John Simpson v. Brown County, Indiana, et al
Filed opinion of the court by Judge Hamilton. We REVERSE the judgment of dismissal and REMAND for further proceedings consistent with this opinion. Ilana Diamond Rovner, Circuit Judge; Ann Claire Williams, Circuit Judge and David F. Hamilton, Circuit Judge. [6850197-1]  [16-2234]
United States Court of Appeals
For the Seventh Circuit
BROWN COUNTY, et al.,
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-01660-TWP-TAB — Tanya Walton Pratt, Judge.
ARGUED FEBRUARY 14, 2017 — DECIDED JUNE 26, 2017
Before ROVNER, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal presents a classic test
of procedural due process. As the case comes to us, we must
assume that a county board revoked a man’s professional license without giving him prior notice or an opportunity to be
The case arises from Brown County, Indiana, where the
rolling hills and brilliant fall foliage draw over a million visitors each year, and where the natural beauty has been the subject of countless paintings, including those of T.C. Steele, a
noted American Impressionist. Rural Brown County is home
to just about 15,000 residents, or fewer than fifty people per
square mile. With such a sparse population, most families and
businesses depend on septic systems to dispose of
wastewater. Plaintiff John Simpson installed and repaired
septic systems in the county until June 14, 2013, when his license to do so was revoked by the Brown County Board of
Simpson then brought this action under 42 U.S.C. § 1983
against Brown County, the Brown County Health Department, and the Brown County Board of Health (collectively,
“the County”). Simpson alleged he was deprived of property
without due process of law and sought compensatory damages for his loss of income. After prolonged procedural fencing over the pleadings, the district court dismissed Simpson’s
operative complaint under Federal Rule of Civil Procedure
12(b)(6). The district court’s theory was that post-deprivation
remedies under state law, such as common-law judicial review, satisfied the Fourteenth Amendment’s due process requirement and that Simpson had not availed himself of such
remedies. Simpson appeals that decision. Taking Simpson’s
allegations as true, we hold (1) that Simpson has plausibly alleged that he was denied the pre-deprivation notice and hearing he was due; and (2) that even if the evidence ultimately
shows the County had some basis for summary action, the
County has not shown there is an adequate post-deprivation
remedy under state law, whether in the form of common-law
judicial review or anything other. We reverse and remand for
I. Factual and Procedural Background
Plaintiff John Simpson owns Monroe, LLC, a septic installation company based in Brown County. Simpson previously
held a license to install and repair septic systems. He was told
his license was revoked in a letter sent by County Health Officer Paul Page on June 14, 2013.
Two weeks earlier, on May 31, 2013, Page had sent Simpson a corrective action letter demanding that he immediately
repair the septic system on Simpson’s mother’s property. In
that letter, Page threatened that if Simpson did not make the
necessary repairs to the septic system, Page would request legal action through the county prosecutor’s office and “may
request an executive meeting of the Health Board to recommend that [Simpson’s] license to install septics be rescinded.”
Without apparent further process or an opportunity for Simpson to be heard, Page followed through on that threat with his
June 14 letter: “Based on the findings our Health Board members approved the removal of your name from our list of approved septic contractors.” The letter did not inform Simpson
of any law or regulation he had violated, and it did not identify any opportunities for administrative or judicial review. 1
These letters, surprisingly, were neither appended to Simpson’s complaint nor included in the briefing before the district court. At oral argument, we directed the parties to supplement the record on appeal with
copies of the letters. The parties jointly submitted the letters, and we treat
their submission as a correction by stipulation or pursuant to our inherent
authority under Federal Rule of Appellate Procedure 10(e)(2)(A) or (C).
