In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2590
E VA L. L EAVELL, individually and as
Administratrix and heir of the
Estate of D ANIEL L EAVELL, deceased,
Plaintiff-Appellant,
v.
ILLINOIS D EPARTMENT OF N ATURAL
R ESOURCES, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:08-cv-00332-GPM-DGW—G. Patrick Murphy, Judge.
A RGUED JANUARY 22, 2010—D ECIDED A PRIL 6, 2010
Before R IPPLE and R OVNER, Circuit Judges, and ST. E VE,
District Judge.
R IPPLE, Circuit Judge. Eva Lovene Leavell, individually
and as the administratrix of the estate of her deceased
The Honorable Amy J. St. Eve, District Judge for the Northern
District of Illinois, is sitting by designation.
2 No. 09-2590
husband, Daniel Leavell, instituted this action against
the Illinois Department of Resources (“Department”) and
several oil companies. Ms. Leavell asserted, among
other issues, a procedural due process claim and sought
injunctive relief to prevent the Department and its
officers from plugging oil wells owned by various mem-
bers of the Leavell family and from transferring control
over wells to the defendant oil companies. The Depart-
ment, its separately named officers and the company
defendants moved to dismiss the various counts on a
variety of grounds, including that some of the counts
failed to state a claim upon which relief could be
granted. On April 7, 2009, the district court granted the
motions and dismissed all of the counts. Ms. Leavell’s
subsequent motion for reconsideration also was denied.
Ms. Leavell now appeals the dismissal of her due
process claim set forth in Count VIII of the amended
complaint. For the reasons set forth in the following
opinion, we affirm the judgment of the district court.
I
BACKGROUND
A. Facts 1
Members of the Leavell family were owners or lessees
of hundreds of oil wells in counties across southern
1
Ms. Leavell and the Department have a long and litigious
history. However, because the present appeal is limited in
scope, we recount only those facts that are pertinent to, or
will aid in the understanding of, the issue presently before us.
No. 09-2590 3
Illinois. Ms. Leavell and her now-deceased husband,
Daniel, apparently were the primary owners or lessees
of the wells. Their son, Stanley Leavell, operated the
wells. Ms. Leavell was the primary permit holder for
many of the wells.
At some point in the year 2000, the Department, specifi-
cally its Office of Mines and Minerals, sought to revoke
the permits that it had granted to Ms. Leavell and also
sought to plug many of her wells because it believed
that those wells had been abandoned. On January 24, 2000,
the Department notified Ms. Leavell by certified mail
that the Department intended to hold a hearing on Febru-
ary 10, 2000, to determine whether certain wells had
been abandoned and, thus, whether they should be
plugged (Proceeding #AW-00-037). The letter was sent
to Ms. Leavell’s address, which was on record with the
State; a certified mail receipt was returned to the Depart-
ment confirming that the letter had been delivered. On
February 10, 2000, Ms. Leavell did not appear for the
hearing (“the 2000 hearing”). Proceeding in her absence,
the Department determined that the wells at issue were
abandoned and also determined that the wells should
be plugged.
In January 2001, the Department identified approxi-
mately 100 additional wells that it deemed abandoned
and sought to have plugged. The Department attempted
to notify Ms. Leavell of a hearing by certified mail, but
the notice was returned; consequently, the Department
sent notice by regular mail. On February 14, 2001, the
Department held the hearing (“the 2001 hearing”) con-
4 No. 09-2590
cerning the additional 100 wells (Proceeding #AW-01-030).
Again, Ms. Leavell did not appear, and again, after re-
ceiving evidence, the Department determined that the
wells had been abandoned and directed that the wells
be plugged. On April 16, 2001, Ms. Leavell received
notice of this determination.
On April 26, 2001, Ms. Leavell filed suit in Illinois circuit
court (Case No. 01-MR-4) seeking a declaration that the
Department’s administrative decision following the
2001 hearing violated state and federal law because the
Department had failed to provide notice of the hearing.
