Luellen, John v. City of East Chicago ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3188
JOHN LUELLEN,
Plaintiff-Appellant,
v.
CITY OF EAST CHICAGO, ROBERT A. PASTRICK, in
his official capacity as Mayor of the City of East
Chicago, FRANK ALCALA, individually and in his
official capacity as East Chicago Police Chief, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 00 C 40—Allen Sharp, Judge.
____________
ARGUED APRIL 15, 2003—DECIDED NOVEMBER 18, 2003
____________
Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
RIPPLE, Circuit Judge. John Luellen brought this action
pursuant to 42 U.S.C. § 1983 and Indiana state law for
alleged constitutional violations and other torts as a result
of the search of his vehicle and of being placed on adminis-
trative leave without a hearing. The defendants moved for
summary judgment on all of Mr. Luellen’s claims, and the
district court granted the defendants’ motion. Mr. Luellen
appealed. We now affirm the judgment of the district court.
2 No. 02-3188
I
BACKGROUND
A. Facts
1. Events of April 18, 1999
John Luellen was Chief Inspector for the East Chicago Fire
Department (“ECFD”) in April 1999; Mr. Luellen also was
a supporter of Stephen Stiglich, a mayoral candidate who
was challenging incumbent Robert Pastrick in the May 1999
East Chicago Democratic primary.
On April 18, 1999, Mr. Luellen picked up his girlfriend,
Yvette Millender, who was attending a house party for local
political candidates at the home of Lilly Branford-Brown.
When Mr. Luellen arrived, there were only about five
people left at the party. He stayed there for about fifteen
minutes.
That evening, a confidential informant (“CI”) called the
East Chicago Police Department (“ECPD”) and informed
Lieutenant Ricardo Chavarria that Mr. Luellen “was at a
house party and he was getting people’s absentee ballots.”
Chavarria Dep. (8/14/01) at 22. The CI named and de-
scribed Mr. Luellen, his city-owned vehicle and the bag in
which the ballots were placed. See id. at 38 & Ex.1. Lt.
Chavarria had known the CI for several years and consid-
ered the CI to be reliable.
Lt. Chavarria contacted ECPD Chief, Frank Alcala, at
home and related the information received from the infor-
mant. Chief Alcala referred Lt. Chavarria to Thomas Ryan,
the ECPD’s legal counsel who could better advise Lt.
Chavarria concerning the legality of Mr. Luellen’s actions.
In a series of conversations, Ryan told Lt. Chavarria that he
believed that the police had enough information to search
Mr. Luellen’s vehicle based on the mobile conveyance ex-
ception to the warrant requirement of the Fourth Amend-
No. 02-3188 3
ment. However, in order to escape inevitable criticism, Ryan
also advised Lt. Chavarria to determine whether the city
had a policy regarding its vehicles and whether there was
another key for the city vehicle in question. While Lt.
Chavarria was tracking down this information on the city’s
policy, he left two other officers, Louis Arcuri and William
Jansky, at Mr. Luellen’s home to conduct surveillance.
Lt. Chavarria spoke to Howard Vanselow, the assistant
chief in charge of maintenance for the ECFD, who also was
the acting chief while ECFD Chief, James Dawson, was out
of town. Asst. Chief Vanselow told Lt. Chavarria that he
(Vanselow) could get a key to the vehicle. Asst. Chief
Vanselow later met Lt. Chavarria with the key at Mr.
1
Luellen’s residence.
Before Lt. Chavarria searched the trunk, he knocked on
Mr. Luellen’s door, but there was no response. Asst. Chief
Vanselow then knocked as well; Mr. Luellen eventually
opened his second-floor window. When Asst. Chief
Vanselow informed Mr. Luellen that the trunk of the vehicle
was going to be opened, Mr. Luellen responded that he was
2
going to get in touch with his lawyer.
1
When Lt. Chavarria called the ECFD, he requested to speak to
Chief Dawson. Chief Dawson was paged; however, in the mean-
time, Lt. Chavarria spoke with Asst. Chief Vanselow. At some
point during the evening, Chief Dawson returned a call from the
police department. Chief Dawson spoke to Lt. Chavarria who
said that the police “suspected some wrongdoing” and “men-
tioned something about some ballots” in Mr. Luellen’s vehicle.
