Brian Orozco v. Thomas J. Dart

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-1194

BRIAN OROZCO, as Administrator of the

Estate of Gregory Koger,

Plaintiff-Appellant,

v.

THOMAS J. DART and COOK COUNTY, ILLINOIS,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:14-cv-06361 — Maria Valdez, Magistrate Judge.

____________________

ARGUED SEPTEMBER 23, 2022 — DECIDED APRIL 6, 2023

____________________

Before RIPPLE, ROVNER and BRENNAN, Circuit Judges.

BRENNAN, Circuit Judge. Cook County Jail staff searched

Gregory Koger’s cell on October 5, 2013. That search sparked

lengthy litigation, including two prior visits to this court.

Koger alleges that the officers who conducted the search re-

moved approximately 30 books from his cell and disposed of

them. Seeking to hold the County responsible, Koger filed suit

under 42 U.S.C. § 1983. Though his allegations have evolved,

2 No. 22-1194

Koger lands on a claim that the County deprived him of his

books without due process. The district court granted sum-

mary judgment to the County, and we affirm. Koger received

constitutionally sufficient due process surrounding any prop-

erty deprivation, and he presents insufficient evidence to hold

the County liable under Monell v. Department of Social Services,

436 U.S. 658 (1978), and its progeny.

I

A

The following facts are drawn from the evidentiary record

developed during the parties’ motions for summary judg-

ment.

In July 2013, Koger began serving a 300-day sentence in

Cook County Jail. While incarcerated, he received 42 books

and a magazine through the mail. Per Jail policy, inmates can

keep no more than three books or magazines (excluding reli-

gious texts) in their cell at any time. Koger had approximately

30 volumes in his cell at the time of the search. The three-book

policy is contained in the Inmate Information Handbook

(“Handbook”) which is given to all inmates upon arrival. The

policy states that any items or property—in excess of the

amounts allowed—is considered contraband. It is undisputed

that Koger received a copy of the Handbook.

Inmates with excess books have a few options. They can

mail them out of the Jail using large manila envelopes and

postage available for purchase through the Jail commissary.

Indigent inmates may request postage from a Correctional

Rehabilitation Worker, but Koger maintained at least one

hundred dollars in his inmate trust account at all relevant

times. In addition, inmates can have someone outside the Jail

No. 22-1194 3

pick up personal property. Inmates are also free to donate

their books to other inmates. And if an inmate believes that

Jail staff has mishandled his personal property, he may use

the Inmate Request and Grievance Procedures.

Though the three-book policy has long been in effect, it

was not strictly enforced during Koger’s stay. As a result, it

was common for inmates to have more than three books in

their cells. Despite historically lax enforcement, in October

2013 the Jail prepared to confiscate excess reading materials.

Koger testified that Jail administrators warned him they

would soon search inmate cells and take excess books:

Well, we had heard from other decks that [Jail

staff] had already shaken down their cells. And

in the days leading up to that, there were ad-

ministrators of the Cook County Jail who came

into our deck and told us you can only have

three books. Not verbatim, but something along

the lines of get rid of any more books than three

books because we’re coming to take that stuff.

Though Koger “knew that this was coming” he did not try to

divest himself of his excess books, “[b]ecause they were [his]

books” and “[t]here was no reason for [him] to get rid of the

books.”

On October 5, 2013, Sergeant Peter Giunta’s team of six

correctional officers searched the cells on Koger’s tier. Accord-

ing to Koger, Giunta’s team took all but three books from his

cell. Koger testified that he never saw any of the confiscated

books again. He wrote a grievance after his books were re-

moved, but he decided not to file it.

4 No. 22-1194

Testimony from other inmates, including Gerald Washing-

ton, Jerry Collins, Jovanny Martinez, and others supports

Koger’s account of the search. Kevin Long, another fellow in-

mate, offers additional details in his Declaration. 1 Long states

he saw confiscated books packed into large garbage bags fol-

lowing the October 5th search, though he apparently recov-

ered some of his own books after speaking with correctional

officers.

The County disputes Koger’s account of the search and

provides its own supporting evidence. Jail records confirm

that a search took place on October 5th, but the search report

does not mention confiscated books. On that point, Giunta

testified that if his officers had taken books, he would have

written about it in the search report or an incident report.

Giunta also testified that he does not remember any books or

magazines being removed from the searched cells. A genuine

factual dispute thus exists about whether any books were

taken and, if they were, what became of them. Koger acknowl-

edges this point on appeal.

Given that Koger seeks recovery from Cook County, a mu-

nicipality, it is also necessary to examine the record for evi-

dence of County policies or customs. As discussed, it is

undisputed that the County has an express written policy lim-

iting an inmate to three books in his cell. But the parties ap-

parently agree that the Jail has no written policy on what

1 The County moved to strike the Declaration of Kevin Long based on

Koger’s alleged failure to disclose Long as a witness pursuant to the Fed-

eral Rules of Civil Procedure. The district court denied that motion as

moot after awarding summary judgment to the County. Because the

County prevails despite our consideration of Long’s account, we view the

objection as immaterial.

No. 22-1194 5

happens to books in the event Jail staff confiscates them. Ei-

ther way, neither party identifies such a policy.

Koger claims the County’s policy is “to not have any pol-

icy,” thus entrusting guards with “total discretion to do what

they want with inmates’ confiscated books.” In Koger’s brief

he argues this “creates a high risk of erroneous deprivations.”

This position has some record support. Daniel Moreci was the

Jail’s first assistant executive director at time of deposition. 2

When asked “[w]hat happens to books or magazines that are

confiscated from inmates” when a cell search reveals “[c]lut-

ter, [un]sanitary conditions, contraband … [or] security con-

cerns,” he responded that such reading materials are “[m]ost

likely destroyed, thrown in the garbage.” Moreci later an-

swered “No” when asked whether correctional officers are

“supposed to ask which books and magazines the inmate

would like to keep” prior to confiscation. This accords with

Koger’s account of the search, as well as those of his fellow

inmates.

In response, the County provides evidence that it does not

instruct correctional officers to summarily destroy inmate

property. Giunta testified to the only procedure he recalls us-

ing to enforce the three-book policy:

I would basically interview the inmate and let

him know that he has an excessive amount of

whether it be books or magazines, and that he’s

2 In a district court motion, the County objected to Koger calling

Moreci a Federal Rule of Civil Procedure 30(b)(6) witness. After siding

with the County on summary judgment, the district court dismissed this

motion as moot. Because we likewise rule for the County, Moreci’s desig-

nation is inconsequential.

6 No. 22-1194

generally allowed three, but pick the ones you

want. The rest I would bag. I would place in a

bag or some type of box … and it would be—it

would be the inmate’s responsibility to have

them either sent home or to have some family

member or someone else come and pick them

up for [the inmate].

