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Tucker v. City of Chicago

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

May 19, 2017

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

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Court Judge.

         Plaintiff Nanette Tucker filed this suit against the City of Chicago (“City”) and Cit Streets and Sanitation employee Sonya Campbell (collectively, “Defendants”) for allege violations of her right to due process through their enforcement of the City's ordinanc governing weed control, Chi. Mun. Code § 7-28-120(a) (“Weed Ordinance”). After her firs complaint was dismissed by Judge Darrah, Plaintiff filed an amended complaint. Defendant have moved to dismiss the amended complaint pursuant to Federal Rule of Civil Procedur 12(b)(6). See [28]. After the motion was fully briefed, the suit was reassigned to th undersigned judge. For the reasons set forth below, Defendants' motion is granted.

         I. Background[1]

         In 2015, Plaintiff owned a small, vacant lot at 6132 S. Bishop Street on the south side o Chicago. [27] at ¶ 22. On December 4, 2015, she received a notice of violation (“Notice”) fro the City concerning conditions on her property. Id. ¶¶ 19, 26. Specifically, the Notice, which was based on a June 3, 2015 inspection of the property performed by Campbell, indicated that “weeds are greater than 10 inches in height, ” in violation of the Weed Ordinance. Id. ¶¶ 25, 27. The Weed Ordinance, as relevant, provides that “[a]ny 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.” Id. ¶ 3; Chi. Mun. Code § 7-28-120(a).

         Following receipt of the Notice, Plaintiff filed a written request for a hearing to contest the violation with the Department of Administrative Hearings; that hearing was held on December 29, 2015 before an administrative law judge (“ALJ”). [27] at ¶¶ 30-31, 35. Plaintiff appeared at the hearing and was represented by counsel. Id. ¶ 34. As evidence of the violation, the City submitted the Notice and photographs allegedly taken by Campbell on the date of the violation. Id. ¶ 32.[2] In response, Plaintiff testified that the weeds on her property were not “in excess of an average of 10 inches, ” and she “raised several Constitutional defenses” to the violation, including that the City violated the Due Process Clause through (1) its “policies of ignoring the average height requirement” of the Weed Ordinance, and (2) the delay in “issuance of Notices of Violation”[3] Id. ¶¶ 34-35. Ultimately, the ALJ found against Plaintiff[4] and imposed a fine of $640-$600 for the violation of the Weed Ordinance and $40 in court costs. Id. ¶ 35. Although Plaintiff acknowledges that she had the opportunity to appeal the order of the ALJ (id. ¶ 38), [5] she instead chose to pay the fine on February 2, 2016 “under protest.” Id. ¶ 40.

         That same day, Plaintiff initiated this 42 U.S.C. § 1983 putative class action against Defendants alleging due process violations. See [1]. After her original complaint was dismissed [25], Plaintiff filed an amended complaint [27]. Plaintiff complains that the City's practices of assessing fines under an incorrect interpretation of the Weed Ordinance and after the delayed issuance of violation notices violated her rights to due process under the Fifth and Fourteenth Amendments. Id. ¶¶ 48-54, 56-76, 78-83. Plaintiff further alleges that Campbell, “in her individual/personal capacity, ” violated Plaintiffs due process rights for the same reasons. Id. ¶¶ 44-46. As relief, Plaintiff seeks a refund of the fine, compensatory damages for “emotional distress and anxiety associated with illegal citation for violation of said ordinance, ” exemplary (or punitive) damages, and costs. See, e.g., Id. ¶ 42. Plaintiff asserts her claims on behalf of a City-wide class consisting of individuals who were “charged and/or convicted of violation” of the Weed Ordinance “without consideration of or reference to the ‘average' height” language and who were not “promptly notified of [their] alleged violations.” Id. ¶¶ 91-92. Defendants again have moved to dismiss all claims.

         II. Legal Standard

         To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the complaint first must comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the * * * claim is and the grounds upon which it rests.” Bell Atl Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in original). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Dismissal for failure to state a claim under Rule 12(b)(6) is proper “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558; see also Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (a Rule 12(b)(6) motion tests the sufficiency of the complaint). When considering whether to dismiss a complaint under Rule 12(b)(6), the Court takes the allegations in the complaint as true, viewing all facts-as well as any inferences reasonably drawn therefrom-in the light most favorable to the plaintiff. Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th Cir. 2014).

         When a lawsuit is a putative class action, any named plaintiff “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Warth v. Seldin, 422 U.S. 490, 502 (1975). If none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, “none may seek relief on behalf of himself or any other member of the class.” Id. (citing O'Shea v. Littleton, 414 U.S. 488, 494 (1974)).

         III. Analysis

         As a preliminary matter, the Court notes that the Rooker-Feldman doctrine (see Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)) precludes federal courts other than the Supreme Court from reviewing judgments of state courts. Because the doctrine is concerned only with state court determinations, it generally does not present a jurisdictional obstacle to judicial review of executive action, including decisions made by state administrative agencies, see Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 644 n.3 (2002); and Plaintiff is not required to exhaust her state remedies before suing under § 1983. Van Harken v. City of Chicago, 103 F.3d 1346, 1349 (7th Cir. 1997). Accordingly, Plaintiff cannot be compelled to seek state court review of the ALJ's determination before challenging that determination on constitutional grounds pursuant to § 1983. See Hemmer v. Ind. State Bd. of Animal Health, 532 F.3d 610, 614 (7th Cir. 2008) (district court was not precluded from hearing plaintiff's case, even though a state administrative agency had already ruled against him). The availability of state court review, however, will be considered in the evaluation of the process provided by the City. The Court now turns to Plaintiff's due process claims.

         A. Procedural Due-Process Claims Against the City

         Beginning with Counts II, III, and IV, Plaintiff alleges that the City violated her due process rights by (1) not accurately enforcing the Weed Ordinance as written (Count II), and (2) failing to issue her Notice in a timely fashion (Count III). Plaintiff also contends that the City violated her due process rights by failing to train its employees to accurately enforce the Weed Ordinance and to issue timely violation notices (Count IV).

         A municipality is not liable under § 1983 unless the constitutional violations at issue are caused by a municipal policy or custom. See Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 694 (1978). To assert such a claim, Plaintiff must allege facts demonstrating that her injuries were caused by an official unconstitutional policy, a custom (a practice so widespread that it has the same effect as a policy), or a wide-reaching decision by an individual with authority to make policy decisions. See Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012). As with her original complaint, Plaintiffs amended complaint relies on the second way of establishing municipal liability. See [27] at ¶ 10 (the practice is “well-settled and not authorized by written law”).

         Even before assessing whether Plaintiff has sufficiently alleged a municipal policy, however, the Court must analyze whether she has adequately alleged a cognizable constitutional injury. See Houskins v. Shehan,549 F.3d 480, 493 (7th Cir. 2008) (where plaintiff fails to establish deprivation of a constitutional right, Monell claims must also fail); see also Matthews v. City of East St. Louis, 675 F.3d 703, 709 (7th Cir. 2012). A procedural due process claim requires a two-fold analysis. First, the court must determine whether the plaintiff was deprived of a protected interest; second, the court must determine what process is due. Leavell v. Ill. Dep't of Natural Res., 600 F.3d 798, 804 (7th Cir. 2010) (citing Pugel v. Bd. of Trustees of Univ. of Ill.,378 F.3d 659, 662 (7th Cir. ...


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