The circuit court granted the Department’s motion to
dismiss for improper service of process. However, the
Illinois appellate court reversed and remanded. The
appellate court ruled that the circuit court should have
reached the merits of Ms. Leavell’s claim that the Depart-
ment’s notice of the hearing was insufficient. See In re
Abandonment of Wells Located in Illinois by Eva Lovene
Leavell, 796 N.E.2d 623, 627-28 (Ill. App. Ct. 2003).
Over the next several years, the Department continued
to evaluate and adjudicate whether other Leavell mines
had been abandoned, whether they should be plugged,
and whether the permits to those mines should be trans-
ferred to other individuals or firms. These hearings
spawned new allegations of lack of statutory notice
that resulted in additional suits being brought by
Ms. Leavell in Illinois state court. In these actions, the
circuit courts ruled in the Department’s favor; the actions
were consolidated for appeal; and the judgments of the
circuit courts were affirmed by the Appellate Court of
No. 09-2590 5
Illinois. See Leavell v. Dep’t of Natural Res., No. 5-08-0298,
2010 WL 609083 (Ill. App. Ct. Jan. 19, 2010).
On February 26, 2008, the Department held another
hearing concerning one well, for which Daniel held the
permit (Proceeding #AW-08-009). The Department sent a
certified letter to Daniel notifying him about the hearing.
However, by this time, Daniel had died. According to the
complaint, no representative of Daniel or his estate re-
ceived notice of the hearing, these parties did not
appear and the hearing proceeded in absentia (the “2008
hearing”). After the hearing, the Department determined
that the well at issue had been abandoned and ordered
that it be plugged. Ms. Leavell, as administratrix of the
estate of Daniel Leavell, did not challenge this ruling
through any subsequent state administrative or judicial
proceeding.
B. District Court Proceedings
On May 6, 2008, Ms. Leavell2 initiated the present action
in the district court. On September 3, 2008, she filed an
amended complaint that alleged, among other issues, that
the Department violated Daniel’s due process rights
2
The complaint was filed by Ms. Leavell, individually and as
the administratrix and heir of the estate of Daniel Leavell, and
by her son, Stanley. However, the count at issue on appeal
concerns only the due process rights of Daniel Leavell and his
estate. Consequently, we limit our discussion to Ms. Leavell
as administratrix of the estate of her deceased husband.
6 No. 09-2590
by failing to provide him with sufficient notice of the
2008 hearing.
The Department moved to dismiss. Specifically, it
contended that Count VIII failed to state a claim upon
which relief may be granted. See R.39 at 12. The Depart-
ment argued that Ms. Leavell’s allegations focused on
the failure of Department employees to provide proper
notice before the 2008 hearing. The Department acknowl-
edged that,
[a]lthough a State usually must provide a hearing
before it deprives a person of property, it does not
have to do so where providing a predeprivation
hearing is impossible. Zinermon v. Burch, 494 U.S.
113, 128 (1990). Where the deprivation is the result
of a state actor’s random and unauthorized con-
duct, a postdeprivation remedy is the only remedy
a State can be expected to provide because the
loss is not the result of an established state pro-
cedure, and therefore the State cannot predict
precisely when the loss will occur. Id., 128-9. When
a procedural due process claim is based on the
random and unauthorized conduct of a state
actor and state law remedies are available, a plain-
tiff must either avail himself of the state law rem-
edy or show that the available remedy is inade-
quate. Doherty v. City of Chicago, 75 F.3d 318,
323 (7th [Cir.] 1996).
No. 09-2590 7
R.39 at 11. 3 Thus, because Ms. Leavell had failed to allege
that state post-deprivation remedies were inadequate,
her due process claim with respect to the 2008 hearing
failed to state a claim upon which relief could be granted.
Ms. Leavell opposed the motions to dismiss. With respect
to all of the due process claims, Ms. Leavell argued that
42 U.S.C. § 1983 and case law interpreting that section
had no bearing on her claims. She explained that those
counts “only seek[] declaratory and injunctive relief,” they
do “not ask for a dime in money damages, and do [] not
even try to plead a 1983 claim. Thus, Defendant’s argu-
ments concerning 1983 law is irrelevant, as it is simply
not applicable” to these counts. R.42 at 8.