Dawson Dep. at 58. Chief Dawson gave Lt. Chavarria permission
to search the vehicle. See id. at 59.
2
The following day, Mr. Luellen went to see an attorney who
prepared an affidavit for Mr. Luellen to sign. It stated that the bag
(continued...)
4 No. 02-3188
Asst. Chief Vanselow then opened the trunk at Lt.
Chavarria’s request. Inside the trunk was a bag labeled
“Lake County Voters Registration Board,” which contained
both sealed and unsealed absentee ballots. Lt. Chavarria
then informed Mr. Luellen that they were confiscating the
bag.
At the station, the contents of the bag were inventoried,
and the inventory revealed several completed absentee bal-
lots and several applications for absentee ballots. On the
morning of April 19, 1999, the evidence was turned over to
the Lake County Sheriff’s Department so that it could con-
duct a more thorough criminal investigation.
2. Suspension
Based on his actions of April 18, 1999, Mr. Luellen was
placed on administrative leave from the Fire Department
beginning on April 21, 1999. Specifically, on that date, Chief
Dawson informed Mr. Luellen accordingly:
Please be advised that I have been informed by Fire
Department Attorney Michael W. Bosch that on April
20, 1999, the Lake County Sheriff presented evidence of
election law violations to the Lake County Combined
County Election Board and Board of Registration. The
County Sheriff and his legal advisor advised the Board
that they believed the facts surrounding items confis-
cated from your fire department vehicle constituted
2
(...continued)
contained ten absentee ballots that Mr. Luellen had collected for
mailing. Later, in his deposition, Mr. Luellen stated that the
ballots had been given to him to be passed on to someone else.
See Luellen Dep. at 45-46.
No. 02-3188 5
evidence of the commission of a felony. The Election
Board has referred this evidence to both the Lake
County Prosecutor and the United States Attorney for
the Northern District of Indiana for further investiga-
tion.
While you have not been convicted in any court yet,
this conduct that the sheriff considers a felony is cer-
tainly conduct unbecoming an officer. Accordingly, by
the power invested in me as the Chief of this Depart-
ment, you are hereby suspended from duty. Pursuant to
the former [Ind. Code] 19-1-37,5-7, I shall present this
suspension to the Board of Public Safety for confirma-
tion on Thursday, April 22, 1999 at 11:00 a.m. in the
Board’s hearing room. If the Safety Board confirms your
suspension, you will have ten (10) days to file with the
East Chicago Fire Civil Service Commission a written
demand for an investigation, whereupon the Commis-
sion shall conduct an investigation.
Pursuant to [Ind. Code] 36-8-3-4, the Safety Board
may place you on administrative leave until the disposi-
tion of criminal charges. Your administrative leave may
be with or without pay as determined by the board but,
I do intend to recommend you be suspended with pay.
R.84, Ex.4.
In another memo issued on that day, Chief Dawson also
informed Mr. Luellen that “the Fire Department is conduct-
ing an internal investigation about an incident that occurred
on April 17, 1999. You are allegedly involved in this inci-
dent. At the conclusion of this investigation there may be
possible charges filed against you.” Id., Ex.5.
Mr. Luellen did not attend the confirmation hearing on
Thursday, April 22, 1999, nor did he take any other action to
6 No. 02-3188
challenge his suspension. He remained on paid administra-
tive leave until January 15, 2001. During this time, he
received his base pay. However, Mr. Luellen did not receive
either overtime pay or “on-call pay”—an additional yearly
sum paid to fire inspectors for being available to respond
when requested by an assistant chief. Luellen Dep. at 53. No
criminal charges were ever filed against Mr. Luellen.
B. District Court Proceedings
Mr. Luellen brought this action against the City of East
Chicago, its Mayor—Robert Pastrick, Mayor Pastrick’s
3
son—Kevin Pastrick, Chief Dawson and Chief Alcala for
alleged violations of his rights under the First, Fourth and
Fourteenth Amendments. By way of relief, Mr. Luellen
sought “a declaratory judgment determining that the
challenged actions of the defendants violate [his] rights,”
reinstatement, backpay and damages. R.1 at 6.
