September 17, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:16-cv-01894 -
Robert M. Dow, Jr., Judge.
Easterbrook, Kanne, and Brennan, Circuit Judges.
BRENNAN, CIRCUIT JUDGE.
six month delay between a property inspection and notice of a
municipal ordinance citation 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.
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
violation of her due process rights, dismissal under Federal
Rule of Civil Procedure 12(b)(6) was appropriate.
sells vacant real estate to local residents for $1 per lot
through its "Large Lot Program." 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
Sonya Campbell works as an inspector for Chicago'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:
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.
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.
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
certification 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
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
evidence of the "average height" of the weeds. The
administrative law judge denied that motion, spurring
Tucker's counsel to raise a series of constitutional
challenges to the ordinance 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.
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
condition. Besides her own testimony, Tucker presented no
other evidence to the administrative law judge.
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,  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
"failure-to-train" claim against the city.
the defendants filed a Rule 12(b)(6) motion, the district
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
deprived Tucker ...