### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 20-1279

K IMBERLY N ELSON , Plaintiff-Appellant,

v.

C ITY OF C HICAGO, et al ., Defendants-Appellees

.

____________________ Appeal from the United States District Court for the Northern District of Il linois, Eastern Division. No. 1:17-cv-05740 — Andrea R. Wood, Judge

.

____________________
A RGUED M ARCH 2, 2021

— D ECIDED M ARCH 25, 2021

____________________

Before R IPPLE , H AMILTON, and K IRSCH, Circuit Judges

. H AMILTON , Circuit Judge . Plainti ff Kimberly Nelson is a Chicago police o ffi cer who developed post-traumatic stress disorder after responding to an armed robbery. She allegesthat a supervising sergeant failed to intervene when a dispatcher ignored her calls for back-up. She alleges that another sergeant edited her incident report to remove complaintsabout the failures to respond to her calls for back-up. In deciding this appeal, we assume that the sergeants acted or2 No. 20-1279

failed to act as O ffi cer Nelson alleges, and we assume that they acted contrary to police de partment policy. This lawsuit is not about department policy, however. O ffi cer Nelson seeks to recover damages under 42 U.S.C. § 1983 on the unusualtheories that the sergeants violated her substantive and procedural 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 O ffi cer Nelson’s third amended complaint for failure to state a claim. We a ffi rm. Because we review a dismissal on the pleadings, we acceptas 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, O ffi cer Nelson responded to a report of an armed robbery of a Federal Express truck in a high -crime area of Chicago. O ffi cer Nelson alleges that the radio di spatcher ignored her repeated emergency calls for further in formation 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 listeni ng to the radio transmissions and contacting the dispatcher if that person failed to respond to calls. O ffi cer Nelson alleges that Sergeant Bucki did not intervene when the dispatcher ignored her repeated requests for help. After her shift ended, O ffi cer Nelson confronted Sergeant Bucki. According to O ffi cer Nelson, Sergeant Bucki denied wrongdoing and refused to investigate why the dispatcher ignored Nelson. In her incident report, O ffi cer Nelson complained about the dispatcher’s failure to respond to her calls. About three months later, though, she discovered that Sergeant Roy Bo ff oNo. 20-1279 3

had edited the report to remove her complaints. Where Offi cer Nelson had wri tt en “I then called ‘Emergency’ with no response, ‘652 Emergency’ again with no response,” Sergeant Bo ff o changed the text to read: “Awaiting further information from dispatchers, RO [O ffi cer Nelson] viewed Fedex worker running.” We assume here that Sergeant Bo ff o violated department procedures by amending O ffi cer Nelson’s report without consulting her. After her abandonment duringthe robbery incident, Offi cer Nelson developed PTSD, which she alleges was later aggravated by the stress of learning that Sergeant Bo ff o had edited her report. She has been unable to work since then, but she remains employed by the po lice department and receives a disability bene fi t for a duty-related injury. See Nelson v. Retirement Bd. of Policemen ʹ s Annuity & Bene fi t Fund of City of Chicago , 2020 IL App (1st) 192032-U, 2020 WL 1975414.

Nelson fi led 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 fi led this federal suit, originally alleging discrimination under the Americans withDisabilities Act. In her pro se complaint, she alleged that Sergeants Bucki and Bo ff o and others failed to reasonably accommodate her disability, failed to stop “harassment,” “engaged in malicious misconduct” by ignoring her emergency calls but not those of other o ffi cers, 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 Bo ff o, as well as the City of Chicago (on a doomed theory of respondeat superior) for violating her constitutional rights.4 No. 20-1279

After a status hearing, O ffi cer Nelson amended her complaint again, asserting that Se rgeant 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. O ffi cer Nelson alleged that Sergeant Bo ff o 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 Ch icago should be liable under arespondeat superior theory because the sergeants were working within the scope of their em ployment 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 without prejudice, giving O ffi cer Nelson one more chance to fi le an amended complaint that would remedy the de fi ciencies identi fi ed 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 plainti ff an opportunity to cure perceived de fi ciencies in a complaint before dismissing with prejudice).

