Michael Campos v. Cook County ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3472
MICHAEL O. CAMPOS,
Plaintiff-Appellant,
v.
COOK COUNTY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-2305 — Charles R. Norgle, Judge.
____________________
ARGUED MAY 29, 2019 — DECIDED AUGUST 5, 2019
____________________
Before KANNE, SYKES, and BRENNAN, Circuit Judges.
KANNE, Circuit Judge. After Michael Campos’s August
2011 arrest for driving under the influence, his employer—the
Cook County Sheriff’s Office—began termination proceed-
ings. The Merit Board has voted to terminate Campos’s em-
ployment on two occasions. But both times the Cook County
Circuit Court vacated the decision. And, to this day, the ter-
mination proceedings are ongoing. Instead of waiting for
their completion, Campos filed this federal law suit alleging,
2 No. 18-3472
among other things, that the protracted proceedings have vi-
olated his substantive due process rights. Because Campos
has not met the high standard for stating a substantive due
process claim, we affirm the district court’s dismissal of his
claims.
I. BACKGROUND
In 1997, Michael Campos began working for the Cook
County Sheriff’s Office as a correctional officer. In August
2011, he was arrested for driving under the influence, striking
a vehicle, and leaving the scene of an accident. Campos self-
reported the incident, and the sheriff suspended him without
pay on November 29, 2011, and referred him for termination.
By law, the Cook County Sheriff’s Merit Board has exclusive
authority to terminate Sheriff’s Office employees. 55 Ill.
Comp. Stat. 5/3-7012.
While the Merit Board proceedings were ongoing, the
Cook County Circuit Court granted Campos’s motion to sup-
press and quashed his arrest. On October 15, 2015, the Merit
Board voted to terminate Campos for violating state law. He
petitioned the circuit court for review approximately one year
later. On January 18, 2017, the circuit court granted Campos’s
petition, vacated the Merit Board’s decision as too vague to
allow for judicial review, and remanded for a second attempt.
In April 2017, the Merit Board once again voted to termi-
nate Campos. He sought judicial review. And on March 9,
2018, the circuit court vacated and remanded a second time.
But this time, the court vacated the Merit Board’s decision not
because of some defect in the reasoning but because of a de-
fect in the Merit Board’s composition.
No. 18-3472 3
The circuit court relied upon a developing line of cases in-
volving interim appointments to the Merit Board. In Taylor v.
Dart, the Illinois Appellate Court found that the Merit Board
Act does not permit the sheriff to appoint Merit Board mem-
bers to terms of fewer than six years. 64 N.E.3d 123, 130 (Il.
App. Ct. 2016) (citing 55 Ill. Comp. Stat. 5/3–7002). Because
one member of the Merit Board was serving an interim term
when the Board voted to terminate the plaintiff, the Taylor
court held that the decision was void. Id. at 132. The circuit
court found that the reasoning in Taylor applied with equal
force to Campos. When the Merit Board voted to terminate
him, one member was serving an interim term. 1
At this point, it had been almost seven years since the sher-
iff suspended Campos without pay. Rather than wait for a
third Merit Board decision, he filed suit in federal court. Cam-
pos’s initial complaint—filed on March 29, 2018—named
eighteen defendants and advanced five claims. Besides suing
Cook County, the Cook County State’s Attorney’s Office, the
sheriff, the Merit Board, and the Board’s members, he also
sued the law firm Steptoe and Johnson, LLP, and three of its
attorneys (who represented the county in the circuit court
proceedings). On May 2, 2018, the Steptoe defendants filed a
motion to dismiss the claims against them. The district court
scheduled a hearing on the motion for May 11, 2018.
On May 10, Campos filed an amended complaint in which
he renewed his claims against all defendants (except the Cook
1 After Taylor, the Illinois General Assembly amended the Merit Board
Act to allow the sheriff to make interim appointments. 55 Ill. Comp. Stat.
5/3-7002 (as amended effective Dec. 8, 2017). The sheriff has now reconsti-
tuted the Board, correcting the problem identified in Taylor.
