NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with 

Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued May 7, 2008

Decided September 8, 2008

Before

WILLIAM J. BAUER, Circuit Judge

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 07-3190

BRUCE HORSTMANN, Appeal from the United States District

Plaintiff-Appellant, Court for the Southern District of Illinois.

v.

No. 07 C 433

ST. CLAIR COUNTY, ILLINOIS and 

BRUCE HAIDA, St. Clair County J. Phil Gilbert, Judge.

State’s Attorney,

Defendants-Appellees.

O R D E R

Bruce Horstmann contends that the St. Clair County, Illinois State’s Attorney and the County

deprived him of due process when the State’s Attorney wrote a letter to the Alorton, Illinois police

department and later to other potential employers that it would not prosecute any case in which he

played a significant role. Because the defendants had no role in the hiring or firing decisions alleged

in the complaint, Horstmann’s complaint fails to state a procedural due process claim. In addition,

the complaint’s allegations fail to implicate any fundamental rights protected by the substantive due

process clause. We therefore affirm the dismissal of the complaint for failure to state a claim upon
No. 07-3190 2

which relief could be granted. 

I. BACKGROUND

Bruce Horstmann resigned from the Belleville, Illinois police department in 2005. He then

began working as an officer with the Alorton, Illinois police department. When St. Clair County

State’s Attorney Robert Haida learned of this, he wrote a letter to the Alorton Chief of Police that

stated:

My office will not pursue the prosecution of any case which is based solely upon the

testimony of Office Bruce Horstmann or is otherwise based in substantial part on the

testimony of Officer Horstmann.

The Alorton police department fired Horstmann because of the letter. Horstmann later applied for

a job with the East St. Louis police department, but Haida wrote an identical letter to the chief of

that department, and Horstmann did not get the job. The same sequence took place with other police

departments in the area.

Horstmann filed suit against St. Clair County and State’s Attorney Haida asserting 

a right to relief under 42 U.S.C. § 1983. His complaint alleged that he had a property interest in

retaining employment with the Alorton police department and that he had a property interest in

obtaining and retaining employment with the East St. Louis, Illinois police department. The district

court granted the defendants’ motion to dismiss, and Horstmann appeals.

II. ANALYSIS

We review the grant of a motion to dismiss de novo, taking all well-pleaded facts as true and

construing all reasonable inferences in the plaintiff’s favor. Remet Corp. v. City of Chicago, 509

F.3d 816, 817 (7th Cir. 2007). To succeed on a section 1983 claim, a plaintiff must demonstrate that

he was deprived of a right guaranteed by the United States Constitution or federal law, by a person

acting under color of law. Thurman v. Village of Homewood, 446 F.3d 682, 686-87 (7th Cir. 2006).

Horstmann contends that his complaint states claims for deprivation of his constitutional rights to

procedural and substantive due process.

A. Procedural Due Process

We first consider whether Horstmann’s complaint states a procedural due process claim. The

government may not deprive a person of life, liberty, or property without due process of law. U.S.
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Const. amend. XIV, § 1; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). To

succeed on a procedural due process claim, a plaintiff must demonstrate a cognizable property

interest, a deprivation of that property interest, and a denial of due process. Hudson v. City of

Chicago, 374 F.3d 554, 559 (7th Cir. 2004). We will assume, at least with respect to Horstmann’s

employment with the Alorton police department, that Horstmann had a legitimate expectation of

continued employment, and therefore a property interest, in his position there. 

The fundamental requirement of due process is “the opportunity to be heard at a meaningful

time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). But Horstmann complains he did not receive

sufficient process from parties that could not have provided it. Neither State’s Attorney Haida nor

St. Clair County ever employed or potentially employed him. Nor is there any allegation that Haida

or St. Clair County had any input into the hiring or firing decisions made by the individual police

departments. As a result, the defendants named in this case did not deprive Horstmann of any

property interest he had in his job without due process of law. See Argyropoulos v. City of Alton,

No. 03-810-DRH, 2006 WL 2802112, at *7-8 (S.D. Ill. Sept. 28, 2006) (“Furthermore, before even

proceeding with the analysis below, the Court dismisses the claim against Defendant Botterbush.