And when asked how correctional officers are supposed to

deal with an inmate’s excess personal property, former Exec-

utive Director Scott Kurtovich testified, “Either remove it or

have the ability to have him send that excess stuff home via

US Mail out to his family; or have his family even pick it up,

believe it or not.”

Cook County Department of Corrections General Order

14.7 states: “Items in your possession that have not been pro-

vided or approved by the [Jail] will be considered contraband,

confiscated and a Disciplinary Report will be completed.”

While that Order suggests Disciplinary Reports are manda-

tory, Moreci testified that creation of a formal report is left to

the “common sense” of the officer and supervisor. In Moreci’s

time with the County, he had “never seen a disciplinary re-

port state that [an inmate was] being written up because [he

had] too many books or magazines.”

Regardless of how the Jail handles confiscated books, the

record confirms that enforcement of the three-book policy

was rare. See, e.g., Roman Declaration (“In my whole time at

the jail, I have seen the rule enforced three times … .”); Mar-

tinez Declaration (“During my time at the jail, I have only

rarely seen this rule enforced against inmates.”); Collins Dec-

laration (“In my experience, the jail rarely enforces this

rule.”); Washington Declaration (“Correctional Officers knew

No. 22-1194 7

that many inmates had more than that number of books, but

they never enforced the rule limiting the number of books we

were allowed to keep in our cells.”).

The Jail released Koger from custody on October 24, 2013,

and he passed away in 2020. Though Brian Orozco has taken

over the suit as administrator of Koger’s estate, throughout

this opinion we attribute Orozco’s arguments to Koger.

B

The procedural history of this case is extensive and signif-

icant. Koger’s legal action against the County began on Au-

gust 18, 2014, when he filed a complaint in federal district

court. The thrust of that initial complaint differs from Koger’s

current position. Koger first alleged that the three-book policy

violated the First Amendment. Among other arguments, he

asserted that the three-book policy “unreasonably and irra-

tionally censors and restricts [inmates’] ability to receive in-

formation,” and thus infringes First Amendment rights.

The district court granted summary judgment to the

County in September 2017. The court ruled that two addi-

tional litigants lacked standing to sue and that Koger had no

standing to seek injunctive relief. On the merits, the court de-

termined that Koger could not show municipal fault. Specifi-

cally, the court concluded that any deprivation of Koger’s

books was attributable to the negligent or intentional wrong-

doing of Jail staff, not a Jail policy or custom.

On appeal, this court affirmed in part and reversed in part.

Lyons v. Dart, 901 F.3d 828 (7th Cir. 2018). We agreed with the

district court’s standing analysis, id. at 829–30, but remanded

for additional fact-finding on Koger’s First Amendment

claim. Id. at 830. Due to “Koger’s allegation that the

8 No. 22-1194

confiscation of his reading material was authorized by the

Jail’s policy,” we sent the case back to determine “exactly

what policy the Jail is employing, how (if at all) it affected

Koger, and if necessary consider the validity of that policy

and whether Koger is entitled to damages.” Id.

Back in the district court, Koger sought leave to file an

amended complaint with a procedural due process claim. The

district court denied that motion, identified “no due process

claim in the case,” and awarded summary judgment to the

County again in June 2019. Koger moved for reconsideration,

and in September 2019, the district court again ruled for the

County but expanded its analysis. In short, the district court

determined that the three-book policy did not violate the First

Amendment and reiterated that Koger had not properly

pleaded a due process claim.

Once more this court affirmed in part and reversed in part.

Koger v. Dart, 950 F.3d 971 (7th Cir. 2020). As to the First

Amendment claim, we agreed with the district court that the

three-book policy is constitutionally valid. Id. at 974. But we

concluded that the district court should have evaluated

Koger’s due process claim. “Complaints plead grievances, not

legal theories,” so we remanded with instructions that the dis-

trict court consider the due process claim on its merits. Id. at

974, 976. With that, Koger returned to the district court a third

time—and lost on summary judgment a third time. After ad-

ditional proceedings on Koger’s due process claim, the dis-

trict court held, “Koger was on notice of the three-book rule

in the Handbook, was given multiple in-person warnings,

and had opportunities to divest himself of his excess books

through various means.” So even if the County was responsi-

ble for permanently depriving Koger of his books, he received

No. 22-1194 9

constitutionally adequate procedural protections. Koger

again sought reconsideration, but the district court denied his

motion. Orozco, as administrator of Koger’s estate, appealed

to this court.

II

Koger appeals from a grant of summary judgment to the

County, so our review is de novo. Barnes v. City of Centralia,

943 F.3d 826, 828 (7th Cir. 2019) (citing Tapley v. Chambers, 840

F.3d 370, 376 (7th Cir. 2016)). In analyzing the record, we con-

strue all facts and reasonable inferences in nonmovant

Koger’s favor. Id. Summary judgment is properly awarded

when “the admissible evidence shows that there is no genuine

issue as to any material fact and that the moving party is en-

titled to judgment as a matter of law.” Hanover Ins. Co. v. N.

Bldg. Co., 751 F.3d 788, 791 (7th Cir. 2014) (citing FED. R. CIV.

P. 56(c)). We will not grant summary judgment if a “dispute

about a material fact is ‘genuine,’ that is, if the evidence is

such that a reasonable jury could return a verdict for the non-

moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). But “[a] party who fails to produce evidence suffi-

cient to establish an element essential to that party’s case on

which they bear the burden of proof cannot survive a sum-

mary judgment challenge.” Stockton v. Milwaukee County, 44

F.4th 605, 614 (7th Cir. 2022) (citation omitted). 3

3 One additional procedural point: Koger and the County both moved

for summary judgment in the district court, but on appeal Koger does not

press his motion. Appellant’s Brief at 23 n.12. So, we exclusively analyze

the County’s motion and treat Koger as the nonmoving party throughout.

10 No. 22-1194

Koger brings his claim under 42 U.S.C. § 1983 which, in

relevant part, prohibits a person acting under the color of state

law from depriving a U.S. citizen of “any rights, privileges, or

immunities secured by the Constitution and laws” of the

United States. By way of his § 1983 claim, Koger alleges a vi-

olation of his Fourteenth Amendment due process rights. The

Due Process Clause of the Fourteenth Amendment requires

states to provide citizens with adequate procedural protec-

tions relative to certain deprivations, a violation of which is

actionable under § 1983. Zinermon v. Burch, 494 U.S. 113, 125

(1990). To establish a due process claim, Koger must show

two things: “(1) deprivation of a protected interest and (2) in-

sufficient procedural protections surrounding that depriva-

tion.” Tucker v. City of Chicago, 907 F.3d 487, 491 (7th Cir. 2018)

(quoting Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534

(7th Cir. 2008)).