See United States v. Miller, 832 F.3d 703, 704 (7th Cir. 2016) (“Although litigants generally are not allowed to bypass the district court and present
At the time, septic installation and repair licenses were
governed by a county ordinance. 2 The ordinance provided in
section 501: “Any person engaged in … the installation or repair of sewage disposal systems within Brown County shall
submit an application to the Health Officer to have his name
placed on the County Register.” The procedures for removal
of a septic installer from the register were described in section
503. That section broadly delegated the power of license revocation to the Health Officer, who could remove any person
or firm that had demonstrated “inability or unwillingness to
comply with these rules and requirements.” The affected
party could re-apply for a license after one year, and if the
Health Officer still deemed him unable or unwilling to “comply,” then the installer might be removed from the register
Simpson brought this suit in October 2013 alleging that his
removal from the list of licensed septic installers deprived
him of a protected property interest without due process of
law. After two rounds of amendments to the complaint, the
evidence for the first time to the court of appeals we’ve allowed exceptions.”). It is particularly appropriate for us to consider the contents of the
letters since they are excerpted in Simpson’s complaint and are central to
his claim. See Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013); Citadel
Group Ltd. v. Washington Regional Medical Center, 692 F.3d 580, 591 (7th Cir.
2 While this case was pending in federal court, a related case proceeded in
Indiana state court. In 2015, the state court held that the septic ordinance
was invalid because it was not properly published. Brown County Board of
Health v. Simpson, No. 07C01-1312-OV-000873, slip. op. at 5 (Brown Cty.
Cir. Ct. Apr. 13, 2015). It appears that the County is currently in the process
of enacting a new septic ordinance that complies with the publication requirements of Indiana Code § 36-2-4-8.
district court granted the County’s Rule 12(b)(6) motion to dismiss and dismissed the case with prejudice in 2014. Relying
on the balancing test from Mathews v. Eldridge, 424 U.S. 319
(1976), the district court held that Simpson was not entitled to
pre-deprivation remedies because the County’s interest in
protecting public health outweighed “the potential value of
affording [Simpson] additional procedures prior to revocation.” Simpson v. Brown County, No. 1:13-cv-01660-TWP-TAB,
2014 WL 4840768, at *3 (S.D. Ind. Sept. 29, 2014). The court had
erroneously assumed that Simpson had an adequate postdeprivation remedy under Indiana Code § 13-15-7-3, which
authorizes the state’s Office of Environmental Adjudication to
review certain environmental permit revocations. As the district court acknowledged a year later in granting in part Simpson’s subsequent Rule 59(e) motion, § 13-15-7-3 has no bearing on a county-level revocation of a septic installer’s license.
See Simpson v. Brown County, No. 1:13-cv-01660-TWP-TAB,
2015 WL 5775513, at *3, 7, 9 (S.D. Ind. Sept. 30, 2015).
The district court corrected its mistake but then held for
the first time that Simpson had alleged a “random and unauthorized” deprivation of his license, such that the County had
no duty to provide pre-deprivation process. Id. at *5. The
court granted Simpson leave to amend his complaint again,
but only if he could “plead sufficient facts to [show] that he
actually pursued all available post-deprivation remedies or
sufficiently explain the specific reasons that the available
post-deprivation remedies were inadequate.” Id. at *9.
In his third amended complaint, Simpson cited the septic
ordinance, though he had no obligation to do so. See Johnson
v. City of Shelby, 574 U.S. —, 135 S. Ct. 346, 346 (2014) (“Federal
pleading rules call for ‘a short and plain statement of the claim
showing that the pleader is entitled to relief’; they do not
countenance dismissal of a complaint for imperfect statement
of the legal theory supporting the claim asserted.”) (citation
omitted); Avila v. CitiMortgage, Inc., 801 F.3d 777, 783 (7th Cir.
2015) (“plaintiffs are not required to plead specific legal theories”), citing King v. Kramer, 763 F.3d 635, 642 (7th Cir. 2014).
Simpson argued that the revocation of his license occurred
pursuant to section 503 of the county ordinance and that, far
from “random and unauthorized” conduct, the revocation
was a “predictable abuse of broadly delegated uncircumscribed power.” Simpson argued he was thus entitled to predeprivation procedures and received none. Alternatively,
Simpson argued that state law afforded him no adequate
The district court rejected Simpson’s arguments, chiding
him for “attempting to re-litigate the previously decided issue
of pre-deprivation due process” and adding that he failed to
plead that he had taken advantage of the one post-deprivation
remedy available to him under state law in the form of common-law judicial review. Simpson v. Brown County, No. 1:13cv-01660-TWP-TAB, 2016 WL 1700370, at *4–5 (S.D. Ind. Apr.
