1 Tabitha Hernandez joins her husband, Jesus Hernandez, as

a plaintiff in this lawsuit, claiming that the Defendants are li-

(continued...)

In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 02-3268 & 02-3269

JESUS HERNANDEZ, TABITHA HERNANDEZ

and ISMAEL GARZA,

Plaintiffs-Appellants,

v.

CITY OF GOSHEN, INDIANA, GOSHEN POLICE DEPARTMENT

and MICHAEL C. MURPHY, Personal Representative of the

Estate of ROBERT L. WISSMAN, Deceased,

Defendants-Appellees.

____________

Appeals from the United States District Court

for the Northern District of Indiana, South Bend Division.

Nos. 3:02-CV-0387-RM & 3:02-CV-0388-RM—

Robert L. Miller, Jr., Chief Judge.

____________

ARGUED FEBRUARY 26, 2003—DECIDED MARCH 31, 2003

____________

Before FLAUM, Chief Judge, and EASTERBROOK and

KANNE, Circuit Judges.

FLAUM, Chief Judge. Plaintiffs Jesus Hernandez and

Ismael Garza suffered injuries during a fatal shooting

spree waged by a coworker at their manufacturing plant.

Hernandez1

 and Garza filed lawsuits seeking damages
2 Nos. 02-3268 & 02-3269

1 (...continued)

able under Indiana state law for her loss of services, society

and consortium due to her husband’s injury. Since Mrs. Hernandez’s state law claims are not before us on appeal, our references

to “Hernandez” in the opinion apply only to Jesus Hernandez.

from the Defendants under 29 U.S.C. § 1983 and state

tort law. Hernandez and Garza’s § 1983 claims allege that

the City of Goshen, through its police department (together “the City”), violated their constitutional right to liberty

by not acting to prevent the shooting even after receiving

a call from the plant manager reporting a threat of violence to plant employees. The district court dismissed the

§ 1983 counts under Rule 12(b)(6) for failure to state a

claim, finding that the City’s failure to protect Hernandez

and Garza from their coworker’s violence did not amount

to a constitutional violation. We affirm.

I. BACKGROUND

Jesus Hernandez, Ismael Garza, and Robert Wissman

were employed at the Nu-Wood Decorative Millwork plant

in Goshen, Indiana, in December 2001. During their work

shift on December 6, 2001, Wissman got into a physical

fight with another Nu-Wood employee. Wissman left the

plant after the fight, but on his way out he threatened

to return “to do bodily harm.” After Wissman left, NuWood plant manager Greg Oswald called the Goshen

police department to report that he was concerned about

his and his employees’ safety because of Wissman’s earlier altercation and parting threat, and because Oswald

knew Wissman had access to guns. The unidentified person

who answered the phone for the police department put

Oswald on hold several times and then told him that the

police department would not get involved unless and until

Wissman harmed someone. Wissman returned to the Nu-
Nos. 02-3268 & 02-3269 3

Wood plant later that day and made good on his threat:

he shot and killed Oswald, shot and injured Hernandez,

shot at Garza, and shot and injured several other NuWood employees. Wissman also died during the shooting

spree.

Hernandez, his wife Tabitha Hernandez, and Garza

sued the City and Wissman’s estate under Indiana state

tort law, alleging negligence and wrongful death, and they

sued the City under 29 U.S.C. § 1983, alleging a substantive due process violation. The federal and state law

claims against the City are based on the City’s alleged

failure, through its police department’s conduct, policies

and procedures, to reasonably protect the Plaintiffs from

Wissman’s shooting spree. The district court dismissed the

§ 1983 counts against the City under Fed. R. Civ. P. 12(b)(6)

for failure to state a claim, finding that “a government’s

failure to protect a person against private violence generally does not amount to a violation of the [f]ederal

[c]onstitution.” See also DeShaney v. Winnebago County

Dept. of Social Svcs., 489 U.S. 189 (1989). The court then

remanded the remaining state law claims to the Elkhart

County, Indiana, Circuit Court pursuant to Fed. R. Civ. P.

