In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-3075, 10-3076, 10-3077,

10-3078, 10-3106 & 10-3140

ROBERT TENNY, et al.,

Plaintiffs-Appellants,

v.

ROD R. BLAGOJEVICH, et al.,

Defendants-Appellees.

Appeals from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 10-CV-03683—Charles R. Norgle, Sr., Judge.

No. 10-3169

MARCOS GRAY,

Plaintiff-Appellant,

v.

ROGER E. WALKER, JR., et al.

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10-CV-04637—Rebecca R. Pallmeyer, Judge.

ARGUED JUNE 9, 2011—DECIDED AUGUST 25, 2011
2 Nos. 10-3075, 10-3076, 10-3077, 10-3078,

10-3106, 10-3140 & 10-3169

Before MANION, WOOD, and HAMILTON, Circuit Judges.

MANION, Circuit Judge. Illinois has a statutory cap

on the price prison commissaries can charge inmates for

any item purchased. The plaintiffs in these consolidated

cases are seven inmates incarcerated at Stateville Correctional Center in Joliet, Illinois. They sued current and

former officials in the Illinois Department of Corrections,

and the former Governor, for marking up the price of

commissary goods beyond that cap. In each case, the

district court screened the complaint under 28 U.S.C.

§ 1915A and dismissed the case for failure to state a

claim upon which relief may be granted. The plaintiffs

appeal, framing the matter as a violation of their procedural due process rights under the Fourteenth Amendment. Because no pre-deprivation process could have

predicted or prevented the alleged deprivation, and

plaintiffs have not alleged the absence of adequate postdeprivation remedies, we affirm.

I.

By statute, Illinois caps the mark-up on goods sold at

prison commissaries to inmates to 25% over the cost of

goods sold (35% for tobacco products). 730 Ill. Comp. Stat.

5/3-7-2a. The mark-up covers the wages and benefits of

commissary employees. Id. In November 2005, the

Illinois Department of Corrections imposed a purported

3% mark-up, which was increased to 7% in early 2006.

During an audit of the Department in June 2006, the

Illinois Auditor General discovered that commissary
Nos. 10-3075, 10-3076, 10-3077,10-3078, 3

 10-3106, 10-3140 & 10-3169

goods had already been marked up to the maximum

25%, and that the new 7% mark-up was on top of the

existing mark-up—in violation of the Illinois statute. The

Auditor General recommended that the Department

conform its pricing policy to the statute or seek a

formal opinion from the Attorney General.

Despite the Auditor General’s findings and recommendations, the Department maintained the unlawful

mark-ups. It informed the Auditor General that it “intended to work with other authoritative State agencies

regarding a more refined interpretation of cost of goods.”

During his subsequent audit two years later, the Auditor

General again found that “inmate commissary goods

[were] marked up more than allowed by statute.” The

Department continues to maintain that commissary

prices “have been determined by the Director to be in

accordance with State Statutes.”

The plaintiffs each filed grievances within the prison

system. All appeals were denied. The Stateville prison

determined that the pricing policy was controlled by

the Department, and the Department concluded that the

policy complied with state law. The plaintiffs then

filed these suits in federal district court under 42 U.S.C.

§ 1983, alleging violations of their federal and state constitutional rights. Six of them filed a single complaint

on behalf of themselves, seeking to represent all similarly

situated inmates (Tenny, et al. v. Blagojevich, et al.). The

last plaintiff filed his own complaint, making substantially the same allegations as the first (Gray v. Walker,
4 Nos. 10-3075, 10-3076, 10-3077, 10-3078,

10-3106, 10-3140 & 10-3169

Because of the § 1915A dismissal, the defendants in these 1

cases were never served notice of the complaint nor the

appeal. At our invitation, the Illinois Attorney General submitted a response brief.

et al.). In each case, the district court screened and dismissed the complaint under 28 U.S.C. § 1915A, finding

that the plaintiffs had failed to state a claim because

they had no federal constitutional right to commissary

access nor to particular prices for commissary items.1

The district court did not address the Illinois constitutional claims in either case.

II.

On appeal, the plaintiffs claim that the Department

is violating their constitutional right to procedural due

process under the Fourteenth Amendment by depriving

them of a protected property interest (their state-created

right to a cap on the mark-up of commissary items)

without due process of law. A procedural due process

violation occurs when (1) conduct by someone acting

under the color of state law (2) deprives the plaintiff of

a protected property interest (3) without due process of

law. Germano v. Winnebago County, Ill., 403 F.3d 926,

927 (7th Cir. 2005). A protected property interest is a

“legitimate claim of entitlement” that is “defined by

existing rules or understandings that stem from an independent source such as state law.” Board of Regents

v. Roth, 408 U.S. 564, 577 (1972); Germano, 403 F.3d at 927.
Nos. 10-3075, 10-3076, 10-3077,10-3078, 5

 10-3106, 10-3140 & 10-3169

The opportunity to choose to spend money at the prison 2

commissary at a price higher than the statutory cap is

relatively minor compared to the denial of a retirement benefit

that the county was required to provide for retired deputies.

