                             NONPRECEDENTIAL DISPOSITION
                               To be cited only in accordance with
                                       Fed. R. App. P. 32.1




                 United States Court of Appeals
                                       For the Seventh Circuit
                                       Chicago, Illinois 60604

                                        Argued May 7, 2008
                                    Decided September 8, 2008


                                               Before


                               WILLIAM J. BAUER, Circuit Judge


                               RICHARD A. POSNER, Circuit Judge


                               ANN CLAIRE WILLIAMS, Circuit Judge


No. 07-3190


BRUCE HORSTMANN,                                        Appeal from the United States District
          Plaintiff-Appellant,                          Court for the Southern District of Illinois.
    v.
                                                        No. 07 C 433
ST. CLAIR COUNTY, ILLINOIS and
BRUCE HAIDA, St. Clair County                           J. Phil Gilbert, Judge.
State’s Attorney,
               Defendants-Appellees.


                                             ORDER


        Bruce Horstmann contends that the St. Clair County, Illinois State’s Attorney and the County
deprived him of due process when the State’s Attorney wrote a letter to the Alorton, Illinois police
department and later to other potential employers that it would not prosecute any case in which he
played a significant role. Because the defendants had no role in the hiring or firing decisions alleged
in the complaint, Horstmann’s complaint fails to state a procedural due process claim. In addition,
the complaint’s allegations fail to implicate any fundamental rights protected by the substantive due
process clause. We therefore affirm the dismissal of the complaint for failure to state a claim upon
No. 07-3190                                                                                        2

which relief could be granted.


                                       I. BACKGROUND


        Bruce Horstmann resigned from the Belleville, Illinois police department in 2005. He then
began working as an officer with the Alorton, Illinois police department. When St. Clair County
State’s Attorney Robert Haida learned of this, he wrote a letter to the Alorton Chief of Police that
stated:


       My office will not pursue the prosecution of any case which is based solely upon the
       testimony of Office Bruce Horstmann or is otherwise based in substantial part on the
       testimony of Officer Horstmann.


The Alorton police department fired Horstmann because of the letter. Horstmann later applied for
a job with the East St. Louis police department, but Haida wrote an identical letter to the chief of
that department, and Horstmann did not get the job. The same sequence took place with other police
departments in the area.
       Horstmann filed suit against St. Clair County and State’s Attorney Haida asserting
a right to relief under 42 U.S.C. § 1983. His complaint alleged that he had a property interest in
retaining employment with the Alorton police department and that he had a property interest in
obtaining and retaining employment with the East St. Louis, Illinois police department. The district
court granted the defendants’ motion to dismiss, and Horstmann appeals.


                                         II. ANALYSIS


        We review the grant of a motion to dismiss de novo, taking all well-pleaded facts as true and
construing all reasonable inferences in the plaintiff’s favor. Remet Corp. v. City of Chicago, 509
F.3d 816, 817 (7th Cir. 2007). To succeed on a section 1983 claim, a plaintiff must demonstrate that
he was deprived of a right guaranteed by the United States Constitution or federal law, by a person
acting under color of law. Thurman v. Village of Homewood, 446 F.3d 682, 686-87 (7th Cir. 2006).
Horstmann contends that his complaint states claims for deprivation of his constitutional rights to
procedural and substantive due process.
       A. Procedural Due Process


      We first consider whether Horstmann’s complaint states a procedural due process claim. The
government may not deprive a person of life, liberty, or property without due process of law. U.S.
No. 07-3190                                                                                           3

Const. amend. XIV, § 1; Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). To
succeed on a procedural due process claim, a plaintiff must demonstrate a cognizable property
interest, a deprivation of that property interest, and a denial of due process. Hudson v. City of
Chicago, 374 F.3d 554, 559 (7th Cir. 2004). We will assume, at least with respect to Horstmann’s
employment with the Alorton police department, that Horstmann had a legitimate expectation of
continued employment, and therefore a property interest, in his position there.


