In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1461

JANE DOE,

Plaintiff-Appellant,

v.

VILLAGE OF ARLINGTON HEIGHTS, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11-cv-02764 — Edmond E. Chang, Judge.

____________________

ARGUED OCTOBER 1, 2014 — DECIDED APRIL 13, 2015

____________________

Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit 

Judges.

TINDER, Circuit Judge. Jane Doe sued police officer Mark 

Del Boccio and his employer, the Village of Arlington 

Heights (“Arlington Heights” or the “Village”), alleging 

claims arising out of Del Boccio’s response to a 911 call when 

he encountered Doe and three males in an apparently intoxicated state. Del Boccio left Doe with the males and she was 

then sexually assaulted. The district court dismissed all 
2 No. 14-1461

claims, denied leave to amend the complaint, and denied 

Doe’s motion to alter or amend its judgment. We affirm.

I. The Complaint’s Allegations

Jane Doe, a minor female, was drinking alcohol with a 

group of teenagers on the premises of an apartment complex 

located in both Arlington Heights and Mount Prospect, Illinois. A site manager assigned to the apartment complex observed the group smoking and drinking near the complex’s 

dumpster and called 911 to report them. Shortly after calling 

911, the manager saw part of the group leave; Doe and three 

males remained and drank straight from a vodka bottle. Doe 

became intoxicated and the three males began moving her to 

a secluded area. Two of them had to hold her up because she 

was so intoxicated.

Arlington Heights Police Officer Mark Del Boccio arrived 

on the scene. At the time, one of the males, Christopher 

Balodimas, was holding Doe up from behind because she 

could not stand up by herself. In addition, her head was 

down and her eyes were closed, all because of her intoxication. Del Boccio rolled down his window and talked to the 

three males. Then Del Boccio allowed them to leave the scene with Doe.

The site manager approached Del Boccio and Del Boccio 

told him that the three males were taking Doe home. The 

manager told Del Boccio that the group had been drinking 

straight from a vodka bottle, and Del Boccio responded that 

the males were taking Doe home. Del Boccio left the scene. 

He failed to ask Doe or any of the males for identification. 

Had Del Boccio done so and had he investigated, he would 

have learned that Balodimas was on probation for armed 
No. 14-1461 3

robbery and that Doe and the other males were minors. Del 

Boccio reported to dispatch that he had checked the scene 

and the subjects of the 911 call were gone on arrival. At some 

point, although it is unclear exactly when, Del Boccio called 

off Officer Patrick Spoerry, who had also been dispatched to 

the scene.

After Del Boccio left the scene, the three males carried 

Doe into a laundry room in one of the buildings of the 

apartment complex. When the site manager observed this 

happening, he again called 911. Mount Prospect police officers responded to the call. When the officers entered the 

laundry room, they caught Balodimas sexually assaulting 

Doe. Balodimas and the two other males were arrested. 

II. The District Court Proceedings

Doe sued Del Boccio and Arlington Heights in Illinois 

state court. Defendants removed the case to the federal district court in the Northern District of Illinois. The 66–page 

complaint alleged the following: state law claims of negligence, willful and wanton conduct, and intentional infliction 

of emotional distress against Del Boccio and the Village 

(Counts I, II, and III); a claim under 42 U.S.C. § 1983, against 

Del Boccio (Count IV); a § 1983 municipal liability claim

against the Village based on its background check and hiring 

of Del Boccio (Count V); a § 1983 claim against the Village 

based on Del Boccio’s conduct (Count VI); a § 1983 claim 

against the Village based on the alleged negligent hiring of 

Del Boccio (Count VII); and a state-law willful and wanton 

misconduct in hiring claim against the Village (Count VIII).

Defendants moved to dismiss the complaint for failure to 

state a claim, contending among other arguments that Del 
4 No. 14-1461

Boccio was entitled to qualified immunity, there was no constitutional duty to protect Doe, and state law provided the 

defendants immunity. The district court granted the motion 

to dismiss. 

