Nanette Tucker v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

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No. 17-2480

NANETTE TUCKER,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16-cv-01894 — Robert M. Dow, Jr., Judge.

____________________

ARGUED SEPTEMBER 17, 2018 — DECIDED OCTOBER 19, 2018

____________________

Before EASTERBROOK, KANNE, and BRENNAN, Circuit

Judges.

BRENNAN, Circuit Judge. Does a six month delay between a

property inspection and notice of a municipal ordinance cita-

tion violate due process? The district court said no, dismissing

plaintiff-appellant Nanette Tucker’s amended complaint for

failure to state a procedural due process claim under 42 U.S.C.

§ 1983. It also rejected her alternative theory that the City of

Chicago misinterpreted the ordinance’s plain text.

2 No. 17-2480

We affirm. The administrative and judicial proceedings

available for Tucker to challenge her citation satisfied due

process, and the accuracy of the city’s interpretation of its

ordinance does not implicate the U.S. Constitution. Given

Tucker’s failure to allege facts supporting a plausible viola-

tion of her due process rights, dismissal under Federal Rule

of Civil Procedure 12(b)(6) was appropriate.

I. BACKGROUND 1

Chicago sells vacant real estate to local residents for $1 per

lot through its “Large Lot Program.” 2 As the city council

explained, “Many of the City-owned parcels are of minimal

value, yet are costly for the City to clean up and maintain.”

CHI. MUN. CODE § 2-157-010. Under the program, in February

2015, Tucker purchased a vacant lot on her neighborhood

block, intending to convert it into a community garden.

Defendant Sonya Campbell works as an inspector for Chi-

cago’s Department of Streets and Sanitation. On June 3, 2015,

she inspected Tucker’s property and concluded its vegetation

violated the city’s yard weed ordinance, CHI. MUN. CODE

§ 7-28-120(a), which provides:

1 These facts come from Tucker’s amended complaint and the certified

administrative record of the Chicago Department of Administrative Hear-

ings. As the district court noted, matters of public record—such as a public

administrative hearing—may be judicially noticed without converting a

motion to dismiss into one for summary judgment. FED. R. EVID. 201(b);

see also Ray v. City of Chicago, 629 F.3d 660, 665 (7th Cir. 2011).

2 See Amendment Adding New Chapter 157 Establishing Large Lot

Program, Chi. City Coun. Rec. No. O2014-9405 (Dec. 10, 2014), https://chi-

cago.legistar.com/Legislation.aspx (search record number O2014-9405).

No. 17-2480 3

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. Any person who violates this subsection

shall be subject to a fine of not less than $600 nor

more than $1,200. Each day that such violation

continues shall be considered a separate offense

to which a separate fine shall apply.

During Campbell’s inspection, she took two photographs

of the lot from the street to depict the overgrown vegetation.

No citations or notices regarding Campbell’s inspection or its

results were posted at the property.

Six months later, on December 4, 2015, another city

employee served Tucker (via first class mail) with a citation

for the alleged June 3 violation. The citation included a certi-

fication by Campbell and the description, “Weeds are greater

than 10 inches in height.” It also notified Tucker she could

appear at a hearing before the end of the month to contest the

violation in front of an administrative law judge. 3

Tucker, represented by counsel, attended the hearing. The

city’s case-in-chief consisted of the citation and inspector

Campbell’s two photographs. Tucker’s counsel moved to

dismiss the citation, claiming the city failed to present evi-

dence of the “average height” of the weeds. The administra-

tive law judge denied that motion, spurring Tucker’s counsel

to raise a series of constitutional challenges to the ordinance

3 Under Illinois law, 65 ILL. COMP. STAT. 5/1–2.1–2 (1998), municipali-

ties may create an administrative adjudication system for ordinance vio-

lations, which Chicago has done. CHI. MUN. CODE § 2-14-010 (2012).

4 No. 17-2480

and its enforcement by the city. The administrative law judge

stated he was not authorized to rule on any constitutional

matters, but permitted Tucker’s counsel to make a record for

purposes of appeal.