After conducting a hearing, the district court dismissed
all counts. With respect to Count VIII, the district court
dismissed it with prejudice on the basis of issue preclusion.
The district court apparently believed that Count VIII
sought relief for lack of notice for the hearings on the
wells for which Ms. Leavell was the permittee, as opposed
to the well for which Daniel held the permit. Thus, the
district court concluded that the notice issue raised
in Count VIII had been litigated in the prior state
court actions.
3
The Department acknowledged that, in the Amended Com-
plaint, Ms. Leavell also characterized Count VIII as a challenge
“ ‘to the fundamental fairness of state procedures,’ ” but, the
Department noted, Ms. L eavell did “not state why the proce-
dures are invalid or even allege that they are invalid.” R.39 at 12.
8 No. 09-2590
Ms. Leavell filed a Rule 59 motion to reconsider. She
pointed out that several of the state-court actions in
which she personally had alleged lack of notice were on
appeal to the Illinois Court of Appeals and therefore were
not final judgments for purposes of issue preclusion.
Additionally, she explained that Count VIII involved a
challenge to the notice for the 2008 hearing, which should
have been provided to Daniel (or, after his death, to his
estate), and neither he, nor his estate, were parties to the
earlier actions. Consequently, the estate could not be
bound by the earlier state-court determinations. See R.51
at 3.
The Department opposed the motion to reconsider. It
agreed that “issue preclusion does not result from the
decisions presently on appeal in the state court because
they are not final judgments.” R.52 at 2. Nevertheless, the
Department urged the district court to deny the motion
with respect to Count VIII on two grounds. First, the
Department argued that the administrative decision
following the 2008 hearing had preclusive effect because
“[t]he doctrine of issue preclusion applies to unreviewed
state administrative decisions,” and Ms. Leavell never
sought review of that decision. Id. at 4. Second, the Depart-
ment reiterated its argument that Count VIII should be
dismissed for failure to state a claim:
Count VIII . . . do[es] not contain colorable objec-
tions to the validity of State procedures and there-
fore do[es] not allege procedural due process
violations. Instead, Count[] VIII . . . [is] based on
individual state actors’ alleged failure to comply
No. 09-2590 9
with the IDNR regulation that requires notice
prior to abandonment hearings. In other words,
plaintiffs do not allege that IDNR’s procedure
for providing notice is invalid, they allege that
individual state employees failed to comply with
the procedure for providing notice. In such cases,
procedural due process claims are considered the
result of random and unauthorized conduct
of state actors, not the invalidity of a state law.
Id. at 7-8 (internal citations omitted).
The district court denied the motion to reconsider. It
faulted Ms. Leavell for raising new arguments and sug-
gested that she should have opposed the application
of issue preclusion before judgment was entered. See
R.54 at 4. The court stated:
The matter of whether state-court judgments are
issue-preclusive as to Count 8 of the complaint
in this case was raised squarely before the entry
of the Court’s judgment as to that claim, and there
is no reason why the evidence and argument
concerning pending appeals as to the state-court
judgments contained in Mrs. Leavell’s Rule 59(e)
motion could not have been submitted to the
Court before the entry of judgment in this case.
Id. The court concluded similarly with respect to the
second point raised by Ms. Leavell:
Prior to the entry of judgment as to Count 8, it was
conceded that Daniel Leavell is not the permit
holder of the wells that were subject of the admin-
10 No. 09-2590
istrative proceedings challenged in Count 8 . . . .
The Court certainly is not inclined to entertain
for the first time post-judgment the argument . . .
that in fact Daniel Leavell is the permit holder
for the wells at issue in Count 8.
Id. at 5.
Ms. Leavell timely appealed.
II
DISCUSSION
Much of Ms. Leavell’s brief on this appeal is devoted
to addressing the district court’s determination that,
because of prior state-court actions, she is precluded
from pursuing the due process claim set forth in Count
VIII. In its response, the Department urges us to affirm
the district court’s judgment on two grounds. First, it
maintains that the district court did not abuse its discre-
tion in denying Ms. Leavell’s Rule 59 motion because
she had failed to make the arguments contained in that
motion prior to the court’s entering judgment. Second, it
argues that the district court’s judgment should be af-
firmed on the alternative ground that Count VIII fails
to state a claim for which relief can be granted.4
4
In addition to urging that we affirm the judgment of the
district court dismissing with prejudice Count VIII, the Depart-
ment asked us to convert the district court’s dismissal of Counts
I and III from a dismissal without prejudice into a dismissal
(continued...)
