POLLY JACOBS, Claimant, v. THE STATE OF ILLINOIS, RESPONDENT.
Case summary
Claimant alleged she was terminated from employment due to DCFS conduct and sought due process and 42 U.S.C. 1983 relief. The court dismissed the claim because the State is not a 'person' under §1983 and claimant failed to allege a protected property interest.
Statutes cited: 42 U.S.C. 1983
Cases cited: Will v. Michigan Department of State Police (1989), 491 U.S. 58; Bayview-Lofberg's Inc. v. City of Milwaukee (7th Cir. 1990), 905 F.2d 142; Scott v. Village of Kewaskum (7th Cir. 1986), 786 F.2d 338; Colon v. Schneider (7th Cir. 1990), 899 F.2d 660
AI-generated summary from the opinion text — may contain errors. The opinion text and PDF above are the official record.
Headnotes
- EMPLOYMENT-what necessary to state section 1983 claim. A claim brought pursuant to 42 U.S.C. 1983 must have been under color of State law, and have deprived a person of rights, privileges and immunities granted by the Constitution or laws of the United States, and the Claimant must show that the claimed interest is a property or liberty interest, that the alleged loss amounted to a deprivation, and that the deprivation was without due process of law.
- SAME-constitutional law-creation of protected property interest. In order for a State to create a constitutionally protected property interest, the language conferring the interest must be of unmistakably mandatory character, requiring that certain procedures shall be employed and that the challenged action will not occur absent specific substantive predicates, and the test for whether a statutory or regulatory procedure creates a protectable due process interest hinges on the actual language used by the legislature.
- SAME-alleged employment termination by third party due to State’s conduct-complaint failed to state section 1983 claim-claim dismissed. Where the Claimant brought a section 1983 claim alleging that she was terminated from her employment by a third party as a result of conduct by Department of Children and Family Services employees, because the State had a duty to, but did not, provide her with due process by giving her notice that she was an indicated perpetrator of child abuse and neglect and by affording her an opportunity to appeal that determination, her claim was dismissed for failure to allege facts showing that she was deprived of a constitutionally or statutorily protected property interest.
ORDER
RAUCCI, J. This cause coming on to be heard on the Respondent’s motion for summary judgment and the Respondent’s motion to dismiss, the Court being fully advised in the premises, the Court finds: [*387] 1. Because of our disposition of this case upon the allegations of the motion to dismiss, we decline to rule on the motion for summary judgment. 2. Claimant alleges that she was terminated from her employment by a third party as a result of conduct by employees of the Department of Children and Family Services (DCFS). She alleges that Respondent has a duty to provide her with due process by affording notice that she was an indicated perpetrator of child abuse or neglect and to afford her an opportunity to appeal that decision; that Respondent failed to do so and, as a result, she was terminated from her employment. Claimant’s amended complaint seeks relief in this Court for deprivation of due process and “privileges and immunities” rights afforded to her under the United States Constitution and pursuant to 42 U.S.C. 1983. 3. Respondent is not a “person” within the meaning of 42 U.S.C. section 1983. Will v. Michigan Department of State Police (1989), 491 U.S. 58. 4. A section 1983 claim must 1) have been under color of State law, and 2) have deprived a person of rights, privileges or immunities guaranteed by the Constitution or laws of the United States. (Bayview-Lofberg’s Inc. v.
City of Milwaukee (7th Cir. 1990), 905 F.2d 142, 144.)
This claim fails the second test. Claimant must show that 1) the claimed interest is a property or liberty interest and that 2) the alleged loss amounted to a deprivation; and 3) the deprivation was without due process of law.
See Bayiew-Lofberg’s Inc., supra. 5. Scott v. Village of Kewaskum (7th Cir. 1986), 786 F.2d 338, 339-40, controls this case. To the extent a request appeals to discretion rather than rules, there is no property interest. In order for a State to create a constitutionally [*388] protected property interest, the language conferring the interest must be of “unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed” and that the challenged action will not occur absent specific substantive predicates. (Colon v. Schneider (7th Cir. 1990), 899 F.2d 660, 667.) An interest is created only where the law or regulation in question contains specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow. The test for whether a statutory or regulatory procedure creates a protectable due process interest hinges on the actual language used by the legislature. (Colon, supra.) Claimant has failed to allege any facts tending to show that she is entitled to relief.
It is therefore ordered that the Respondent’s motion to dismiss is granted, and this cause is dismissed and forever barred.