Plaintiff has not provided any facts in this record that would suggest that Defendant Botterbush

terminated or had the authority to terminate Plaintiff. Likewise, without the authority to terminate

Plaintiff, Defendant Botterbush cannot be held liable for any due process deprivations relating to

Plaintiff's termination.”); aff’d No. 07-1983, 2008 WL 3905891, at *12 (7th Cir. Aug. 26, 2008)

(judgment against Botterbush proper because plaintiff “failed to identify any evidence in the record

showing that he played a role in her termination”); Heideman v. Wirsing, 840 F. Supp. 1285, 1300

(W.D. Wis. 1992) (granting summary judgment on procedural due process claim in favor of

defendant who had no power to terminate plaintiff’s employment). 

The only entity that had the power to take away any property interest Horstmann had in his

employment with the Alorton police department was the Alorton police department itself. It simply

makes no sense to say that the non-employing defendants named in this case should have provided

him with notice of his potential discharge, an opportunity to be heard before he lost his job, or a preor post- termination hearing. Cf., e.g., Loudermill, 470 U.S. at 545-46; Hudson, 374 F.3d at 560-64.

The district court properly granted the defendants’ motion to dismiss the procedural due process

claim.

B. Substantive Due Process

Horstmann also maintains that his complaint raises a cognizable substantive due process

claim. The scope of the protections afforded by substantive due process is limited, however, and

applies only to decisions affecting fundamental rights. Belcher v. Norton, 497 F.3d 742, 752 (7th

Cir. 2007); Wozniak v. Conry, 236 F.3d 888, 891 (7th Cir. 2001). Employment rights are state-
No. 07-3190 4

created rights, and a public employee’s interest in continued employment does not rise to the level

of a “fundamental” right protected by substantive due process. See Zorzi v. County of Putnam, 30

F.3d 885, 895 (7th Cir. 1994) (stating that substantive due process does not protect occupational

liberty); Silva v. Bieluch, 351 F.3d 1045, 1048 (11th Cir. 2003) (noting that substantive due process

does not protect employment rights); Nichols v. Penn State Univ., 227 F.3d 133, 142 (3d Cir. 2000)

(holding that tenured public employment not a fundamental property interest entitled to substantive

due process protection).

We have said before that a claim that employment was wrongfully terminated is not

sufficient to state a substantive due process claim unless the plaintiff also demonstrates that the

defendants violated some other constitutional right or that available state remedies were inadequate.

Montgomery v. Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005). Here, the complaint does not state a

claim for the violation of any other constitutional rights. And despite his protestations to the

contrary, Horstmann had adequate state-law remedies available to him. He maintains that he could

not get a fair trial on any state-law tort action brought in St. Clair County because Haida is the

county’s State’s Attorney. But if that’s the concern, Illinois law provides that Hortsmann could file

a motion to substitute the presiding judge for cause, 735 ILCS 5/2-1001(a)(3) and the judge may

then assign the case “to some other judge in some other convenient county, to which there is no valid

objection.” 735 ILCS 5/2-1001(c). A state-law tort action was an adequate available remedy.

Finally, we note that Horstmann’s complaint contains no indication of the reason Haida

decided not to prosecute cases in which Horstmann played a significant role. There is also no

suggestion that Horstmann attempted to use internal grievance procedures. There may well have

been a sound reason for Haida’s decision not to prosecute cases involving Horstmann, so Haida’s

letter on its face does not “shock the conscience” as Horstmann asserts. Cf. Belcher, 497 F.3d at 753

(noting that when exercise of government authority involves law enforcement officials, substantive

due process rights violated when alleged abuse of power “shocks the conscience”). The district

court properly granted the motion to dismiss this count as well.

III. CONCLUSION

The judgment of the district court is AFFIRMED.