4 No. 18-3472
County State’s Attorney’s Office) and added a sixth claim (for
First Amendment retaliation). The district court held the al-
ready-scheduled hearing the next day. When plaintiff’s coun-
sel advised the court that he had filed an amended complaint
the day before, the court noted that it had not granted leave
to file an amended complaint. The court referred to the Local
Rules for the Northern District of Illinois and concluded that
the original complaint remained the operative document. See
N.D. Ill. L.R. 5.3(b) (“Every motion or objection shall be ac-
companied by a notice of presentment specifying the date and
time on which, and judge before whom, the motion or objec-
tion is to be presented.”). After that finding, the court dis-
missed the Steptoe defendants with prejudice.
Several months later, the remaining defendants filed a mo-
tion to dismiss the amended complaint. On November 5, 2018,
the court granted that motion and dismissed the amended
complaint with prejudice. Campos appealed.
II. ANALYSIS
We review the dismissal of a complaint for failure to state
a claim de novo. Kanter v. Barr, 919 F.3d 437, 440 (7th Cir. 2019).
Campos’s amended complaint advances two substantive due
process claims, three conspiracy claims, and one First Amend-
ment retaliation claim. Oddly, Campos does not bring a pro-
cedural due process claim, focusing instead on substantive
due process. He does suggest that his conspiracy claims might
be either substantive or procedural, but a plaintiff cannot
bring a § 1983 claim for conspiracy to deny a civil right unless
the plaintiff states an underlying claim for denial of a right.
Archer v. Chisholm, 870 F.3d 603, 620 (7th Cir. 2017). Section
1983 conspiracy claims are derivative; they cannot stand
alone. In other words, because he has alleged no underlying
No. 18-3472 5
procedural due process violation, his conspiracy claims can-
not be procedural in nature.
Accordingly, we limit our analysis to whether Campos has
stated substantive due process claims. For the reasons that fol-
low, he has not. And, although Campos spends considerable
time discussing recent decisions by the Illinois appellate
courts which limit Taylor’s impact, we find this line of argu-
ment to be a red herring. Because Campos did not state cog-
nizable claims, the district court properly dismissed with prej-
udice.
A. Campos Did Not State Substantive Due Process Claims
“[T]he scope of substantive due process is very limited.”
Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir. 2005) (citing Wash-
ington v. Glucksberg, 521 U.S. 702 (1997)). And courts should
be “reluctant to expand the concept of substantive due pro-
cess because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.” Collins v.
City of Harker Heights, 503 U.S. 115, 125 (1992). Given its slip-
pery nature, the requirements for stating a substantive due
process claim are similarly vague. A plaintiff must allege that
the government violated a fundamental right or liberty.
Glucksberg, 521 U.S. at 720; Belcher v. Norton, 497 F.3d 742, 753
(7th Cir. 2007). And that violation must have been arbitrary
and irrational. Cty. of Sacramento v. Lewis, 523 U.S. 833, 845
(1998); Idris v. City of Chicago, 552 F.3d 564, 566 (7th Cir. 2009).
Substantive due process protects against only the most egre-
gious and outrageous government action. See Lewis, 523 U.S.
at 845; Belcher, 497 F.3d at 753 (7th Cir. 2007).
“[E]mployment-related rights are not fundamental.” Palka
v. Shelton, 623 F.3d 447, 453 (7th Cir. 2010). Accordingly, a
6 No. 18-3472
public employee alleging wrongful termination cannot state a
substantive due process claim “unless the employee also al-
leges the defendants violated some other constitutional right
or that state remedies were inadequate.” Id. (citing Montgom-
ery v. Stefaniak, 410 F.3d 933, 939 (7th Cir. 2005)). Thus, to state
a claim, Campos must allege that the defendants deprived
him of a state-created property interest by arbitrary and irra-
tional conduct and that the defendants either committed a
separate constitutional violation or state law remedies are in-
adequate. Galdikas v. Fagan, 342 F.3d 684, 691 (7th Cir. 2003),
abrogated on other grounds by Spiegla v. Hull, 371 F.3d 928 (7th
Cir. 2004).
Campos spends considerable time arguing that he pos-
sesses a property interest in continued employment. The de-
fendants do not deny he does, and we assume the same. The
dispositive question is whether Campos’s allegations satisfy
the remaining elements.
