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Tucker v. City of Chicago

United States Court of Appeals, Seventh Circuit

October 19, 2018

Nanette Tucker, Plaintiff-Appellant,
v.
City of Chicago, et al., Defendants-Appellees.

          Argued September 17, 2018

          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.

          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 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.

         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 violation 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 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.

         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 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 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 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.

         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 condition. 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 "failure-to-train" claim against the city.

         After 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 ...


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