.

Lt. Chavarria spoke to Howard Vanselow, the assistant

chief in charge of maintenance for the ECFD, who also was

the acting chief while ECFD Chief, James Dawson, was out

of town. Asst. Chief Vanselow told Lt. Chavarria that he

(Vanselow) could get a key to the vehicle. Asst. Chief

Vanselow later met Lt. Chavarria with the key at Mr.

Luellen’s residence.1

Before Lt. Chavarria searched the trunk, he knocked on

Mr. Luellen’s door, but there was no response. Asst. Chief

Vanselow then knocked as well; Mr. Luellen eventually

opened his second-floor window. When Asst. Chief

Vanselow informed Mr. Luellen that the trunk of the vehicle

was going to be opened, Mr. Luellen responded that he was

going to get in touch with his lawyer.2
4 No. 02-3188

2 (...continued)

contained ten absentee ballots that Mr. Luellen had collected for

mailing. Later, in his deposition, Mr. Luellen stated that the

ballots had been given to him to be passed on to someone else.

See Luellen Dep. at 45-46. 

Asst. Chief Vanselow then opened the trunk at Lt.

Chavarria’s request. Inside the trunk was a bag labeled

“Lake County Voters Registration Board,” which contained

both sealed and unsealed absentee ballots. Lt. Chavarria

then informed Mr. Luellen that they were confiscating the

bag. 

At the station, the contents of the bag were inventoried,

and the inventory revealed several completed absentee ballots and several applications for absentee ballots. On the

morning of April 19, 1999, the evidence was turned over to

the Lake County Sheriff’s Department so that it could conduct a more thorough criminal investigation. 

2. Suspension

Based on his actions of April 18, 1999, Mr. Luellen was

placed on administrative leave from the Fire Department

beginning on April 21, 1999. Specifically, on that date, Chief

Dawson informed Mr. Luellen accordingly: 

Please be advised that I have been informed by Fire

Department Attorney Michael W. Bosch that on April

20, 1999, the Lake County Sheriff presented evidence of

election law violations to the Lake County Combined

County Election Board and Board of Registration. The

County Sheriff and his legal advisor advised the Board

that they believed the facts surrounding items confiscated from your fire department vehicle constituted
No. 02-3188 5

evidence of the commission of a felony. The Election

Board has referred this evidence to both the Lake

County Prosecutor and the United States Attorney for

the Northern District of Indiana for further investigation.

While you have not been convicted in any court yet,

this conduct that the sheriff considers a felony is certainly conduct unbecoming an officer. Accordingly, by

the power invested in me as the Chief of this Department, you are hereby suspended from duty. Pursuant to

the former [Ind. Code] 19-1-37,5-7, I shall present this

suspension to the Board of Public Safety for confirmation on Thursday, April 22, 1999 at 11:00 a.m. in the

Board’s hearing room. If the Safety Board confirms your

suspension, you will have ten (10) days to file with the

East Chicago Fire Civil Service Commission a written

demand for an investigation, whereupon the Commission shall conduct an investigation.

Pursuant to [Ind. Code] 36-8-3-4, the Safety Board

may place you on administrative leave until the disposition of criminal charges. Your administrative leave may

be with or without pay as determined by the board but,

I do intend to recommend you be suspended with pay.

R.84, Ex.4. 

In another memo issued on that day, Chief Dawson also

informed Mr. Luellen that “the Fire Department is conducting an internal investigation about an incident that occurred

on April 17, 1999. You are allegedly involved in this incident. At the conclusion of this investigation there may be

possible charges filed against you.” Id., Ex.5.

Mr. Luellen did not attend the confirmation hearing on

Thursday, April 22, 1999, nor did he take any other action to
6 No. 02-3188

3 Although Kevin Pastrick was named as a defendant below and

consequently is a party to this appeal, Mr. Luellen makes no

argument concerning Kevin Pastrick’s involvement in this action

or the legal basis for holding Kevin Pastrick liable for the alleged

constitutional violations. We therefore affirm the judgment of the

district court in favor of Kevin Pastrick with respect to all of Mr.

