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Tucker v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

November 4, 2016

NANETTE TUCKER, Plaintiff,
v.
CITY OF CHICAGO, a Municipal Corporation, and SONYA CAMPBELL, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN W. DARRAH UNITED STATES DISTRICT COURT JUDGE

         On February 2, 2016, Plaintiff filed a Complaint against the City of Chicago and Sonya Campbell, alleging violations of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Defendants filed a Motion to Dismiss [12] the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief can be granted. For the reasons discussed below, Defendants' Motion to Dismiss [12] is granted.

         BACKGROUND

         The following factual allegations are drawn from the Complaint filed by Plaintiff Nanette Tucker and are accepted as true for purposes of the Motion to Dismiss. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010). On February 3, 2015, Plaintiff purchased a vacant plot of land located at 6132 S. Bishop in Chicago. (Compl. ¶¶ 16, 19.) On December 4, 2015, Plaintiff received a Notice of Violation (“NOV”). Id. ¶¶ 2, 16, 18, 22-24. The NOV was based on a June 3, 2015 inspection of Plaintiff's vacant lot and indicated that “weeds are greater than 10 inches in height, ” violating Chicago Municipal Ordinance § 7-28-120(a) (“Ordinance”). Id. ¶¶ 16, 22-24. The NOV was signed by an inspector from the City of Chicago Department of Streets and Sanitation, Sonya Campbell. Id. ¶¶ 2, 18, 23-24. The Ordinance provides that “any person who owns or controls property within the city must cut or otherwise control all weeds on such property so that the average height of such weeds does not exceed ten inches.” Municipal Code of Chicago § 7-28-120(a).

         Plaintiff filed a written request for a hearing to contest the NOV before an administrative law judge (“ALJ”) of the City's Department of Administrative Hearings (“DOAH”). Id. ¶ 27. The DOAH held a hearing on December 29, 2015. Id. ¶ 28. At the hearing, the City of Chicago (the “City”) presented as evidence the sworn NOV issued by Campbell and photographs taken by Campbell of the property at the time of the inspection in June. Id. ¶¶ 28-30. Plaintiff was represented by counsel at the hearing. Id. ¶ 31. Her attorney argued that the City ignored the average height requirement of the Ordinance and delayed issuing the NOV in violation of Plaintiffs due-process rights. Id. The hearing officer found that the City prevailed and entered a finding of liability against Plaintiff due to “uncut weeds” and assessed a fine of $600 plus $40 in costs. Id. ¶¶ 32-33.

         Plaintiff asserts several claims pursuant to 42 U.S.C. § 1983. Count I is a claim against Campbell “in her individual/personal capacity” for arbitrarily issuing the NOV in violation of the Fifth and Fourteenth Amendments. Id. ¶¶ 18, 41-42. In Count II, Plaintiff alleges that her due-process rights were violated because “the phrase ‘average height of such weeds' is completely ignored in all aspects of the enforcement process, affecting and infecting the prosecution of every case involving the Chicago Weeds Ordinance.” Id. ¶ 44. In support of this allegation, Plaintiff alleges that Campbell “made no attempt to determine the average height of weeds on [her] property, thereby violating Plaintiffs due-process rights through issuance of [an NOV] not authorized by written law.” Id. ¶ 25.

         In Count III, Plaintiff alleges that her due-process rights were also violated by “the failure to timely serve [the NOV], ” affecting her ability “to prepare a defense to such charges.” Id. ¶ 47. She alleges that “[d]ue to the passage of time . . . Plaintiff was actually prejudiced in her ability to investigate the facts related to the alleged violation and in her ability to make any measurements of the average height of the vegetation on her lot at or near to the time of the inspection.” Id. ¶ 26. Finally, Count IV, labeled “Failure to Train, ” attributes the alleged due-process violations to the City's failure to train its employees in the proper enforcement of the Ordinance. Id. ¶¶ 50-53.

         LEGAL STANDARD

         Rule 12(b)(6) permits a defendant to move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, a complaint must allege facts that make it plausible for the defendant to be held liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. Id. at 679. When evaluating a Rule 12(b)(6) motion, the complaint's well-pleaded factual allegations are accepted as true, and all reasonable inferences are drawn in the plaintiff's favor. Twombly, 550 U.S. at 555-56.

         ANALYSIS

         Count I - Due-Process Claim Against Campbell

         Count I of the Complaint alleges a section 1983 claim against Campbell for failing to timely serve the NOV. Defendants argue that Count I against Campbell in her personal capacity should be dismissed under the doctrine of qualified immunity.

         A plaintiff may bring a section 1983 claim against a government actor in the actor's official capacity or in his individual capacity. See Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir. 1991). However, the qualified immunity doctrine “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). The doctrine balances “two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555 U.S. at 231.

         “[A] complaint may be dismissed under Rule 12(b)(6) on qualified immunity grounds where the plaintiff asserts the violation of a broad constitutional right that had not been articulated at the time the violation is alleged to have occurred. In that case . . . a court may properly address this purely legal question under Rule 12(b)(6).” Jacobs v. City of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000). See also Landstrom v. Ill. Dept. of Children and Family Servs., 892 F.2d 670, 675 n.8 (7th Cir. 1990) (Rule 12(b)(6) dismissal based on qualified immunity was proper because “plaintiffs' initial pleadings themselves, taken as true, fail to adequately allege the violation of any ...


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