No. 09-2590 11
Ms. Leavell’s reply brief does not refute directly the De-
partment’s due process arguments. She argues, instead,
that it would be inappropriate for us to address the
adequacy of her pleading because the district court
did not reach the issue. She also states that, “assuming
arguendo that adequate state law procedures existed,
that does not mandate a dismissal with prejudice, as
Daniel Leavell can still file his action in Illinois state
court. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
2002).” Reply Br. 3.
At oral argument, the parties made additional conces-
sions that further narrow the issues that we must ad-
dress. For its part, the Department stated that collateral
estoppel should not be invoked as a ground on which to
affirm the district court. Instead, the Department simply
maintained that the judgment should be affirmed on the
ground that Count VIII fails to state a due process claim.
For her part, Ms. Leavell, through counsel, conceded that
there were “no systemic impediments” in Illinois’s proce-
dures for terminating a permittee’s rights. Additionally,
she conceded that, as a general proposition, if there is
an adequate post-deprivation procedure to challenge
lack of notice for a hearing, then there is no due process
violation. She contended, however, that, in these circum-
4
(...continued)
with prejudice. Absent a cross-appeal, the appellee may not seek
to enlarge his own rights or “lessen[] the rights of his adver-
sary.” El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479
(1999) (internal quotation marks and citations omitted). Conse-
quently, we decline the Department’s request.
12 No. 09-2590
stances, the proper course of action is to dismiss the
claim without prejudice so that she either can re-plead
her claim in federal court or can pursue her state reme-
dies. With these narrowed arguments in mind, we turn to
the issue whether Count VIII states a due process claim,
and, if not, whether we may affirm the district court’s
dismissal of that claim with prejudice.
A.
“A procedural due process claim requires a two-fold
analysis. First, we must determine whether the plaintiff
was deprived of a protected interest; second, we must
determine what process is due.” Pugel v. Bd. of Trustees of
Univ. of Ill., 378 F.3d 659, 662 (7th Cir. 2004). “[I]n evaluat-
ing what process satisfies the Due Process Clause,” one of
our sister circuits has explained, “ ‘the Supreme Court
has distinguished between (a) claims based on estab-
lished state procedures and (b) claims based on random,
unauthorized acts by state employees.’ ” Rivera-Powell v.
New York City Bd. Of Elections, 470 F.3d 458, 465 (2d Cir.
2006) (quoting Hellenic Am. Neighborhood Action Comm. v.
City of New York, 101 F.3d 877, 880 (2d Cir. 1996)); see also
Strasburger v. Bd. of Educ., Hardin County Cmty. Unit Sch.
Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998) (“To show a
failure of due process, a plaintiff might show that state
procedures as written do not supply basic due process
or that state officials acted in a[] ‘random and unautho-
rized’ fashion in depriving the plaintiff of his protected
interest.” (quoting Parratt v. Taylor, 451 U.S. 527, 540
No. 09-2590 13
(1981)). If the plaintiff alleges that “the deprivation is
pursuant to an established state procedure, the state
can predict when it will occur and is in the position to
provide a pre-deprivation hearing.” Rivera-Powell, 470
F.3d at 465. “Under those circumstances, ‘the availability
of post-deprivation procedures will not, ipso facto, satisfy
due process.’ ” Id. (quoting Hellenic Am. Neighborhood
Action Comm., 101 F.3d at 880).
By contrast, “[w]hen the state conduct in question is
random and unauthorized, the state satisfies procedural
due process requirements so long as it provides [a] mean-
ingful post-deprivation remedy.” Id. Thus, we have
stated that, for a plaintiff alleging a procedural due
process claim based on “random and unauthorized”
conduct of a state actor, the plaintiff must either avail
herself of state post-deprivation remedies “or demonstrate
that the available remedies are inadequate.” Doherty v.
