UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

LASHAWNDA WALKER, et al., )

)

Plaintiffs, )

)

v. ) No. 2:16 CV 367

)

E I DU PONT DE NEMOURS AND )

COMPANY, et al., )

)

Defendants. )

OPINION and ORDER

This matter is before the court on defendants’ motions to dismiss. (DE # 101; DE

# 111.) For the reasons identified below, defendants’ motions are granted in part.

I. BACKGROUND

Plaintiffs, former residents of the West Calumet Public Housing Complex (“the

Complex”), have filed a third amended complaint against defendants East Chicago

Housing Authority (“ECHA”) and E I DuPont De Nemours and Company (“DuPont”).

(DE # 98.) Plaintiffs’ third amended complaint alleges claims arising under Indiana law

and 42 U.S.C. § 1983, stemming from their exposure to lead and arsenic contamination

at the site of the Complex. (Id.) Plaintiffs contend that DuPont is responsible for

depositing these contaminants on the site. (Id. at 6.) Plaintiffs contend that ECHA

knowingly failed to protect them from the contamination, and intentionally concealed

the fact of the contamination from them. (Id.)

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Plaintiffs’ third amended complaint alleges seven counts against defendants.

Count I is a Section 1983 claim against ECHA for violating plaintiffs’ substantive due

process rights under a theory of state-created danger. (Id. at 7.) Count II is a Section

1983 claim against ECHA for violating plaintiffs’ substantive due process right to bodily

integrity. (Id. at 8.) Count III is a Section 1983 due process claim against ECHA for

violating plaintiffs’ contractually-created property rights. (Id. at 8-9.) Count IV is a

negligence claim against DuPont. (Id. at 9-11.) Count V is a breach of contract and

implied warranty claim against ECHA. (Id. at 11-12.) Count VI is a fraudulent

misrepresentation claim against ECHA. (Id. at 12.) Count VII is a negligence claim

against ECHA. (Id. at 13.) 

Both defendants have filed motions to dismiss. (DE # 101; DE # 111.) The

motions are fully briefed and this matter is now ripe for resolution.

II. LEGAL STANDARD

A judge reviewing a complaint pursuant to Rule 12(b)(6) must construe the

allegations in the complaint in the light most favorable to the non-moving party, accept

all well-pleaded facts as true, and draw all reasonable inferences in favor of the

non-movant. Erickson v. Pardus, 551 U.S. 89, 93 (2007); Reger Dev., LLC v. Nat’l City Bank,

595 F.3d 759, 763 (7th Cir. 2010). Under the liberal notice-pleading requirements of the

Federal Rules of Civil Procedure, the complaint need only contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). A plaintiff must plead “factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009).

III. ANALYSIS

A. Monell Liability

ECHA argues that Counts I, II, and III fail to state a claim because plaintiffs failed

to plead that ECHA is liable for any constitutional violation pursuant to Monell v. Dep’t

of Soc. Servs. of the City of New York, 436 U.S. 658 (1978). (DE # 112 at 13.) 

Under Monell, a local government may not be sued under Section 1983 for an

injury caused solely by its employees or agents. Monell, 436 U.S. at 694. Rather, “a

plaintiff must show the existence of an ‘official policy’ or other governmental custom

that not only causes but is the ‘moving force’ behind the deprivation of constitutional

rights.” Teesdale v. City of Chicago, 690 F.3d 829, 834 (7th Cir. 2012). Thus, ECHA can only

be held liable where there is “(1) an express policy that causes a constitutional

deprivation when enforced; (2) a widespread practice that is so permanent and wellsettled that it constitutes a custom or practice; or (3) an allegation that the constitutional

injury was caused by a person with final policymaking authority.” Id. at 834 (internal

quotation marks and citation omitted). 

Here, ECHA argues that plaintiffs’ pleadings regarding Monell liability amount

to mere legal conclusions and “do not so much as hint at what ‘policy’ they are referring

to.” (DE # 112 at 14; DE # 116 at 6.) This is not true. Plaintiffs’ third amended complaint

alleges that ECHA had a policy or practice of deliberately concealing the dangers of

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contamination from the residents of the Complex, and that this policy or practice was

the moving force behind the conduct of its employees that caused plaintiffs’ harm.

(DE # 98 at 6, 8.) Plaintiffs support this claim with factual allegations that ECHA was

aware of the contamination at the Complex for more than 30 years, but the residents of

the Complex were not notified of the contamination until 2016. (Id. at 7, 10.) At the

pleading stage, this is sufficient to state a plausible claim for Monell liability.