Luellen’s claims.

challenge his suspension. He remained on paid administrative leave until January 15, 2001. During this time, he

received his base pay. However, Mr. Luellen did not receive

either overtime pay or “on-call pay”—an additional yearly

sum paid to fire inspectors for being available to respond

when requested by an assistant chief. Luellen Dep. at 53. No

criminal charges were ever filed against Mr. Luellen. 

B. District Court Proceedings

Mr. Luellen brought this action against the City of East

Chicago, its Mayor—Robert Pastrick, Mayor Pastrick’s

son—Kevin Pastrick,3

 Chief Dawson and Chief Alcala for

alleged violations of his rights under the First, Fourth and

Fourteenth Amendments. By way of relief, Mr. Luellen

sought “a declaratory judgment determining that the

challenged actions of the defendants violate [his] rights,”

reinstatement, backpay and damages. R.1 at 6. 

The defendants moved for summary judgment, which the

district court granted. With respect to Mr. Luellen’s Fourth

Amendment claim, the district court held that the moving

vehicle exception to the warrant requirement applied. The

court explained that “[u]nder this exception, police officers

may search a vehicle without a warrant if they have probable cause to believe it contains contraband or evidence of
No. 02-3188 7

crime.” R.115 at 12. Furthermore, the court continued,

“[p]robable cause to search a vehicle under the automobile

exception can come from information obtained by a confidential informant.” See id. at 13 (citing United States v.

Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998), and United States

v. Talley, 108 F.3d 277, 281 (11th Cir. 1997)). The court

determined that the detailed information provided by the

CI, combined with Lt. Chavarria’s personal knowledge of

the CI’s reliability, provided probable cause for a search of

the vehicle.

The district court further held that, even if there was not

probable cause to search the vehicle, the involvement of

Chief Dawson and Chief Alcala was not sufficient so as to

subject them to liability under § 1983. According to the

court, Lt. Chavarria testified that he would have opened the

trunk even absent Chief Dawson’s permission; consequently

Chief Dawson’s permission was not a factor in the alleged

Fourth Amendment violation. As well, the district court

found that Chief Alcala’s referral of Lt. Chavarria to Ryan

for advice also was not sufficient personal involvement to

impute § 1983 liability.

The court then turned to Mr. Luellen’s suspension. The

court first rejected Mr. Luellen’s claim that he was suspended as a result of his support for Stiglich. Applying the

analysis of Mount Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977), the court found that

the fact that Chief Dawson supported Stiglich’s opponent,

Mayor Pastrick, was not evidence that Mr. Luellen’s support

of Stiglich was a motivating factor in his suspension. 

The court also rejected Mr. Luellen’s claim that Chief

Dawson had violated his due process rights when Chief

Dawson suspended him with pay without a hearing. Although the court acknowledged a due process right to a

hearing prior to termination of employment, the court held
8 No. 02-3188

that the same rule did not apply to suspensions with pay.

Furthermore, the court noted, Indiana law does not specifically provide for a pre-suspension hearing before a fire

department employee is suspended with pay. The court also

determined that Chief Dawson had provided Mr. Luellen

with notice and opportunity to be heard concerning the

suspension. Finally, the court held that Mr. Luellen’s

interest in his on-call pay was not a property interest that

triggered the protection of the Due Process Clause. 

Mr. Luellen timely appealed the district court’s adverse

judgment.

II

DISCUSSION

A. Illegal Search

1. Issues of Fact

Mr. Luellen maintains that genuine issues of material fact

precluded the district court from entering summary judgment on behalf of the defendants with respect to his Fourth

Amendment/illegal search claim. Mr. Luellen points to

alleged discrepancies between the testimony given by Chief

Dawson and Lt. Chavarria to show that a factual dispute

exists concerning whether a CI provided the information to

Lt. Chavarria. Specifically, Mr. Luellen maintains that when

Chief Dawson was deposed, he stated that Lt. Chavarria

had mentioned a suspicion of wrongdoing concerning

ballots, but Chief Dawson did not testify that Lt. Chavarria

mentioned a CI. According to Mr. Luellen, Chief Dawson’s

testimony undermines Lt. Chavarria’s assertion that he

received the phone call and information from a CI “because

one could reasonably assume Chavarria would have

mentioned the information he received from a confidential
No. 02-3188 9

source to Chief Dawson, if in fact there was such a source.”

