KIMBERLY NELSON v. CITY OF CHICAGO, et al.
No. 20-1279
United States Court of Appeals For the Seventh Circuit
ARGUED MARCH 2, 2021 — DECIDED MARCH 25, 2021
Aрpeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cv-05740 — Andrea R. Wood, Judge.
Before RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.
Because we review a dismissal on the pleadings, we accept as true the factual allegations of the operative complaint without vouching for their truth. E.g., Word v. City of Chicago, 946 F.3d 391, 393 (7th Cir. 2020). In December 2016, Officer Nelson responded to a report of an armed robbery of a Federal Express truck in a high-crime area of Chicago. Officer Nelson alleges that the radio dispatcher ignored her repeated emergency calls for further information and assistance. She felt abandoned and was concerned for her safety.
The shift sergeant on duty at the time, defendant Virginia Bucki, was responsible for listening to the radio transmissions and contacting the dispatcher if that person failed to respond to calls. Officer Nelson alleges that Sergeant Bucki did not intervene when the dispatcher ignored her repeated requests for help. After her shift ended, Officer Nelson confronted Sergeant Bucki. According to Officer Nelson, Sergeant Bucki denied wrongdoing and refused to investigate why the dispatcher ignored Nelson.
In her incident report, Officer Nelson complained about the dispatcher‘s failure to respond to her calls. About three months later, though, she discovered that Sergeant Roy Boffo had edited the report to remove her complaints. Where Officer Nelson had written “I then called ‘Emergency’ with no response, ‘652 Emergency’ again with no response,” Sergeant Boffo changed the text to read: “Awaiting further information from dispatchers, RO [Officer Nelson] viewed Fedex worker running.” We assume here that Sergeant Boffo violated department procedures by amending Officer Nelson‘s report without consulting her.
After her abandonment during the robbery incident, Officer Nelson developed PTSD, which she alleges was later aggravated by the stress of learning that Sergeant Boffo had edited her report. She has been unable to work since then, but she remains employed by the police department and receives a disability benefit for a duty-related injury. See Nelson v. Retirement Bd. of Policemen‘s Annuity & Benefit Fund of City of Chicago, 2020 IL App (1st) 192032-U, 2020 WL 1975414.
Nelson filed charges of race and sex discrimination with the EEOC and Illinois Department of Human Rights in 2017. After receiving a right-to-sue notice, she filed this federal suit, originally alleging discrimination under the
After a status hearing, Officer Nelson amended her complaint again, asserting that Sergeant Bucki violated her substantive due process rights by failing to protect her from danger and her procedural due process rights by causing her PTSD and thereby depriving her of a property interest in her job. Officer Nelson alleged that Sergeant Boffo engaged in conscience-shocking behavior when he altered her report, also violating her right to substantive due process of law. She also alleged that the City of Chicago should be liable under a respondeat supеrior theory because the sergeants were working within the scope of their employment when they violated her rights.
The defendants moved to dismiss the second amended complaint under
Officer Nelson‘s third amended complaint closely resembled the previous versions. The primary additions were extensive blocks of quoted narrative seemingly drawn directly from Officer Nelson‘s correspondence with her attorney. She also reiterated the respondeat superior claim verbatim, despite the court having pointed out that respondeat superior does not apply under
On appeal, Officer Nelson contends that her third amended complaint cured the earlier defects and stated viable due process claims against the two sergeants as wеll as the City of Chicago. We review a dismissal under
Officer Nelson argues that we should apply the liberal amendment standard of
The essence of Officer Nelson‘s complaint against Sergeant Bucki is thаt the sergeant ignored her calls for assistance, making her response to the armed robbery call even more dangerous. Officer Nelson tried to state a claim under the “state-created-danger” exception to the general rule that the Due Process Clause does not protect a person from harm from a privatе actor. The claim fails. It does not allege an affirmative action on the part of Sergeant Bucki, nor does it allege conduct sufficiently egregious to violate due process.
To allege a viable substantive due process claim, Officer Nelson would need to allege conduct under color of state law that “violаted a fundamental right or liberty” and was so “arbitrary and irrational” as to “shock the conscience.” Campos, 932 F.3d at 975; GEFT Outdoors, LLC v. City of Westfield, 922 F.3d 357, 368 (7th Cir. 2019), citing County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Substantive due process protects only “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation‘s history and tradition,‘” and must be subject to “careful description.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Officer Nelson has never pinpointed what fundamental interest she seeks to vindicate, and none of the interests identified by the Supreme Court are at issue here. See id. at 719-20 (collecting cases). In connection with her procedural due process claim, Officer Nelson asserts that she has a property interest in her job. But if she intended her job to be a basis of her substantive due process claim as well, that theory fails. Employment, including public employment, is not a fundamental right. Campos, 932 F.3d at 975; Palka v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010).