Next, Tucker took the witness stand and testified she

made it her practice to have the property “cut and cleaned”

every other week. She stated she passes her lot every day but

has never seen vegetation greater than an average of ten

inches, and no neighbors have ever complained about its con-

dition. Besides her own testimony, Tucker presented no other

evidence to the administrative law judge.

After arguments from counsel, the administrative law

judge ruled in favor of the city and imposed a $640 fine

against Tucker. Tucker could have appealed the fine to the

Circuit Court of Cook County, 4 but instead she paid it “under

protest.” That same day, she filed this putative class action,

alleging 42 U.S.C. § 1983 claims against Campbell (in her

individual capacity) and the city (pursuant to Monell v. Dep’t

of Soc. Servs. of New York, 436 U.S. 658 (1978)), as well as a “fail-

ure-to-train” claim against the city.

After the defendants filed a Rule 12(b)(6) motion, the dis-

trict court dismissed Tucker’s original complaint but granted

her leave to re-plead. Tucker filed an amended complaint, but

the district court dismissed that as well, ruling the facts

alleged failed to state a plausible claim that the defendants

4 An administrative law judge’s decision is appealable to Illinois’s cir-

cuit courts under the Illinois Administrative Review Law. CHI. MUN. CODE

§ 2-14-102 (1998); 65 ILL. COMP. STAT. 5/1–2.1–7 (1998); 735 ILL. COMP. STAT.

5/3–104 (1994).

No. 17-2480 5

deprived Tucker of due process. Rather than amend her com-

plaint yet again, Tucker chose to pursue this appeal.

II. ANALYSIS

We review de novo a district court’s grant of a Rule 12(b)(6)

motion to dismiss, accepting as true all well-pleaded facts and

drawing all reasonable inferences in the plaintiff’s favor.

Forgue v. City of Chicago, 873 F.3d 962, 966 (7th Cir. 2017).

Section 1983 claims are subject to the same plausibility plead-

ing standard as other civil causes of action. See, e.g., McCauley

v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).

The two elements of a procedural due process claim are

“(1) deprivation of a protected interest and (2) insufficient

procedural protections surrounding that deprivation.”

Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 534 (7th Cir.

2008) (citation omitted). Here, the parties agree the fine

deprived Tucker of a protected property interest. At issue is

whether the facts she alleged plausibly demonstrate constitu-

tionally deficient procedural protections.

A. Availability of Post-Deprivation Relief in State

Court

Before reaching Tucker’s main contentions, we reject her

argument that the district court erred in considering her

appeal rights under Illinois law. Relying on Zinermon v. Burch,

494 U.S. 113 (1990), and Parratt v. Taylor, 451 U.S. 527 (1981),

Tucker contends post-deprivation remedies may be consid-

ered only where the deprivation is the result of “random and

unauthorized” acts by individual government agents.

Tucker’s argument mischaracterizes the rule laid down in

Parratt and distinguished in Zinermon.

6 No. 17-2480

In Parratt, the Supreme Court held the government did not

offend due process by failing to provide an inmate with a

hearing before prison officials inadvertently lost his property

in the mail. Such a hearing would have been impossible to

schedule given it was the result of a “random and unauthor-

ized act.” 451 U.S. at 541–44. Parratt explained that the general

preference for a pre-deprivation hearing does not control

where the government is unable to foresee the deprivation

and provides adequate post-deprivation remedies. Id. at 544.

By contrast, the Court in Zinermon ruled state tort remedies

insufficient because the government could have foreseen that

holding a hearing before committing a person to a mental

health facility would avoid erroneous commitments. 494 U.S.

at 136–37.

These cases address whether post-deprivation remedies

standing alone satisfy due process, in the absence of any pre-

deprivation hearing. Here, Tucker received both a pre-depri-

vation hearing and an avenue to seek post-deprivation relief

through judicial review. While Parratt holds that post-depri-

vation remedies may be sufficient if the deprivation is

“random and unauthorized,” neither Parratt nor Zinermon

stands for the proposition that post-deprivation remedies are

otherwise irrelevant to a procedural due process claim.