The defendants moved for summary judgment, which the
district court granted. With respect to Mr. Luellen’s Fourth
Amendment claim, the district court held that the moving
vehicle exception to the warrant requirement applied. The
court explained that “[u]nder this exception, police officers
may search a vehicle without a warrant if they have proba-
ble cause to believe it contains contraband or evidence of
3
Although Kevin Pastrick was named as a defendant below and
consequently is a party to this appeal, Mr. Luellen makes no
argument concerning Kevin Pastrick’s involvement in this action
or the legal basis for holding Kevin Pastrick liable for the alleged
constitutional violations. We therefore affirm the judgment of the
district court in favor of Kevin Pastrick with respect to all of Mr.
Luellen’s claims.
No. 02-3188 7
crime.” R.115 at 12. Furthermore, the court continued,
“[p]robable cause to search a vehicle under the automobile
exception can come from information obtained by a confi-
dential informant.” See id. at 13 (citing United States v.
Lumpkin, 159 F.3d 983, 986 (6th Cir. 1998), and United States
v. Talley, 108 F.3d 277, 281 (11th Cir. 1997)). The court
determined that the detailed information provided by the
CI, combined with Lt. Chavarria’s personal knowledge of
the CI’s reliability, provided probable cause for a search of
the vehicle.
The district court further held that, even if there was not
probable cause to search the vehicle, the involvement of
Chief Dawson and Chief Alcala was not sufficient so as to
subject them to liability under § 1983. According to the
court, Lt. Chavarria testified that he would have opened the
trunk even absent Chief Dawson’s permission; consequently
Chief Dawson’s permission was not a factor in the alleged
Fourth Amendment violation. As well, the district court
found that Chief Alcala’s referral of Lt. Chavarria to Ryan
for advice also was not sufficient personal involvement to
impute § 1983 liability.
The court then turned to Mr. Luellen’s suspension. The
court first rejected Mr. Luellen’s claim that he was sus-
pended as a result of his support for Stiglich. Applying the
analysis of Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977), the court found that
the fact that Chief Dawson supported Stiglich’s opponent,
Mayor Pastrick, was not evidence that Mr. Luellen’s support
of Stiglich was a motivating factor in his suspension.
The court also rejected Mr. Luellen’s claim that Chief
Dawson had violated his due process rights when Chief
Dawson suspended him with pay without a hearing. Al-
though the court acknowledged a due process right to a
hearing prior to termination of employment, the court held
8 No. 02-3188
that the same rule did not apply to suspensions with pay.
Furthermore, the court noted, Indiana law does not specifi-
cally provide for a pre-suspension hearing before a fire
department employee is suspended with pay. The court also
determined that Chief Dawson had provided Mr. Luellen
with notice and opportunity to be heard concerning the
suspension. Finally, the court held that Mr. Luellen’s
interest in his on-call pay was not a property interest that
triggered the protection of the Due Process Clause.
Mr. Luellen timely appealed the district court’s adverse
judgment.
II
DISCUSSION
A. Illegal Search
1. Issues of Fact
Mr. Luellen maintains that genuine issues of material fact
precluded the district court from entering summary judg-
ment on behalf of the defendants with respect to his Fourth
Amendment/illegal search claim. Mr. Luellen points to
alleged discrepancies between the testimony given by Chief
Dawson and Lt. Chavarria to show that a factual dispute
exists concerning whether a CI provided the information to
Lt. Chavarria. Specifically, Mr. Luellen maintains that when
Chief Dawson was deposed, he stated that Lt. Chavarria
had mentioned a suspicion of wrongdoing concerning
ballots, but Chief Dawson did not testify that Lt. Chavarria
mentioned a CI. According to Mr. Luellen, Chief Dawson’s
testimony undermines Lt. Chavarria’s assertion that he
received the phone call and information from a CI “because
one could reasonably assume Chavarria would have
mentioned the information he received from a confidential
No. 02-3188 9
source to Chief Dawson, if in fact there was such a source.”
Appellant’s Br. at 14. We disagree.
Even a cursory examination of Chief Dawson’s and Lt.