B. Count I: Substantive Due Process Claim against ECHA under the State-Created

Danger Doctrine

In order to state a claim pursuant to Section 1983, a plaintiff must sufficiently

allege that: “(1) a person acting under color of state law (2) deprived her of a right,

privilege, or immunity secured by the United States Constitution or laws.” Jackson v.

Indian Prairie Sch. Dist. 204, 653 F.3d 647, 653 (7th Cir. 2011). 

In Count I, plaintiffs allege that ECHA is liable for violating the Due Process

Clause, pursuant to the state-created danger doctrine. See DeShaney v. Winnebago Cty.

Dept. of Soc. Serv., 489 U.S. 189 (1989). “The Due Process Clause of the Fourteenth

Amendment ‘generally does not impose upon the state a duty to protect individuals

from harm by private actors.’” Jackson, 653 F.3d at 654 (internal citation omitted).

However, there is an exception “‘when the state affirmatively places a particular

individual in a position of danger the individual would not otherwise have faced.’ This

[] exception is known as the state-created danger doctrine[.]” Id. (internal citation

omitted). 

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To establish a substantive due process claim under the state-created danger

doctrine, a plaintiff must allege that: (1) the defendant, by its affirmative acts, created or

increased a danger that the plaintiff faced; (2) the defendant’s failure to protect the

plaintiff from danger was the proximate cause of the plaintiff’s injuries; and (3) the

defendant’s failure to protect the plaintiff “shocks the conscience.” Id. “Where . . . public

officials have time for reasoned deliberation in their decisions, the officials’ conduct will

only be deemed conscience shocking when it ‘evinces a deliberate indifference to the

rights of the individual.’” Id. at 655 (internal citation omitted).

Plaintiffs have failed to state a claim under the state-created danger doctrine. The

Constitution does not provide a substantive due process right to protection from a

hazardous or dangerous condition, even when a governmental entity creates exposure

to that condition. See Collins v. City of Harker Heights, Tex., 503 U.S. 115 (1992). 

In Collins, the Supreme Court considered whether a city could be liable under

Section 1983 for the death of one of its employees where the city failed to warn its

employees of a known hazard in the workplace. Id. The employee died of asphyxia after

entering a manhole to unstop a sewer line. Id. at 118. The city was on notice of the

dangerous condition because a few months earlier a different employee had been

rendered unconscious in a similar situation. Id. at n. 1. The estate of the deceased

employee sued, alleging that the city violated the employee’s substantive due process

rights under the state-created danger doctrine by failing to warn its employees of the

danger and by failing to protect its employees from such danger. Id. at 118. The

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Supreme Court held that the city’s conduct did not violate the Due Process Clause.

First, the Constitution does not impose a duty on governmental entities to provide its

employees with a minimally safe workplace. Id. at 126. The Clause limits the

government’s power to act; it does not guarantee any minimal level of safety or

security. Id. Second, the city’s failure to warn its employees of the known hazard was

not “conscience shocking, in a constitutional sense.” Id. at 128. Rather, the estate’s claim

was akin to a traditional tort claim, and the Due Process Clause does not supplant state

tort law. Id. The Court emphasized that the administration of government programs

(such as sewer maintenance), and the allocation of resources to those programs, is a

decision-making process that involves competing policy choices that states, not the

judiciary, must resolve. Id. at 129-30.

Collins and its progeny require the dismissal of plaintiffs’ state-created danger

claim. Plaintiffs’ pleadings allege only a willful failure to warn (see DE # 98 at 7) – and

Collins makes clear that a failure to warn does not rise to the level of a state-created

danger. Id; see also Sandage v. Bd. of Comm’rs of Vanderburgh Cty., 548 F.3d 595, 599 (7th

Cir. 2008) (noting that the first element of the state-created danger doctrine – that the

state affirmatively “create or increase” a danger – “must not be interpreted so broadly

as to erase the essential distinction between endangering and failing to protect”);

Witkowski v. Milwaukee Cty., 480 F.3d 511, 514 (7th Cir. 2007) (“Disregarding a known

risk to a public employee does not violate the Constitution whether or not the risk

comes to pass.”); Wallace v. Adkins, 115 F.3d 427 (7th Cir. 1997) (prison did not

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affirmatively create or increase danger to prison guard when it ordered guard to stay at

his post with an inmate who credibly threatened guard’s life, and where prison falsely

promised to take action to protect guard).

The substantive component of the Due Process Clause may “demand protection

if the state disables people from protecting themselves; having rendered someone

helpless, the state must supply the sort of defenses that the person could have provided

on his own.” Witkowski, 480 F.3d at 513. However, plaintiffs do not allege that ECHA

forced them into a position of danger; it merely failed to affirmatively warn them of an

existing danger. See e.g. Dawson v. Milwaukee Hous. Auth., 930 F.2d 1283, 1285 (7th Cir.