Doe moved to alter or amend the judgment, seeking to 

vacate the dismissal of her federal claims and asserting for 

the first time that she had a class-of-one equal protection 

claim. According to Doe, she sought to amend her complaint 

to allege that Del Boccio was a racist who wanted harm to 

come to her because she was an intoxicated white girl socializing with African-American youths. Doe did not attach a 

proposed amended complaint to her Federal Rule of Civil 

Procedure 59(e) motion, but she did assert facts that she argued supported a class-of one claim. In an effort to portray 

Del Bocchio as a racist in her appellate brief, Doe refers to a 

tragic incident in 2004 when Del Boccio, while operating an 

unmarked police car, ran over and killed an eight-year-old 

boy and seriously injured an eleven-year-old girl and then 

lied to cover it up. (The children were African American.) 

She asked the court to vacate its dismissal of her supplemental state-law claims, relinquish jurisdiction over them, 

and remand them to state court, arguing for the first time 

that the state claims raised novel and complex issues of state 

law. The court treated Doe’s motion in part as a motion for 

leave to amend her complaint and denied leave to amend on 

the basis of futility. The court also denied the motion to alter 

or amend its judgment.
No. 14-1461 5

III. Discussion

Doe appeals the district court’s judgment of dismissal 

and its denial of her motion to alter the judgment.1 She argues that the court erred in dismissing her complaint for 

failure to state a claim and denying her leave to amend to 

assert a class-of-one equal protection claim. Doe also argues 

that the court abused its discretion in exercising jurisdiction 

over the supplemental state law claims and, alternatively, 

that it erred in predicting how the Illinois Supreme Court 

would decide those claims. We review the grant of a motion 

to dismiss for failure to state a claim de novo. Camasta v. Jos. 

A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). We 

review the denial of a motion to alter or amend the judgment for abuse of discretion. Cincinnati Life Ins. Co. v. Beyrer, 

722 F.3d 939, 953 (7th Cir. 2013). A party “establishes an 

abuse of discretion only when no reasonable person could 

agree with” the district court’s decision. Id. (quoting Jones v. 

Lincoln Elec. Co., 188 F.3d 709, 735 (7th Cir. 1999)).

“To survive a motion to dismiss under Rule 12(b)(6), the 

complaint must provide enough factual information to ‘state 

a claim to relief that is plausible on its face’ and ‘raise a right 

to relief above the speculative level.’” Camasta, 761 F.3d at 

736 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 

(2007)). “A claim has facial plausibility when the plaintiff 

1 Doe fails to mention the two federal claims against Arlington Heights 

premised on its background check and hiring of Del Boccio (Counts V 

and VII); she therefore waived any challenge to the district court’s dismissal of those claims. See, e.g., McCoy v. Maytag Corp., 495 F.3d 515, 525 

(7th Cir. 2007).

 
6 No. 14-1461

pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When 

reviewing a dismissal for failure to state a claim, we accept 

all well-pleaded facts as true and view them in a light most 

favorable to the plaintiff; however, mere conclusory statements are insufficient to survive a motion to dismiss. 

Camasta, 761 F.3d at 736. “Where a complaint pleads facts 

that are ‘merely consistent with’ a defendant’s liability, it 

‘stops short of the line between possibility and plausibility of 

entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twonbly, 

550 U.S. at 557).

The district court decided that Del Boccio was entitled to 

qualified immunity. Qualified immunity shields a government official from liability for damages when the official’s 

“conduct does not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would 

have known.’” Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th 

Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982)); see also Mordi v. Zeigler, 770 F.3d 1161, 1163–64 (7th 

Cir. 2014) (discussing the qualified immunity doctrine). 

Courts use a two-part test to determine whether officers are 

entitled to qualified immunity: “(1) whether the facts, 

viewed in a light most favorable to the injured party, 

demonstrate that the conduct of the officers violated a constitutional right, and (2) whether that right was clearly established at the time the conduct occurred.” Hardaway, 734 F.3d 

at 743 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). A 

court has discretion to consider either part of the test first. 