A

Koger’s alleged protected interest here is a property inter-

est in his books, which he asserts the Jail unlawfully seized

and destroyed. We agree with Koger that he has a protected

interest in his books and, construing the facts favorably to

him, we assume for purposes of summary judgment that the

Jail deprived Koger of that protected property interest.

An interest in property is a protected interest for purposes

of procedural due process. Bd. of Regents of State Colleges v.

Roth, 408 U.S. 564, 569–70 (1972). Under normal circum-

stances, books plainly qualify as property. But the analysis is

more complex in the jail context. Per the Handbook, any

books in an inmate’s cell beyond the allotted three qualify as

contraband. The County points to this policy and argues that

inmates have no protectable property interest in items

No. 22-1194 11

deemed contraband. Koger disagrees on the impact of the pol-

icy, arguing that the contraband status of the books may limit

an inmate’s right to possess the excess reading materials in his

cell, but it cannot instantly extinguish an inmate’s property in-

terest in those materials. On this point, the district court found

a protectable property interest in the excess books, writing

that “the Seventh Circuit’s statements in this case foreclose

[the County’s] contention.”

We agree with the district court. Koger had a continuing

property interest in the books, even if the three-book policy

deems them contraband. The County’s position to the con-

trary does not square with our prior holding in Koger, 950 F.3d

at 975. There, the County argued “that the books (in excess of

three) were contraband, which public officials may seize and

destroy without notice, hearings, or compensation.” Id. In re-

sponse, we explained, “That proposition is far from clear:

That public officials call something contraband does not make

it so.” Id. Continuing, we recognized “Excess books may be a

kind of contraband, but only while in the cell.” Id. Unlike co-

caine or other banned substances, books are generally permit-

ted in public and in jail. Indeed, “Cook County acknowledges

that Koger could have mailed the books home an hour before

the search and that the outbound books would not have been

seized and destroyed.” Id. We also recognized that Illinois

“has adopted by statute a long list of items classified as con-

traband inside prisons,” but “[b]ooks are not on that list.” Id.

(citing 720 ILL. COMP. STAT. 5/31A-0.1). Therefore, Koger did

not lose a property interest in his books by virtue of having

too many of them.

United States v. Miller, 588 F.3d 418 (7th Cir. 2009), illumi-

nates this distinction. We found that case instructive in Koger,

12 No. 22-1194

950 F.3d at 975–76, and we continue to do so. There, the

United States charged Miller with a felony and seized his fire-

arms. Miller, 588 F.3d at 418. Upon conviction, Miller became

ineligible to possess his seized firearms, meaning the govern-

ment could not return them to him. Id. at 418–19. But the

government had also failed to timely pursue a forfeiture pro-

ceeding for the guns. Id. This created an impasse. The guns

could not go back to Miller, but the government was not enti-

tled to keep them either. The district court initially ordered

the weapons destroyed, but we reversed that decision. Id. at

419–20. Identifying several alternatives to destroying the

firearms or returning them to Miller, we held that “Miller’s

property interest in the firearms continues even though his

possessory interest has been curtailed.” Id. at 420.

In Koger, we drew a parallel. “What was true of Miller is

true of Koger too: he lost a possessory interest in the books by

keeping too many in his cell, but he did not automatically lose

his property interest.” Koger, 950 F.3d at 975. This remains

true. The Jail’s policy limited Koger’s possessory interest in

his books but could not immediately extinguish his property

interest in them. Still, “[p]roperty interests are created and de-

fined by state law,” so Illinois law could conceivably divest

Koger of a property interest in the excess books. United States

v. Knoll, 785 F.3d 1151, 1156 (7th Cir. 2015) (quoting Butner v.

United States, 440 U.S. 48, 55 (1979)). But the County identifies

no such law.

The County points to Webb v. Lane, a state appellate court

decision, but that case is neither controlling nor persuasive.

583 N.E.2d 677, 679 (Ill. App. Ct. 1991). In Webb, a prison

staffer discovered Webb with cash and confiscated it perma-

nently. Id. No Illinois statute defined cash in prison as

No. 22-1194 13

contraband, but a Department of Corrections regulation did.

Id. at 679, 683. The Illinois state court held that Webb had “no

protected property interest in the possession of unauthorized

currency,” so he could not prevail on a procedural due pro-

cess claim. Id. at 686.

Per the County, it follows from Webb that inmates lack a

property interest in contraband books. But two reasons per-

suade us that Webb’s holding does not apply here. First, the

prison regulation at issue in Webb dealt with currency, which

received special treatment under the prison’s rules. Id. at 679.

Per Department Rule 501.230, the prison treated unauthor-

ized currency differently than other excess property contra-

band. Id. Indeed, the prison rules stated that unauthorized

cash was to be permanently confiscated, but “other unauthor-

ized or excess property” not involving drugs, weapons, or al-

cohol could be shipped out of the prison or collected by an

outsider. Id. (citation omitted). Cash was thus unique within

the prison’s policy scheme, and Webb concerned only cash. We

do not read Webb to hold that inmates automatically lose a

property interest in an item just because a jail policy deems it

contraband. See Koger, 950 F.3d at 975.

Second, the prison regulation in Webb banned prisoners

from possessing currency. “Pursuant to Department Regula-

tion 504, possession of money is made a punishable of-

fense … .” Webb, 583 N.E.2d at 682 (citation omitted). Not so

for the books here. Inmates are entitled to have books in Cook

County Jail so long as they do not have more than three at any

given time in their cell. Therefore, Webb neither establishes

that Illinois jails may destroy anything deemed contraband,

nor does it hold that inmates have no property interest in ex-

cess books. We decline to change course from our earlier

14 No. 22-1194

opinion in this case. Koger continued to have a property in-

terest in his books, even after he accumulated more than

three. “We have seen before, and rejected, an argument that

items deemed contraband only because found in the wrong

hands may be summarily destroyed.” Koger, 950 F.3d at 975.

We again reject that contention here.

This holding does not end the first step of the due process

analysis, though. It is not enough for Koger to have a protect-

able property interest in the books. The County must have

deprived him of that interest. Koger contends that the Jail de-

stroyed or otherwise disposed of all his books and claims that

a gap in the County’s policies was the moving force behind

the deprivation. 4 In response, the County denies that Jail em-

ployees ever took Koger’s books. The County further argues

that—even if a deprivation occurred—the loss of property

cannot be attributed to a County policy or custom. As such,

the parties dispute what happened to the books and who is

responsible.

At the summary judgment stage, we “construe facts favor-

ably to the nonmoving party” and draw all reasonable infer-

ences in that party’s favor. Lox v. CDA, Ltd., 689 F.3d 818, 821

(7th Cir. 2012) (quoting Bagley v. Blagojevich, 646 F.3d 378, 388

(7th Cir. 2011)). Koger is the nonmoving party here, so we take

as true his contested assertion that the Jail personnel disposed

of all his books, depriving him of a protected interest in his

property.