27, 2016). The court dismissed the action with prejudice.
We review de novo the district court’s dismissal for failure
to state a claim. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th
Cir. 2008). In doing so, we construe the operative third
amended complaint in the light most favorable to Simpson,
accepting as true all well-pled facts and drawing all reasonable inferences in his favor. Id.
Before addressing the substance of the procedural due
process issues in this appeal, we pause to address the pleading posture. Though the actions giving rise to Simpson’s claim
were undertaken by County employees—principally Paul
Page and the members of the Board of Health—the defendants in this suit are all County entities (the County itself and
its Board of Health and Health Department). Such municipal
governments cannot be held liable for damages under 42
U.S.C. § 1983 on a theory of respondeat superior for constitutional violations committed by their employees. They can,
however, be held liable for unconstitutional municipal policies or customs. Monell v. Dep’t of Social Services, 436 U.S. 658,
690–91 (1978); Glisson v. Indiana Dep’t of Corrections, 849 F.3d
372, 378–79 (7th Cir. 2017) (en banc) (explaining theories of
Monell liability). Monell issues have not been part of this appeal thus far; we assume that Simpson is alleging the septic
ordinance was unconstitutional, at least to the extent it failed
to provide for due process of law, and that he was injured by
officials carrying out that ordinance so as to trigger Monell liability.
A. Notice and Opportunity to be Heard Before the Deprivation
1. Due Process Basics
Procedural due process in constitutional law generally involves a familiar line of inquiry: (1) is there a property or liberty interest protected by due process; and (2) if so, what process is due, and when must that process be made available?
Simpson was deprived of a protected property interest.
Government-issued licenses to perform certain types of work
that allow the license holders to earn their livelihoods are a
form of government-created property—an entitlement—and
have long been considered property protected by the Fifth
and Fourteenth Amendments. See Cleveland Board of Education
v. Loudermill, 470 U.S. 532, 543 (1985); Board of Regents v. Roth,
408 U.S. 564, 577–78 (1972); see also Barry v. Barchi, 443 U.S.
55, 64 (1979) (“[I]t is clear that [plaintiff] had a property interest in his license [as a harness-racing trainer] sufficient to invoke the protection of the Due Process Clause.”). Our task in
this appeal is thus to determine what process was due Simpson, and when.
The general test for determining what process is due and
when was set out in Mathews v. Eldridge, 424 U.S. 319 (1976).
Mathews identified three factors to be balanced: first, the private interest at stake; second, the risk of erroneous deprivation and the value, if any, of additional procedural safeguards;
and third, the government’s countervailing interests. Id. at
335. The basic rights guaranteed by constitutional due process
are notice of the intended adverse government action and an
opportunity to be heard in response, although more elaborate
procedural rights—such as the rights to present evidence, to
confront adverse witnesses, and to be represented by counsel—may apply in cases in which vital private interests are at
risk. See generally Goldberg v. Kelly, 397 U.S. 254 (1970). Governments may, of course, offer procedural protections that exceed the constitutional minimum through statute or administrative rule. Many state and local licensing schemes provide
procedural protections that are far more elaborate than due
The Mathews balancing test generally requires some process before one is deprived of liberty or property. However, the
Supreme Court has recognized that due process, “unlike
some legal rules, is not a technical conception with a fixed
content unrelated to time, place and circumstances.” Mathews,
424 U.S. at 334 (citation omitted). The spectrum of due process
requirements includes, at one end, a full trial-type evidentiary
hearing before a deprivation occurs, as in Goldberg v. Kelly (termination of welfare benefits), and at the other end, procedures conducted after summary action has been taken in response to an emergency, as in Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981) (emergency order
to stop mine operations followed immediately by notice and
2. Random and Unauthorized Deprivations
The Supreme Court has recognized another special category of deprivations of property or liberty for which pre-deprivation procedures may not be required. In some situations
when a government official tortiously deprives a person of
property or liberty randomly and without authorization, it is
impractical to insist on a pre-deprivation hearing. See Parratt
v. Taylor, 451 U.S. 527 (1981) (prisoner was deprived of property due to negligence of prison officials, in violation of prison
regulations), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Hudson v. Palmer, 468 U.S. 517 (1984)
(prisoner’s property, including legal papers, was intentionally
destroyed by guard in unauthorized “shakedown” in his cell).