Pearson, 555 U.S. at 236.
No. 14-1461 7

Doe alleges that Del Boccio violated her constitutional 

rights by (1) failing to adequately investigate the 911 complaint, and (2) acting to prevent other officers from arriving 

on the scene, specifically by calling off Officer Spoerry who 

also had been dispatched, and falsely reporting to dispatch 

that the subjects of the 911 call were gone on arrival. The defendants argue that no clearly established law put Del Boccio 

on notice that any of his alleged conduct violated Doe’s constitutional rights. 

In deciding whether a right is “clearly established,” 

courts ask “whether it would be clear to a reasonable officer 

that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). A plaintiff bears 

the burden of establishing that the constitutional right was 

clearly established. Volkman v. Ryker, 736 F.3d 1084, 1090 (7th 

Cir. 2013). Although the plaintiff need not point to a case directly on point, “existing precedent must have placed the 

statutory or constitutional question beyond debate.” Ashcroft 

v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). In other words, “the 

plaintiff must demonstrate either that a court has upheld the 

purported right in a case factually similar to the one under 

review, or that the alleged misconduct constituted an obvious violation of a constitutional right.” Lunini v. Grayeb, 395 

F.3d 761, 769 (7th Cir. 2005). Doe has not identified any case 

factually similar to this one that would have provided a reasonable officer with notice that he had a constitutional duty 

to protect Doe in the situation that Del Boccio encountered. 

Nor has she argued that the alleged constitutional violation 

was obvious. Instead, she argues that the district court misunderstood her theory of liability and misread the complaint. She does not, however, explain how the court erred in 
8 No. 14-1461

these ways, and no error is apparent to us on reviewing the 

complaint. 

In addition, Doe argues that the district court erred by resolving the qualified immunity defense at the pleading 

stage. Yet the Supreme Court “repeatedly [has] stressed the 

importance of resolving immunity questions at the earliest 

possible stage in litigation.” Saucier, 533 U.S. at 201 (quoting 

Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Even though dismissal under Rule 12(b)(6) on qualified immunity grounds 

may be inappropriate in many cases, see Alvarado v. Litscher, 

267 F.3d 648, 651 (7th Cir. 2001) (noting “that a complaint is 

generally not dismissed under Rule 12(b)(6) on qualified 

immunity grounds . . . . [b]ecause an immunity defense usually depends on the facts of the case”), in some cases it is 

proper; indeed, we have reversed the denial of qualified 

immunity at the pleading stage where appropriate, see, e.g., 

Chassensky v. Walker, 740 F.3d 1088, 1095–97 (7th Cir. 2014) 

(holding that the plaintiff failed to establish a clearly established right and the district court erred in denying the defendants’ motion to dismiss on qualified immunity 

grounds); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007) 

(reversing denial of motion to dismiss plaintiff’s access-tothe-courts claim because officials were entitled to qualified 

immunity). 

The district court correctly determined that it was not 

clearly established that calling off another police officer or 

falsely reporting to dispatch that the scene was clear violates 

a constitutional right of a victim of private violence. Doe has 

not shown that it was clearly established that any other conduct or inaction of Del Boccio violated a constitutional right. 

Even assuming that the complaint alleges that Del Boccio 
No. 14-1461 9

violated Doe’s constitutional right, the law was not clearly 

established such that he should have known he was violating her rights. Therefore, Del Boccio is entitled to qualified 

immunity and Count IV against him was properly dismissed. And Count VI against the Village, which was premised only on Del Boccio’s conduct and not on an alleged municipal policy or custom, was properly dismissed as well. See 

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (holding 

that a municipality cannot be held liable under § 1983 on a 

respondeat superior theory but can be held liable only where a 

municipality policy or custom causes the injury).

The district court provided an alternative ground for its 

dismissal of the federal claims: the complaint did not allege a 

constitutional violation. DeShaney v. Winnebago County Department of Social Services holds that, as a rule, “a State’s failure to protect an individual against private violence simply 

does not constitute a violation of the Due Process Clause.” 