4 When questioned at oral argument about what kind of policy Koger

alleges for purposes of municipal liability, counsel responded: “It’s a gap

in the policies where a policy was absolutely necessary.” Oral Arg. at 7:43–

48.

No. 22-1194 15

B

The next step in the due process analysis asks what pro-

cess the County afforded Koger and whether that process is

constitutionally adequate. We conclude that the County af-

forded Koger all the process he was due under the Constitu-

tion. Thus, even if a County policy caused the destruction of

Koger’s books, his claim fails.

As noted above, we assume at all times that Jail staff de-

stroyed Koger’s books. And when analyzing the process

Koger was given, we also temporarily assume that the County

is responsible for that deprivation. This extra assumption al-

lows us to isolate the procedural component of the due pro-

cess inquiry for now, though we return to the merits of

Koger’s municipal liability theory later.

A procedural due process claim requires the deprivation

of a protected interest and “insufficient procedural protec-

tions surrounding that deprivation.” Cannici v. Vill. of Melrose

Park, 885 F.3d 476, 479 (7th Cir. 2018) (quoting Michalowicz,

528 F.3d at 534). In other words, the bare fact that a state has

deprived someone of a protected interest is not inherently un-

constitutional. “[W]hat is unconstitutional is the deprivation

of such an interest without due process of law.” Zinermon, 494

U.S. at 125 (citation omitted). Therefore, we “ask what process

the State provided, and whether it was constitutionally ade-

quate.” Id. at 126.

1. Process Provided to Koger

We begin with the pre-deprivation process the County

provided. Koger received notice of the three-book policy in a

number of ways. All agree that the Jail provides inmates with

the Handbook, which expressly limits the number of non-

16 No. 22-1194

religious books or magazines that an inmate may have in his

cell to no more than three and defines excess books as a type

of contraband. We previously held that policy constitutional

in Koger. 950 F.3d at 974. Because Koger had access to the

Handbook and an opportunity to apprise himself of its rules,

he had constructive notice of the three-book policy. The

County also provided ancillary notice by way of its General

Orders. General Order 14.7 tells inmates “[i]tems in your pos-

session that have not been provided or approved by the

CCDOC will be considered contraband, confiscated and a

Disciplinary Report will be completed.”

Beyond paperwork, Koger received pre-confiscation no-

tice from Jail staff. Koger testified that before the deprivation

administrators told him “something along the lines of get rid

of any more books than three books because we’re coming to

take that stuff.” Koger was thus instructed prior to the depri-

vation that he needed to get rid of his extra books. That warn-

ing was not a dead letter, as Koger had several options at his

disposal for divesting himself of the books. Inmates are per-

mitted to purchase large envelops through the commissary

and use them to send outgoing mail. Koger always had

enough money in his inmate account to afford shipping sup-

plies, though Correctional Rehabilitation Workers can assist

with mailings for indigent inmates. Koger could have also

worked with a Correctional Rehabilitation Worker to organ-

ize a pickup of his personal property. The Handbook pro-

vides that “[Correctional Rehabilitation Workers] assigned to

[an inmate’s] living unit can help [inmates] with questions

about [their] … personal property.” The Handbook further

states “[Inmates] may authorize an individual to retrieve

[their] personal property.” An individual outside the Jail

No. 22-1194 17

could have traveled to the Jail and collected Koger’s books.5

Finally, Koger could have donated his surplus books to other

inmates. It is undisputed that inmates are permitted to give

away reading materials to other inmates.

Instead, Koger chose to retain his excess books after the

Jail staff warned him of the impending search and confisca-

tion. He saw no reason to get rid of his excess books because

they belonged to him. Like all inmates, Koger was entitled to

use the grievance process to seek redress, including post-dep-

rivation, if he believed that the Jail had mishandled his per-

sonal property. Koger wrote such a grievance but chose not to

submit it.

2. Constitutional Sufficiency of Provided Process

Having identified the process afforded to Koger, we next

decide whether it was constitutionally adequate. “Due pro-

cess, as [the Supreme Court] often has said, is a flexible con-

cept that varies with the particular situation.” Zinermon, 494

U.S. at 127. It only requires “such procedural protections as

the particular situation demands.” Grant v. Trs. of Ind. Univ.,

870 F.3d 562, 571 (7th Cir. 2017) (quoting Riano v. McDonald,

833 F.3d 830, 834 (7th Cir. 2016)). And “[t]he essential require-

ments of due process … are notice and an opportunity to

5 In the district court, Koger argued that the portion of the Handbook

authorizing release of property to individuals outside the Jail pertains

only to property “a detainee is required to relinquish upon being pro-

cessed into the jail,” and not “property that inmates may possess in their

cells,” such as books. But the relevant portion of the Handbook states,

without limitation, “You may authorize an individual to retrieve your per-

sonal property.” At least two witnesses also testified that property, like

books, can be released to people outside the Jail. Koger offers no contrary

evidence.

18 No. 22-1194

respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546

(1985).

The County claims the process that was provided to Koger

is constitutionally adequate. Koger disagrees, primarily argu-

ing that the County owed him additional process between the

confiscation of his books and their destruction. Relatedly,

Koger asserts that the County’s policy “creates a high risk of

erroneous deprivations” because of the discretion it grants to

correctional officers” For Koger, that risk is in tension with

Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976), and could be

remedied without great burden on the Jail. The district court

sided with the County, finding that Koger received all the

process he was due under the Fourteenth Amendment.

The factors in Mathews guide our inquiry into whether the

County provided constitutionally sufficient process. 6 See

Simpson v. Brown County, 860 F.3d 1001, 1006 (7th Cir. 2017)

(“The general test for determining what process is due and

when was set out in Mathews … .”). Those three factors are:

First, the private interest that will be affected by

the official action; second, the risk of an errone-

ous deprivation of such interest through the

procedures used, and the probable value, if any,

of additional or substitute procedural safe-

guards; and finally, the Government’s interest,

6 Koger’s argument that different interest types (i.e., possessory ver-

sus property) necessarily “demand different types of process” slices the

due process inquiry too thinly. Due process requires contextualized, flex-

ible analysis, and Koger cites no authority supporting a strict differentia-

tion between process due for possessory and property interests. See Mor-

rissey v. Brewer, 408 U.S. 471, 481 (1972). So, we fully examine the process

surrounding Koger’s deprivation.

No. 22-1194 19

including the function involved and the fiscal

and administrative burdens that the additional

or substitute procedural requirement would en-

tail.

Mathews, 424 U.S. at 335.

The parties offer competing applications of those factors.7

The County chiefly suggests that the risk of erroneous depri-

vation under the approach it took in Koger’s case is minimal.

