Saiger v. City of Chi.

MATTHEW F. KENNELLY

Motion granted in part and denied in part.

Patrick W. Morrissey, Thomas Gerard Morrissey, Thomas G. Morrissey, Ltd., Chicago, IL, for Plaintiff Andrew S. Mine, City of Chicago, Law Department Corporation Counsel, Mary Eileen Cunniff Wells, City of Chicago, Department of Law, Chicago, IL, for Defendants

MATTHEW F. KENNELLY, District Judge:

John Saiger has sued the City of Chicago and Chicago police officer Eddie Chapman, asserting claims under 42 U.S.C. § 1983 for violations of the Equal Protection Clause and the Due Process Clause, and under state law for violation of the Illinois Sex Offender Registration Act, 730 ILCS 150/3. The defendants have moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Chapman also argues that he is entitled to qualified immunity. For the reasons stated below, the Court dismisses Saiger's federal claims against Chapman based on qualified immunity and also dismisses Saiger's equal protection claim against the City but otherwise denies defendants' motion to dismiss.

In sum, the Court concludes that Saiger has failed to state a viable equal protection claim.

Saiger also asserts that the defendants violated his procedural and substantive due process rights. The Court assesses a procedural due process claim using a two-part analysis. First, the Court must determine whether the plaintiff was deprived of a constitutionally protected liberty or property interest. If so, the Court assesses how much process was due. Leavell v. Ill. Dep't of Natural Res., 600 F.3d 798, 804 (7th Cir.2010). Defendants have not argued the absence of a constitutionally protected property or liberty interest, so the Court need not address that point.

Turning to the second step in the analysis, defendants argue that the availability of pre-deprivation relief through filing a state court petition for a writ of certiorari and post-deprivation relief via a probable cause hearing, bail hearing, or trial in a criminal prosecution satisfy the requirements of procedural due process. In determining what process is due in a particular situation, a court considers: (1) the private interest affected by the government action; (2) the risk of erroneous deprivation of the interest through the procedures used, and the probable value of any alternative procedural safeguards; and (3) the government's interest, including the function involved and additional administrative or fiscal burdens that alternate procedural requirements would require. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Schepers v. Comm'r, Ind. Dept. of Corr., 691 F.3d 909, 915 (7th Cir.2012).

A homeless sex offender has a significant interest in registering. The law requires a sex offender to register in a given municipality once he has resided in the municipality for three days. See 730 ILCS 150/3(a). If the offender fails to do, he has committed a crime and is therefore subject to arrest. Thus the City's alleged refusal to register homeless persons jeopardizes such persons' interest in freedom from arrest and confinement, which is a significant interest. See Hernandez v. Sheahan, 455 F.3d 772, 777 (7th Cir.2006) (“The interest in liberty is a weighty one ....”); cf. Wilkinson v. Austin, 545 U.S. 209, 225, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) (examining the first factor under Mathews and indicating that members of the public have a greater interest than prison inmates in freedom from confinement).

Second, existing procedures for challenging the deprivation are arguably non-existent, or virtually so. Neither SORA nor the City offers any sort of opportunity, administrative or otherwise, to challenge a refusal to register a sex offender. From a due process standpoint, this is problematic. See Wilkinson, 545 U.S. at 226, 125 S.Ct. 2384 (noting that “a fair opportunity for rebuttal” is “among the most important procedural mechanisms for purposes of avoiding erroneous deprivations”).

Defendants say that Saiger or any other homeless sex offender can challenge a refusal to register him by suing in court, via a common law writ of certiorari. At the present stage of the case, the Court cannot say, as a matter of law, that this is sufficient to satisfy due process. First, defendants offer no basis to conclude that this should be considered a pre-deprivation remedy. Specifically, on the present record, one cannot say that a homeless person, who is, almost by definition, impecunious and lacking in access to social and community resources, has a ghost of a chance of being able to file a lawsuit and get a hearing before he is subject to arrest for failure to register. Second, the same considerations of impecuniousness and lack of access to resources arguably render the ability to file a state court lawsuit an inadequate post-deprivation remedy as well—assuming that this is the sort of situation where a post-deprivation remedy can satisfy due process.

Defendants also contend that Saiger has an adequate post-deprivation remedy because, if arrested, he can challenge the defendants' refusal to register him during ongoing criminal proceedings. The Seventh Circuit, however, rejected a similar argument in the context of correcting errors to Indiana's sex offender registry. Schepers v. Comm'r, Ind. Dept. of Corr., 691 F.3d 909 (7th Cir.2012). That case concerned erroneous listings of persons in the state's sex offender registry and the absence of a process for challenging the listing. A person listed in the registry was subject to additional requirements and prohibitions, the violation of which could subject him to prosecution. In assessing what process was due, the court noted that some registrants “can, and have, challenged registry errors in the course of criminal prosecutions for failure to comply with registration requirements.” The court concluded, however, that “due process does not require a person to risk additional criminal conviction as the price of correcting an erroneous listing, especially where a simple procedural fix is available much earlier.” Id. at 916. The same would appear to be true here.

