Kimberly Nelson v. City of Chicago

K
                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 20-1279
KIMBERLY NELSON,
                                                  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. 1:17-cv-05740 — Andrea R. Wood, Judge.
                     ____________________

     ARGUED MARCH 2, 2021 — DECIDED MARCH 25, 2021
                ____________________

   Before RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.
    HAMILTON, Circuit Judge. Plaintiff Kimberly Nelson is a
Chicago police officer who developed post-traumatic stress
disorder after responding to an armed robbery. She alleges
that a supervising sergeant failed to intervene when a dis-
patcher ignored her calls for back-up. She alleges that another
sergeant edited her incident report to remove complaints
about the failures to respond to her calls for back-up. In de-
ciding this appeal, we assume that the sergeants acted or
2                                                  No. 20-1279

failed to act as Officer Nelson alleges, and we assume that
they acted contrary to police department policy. This lawsuit
is not about department policy, however. Officer Nelson seeks
to recover damages under 42 U.S.C. § 1983 on the unusual
theories that the sergeants violated her substantive and pro-
cedural due process rights under the Fourteenth Amendment
to the United States Constitution. She also seeks to hold the
City of Chicago liable as the sergeants’ employer. The district
court dismissed Officer Nelson’s third amended complaint
for failure to state a claim. We affirm.
    Because we review a dismissal on the pleadings, we accept
as true the factual allegations of the operative complaint with-
out 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 Fed-
eral 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 in-
tervene when the dispatcher ignored her repeated requests
for help. After her shift ended, Officer Nelson confronted Ser-
geant Bucki. According to Officer Nelson, Sergeant Bucki de-
nied wrongdoing and refused to investigate why the dis-
patcher 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
No. 20-1279                                                      3

had edited the report to remove her complaints. Where Of-
ficer 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 de-
partment procedures by amending Officer Nelson’s report
without consulting her.
    After her abandonment during the robbery incident, Of-
ficer Nelson developed PTSD, which she alleges was later ag-
gravated by the stress of learning that Sergeant Boffo had ed-
ited 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. Re-
tirement Bd. of Policemenʹs Annuity & Benefit Fund of City of Chi-
cago, 

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 Americans with
Disabilities Act. In her pro se complaint, she alleged that Ser-
geants Bucki and Boffo and others failed to reasonably accom-
modate her disability, failed to stop “harassment,” “engaged
in malicious misconduct” by ignoring her emergency calls but
not those of other officers, and altered her incident report. She
then retained counsel and amended her complaint. Instead of
alleging employment discrimination, the amended complaint
asserted claims against Sergeants Bucki and Boffo, as well as
the City of Chicago (on a doomed theory of respondeat supe-
rior) for violating her constitutional rights.
4                                                  No. 20-1279

    After a status hearing, Officer Nelson amended her com-
plaint again, asserting that Sergeant Bucki violated her sub-
stantive due process rights by failing to protect her from dan-
ger 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 superior theory because the sergeants were work-
ing within the scope of their employment when they violated
her rights.
    The defendants moved to dismiss the second amended
complaint under Federal Rule of Civil Procedure 12(b)(6), and
the district court granted the motion. The dismissal was with-
out prejudice, giving Officer Nelson one more chance to file
an amended complaint that would remedy the deficiencies
identified by the court. See generally Runnion v. Girl Scouts of
Greater Chicago & Nw. Ind., 

786 F.3d 510

, 519−20 (7th Cir. 2015)
(district court should ordinarily give plaintiff an opportunity
to cure perceived deficiencies in a complaint before dismiss-
ing with prejudice).
    Officer Nelson’s third amended complaint closely resem-
bled the previous versions. The primary additions were ex-
tensive blocks of quoted narrative seemingly drawn directly
from Officer Nelson’s correspondence with her attorney. She
also reiterated the respondeat superior claim verbatim, de-
spite the court having pointed out that respondeat superior
does not apply under section 1983 and that the only possible
avenue to municipal liability would be under Monell v. De-
No. 20-1279                                                    5

partment of Social Services, 

436 U.S. 658

, 690–91 (1978). The de-
fendants again moved to dismiss under Rule 12(b)(6). This
time, the court dismissed Nelson’s complaint with prejudice,
observing that despite three amendments and guidance from
the court, she had still failed to state a claim.
    On appeal, Officer Nelson contends that her third
amended complaint cured the earlier defects and stated via-
ble due process claims against the two sergeants as well as the
City of Chicago. We review a dismissal under Rule 12(b)(6)
de novo. See Campos v. Cook County, 