Koger responds that the County’s chosen procedures confer

too much discretion on the Jail staff, risking erroneous depri-

vation.

Mathews Factor One. We agree with Koger that the perma-

nent deprivation of personal property, such as books, is a se-

rious private interest, so we conclude that the first Mathews

factor weighs in Koger’s favor.

Mathews Factor Two. This case’s outcome revolves largely

around the second factor—the risk of erroneous deprivation

through the procedures used, and the probable value of addi-

tional or substitute procedural safeguards. Id. This factor has

two components. As to the risk of erroneous deprivation un-

der the County’s procedure, we conclude that the risk is

7 The County contends Koger waived his ability to argue the Mathews

factors, but we disagree. The Mathews factors guide the inquiry into what

process is due. See Mathews, 424 U.S. at 335 (explaining that “identification

of the specific dictates of due process generally requires consideration of

three distinct factors”). At the summary judgment stage, Koger repeatedly

argued that he was not given adequate process and cited directly to

Mathews twice. “Waiver doctrine rests on concerns about fair notice and

the proper roles of the trial and appellate courts in our adversarial sys-

tem.” Johnson v. Prentice, 29 F.4th 895, 903 (7th Cir. 2022). We have no such

concerns here given the briefing in the district court.

20 No. 22-1194

minimal. The County notified Koger upon his arrival to the

Jail that he was allowed to have three books in his cell. This

warning was given in the Handbook as well as the Jail’s Gen-

eral Orders. Koger was thus on notice that he would be taking

a risk by accumulating more than three books in his cell; he

had an opportunity at the start to comply with the policy and

to avoid all chance of deprivation. The County also notified

Koger again before taking his excess texts. When this notice

occurred is unclear, but it came days in advance of the search.

At that point, Koger once more had an opportunity to comply.

He could have mailed the books out, given them away to

other inmates, or arranged to have someone pick them up. He

chose not to pursue any of those options.

Koger then had post-deprivation remedies at his disposal.

Per the Inmate Request and Grievance Procedures, he could

have filed the grievance that he drafted but chose not to do so.

And even if Koger was soon to be released from custody, he

might have found relief. Indeed, one of Koger’s fellow

inmates reported getting back some of his books after com-

plaining to Jail staff. Koger is responsible for utilizing the pro-

cedures the Jail provides. “The availability of recourse to a

constitutionally sufficient administrative procedure satisfies

due process requirements if the complainant merely declines

or fails to take advantage of the administrative procedure.”

Dusanek v. Hannon, 677 F.2d 538, 542–43 (7th Cir. 1982).

Moving to the second component of Mathews factor two,

Koger repeatedly contends he was due additional process be-

tween the confiscation of his books and their destruction. He

urges that the County should have given him a post-confisca-

tion opportunity to relocate his books as well as post-confis-

cation notice that the books would be destroyed if he did not

No. 22-1194 21

act. But mandating such a process would essentially repeat

the procedure already provided. As Koger points out, “the

opportunity to comply means having procedures in place that

gives inmates a fair chance to discard their books in a manner

that will not result in their permanent deprivation.” That is

precisely the opportunity the County afforded Koger.8 The

advance notice of the three-book policy, the in-person notice,

and the availability of the grievance procedure were constitu-

tionally adequate. Any additional policy would be

duplicative, so the probable value, if any, of further or substi-

tute procedural policies that might prevent erroneous depri-

vation is low. Mathews, 424 U.S. at 335.

This is also not a case where a procedure of a different

kind—such as a hearing—would have been necessary. That

Koger had excess books was obvious. That the excess books

qualified as contraband was apparent to everyone, including

Koger, who had the most opportunity to resolve the situation.

Additional or different procedural safeguards were not con-

stitutionally required.

Mathews Factor Three. This factor, which examines the gov-

ernment’s interest, id., also favors the County. If the Jail were

to implement a system of post-confiscation, pre-destruction

process, it would unavoidably entail additional administra-

tive oversight and expense. The Jail would need to organize a

system for storing confiscated reading materials, dedicate

space to the storage, and assign staff to catalogue and date the

8 Koger says the verbal pre-deprivation warning came too late to give

him a “realistic opportunity to protect himself from the summary destruc-

tion of his books.” But this assertion ignores the initial notice all inmates

are given of the three-book policy in the Handbook and the fact that Koger

never tried to divest himself of the excess books.

22 No. 22-1194

confiscated books. This all detracts from the Jail’s core func-

tion of maintaining safety and security. So, under Mathews,

Koger received constitutionally adequate process.

This circuit’s case law on procedural due process leads to

the same conclusion as the Mathews factors. We begin with

Forbes v. Trigg, 976 F.2d 308 (7th Cir. 1992). There, an inmate

was assigned to work in the Officer’s Barber Shop, a voca-

tional learning shop in the Indiana Youth Center facility. Id. at

310. Per prison rules, inmates working at the Barber Shop

were subject to urine tests for drugs. Id. Prison officials main-

tained that Forbes received a copy of that rule and was ver-

bally informed of it. The rule was also posted on a bulletin

board near his workstation. Id. at 310, 313. Still, when the time

came for a test, Forbes refused. Id. at 310. Forbes was sanc-

tioned for his conduct, and he challenged those sanctions as a

procedural due process violation. Id. at 311–12. Discussing the

constitutional requirements of due process, this court ex-

plained that “fastidious notice procedures are not required in

order for the prison to enforce its officers’ verbal orders.” Id.

at 314 (citing Meis v. Gunter, 906 F.2d 364, 366 (8th Cir. 1990)).

From there, this court explained that if a prisoner is sanc-

tioned for a rule of which he has no notice and opportunity to

comply, then there might be a procedural due process viola-

tion. Id. In highlighting that point, this court provided a hy-

pothetical based on a similar three-book policy:

[If the prison] makes it an offense for an inmate

to have in his cell more than three books, and if

an inmate, not knowing of the [rule], has four

books in his cell, and if an officer, upon discov-

ering the four books, institutes disciplinary pro-

ceedings against the inmate without first

No. 22-1194 23

informing him of the three-book limit and giv-

ing him a chance to get rid of the fourth book,

obviously problems of due process arise.

Id. (quoting Meis, 906 F.2d at 367). But Forbes “ha[d] not been

subject to th[at] kind of draconian handling,” so this court

identified no due process violation based on insufficient no-

tice. Id.

We recognize that Forbes dealt with sanctions and not the

deprivation of personal property, but the decision is still in-

structive on what notice is constitutionally due. If Koger was

either not warned of the three-book policy or not given ade-

quate opportunity to relocate his books, then a procedural

due process issue might lie. But Koger received both—he re-

ceived notice at least twice, and he was afforded means of re-

locating his books. Accordingly, this case does not present the

risk of a due process violation like that envisioned in the

Forbes hypothetical.

Streckenbach v. Vandensen, 868 F.3d 594, 596 (7th Cir. 2017),

examines a prison’s property release policy and notice proce-

dures, and further suggests that Koger received adequate no-

tice before the Jail took his books. There, a Wisconsin prison

policy directed that an inmate could place personal property

on deposit with prison staff, to be collected within 30 days. Id.

If no one outside the prison collected the property within that

window, prison staff would ship the property to the inmate’s

chosen designee at the inmate’s expense. If the inmate lacked

funds adequate to cover shipping, staff would destroy the

property. Id. The prison notified the inmates of that policy in

two ways. First, it was posted on a bulletin board. Id. at 596,

598. Second, prison staff would inform the inmate at time of

drop off how much the shipping would cost. Id. at 598. The

24 No. 22-1194

inmate was given no additional notice before the property de-

struction. Id. at 596. Streckenbach put his property on deposit,

and the prison—following the policy—ultimately destroyed

it. Id. Streckenbach challenged the policy on due process

grounds, claiming that the prison should have provided him

additional notice, especially between the end of the 30-day pe-

riod and the destruction of his property. Id. at 596, 598. On

review, this court observed:

[T]he 2013 policy cannot be condemned on the

ground that it authorizes property to be de-

stroyed without notice. The policy itself pro-

vides for notice—both general notice by posting

and specific notice by calculating shipping costs

when property is received for pickup. That it

does not provide for a third notice (after the 30

days have lapsed) does not call its validity into

question. Notice matters only when there are

choices to be made.

Id. at 598.

Similar reasoning applies here, because Koger received

notice when he had a choice to make. Even setting aside the

Handbook, the County notified Koger days in advance of the

search that staff would soon take any excess books. At that

point, Koger knew all relevant information. He could get his

books out of the Jail via mail or pickup, or he could give them

to other inmates. Koger chose none of those options, explain-

ing “There was no reason for me to get rid of the books.” As

in Streckenbach, the Constitution does not require notice be-

yond that which the County already provided.

No. 22-1194 25

Finally, Conyers v. City of Chicago, 10 F.4th 704 (7th Cir.

2021), cert denied, 142 S. Ct. 1669 (2022), provides a guidepost

for what notice is constitutionally required prior to a property

deprivation. In Conyers, this court reviewed a City of Chicago

policy that requires officers to confiscate certain property

from arrestees. Id. at 706. If that property is not claimed within

30 days, the City deems it abandoned and either sells or de-

stroys it. Id. The plaintiffs in Conyers argued that they received

insufficient notice of the policy and the destruction deadline.

Id. at 708. At the time, the City’s policy for providing notice

was to give each detainee an inventory receipt, which “in-

cluded a short note that explained the governing procedures”

and “informed the arrestee that he or she should have re-

ceived another form entitled ‘Notice to Property Owner or

Claimant.’” Id. at 707. The receipt also told detainees that they

could obtain a complete copy of the policy on the Chicago Po-

lice Department website or in person at the Chicago Police

Department facility. Id. Examining that notice framework, we

identified no due process violation based on inadequate no-

tice. Id. at 714–15. Here, Koger received even more personal-

ized and meaningful notice of the three-book policy.

In addition to notice, Koger had an adequate chance to

protect his property interest. Kelley-Lomax v. City of Chicago, a

recent decision of ours, is instructive on this point. 49 F.4th

1124 (7th Cir. 2022). There, we again examined a City of Chi-

cago policy for handling arrestee property (apparently the

same policy at issue in Conyers). Id. at 1124–25. Under the

City’s rules, detainees were afforded 30 days to reclaim the

property taken from them at time of booking. Id. at 1124. Oth-

erwise, “Property remaining in the City’s hands after 30 days

is sold or thrown away.” Id. Our decision in Kelley-Lomax pri-

marily scrutinized Fourth Amendment and substantive due

26 No. 22-1194

process considerations, but it also addressed procedural due

process. Id. at 1125. On that point, we repeated that “[t]he Due

Process Clause requires notice and an adequate opportunity to

protect one’s interests,” and recognized that the 30-day policy

is perhaps too short for detainees to get their property back.

Id. But we also concluded that “a longer time did not matter

to Kelley-Lomax,” because he did not try to retrieve his prop-

erty during his entire six months in custody. Id. Thus, the 30-

day limitation was immaterial to him. Though perhaps the

property-collection period was short, and “may matter to

other detainees,” it did not matter to Kelley-Lomax. Id. Kelley-

Lomax highlights that an aggrieved party’s own actions play

a part in the due process analysis.

There are similarities between that reasoning and this

case. Koger contends the County did not give him a fair

chance to protect his property. He claims he had insufficient

time to properly relocate his excess books. But, as with the

plaintiff in Kelley-Lomax, Koger did nothing to protect his in-

terest in the books. It is not as if Koger was scrambling to re-

locate his books and simply ran out of time. He decided to

retain his books in contravention of the Jail’s noticed policy:

“[T]hey were my books. There was no reason for me to get rid

of the books.”

Koger received adequate process surrounding the depri-

vation of his books, so the County is entitled to summary

judgment. The district court correctly reached the same con-

clusion.

III

Though Koger’s claim fails based on the due process anal-

ysis above, summary judgment for the County is appropriate

No. 22-1194 27

for another reason—Koger falls short of demonstrating mu-

nicipal liability. Oddly, Koger’s briefing neither cites to Monell

nor comprehensively explains his theory of municipal liabil-

ity. But we interpret his arguments as an attempt to establish

municipal liability through a “gap in policy” theory. He

agrees that “the jail did not have any formal policy (written or

unwritten) regarding what is to be done with books confis-

cated pursuant to the jail’s three-book/magazine policy,” and

argues that such an omission subjects the Jail to liability.

Namely, Koger asserts that “written policies were and are

necessary here because they are a protection against willy-

nilly destruction of inmates’ personal property.” By refusing

to implement a policy on how confiscated books were to be

handled, Koger believes the Jail “create[d] a serious risk that

inmates will be deprived of their property without due pro-

cess.” The County disputes municipal liability, contending

Koger identifies no actionable policy or custom and falls short

of proving fault and causation.

In our evaluation of Koger’s procedural due process claim

above, we assumed that Koger suffered a deprivation and that

the County caused it. Now that we turn to the question of mu-

nicipal liability, our inferences change. Because of the proce-

dural posture, we continue to assume that Jail staff destroyed

Koger’s books in the manner alleged. But at this point we no

longer take for granted that the County is responsible for the

loss of Koger’s books; instead, we examine the record for evi-

dence that the culpable Jail staff acted pursuant to a Monell

“policy or custom.”

Because Koger is suing a municipality, it is not sufficient

for him to merely demonstrate a valid due process violation.

He must go a step further and show the municipality itself is

28 No. 22-1194

liable for the harm he suffered. Monell, 436 U.S. at 690–91, 694.

Municipalities are suable “persons” for purposes of § 1983,

but they may only be held liable for their own wrongs. Id. at

690. As such, a municipality is not vicariously liable for the

conduct of its employees. Bd. of Cnty. Comm’rs of Bryan Cnty.

v. Brown, 520 U.S. 397, 403 (1997) (“We have consistently re-

fused to hold municipalities liable under a theory of re-

spondeat superior.”). Indeed, “a local government may not be

sued under § 1983 for an injury inflicted solely by its employ-

ees or agents. Instead, it is when execution of a government’s

policy or custom … inflicts the injury that the government as

an entity is responsible under § 1983.” Monell, 436 U.S. at 694.

So, “The central question is always whether an official policy,

however expressed … caused the constitutional deprivation.”

Glisson v. Ind. Dep’t of Corr., 849 F.3d 372, 379 (7th Cir. 2017)

(en banc).

We have identified “three requirements to establish a Mo-

nell claim—policy or custom, municipal fault, and ‘moving

force’ causation.” Bohanon v. City of Indianapolis, 46 F.4th 669,

676 (7th Cir. 2022). Starting with policy or custom, three kinds

of municipal action support Monell liability: “(1) an express

policy that causes a constitutional deprivation when enforced;

(2) a widespread practice that is so permanent and well-set-

tled that it constitutes a custom or practice; or (3) an allegation

that the constitutional injury was caused by a person with fi-

nal policymaking authority.” Id. at 675 (quoting Spiegel v.

McClintic, 916 F.3d 611, 617 (7th Cir. 2019). Plus, “[i]naction

can also give rise to liability if it reflects the municipality’s

‘conscious decision not to take action.’” Id. (quoting Glisson,

849 F.3d at 381).

No. 22-1194 29

In addition to a policy or custom, a Monell plaintiff must

also show municipal fault. Id.; Bryan County, 520 U.S. at 404.

This requirement is “easily established when a municipality

acts, or directs an employee to act, in a way that facially vio-

lates a federal right.” Bohanon, 46 F.4th at 675 (citation omit-

ted). But a plaintiff’s route becomes more difficult when he

alleges only “that the municipality caused an employee to vi-

olate a federal right.” Id. “Where a plaintiff claims that the

municipality has not directly inflicted an injury, but nonethe-

less has caused an employee to do so, rigorous standards of

culpability and causation must be applied to ensure that the

municipality is not held liable solely for the actions of its

employee.” Bryan County, 520 U.S. at 405. Under those circum-

stances, “[t]he plaintiff must demonstrate that the municipal-

ity itself acted with ‘deliberate indifference’ to [the plaintiff’s]

constitutional rights.” Bohanon, 46 F.4th at 675 (quoting Bryan

County, 520 U.S. at 407); see also Taylor v. Hughes, 26 F.4th 419,

435 (7th Cir. 2022). This is a high bar. As the Supreme Court

explains, “‘[d]eliberate indifference’ is a stringent standard of

fault, requiring proof that a municipal actor disregarded a

known or obvious consequence of his action.” Connick v.

Thompson, 563 U.S. 51, 61 (2011) (quoting Bryan County, 520

U.S. at 410).

Finally, a plaintiff seeking to hold a municipality liable

must show causation. “That is, a plaintiff must show that the

municipal action was taken with the requisite degree of cul-

pability and must demonstrate a direct causal link between

the municipal action and the deprivation of federal rights.”

Bryan County, 520 U.S. at 404; Bohanon, 46 F.4th at 675 (“[A]

plaintiff bringing a Monell claim must prove that the munici-

pality’s action was the ‘moving force’ behind the federal

rights violation.”) (citation omitted).

30 No. 22-1194

With that, we turn to municipal liability in Koger’s case.

Koger points to the three-book policy as causing him injury

and giving rise to municipal liability. But we have already

held the policy constitutional, Koger, 950 F.3d at 974, so Koger

cannot claim that the County’s “affirmative municipal action

is itself unconstitutional.” J.K.J. v. Polk County, 960 F.3d 367,

377 (7th Cir. 2020) (en banc). Instead, Koger must travel the

more difficult liability route and show that the “municipality

caused an employee to violate a federal right.” Bohanon, 46

F.4th at 675. For that, Koger turns to a “gap in policy” liability

theory. Koger suggests that—by creating the three-book pol-

icy without any accompanying instructions for how officers

are to deal with confiscated books—the County was deliber-

ately indifferent to the constitutional property rights of Jail in-

mates. “The door is left open for guards to do whatever they

want with inmates’ property,” says Koger.

As indicated, “municipal liability can be premised, as

here, on municipal inaction, such as ‘a gap in express poli-

cies.’” Id. at 676 (quoting Daniel v. Cook County, 833 F.3d 728,

734 (7th Cir. 2016)). Indeed, a municipality can be held liable

when it “has knowingly acquiesced in an unconstitutional re-

sult of what its express policies have left unsaid.” Taylor, 26

F.4th at 435 (citation omitted); see also Daniel, 833 F.3d at 734

(“An unconstitutional policy can include both implicit policies

as well as a gap in expressed policies.”) (citation omitted). Yet

while “gap in policy” liability is possible, it entails unique

concerns and stringent requirements. We have cautioned “the

path to Monell liability based on inaction is steeper because,

unlike in a case of affirmative municipal action, a failure to do

something could be inadvertent and the connection between

inaction and a resulting injury is more tenuous.” J.K.J., 960

F.3d at 378; see also Calhoun v. Ramsey, 408 F.3d 375, 380 (7th

No. 22-1194 31

Cir. 2005) (“At times, the absence of a policy might reflect a

decision to act unconstitutionally, but the Supreme Court has

repeatedly told us to be cautious about drawing that infer-

ence.”). So, “[a] gap in policy ‘amounts to municipal action for

Monell purposes only if the [municipality] has notice that its

program will cause constitutional violations.’” Bohanon, 46

F.4th at 676 (quoting J.K.J., 960 F.3d at 379). “Demonstrating

that notice is essential to an ultimate finding and requires a

‘known or obvious’ risk that constitutional violations will oc-

cur.” J.K.J., 960 F.3d at 379–80 (citing Bryan County, 520 U.S. at

410).

This means Koger must show the County had notice that

its gap in policy would cause constitutional violations and

was deliberately indifferent to that risk. Bohanon, 46 F.4th at

675. Koger can demonstrate the requisite notice in either of

two ways. He can show a pattern of constitutional violations

such that the County was put on notice of the constitutional

harm its gap in policy was causing. Id. at 676–77; see also J.K.J.,

960 F.3d at 380 (“In many Monell cases notice requires proof

of a prior pattern of similar constitutional violations.”) (cita-

tion omitted). Or he can show that the risk of a constitutional

violation under the County’s existing three-book policy was

so high as to be obvious. J.K.J., 960 F.3d at 380 (“[A] risk of

constitutional violations can be so high … that the municipal-

ity’s failure to act can reflect deliberate indifference and allow

an inference of institutional culpability, even in the absence of

a similar prior constitutional violation.”).