City of Chicago, 75 F.3d 318, 323 (7th Cir. 1996) (citing
Daniels v. Williams, 474 U.S. 327, 339-40 (1986)). If the
plaintiff has not availed herself of state remedies, she
cannot “ ‘state a valid procedural due process objection . . .
if [she] does not include a challenge to the fundamental
fairness of the state procedures.’ ” Hamlin v. Vaudenberg,
95 F.3d 580, 583 (7th Cir. 1996) (quoting Doherty, 75 F.3d
at 323).
In the present case, the allegations of Count VIII of
Ms. Leavell’s complaint make it clear that her claim is one
based on “random and unauthorized” conduct. That
count alleges:
14 No. 09-2590
5. That the Illinois Department of Natural Re-
sources (“DNR”) held an administrative hearing,
numbered AW-08-009, which held that certain oil
wells located in the Southern District of Illinois,
and owned by Plaintiff Daniel were abandoned.
6. That Illinois law expressly requires that before
such an administrative hearing, such as in AW-08-
009, takes place, that either (a) personal service,
or, (b) certified mail service take place.
7. That Plaintiff Daniel was deceased, and there-
fore, was not personally served, and did not sign
for any certified mail notice for AW-08-009.
8. That Administratix [sic], and heir, Eva Lovene
Leavell, was not personally served, and did not
sign for, or receive, any certified mail notice
for AW-08-009.
R.34 at 16. In sum, Ms. Leavell claims that, by law, she or
Daniel should have been given notice of the hearing;
however, the Department failed to give her the required
notice and, in doing so, deprived her of due process.
Ms. Leavell does not allege any specific shortcomings
in the notice provisions that resulted in a due process
violation. It is simply the Department employees’ failure
to implement the existing procedures with respect to
the 2008 hearing that gives rise to her claim.
Ms. Leavell’s claim here is similar to that made by
owners of a retirement home in Beechwood Restorative Care
Center v. Leeds, 436 F.3d 147 (2d Cir. 2006). In that case, the
owners claimed that their due process rights had been
No. 09-2590 15
violated when the state revoked their “establishment
approval,” which “gives the medical facility the right to
exist,” without the required notice and opportunity for
hearing. Id. at 151 (internal quotation marks and cita-
tions omitted). The Second Circuit held that, assuming
that state law required notice and hearing prior to the
revocation, “[t]he claim in this case is that [the Depart-
ment of Health] failed to afford the opportunity for a
hearing guaranteed by section 2801-a(10)(b)(i)—a
failure that would be an instance of a ‘random unautho-
rized act.’ ” Id. at 156.
Indeed, Ms. Leavell never has denied that the failure to
provide her notice for the 2008 hearing was random and
unauthorized. Furthermore, Ms. Leavell has not set
forth any facts that would lead one to conclude that the
failure to provide notice was “predictable” or authorized
by the State. See Easter House v. Felder, 910 F.2d 1387, 1400
(7th Cir. 1990). Ms. Leavell has not alleged that the State
can predict when an employee, either because of negli-
gence or intentional conduct, will fail to give notice of a
pending hearing. See Zinermon v. Burch, 494 U.S. 113, 136
(1990) (distinguishing cases that involve random and
unauthorized conduct from cases in which the state can
foresee or predict when a constitutional deprivation
may occur). Additionally, Ms. Leavell does not suggest
that the State should implement supplemental procedural
safeguards to ensure adequate notice. See id. at 137 (con-
sidering whether additional processes may be employed
to prevent constitutional deprivations from occurring).
Finally, she does not maintain that the State of Illinois
bestowed any type of discretion on Department employees
such that one could consider an employee’s decision
16 No. 09-2590
to ignore established procedure “authorized” by the
State. See id. at 137-38 (distinguishing unauthorized
conduct by a state employee from the situation in which
“[t]he State delegated to [the employee] the power and
authority to effect the very deprivation complained of”).