Chavarria’s testimony reveals that the statements of the two
men are not in conflict. Chief Dawson testified that the
police had a suspicion of wrongdoing and that he “men-
tioned something about some ballots” in Mr. Luellen’s
vehicle. Dawson Dep. at 58. This statement is completely
consistent with Lt. Chavarria’s testimony regarding the
information that he received from the CI—specifically, that
Mr. Luellen was at a house party collecting absentee ballots,
that he placed the ballots in a grey bag and that he placed
the bag in the trunk of his city vehicle. Mr. Luellen’s belief
that Lt. Chavarria would have mentioned the CI to Chief
Dawson, and his further belief that Chief Dawson would
have recalled this specific detail “is pure speculation and
therefore raises no genuine issues of material fact that
would preclude summary judgment.” State Bank of St.
Charles v. Camic, 712 F.2d 1140, 1145 (7th Cir. 1983).
2. Alleged Fourth Amendment Violation
Mr. Luellen also maintains that, even accepting the
defendants’ version of the events of April 18, 1999, Lt.
Chavarria did not have probable cause to believe that he
(Mr. Luellen) had violated any election law.
We note at the outset that Lt. Chavarria was not named as
a defendant in this action and is not a party to this appeal.
Mr. Luellen seeks to hold only Chief Dawson, Chief Alcala
and the City of East Chicago liable for the actions of the
officers on April 18, 1999. Thus, in order for Mr. Luellen to
prevail, he not only must establish that his constitutional
rights were violated, he also must show that each individual
10 No. 02-3188
defendant “caused the deprivation of a federal right.” Luck
v. Rovenstine, 168 F.3d 323, 327 (7th Cir. 1999) (internal
quotation marks and citations omitted). Therefore, we look
first to whether a constitutional violation took place. We
then turn to the question whether the named defendants are
legally responsible for the alleged violation.
“ ‘Whether an officer is authorized to make an arrest
ordinarily depends, in the first instance, on state law.’ ”
Williams v. Jaglowski, 269 F.3d 778, 782 (7th Cir. 2001)
(quoting Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)). The
parties agree that the operative statute is Ind. Code § 3-14-2-
16(4). That statute makes it a felony to knowingly receive
“from a voter a ballot prepared by the voter for voting,
except: . . . (D) a member of the voter’s household or an
individual designated as attorney-in-fact for the voter, when
delivering an envelope containing an absentee ballot under
[Ind. Code] § 3-11-10-1.” Mr. Luellen posits that Lt.
Chavarria did not have probable cause to believe that he
had violated Ind. Code § 3-11-10-1 because the CI was not
sure whether Mr. Luellen had been collecting absentee
ballots or applications for absentee ballots. Because collect-
ing applications for absentee ballots is not illegal, continues
Mr. Luellen, Lt. Chavarria did not have probable cause to
believe that a crime had been committed or that his vehicle
contained evidence of a crime. We cannot accept this
argument.
It is well settled that probable cause to search a vehicle
exists if there is a “fair probability” that contraband or evi-
dence of a crime will be found in that particular place. See
United States v. Ledford, 218 F.3d 684, 688 (7th Cir. 2000).
“While probable cause requires more than the mere sus-
picion, we do not require it to reach the level of virtual
certainty.” United States v. Gilbert, 45 F.3d 1163, 1166 (7th
No. 02-3188 11
Cir. 1994). We believe that, based on the information
provided by the CI, Lt. Chavarria could conclude that there
was a “fair probability” that the car contained evidence of
a crime. The CI told Lt. Chavarria that Mr. Luellen was
“[c]ollecting absentee ballots from the people who were at
the party.” Chavarria Dep. (8/14/01) at 29. However, Mr.
Luellen suggests that the CI exhibited doubt about what
was actually collected at the party and points to the fol-
lowing colloquy at Lt. Chavarria’s deposition to bolster his
argument:
Q: What was Luellen supposedly doing?
A: Collecting absentee ballots from the people who
were at the party.
Q: Anything else stated to you by this source.
A: No, sir.
Q: Did the person indicate whether it was ballots or
applications for ballots?
A: They really weren’t sure, they just said he was
collecting some absentee ballots. That’s what I was
told.
