United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Court Judge.
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 . After the
motion was fully briefed, the suit was reassigned to th
undersigned judge. For the reasons set forth below,
Defendants' motion is granted.
2015, Plaintiff owned a small, vacant lot at 6132 S. Bishop
Street on the south side o Chicago.  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 §
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”).  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. 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” Id. ¶¶ 34-35.
Ultimately, the ALJ found against Plaintiff 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),  she instead chose
to pay the fine on February 2, 2016 “under
protest.” Id. ¶ 40.
same day, Plaintiff initiated this 42 U.S.C. § 1983
putative class action against Defendants alleging due process
violations. See . After her original complaint was
dismissed , Plaintiff filed an amended complaint .
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.
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).
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)).
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.
Procedural Due-Process Claims Against the City
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).
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 
at ¶ 10 (the practice is “well-settled and not
authorized by written law”).
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. ...