932 F.3d 972

, 974 (7th Cir.
2019). The complaint needed to set forth a claim that is “plau-
sible on its face,” Bell Atlantic Corp. v. Twombly, 

550 U.S. 544

,
570 (2007), that is, to contain “enough facts to draw the rea-
sonable inference that the defendant is liable.” Ashcroft v. Iq-
bal, 

556 U.S. 662

, 678 (2009).
    Officer Nelson argues that we should apply the liberal
amendment standard of Federal Rule of Civil Procedure
15(a)(2). That would be correct if the district court had dis-
missed with prejudice without allowing her an opportunity
to amend, e.g., 

Runnion, 786 F.3d at 519

−20, but that is not
what happened. Having provided “multiple opportunities”
to amend, the court had no duty to offer more. See Lee v.
Northeastern Illinois Reg’l Commuter R.R. Corp., 

912 F.3d 1049

,
1053 (7th Cir. 2019). And even on appeal Officer Nelson has
not identified any further amendments she could make to as-
sert viable constitutional claims.
    Officer Nelson’s due process claims reflect a profound
misunderstanding about the scope of the Due Process Clause
of the Fourteenth Amendment and how it applies to public
employees who encounter dangers in their work. Officer Nel-
6                                                   No. 20-1279

son’s complaint alleges that she was traumatized by a danger-
ous situation she encountered while on duty. Her allegations
remind all of us of the dangers police officers face and the
courage the job requires. Officer Nelson has not, however,
pleaded facts that entitle her to proceed against any defend-
ant for violating her constitutional due process rights.
    The essence of Officer Nelson’s complaint against Ser-
geant Bucki is that the sergeant ignored her calls for assis-
tance, 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 private actor. The claim fails. It does not allege an af-
firmative action on the part of Sergeant Bucki, nor does it al-
lege 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 “violated a fundamental right or liberty” and was so “ar-
bitrary 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 pro-
tects only “those fundamental rights and liberties which are,
objectively, ‘deeply rooted in this Nation’s history and tradi-
tion,’” and must be subject to “careful description.” Washing-
ton 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
No. 20-1279                                                       7

if she intended her job to be a basis of her substantive due
process claim as well, that theory fails. Employment, includ-
ing 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 governmen-
tal 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 reckless-
ness.” 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]nattention 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 Ser-
geant Bucki ignored her dispatches intentionally. That argu-
ment 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 event, our precedents show that the Due
Process Clause has little to say about how police supervisors
oversee day-to-day and moment-to-moment police work,
with the possible exception of conduct deliberately intended
to harm the injured officer.
8                                                   No. 20-1279

    We rejected similar “state-created-danger” due process
claims 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 Dep-
uty 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 viola-
tions, alleging that the superior officers had acted intention-
ally or recklessly.
    We affirmed dismissal on the pleadings. We explained that
the Constitution is a charter of negative liberties and that pri-
vate violence 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 impris-
oning 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 under-
ground utility work, despite allegations of deliberate indiffer-
ence); 

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
No. 20-1279                                                                 9

killed in prison uprising even if supervisors were grossly neg-
ligent 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 allegations that Sergeant Boffo altered her
report also cannot support a substantive due process claim.
We assume that this alleged conduct was unprofessional and
contrary to department policies, but it falls far short of con-
science-shocking abuse of government power. The startling
notion that a public employee has a substantive due process
right in how her performance was recorded in official files