The Parratt-Hudson line of cases has a pragmatic foundation.
When a person is deprived of property as a result of an unexpected or rogue act, it would be unreasonable to require the
government to conduct a pre-deprivation hearing.
Situations involving such random and unauthorized conduct are relatively rare. We do not apply Parratt and Hudson
unless the government “could not predict the conduct caus-
ing the deprivation, could not provide a pre-deprivation hearing as a practical matter, and did not enable the deprivation
through established state procedures and a broad delegation
of power.” Armstrong v. Daily, 786 F.3d 529, 544 (7th Cir. 2015).
Compare Veterans Legal Defense Fund v. Schwartz, 330 F.3d 937,
940 (7th Cir. 2003) (“Parratt essentially stands for the rule that
when predeprivation hearings are impractical because the actions of the state officers were ‘random and unauthorized’ the
state is only responsible for providing postdeprivation remedies.”), with Logan v. Zimmerman Brush Co., 455 U.S. 422, 436
(1982) (Parratt does not control where “it is the state system
itself that destroys a complainant’s property interest” without
according him “proper procedural safeguards”), and Zinermon v. Burch, 494 U.S. 113, 136 (1990) (Parratt and Hudson do
not control where a plaintiff “seeks to hold state officials accountable for their abuse of their broadly delegated, uncircumscribed power to effect the deprivation at issue”).
We have, of course, encountered cases in which an alleged
deprivation occurred through truly random and unauthorized conduct. E.g., Leavell v. Illinois Dep’t of Natural Resources,
600 F.3d 798, 805–06 (7th Cir. 2010) (plaintiff alleged that state
officials violated unambiguous law requiring notice of hearing concerning closure of oil well); Schwartz, 330 F.3d at 941
(defendants acted in a manner “patently inconsistent with Illinois law” by favoring non-veterans over veterans for jobs,
even though state law required an absolute veteran’s preference in hiring).
However, any license revocation that is “random and unauthorized” will be an aberration. The existence of a license
or permit implies the existence of a legal framework with revocation guidelines, even if those guidelines are unduly broad.
To trigger the Parratt-Hudson exception in the licensing context, a rogue government official would have to violate the licensing scheme in an unpredictable way. Thus, for instance,
in Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990) (en banc),
we found the conduct of state licensing officials random and
unauthorized where they (1) allegedly conspired to freeze the
plaintiff adoption agency’s license renewal while expediting
its competitor’s application, and (2) falsely told third parties
(including a state judge) that plaintiff had no active license.
The alleged conspiracy, we explained, was “nothing more
than a random decision of state employees to disregard state
policy and procedure which resulted in injuries to [plaintiff].”
Id. at 1399. While the licensing officials “did exercise a certain
amount of discretion and authority over the failure or success
of renewal applications, that discretion was not ‘uncircumscribed’ or otherwise unregulated.” The deprivation the
plaintiff complained of was “not one that the state could have
predicted or, more importantly, prevented through the implementation of additional predeprivation procedural safeguards.” Id. at 1401.
The random, rogue behavior by the licensing officials in
Easter House distinguished that case from Zinermon, where the
conduct of the state actors in committing the plaintiff for inpatient mental health treatment was “not only ‘authorized’,
but also, under the circumstances of that case, highly ‘predictable.’” Id. at 1402; see also Stauch v. City of Columbia Heights,
212 F.3d 425, 432–33 (8th Cir. 2000) (“The existence of state
post-deprivation remedies has been deemed to satisfy procedural due process in situations where the alleged constitutional deprivation was caused by random and unauthorized
action. … The actions taken by the City were neither random
nor unauthorized and it was certainly feasible for the City to
have provided [plaintiffs] with an opportunity to appeal the
[adverse] determination … .”).