Appellant’s Br. at 14. We disagree.

Even a cursory examination of Chief Dawson’s and Lt.

Chavarria’s testimony reveals that the statements of the two

men are not in conflict. Chief Dawson testified that the

police had a suspicion of wrongdoing and that he “mentioned something about some ballots” in Mr. Luellen’s

vehicle. Dawson Dep. at 58. This statement is completely

consistent with Lt. Chavarria’s testimony regarding the

information that he received from the CI—specifically, that

Mr. Luellen was at a house party collecting absentee ballots,

that he placed the ballots in a grey bag and that he placed

the bag in the trunk of his city vehicle. Mr. Luellen’s belief

that Lt. Chavarria would have mentioned the CI to Chief

Dawson, and his further belief that Chief Dawson would

have recalled this specific detail “is pure speculation and

therefore raises no genuine issues of material fact that

would preclude summary judgment.” State Bank of St.

Charles v. Camic, 712 F.2d 1140, 1145 (7th Cir. 1983).

2. Alleged Fourth Amendment Violation

Mr. Luellen also maintains that, even accepting the

defendants’ version of the events of April 18, 1999, Lt.

Chavarria did not have probable cause to believe that he

(Mr. Luellen) had violated any election law. 

We note at the outset that Lt. Chavarria was not named as

a defendant in this action and is not a party to this appeal.

Mr. Luellen seeks to hold only Chief Dawson, Chief Alcala

and the City of East Chicago liable for the actions of the

officers on April 18, 1999. Thus, in order for Mr. Luellen to

prevail, he not only must establish that his constitutional

rights were violated, he also must show that each individual
10 No. 02-3188

defendant “caused the deprivation of a federal right.” Luck

v. Rovenstine, 168 F.3d 323, 327 (7th Cir. 1999) (internal

quotation marks and citations omitted). Therefore, we look

first to whether a constitutional violation took place. We

then turn to the question whether the named defendants are

legally responsible for the alleged violation.

“ ‘Whether an officer is authorized to make an arrest

ordinarily depends, in the first instance, on state law.’ ”

Williams v. Jaglowski, 269 F.3d 778, 782 (7th Cir. 2001)

(quoting Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)). The

parties agree that the operative statute is Ind. Code § 3-14-2-

16(4). That statute makes it a felony to knowingly receive

“from a voter a ballot prepared by the voter for voting,

except: . . . (D) a member of the voter’s household or an

individual designated as attorney-in-fact for the voter, when

delivering an envelope containing an absentee ballot under

[Ind. Code] § 3-11-10-1.” Mr. Luellen posits that Lt.

Chavarria did not have probable cause to believe that he

had violated Ind. Code § 3-11-10-1 because the CI was not

sure whether Mr. Luellen had been collecting absentee

ballots or applications for absentee ballots. Because collecting applications for absentee ballots is not illegal, continues

Mr. Luellen, Lt. Chavarria did not have probable cause to

believe that a crime had been committed or that his vehicle

contained evidence of a crime. We cannot accept this

argument. 

It is well settled that probable cause to search a vehicle

exists if there is a “fair probability” that contraband or evidence of a crime will be found in that particular place. See

United States v. Ledford, 218 F.3d 684, 688 (7th Cir. 2000).

“While probable cause requires more than the mere suspicion, we do not require it to reach the level of virtual

certainty.” United States v. Gilbert, 45 F.3d 1163, 1166 (7th
No. 02-3188 11

Cir. 1994). We believe that, based on the information

provided by the CI, Lt. Chavarria could conclude that there

was a “fair probability” that the car contained evidence of

a crime. The CI told Lt. Chavarria that Mr. Luellen was

“[c]ollecting absentee ballots from the people who were at

the party.” Chavarria Dep. (8/14/01) at 29. However, Mr.

Luellen suggests that the CI exhibited doubt about what

was actually collected at the party and points to the following colloquy at Lt. Chavarria’s deposition to bolster his

argument:

Q: What was Luellen supposedly doing?

A: Collecting absentee ballots from the people who

were at the party.

Q: Anything else stated to you by this source.

A: No, sir.

Q: Did the person indicate whether it was ballots or

applications for ballots?

A: They really weren’t sure, they just said he was

collecting some absentee ballots. That’s what I was

told.

Q: Well, did the person say he was collecting ballot

applications or did he say the person was collecting

ballots?

. . .

A: Said he was collecting absentee ballots. 

Chavarria Dep. (8/14/01) at 29. Reading the passage in

context, Lt. Chavarria states three times during the course of

this page of his deposition that the CI told him that Mr.

Luellen was collecting absentee ballots. Any confusion on

the issue was resolved by the final question set forth above
12 No. 02-3188

4 In his reply brief, Mr. Luellen argues that information from a

CI, standing alone, is insufficient to support probable cause to

search the vehicle. However, Mr. Luellen failed to raise this argument in his opening brief; it is therefore waived. See Wildlife

Exp. Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508 n.5 (7th Cir.

1994) (“Arguments raised for the first time in the reply brief are

waived.”).

in which Lt. Chavarria testifies as to exactly what he was

told by the CI. Consequently, we believe it is clear that the

information conveyed to Lt. Chavarria from the CI was that

Mr. Luellen had been collecting absentee ballots.

Mr. Luellen continues that, even if the CI identified the

documents collected as absentee ballots as opposed to

applications for absentee ballots, the CI did not provide Lt.

Chavarria with sufficient information to discern whether

one of the exceptions to the statute applied, namely that a

person may collect absentee ballots, without running afoul

of the above statute, if the person is “a member of the

voter’s household or an individual designated as attorneyin-fact for the voter.” However, it strains credulity to conclude that Mr. Luellen went to the home of a third party to

collect ballots only from members of his own household. A

reasonable officer would only be exercising common sense

in reaching the opposite conclusion. Consequently, we

believe that the “household” exception set forth in Ind.

Code § 3-14-2-16 does not negate probable cause under the

circumstances.4

Because we conclude that Lt. Chavarria had probable

cause to search Mr. Luellen’s vehicle, there is no Fourth

Amendment violation to impute to defendants Chief

Dawson and Chief Alcala. See Schertz v. Waupaca County, 875

F.2d 578, 582 (7th Cir. 1989). Consequently, we affirm the

district court’s grant of summary judgment to Chief Dawson
No. 02-3188 13

5 However, even if we had concluded that probable cause was

lacking, Mr. Luellen would face substantial hurdles in attributing

the constitutional violation to Chiefs Dawson and Alcala. With

respect to Chief Dawson, Mr. Luellen argues that the combination

of Chief Dawson’s permission and Lt. Chavarria’s belief that he

did not need a warrant to open the trunk (based on the fact that

fire department officials had the right to inspect ECFD vehicles),

is sufficient for a jury to conclude that, but for Chief Dawson’s

permission, Lt. Chavarria would not have opened the trunk. 

If, indeed, Lt. Chavarria relied on Chief Dawson’s permission,

the question then would become whether Chief Dawson’s permission is sufficient to permit inspection of the ECFD vehicle

without probable cause, that is whether Mr. Luellen had a reasonable expectation of privacy in the ECFD-issued vehicle. It is

true, as noted by Mr. Luellen, that the defendants did not argue

this issue with any vigor before the district court; however, Chief

Dawson ultimately could not be held liable for an illegal search

based on a lack of probable cause if he had the authority to

permit the search in the absence of probable cause. 

The Supreme Court has stated that “[g]iven the great variety of

work environments in the public sector, the question whether an

employee has a reasonable expectation of privacy must be

addressed on a case-by-case basis.” O’Connor v. Ortega, 480 U.S.

709, 718 (1987) (plurality). In the present case, the vehicle belonged to the ECFD, was maintained by the ECFD and was

insured by the ECFD. It was assigned by the ECFD not to Mr.

Luellen personally, but to the position which he held. As well, the

ECFD possessed a key to the vehicle assigned to Mr. Luellen.

