In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3075, 10-3076, 10-3077,
10-3078, 10-3106 & 10-3140
R OBERT T ENNY, et al.,
Plaintiffs-Appellants,
v.
R OD R. B LAGOJEVICH, 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
M ARCOS G RAY,
Plaintiff-Appellant,
v.
R OGER E. W ALKER, 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.
A RGUED JUNE 9, 2011—D ECIDED A UGUST 25, 2011
2 Nos. 10-3075, 10-3076, 10-3077, 10-3078,
10-3106, 10-3140 & 10-3169
Before M ANION, W OOD , and H AMILTON, Circuit Judges.
M ANION, 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 Correc-
tional 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 proce-
dural due process rights under the Fourteenth Amend-
ment. Because no pre-deprivation process could have
predicted or prevented the alleged deprivation, and
plaintiffs have not alleged the absence of adequate post-
deprivation 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 recom-
mendations, the Department maintained the unlawful
mark-ups. It informed the Auditor General that it “in-
tended 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 con-
stitutional 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 sub-
stantially 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
et al.). In each case, the district court screened and dis-
missed 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 constitu-
tional 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 in-
dependent source such as state law.” Board of Regents
v. Roth, 408 U.S. 564, 577 (1972); Germano, 403 F.3d at 927.
1
Because of the § 1915A dismissal, the defendants in these
cases were never served notice of the complaint nor the
appeal. At our invitation, the Illinois Attorney General submit-
ted a response brief.
Nos. 10-3075, 10-3076, 10-3077,10-3078, 5
10-3106, 10-3140 & 10-3169
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 inter-
ests 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: al-
though the prisons are not required to provide commis-
sary access, where they do provide access, the plaintiffs
claim they have a property interest created by the statutory
cap.2 The Attorney General cites Ashley v. Snyder, 739
2
The opportunity to choose to spend money at the prison
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...)
6 Nos. 10-3075, 10-3076, 10-3077, 10-3078,
10-3106, 10-3140 & 10-3169
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
2
(...continued)
Nevertheless, hypothetically, and for the sake of this argu-
ment, 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.
3
In Sandin, the Supreme Court held that prison regulations
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 posi-
tion on this issue, which has split the circuits. Compare Cosco
(continued...)
Nos. 10-3075, 10-3076, 10-3077,10-3078, 7
10-3106, 10-3140 & 10-3169
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),4 and Easter
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 ex-
plained 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 non-
retired 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
3
(...continued)
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).
4
Parratt was overruled on another point of law by Daniels
v. Williams, 474 U.S. 327 (1986).
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 plain-
tiffs 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-and-
comment 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 com-
missary 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 ap-
proved 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 require-
ments. See Parratt, 451 U.S. at 539. The plaintiffs have
not alleged that post-deprivation remedies are inade-
quate, 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 con-
siders 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 substan-
tive 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 proce-
dures 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 constitu-
tional claims were not addressed. We therefore
R EMAND both cases to the district court with instructions
to dismiss the state law claims without prejudice.
8-25-11