489 U.S. 189, 197 (1989). The purpose of the Due Process 

Clause “was to protect the people from the State, not to ensure that the State protected them from each other.” Id. at 

196. Thus, due process “generally confer[s] no affirmative 

right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which 

the government itself may not deprive the individual.” Id.

Doe was assaulted by private, third-party actors. This general rule seemingly defeats her due process claims. 

However, there are two exceptions to DeShaney’s general 

rule (1) when the state has a “‘special relationship’” with the 

person such as “when it has custody over a person, it must 

protect him because no alternate avenues of aid exist,” and 

(2) under the state-created danger exception, “‘liability exists 
10 No. 14-1461

when the state affirmatively places a particular individual in 

a position of danger the individual would not otherwise 

have faced.’” Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 

824, 827 (7th Cir. 2009) (quoting Monfils v. Taylor, 165 F.3d 

511, 516 (7th Cir. 1998)); see also Slade v. Bd. of Sch. Dirs. of 

Milwaukee, 702 F.3d 1027, 1030 (7th Cir. 2012) (discussing 

two exceptions as the “special relationship” and “trap” cases 

and stating that “[a]ll acts are affirmative, including standing still when one could save a person by warning him of 

some impending danger”). On appeal, Doe argues only that 

the state-created danger exception applies.

The state-created danger exception is a narrow one. Hernandez v. City of Goshen, Ind., 324 F.3d 535, 538 (7th Cir. 2003). 

The exception applies where the state creates or increases a 

danger to an individual. See Sandage v. Bd. of Comm’rs, 548 

F.3d 595, 598–99 (7th Cir. 2008) (stating “had it not been for 

the state’s inaction in DeShaney, there would have been no 

injury”); Paine v. Cason , 678 F.3d 500, 510 (7th Cir. 2012) 

(“Several decisions in this and other circuits hold that people 

propelled into danger by public employees have a good 

claim under the Constitution.”). To “‘create or increase’ must 

not be interpreted so broadly as to erase the essential distinction between endangering and failing to protect” and thus 

circumvent DeShaney’s general rule. Sandage, 548 F.3d at 599 

(citation and emphasis omitted). “When courts speak of the 

state’s ‘increasing’ the danger of private violence, they mean 

the state did something that turned a potential danger into 

an actual one, rather than that it just stood by and did nothing to prevent private violence.” Id. at 600.

The “cases in which we have either found or suggested 

that liability attaches under the ‘state-created danger’ excep-
No. 14-1461 11

tion are rare and often egregious.” Estate of Allen v. City of 

Rockford, 349 F.3d 1015, 1022 (7th Cir. 2003). In White v. Rochford, 592 F.2d 381, 382 (7th Cir. 1979), for example, the police 

arrested a driver for drag racing and left the children passengers stranded alone in the car on a busy highway on a 

cold night. In Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir. 

1993), we concluded that police officers could be held liable 

under the state-created danger exception where they arrested a sober driver and left behind an obviously drunk passenger with the keys to the vehicle who later caused a collision, injuring the plaintiffs. In Monfils, a police officer took 

responsibility for preventing release of a tape recording of 

an informant’s anonymous tip but then went deer hunting 

instead of taking standard steps to prevent the tape’s release 

despite knowing that the release would place the informant 

in heightened danger, and the informant was killed. Monfils, 

165 F.3d at 520. And recently in Paine, the police arrested a 

woman in a safe place and released her in a hazardous one 

while she was unable to protect herself. 678 F.3d at 511. In 

each of these cases, the police encountered a potential danger and turned it into an actual one. And in each of these 

cases, the plaintiff was safe, or at least considerably safer, 

before the police acted than he or she was thereafter.

In contrast, for example, in Windle v. City of Marion, 321 

F.3d 658, 661–62 (7th Cir. 2003), we held that a police officer’s failure to intervene to protect a student despite 

knowledge that she was being sexually molested by a middle school teacher did not increase the danger. For at least 

two months, police officers intercepted telephone conversations between the student and teacher and learned that the 

student was being molested by the teacher. Id. at 660. The

officers had enough information to conduct an investigation 
12 No. 14-1461

and intervene on the student’s behalf, but they did nothing. 