Simpson’s third amended complaint, construed in the
light most favorable to him, does not allege “random and unauthorized” actions by County officials. Rather, it alleges official conduct sanctioned by the County. The County had a
septic ordinance that plainly described the process for the
placement of septic installers on a register and (not so plainly)
described the process for their removal. When County Health
Officer Page revoked Simpson’s license, he acted pursuant to
his broadly delegated powers derived from the ordinance. By
its terms, the ordinance gave Page as agent for the Board of
Health broad discretion to remove any person who had
demonstrated “inability or unwillingness to comply” with the
ordinance. Page was not acting unpredictably or breaking the
rules: he did exactly what the ordinance told him to do. The
possibility of license revocation without due process was not
unforeseeable. It was authorized in the ordinance itself.
3. Applying Mathews v. Eldridge
Without the shield of a “random and unauthorized” defense, the County’s actions must be evaluated pursuant to the
standard Mathews v. Eldridge factors: (1) private interest, (2)
risk of erroneous deprivation, and (3) state interest.
Private Interest. First, the County (like the district court)
understates the strong private interest at stake. We must assume that Simpson’s ability to earn a livelihood depends on
his septic license and that the County’s actions deprived him
of his livelihood. The weight of the private interest in continued employment “cannot be gainsaid.” Loudermill, 470 U.S. at
543. The Supreme Court has “frequently recognized the severity of depriving a person of the means of livelihood.” Id.
In defense of its actions, the County asserts that Simpson
could have simply found himself another line of work or pursued septic work somewhere else. If that argument were sufficient, few employees or license-holders would ever have a
viable due process claim, for any employer or license-issuer
could make that argument. The mere possibility of some other
work in some other place must seem cold comfort to Simpson
or to others who lose their jobs or professional licenses.
“While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the
questionable circumstances under which he left his previous
job.” Id. This is especially true where a license revocation
forces a person not only to find a new job but also to transition
to a new field.
Risk of Error. Next, we consider the risk that, under the established procedures (such as they are), a deprivation might
occur erroneously. Here, the septic ordinance vests broad discretion in the County Health Officer to determine when a septic installer demonstrates “inability or unwillingness to comply” with vague “rules and requirements.” It does not specify
the process by which the Health Officer may remove the installer from the register. Under this ordinance, there is a high
risk that someone like Simpson could have his license revoked
without so much as a warning, to say nothing of a fair opportunity to be heard. Indeed, taking Simpson’s allegations as
true (as we must in reviewing the district court’s dismissal of
his third amended complaint), that is essentially what happened here. Simpson received a vague notice of a problem on
his mother’s property followed by a notice that his license had
been terminated. There is no indication on the face of the complaint or in the letters from Paul Page that Simpson received
a hearing or was even advised of an opportunity to tell his
side of the story.
We see no reason to believe that the cost of basic procedures (e.g., meaningful notice and an informal hearing)
would be unduly burdensome in comparison with the protections those additional procedures would provide. See Mackey
v. Montrym, 443 U.S. 1, 21 (1979) (“When a deprivation is irreversible—as is the case with a license suspension that can at
best be shortened but cannot be undone—the requirement of
some kind of hearing before a final deprivation takes effect is
all the more important.”).
Government Interest. Finally, the County frames its interest
in public health and safety as paramount. The County is quite
right that public health is “[o]ne of the oldest examples” of a
government interest that can justify summary deprivation of
property. Hodel, 452 U.S. at 300 (alteration in original) (citation
omitted) (allowing emergency orders to stop mine operations
to avoid imminent disasters). But to compare the ambiguous
and uncertain septic situation on Simpson’s mother’s property with the collapsing mines in Hodel is at best premature.
Brown County has an interest in preventing unqualified individuals from repairing and installing septic systems. That interest is rooted in its concern for public health and safety. Improperly treated sewage, including failed septic systems, is a
leading cause of water pollution in Indiana, and it poses a significant risk to public health and the environment. See Conservation Law Center & INTERA, Inc., Water and Quality of Life
in Indiana 34–35 (2017). But nothing in Simpson’s third
amended complaint or in the limited record here suggests that
septic problems associated with Simpson were both so serious
and so urgent as to justify summary action by the County,
without an opportunity for Simpson to be heard.
