In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-3319

JOHN GERMANO, as an Individual

and as a Class Representative, 

Plaintiff-Appellant,

v.

WINNEBAGO COUNTY, ILLINOIS,

Defendant-Appellee.

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Appeal from the United States District Court for

the Northern District of Illinois, Western Division.

No. 01 C 50033—Philip G. Reinhard, Judge.

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ARGUED JANUARY 10, 2005—DECIDED APRIL 13, 2005

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Before CUDAHY, KANNE, and EVANS, Circuit Judges.

KANNE, 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 premiums 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 opinion, we affirm.
2 No. 04-3319

I. History

John Germano and the class members he represents are

retired deputies of the Winnebago County Sheriff’s Department. 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 predeprivation 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).
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 exist 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 understandings 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 insurance 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 covered 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 deprivation 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-
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 prison, 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 result 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 beyond the realm of the foreseeable.” Id. The actions of the

state were, in other words, random.
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 retired 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’ deviation.” 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
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 predeprivation 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 deputies] rates different than those charged non-retired deputies.” 

The retired deputies were denied their rights under the

deputy’s continuance privilege. However, “[f]ailure to implement 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 DISMISSED without prejudice.
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