In any event, there is significant doubt that a post-deprivation remedy would be adequate in the present situation. The Supreme Court “usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty or property.” Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The exceptions to this typically involve situations involving “ ‘the necessity of quick action by the State or the impracticality of providing any predeprivation process,’ ” id. at 128, 110 S.Ct. 975 (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)) or “ ‘where the potential length or severity of the deprivation does not indicate a likelihood of serious loss and where the [post-deprivation] procedures ... are sufficiently reliable to minimize the risk of erroneous determination.’ ” Id. (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978)). Defendants have not established at this point that this is that sort of situation.

When a deprivation is the result of a random and unauthorized act by a government actor, then post-deprivation relief is sufficient. Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) (negligent deprivation); see also Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (intentional deprivation). This is so irrespective of whether a property or liberty interest is at stake. Zinermon v. Burch, 494 U.S. 113, 131, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). If, however, the state system itself destroys the protected interest, then the sorts of post-deprivation remedies that are considered adequate for random and unauthorized acts are insufficient. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). In this case, Saiger alleges that it was an established procedure of the City to deny homeless sex offenders the opportunity to register. Given this allegation, which is made sufficiently for the Court to accept it as true for purposes of the present motion, Parratt and Hudson do not control this case.

Turning to the third Mathews factor, the City has, of course, an interest in ensuring timely and cost-effective registration of sex offenders. Defendants argue that a pre-deprivation administrative remedy for homeless sex offenders denied the opportunity to register is not feasible. But in the present procedural context—a Rule 12(b)(6) motion to dismiss—the Court cannot say that defendants have shown, as a matter of law, the infeasibility or impracticality of a pre-deprivation (or even a quick post-deprivation) administrative remedy. That is particularly so given the significant weight one must afford to a homeless person's interest in being free from improper arrest.

In sum, the Court concludes that Saiger has stated a facially viable procedural due process claim. Thus the Court need not address at this time whether he can maintain a substantive due process claim.

Having denied in part the defendants' motion to dismiss, the Court exercises supplemental jurisdiction over Saiger's state law claim because the claim is part of the same case or controversy as his federal claim. 28 U.S.C. § 1367; Williams Elec. Games, Inc. v. Garrity, 479 F.3d 904, 906 (7th Cir.2007).

Defendant Chapman also seeks dismissal of Saiger's section 1983 claim for damages against him based on the defense of qualified immunity. Qualified immunity shields a government official from liability for damages under 42 U.S.C. § 1983 if his actions reasonably could have been thought to be consistent with the rights he is alleged to have violated. Leaf v. Shelnutt, 400 F.3d 1070, 1080 (7th Cir.2005).

Qualified immunity requires a court to assess ‘the objective reasonableness of an official's conduct, as measured by reference to clearly established law.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It involves a two-part test. The first question is whether the facts, taken in the light most favorable to the plaintiff, show the defendant's conduct violated a constitutional right. The second question is whether the right was clearly established at the time of the official's conduct, in this case August 2012. See Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). On the latter question, “[t]he relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151. A right is clearly established when “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Leaf, 400 F.3d at 1080 (internal quotation marks omitted).

The Court begins with the second of these questions, because in this case, doing so conserves judicial resources. See Findlay v. Le n dermon, 722 F.3d 895, 899 (7th Cir.2013). Saiger may show that the right was clearly established by identifying a ‘closely analogous case” that recognizes the right in question or by showing that the defendant's conduct was so egregious that as an objective matter, Chapman would have been on notice that he was violating the constitution. See, e.g., Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir.2001) (“qualified immunity is dissolved ... when the conduct is so egregious that no reasonable person could have believed that it would not violate clearly established rights.”).

Saiger attempts to overcome qualified immunity by offering what he contends is an analogous case. Specifically, he points to the Illinois Supreme Court's decision People v. Molnar, 222 Ill.2d 495, 306 Ill.Dec. 116, 857 N.E.2d 209 (2006). Putting aside whether a state supreme court case would suffice, Molnar does not help Saiger. The decision did not address the constitutionality of declining registration but rather concerned whether SORA was unconstitutionally vague in certain respects.

Because Saiger has not identified any basis for the proposition that the constitutional right at issue was clearly established that the relevant time, the Court concludes that Chapman is entitled to qualified immunity from liability for damages under section 1983.

For the reasons stated above, the Court dismisses plaintiff's equal protection claim; dismisses all of plaintiff's claims under 42 U.S.C. § 1983 against defendant Chapman based on qualified immunity; and otherwise denies defendants' motion to dismiss. Defendants are directed to answer the remaining claims by no later than May 12, 2014. Both sides are directed to make Rule 26(a)(1) disclosures by that same date. The case is set for a status hearing on May 19, 2014 at 9:30 a.m. for the purpose of setting a discovery and pretrial schedule. -------- Notes: