In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-1941

CASEY GABLE, GREG MOORE, LOIS KALAGA,

ALAN KALAGA, and ADALBERTO MONTANEZ,

on behalf of themselves and all others

similarly situated,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO, a municipal corporation,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 4872—Ronald A. Guzman, Judge.

____________

ARGUED JANUARY 11, 2002—DECIDED JULY 8, 2002

____________

Before EASTERBROOK, KANNE, and DIANE P. WOOD,

Circuit Judges.

KANNE, Circuit Judge. The plaintiffs are all people whose

vehicles were towed to, and subsequently damaged or destroyed at, an impoundment lot located at 701 N. Sacramento Avenue in Chicago (“Lot 6”) between July 1995 and

May 1999. The plaintiffs brought a class action lawsuit pursuant to 42 U.S.C. § 1983, alleging that the City of Chicago

deprived them of due process of law and was liable for

these incidents of damage and destruction. The district
2 No. 01-1941

1 This term or “pound employee” is used throughout this opinion

to refer to the City agents that took the actions about which the

plaintiffs complain. Before August 1997, the pound personnel were

employees of the Department of Streets & Sanitation, and afterwards, they were employees of EAR.

court granted summary judgment in favor of the City, and

we affirm.

I. Background

A. The City’s Towing and Impoundment Policies

The City of Chicago Municipal Code (the “Code”) authorizes the City to tow and impound motor vehicles in various

enumerated circumstances. Lot 6—the only impoundment

lot about which the plaintiffs complain—is one of the Cityowned impoundment lots. Between 1995 and 1999, a total

of 181,911 vehicles were impounded at Lot 6, which covers

five square blocks and has only one entrance. Otherwise,

the lot is relatively inaccessible due to high chain-link

fences and railroad track berms that surround its borders.

The City’s Department of Streets & Sanitation was responsible for the operation and management of Lot 6 until August 1997, when a private company named Environmental

Auto Removal, Inc. (“EAR”) was contracted to operate and

manage the lot throughout the remainder of the class action

period.

The City’s policies relating to the towing and impoundment of vehicles are stated in the Code and in a procedural

manual created by EAR in 1997. When a vehicle is towed

to Lot 6, pound personnel1

 conduct a physical examination of the vehicle and complete a Motor Vehicle Inventory Report. The Inventory Report describes the condition

of the vehicle, describes the specific location of the vehicle

in the lot, identifies when the vehicle was redeemed and by
No. 01-1941 3

2 The City disposes of unclaimed vehicles by compacting them

and selling them for scrap, by selling the vehicles at an auction,

or by retaining the vehicles for City use.

whom, and if the vehicle was never redeemed, describes the

manner and date in which the vehicle was disposed. Pound

personnel then enter this information into a daily log book

and into a computer system known as the “Hot Desk System,” which allows the City to track the location and disposition of all towed vehicles in the City and to respond to

inquiries by vehicle owners about the location of their

vehicles. For example, the Hot Desk System allows any

City pound and several City departments (such as the

Police Department and Department of Streets & Sanitation)

to determine whether a vehicle is located at Lot 6 by entering the vehicle’s license plate number or VIN number

into the system.

After a vehicle is towed to Lot 6, pound personnel also

access the Secretary of State’s database in order to identify

the registered owner of the vehicle. Upon obtaining this

information, the City has ten days to send a Notice of Impoundment (“Notice Form”) to the vehicle owner. The Notice Form describes the vehicle, states when it was towed

and the reason for the tow, and identifies the lot in which

the vehicle is being impounded. The Notice Form also describes the procedures that allow the vehicle owners to retrieve their vehicles after paying the applicable charges or

to obtain a hearing to challenge the impoundment. Finally,

the Notice Form states that the vehicle will be disposed of

if not retrieved by a certain date.2

When a vehicle owner picks up his vehicle from Lot 6, he

has the opportunity to request that pound personnel fill out

a claim form, allowing the owner to document any alleged

damage or theft that occurred while the vehicle was impounded. The pound employee who completes the claim
4 No. 01-1941

form is required to verify that the alleged damage accurately reflects the condition of the vehicle and that any

property allegedly stolen is not inside of the vehicle.