Finally, Chief Dawson testified that, with his permission, an

ECFD vehicle could be inspected, see Dawson Dep. at 55, and he

had authorized such an inspection in the past, see id. Conse-

(continued...)

and Chief Alcala with respect to Mr. Luellen’s Fourth

Amendment claims.5
14 No. 02-3188

5 (...continued)

quently, given these facts, we believe that Mr. Luellen could not

have established a reasonable expectation of privacy with respect

to the ECFD vehicle assigned to him. 

Furthermore, with respect to Chief Alcala, although Mr.

Luellen includes him in the heading of his brief concerning

personal liability, his brief contains no argument as to why Chief

Alcala’s minimal involvement in these events renders him personally liable for any Fourth Amendment violation. Any argument with respect to Chief Alcala is, therefore, waived. United

States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“We

repeatedly have made clear that perfunctory and undeveloped

arguments, and arguments that are unsupported by pertinent

authority, are waived (even where those arguments raise constitutional issues).”). 

Finally, because we hold that there was no Fourth Amendment

violation, and because we further believe that, in any event,

Chiefs Dawson and Alcala could not be held liable for any

violation, there is no action by a policymaker that could impute

liability to the City of East Chicago pursuant to Monell v. Department of Social Services, 436 U.S. 658, 694 (1978).

6 Mr. Luellen also apparently lost overtime pay, see Luellen Dep.

at 53-54; however, he does not argue that his overtime pay

constitutes a property interest for purposes of the Due Process

Clause. 

B. Denial of Due Process

Mr. Luellen next argues that his suspension with pay

violated due process because it occurred without a hearing

and resulted in the loss of his on-call pay.6

 We consider this

claim below.

“Procedural due process claims require a two-step analysis. The first step requires us to determine whether the

plaintiff has been deprived of a protected interest; the sec-
No. 02-3188 15

ond requires a determination of what process is due.”

Strasburger v. Bd. of Educ., Harden County Comm. Unit Sch.

Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998) (internal quotation marks and citations omitted). In the employment

context, the Supreme Court has made clear that “[t]he

protections of the Due Process Clause apply to government

deprivation of those perquisites of government employment

in which the employee has a constitutionally protected

‘property’ interest.” Gilbert v. Homar, 520 U.S. 924, 928

(1997). Consequently, the first issue we must address is

whether Mr. Luellen’s on-call pay constitutes a property

interest deserving of protection under the Due Process

Clause.

1. Property Interest

To determine whether a property interest exists in a particular aspect of employment, a court must look to state law.

See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538

(1985). However, Mr. Luellen has not come forward with

any evidence that on-call pay constitutes a property interest

under Indiana law. Indeed, the only statutory indications

are that the opposite is true. See, e.g., Ind. Code § 36-8-1-11

(defining, for purposes of all of Article 8 (including discipline of public safety officers), salary as excluding overtime

pay and comp time). 

Even in the absence of explicit statutory protection, however, this court has acknowledged that removal or suspension—even a suspension with pay—from a statutorily

protected employment position “might produce indirect

economic effects that trigger the protection of the Due

Process Clause.” Townsend v. Vallas, 256 F.3d 661, 676 (7th

Cir. 2001). We do not believe that Mr. Luellen’s loss of oncall pay falls within this exception; indeed, we believe it

closely akin to the claim that we rejected in Townsend.
16 No. 02-3188

In Townsend, a teacher was suspended and temporarily

reassigned to an administrative position, with pay, pending

an investigation into a death of a student. The teacher

argued that, although he received his teaching salary, he

had lost the opportunity to earn additional income from

coaching positions, and this constituted a deprivation of

property under the Due Process Clause. We rejected this

argument:

In our view, the temporary loss of this possibility for

additional income does not warrant the characterization

[of a property interest] given by the district court. We

have recognized that removal or suspension from a

tenured position might produce indirect economic

effects that trigger the protection of the Due Process

Clause. Nevertheless, we do not believe that the temporary loss of this possibility for additional income is the

sort of deprivation that triggers the protection of federal

due process. 

Id.

Like the coaching position in Townsend, Mr. Luellen’s oncall pay was not protected by statute. Furthermore, it does

not appear to be so integral to his position with the ECFD

such that the loss of this aspect of his pay could be deemed

to be a loss of his position. We therefore conclude that Mr.