(continued...)

We review de novo the district court’s dismissal under

§ 1915A. Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009).

The plaintiffs draw their argument extensively from

Germano, 403 F.3d 926. In that case, a plaintiff class of

retired deputies of the county sheriff’s department

sued the county, alleging that county policy violated

Illinois law. Id. at 927. Illinois law provides that counties

cannot offer a group health insurance policy to its active

deputies unless it also allows retired deputies to continue

on the policy at the same premium rate set for active

deputies. Id. The plaintiffs alleged in part that the county

was requiring retired deputies to pay higher premiums

than active deputies. Id. The court concluded that

the Illinois statutes in question did create property interests for retired deputies and that it did not doubt

that “[c]ounty policy is in violation of this state law.” Id.

at 927-28.

The plaintiffs argue that inmates have a similar

property interest in the caps on commissary prices: although the prisons are not required to provide commissary access, where they do provide access, the plaintiffs

claim they have a property interest created by the statutory

cap. The Attorney General cites Ashley v. Snyder, 739

2
6 Nos. 10-3075, 10-3076, 10-3077, 10-3078,

10-3106, 10-3140 & 10-3169

(...continued) 2

Nevertheless, hypothetically, and for the sake of this argument, we will apply the analysis as if the property interest

for the prison inmates is the same as for the retired deputies.

That assumption leads to the question of whether the statute

that caps commissary markups was designed to benefit prison

inmates rather than simply providing guidelines for prison

operations.

In Sandin, the Supreme Court held that prison regulations 3

do not themselves create protected liberty interests other than

“freedom from restraint which . . . imposes atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.” 515 U.S. at 483-84. The Attorney

General makes a strong case that the reasoning of Sandin

(although perhaps not in all of the particulars) should extend

to statutorily created property interests as well. Because we

decide this case on other grounds, we need not take a position on this issue, which has split the circuits. Compare Cosco

(continued...)

N.E.2d 897 (Ill. App. 2000), which held that Illinois

prison regulations do not create substantive interests

protected under the Due Process clause. If Ashley were

an independent interpretation of the Illinois prison

code, that interpretation would conclusively establish

that the plaintiffs have no protected property interest.

But Ashley merely follows Sandin v. Conner, 515 U.S. 472,

483-84 (1995), in declaring that prison regulations do not

generally create protected liberty interests and does not

address whether there may be protected property

interests.3
Nos. 10-3075, 10-3076, 10-3077,10-3078, 7

 10-3106, 10-3140 & 10-3169

(...continued) 3

v. Uphoff, 195 F.3d 1221, 1223-24 (10th Cir. 1999) (extending

Sandin’s rationale to property interests), with Handberry

v. Thompson, 446 F.3d 335, 353 n.6 (2d Cir. 2006) (noting that

Sandin does not apply to property interests) and Bulger v.

United States, 65 F.3d 48, 50 (5th Cir. 1995) (same).

Parratt was overruled on another point of law by Daniels 4

v. Williams, 474 U.S. 327 (1986).

But even assuming a protected property interest exists,

the plaintiffs’ analogy to Germano actually undermines

their claim. After recognizing a property interest, the

court in Germano held that the county’s actions were

“random and unauthorized” within the meaning of

Parratt v. Taylor, 451 U.S. 527, 541 (1981), and Easter 4

House v. Felder, 910 F.2d 1387, 1404 (7th Cir. 1990) (en banc),

and thus due process did not require any sort of hearing

before the alleged deprivation occurred. The court explained that “[t]he 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.” Id. at 929. In other

words, “no process afforded plaintiff would have been

sufficient to establish that the county could charge the

retired deputies rates different than those charged nonretired deputies.” Id. The court dismissed the case.

This case fails for the same reasons that Germano

failed. The central question, as we recognized there, is

whether the Department’s pricing policy in the prison
8 Nos. 10-3075, 10-3076, 10-3077, 10-3078,

10-3106, 10-3140 & 10-3169

commissary gives rise to the type of deprivation that

might be prevented by some pre-deprivation process.

See, e.g., Ellis v. Sheahan, 412 F.3d 754, 757-58 (7th Cir.

2005). Here, as in Germano, the answer is no. The plaintiffs suggest that some sort of notice-and-comment

rulemaking might satisfy constitutional due process. The

prospect of a federal court ordering a state to create

such a procedure risks turning procedural due process

into a constitutionally mandated state administrative

procedure act. But even if this were possible, notice-andcomment rulemaking would not satisfy the plaintiffs’

complaints. It could not prevent the Department from

violating Illinois law any more than it could permit such

a violation. Indeed, how could any process initiated by

the Department permit it to exceed the limitations set

by statute? The plaintiffs also suggest that Illinois should

have required the Attorney General to approve commissary pricing policy changes, at least once it became

clear that the Department had no intention of complying

with state law. What, then, if the Attorney General approved the mark-ups in violation of state law? These

latter suggestions come close to asking us to mandate

that Illinois comply with its own laws, which we will

not do. See infra at p. 8.