Even if we assumed that a fundamental right was at stake, Officer Nelson faces a high bar in alleging conduct that shocks the conscience, one that excludes “many forms of governmental misconduct.” Palka, 623 F.3d at 454. Her allegations would have to permit the inference that Sergeants Bucki and Boffo not only acted “badly, even tortiously,” id., but that they “acted with a mens rea approaching that of criminal recklessness.” Hess v. Board of Trustees of Southern Illinois Univ., 839 F.3d 668, 678-79 (7th Cir. 2016). She did not do so. Officer Nelson alleged that Sergeant Bucki was apathetic, ignoring one of her job duties of listening to the dispatcher. Her most pointed accusation against Sergeant Bucki is “[i]nаttention to duty.” Negligence is a state of mind that falls well short of shocking the conscience so as to support a substantive due process claim. See Lewis, 523 U.S. at 849; Weiland v. Loomis, 938 F.3d 917, 920 (7th Cir. 2019).
Officer Nelson asserts for the first time on appeal that Sergeant Bucki ignored her dispatches intentionally. That argument was forfeited by the failure to raise it in the district court. Soo Line R.R. Co. v. Consolidated Rail Corp., 965 F.3d 596, 602 (7th Cir. 2020). In any evеnt, our precedents show that the Due Process Clause
We rejected similar “state-created-danger” due process сlaims by a law enforcement officer in Witkowski v. Milwaukee County, 480 F.3d 511 (7th Cir. 2007). Witkowski was a deputy sheriff who helped provide courtroom security for the trial of a dangerous defendant. Superior officers allegedly failed to turn on the defendant‘s stun-belt. When the defendant was pronounced guilty of the charged murder, he leaped at Deputy Witkowski, grabbed his weapon, and shot him in the leg before being shot and killed by other officers. Witkowski then sued the other officers and the county for due process violations, alleging that the superior officers had acted intentionally or recklessly.
We affirmed dismissal on the pleadings. We explained that the Constitution is a charter of negative liberties and that private violenсe does not violate the Due Process Clause. Witkowski, 480 F.3d at 512, citing DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). We also rejected Witkowski‘s attempt to invoke the state-created-danger qualification to that general principle. The doctrine is narrow, calling for protection “if the state disables people from protecting themselves,” such as by arresting or imprisoning them or putting them in foster care. Witkowski, 480 F.3d at 513. That state-created-danger doctrine does not apply to a public employee who has agreed to do dangerous work, whether the dangers are posed by animate or inanimate causes. See Collins v. City of Harker Heights, 503 U.S. 115, 125-27 (1992) (affirming dismissal of due process claims by widow of city worker who was asphyxiated during underground utility work, despite allegations of deliberate indifference); Witkowski, 480 F.3d at 513 (described above); Walker v. Rowe, 791 F.2d 507, 510 (7th Cir. 1986) (reversing jury verdict in favor of prison guards and widows of guards hurt and killed in prison uprising even if supervisors were grossly negligent in failing to protect against violence by prisoners).
Here, the danger was created by an armed robber, not by the government, so it is not covered by the doctrine. See Witkowski, 480 F.3d at 513. Under the state-created-danger theory, whether Sergeant Bucki was deliberately indifferent to risks to Officer Nelson is irrelevant. “Disregarding a known risk to a public employee does not violate the Constitution whether or not the risk comes to pass.” Id. at 514.1
Officer Nelson‘s procedural due process claim also fails. We assume that she had a property interest in retaining her job, e.g., Word, 946 F.3d at 395, but she does not allege that she lost her job, that the Chicago Police Depаrtment offered insufficient procedural protections, or that Sergeant Bucki interfered with her attempts to gain redress. See Michalowicz v. Village of Bedford Park, 528 F.3d 530, 534 (7th Cir. 2008). She was not denied any notice of an intentional deprivation of her job or an opportunity to be heard. Officer Nelson was able to consult with a sergeant and a lieutenant, her union, the Employee Assistance Plan, the Internal Affairs department, and the Retirement Board, and she never challenged the “fundamental fairness of the remedies they afforded her.” Calderone v. City of Chicago, 979 F.3d 1156, 1167 (7th Cir. 2020). The impractical idea that plaintiff was entitled to notice and an opportunity to be heard — the core of the right to due process — before Sergeant Bucki failed to respond to calls for help, resulting in PTSD, runs directly into the doctrine of Parratt v. Taylor, 451 U.S. 527, 541 (1981) (no need for pre-deprivation hearing where deprivation is result of random and unauthorized action). See, e.g., Bradley v. Village of University Park, 929 F.3d 875, 886 (7th Cir. 2019) (explaining practical underpinnings of Parratt rule).
Officer Nelson took disability leave, and she has identified no defect in the procedures used to determine those benefits, including a decision in her favor by the Illinоis Appellate Court finding that her disability was duty-related. Nelson v. Retirement Bd. of Policemen‘s Annuity & Benefit Fund of City of Chicago, 2020 IL App (1st) 192032-U, 2020 WL 1975414.
Finally, even if Officer Nelson had alleged a viable claim against an individual defendant, the district court properly rejected her claim against the City of Chicago as a matter of law.
Officer Nelson attempts to allege a pattern of police misconduct by describing an unrelated incident in which a non-defendant
The judgment of the district court is
AFFIRMED.