Luellen’s loss of on-call pay was not a cognizable property

right for purposes of the Due Process Clause. 

2. Procedural Safeguards

Even if Mr. Luellen had a property interest in his on-call

pay, we believe the requirements of due process were met

under the circumstances. The Supreme Court has explained

that due process “ ‘unlike some legal rules, is not a technical
No. 02-3188 17

conception with a fixed content unrelated to time, place and

circumstances.’ ” Gilbert, 520 U.S. at 930 (quoting Cafeteria &

Rest. Workers v. McElroy, 367 U.S. 886, 895 (1961)). Instead,

it “ ‘is flexible and calls for such procedural protections as

the particular situation demands.’ ” Id. (quoting Morissey v.

Brewer, 408 U.S. 471, 481 (1972)). Traditionally, the Court has

looked to three factors to determine what process is “due”

under the circumstances: “ ‘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.’ ” Id. at 931-32 (quoting Mathews v. Eldridge,

424 U.S. 319, 335 (1976)).

In Loudermill, the Court applied these factors to determine

whether due process required a governmental body to

provide a pre-termination hearing to a public employee who

could be terminated only for cause. The Court concluded

that, weighing these factors, due process requires “ ‘some

kind of hearing’ prior to the discharge of an employee who

has a constitutionally protected property interest in his

employment.” Loudermill, 470 U.S. at 542 (quoting Bd. of

Regents v. Roth, 408 U.S. 564, 569-70 (1972)). It specifically

noted that “[t]he governmental interest in immediate

termination does not outweigh” the individual’s interest in

continued employment and the risk of an erroneous decision. Id. at 544. The Court explained that “affording the

employee an opportunity to respond prior to termination

would impose neither a significant administrative burden

nor intolerable delays. . . . [I]n those situations where the

employer perceives a significant hazard in keeping the

employee on the job, it can avoid the problem by suspending with pay.” Id. at 544-45 (footnote omitted).
18 No. 02-3188

The Court’s balancing in Gilbert also is instructive. In

Gilbert, the Court considered whether a state university

violated the due process rights of a member of its police

force when it suspended the officer without pay—and

without a hearing—when it learned that he had been arrested and charged with a drug felony. Considering the first

of the Mathews factors—the private interest that will be

affected by the governmental deprivation—the Court

observed:

[W]hile our opinions have recognized the severity of

depriving someone of the means of his livelihood, they

have also emphasized that in determining what process

is due, account must be taken of “the length” and

“finality of the deprivation.” Unlike the employee in

Loudermill, who faced termination, respondent faced only

a temporary suspension without pay. So long as the

suspended employee receives a sufficiently prompt

postsuspension hearing, the lost income is relatively

insubstantial (compared with termination), and fringe

benefits such as health and life insurance are often not

affected at all . . . .

Gilbert, 520 U.S. at 931 (quoting Logan v. Zimmerman Brush

Co., 455 U.S. 422, 434 (1982); additional citations omitted).

Balancing the remaining factors, the Court determined that

the State’s failure to provide a pre-suspension hearing,

under the circumstances, was not a due process violation.

However, it remanded for further proceedings to determine

whether the officer “was provided an adequately prompt

post-suspension hearing.” Id. at 935.

Using Loudermill and Gilbert as our guides, we cannot

conclude that the lack of pre-suspension hearing in this case

violated due process. With the exception of the use of the

ECFD vehicle, Mr. Luellen has not come forward with any
No. 02-3188 19

evidence that he lost any pay (regular or on-call) or benefits

between the time that he was informed of his suspension,

April 21, 1999, and the time that a hearing took place, April

22, 1999. This amounts at most to a minor and short-lived

inconvenience. 

As in Gilbert, the more pressing question is whether the

post-suspension process satisfied the requirements of due

process. In the present case, Chief Dawson informed Mr.