B. The Plaintiffs’ Claims

The plaintiffs filed a one-count complaint in the district

court, alleging that the City deprived them, and others similarly situated, of due process of law for four reasons.

First, the plaintiffs claimed that the City failed to timely

notify vehicle owners that their vehicles had been towed

to Lot 6. Specifically, of the 181,911 vehicles that were

towed to Lot 6 during the class action period, there were

four instances where the vehicle owners did not receive

a Notice Form. For example, plaintiffs Casey Gable, Greg

Moore, and Brian Johnson were mailed Notice Forms within the required ten-day period to the most recent addresses

that each had reported to the Secretary of State. However,

none of these plaintiffs received the Notice Forms because

the addresses to which the Notice Forms were sent were

not the addresses at which any of them still lived—before

their vehicles were towed, all three had moved without

reporting their address changes to the Secretary of State.

Further, although the record is unclear as to the reason,

plaintiff Melinda Dimond also did not receive a Notice

Form, but subsequently learned that her vehicle had been

towed to Lot 6 and retrieved it from the lot four days after

it was towed.

Second, the plaintiffs alleged that the City denied to vehicle owners that their vehicles were present at Lot 6 even

though it knew or should have known that the vehicles

were in fact present there. The record reveals that there

were three instances in which this occurred—with respect

to plaintiffs Gable, Gene Floriani, and Moore. For example,

Gable or her boyfriend called Lot 6 every day for seven days

inquiring about whether her vehicle was being impounded
No. 01-1941 5

there. Pound personnel repeatedly told her that her vehicle

was not there. Two weeks after Gable’s vehicle was towed,

a friend of Gable’s who worked in another impoundment

lot called Lot 6, and pound personnel told Gable’s friend

that Gable’s vehicle was in fact located at Lot 6 and had

been since the day it was towed. Upon learning this, Gable

immediately went to the pound and retrieved her vehicle,

which had incurred extensive damage while being impounded.

After Floriani’s vehicle was towed to Lot 6, he contacted

the lot, but pound personnel told him that his vehicle was

not there. Two or three days later, Floriani received a call

from the Chicago Police Department, informing him that

his vehicle was at Lot 6. However, when Floriani arrived at

Lot 6, he discovered that it had been damaged to such an

extent that he decided to leave it there.

When Moore’s vehicle was towed from a friend’s driveway,

the person towing it told the friend that it was being towed

to Lot 6. Thus, five days later, Moore went to a Chicago

Police Department precinct, and a police officer entered

Moore’s license plate and VIN numbers into the Hot Desk

System, but the system incorrectly indicated that Moore’s

vehicle had not been towed. Moore went to Lot 6 later that

day, and pound personnel again told him that his vehicle

was not being impounded there. For the next several weeks,

Moore made inquiries to pound personnel about the whereabouts of his vehicle, and the personnel repeatedly told

him that it was not located at Lot 6. Finally, Moore returned to Lot 6 a few weeks after his vehicle had been

towed, and a pound employee told Moore that it had been

present there but had been disposed of a few days earlier.

Third, the plaintiffs alleged that the City, through its

agents, systematically broke into and entered vehicles

towed to Lot 6, and stole property from these vehicles.

During the class period, there were approximately 1,400
6 No. 01-1941

damage and theft claims filed with respect to vehicles towed

to Lot 6. It is undisputed that many of the vehicles were

accidentally damaged while initially being hoisted by the

tow truck or while being transported to Lot 6. With respect

to the incidents of intentional damage to the vehicles or

theft therefrom, since 1995, there have been only two incidents where pound employees were caught causing damage to or stealing from vehicles impounded at Lot 6, and

these employees were immediately fired. On the other hand,

there is ample evidence that third parties are mainly responsible for the intentional incidents of damage and theft

that have occurred at Lot 6. The record shows that police

officers patrolling Lot 6 or pound personnel have often

caught third parties stealing from or damaging impounded

vehicles. Furthermore, incident reports prepared by EAR

reflect that pound personnel have discovered several holes

cut in the chain-link fence surrounding Lot 6 and have seen

third parties enter the lot through these holes.