Q: Well, did the person say he was collecting ballot
applications or did he say the person was collecting
ballots?
...
A: Said he was collecting absentee ballots.
Chavarria Dep. (8/14/01) at 29. Reading the passage in
context, Lt. Chavarria states three times during the course of
this page of his deposition that the CI told him that Mr.
Luellen was collecting absentee ballots. Any confusion on
the issue was resolved by the final question set forth above
12 No. 02-3188
in which Lt. Chavarria testifies as to exactly what he was
told by the CI. Consequently, we believe it is clear that the
information conveyed to Lt. Chavarria from the CI was that
Mr. Luellen had been collecting absentee ballots.
Mr. Luellen continues that, even if the CI identified the
documents collected as absentee ballots as opposed to
applications for absentee ballots, the CI did not provide Lt.
Chavarria with sufficient information to discern whether
one of the exceptions to the statute applied, namely that a
person may collect absentee ballots, without running afoul
of the above statute, if the person is “a member of the
voter’s household or an individual designated as attorney-
in-fact for the voter.” However, it strains credulity to con-
clude that Mr. Luellen went to the home of a third party to
collect ballots only from members of his own household. A
reasonable officer would only be exercising common sense
in reaching the opposite conclusion. Consequently, we
believe that the “household” exception set forth in Ind.
Code § 3-14-2-16 does not negate probable cause under the
4
circumstances.
Because we conclude that Lt. Chavarria had probable
cause to search Mr. Luellen’s vehicle, there is no Fourth
Amendment violation to impute to defendants Chief
Dawson and Chief Alcala. See Schertz v. Waupaca County, 875
F.2d 578, 582 (7th Cir. 1989). Consequently, we affirm the
district court’s grant of summary judgment to Chief Dawson
4
In his reply brief, Mr. Luellen argues that information from a
CI, standing alone, is insufficient to support probable cause to
search the vehicle. However, Mr. Luellen failed to raise this ar-
gument in his opening brief; it is therefore waived. See Wildlife
Exp. Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508 n.5 (7th Cir.
1994) (“Arguments raised for the first time in the reply brief are
waived.”).
No. 02-3188 13
and Chief Alcala with respect to Mr. Luellen’s Fourth
5
Amendment claims.
5
However, even if we had concluded that probable cause was
lacking, Mr. Luellen would face substantial hurdles in attributing
the constitutional violation to Chiefs Dawson and Alcala. With
respect to Chief Dawson, Mr. Luellen argues that the combination
of Chief Dawson’s permission and Lt. Chavarria’s belief that he
did not need a warrant to open the trunk (based on the fact that
fire department officials had the right to inspect ECFD vehicles),
is sufficient for a jury to conclude that, but for Chief Dawson’s
permission, Lt. Chavarria would not have opened the trunk.
If, indeed, Lt. Chavarria relied on Chief Dawson’s permission,
the question then would become whether Chief Dawson’s per-
mission is sufficient to permit inspection of the ECFD vehicle
without probable cause, that is whether Mr. Luellen had a rea-
sonable expectation of privacy in the ECFD-issued vehicle. It is
true, as noted by Mr. Luellen, that the defendants did not argue
this issue with any vigor before the district court; however, Chief
Dawson ultimately could not be held liable for an illegal search
based on a lack of probable cause if he had the authority to
permit the search in the absence of probable cause.
The Supreme Court has stated that “[g]iven the great variety of
work environments in the public sector, the question whether an
employee has a reasonable expectation of privacy must be
addressed on a case-by-case basis.” O’Connor v. Ortega, 480 U.S.
709, 718 (1987) (plurality). In the present case, the vehicle be-
longed to the ECFD, was maintained by the ECFD and was
insured by the ECFD. It was assigned by the ECFD not to Mr.
Luellen personally, but to the position which he held. As well, the
ECFD possessed a key to the vehicle assigned to Mr. Luellen.
Finally, Chief Dawson testified that, with his permission, an
ECFD vehicle could be inspected, see Dawson Dep. at 55, and he
had authorized such an inspection in the past, see id. Conse-
(continued...)
