United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. DARRAH UNITED STATES DISTRICT COURT JUDGE
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  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  is granted.
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).
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.
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.
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.
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.
I - Due-Process Claim Against Campbell
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.
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.
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