On review of a Rule 12(b)(6) dismissal, we must take the
truth of the allegations in Simpson’s complaint at face value.
See Tamayo, 526 F.3d at 1081. As alleged, there were no random acts by county officials and no public health emergency.
There were only County officials acting pursuant to broadly
delegated power. Brown County cannot give its Health Officer unfettered discretion to decide when, how, and why he
revokes licenses, and then claim that he was acting so unpredictably that it would be impossible to provide pre-revocation
notice. Cf. Zinermon, 494 U.S. at 135 (“It may be permissible
constitutionally for a State to have a statutory scheme …
which gives state officials broad power and little guidance … .
But when those officials fail to provide constitutionally required procedural safeguards to a person whom they deprive
of liberty, the state officials cannot then escape liability by invoking Parratt and Hudson.”). Under the Mathews v. Eldridge
balancing test, Simpson has plausibly alleged that he was denied the pre-deprivation process he was due before his license
could be revoked.3
B. Post-Deprivation Remedies
Perhaps, on remand, facts will emerge that weaken Simpson’s claim for pre-deprivation notice and an opportunity to
3 The County implies that Simpson did in fact receive notice and a hearing
before his license was revoked. Both in its brief and at oral argument, the
County intimated that Simpson received more pre-deprivation process
than he has alleged. That issue requires further fact-finding, not a decision
on the pleadings.
be heard. To avoid any confusion as this litigation proceeds,
we take this opportunity to clarify that common-law judicial
review, as described in the cases on which the County relies,
could not adequately redress the harm Simpson alleges and
therefore would not be a sufficient corrective for a due process
violation in the form of a summary license revocation.
In those cases where a plaintiff is not entitled to pre-deprivation process (e.g., where state action is random and unauthorized or where a Hodel-type emergency warrants summary
action), the Constitution still requires an adequate post-deprivation remedy. Such a remedy need not be identical to the
remedy otherwise available under § 1983. In Parratt, for instance, the state’s tort claims procedure authorized an action
against the state alone, not its individual employees, and did
not authorize punitive damages or guarantee the right to a
trial by jury. 451 U.S. at 543–44. Nevertheless, the “remedies
provided could have fully compensated the [plaintiff] for the
property loss he suffered,” and those remedies were therefore
“sufficient to satisfy the requirements of due process.” Id. at
544; see also Gable v. City of Chicago, 296 F.3d 531, 540 (7th Cir.
2002) (state tort remedies were adequate even though they
did not provide for attorney fees); Archuleta v. Colorado Dep’t
of Institutions, 936 F.2d 483, 491 (10th Cir. 1991) (discharged
employee who was reinstated with back pay and benefits
could not bring due process claim for punitive damages and
damages for emotional distress; the “fact that plaintiff could
obtain more relief under § 1983 does not mean that the remedy for the temporary deprivation of her property was constitutionally inadequate”).
Though a state remedy need not match in every respect
the relief otherwise available under § 1983, such a remedy
must still offer meaningful redress for the particular injury
suffered by the plaintiff. See Easter House, 910 F.2d at 1406
(state remedy cannot be “meaningless or nonexistent”).
Meaningful post-deprivation remedies are “characterized by
promptness and by the ability to restore the claimant to possession.” Baird v. Board of Education, 389 F.3d 685, 692 (7th Cir.
2004) (breach-of-contract action under state law was inadequate post-termination remedy for former school superintendent who possessed present entitlement to job and who had
been afforded only limited pre-termination hearing); see also
Joshua v. Newell, 871 F.2d 884, 887 (9th Cir. 1989) (“To satisfy
due process, the state remedy need not provide the [plaintiffs]
with all the relief available under section 1983, so long as it
would fully compensate their property loss.”); Wilson v. Beebe,
770 F.2d 578, 584 (6th Cir. 1985) (“Applying the substantive
law of Michigan to [plaintiff’s] pendent claim for negligence,
the district court awarded [plaintiff] substantial damages. …
Though the state remedy did not permit [plaintiff] to recover
attorney fees, which would have been available if § 1983 had
been the basis of his recovery of damages, this did not render
that remedy inadequate.”). 4
In Easter House, we remarked that “we should not reject the application
of Parratt unless the remedy which an injured party may pursue in state
court can readily be characterized as inadequate to the point that it is
meaningless or nonexistent and, thus, in no way can be said to provide the
due process relief guaranteed by the fourteenth amendment.” 910 F.2d at
1406. But in that case, we identified no fewer than five “potential causes
of action, among others,” that could have afforded the plaintiff meaningful redress. Id. at 1405. If the plaintiff had prevailed on these theories in
state court, it could have recovered damages as well as injunctive relief.