Id. We held that the officers’ inaction did not create a danger, 

nor did they do anything to make the danger to the student 

worse. Id. at 662. We reasoned that “we ha[d] no way of 

knowing what would have occurred” had the police actually 

done something, and that “the police might have failed at 

protecting [the plaintiff].” Id. Had the police never been involved, the danger to the plaintiff would have been the same 

or worse. Id. We noted that the plaintiff waived the argument that, and we did not address whether, “a constitutional 

violation would exist where one member of a law enforcement unit discouraged or prevented another from protecting 

a victim.” Id. at 662 n.3. 

This case is not sufficiently similar to those cases in 

which we have applied the state-created danger exception; it 

is more like Windle and cases in which the exception was inapplicable. Del Boccio did not create the danger to Doe, nor 

did he do anything to make the danger to her worse. When 

he left Doe with the three young males, he left her just as he 

found her, “plac[ing] [her] in no worse position than that in 

which [s]he would have been had [he] not acted at all.” 

DeShaney, 489 U.S. at 201. Not even the allegations that Del 

Boccio called off Officer Spoerry (or falsely reported to dispatch that the subjects were gone) created or increased the 

danger to Doe. Had Del Boccio had not called off Officer 

Spoerry or falsely reported to dispatch, we have no way of 

knowing what would have happened. Officer Spoerry might 

have failed at protecting Doe. See Windle, 321 F.3d at 662.

This contrasts with Ross v. United States, 910 F.2d 1422, 

1424–25 (7th Cir. 1990), where competent rescuers were on 

the scene with rescue equipment and ready to begin their 
No. 14-1461 13

efforts to rescue a drowning boy when the police arrived 

and ordered them to cease their efforts because county policy prohibited civilian rescue attempts. A sheriff’s deputy 

advised the rescuers that he would arrest them upon their 

entry into the water and even placed his boat so as to prevent their dive. Id. at 1425. About thirty minutes after the 

boy had fallen into the water, the authorized divers arrived 

and pulled him out of the water. Id. He died the next day. Id.

We held that plaintiff sufficiently alleged a constitutional injury. Id. at 1433–34. Significantly, in Ross the chances of a 

successful rescue were high, and there was a direct connection between the deputy’s actions and the boy’s drowning. 

Here, we can only speculate whether Del Boccio made Doe 

worse off, whether by calling off Officer Spoerry or falsely 

reporting to dispatch. 

This is not a case in which Doe was safe, or even considerably safer, before Del Boccio acted. His alleged conduct 

did not turn a potential danger into an actual one; Doe was 

in actual danger already. Therefore, Del Boccio had no constitutional duty to protect her. But even if calling off Officer 

Spoerry violated Doe’s constitutional rights, it was not clearly established and Del Boccio nonetheless would be entitled 

to qualified immunity.

Doe suggests that discovery would have allowed her to 

uncover facts to support allegations that the state-created 

danger exception is applicable. She relies on Adams v. City of 

Indianapolis, Ind., 742 F.3d 720 (7th Cir.), cert. denied, 135 S. Ct. 

286 (2014), where we said that “the court must review the 

complaint to determine whether it contains ‘enough fact to 

raise a reasonable expectation that discovery will reveal evidence’ to support liability for the wrongdoing alleged.” Id. at 
14 No. 14-1461

729 (quoting Twombly, 550 U.S. at 556). Doe chooses to emphasize what she thinks discovery might reveal, for example, 

that Del Boccio made statements to encourage or embolden 

Balodimas to rape her. Nonetheless, a complaint must plead 

“enough facts to state a claim to relief that is plausible on its 

face,” Twombly, 550 U.S. at 570, “raise a right to relief above 

the speculative level,” id., at 555, and “allow[] the court to 

draw the reasonable inference that the defendant is liable for 

the misconduct alleged,” Iqbal, 556 U.S. at 678. Doe’s complaint fails to do so. It contains no allegation, for example, of 

any statement of encouragement by Del Boccio. Cf. Dwares v. 