Rather, the adequacy of pre-deprivation proceedings may

turn on the availability and nature of post-deprivation reme-

dies. See Parratt, 451 U.S. at 541 (noting precedents excusing

pre-deprivation hearings “have rested in part on the availa-

bility of some meaningful opportunity subsequent to the

initial taking for a determination of rights and liabilities”); see

also Michalowicz, 528 F.3d at 536–37 (“[W]hen adequate post-

termination proceedings exist, a pretermination hearing need

No. 17-2480 7

only provide an initial check against mistaken decisions … .”)

(quotation omitted).

As Tucker points out, a plaintiff need not exhaust her

remedies through state agencies or courts before bringing a

§ 1983 claim. Veterans Legal Def. Fund v. Schwartz, 330 F.3d 937,

941 (7th Cir. 2003). But that is not to say post-deprivation rem-

edies are irrelevant to a procedural due process claim. Id.

(noting that the ”whole idea of a procedural due process claim

is that the plaintiff is suing because the state failed to provide

adequate remedies”); see also Dusanek v. Hannon, 677 F.2d 538,

543 (7th Cir. 1982) (“[A] state cannot be held to have violated

due process requirements when it has made procedural pro-

tection available and the plaintiff has simply refused to avail

himself of them.”). Indeed, a plaintiff who foregoes her right

to pursue post-deprivation remedies available under state

law faces a high hurdle in establishing a due process viola-

tion. See Simmons v. Gillespie, 712 F.3d 1041, 1044 (7th Cir.

2013) (“The due process clause does not permit a litigant to

disdain his opportunities under state law and then demand

that the federal judiciary supply a remedy.”). Such remedies

go directly to the question whether a plaintiff has been

afforded due process of law. Thus, the district court was

correct to consider Tucker’s right to pursue judicial review in

state court.

B. Delay Theory

Now we turn to Tucker’s primary argument that the city’s

six month delay in notifying her of the yard weed citation

denied her due process.

Tucker does not dispute that she received a hearing, in

which she was represented by counsel, presented evidence in

8 No. 17-2480

her defense, and made legal arguments. On its face, such a

hearing embodies the “fundamental requirement of due pro-

cess.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976); see also

Pugel v. Bd. of Tr. of Univ. of Ill., 378 F.3d 659, 662 (7th Cir. 2004)

(“The hallmarks of procedural due process are notice and an

opportunity to be heard.”).

Recognizing this, Tucker frames her claim as “a prehearing

denial of due process.” (Appellant’s Brief at 17 (emphasis

added).) Yet this theory suffers from a fundamental flaw: the

city did not deprive Tucker of anything until the December

29, 2015 hearing in front of the administrative law judge.

Before then, the city had simply issued her a citation. Only at

the hearing did the administrative law judge consider the

parties’ evidence, adjudicate the city’s allegation, and impose

a fine. A plaintiff cannot be deprived of property without due

process of law before that plaintiff is deprived of property. See

DeHart v. Town of Austin, 39 F.3d 718, 724 (7th Cir. 1994) (due

process claim held premature because no deprivation had oc-

curred yet); see also Lawshe v. Simpson, 16 F.3d 1475, 1478–80

(7th Cir. 1994) (due process claim accrues upon actual depri-

vation not notice of threatened deprivation). Therefore, the

delay between Campbell’s inspection and the citation is rele-

vant only to whether the hearing itself was constitutionally

adequate. The delay alone does not constitute a due process

violation.

Supreme Court precedent provides that statutes of limita-

tion are the primary line of defense against prosecutorial

delay, Betterman v. Montana, 136 S. Ct. 1609, 1613 (2016), but

Chicago’s yard weed ordinance does not have one. Discount

Inn, Inc. v. City of Chicago, 803 F.3d 317, 327 (7th Cir. 2015)

No. 17-2480 9

(rejecting constitutional challenge to Chicago weed and fenc-

ing ordinances based on lack of limitations period).

Yet the Supreme Court has also held that due process has

“a limited role to play in protecting against oppressive delay.”

United States v. Lovasco, 431 U.S. 783, 789 (1977). Such viola-

tions occur only where the delay “violates those fundamental

conceptions of justice which lie at the base of our civil and

political institutions … and which define the community’s

sense of fair play and decency.” Id. at 790 (quotations omit-

ted). An accused must demonstrate “actual and substantial

prejudice,” at which point the burden shifts to the govern-

ment to show the reason for its delay was not improper.

United States v. Henderson, 337 F.3d 914, 920 (7th Cir. 2003); see

also United States v. Sowa, 34 F.3d 447, 450–51 (7th Cir. 1994)

(discussing burden shifting). To demonstrate actual and

substantial prejudice, “[I]t is not enough to show the mere

passage of time nor to offer some suggestion of speculative

harm; rather, the defendant must present concrete evidence

showing material harm.” Wilson v. McCaughtry, 994 F.2d 1228,

1234 (7th Cir. 1993) (quotation omitted).

Tucker asserts the city’s delay caused her prejudice in that

she was unable “to make any measurements of the average

height of the vegetation on her lot at or near the time of

inspection” or to use “photographs taken contemporaneously

with the date of the alleged violation.” (Amended Complaint

¶¶ 29, 64.) Such allegations do not plausibly demonstrate

actual and substantial prejudice. Every prosecution neces-

sarily occurs after the alleged violation. Many defendants

wish they had access to non-existent, contemporaneous

evidence to use in their defense, but this “does not render the

hearing meaningless” for purposes of due process. Cochran v.

10 No. 17-2480

Illinois State Toll Highway Auth., 828 F.3d 597, 601 (7th Cir.

2016).

As this court has recognized, “Due process does not

require notice-on-demand but rather timely notice, and a one

month delay in receiving notice does not offend due process.”

Id. at 601. Although the delay in this case is six months, it is

still considerably shorter than prosecutorial delays accepted

in other contexts. See, e.g., United States v. Eight Thousand Eight

Hundred and Fifty Dollars ($8,850) in United States Currency, 461

U.S. 555, 569–70 (1983) (18 month delay in initiating forfeiture

proceedings did not violate due process); Wilson, 994 F.2d at

1234–36 (deaths of potential witnesses during a 16 year delay

were insufficient to demonstrate substantial prejudice); Sowa,

34 F.3d at 449–52 (no due process violation despite four year

delay in bringing federal hate crime prosecution). And the

interest at stake here is monetary, less significant than (for

example) one’s liberty interest in a criminal prosecution, or

even property interest in continued employment. See Clancy

v. Office of Foreign Assets Control, 559 F.3d 595, 600 (7th Cir.

2009). Substantial prejudice hardly arises more quickly for a

municipal ordinance citation than felony prosecutions.

Accepting Tucker’s prejudice argument would place a

near instantaneous notice mandate on the city. Even if Tucker

received her citation the day after Campbell’s inspection and

quickly photographed her yard from her preferred angles,

such evidence would be less probative than photographs

taken on the day of the alleged violation, as the weeds could

have withered or been cut.

Moreover, the issue is not whether it might be “helpful” if

alleged violators were provided with notice more quickly, but

whether the existing procedures “present an unreasonable

No. 17-2480 11

risk of an erroneous deprivation.” Clancy, 559 F.3d at 600. As

the district court highlighted, Tucker was still permitted to

testify on her own behalf and present whatever existing

evidence she wanted. She was free to impeach the city’s pho-

tographs to illustrate any alleged deficiencies. Although it is

conceivable that Tucker may have been able to mount a better

defense had she known immediately of the June 3 citation, the

hearing she received did not present an unreasonable risk of

an erroneous deprivation. Id. at 601 (holding that “pre-pen-

alty notice of the basis for [a] charge, the underlying facts, and

an opportunity to respond” is an “appropriate procedure” for

mitigating the risk of an erroneous deprivation).

Because Tucker has neither pointed us to any authority

suggesting that law enforcement must initiate a prosecution

immediately, nor demonstrated actual and substantial preju-

dice, she has failed to plausibly allege a due process claim

based on the six months between the inspection of her prop-

erty and issuance of the citation.

C. “Misenforcement” Theory

Tucker also argues the defendants maintain a policy of

misinterpreting (or “misenforcing,” as Tucker puts it) the

city’s yard weed ordinance. She asserts the city incorrectly

asks its inspectors to determine only whether some weeds

exceed ten inches, while the plain text of the ordinance

requires that “the average height” of the offending weeds

exceed ten inches.

But an alleged misinterpretation of a municipal ordinance

does not implicate the U.S. Constitution. See Herbert v. Louisi-

ana, 272 U.S. 312, 316–17 (1926) (“The due process of law

clause in the Fourteenth Amendment does not take up the

12 No. 17-2480

statutes of the several states and make them the test of what

it requires … .”); Snowden v. Hughes, 321 U.S. 1, 11 (1944)

(“Mere violation of a state statute does not infringe the federal

Constitution.”); Swarthout v. Cooke, 562 U.S. 216, 221–22 (2011)

(same); Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir.

1988) (“A state ought to follow its law, but to treat a violation

of state law as a violation of the Constitution is to make the

federal government the enforcer of state law.”). Interpretation

of state or local law is a question of legal substance, not pro-

cess. A litigant is not deprived of due process merely because

a local law enforcement agency does not agree with her legal

interpretation. Simmons, 712 F.3d at 1044 (“[T]he federal enti-

tlement is to process, not to a favorable outcome.”).

As this court stated in Kompare v. Stein, 801 F.2d 883 (7th

Cir. 1986):

The constitutionality of the defendant’s con-

duct cannot be determined by looking to a mu-

nicipal ordinance. Section 1983 only creates a

federal cause of action against those acting un-

der color of state law who cause a deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws of the United

States.

… Violations of state statutes or municipal

ordinances do not necessarily give one a cause

of action under § 1983, nor do they necessarily

state a violation of the due process clause.

Id. at 888 (quotations and emphasis omitted).

Even assuming Tucker is right that the city’s interpreta-

tion of its ordinance is incorrect, federal due process

No. 17-2480 13

protection is not a guarantee that state governments will ap-

ply their own laws accurately. Simmons, 712 F.3d at 1044 (“The

Constitution does not require states to ensure that their laws

are implemented correctly.”); see also Coniston Corp. v. Vill. of

Hoffman Estates, 844 F.2d 461, 467 (7th Cir. 1988) (holding that

a village board’s alleged misapplication of a municipal zoning

ordinance did not present a due process concern). Were the

rule otherwise, federal courts would sit effectively as appel-

late tribunals over every state proceeding. See Gryger v. Burke,

334 U.S. 728, 731 (1948) (“We cannot treat a mere error of state

law, if one occurred, as a denial of due process; otherwise,

every erroneous decision by a state court on state law would

come here as a federal constitutional question.”).

If Tucker believed the administrative law judge’s interpre-

tation of the ordinance was legally incorrect, she could have

appealed her fine to Illinois’s state courts. Her amended

complaint makes no attempt to establish the inadequacy of

that avenue of redress. Michalowicz, 528 F.3d at 535 (noting

that a plaintiff must demonstrate that the existing state law

remedy is “inadequate to the point that it is meaningless or

nonexistent”). Without such factual allegations, the district

court correctly rejected Tucker’s “misenforcement” theory.

Finally, Tucker acknowledges that her “failure-to-train”

claim against the city is “not a free-standing claim” and

depends on the viability of her theories discussed above, so

we need not address it separately. And because we agree with

the district court that Tucker failed to plead any plausible due

process violation, it is unnecessary to reach the district court’s

decision regarding Campbell’s qualified immunity defense.

14 No. 17-2480

III. CONCLUSION

Although a six month delay between inspection and cita-

tion may not be a model of administrative efficiency, the

delay in this case did not violate the Constitution. Similarly,

the proper interpretation of a municipal ordinance is a matter

of local law for state courts to decide, not constitutionally

required procedure.

AFFIRMED.