54(b).

II. DISCUSSION

We review the district court’s decision to dismiss the

§ 1983 claims under Rule 12(b)(6) de novo, accepting all of

the well-pleaded factual allegations in the complaint as

true and drawing all inferences in favor of Hernandez

and Garza. We will affirm the dismissal if it appears beyond doubt from our reading of the complaint that Hernandez and Garza can prove no set of facts that would

entitle them to relief. White v. City of Markham, 310 F.3d

989, 992 (7th Cir. 2002); Conley v. Gibson, 355 U.S. 41, 45

(1957).
4 Nos. 02-3268 & 02-3269

An actionable claim for relief under § 1983 requires a

plaintiff to plead (1) a deprivation of a right secured by

the constitution or laws of the United States (2) caused by

an action taken under color of state law. Baker v. McCollan,

443 U.S. 137, 140 (1979). Only the first requirement is

at issue in this case. Hernandez and Garza’s complaints

allege that the City is liable for their injuries under § 1983

because it deprived them of their constitutional right to

liberty “by reason of a policy and/or custom of its police

department not to come to the aid of persons like [Hernandez and Garza] who [were] at foreseeable risk of harm

and/or by reason of inadequate training of its police department employees or agents amounting to deliberate

indifference to” Hernandez and Garza’s “constitutional

rights.”

The district court thought that Hernandez and Garza’s

claims that the City deprived them of a “constitutional

right to personal safety and security” were “nearly identical” to the claim made by Joshua DeShaney, who alleged

that the State had deprived him of “his liberty interest

in freedom from unjustified intrusions on personal security.” DeShaney, 489 U.S. at 195. Like the Supreme Court

in DeShaney, the district court in this case interpreted

Hernandez and Garza’s claims as alleging a deprivation of

a protected liberty interest under the 14th Amendment

resulting from the City’s failure to do anything to prevent

Wissman’s shooting spree. The court then dismissed Hernandez and Garza’s § 1983 claims because “a government’s failure to protect a person against private violence

generally does not amount to a violation of the federal

constitution.” See DeShaney, 489 U.S. at 202-03.

On appeal Hernandez and Garza argue strenuously that

their claims do not allege a constitutional violation resulting from the City’s failure to protect them against

private violence, but instead assert a constitutional violation resulting from the City’s “egregious, arbitrary and
Nos. 02-3268 & 02-3269 5

oppressively exercised power” that contributed to its “deliberate indifference to risks of foreseeable bodily harm.” In

other words, Hernandez and Garza insist that their complaint establishes

a cause of action of violation of substantive due process under § 1983 because, at the time of the incident,

the city and its police department had in place arbitrary policies, procedures and customs of deliberate

indifference to foreseeable victims of preventable

violence that shocks the conscience, that was a proximate cause of the denial of the constitutional right

to personal security and bodily integrity and, in turn,

the horrendous damages inflicted upon [Plaintiffs].

By using the phrases “deliberate indifference” and “shocks

the conscience” to describe the City’s conduct, Hernandez

and Garza try to make their case fit under Rochin v.

California, 342 U.S. 172 (1952) (holding police liable under

§ 1983 because conduct undertaken to obtain evidence—

illegally entering defendant’s bedroom and forcibly extracting pills from defendant’s body by pumping his

stomach—shocked the conscience and went beyond the

realm of reasonable evidentiary search and seizure), or

Estelle v. Gamble, 429 U.S. 97 (1976) (finding that prison officials could be liable for defendant’s injuries under

§ 1983 if injuries were caused by their deliberate indifference to prisoner’s medical needs), or County of Sacramento

v. Lewis, 523 U.S. 833 (1998) (affirming “shocked the conscience” test but finding police not liable under § 1983 for

causing death of bystander in high speed police chase),

instead of DeShaney.