City of New York, 985 F.2d 94, 99 (2d Cir. 1993) (holding that 

complaint alleging officers conspired with skinheads to allow them to beat up others with impunity sufficiently stated 

a due process claim). Similarly, in asserting the facts in her 

Rule 59(e) motion that purportedly supported a class-of-one 

claim, Doe failed to allege that Del Boccio said any words of 

encouragement to the youths or took any other affirmative 

action to suggest that he was giving them “a pass” or emboldening them to “have their way” with Doe. Furthermore, 

the claim that Doe says discovery might support—that Del 

Boccio encouraged the males to assault her—is not “plausible on its face.” 

Leave to amend a complaint should be freely given 

“when justice so requires.” Fed. R. Civ. P. 15(a)(2). However, 

leave may be denied where the amendment would be futile. 

McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir. 

2014). We review the denial of leave to amend for an abuse 

of discretion, id., and “will reverse ‘only if no reasonable 

person could agree with that decision,’” Adams, 742 F.3d at 

734 (quoting Carroll v. Stryker Corp., 658 F.3d 675, 684 (7th 

Cir. 2011) (citation omitted)). 
No. 14-1461 15

The district court did not abuse its discretion in denying 

Doe leave to amend her complaint to allege a class-of-one 

equal protection claim. We have held that, when a plaintiff 

“did not attach its proposed amended complaint to its motion for reconsideration or take the necessary steps to make 

its proposed amendment a part of the record on appeal, we 

cannot meaningfully assess whether its proposed amendment would have cured the deficiencies in the original 

pleading.” Crestview Vill. Apartments v. U.S. Dep’t of Hous. & 

Urban Dev., 383 F.3d 552, 558 (7th Cir. 2004). We have also 

said that “the failure to tender an amended complaint with a 

motion to alter judgment may indicate a lack of diligence or 

good faith.” Harris v. City of Auburn, 27 F.3d 1284, 1287 (7th 

Cir. 1994). Because Doe failed to submit a proposed amended complaint with her Rule 59(e) motion, we are unable to 

meaningfully evaluate whether the proposed amendment 

would have cured the deficiencies in the original complaint.

Furthermore, Doe’s allegations do not suggest any plausible basis for such a claim. State actions are entitled to a 

presumption of constitutionality; it is the plaintiff’s burden 

to show that it is plausible that the state actions were “in fact 

discriminatory.” Del Marcelle v. Brown Cnty. Corp., 680 F.3d 

887, 913 (7th Cir. 2012) (Wood, J., dissenting). “[T]he complaint must set forth a plausible account of intentional discrimination, which is required for any violation of the Equal 

Protection Clause.” Id. Yet Doe alleges nothing to suggest 

that Del Boccio intentionally treated her differently than he 

treated others similarly situated, see, e.g., Fares Pawn, LLC v. 

Ind. Dep’t of Fin. Insts., 755 F.3d 839, 845 (7th Cir. 2014); Lunini v. Grayeb 395 F.3d 761, 769–70 (7th Cir. 2005) (“We have 

previously held that a class of one claim must fail where the 

plaintiff has failed to identify someone who is similarly situ-
16 No. 14-1461

ated but intentionally treated differently than he.” (internal 

quotation marks omitted)), so an amendment would be futile. Thus, with respect to the federal claims based on Del 

Boccio’s conduct, the district court’s denial of Doe’s motion 

to alter the judgment, which the court construed as a motion 

for leave to amend, was not an abuse of discretion. See

McCoy, 760 F.3d at 684. Moreover, the suggestion that Del 

Boccio was a racist who wanted Doe raped because she was 

an intoxicated white female socializing with three AfricanAmericans is not plausible. Del Boccio’s conduct in the tragic 

motor vehicle accident involving two African-American 

children and his cover-up of it bear no resemblance to his 

alleged actions in this case. Any suggestion that there is a 

link between the two events, and that the link is rooted in 

Del Boccio’s racism, is based on rank speculation.