In any event, the City has made efforts to reduce the

number of damage and theft claims occurring at Lot 6,

whether perpetrated by pound employees or by third parties. For example, since at least 1995, police officers are

required to conduct routine surveillance of Lot 6 and the

area immediately surrounding it. Further, pound employees

are required to check the fencing around Lot 6 every morning and must repair any damage they observe to the fence.

Perhaps the most significant step the City took to minimize

the incidents of damage and theft was to hire EAR to operate and manage Lot 6. Indeed, the City included a clause

in EAR’s contract that required EAR to “take all necessary precautions to avoid any damage or injury to persons

or property, including without limitation City property,

any towed Vehicle and any personal property in the Vehicle.” Pursuant to the policies in EAR’s employee handbook,

pound personnel are subject to periodic, random inspections

of their vehicles to ensure that they are not removing any
No. 01-1941 7

stolen property from Lot 6, and EAR policy specifically

states that any pound employee caught stealing from the

impounded vehicles will be fired immediately. Pound

personnel also inspect every tow truck that enters and exits

Lot 6 in order to ensure that no property is being unlawfully removed. In addition, in order to deter trespassers,

EAR erected a dog run around Lot 6’s perimeter in which

eight guard dogs roam freely. EAR also requires a guard

and dog team to roam the inside of Lot 6 at all times.

Although it is undisputed that incidents of damage and

theft continue to occur, the number of claims filed has

decreased steadily each year since EAR began managing

Lot 6 in 1997.

Finally, the plaintiffs claimed that the City, through its

agents, systematically compacted and destroyed vehicles

that were towed to Lot 6 without notice to the owners, often

in an attempt to cover up the theft and vandalism done to

the vehicles. The record reveals that the City disposed of

four plaintiffs’ vehicles that had been impounded at Lot 6

during the class action period. In all four of these instances,

the vehicles were not disposed of until after expiration of

the time period within which the vehicle owners could retrieve their vehicles from Lot 6.

The plaintiffs moved for summary judgment, and the City

filed a cross-motion. The district court granted summary

judgment in favor of the City, and the plaintiffs now appeal.

II. Analysis

We review a grant of summary judgment de novo, viewing

all of the facts, and drawing all reasonable inferences therefrom, in favor of the nonmoving party. See Cent. States,

Southeast and Southwest Areas Pension Fund v. White, 258

F.3d 636, 639 (7th Cir. 2001). Summary judgment should

be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affi-
8 No. 01-1941

davits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law.” Cengr v. Fusibond Piping

Sys., Inc., 135 F.3d 445, 450 (7th Cir. 1998) (quoting FED. R.

CIV. P. 56(c)).

A. Municipal Liability

The plaintiffs argue that the City violated their procedural and substantive due process rights through the following actions: 1) failing to notify the plaintiffs that their

vehicles had been towed to Lot 6; 2) denying to the plaintiffs that their vehicles were impounded at Lot 6, when in

fact they were; 3) damaging the plaintiffs’ vehicles and

stealing items therefrom and continuing to allow incidents

of damage and theft to occur at Lot 6; and 4) unlawfully

disposing of the plaintiffs’ vehicles. The plaintiffs contend

that these actions deprived them of two property interests—the use of their vehicles during the time in which the

City incorrectly told them that their vehicles were not at

Lot 6 and the damage that their vehicles incurred.

It is well settled that the City cannot be liable for the

above actions through a theory of respondeat superior. See

Monell v. Dep’t of Social Servs., 436 U.S. 658, 691, 98 S. Ct.

2018, 56 L. Ed. 2d 611 (1978). Rather, “it is when execution

of a government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that

the government as an entity is responsible under § 1983.”