14 No. 02-3188
B. Denial of Due Process
Mr. Luellen next argues that his suspension with pay
violated due process because it occurred without a hearing
6
and resulted in the loss of his on-call pay. We consider this
claim below.
“Procedural due process claims require a two-step analy-
sis. The first step requires us to determine whether the
plaintiff has been deprived of a protected interest; the sec-
5
(...continued)
quently, given these facts, we believe that Mr. Luellen could not
have established a reasonable expectation of privacy with respect
to the ECFD vehicle assigned to him.
Furthermore, with respect to Chief Alcala, although Mr.
Luellen includes him in the heading of his brief concerning
personal liability, his brief contains no argument as to why Chief
Alcala’s minimal involvement in these events renders him per-
sonally liable for any Fourth Amendment violation. Any ar-
gument with respect to Chief Alcala is, therefore, waived. United
States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“We
repeatedly have made clear that perfunctory and undeveloped
arguments, and arguments that are unsupported by pertinent
authority, are waived (even where those arguments raise con-
stitutional issues).”).
Finally, because we hold that there was no Fourth Amendment
violation, and because we further believe that, in any event,
Chiefs Dawson and Alcala could not be held liable for any
violation, there is no action by a policymaker that could impute
liability to the City of East Chicago pursuant to Monell v. Depart-
ment of Social Services, 436 U.S. 658, 694 (1978).
6
Mr. Luellen also apparently lost overtime pay, see Luellen Dep.
at 53-54; however, he does not argue that his overtime pay
constitutes a property interest for purposes of the Due Process
Clause.
No. 02-3188 15
ond requires a determination of what process is due.”
Strasburger v. Bd. of Educ., Harden County Comm. Unit Sch.
Dist. No. 1, 143 F.3d 351, 358 (7th Cir. 1998) (internal quota-
tion marks and citations omitted). In the employment
context, the Supreme Court has made clear that “[t]he
protections of the Due Process Clause apply to government
deprivation of those perquisites of government employment
in which the employee has a constitutionally protected
‘property’ interest.” Gilbert v. Homar, 520 U.S. 924, 928
(1997). Consequently, the first issue we must address is
whether Mr. Luellen’s on-call pay constitutes a property
interest deserving of protection under the Due Process
Clause.
1. Property Interest
To determine whether a property interest exists in a par-
ticular aspect of employment, a court must look to state law.
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538
(1985). However, Mr. Luellen has not come forward with
any evidence that on-call pay constitutes a property interest
under Indiana law. Indeed, the only statutory indications
are that the opposite is true. See, e.g., Ind. Code § 36-8-1-11(defining, for purposes of all of Article 8 (including disci-
pline of public safety officers), salary as excluding overtime
pay and comp time).
Even in the absence of explicit statutory protection, how-
ever, this court has acknowledged that removal or sus-
pension—even a suspension with pay—from a statutorily
protected employment position “might produce indirect
economic effects that trigger the protection of the Due
Process Clause.” Townsend v. Vallas, 256 F.3d 661, 676 (7th
Cir. 2001). We do not believe that Mr. Luellen’s loss of on-
call pay falls within this exception; indeed, we believe it
closely akin to the claim that we rejected in Townsend.
16 No. 02-3188
In Townsend, a teacher was suspended and temporarily
reassigned to an administrative position, with pay, pending
an investigation into a death of a student. The teacher
argued that, although he received his teaching salary, he
had lost the opportunity to earn additional income from
coaching positions, and this constituted a deprivation of
property under the Due Process Clause. We rejected this
argument:
In our view, the temporary loss of this possibility for
additional income does not warrant the characterization
[of a property interest] given by the district court. We
have recognized that removal or suspension from a
tenured position might produce indirect economic
effects that trigger the protection of the Due Process
Clause. Nevertheless, we do not believe that the tempo-
rary loss of this possibility for additional income is the
sort of deprivation that triggers the protection of federal
due process.
Id.Like the coaching position in Townsend, Mr. Luellen’s on-
call pay was not protected by statute. Furthermore, it does
not appear to be so integral to his position with the ECFD
such that the loss of this aspect of his pay could be deemed
to be a loss of his position. We therefore conclude that Mr.
Luellen’s loss of on-call pay was not a cognizable property
right for purposes of the Due Process Clause.