A district court has discretion to decline to exercise supplemental jurisdiction over state law claims arising from the 

same case or controversy as the federal claims where “the 

claim raises a novel or complex issue of State law” or “the 

district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. 1367(c). Bond v. Atkinson, 728 

F.3d 690 (7th Cir. 2013), relied on by Doe, does not state the 

contrary; it does not say that a district court “must” relinquish jurisdiction when all federal claims are dismissed before trial. Section 1367(c) does not say that either. 28 U.S.C. § 

1367(c) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection ....”); see 

also Bailey v. City of Chicago, No. 13-3670, 2015 WL 968832, at 

*6 (7th Cir. Mar. 6, 2015) (“[Section] 1367(c)(1) states that a 

district court may decline to exercise supplemental jurisdiction where a state law claim raises a novel or complex issue 

of state law; it does not require a district court to do so.”). 
No. 14-1461 17

We review the decision to exercise supplemental jurisdiction 

under § 1367(c) for an abuse of discretion. Hansen v. Bd. of 

Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 606 (7th Cir. 

2008).

The complaint asserted four state law claims. Three are 

based on Del Boccio’s investigation and response to the 911 

call and are asserted against both defendants: Count I alleges 

negligence, Count II alleges willful and wanton conduct, and 

Count III alleges intentional infliction of emotional distress. 

The fourth state law claim, Count VIII, is against Arlington 

Heights only and alleges willful and wanton conduct in failing to adequately investigate Del Boccio’s background and 

in hiring him. “‘Wilful and wanton conduct, as contemplated in [the Tort Immunity Act], consists of more than mere 

inadvertence, incompetence, or unskillfulness.’” McDowell v. 

Vill. of Lansing, 763 F.3d 762, 768 (7th Cir. 2014) (quoting 

Geimer v. Chi. Park Dist., 650 N.E.2d 585, 592 (Ill. App. 1995) 

and holding officer and governmental entity enjoyed immunity from state-law claim where officer’s actions were not 

willful or wanton).

The district court did not abuse its discretion in retaining 

jurisdiction over these claims because their resolution was 

clear: the claims are barred by the Illinois Tort Immunity 

Act, 745 ILCS 10/2-101–10-101. See id. §§ 2-103 (granting immunity to governmental entities from liability for injury 

caused by the failure to enforce any law), 2-109 (granting a 

governmental entity immunity from liability “for injury resulting from an act or omission of its employee where the 

employee is not liable”), 2-202 (“A public employee is not 

liable for his act or omission in the execution or enforcement 

of any law unless such act or omission constitutes willful 
18 No. 14-1461

and wanton conduct.”), 2-204 (providing public employees 

immunity from liability for injury caused “by the act or 

omission of another person”), 2-205 (providing public employees immunity from liability for injury caused by the 

failure to enforce any law), 4-102 (providing immunity to 

governmental entities and employees from liability caused 

by the failure to provide police protection, provide adequate 

police protection, prevent the commission of crimes, detect 

or solve crimes, or identify and apprehend criminals), and 4-

107 (granting governmental entities and employees immunity for injury “caused by the failure to make an arrest or by 

releasing a person in custody”); McDowell, 763 F.3d at 768. 

There is no willful and wanton exception for provisions of 

the Act that do not expressly contain such an exception. See 

Jane Doe-3 v. McClean Cty. Unit Dist. No. 5 Bd. of Dirs., 973

N.E.2d 880, 893 (Ill. 2012) (reiterating that “where a provision of the Tort Immunity Act contains no exception for willful and wanton conduct, we will not read one in”); Ries v. 

City of Chicago, 950 N.E.2d 631, 644 (Ill. 2011) (holding that 

the willful and wanton exception in § 2-202 does not apply a 

general willful and wanton exception to the other sections of 

the Act). Other than § 2-202, none of these sections of the Act 

contain an exception for willful or wanton conduct. 