In sum, because Ms. Leavell simply alleges that the
State had in place a procedure to provide notice and
that the procedure was not followed with respect to the
February 2008 hearing, she is complaining of a “random
and unauthorized” action by a state employee. Conse-
quently, she must allege the inadequacy or unfairness
of post-deprivation procedures in order to state a due
process violation.
In this case, Ms. Leavell has not argued that state post-
deprivation remedies fail to satisfy due process. Indeed,
she has conceded, both at oral argument and in her
reply brief, that there are state remedies available to
redress the lack of notice. See Reply Br. 4 (“Plaintiff can
file h[er] voidness for lack of notice challenge in Illinois
state court, at any time, not just within 35 days as sug-
gested by Defendant.”); In re Abandonment of Wells
Located in Illinois by Eva Lovene Leavell, 796 N.E.2d 623,
626 (Ill. App. Ct. 2003) (“L & L’s allegation that the Depart-
ment lacked authority to enter an order in the absence
of the required notice is a proper issue that can be raised
at any time, either directly or through a collateral at-
tack.”); see also 225 ILCS 725/10 (providing that “[a]ll final
administrative decisions of the Department made on or
after the effective date of this amendatory Act of 1988
are subject to judicial review under the Administrative
Review Law as now or hereafter amended”). “[A] state
No. 09-2590 17
cannot be held to have violated due process require-
ments when it has made procedural protection available
and the plaintiff has simply refused to avail himself of
them.” Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir. 1982).
Ms. Leavell’s failure to avail herself of available state
remedies is, therefore, fatal to her federal due process
claim.
B.
It is clear that Ms. Leavell’s claim fails as a matter of
law and must be dismissed. The only remaining question
is whether that dismissal should be with or without
prejudice. As stated previously, Ms. Leavell admitted
that dismissal is appropriate, but maintained that any
dismissal should be without prejudice. Ms. Leavell
argued that her “case can be dismissed as premature, at
least if the opposing party has not been harmed by
the premature filing of the suit, and hence without preju-
dice.” Reply Br. 3-4. In support, she cited to Walker
v. Thompson, 288 F.3d 1005 (7th Cir. 2002), and Mitchell
v. Chapman, 343 F.3d 811 (6th Cir. 2003). We do not
believe these cases support Ms. Leavell’s contention
that the present action should be dismissed without
prejudice.
In Walker, a district court had dismissed with prejudice
a First Amendment retaliation claim brought by a pris-
oner. The basis for the district court’s dismissal was that
the plaintiff had failed to exhaust his administrative
remedies, as required by 42 U.S.C. § 1997e, and that he
had failed to state a claim. We noted that
18 No. 09-2590
[t]he difference in grounds is potentially conse-
quential. Dismissal for failure to exhaust is without
prejudice and so does not bar the reinstatement of
the suit unless it is too late to exhaust . . . as other-
wise a prisoner could evade the exhaustion re-
quirement by filing no administrative grievance
or by intentionally filing an untimely one. In
contrast, dismissal of a suit for failure to state a
claim is always with prejudice and so always
precludes reinstatement.
Walker, 288 F.3d at 1009 (internal quotation marks and
citations omitted). Similarly, in Mitchell, the Sixth Circuit
addressed the issue whether a plaintiff’s Rehabilitation
Act claim should be dismissed with prejudice because
he failed to meet with an equal employment opportunity
counselor within 45 days of the discriminatory
event, as required by regulation. The court noted that this
meeting was a condition precedent to bringing suit;
however, it also noted that “there are certain condition
precedents where, although the party may not have
fulfilled the condition prior to filing suit in the district
court, he or she may return to the administrative
process, fulfill the condition, and re-file the civil action.”
Mitchell, 343 F.3d at 820. “Therefore, a dismissal for
failing to meet a condition precedent is a decision on the
merits only if the aggrieved party is permanently fore-
closed from fulfilling the condition.” Id. at 821.5
5
The other cases cited by Ms. Leavell also concern a plaintiff’s
failure to fulfill an administrative condition precedent to filing
(continued...)