2. Procedural Safeguards
Even if Mr. Luellen had a property interest in his on-call
pay, we believe the requirements of due process were met
under the circumstances. The Supreme Court has explained
that due process “ ‘unlike some legal rules, is not a technical
No. 02-3188 17
conception with a fixed content unrelated to time, place and
circumstances.’ ” Gilbert, 520 U.S. at 930 (quoting Cafeteria &
Rest. Workers v. McElroy, 367 U.S. 886, 895 (1961)). Instead,
it “ ‘is flexible and calls for such procedural protections as
the particular situation demands.’ ” Id. (quoting Morissey v.
Brewer, 408 U.S. 471, 481 (1972)). Traditionally, the Court has
looked to three factors to determine what process is “due”
under the circumstances: “ ‘First, the private interest that
will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the proce-
dures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Govern-
ment’s interest.’ ” Id. at 931-32 (quoting Mathews v. Eldridge,
424 U.S. 319, 335 (1976)).
In Loudermill, the Court applied these factors to determine
whether due process required a governmental body to
provide a pre-termination hearing to a public employee who
could be terminated only for cause. The Court concluded
that, weighing these factors, due process requires “ ‘some
kind of hearing’ prior to the discharge of an employee who
has a constitutionally protected property interest in his
employment.” Loudermill, 470 U.S. at 542 (quoting Bd. of
Regents v. Roth, 408 U.S. 564, 569-70 (1972)). It specifically
noted that “[t]he governmental interest in immediate
termination does not outweigh” the individual’s interest in
continued employment and the risk of an erroneous deci-
sion. Id. at 544. The Court explained that “affording the
employee an opportunity to respond prior to termination
would impose neither a significant administrative burden
nor intolerable delays. . . . [I]n those situations where the
employer perceives a significant hazard in keeping the
employee on the job, it can avoid the problem by suspend-
ing with pay.” Id. at 544-45 (footnote omitted).
18 No. 02-3188
The Court’s balancing in Gilbert also is instructive. In
Gilbert, the Court considered whether a state university
violated the due process rights of a member of its police
force when it suspended the officer without pay—and
without a hearing—when it learned that he had been ar-
rested and charged with a drug felony. Considering the first
of the Mathews factors—the private interest that will be
affected by the governmental deprivation—the Court
observed:
[W]hile our opinions have recognized the severity of
depriving someone of the means of his livelihood, they
have also emphasized that in determining what process
is due, account must be taken of “the length” and
“finality of the deprivation.” Unlike the employee in
Loudermill, who faced termination, respondent faced only
a temporary suspension without pay. So long as the
suspended employee receives a sufficiently prompt
postsuspension hearing, the lost income is relatively
insubstantial (compared with termination), and fringe
benefits such as health and life insurance are often not
affected at all . . . .
Gilbert, 520 U.S. at 931 (quoting Logan v. Zimmerman Brush
Co., 455 U.S. 422, 434 (1982); additional citations omitted).
Balancing the remaining factors, the Court determined that
the State’s failure to provide a pre-suspension hearing,
under the circumstances, was not a due process violation.
However, it remanded for further proceedings to determine
whether the officer “was provided an adequately prompt
post-suspension hearing.” Id. at 935.
Using Loudermill and Gilbert as our guides, we cannot
conclude that the lack of pre-suspension hearing in this case
violated due process. With the exception of the use of the
ECFD vehicle, Mr. Luellen has not come forward with any
No. 02-3188 19
evidence that he lost any pay (regular or on-call) or benefits
between the time that he was informed of his suspension,
April 21, 1999, and the time that a hearing took place, April
22, 1999. This amounts at most to a minor and short-lived
inconvenience.
As in Gilbert, the more pressing question is whether the
post-suspension process satisfied the requirements of due
process. In the present case, Chief Dawson informed Mr.
Luellen of the basis for his suspension with pay (potential
violation of the election laws) and the evidence against him
(the “items confiscated from your fire department vehicle,”
R.84, Ex.4). Chief Dawson also informed Mr. Luellen of the
time and place (April 22, 1999, in the Board of Public
Safety’s hearing room) that the information would be pres-
ented to the Board of Public Safety for confirmation of Chief
Dawson’s administrative action. Finally, Chief Dawson
apprised Mr. Luellen that, if his suspension was confirmed,
he would have ten days to file a written demand for an
investigation with the East Chicago Fire Civil Service
Commission.
