Kimberly Nelson v. City of Chicago
992 F.3d 599
| 7th Cir. | 2021Background:
- Chicago police Officer Kimberly Nelson responded to an armed-robbery call in December 2016; she alleges the radio dispatcher ignored her repeated emergency requests for backup.
- Shift Sergeant Virginia Bucki allegedly failed to monitor or intervene when the dispatcher ignored Nelson’s calls; Nelson confronted Bucki after her shift.
- Sergeant Roy Boffo allegedly edited Nelson’s incident report months later to remove her complaints about the dispatcher; Nelson claims the edit aggravated her PTSD.
- Nelson developed PTSD, went on disability leave, filed administrative discrimination charges, then sued under 42 U.S.C. § 1983 alleging substantive and procedural due process violations by the two sergeants and municipal liability against the City of Chicago.
- The district court dismissed Nelson’s amended complaints after multiple opportunities to amend; the Seventh Circuit affirmed the dismissal on the pleadings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantive due process — failure to protect / state-created-danger | Bucki’s failure to intervene/ignore of dispatch created a state-created danger that violated Nelson’s substantive due process rights | Due process does not protect public employees from private violence absent conscience-shocking state action; danger here came from a private robber; mere negligence | Dismissed — no affirmative state-created danger; danger caused by private actor; negligence/inaction not conscience-shocking |
| Substantive due process — alteration of report | Boffo’s unauthorized edit of Nelson’s report was conscience-shocking and caused PTSD, violating substantive due process | Editing the report, while unprofessional and policy-violative, is not the sort of arbitrary, conscience-shocking abuse required | Dismissed — alleged edit falls short of conscience-shocking governmental abuse |
| Procedural due process — deprivation of property (job) without process | PTSD and related effects deprived Nelson of a property interest in her job without process | Nelson did not allege actual loss of employment or denial of pre- or post-deprivation procedures; Parra tt permits random/unauthorized deprivations without pre-deprivation hearing | Dismissed — no alleged deprivation or denial of available procedures; Parra tt and the absence of a claim for flawed procedures defeat the claim |
| Municipal liability (City of Chicago) | City liable under respondeat superior or Monell for sergeants’ actions | § 1983 does not permit respondeat superior; Nelson failed to plead a municipal policy, custom, or that the City was the moving force | Dismissed — respondeat superior unavailable; Monell claim not pleaded and underlying constitutional violations were not established |
Key Cases Cited
- Monell v. Department of Social Services, 436 U.S. 658 (U.S. 1978) (municipal liability requires a policy or custom and that the municipality be the moving force)
- County of Sacramento v. Lewis, 523 U.S. 833 (U.S. 1998) (substantive due process requires conduct that "shocks the conscience")
- DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (U.S. 1989) (Due Process Clause generally does not impose liability for private violence absent state action)
- Collins v. City of Harker Heights, 503 U.S. 115 (U.S. 1992) (public employment hazards do not by themselves give rise to substantive due process protection)
- Parratt v. Taylor, 451 U.S. 527 (U.S. 1981) (no pre-deprivation hearing required where deprivation results from random or unauthorized acts)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading must permit a reasonable inference of defendant’s liability)
- Witkowski v. Milwaukee County, 480 F.3d 511 (7th Cir. 2007) (rejected state-created-danger claim by law-enforcement officer)
- Palka v. Shelton, 623 F.3d 447 (7th Cir. 2010) (public employment is not a fundamental right for substantive-due-process purposes)
- First Midwest Bank, Guardian of Estate of LaPorta v. City of Chicago, 988 F.3d 978 (7th Cir. 2021) (§1983 does not incorporate respondeat superior; Monell governs municipal liability)