        The fundamental requirement of due process is “the opportunity to be heard at a meaningful
time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). But Horstmann complains he did not receive
sufficient process from parties that could not have provided it. Neither State’s Attorney Haida nor
St. Clair County ever employed or potentially employed him. Nor is there any allegation that Haida
or St. Clair County had any input into the hiring or firing decisions made by the individual police
departments. As a result, the defendants named in this case did not deprive Horstmann of any
property interest he had in his job without due process of law. See Argyropoulos v. City of Alton,
No. 03-810-DRH, 2006 WL 2802112, at *7-8 (S.D. Ill. Sept. 28, 2006) (“Furthermore, before even
proceeding with the analysis below, the Court dismisses the claim against Defendant Botterbush.
Plaintiff has not provided any facts in this record that would suggest that Defendant Botterbush
terminated or had the authority to terminate Plaintiff. Likewise, without the authority to terminate
Plaintiff, Defendant Botterbush cannot be held liable for any due process deprivations relating to
Plaintiff's termination.”); aff’d No. 07-1983, 2008 WL 3905891, at *12 (7th Cir. Aug. 26, 2008)
(judgment against Botterbush proper because plaintiff “failed to identify any evidence in the record
showing that he played a role in her termination”); Heideman v. Wirsing, 840 F. Supp. 1285, 1300
(W.D. Wis. 1992) (granting summary judgment on procedural due process claim in favor of
defendant who had no power to terminate plaintiff’s employment).


        The only entity that had the power to take away any property interest Horstmann had in his
employment with the Alorton police department was the Alorton police department itself. It simply
makes no sense to say that the non-employing defendants named in this case should have provided
him with notice of his potential discharge, an opportunity to be heard before he lost his job, or a pre-
or post- termination hearing. Cf., e.g., Loudermill, 470 U.S. at 545-46; Hudson, 374 F.3d at 560-64.
The district court properly granted the defendants’ motion to dismiss the procedural due process
claim.


       B.       Substantive Due Process
        Horstmann also maintains that his complaint raises a cognizable substantive due process
claim. The scope of the protections afforded by substantive due process is limited, however, and
applies only to decisions affecting fundamental rights. Belcher v. Norton, 497 F.3d 742, 752 (7th
Cir. 2007); Wozniak v. Conry, 236 F.3d 888, 891 (7th Cir. 2001). Employment rights are state-
No. 07-3190                                                                                        4

created rights, and a public employee’s interest in continued employment does not rise to the level
of a “fundamental” right protected by substantive due process. See Zorzi v. County of Putnam, 30
F.3d 885, 895 (7th Cir. 1994) (stating that substantive due process does not protect occupational
liberty); Silva v. Bieluch, 351 F.3d 1045, 1048 (11th Cir. 2003) (noting that substantive due process
does not protect employment rights); Nichols v. Penn State Univ., 227 F.3d 133, 142 (3d Cir. 2000)
(holding that tenured public employment not a fundamental property interest entitled to substantive
due process protection).


        We have said before that a claim that employment was wrongfully terminated is not
sufficient to state a substantive due process claim unless the plaintiff also demonstrates that the
defendants violated some other constitutional right or that available state remedies were inadequate.
Montgomery v. Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005). Here, the complaint does not state a
claim for the violation of any other constitutional rights. And despite his protestations to the
contrary, Horstmann had adequate state-law remedies available to him. He maintains that he could
not get a fair trial on any state-law tort action brought in St. Clair County because Haida is the
county’s State’s Attorney. But if that’s the concern, Illinois law provides that Hortsmann could file
a motion to substitute the presiding judge for cause, 735 ILCS 5/2-1001(a)(3) and the judge may
then assign the case “to some other judge in some other convenient county, to which there is no valid
objection.” 735 ILCS 5/2-1001(c). A state-law tort action was an adequate available remedy.


         Finally, we note that Horstmann’s complaint contains no indication of the reason Haida
decided not to prosecute cases in which Horstmann played a significant role. There is also no
suggestion that Horstmann attempted to use internal grievance procedures. There may well have
been a sound reason for Haida’s decision not to prosecute cases involving Horstmann, so Haida’s
letter on its face does not “shock the conscience” as Horstmann asserts. Cf. Belcher, 497 F.3d at 753
(noting that when exercise of government authority involves law enforcement officials, substantive
due process rights violated when alleged abuse of power “shocks the conscience”). The district
court properly granted the motion to dismiss this count as well.
                                       III. CONCLUSION
       The judgment of the district court is AFFIRMED.