O ffi cer Nelson’s third amended complaint closely resembled the previous versions. The primary additions were extensive blocks of quoted narrative seemingly drawn directly from O ffi cer Nelson’s correspondence with her a tt orney. Shealso reiterated the respondeat superior claim verbatim, despite 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 defendants 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, O ffi cer Nelson contends that her thirdamended complaint cured the earlier defects and stated viable due process claims against th e 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 se t forth a claim that is “plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that is, to contain “e nough facts to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).
O ffi cer Nelson argues that we should apply the liberal amendment standard of Fede ral Rule of Civil Procedure 15(a)(2). That would be correct if the district court had dismissed 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 o ff er more. See Lee v. Northeastern Illinois Reg’l Commuter R.R. Corp ., 912 F.3d 1049, 1053 (7th Cir. 2019). And even on appeal O ffi cer Nelson has not identi fi ed any further amendments she could make to assert viable constitutional claims.
O ffi cer Nelson’s due process claims re fl ect a profound misunderstanding about the scope of the Due Process Clause of the Fourteenth Amendment an d how it applies to public employees who encounter da ngers in their work. O ffi cer Nel-6 No. 20-1279

son’s complaint alleges that she was traumatized by a dangerous situation she encountered while on duty. Her allegations remind all of us of the dangers police o ffi cers face and the courage the job requires. O ffi cer Nelson has not, however, pleaded facts that entitle her to proceed against any defendant for violating her constitutional due process rights.

The essence of O ffi cer Nelson’s complaint against Sergeant Bucki is that the sergeant ignored her calls for assistance, making her response to the armed robbery call even more dangerous. O ffi cer 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 fa ils. It does not allege an affi rmative action on the part of Sergeant Bucki, nor does it allege conduct su ffi ciently egregious to violate due process. To allege a viable substantive due process claim, O ffi cer Nelson would need to allege conduct under color of state law that “violated a fundamental ri ght 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 West fi eld, 922 F.3d 357, 368 (7th Cir. 2019), citing County of Sacramento v. Lewis , 523 U.S. 833, 849 (1998). Subs tantive due process protects only “those fundamental rights and liberties which are,objectively, ‘deeply rooted in this Nation’s history and tradition,’” and must be subjec t to “careful description.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). O ffi cer Nelson has never pinpointed what funda mental interest she seeks to vindicate, and none of the interests identi fi ed by the Supreme Court are at issue here. See id. at 719–20 (collecting cases). In connection with her procedural due process claim, O ffi cer Nelson asserts that she has a pr operty interest in her job. ButNo. 20-1279 7

if she intended her job to be a basis of her substantive dueprocess 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 fun damental right was at stake, O ffi cer Nelson faces a high bar in alleging conduct that shocks the conscience, one that exclud es “many forms of governmental misconduct.” Palka , 623 F.3d at 454. Her allegations would have to permit the inference that Sergeants Bucki and Bo ff o 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. O ffi cer 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]na tt ention 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).

O ffi cer Nelson asserts for the fi rst time on appeal that Sergeant Bucki ignored her dispat ches 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 event, our precedents show that the Due Process Clause has li tt le 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 o ffi cer.8 No. 20-1279

We rejected similar “state-created-danger” due process claims by a law enforcement o ffi cer in Witkowski v. Milwaukee County, 480 F.3d 511 (7th Cir. 2007). Witkowski was a deputy sheri ff who helped provide courtroom security for the trial of a dangerous defendant. Superior o ffi cers allegedly failed to turn on the defendant’s stun-belt. When the defendant waspronounced 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 o ffi cers. Witkowski then sued the other o ffi cers and the county for due process violations, alleging that the superior o ffi cers had acted intentionally or recklessly.

We a ffi rmed dismissal on the pleadings. We explained thatthe Constitution is a charter of negative liberties and that private 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 a tt empt to invoke the state-createddanger quali fi cation to that general principle. The doctrine is narrow, calling for protection “if the state disables peoplefrom protecting themselves,” such as by arresting or imprisoning them or pu tt ing 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) (a ffi rming dismissal of due process claims bywidow of city worker who was asphyxiated during underground utility work, despite allegations of deliberate indi ff erence); 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 andNo. 20-1279 9

killed in prison uprising even if supervisors were grossly negligent in failing to protect agai nst 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 indi ff erent to risks to O ffi cer 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
O ffi cer Nelson’s allegations that Sergeant Bo ff o altered her report also cannot support a substantive due process claim. We assume that this alleged conduct was unprofessional andcontrary to department policies, but it falls far short of conscience-shocking abuse of government power. The startling notion that a public employee has a substantive due process right in how her performa nce was recorded in o ffi cial fi les

1 For other cases brought by publicemployees asserting state-createddanger 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 firefighte r who died in training exercise); Jackson v. Indian Prairie School Dist. 204 , 653 F.3d 647, 655–56 (7th Cir. 2011) (affirming summary judgment for defendants on special education teacher’s substantive due proces s claim arising from student’s assault); Hunt v. Sycamore 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 judgment 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 immunity for defendants on substantive due process claim by estate of state employee who allegedly died from exposu re to deadly mold in work environment).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 “rese tt ing” o ffi cer’s anniversary upon promotion, a ff ecting timing and eligibility for raises). O ffi cer Nelson alleges that seeing the altered reportmonths later “aggravated her PTSD and caused her much anguish,” but emotional distress alone does not support a constitutional tort under circumstan ces comparable to this case. Weiland, 938 F.3d at 920.
O ffi cer 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 o ff ered insuffi cient procedural protections, or that Sergeant Bucki interfered with her a tt empts 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. O ffi cer Nelson was able to consult with a sergeant and a lieut enant, her union, the Employee Assistance Plan, the Internal A ff airs department, and the Retirement Board, and she never challenged the “fundamental fairness of the remedies they a ff orded her.” Calderone v. City of Chicago , 979 F.3d 1156, 1167 (7th Cir. 2020). The impractical idea that plainti ff 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 Parra ttv. Taylor , 451 U.S. 527, 541 (1981) (no need for pre-deprivation hearing where deprivation is result ofrandom and unauthorized action). See, e.g., Bradley v. Village of University Park , 929 F.3d 875, 886 (7th Cir. 2019) (explaining practical underpinnings of Parra ttrule).No. 20-1279 11

O ffi cer Nelson took disability leave, and she has identi fi ed no defect in the procedures used to determine those bene fi ts, including a decision in her fa vor by the Illinois Appellate Court fi nding that her disability was duty-related. Nelson v. Retirement Bd. of Policemen ʹ s Annuity & Bene fi t Fund of City of Chicago , 2020 IL App (1st) 192032-U, 2020 WL 1975414. Finally, even if O ffi cer Nelson had alleged a viable claim against an individual defendant, the district court properly rejected her claim against the City of Chicago as a ma tt er 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 O ffi cer Nelson’s federal rights or was the “moving force” for the violation. LaPorta. 988 F.3d at 987. O ffi cer Nelson never tied Sergeant Bucki’s or Bo ff o’s actions to a “policy or custom” of the department, id. at 986, and therefore ga ve the district court no basis to infer that the city was responsible for any constitutional violation.

O ffi cer Nelson a tt empts to allege a pa tt ern of police misconduct by describing an unre lated incident in which a non-defendant sergeant made anoutrageous remark to her, and fi ve other court cases in which police o ffi cers commi tt ed, or covered up misconduct. But none of these incidents were comparable to the alleged acti ons of Sergeants Bucki or Bo ff o, nor could they be said to be related to them in any way. The allegations fall far short of the “ speci fi cpa tt ern or series of in-12 No. 20-1279

cidents [required] to support th e general allegation of a custom or policy.” See Hollins v. City of Milwaukee, 574 F.3d 822,827 (7th Cir. 2009) (emphasis added). Even if Nelson had addressed Monell , her claim against the city would have faltered on the absence of an “underlyin g constitutional violation” by the sergeants, which “automatically preclude[s] a fi nding of Monell liability.” Donald v. Wexford Health Sources, Inc ., 982 F.3d 451, 463 (7th Cir. 2020) (citation omi tt ed). The judgment of the district court is
AFFIRMED.