To begin with, Campos hasn’t alleged an independent
constitutional violation. He seems to contend that “[h]is prop-
erty interest was the other constitutional right.” But the exist-
ence of a property right is a predicate to a due process claim.
Hudson v. City of Chicago, 374 F.3d 554, 559 (7th Cir. 2004).
Campos’s alleged property interest in his employment satis-
fies one element of his due process claim, but it doesn’t con-
stitute an independent constitutional claim on its own.
On appeal, Campos makes no mention of the First Amend-
ment retaliation claim which he alleged in his amended com-
plaint. Accordingly, he has waived any challenge to the dis-
trict court’s dismissal of that claim. Puffer v. Allstate Ins. Co.,
675 F.3d 709, 718 (7th Cir. 2012). Campos does make several
opaque references to “stigma-plus claims” in his opening
No. 18-3472 7
brief. But he never explains what he means by that term, much
less cite any cases articulating the elements of the claim or
clearly identifying the facts which might support its applica-
tion here. 2 Campos has waived this underdeveloped argu-
ment. Id. Accordingly, Campos has not identified any inde-
pendent constitutional violations which might support his
substantive due process claim.
Campos also argues that the protracted state court pro-
ceedings demonstrate the inadequacy of his state law reme-
dies. He cites to cases which establish that public employers
must provide tenured employees with a timely and meaning-
ful hearing before termination. See, e.g., Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 541 (1985); Hudson, 374 F.3d at 559.
But these cases discuss the minimum procedural due process
requirements for terminating public employees. Campos has
alleged substantive due process violations.
Campos’s allegations fall short. To begin with, his state
court remedies have, in fact, been effective. He’s twice con-
vinced the circuit court to vacate the Merit Board’s decision.
The fact that the circuit court identified problems in both
Merit Board decisions doesn’t show that the Merit Board
2 In his reply brief, Campos finally unveils the basis for this mysterious
“stigma-plus” claim. He seems to mean what we’ve referred to as an “oc-
cupational-liberty claim.” See Palka, 623 F.3d at 454 (“An occupational-lib-
erty claim may arise when, after an adverse employment action, a public
employer stigmatizes the employee by making public comments impugn-
ing his good name, honor, or reputation or imposes a stigma that fore-
closes other employment opportunities.”). This is too little, too late. Parties
waive arguments which they develop for the first time in a reply brief.
Harris v. Warrick Cty. Sheriff's Dep’t, 666 F.3d 444, 448 (7th Cir. 2012)
8 No. 18-3472
procedures are inadequate—it demonstrates that the review
process has worked. See Palka, 623 F.3d at 453 (holding that
the Merit Board disciplinary process satisfies Cook County’s
procedural due process obligation).
Of course, the Fourteenth Amendment guarantees Cam-
pos an opportunity to be heard regarding his termination “at
a meaningful time and in a meaningful manner.” Logan v.
Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (quoting Arm-
strong v. Manzo, 380 U.S. 545, 552 (1965)). Eventually, justice
delayed is justice denied. See Schroeder v. City of Chicago, 927
F.2d 957, 960 (7th Cir. 1991) (“[A]t some point delay must
ripen into deprivation, because otherwise a suit alleging dep-
rivation would be forever premature.”). And almost eight
years have elapsed since the sheriff first suspended Campos.
But there is no bright-line rule for determining when pro-
tracted review proceedings run afoul of due process. See
Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (explaining that
courts identify due process requirements by carefully weigh-
ing the relevant interests). And state law remedies fail to sat-
isfy due process only when they are “meaningless or nonex-
istent.” Michalowicz v. Vill. of Bedford Park, 528 F.3d 530, 535
(7th Cir. 2008) (rejecting a procedural due process claim
brought by a terminated firefighter) (quoting Easter House v.
Felder, 910 F.2d 1387, 1406 (7th Cir. 1990)). We do not opine on
whether the lengthy termination process satisfies Campos’s
procedural due process rights (though we do note that federal
lawsuits often pend for several years, especially if remanded
to the district court). See Easter House, 910 F.2d at 1406(“[A]lmost all litigation, whether conducted in a state or fed-
eral forum, may be characterized as a lengthy and speculative
No. 18-3472 9
process.”). But the eight-year process is certainly not so arbi-
trary or outrageous as to violate substantive due process. 3
We offer no opinion regarding when delays in reaching a
final adjudication might offend procedural due process. We
merely find that the convoluted proceedings here are evi-
dence that Campos has received repeated—and efficacious—
opportunities to challenge his termination. The district court
properly dismissed Campos’s due process and conspiracy
claims.