Id. at 694. In other words, to maintain a § 1983 claim

against a municipality, one must establish the requisite

culpability (a “policy or custom” attributable to municipal

policymakers) and the requisite causation (the policy or

custom was the “moving force” behind the constitutional

deprivation). Id. at 691-94.
No. 01-1941 9

3 Municipal customs also have the force of law if the customs are

themselves unconstitutional. See id. However, in this case, the

plaintiffs proceed solely via the deliberate indifference route. 

The plaintiffs can establish a “policy or custom” by showing: “(1) an express policy that, when enforced, causes a

constitutional deprivation; (2) a widespread practice that,

although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute

a custom or usage with the force of law; or (3) an allegation

that the constitutional injury was caused by a person with

final policymaking authority.” Baxter v. Vigo County School

Corp., 26 F.3d 728, 735 (7th Cir. 1994) (citations and quotations omitted). The 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. Rather, the plaintiffs claim that the actions of

which they complain were “so permanent and well settled”

that they constituted City customs.

In order for the plaintiffs to show that the alleged customs were attributable to the City and thus had the force

of law, they must show that City policymakers were “deliberately indifferent as to [their] known or obvious consequences.” Bd. of County Comm’rs v. Brown, 520 U.S. 397,

406-07, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997) (quotations omitted).3

 The Supreme Court has defined deliberate

indifference in this context to mean that “a reasonable policymaker [would] conclude that the plainly obvious consequences” of the City’s actions would result in the deprivation of a federally protected right. Id. at 411; see also Frake

v. City of Chicago, 210 F.3d 779, 782 (7th Cir. 2000) (stating that a finding of deliberate indifference requires a showing that policymakers “were aware of a substantial risk” of

a constitutional violation and “failed to take appropriate

steps to protect [plaintiffs] from a known danger”).
10 No. 01-1941

4 The record shows that pound personnel used the Hot Desk System to attempt to locate these plaintiffs’ vehicles. The record does

not reveal, however, why the Hot Desk System failed to locate the

vehicles in those instances, although a pound employee testified

that it was possible that incorrect information was entered into

the system.

B. Culpability: Was the City Deliberately Indifferent?

As a preliminary matter, the plaintiffs have waived two

of their arguments on appeal by not developing them in

their opening brief—that the City had customs of failing to

notify people that their vehicles were at Lot 6 and of disposing of vehicles without notice. See Jones Motor Co. v.

Holtkamp, Liese, Beckemeier & Childress, P.C., 197 F.3d

1190, 1192 (7th Cir. 1999) (holding that argument that was

“so little developed in plaintiff’s opening brief in this court”

was waived).

We turn, therefore, to whether the plaintiffs can establish

the requisite culpability to link the City to the other actions

about which they complain. First, they contend that the

City had a custom of erroneously denying to vehicle owners

that their vehicles were at Lot 6. In support of this argument, the plaintiffs adduced evidence that this occurred

on only three occasions during the four-year class period—

with respect to class members Gable, Floriani, and Moore.4

The district court found, and we agree, that these three

incidents were too few to indicate that the City had a widespread custom of which City policymakers had reason to be

aware. See Denno v. School Bd. of Volusia County, Fla., 218

F.3d 1267, 1277 (11th Cir. 2000) (“[N]ormally random acts

or isolated incidents are insufficient to establish a custom.”). In Denno, the plaintiff brought suit on behalf of her

son who had been suspended for displaying a Confederate

flag at school, alleging that the School Board had a custom

of prohibiting Confederate flags in violation of the First
No. 01-1941 11

5 The distinction between whether third parties or pound employees damaged and stole from the vehicles at Lot 6 is important

because “nothing in the language of the Due Process Clause itself

requires the State to protect the life, liberty, and property of its

citizens against invasion by private actors.” DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195, 109 S. Ct.

998, 103 L. Ed. 2d 249 (1989). Thus, the Supreme Court has concluded that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due

Process Clause.” Id. at 197. An exception to this general rule applies when certain “special relationships” between the State and

the plaintiff exist, such as when the State has assumed custody

of a prisoner. See id. at 197-99. Even assuming, arguendo, that

the City had a duty to protect the plaintiffs’ vehicles from third

parties in this case, we would still affirm the district court’s grant

of summary judgment in the City’s favor. As discussed below, the

City implemented extensive and largely successful measures to

protect the plaintiffs’ vehicles, and Illinois law provides a fully

adequate remedy. Both the measures taken by the City and the

(continued...)

Amendment. See id. at 1269, 1277. Although the plaintiff

had adduced evidence of three other students who had

been suspended for displaying Confederate flags, the court

held that these incidents “did not represent a persistent

and widespread practice.” Id. at 1277. Likewise, in our case,

we have no problem concluding that of the 181,911 vehicles

that were towed to Lot 6, the three incidents where vehicle

owners were erroneously told that their vehicles were not

at Lot 6 do not amount to a “persistent and widespread

practice.” Id.

The plaintiffs next contend that the City, through its

agents, systematically broke into and stole items from

vehicles impounded at Lot 6 and continued to allow these

incidents of damage and theft to occur despite numerous

complaints. There were only two incidents of damage and

theft that were perpetrated by pound employees.5

 These
12 No. 01-1941

5 (...continued)

adequate state remedy would shield the City from liability in this

case even if a special relationship existed so that the City had a

duty to protect the plaintiffs’ vehicles from actions taken by third

parties.

incidents are too few to constitute a permanent and well

settled custom. See Denno, 218 F.3d at 1277. Moreover,

even if pound employees were responsible for many more

of the incidents of damage and theft, as the plaintiffs suspect (but have not shown), the City was not deliberately

indifferent to whether the problem would continue. First,

EAR had an express policy that any employee caught damaging or stealing from a vehicle at Lot 6 would be fired

immediately, and this policy was enforced against the two

pound employees who were caught.

In addition, the City implemented extensive measures to

prevent both third parties and pound personnel from damaging or stealing from vehicles at Lot 6, and these measures

have been successful in decreasing the number of claims

filed. For example, the City installed high fences around

Lot 6’s borders, and pound personnel repaired damage

to the fences on a daily basis. Further, the City raised the

height of the railroad berms that surrounded Lot 6. The

City also hired EAR to operate and manage Lot 6, and

in response, EAR implemented several security measures

such as requiring pound personnel to inspect every tow

truck that entered and exited Lot 6 and subjecting the employees to random inspections. Moreover, EAR installed a

dog run and hired security guards and off-duty policemen

to conduct 24-hour surveillance of Lot 6. The extent and

nature of the specific measures taken by the City in this

case support the conclusion that the City was not deliberately indifferent. See Frake, 210 F.3d at 782 (finding no

deliberate indifference in part because City took “many

precautions” to prevent constitutional deprivations, even

though deprivations continued to occur).
No. 01-1941 13

C. Causation: Due Process Violations

The plaintiffs’ § 1983 claim also fails because they cannot

establish that the City’s actions deprived them of either

procedural or substantive due process. Thus, the plaintiffs

cannot meet the causation requirement of showing that the

City customs were the “moving force” behind a constitutional deprivation. See Butera v. Cottey, 285 F.3d 601, 609

(7th Cir. 2002).

1. Procedural Due Process

It is undisputed that the plaintiffs were deprived of two

property interests—the use of their vehicles during the

time in which pound personnel erroneously told them that

their vehicles were not at Lot 6 and the damage that their

vehicles incurred. However, “the deprivation by state action

of a constitutionally protected interest in ‘life, liberty, or

property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due

process of law.” Zinermon v. Burch, 494 U.S. 113, 125, 110

S. Ct. 975, 108 L. Ed. 2d 100 (1990). In Parrett v. Taylor,

451 U.S. 527, 541, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981),

the Supreme Court held that due process is not violated

when a state employee negligently deprives an individual

of property, provided that the state makes available a

meaningful postdeprivation remedy. The rationale behind

Parrett was that “when deprivations of property are effected

through random and unauthorized conduct of a state employee, predeprivation procedures are simply ‘impracticable’ since the state cannot know when such deprivations

will occur.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct.

3194, 82 L. Ed. 2d 393 (1984). Accordingly, the Supreme

Court has extended Parrett’s logic to apply to intentional

deprivations of property. See id.

In Hudson, a state prisoner brought a § 1983 suit against

a corrections officer, arguing that the officer had intention-
14 No. 01-1941

ally destroyed some of his property. See id. at 520. The Supreme Court affirmed the lower court’s grant of summary

judgment in favor of the defendant, stating that “an unauthorized intentional deprivation of property by a state

employee does not constitute a violation of the procedural

requirements of the Due Process Clause . . . if a meaningful

postdeprivation hearing for the loss is available.” Id. at 533.

The Court found that the state cannot “anticipate and

control in advance the random and unauthorized intentional conduct of its employees,” and therefore, a predeprivation hearing would have been “impracticable.” Id. The

Supreme Court also found that the availability of a common-law tort suit against the corrections officer constituted

an adequate postdeprivation remedy. See id. at 534-35. In

so doing, the Court rejected the plaintiff’s contention that

a tort suit was not an adequate remedy because it would

not “necessarily compensate him fully,” and stated, “that

[plaintiff] might not be able to recover under these [common-law tort] remedies the full amount which he might

receive in a § 1983 action is not . . . determinative of the

adequacy of the state remedies.” Id. at 535.

Parrett and Hudson are directly applicable to the present

case. As discussed above, the City was not deliberately indifferent towards the two acts about which the plaintiffs

complain, and these acts certainly were not authorized.

Further, it would not have been practicable for the City “to

anticipate and control in advance” such random acts as

erroneous denials that a vehicle was at Lot 6 or two incidents of damage or theft. Id. at 533. Thus, as in Parrett and

Hudson, there was no due process violation so long as a

meaningful postdeprivation remedy was available. We now

turn to that question.

In this case, Illinois law would have provided the plaintiffs with an adequate postdeprivation remedy. A vehicle

owner whose vehicle was damaged at Lot 6 could have

obtained compensation from the City for the damage via an
No. 01-1941 15

action of bailment. See, e.g., Am. Ambassador Casualty Co.

v. City of Chicago, 563 N.E.2d 882, 884-85 (Ill. App. Ct.

1990). Such a bailment action would also have allowed a

vehicle owner to obtain an equitable decree directing the

return of property that was wrongfully withheld as well

as damages for the period during which the property was

wrongfully withheld. See id. Thus, a bailment action would

also have provided a complete remedy for those owners

who were erroneously told that their vehicles were not at

Lot 6. It is also possible that these owners may have had a

viable claim in an action for replevin. See 735 ILCS 5/19-

101 (owner of “goods or chattels” may sue in replevin “for

the recovery of such goods or chattels . . . .”); see also

Holstein v. City of Chicago, 29 F.3d 1145, 1148 (7th Cir.

1994) (holding that Illinois replevin law provides due process for those seeking return of their vehicles). The plaintiffs

argue that these tort actions were inadequate because they

would not provide for attorneys’ fees, as would a successful

§ 1983 action. However, as the Supreme Court has held, the

fact that the plaintiffs might be able to recover more in a

§ 1983 action than in a tort action does not render the tort

action an inadequate postdeprivation remedy. See Hudson,

486 U.S. at 535. Therefore, the plaintiffs were not deprived

of procedural due process.

2. Substantive Due Process

In order to prevail on a substantive due process claim

involving a deprivation of a property interest, a plaintiff

must “show either the inadequacy of state law remedies or

an independent constitutional violation.” Doherty v. City of

Chicago, 75 F.3d 318, 326 (7th Cir. 1996). The plaintiffs in

this case can show neither, and thus, their substantive due

process claim fails. As discussed above, the plaintiffs cannot

show the inadequacy of state law remedies. Further, they

fail to allege a constitutional violation other than violations
16 No. 01-1941

of due process, and thus have not shown that the City violated “some other substantive constitutional right.” Wudtke

v. Davel, 128 F.3d 1057, 1062 (7th Cir. 1997).

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—7-8-02