Doe suggests that the Illinois Supreme Court might determine that Del Boccio owed her a duty of care under the 

“community caretaking” or “emergency aid” doctrines. Unlike Doe, we do not read in Jane Doe-3 any inkling that the 

Illinois Supreme Court would conclude that where a police 

officer encounters “an intoxicated, falling down drunk fifteen year old girl in the company of three intoxicated teenage males in a dark and isolated parking lot,” the state’s interest in protecting children would vitiate the immunity the 
No. 14-1461 19

officer otherwise would have under § 4-102 of the Tort Immunity Act. To be sure, in such a situation a police officer 

would have a moral duty to take action, and may have state 

statutory duties to act as well. But Doe points to nothing to 

suggest that the existence of the duty itself is enough to negate tort immunity. Doe-3 does not even address § 4-102 

immunity. 

Doe cites DeSmet ex rel Estate of Hays v. County of Rock Island, 848 N.E.2d 1030, 1045 (Ill. 2006), which does address § 

4-102, and notes that “there may be additional exceptions to 

the application of [§] 4-102 where a legislative enactment 

identifies a specially protected class of individuals to whom 

statutorily mandated duties are owed.” Id. at 1045. However, 

Doe fails to point to any such legislative enactment that applies to someone in the situation in which Del Boccio found 

her. Furthermore, even if Doe had mounted a successful 

challenge to § 4-102 immunity based on the public policy of 

protecting children, that would not be enough because she 

wholly fails to challenge the district court’s decision that 

numerous other sections of the Tort Immunity Act also provide immunity to the defendants in this case. 

Doe argues that the district court erred in holding that 

her negligent-hiring claim against the Village was barred by 

§ 4-102 of the Tort Immunity Act. She cites Mueller by Math v. 

Community Consolidated School Dist. 54, 678 N.E.2d 660 (Ill. 

App. Ct. 1997), and Green v. Carlinville Community Unit 

School Dist. No. 1, 887 N.E.2d 451 (Ill. App. Ct. 2008), for 

support. In Mueller, a student and her mother sued a school 

district and a wrestling coach for injuries arising from the 

coach’s sexual assault of the student. 678 N.E.2d at 662. The 

defendants argued that the school district had tort immunity 
20 No. 14-1461

under various sections of the Tort Immunity Act—§§ 2-103, 

2-104, 2-109, and 2-201. 678 N.E.2d at 663. The court concluded that the first three sections were inapplicable and 

then turned its attention to § 2-201, which immunizes governmental entities from liability for injuries caused by the 

exercise of discretionary authority. Id. at 666. A state criminal-background-check statute required that the school district conduct an investigation of job applicants. Id. The court 

concluded that the statute’s mandatory language required 

the school district to begin such an investigation before it 

was vested with the discretionary authority to hire. Id. According to the court, the school district’s “failure to comply 

with the statutorily imposed condition precedent vitiates 

any immunity it might otherwise have enjoyed under Section 2–201 of the Tort Immunity Act for [its hiring decision].” 

Id. Green agreed with and followed Mueller. 887 N.E.2d at 

458.

Doe’s argument appears confused. First, her negligenthiring claim was a federal claim, not a state law claim for 

which the district court found the Village entitled to immunity. Second, neither Mueller nor Green addressed § 4-102 immunity. And neither case holds that generally a governmental entity lacks immunity under the Act from liability for 

negligent hiring. Instead, the courts concluded that the 

school districts’ failure to comply with a mandatory state 

statute invalidated whatever immunity they might have had 

under § 2-201 of the Act. Doe has not argued that a similar 

statute applies in the context of police hiring. Moreover, the 

Illinois state courts have determined that “[t]he decision to 

hire or not to hire a police officer is an inherently discretionary act and, thus, is subject to the immunities contained in 

the Immunity Act.” Johnson v. Mers, 664 N.E.2d 668, 675 (Ill. 
No. 14-1461 21

App. Ct. 1996). The district court did not abuse its discretion 

in exercising jurisdiction over the supplemental state law 

claims and did not err in dismissing them. 

IV. Conclusion

The district court’s judgment is AFFIRMED.