B. The District Court Did Not Abuse Its Discretion By Dismiss-
ing Campos’s Claims With Prejudice
Finally, Campos argues that the district court erred when
it dismissed his claims with prejudice. We review that deci-
sion for abuse of discretion. Haywood v. Massage Envy Fran-
chising, LLC, 887 F.3d 329, 335 (7th Cir. 2018). The court cer-
tainly did not err when it dismissed Campos’s amended com-
plaint with prejudice. For the reasons we’ve just articulated,
3 We note, briefly, that post-Taylor developments in Illinois law do not
affect our analysis (despite Campos’s arguments to the contrary). In Lopez
v. Dart, the Illinois appellate court applied the de facto officer doctrine—
which confers validity on acts performed by a person acting under color
of title even if a later defect in his or her appointment comes to light—to
Merit Board decisions. 118 N.E.3d 580, 591, 595 (Ill. App. Ct. 2018). Ac-
cordingly, only the first challenger may invalidate the agency decision.
The Illinois court of appeals issued Lopez after the circuit court vacated the
second Merit Board decision in Campos’s case. The district court observed
that this decision may have been erroneous (and the County has asked the
circuit court for reconsideration). Naturally, Campos disagrees. He argues
that de facto officers can still commit constitutional violations. That’s un-
doubtedly true but ultimately irrelevant because he hasn’t stated a claim.
We, of course, offer no opinion regarding the proper resolution of Cam-
pos’s appeal before the circuit court.
10 No. 18-3472
Campos did not state claims upon which relief could be
based, and a district court need not grant leave to amend if
there doesn’t seem to be a plausible way to cure the defects.
Gonzalez-Koeneke v. West, 791 F.3d 801, 808 (7th Cir. 2015).
We are slightly more concerned about the district court’s
dismissal of the Steptoe defendants (back in May 2018). That
dismissal came after Campos filed an amended complaint as
of right (as permitted by Federal Rule of Civil Procedure
15(a)(B)) but before defendants filed a motion to dismiss that
new complaint. At the May 11, 2018, hearing, the district court
suggested that the amended complaint wasn’t properly filed
because it hadn’t been “presented,” as required by the Local
Rules. N.D. Ill. L.R. 5.3(b) (“Every motion or objection shall be
accompanied by a notice of presentment specifying the date
and time on which, and judge before whom, the motion or
objection is to be presented.”).
Local Rule 5.3(b) applies only to motions or objections,
and an amended complaint filed as of right is neither. The dis-
trict court thus dismissed the Steptoe defendants sua sponte
and without considering the facts alleged against them in the
operative complaint.
If Campos could conceivably state a claim against the
Steptoe attorneys, we would remand. But § 1983 plaintiffs can
sue private attorneys for constitutional violations only if they
were “engaged in a conspiracy with state officials to deprive
another of federal rights.” Tower v. Glover, 467 U.S. 914, 920
(1984). And given Campos’s failure to state any underlying
constitutional claims, he hasn’t alleged any conspiracy be-
tween the Steptoe defendants and county defendants. Ac-
cordingly, remand would be futile. See Shockley v. Jones, 823
F.2d 1068, 1073 (7th Cir. 1987) (explaining that the court
No. 18-3472 11
improperly dismissed the complaint sua sponte but finding
that remand would be futile because his proposed amended
complaint did not state a claim either); Baker v. Dir., U.S. Pa-
role Comm’n, 916 F.2d 725, 726 (D.C. Cir. 1990).
III. CONCLUSION
The Cook County Sheriff referred Campos for termination
in 2011, and the proceedings are still pending to this day. But
the lengthy review process demonstrates Campos’s success in
attacking the Merit Board’s decisions, not the inadequacy of
the state remedies. The doctrine of substantive due process
does not guarantee expeditious review; it merely protects fun-
damental rights from government deprivation by arbitrary
and outrageous conduct. He doesn’t allege any such conduct
here. AFFIRMED.