Option one is closed to Koger, as there is no record evi-

dence showing an actionable pattern of similar constitutional

violations. The testimony and declarations in the record show

the three-book policy was rarely enforced and offer no

32 No. 22-1194

evidence of repeated book or magazine destruction. See, e.g.,

Martinez Declaration (“During my time at the jail, I have only

rarely seen this rule enforced against inmates.”); Collins Dec-

laration (“I have only heard of a three-book-or-magazine rule

being enforced three times in the years I have been in the Cook

County Jail.”); Washington Declaration (“I have only heard of

the three-book rule on one other occasion in early 2014 … .

However, no one confiscated extra books or magazines at that

time.”); Roman Declaration (“In my whole time at the jail, I

have seen the rule enforced three times … .”). Sergeant Giunta

likewise testified that enforcement of the policy is rare. When

asked how many times he has enforced the three-book rule,

he answered, “Maybe three or four times in the last two

years.”

Koger thus presents evidence of the County enforcing the

policy just a few times in a multi-year span, let alone book or

magazine destruction. This evidence does not, as a matter of

law, establish municipal notice via a pattern. See Connick, 563

U.S. at 62 (rejecting evidence of four Brady violations in ten

years as insufficient to put the prosecutor’s office on notice

that extra training was needed to avoid constitutional viola-

tions); see also Hildreth v. Butler, 960 F.3d 420, 430 (7th Cir.

2020) (examining the related question of how many violations

are necessary to establish an unconstitutional municipal cus-

tom and holding that three potential violations over nineteen

months “does not establish a widespread custom or prac-

tice”). 9

9 We note also that Koger does not pursue a municipal liability theory

based on repeated constitutional violations. He acknowledges that he

No. 22-1194 33

That leaves Koger with option two—demonstrating that

the risk of unconstitutional property deprivation under the

County’s policies was so high as to be obvious. J.K.J., 960 F.3d

at 380. Here, too, Koger comes up short. Qualifying circum-

stances under this doctrine are rare, and this is not one of

those cases. See Bohanon, 46 F.4th at 677 (explaining that the

range of cases “where notice can be inferred from the

obviousness of the consequences of failing to act” is narrow)

(citation omitted). It was not “blatantly obvious” that imple-

menting the three-book policy without providing additional

guidance to correctional officers would result in constitu-

tional violations. Id. Without more, the bare fact that a policy

authorizes confiscation does not create an imminent risk that

Jail staff will unconstitutionally destroy that property. We

also emphasize it is not sufficient for Koger to show that a pol-

icy could conceivably or potentially lead to a constitutional

violation. See Bryan County, 520 U.S. at 410–11 (explaining that

municipal inaction that merely makes “a violation of rights

more likely” cannot alone show liability). A constitutional vi-

olation must be a “blatantly obvious” consequence of inaction

for single-incident liability, Bohanon, 46 F.4th at 677, and

Koger cannot make that showing here.

This case closely resembles Bohanon, where we reviewed a

§ 1983 claim built around a gap in policy liability theory. 46

F.4th at 676–77. There, two off-duty officers were celebrating

at a bar when patron Bohanon got into an altercation with a

bartender. Id. at 671–72. Though the officers had been drink-

ing, they identified themselves as law enforcement and inter-

vened. Id. at 672–73. The officers badly beat Bohanon and

“does not make a widespread practice claim in this case.” Appellant Reply

Br. at 5.

34 No. 22-1194

allegedly robbed him. Id. Bohanon sued the officers and the

City of Indianapolis. Id. at 674. The City’s policies generally

prohibited intoxicated officers from performing law enforce-

ment functions but contained a narrow exception allowing

them to do so in an “extreme emergency situation[].” Id. at

672, 676. Bohanon seized on the emergency exception, argu-

ing that “‘gap’ in the policy led to the ‘highly predictable’ out-

come of his assault.” Id. at 676. For Bohanon, “any exception

permitting off-duty officers to take police action with alcohol

in their blood demonstrates that the City was deliberately in-

different to the obvious risk of constitutional violations based

on police use of excessive force.” Id. Yet all agreed that no sim-

ilar incident had ever happened before, so Bohanon had to

establish single-incident liability. Id. at 677.

We held that the City was not liable as a matter of law,

concluding that Bohanon could show neither municipal lia-

bility nor causation. Id. at 677. On the former point, we deter-

mined that “the City’s substance-abuse policy did not present

a policy ‘gap’ that made it glaringly obvious that off-duty of-

ficers would use excessive force.” Id. at 672. To the contrary,

“[n]othing about the text of [the policy] alone put the City on

notice that constitutional violations of this kind were likely to

occur.” Id. at 677. The same reasoning applies here. The three-

book policy did not present a glaring risk of constitutional

violation such that the Jail should have been on notice of im-

pending harm even with no pattern of past violations. The

summary destruction of inmate reading materials does not

naturally and imminently follow from the three-book policy.

Because Koger does not demonstrate municipal fault, a re-

quired element, we decline to weigh in on causation. Id. at 676.

No. 22-1194 35

IV

Procedural due process is “flexible and calls for such pro-

cedural protections as the particular situation demands.”

Morrissey, 408 U.S. at 481. The flexibility of procedural due

process “is a recognition that not all situations calling for pro-

cedural safeguards call for the same kind of procedure.” Id.

The County afforded Koger constitutionally adequate proce-

dure given the context. “The essential requirements of due

process … are notice and an opportunity to respond.”

Loudermill, 470 U.S. at 546. Koger had the benefit of both. He

had notice. The County notified Koger of the three-book pol-

icy upon his entry to the Jail. Jail administrators then pro-

vided additional warning that they were soon coming to take

Koger’s excess books. Koger had an opportunity to respond.

He could have mailed his books out of the Jail, had them

picked up, or given them away. Koger elected not to act.

Koger could have also filed a grievance but decided against it.

Therefore, even if the County is responsible for depriving

Koger of his books as alleged, we find no constitutional viola-

tion.

We also conclude that Koger cannot establish municipal

liability even if his procedural due process claim were sound.

He complains of a gap in the County’s policies but provides

evidence of only a single possible constitutional violation.

With no evidence of a pattern of similar constitutional viola-

tions, this court is left having to infer that the severity of the

policy gap itself put the County on notice. We decline to hold

that the three-book policy is the type of policy that makes a

constitutional violation blatantly obvious.

For these reasons, the judgment of the district court is

AFFIRMED.