    1 For other cases brought by public employees asserting state-created-

danger claims, see generally Slaughter v. Mayor & City Council of Baltimore,

682 F.3d 317

, 321–22 (4th Cir. 2012) (affirming dismissal of substantive due
process claim by estate of firefighter who died in training exercise); Jackson
v. Indian Prairie School Dist. 204, 

653 F.3d 647

, 655–56 (7th Cir. 2011) (af-
firming summary judgment for defendants on special education teacher’s
substantive due process claim arising from student’s assault); Hunt v. Syc-
amore Community School Dist. Bd. of Education, 

542 F.3d 529

(6th Cir. 2008)
(affirming summary judgment for defendants in substantive due process
suit by teacher’s aide who was assaulted by student); Kaucher v. County of
Bucks, 

455 F.3d 418

, 424–25, 431 (3d Cir. 2006) (affirming summary judg-
ment for defendants on corrections officer’s substantive due process claim
that dangerous conditions at jail caused dangerous infection); cf. Pauluk v.
Savage, 

836 F.3d 1117

(9th Cir. 2016) (reversing denial of qualified immun-
ity for defendants on substantive due process claim by estate of state em-
ployee who allegedly died from exposure to deadly mold in work envi-
ronment).
10                                                      No. 20-1279

seems to be without precedent. Cf. Goros v. County of Cook,

489 F.3d 857

, 860 (7th Cir. 2007) (substantive due process did
not apply to department’s practice of “resetting” officer’s an-
niversary upon promotion, affecting timing and eligibility for
raises). Officer Nelson alleges that seeing the altered report
months later “aggravated her PTSD and caused her much an-
guish,” but emotional distress alone does not support a con-
stitutional tort under circumstances comparable to this case.

Weiland, 938 F.3d at 920

.
    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 Department offered insuf-
ficient procedural protections, or that Sergeant Bucki inter-
fered with her attempts to gain redress. See Michalowicz v. Vil-
lage 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 con-
sult with a sergeant and a lieutenant, her union, the Employee
Assistance Plan, the Internal Affairs department, and the Re-
tirement 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 Ser-
geant 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 ac-
tion). See, e.g., Bradley v. Village of University Park, 

929 F.3d 875

,
886 (7th Cir. 2019) (explaining practical underpinnings of Par-
ratt rule).
No. 20-1279                                                      11

    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 Illinois Appellate
Court finding that her disability was duty-related. Nelson v.
Retirement Bd. of Policemenʹs 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. Section 1983 “does not incorporate the common-law
doctrine of respondeat superior.” First Midwest Bank,
Guardian of Estate of LaPorta v. City of Chicago, 

988 F.3d 978

, 986
(7th Cir. 2021). The city could not be liable simply because the
alleged wrongdoers were its employees acting within the
scope of their employment. The city could be liable under
Monell, but only if the “municipality itself” violated Officer
Nelson’s federal rights or was the “moving force” for the
violation. 

LaPorta. 988 F.3d at 987

. Officer Nelson never tied
Sergeant Bucki’s or Boffo’s actions to a “policy or custom” of
the department

, id. at 986,

and therefore gave the district court
no basis to infer that the city was responsible for any
constitutional violation.
    Officer Nelson attempts to allege a pattern of police mis-
conduct by describing an unrelated incident in which a
non-defendant sergeant made an outrageous remark to her,
and five other court cases in which police officers committed,
or covered up misconduct. But none of these incidents were
comparable to the alleged actions of Sergeants Bucki or Boffo,
nor could they be said to be related to them in any way. The
allegations fall far short of the “specific pattern or series of in-
12                                                No. 20-1279

cidents [required] to support the general allegation of a cus-
tom or policy.” See Hollins v. City of Milwaukee, 

574 F.3d 822

,
827 (7th Cir. 2009) (emphasis added). Even if Nelson had ad-
dressed Monell, her claim against the city would have faltered
on the absence of an “underlying constitutional violation” by
the sergeants, which “automatically preclude[s] a finding of
Monell liability.” Donald v. Wexford Health Sources, Inc.,

982 F.3d 451

, 463 (7th Cir. 2020) (citation omitted).
     The judgment of the district court is
                                                  AFFIRMED.

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