Luellen of the basis for his suspension with pay (potential

violation of the election laws) and the evidence against him

(the “items confiscated from your fire department vehicle,”

R.84, Ex.4). Chief Dawson also informed Mr. Luellen of the

time and place (April 22, 1999, in the Board of Public

Safety’s hearing room) that the information would be presented to the Board of Public Safety for confirmation of Chief

Dawson’s administrative action. Finally, Chief Dawson

apprised Mr. Luellen that, if his suspension was confirmed,

he would have ten days to file a written demand for an

investigation with the East Chicago Fire Civil Service

Commission. 

Reviewing the Mathews factors, we believe that Chief

Dawson’s actions met the requirements of due process. First,

the interest at issue—Mr. Luellen’s on-call pay—was only a

fraction of his salary; his regular salary and benefits stayed

intact. Second, there was little chance of “an erroneous

deprivation” taking place; Mr. Luellen was suspended for

unbecoming conduct, and the evidence—the completed

absentee ballots found in Mr. Luellen’s trunk—was indisputable. Additionally, although additional or substitute

process was unlikely to shed more light on the matter, Mr.

Luellen was informed that he could demand an investigation by the East Chicago Fire Civil Service Commission.

Finally, the City of East Chicago had a strong interest in
20 No. 02-3188

7 Mr. Luellen maintains that he was confused regarding how to

vindicate his rights because he received two memoranda from

Chief Dawson referencing his alleged wrongdoing and mentioning an investigation. We find this argument unpersuasive. The

longer of the two documents, delivered to Mr. Luellen on April

21, 1999, clearly states that the East Chicago Fire Civil Service

Commission would conduct an investigation only if the Board

confirmed Mr. Luellen’s suspension on April 22, 1999, and then

only upon his demand. The second memorandum, also delivered

on April 21, 1999, informs Mr. Luellen of an internal ECFD

investigation that already had commenced. Consequently, a

reasonable person reading both memoranda could not have

concluded that the investigations were one and the same.

ensuring that its ranks of employees did not include those

strongly suspected of engaging in election-law violations.

Consequently, because Mr. Luellen’s deprivation was

relatively small and the City’s interest relatively strong, and

because Mr. Luellen was provided with the opportunity for

additional procedures to vindicate his rights but did not

avail himself of those opportunities, we believe that the

requirements of due process were satisfied.7

C. First Amendment Violation 

Finally, Mr. Luellen contends that the search of the car

and his suspension with pay were motivated by his political

support of Stiglich. Because we have concluded that probable cause existed to search Mr. Luellen’s vehicle, we need

not consider any of the parties’ motivations in conducting,

authorizing or approving that search. See Schertz v. Waupaca

County, 875 F.2d 578, 582 (7th Cir. 1989). 

Turning to the alleged First Amendment violations involved in his suspension, Mr. Luellen points to several
No. 02-3188 21

pieces of evidence that, he argues, suggest that Chief

Dawson had an illicit motivation in suspending him. For

instance, Mr. Luellen states that “Dawson relied on the

allegations of Sheriff Buncich, a Pastrick supporter, rather

than conducting an investigation and giving Luellen an

opportunity to be heard.” Appellant’s Br. at 23. However,

the principle evidence presented by Sheriff Buncich to the

Board of Public Safety was the evidence that completed

absentee ballots were found in Mr. Luellen’s vehicle—a fact

that is undisputed. Mr. Luellen also points to the fact that

Chief Dawson supported Mayor Pastrick’s campaign.

However, this court has made clear that an individual cannot prove that an action was politically motivated “merely

by showing that he carried the political card of the opposition party or that he favored the defendant’s opponent in

the election.” Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir.

1981). Consequently, the fact that Chief Dawson—or any of

the other individuals involved in Mr. Luellen’s suspension—supported Mayor Pastrick, is not sufficient to establish a prima facie case that Mr. Luellen’s support of Stiglich

was a motivating factor in his suspension. Because the

burden was on Mr. Luellen to come forward with evidence

to show that Chief Dawson’s action in suspending Mr.

Luellen was politically motivated, and because Mr. Luellen

has failed to meet this burden, we affirm the judgment in

favor of the defendants.

Conclusion

For the foregoing reasons, we affirm the judgment of the

district court granting summary judgment to the defendants

on all of Mr. Luellen’s claims.

AFFIRMED.
22 No. 02-3188

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-18-03