Our comment about “meaningless or nonexistent” remedies did not suggest that any remedy, however limited or removed from the actual harm
In many cases that discuss the adequacy of post-deprivation remedies, the underlying conduct of government actors
was random and unauthorized within the meaning of Parratt
and Hudson. This should come as no surprise: if a deprivation
does not fall within the narrow Parratt-Hudson exception,
some pre-deprivation process is generally required, as explained above.
In Gable v. City of Chicago, for instance, plaintiffs’ complaint
focused on two categories of random and unauthorized acts:
(1) false denials by city employees that plaintiffs’ impounded
vehicles were stored at a particular lot; and (2) acts of theft
and vandalism by city employees. 296 F.3d at 540. Finding
that it would “not have been practicable for the City ‘to anticipate and control in advance’ such random acts,” id., we
turned to the question of post-deprivation remedies. Under
state law, plaintiffs could have brought a bailment action to
recover compensation for damage to their vehicles as well as
compensation for the time their vehicles were wrongfully impounded. Thus, a bailment action would have afforded plaintiffs a “complete remedy.” Id. Compare, e.g., Tucker v. Williams, 682 F.3d 654, 661 (7th Cir. 2012) (plaintiff was not entitled to pre-deprivation process because initial seizure of backhoe satisfied Fourth Amendment; post-deprivation remedy
was adequate because plaintiff could have brought suit for
conversion or replevin), and Stork v. McKinley, 444 F. App’x
920, 922 (7th Cir. 2011) (plaintiff was not entitled to pre-deprivation process because alleged deprivation of plaintiff’s cash
was random and unauthorized; post-deprivation remedy was
adequate because plaintiff could have brought claim under
about which the plaintiff complains, will be deemed adequate so as to bar
a constitutional due process claim.
Indiana Tort Claims Act), with Belcher v. Norton, 497 F.3d 742,
751, 753 (7th Cir. 2007) (plaintiff was not entitled to pre-deprivation process because deputy marshal’s actions were random and unauthorized; post-deprivation remedy was inadequate because deputy had acted within the scope of his employment and was therefore immune from tort liability).
Our decision in Pro’s Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865 (7th Cir. 2009), helps to show the
types of post-deprivation remedies that are and are not adequate when the plaintiff alleges an economic injury, as plaintiff Simpson does here. In Pro’s Sports Bar, a city acted without
a hearing to modify a bar’s liquor license and to restrict its
hours. The city argued that because the bar could have pursued a mandamus action in state court for reinstatement of its
old license, it had no valid federal due process claim. We rejected that argument, explaining that unless a state remedy
existed that would compensate the bar for its damages, it had
no adequate remedy under state law. See id. at 872 (“Pro’s is
asking for more than an injunction compelling the City to issue an unrestricted liquor license. The owners of Pro’s seek
damages to compensate them for the period of time in which
the restricted hours were enforced against them.”) (citation
The reasoning underlying Pro’s Sports Bar—that a remedy
cannot be deemed “adequate” if the plaintiff’s injury is financial and the remedy offers no compensation at all—comports
with the broader principle that due process “is not a technical
conception with a fixed content” but is instead “flexible and
calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334 (citations omitted).
This principle runs through procedural due process cases decided in this circuit and elsewhere. Compare Parrett v. City of
Connersville, 737 F.2d 690, 697 (7th Cir. 1984) (former police official had inadequate post-deprivation remedy under union
grievance procedure; since arbitrator was not empowered to
award full common-law damages, due process required that
arbitrator be “able to prevent the harm to the grievant before
it occurs, which requires faster action than was taken … in this
case”), with Copsey v. Swearingen, 36 F.3d 1336, 1343 (5th Cir.
