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 dispatcher 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 deciding 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 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 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 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 
No. 20-1279 3

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 Policemenʹs 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 Americans with 

Disabilities Act. In her pro se complaint, she alleged that Sergeants Bucki and Boffo 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 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 superior) for violating her constitutional rights. 
4 No. 20-1279 

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 superior 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 Federal Rule of Civil Procedure 12(b)(6), and 

the district court granted the motion. The dismissal was without 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 dismissing with prejudice). 

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 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, Officer Nelson contends that her third 

amended complaint cured the earlier defects and stated viable 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 “plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

570 (2007), that is, to contain “enough facts to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 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 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 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 assert 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 dangerous 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 defendant for violating her constitutional due process rights. 

The essence of Officer 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. 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 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 “violated 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 
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, 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]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 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 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 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 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-createddanger 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 
No. 20-1279 9

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 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 conscience-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-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 firefighter 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 process 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 exposure 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 “resetting” officer’s anniversary 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 anguish,” but emotional distress alone does not support a constitutional 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 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). 
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 misconduct 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 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 “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.