subject to protection, or 2) constitutes a protected access to employment.
Assuming a property interest exists, an issue we do not decide today, a deprivation may occur in one of two ways: 1) as a random, unauthorized act by a state employee, or 2) as the result of some established state procedure. We believe the acts alleged here to be an example of the former: taking the acts as true, Mr. Allebrand may have violated the provisions of the state statute by appointing someone from outside the three top positions on the eligibility list. Since the alleged violation did not result from the state system itself, we must next consider whether the methods of redress available within the state satisfy the requirements of the due process clause. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982).
A plaintiff establishes a violation of § 1983 only if the remedies available within the state do not comport with the requirements of due process, since, under the rule of Parratt v. Taylor, supra, a deprivation of property does not rise to the level of a constitutional violation so long as the state provides a forum within which redress may be had.
Here, the Plaintiff has alleged an unauthorized failure of state agents to follow prescribed procedures. See Cohen v. City of Philadelphia, 736 F.2d 81, 84 (3d Cir. 1984). We believe that Plaintiff clearly has redress in the state courts of Pennsylvania. E.g. McKelvey v. Colonial School Dist., 22 Pa. Commwlth 207, 348 A.2d 445 (1975). Substantive mistakes or deprivations such as those alleged here do not create a federal claim so long as correction is available in the state's courts. Cohen v. City of Philadelphia, 736 F.2d 81, 86 (3d Cir. 1984).
In Cohen, the Court of Appeals for the Third Circuit emphasized, as has the Supreme Court, that its holding does not constitute an exhaustion requirement. Id. at 86-87. Rather, the deprivation itself simply does not exist unless there has been a denial of due process under state procedures. Here, there is no claim that Plaintiff did not have access to the state courts, that Mr. Allebrand was acting according to a state policy in denying Plaintiff a position as a teacher, or that the state eligibility system is itself constitutionally defective or insufficient. We believe the rule of Parratt v. Taylor and Cohen v. City of Philadelphia bars action in this court, and will, therefore, grant the Defendant's motion for summary judgment without prejudice to Plaintiff, of course, to seek redress in the appropriate Pennsylvania forum.
AND NOW, to-wit, this 4th day of December, 1984, having considered Plaintiff's and Defendants' cross motions for summary judgment and having heard oral argument, it is hereby ORDERED, ADJUDGED and DECREED that Defendants' Motion for Summary Judgment be and hereby is GRANTED without prejudice, and that Plaintiff's Motion for Summary Judgment be and hereby is DENIED.
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