Where meaningful pre-deprivation review would either

be impossible or ineffectual, adequate post-deprivation

remedies may satisfy constitutional due process requirements. See Parratt, 451 U.S. at 539. The plaintiffs have

not alleged that post-deprivation remedies are inadequate, which is fatal to their claim at this juncture. See
Nos. 10-3075, 10-3076, 10-3077,10-3078, 9

 10-3106, 10-3140 & 10-3169

LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937,

944 (7th Cir. 2010) (“[The plaintiff] alleges neither that

it availed itself of state post-deprivation remedies, nor

that the available remedies are inadequate, as it was

required to do.” (citation omitted)). 

Nor do we think that amending the complaints to

include such an allegation would be a simple fix, as the

plaintiffs aver. In their reply brief, for the first time

in this case, the plaintiffs argue that they have no

viable post-deprivation remedy: the Illinois Court of

Claims, which has exclusive jurisdiction over monetary

claims against the State, does not have jurisdiction to

“consider the constitutionality or validity of regulations

or statutes.” Tedder v. State, 40 Ill. Ct. Cl. 201 (1998). While

that may be relevant to the post-deprivation remedy

analysis, it does not end it. First, the plaintiffs have

already had some post-deprivation remedies—they allege

that they have complained under the prison system

grievance procedure and appealed the denial of those

claims. They have thus had the opportunity to present

their arguments to the Department itself, which is as

much as their proposal for notice-and-comment

rulemaking would achieve. Second, it is not at all clear

that the plaintiffs’ claims in the Court of Claims would

necessarily involve a determination of the validity or

constitutionality of a statute or regulation. They allege

that the Department’s pricing policy violates Illinois

law. But we do not know what the Court of Claims considers a regulation, and the pricing policy in this case,

which is not found in the Illinois Administrative Code,
10 Nos. 10-3075, 10-3076, 10-3077, 10-3078,

10-3106, 10-3140 & 10-3169

may or may not fall into that category. Finally, even if the

plaintiffs are correct that the Court of Claims will not

consider a claim based on the illegality of a prison

policy, other Illinois courts can and will entertain

such claims and may grant injunctive and declaratory

relief. E.g., Hadley v. Dept. of Corrections, 840 N.E.2d 748

(Ill. App. Ct. 2005) (holding that injunctive relief was

appropriate for challenge to validity of prison policy and

that medical co-payment charges for indigent inmates

violated Illinois law), aff’d 864 N.E.2d 162 (Ill. 2007).

While the path to relief—including potential monetary

awards if and when the current commissary mark-up

policy is declared illegal—may be circuitous, this does

not make it inadequate. We are thus satisfied that the

plaintiffs have adequate post-deprivation remedies in

state court, which dooms their constitutional due

process claims.

Put another way, this case is really about a substantive violation of Illinois law, not about the procedures

required before the plaintiffs can be deprived of a

property interest. The plaintiffs’ grievance is about what

was done (the mark-up in excess of 25%), not the procedures followed to do it. And that is exactly what this

court, and the Supreme Court, have worried “would

make of the Fourteenth Amendment a font of tort law,” or

in this case administrative law,” to be superimposed

upon whatever systems may already be administered

by the States.” Easter House, 910 F.2d at 1396 (quoting

Parratt, 451 U.S. at 544). Federal courts do not sit to

compel a state’s compliance with its own law. Cf. U.S.
Nos. 10-3075, 10-3076, 10-3077,10-3078, 11

 10-3106, 10-3140 & 10-3169

Const., amend. XI; Archie v. City of Racine, 847 F.2d

1211, 1217 (7th Cir. 1988) (explaining difference between

a suit alleging violation of procedural due process and a

suit seeking to enforce state law). Even assuming the

plaintiffs were deprived of a property interest created

by state law, “[f]ailure to implement state law violates

that state law, not the Constitution; the remedy lies in

state court.” Germano, 403 F.3d at 929 (citation omitted).

The plaintiffs’ federal constitutional claims fail.

III.

For these reasons, we hold that the plaintiffs in these

consolidated appeals have not alleged a violation of

due process under the Fourteenth Amendment. Even

assuming that the prison regulation in this case

created a protected property interest in a certain cap on

the mark-up of commissary goods, the plaintiffs have not

alleged that post-deprivation remedies are inadequate

to satisfy constitutional due process requirements. But

while the federal constitutional claims were correctly

dismissed on the merits, the independent state constitutional claims were not addressed. We therefore

REMAND both cases to the district court with instructions

to dismiss the state law claims without prejudice.

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