No. 09-2590 19
In the context of a due process claim, however, failing
to avail oneself of adequate state court remedies is not
akin to failing to meet a condition precedent; it is a sub-
stantive failure that defeats the cause of action. The
Supreme Court has explained that “[t]he constitutional
violation actionable under § 1983 is not complete when
the deprivation occurs; it is not complete unless and
until the State fails to provide due process.” Zinermon, 494
U.S. at 126. We have explained that this “availability of
recourse to a constitutionally sufficient . . . procedure”
does “not amount to a requirement of exhaustion of
administrative remedies as a predicate to a section 1983
claim.” Dusanek, 677 F.2d at 542-43 (internal citations
omitted). Rather, “a state cannot be held to have
violated due process requirements when it has made
procedural protection available and the plaintiff has
simply refused to avail himself of them. Because the
procedural protections existed, the state cannot be
accused of withholding them in a section 1983 suit.” Id.
In short, “if a procedural due process claim lacks a
colorable objection to the validity of the State’s procedures,
no constitutional violation has been alleged.” Daniels v.
5
(...continued)
suit. See Boos v. Runyon, 201 F.3d 178, 183-84 (2d Cir. 2000)
(failure to wait for final administrative action and failure to
speak to EEO counselor within 45 days); Criales v. Am. Airlines,
Inc., 105 F.3d 93, 95 (2d Cir. 1997) (failure to obtain right-to-sue
letter before filing suit); Wrighten v. Metro. Hosp., Inc., 726
F.2d 1346, 1351 (9th Cir. 1984) (same); Henderson v. E. Freight
Ways, Inc., 460 F.2d 258, 260 (4th Cir. 1972) (same).
20 No. 09-2590
Williams, 474 U.S. 327, 340 (1986) (Stevens, J., concurring)
(footnote omitted).
At issue, therefore, is not a condition precedent, but a
substantive element of the due process claim. The
failure to allege that necessary element warrants
dismissal under Rule 12(b)(6). The general rule is that a
dismissal for failure to state a claim is an adjudication on
the merits. See Fed. R. Civ. P. 41(b) (“Unless the dismissal
order states otherwise, . . . any dismissal not under this
rule—except one for lack of jurisdiction, improper
venue, or failure to join a party under Rule 19—is an
adjudication on the merits.”); see also Walker, 288 F.3d at
1009 (“[D]ismissal of a suit for failure to state a claim is
always with prejudice.”). Ms. Leavell has not suggested
any way that she might amend her pleading to cure the
deficiency. Nor has she explained how the Department,
who has been put to the expense of defending this claim,
would not be prejudiced by allowing her an opportunity
to re-plead her federal claim. Cf. Airborne Beepers & Video,
Inc. v. A T & T Mobility LLC, 499 F.3d 663, 666 (7th Cir.
2007) (observing that Rule 15 provides that pleadings
may be amended with leave of court and that leave
should be freely given when “justice so requires,” but
noting that “[r]easons for finding that leave should not
be granted include undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of al-
lowance of the amendment, futility of amendment”
(internal quotation marks and citations omitted)). Thus,
No. 09-2590 21
we believe that Count VIII of Ms. Leavell’s complaint
should be dismissed with prejudice.6
Conclusion
Because Count VIII of Ms. Leavell’s amended complaint
fails to state a claim on which relief can be granted, we
affirm the district court’s judgment dismissing this
count with prejudice.
A FFIRMED
6
In our discussion, we have proceeded on the assumption
that Count VIII alleges—or attempts to allege—a due process
violation against the named employees of the Department, as
opposed to the Department itself. However, to the extent that
Ms. Leavell is alleging a due process violation against the
Department itself, that claim must fail on two separate grounds:
The Supreme Court has held that state agencies, as
“arms of the state,” Kroll v. Bd. of Trustees of Univ. of Ill.,
934 F.2d 904, 907 (7th Cir. 1991), and state officials in
their official capacities are also immune from suit
under the Eleventh Amendment. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 70-71 (1989). Additionally, the
Court has ruled that states and their departments are
not “persons” within the meaning of § 1983. Id. at 66,
71.
Joseph v. Bd. of Regents of Univ. of Wis. Sys., 432 F.3d 746, 748
(7th Cir. 2005).
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