Reviewing the Mathews factors, we believe that Chief
Dawson’s actions met the requirements of due process. First,
the interest at issue—Mr. Luellen’s on-call pay—was only a
fraction of his salary; his regular salary and benefits stayed
intact. Second, there was little chance of “an erroneous
deprivation” taking place; Mr. Luellen was suspended for
unbecoming conduct, and the evidence—the completed
absentee ballots found in Mr. Luellen’s trunk—was indis-
putable. Additionally, although additional or substitute
process was unlikely to shed more light on the matter, Mr.
Luellen was informed that he could demand an investiga-
tion by the East Chicago Fire Civil Service Commission.
Finally, the City of East Chicago had a strong interest in
20 No. 02-3188
ensuring that its ranks of employees did not include those
strongly suspected of engaging in election-law violations.
Consequently, because Mr. Luellen’s deprivation was
relatively small and the City’s interest relatively strong, and
because Mr. Luellen was provided with the opportunity for
additional procedures to vindicate his rights but did not
avail himself of those opportunities, we believe that the
7
requirements of due process were satisfied.
C. First Amendment Violation
Finally, Mr. Luellen contends that the search of the car
and his suspension with pay were motivated by his political
support of Stiglich. Because we have concluded that proba-
ble cause existed to search Mr. Luellen’s vehicle, we need
not consider any of the parties’ motivations in conducting,
authorizing or approving that search. See Schertz v. Waupaca
County, 875 F.2d 578, 582 (7th Cir. 1989).
Turning to the alleged First Amendment violations in-
volved in his suspension, Mr. Luellen points to several
7
Mr. Luellen maintains that he was confused regarding how to
vindicate his rights because he received two memoranda from
Chief Dawson referencing his alleged wrongdoing and mention-
ing an investigation. We find this argument unpersuasive. The
longer of the two documents, delivered to Mr. Luellen on April
21, 1999, clearly states that the East Chicago Fire Civil Service
Commission would conduct an investigation only if the Board
confirmed Mr. Luellen’s suspension on April 22, 1999, and then
only upon his demand. The second memorandum, also delivered
on April 21, 1999, informs Mr. Luellen of an internal ECFD
investigation that already had commenced. Consequently, a
reasonable person reading both memoranda could not have
concluded that the investigations were one and the same.
No. 02-3188 21
pieces of evidence that, he argues, suggest that Chief
Dawson had an illicit motivation in suspending him. For
instance, Mr. Luellen states that “Dawson relied on the
allegations of Sheriff Buncich, a Pastrick supporter, rather
than conducting an investigation and giving Luellen an
opportunity to be heard.” Appellant’s Br. at 23. However,
the principle evidence presented by Sheriff Buncich to the
Board of Public Safety was the evidence that completed
absentee ballots were found in Mr. Luellen’s vehicle—a fact
that is undisputed. Mr. Luellen also points to the fact that
Chief Dawson supported Mayor Pastrick’s campaign.
However, this court has made clear that an individual can-
not prove that an action was politically motivated “merely
by showing that he carried the political card of the opposi-
tion party or that he favored the defendant’s opponent in
the election.” Nekolny v. Painter, 653 F.2d 1164, 1168 (7th Cir.
1981). Consequently, the fact that Chief Dawson—or any of
the other individuals involved in Mr. Luellen’s suspen-
sion—supported Mayor Pastrick, is not sufficient to estab-
lish a prima facie case that Mr. Luellen’s support of Stiglich
was a motivating factor in his suspension. Because the
burden was on Mr. Luellen to come forward with evidence
to show that Chief Dawson’s action in suspending Mr.
Luellen was politically motivated, and because Mr. Luellen
has failed to meet this burden, we affirm the judgment in
favor of the defendants.
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court granting summary judgment to the defendants
on all of Mr. Luellen’s claims.
AFFIRMED.
22 No. 02-3188
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-18-03