1994) (concessionaire had adequate post-deprivation remedy
where stipulation restored concession stand and provided for
compensation for intervening period as well as attorney fees),
and Greco v. Guss, 775 F.2d 161, 172 (7th Cir. 1985) (liquor licensee had adequate post-deprivation remedy where it could
have obtained review by state liquor control commission and
could have continued serving liquor during pendency of appeal; “since the state procedure would have allowed [licensee]
to keep its license until the appeal was decided, [licensee]
would have suffered no monetary damages”).
The requirement that an adequate post-deprivation remedy for an economic injury must provide some form of compensation parallels the requirement of just compensation under the Takings Clause of the Fifth Amendment. “When the
government physically takes possession of an interest in
property for some public purpose, it has a categorical duty to
compensate the former owner … . Thus, compensation is
mandated when [property] is taken and the government occupies the property for its own purposes, even though that
use is temporary.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 322 (2002) (citations
omitted); see also First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U.S. 304, 321 (1987)
(“[W]here the government’s activities have already worked a
taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for
the period during which the taking was effective.”).
In the takings context, as in some due process contexts,
where the state provides adequate procedures to seek just
compensation, a plaintiff must avail himself of those procedures. See Black Earth Meat Market, LLC v. Village of Black Earth,
834 F.3d 841, 847 (7th Cir. 2016). But where the state fails to
provide such procedures or where the plaintiff is denied just
compensation, the plaintiff is then entitled to bring an action
under the Takings Clause. See Williamson County Regional
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172,
195 (1985) (reasoning by analogy from Parratt and Hudson that
“the State’s action is not ‘complete’ in the sense of causing a
constitutional injury ‘unless or until the State fails to provide
an adequate postdeprivation remedy for the property loss’”)
(citation omitted); Harbours Pointe of Nashotah, LLC v. Village of
Nashotah, 278 F.3d 701, 704 (7th Cir. 2002) (“If a state provides
adequate procedures for seeking just compensation, a property owner cannot state a claim under federal law until he has
used those procedures and been denied compensation.”).
As explained above in Part II-A, nothing on the face of
Simpson’s complaint indicates that the County had a sufficiently urgent interest to justify summary revocation of his license. But even if the County could prove that it had such an
interest (or even if the County had afforded Simpson enough
preliminary process to get over the pre-deprivation hurdle), it
has not shown that any existing state remedy could have
made Simpson whole in the event that he ultimately proved
the license revocation was wrongful.
Like the plaintiff in Pro’s Sports Bar, Simpson seeks damages to compensate him for income he allegedly lost when his
license was terminated. The County proposes a petition for
common-law judicial review, but we are aware of no Indiana
case (and the County has cited none) where a litigant obtained
damages through such an action. The proposed remedy, in
other words, cannot address the harm Simpson claims that he
suffered, and it is inadequate on the facts of this case as alleged. Reinstatement of a septic license, like reinstatement of
a liquor license, does not address the financial losses resulting
from an inability to operate one’s business for some length of
We are aware of no alternative state remedy that might redress Simpson’s injury. The parties agree that he cannot bring
a claim under Indiana’s Administrative Orders and Procedures Act because the revocation was the act of a county
agency, not a state agency. Simpson also cannot bring a tort
claim on the basis of a license revocation. See Ind. Code § 3413-3-3(11) (providing that a governmental entity or employee
is not liable for a loss resulting from the “issuance, denial, suspension, or revocation of … any permit, license, certificate,
approval, order, or similar authorization, where the authority
is discretionary under the law”).
Taking Simpson’s allegations as true, he has stated a claim
for a violation of procedural due process. His septic license
was revoked pursuant to a broad delegation that gave county
officers the power to act without affording Simpson notice
and an opportunity to be heard before the revocation. Moreover, the County has identified no state law remedy (and we
are aware of none) that could vindicate Simpson’s rights.
While discovery may cast new light on the situation, Simpson
is entitled to proceed with his § 1983 claim for deprivation of
property without due process of law. We REVERSE the judgment of dismissal and REMAND for further proceedings consistent with this opinion.
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