Regardless of the words Hernandez and Garza use to

describe the City’s conduct in their brief, we review the

sufficiency of their § 1983 claims under Rule 12(b)(6) based

on the pleadings alone. In their complaints Hernandez

and Garza allege that the City is liable under § 1983
6 Nos. 02-3268 & 02-3269

because the police department had a policy of not coming

to the aid of persons who were at a foreseeable risk of

harm and because its inadequate training of its employees amounted to “deliberate indifference” to Hernandez and Garza’s constitutional rights. Given the facts as

pleaded, this allegation simply does not establish any

constitutional violation for which the City could be found

liable under § 1983, and the claims were appropriately

dismissed under Rule 12(b)(6).

First, neither Rochin nor Estelle nor Lewis is applicable here; in all of those cases and their progeny, § 1983

liability arises from state action or inaction based on a

recognized duty or affirmative course of conduct between the defendant state actor and the injured plaintiff.

The critical difference in this case is that the City had no

duty to the residents of Goshen to provide a police department whose policy is to investigate threats of violence,

even credible ones, made by private persons and reported by private persons. As the Supreme Court held in

DeShaney and we recently reiterated in Windle v. City of

Marion, Indiana, 2003 WL 728964, at *2 (7th Cir. 2003),

police departments have no constitutional duty to protect

private persons from injuring each other, at least where

the police department has not itself created the danger.

Thus, no matter how egregious Hernandez and Garza

might find the City’s failure to investigate credible threats

of private violence such as the one posed by Wissman,

the City’s conduct was not unconstitutional.

Second, Hernandez and Garza have not presented any

facts which would lead us to conclude that this case falls

within the narrow “state-created danger” exception to

DeShaney. We have recognized the possibility that a state

actor might incur liability under § 1983 if his or her conduct created or exacerbated the danger faced by the victim. See Windle, 2003 WL 728964, at *2; DeShaney, 489

U.S. at 201. In Windle we found no § 1983 liability where
Nos. 02-3268 & 02-3269 7

police officers learned of potential danger to the plaintiff,

Chaunce Windle, by listening to conversations between

her and her sexual abuser over a police scanner but did

not investigate the situation or act to prevent further abuse

for a period of about two months. Id., 2003 WL 728964,

at *2. We said in Windle that, just as the social workers

in DeShaney knew that Joshua DeShaney’s father was

abusing him but did not stop the abuse, the mere fact

that the officers knew that Chaunce Windle faced danger

but did not intervene until the situation reached crisis

did not mean that the officers created the danger or made

it worse for the purpose of imposing § 1983 liability.

Windle, 2003 WL 728964, at *2.

In this case, the pleadings allege that the Goshen police

department learned from Nu-Wood plant manager Greg

Oswald’s phone call that employee Robert Wissman threatened to do bodily harm to Nu-Wood employees, and that

Oswald knew Wissman had access to guns. No other

evidence of the City’s knowledge or involvement with the

situation at Nu-Wood appears on the face of the complaint. This is even less information about the specific

danger facing Hernandez and Garza than the police had

in Windle or the social workers had in DeShaney, and we

therefore do not find that the City, through its police

department’s decision not to investigate the phoned-in

threat, created or increased the danger faced by the Plaintiffs and their fellow Nu-Wood employees that day.

III. CONCLUSION

Hernandez and Garza’s § 1983 claims are based on

allegations that they suffered a constitutional violation

when the City failed to come to their aid despite knowing

that they were at risk of harm. This case fits squarely

within DeShaney’s general rule that a state actor’s failure to protect private persons from injuring each other
8 Nos. 02-3268 & 02-3269

does not establish a constitutional violation. Accordingly,

we affirm the dismissal of Hernandez and Garza’s federal

§ 1983 counts under Rule 12(b)(6) for failure to state a

claim upon which relief can be granted.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-31-03