1991) (“There is a gulf between poverty and custody” and “[a] belief that the

government’s offer [of subsidized housing] should have a higher component of safety . .

. is a substantive argument for consideration by the political branches.”). As Collins

makes clear, a knowing failure to warn does not state a substantive due process claim.

Therefore, ECHA’s motion to dismiss Count I will be granted.

C. Count II: Substantive Due Process Claim against ECHA for Violation of Bodily

Integrity

In Count II, plaintiffs allege that ECHA violated their substantive due process

right to bodily integrity. This court previously dismissed this claim as stated against the

City of East Chicago in the second amended complaint. (DE # 83 at 14-15.) The newest

iteration of this claim substitutes ECHA for the City of East Chicago and removes

several legal and factual allegations. However, this court’s reasons for dismissing the

claim from the second amended complaint apply with equal force to the third amended

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complaint, as plaintiffs have not identified any violation of a right protected under the

Due Process Clause.

There is little discernible difference between plaintiffs’ claims in Counts I and II.

And, as discussed in the previous section, there is no due process right to be protected

from harm imposed by third parties, or to be warned of a known harm – even where

the government has offered false assurances of safety. See Wallace, 115 F.3d at 430.

Plaintiffs did not respond to ECHA’s motion to dismiss Count II, and thus have not

directed this court toward any authority, from this Circuit or elsewhere, that could

support their substantive due process claim against ECHA for failing to protect them

from the contamination at the Complex. For these reasons, and those articulated in this

court’s previous dismissal order, Count II will be dismissed. 

D. Count III: Procedural Due Process Claim against ECHA for Violation of

Contractually-Created Property Rights

In Count III, plaintiffs allege that, by agreeing “to provide Plaintiffs with a safe

place to live” and then allegedly failing to do so, ECHA deprived them of

“contractually based property rights, pursuant to their lease agreements, without

proper notice or hearing, a constitutional right.” (DE # 98 at 8-9.) 

It is unclear whether plaintiffs intended to assert both a procedural and

substantive due process claim in Count III. To the extent that they intended to assert a

substantive due process claim, “caselaw from our circuit dispels the notion that a

substantive constitutional property interest arises simply because a state actor breaks a

contract with a state citizen.” Taake v. Cty. of Monroe, 530 F.3d 538, 540 (7th Cir. 2008).

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“When a state actor breaches a contract it has with a private citizen, and the subject

matter of that contract does not implicate fundamental liberty or property interests, the

state acts just like any other contracting private citizen; the proper tribunal to adjudicate

issues arising from the contract (or alleged contract) is a state court[.]” Id. at 542

(internal citations omitted). See also Finegan v. Brannon, et. al., 2018 WL 5970599, at *1

(7th Cir. Nov. 14, 2018) (“A claim that a state has broken a promise arises under state

law, not the Constitution.”).

Moreover, plaintiffs failed to state a procedural due process claim regarding

ECHA’s contractual obligation to provide safe housing. Any process to which they were

due is adequately served by a state-law breach of contract claim. “[T]he Constitution

does not require state actors to keep their promises. It requires process before any state

may finally deprive a person of liberty or property (including rights under a contract),

but the opportunity to litigate in state court supplies all the process that is due for

claims of breach.” Kay v. Bd. of Educ. of City of Chicago, 547 F.3d 736, 739 (7th Cir. 2008).

See also Lafayette Linear v. Vill. of Univ. Park, Illinois, 887 F.3d 842, 844 (7th Cir. 2018)

(“[F]or someone who relies on a property interest created by a contract with a public

body, the process due when the government arguably has broken its promise is the

opportunity to seek damages from a state court.”); Indiana Land Co. v. City of Greenwood,

378 F.3d 705, 710 (7th Cir. 2004) (“All states provide judicial remedies for breach of

contract and these remedies will almost always provide all the process that is

constitutionally due.”).

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The Seventh Circuit’s decision in Taake is instructive as to why plaintiffs’

substantive and procedural due process allegations in Count III fail to state a claim. In

Taake, the Court considered the due process claims of a plaintiff who argued that the

County of Monroe violated its contractual agreement to sell him a piece of land. 530

F.3d at 540. The Court rejected the plaintiff’s substantive due process claim on the basis

that – as noted above – a state’s breach of contract does not give rise to a substantive

due process claim. Id. at 542-43. Moreover, the fact that the contract involved land did

not mean that a property interest was implicated. Id. at 542. The Court noted that it has

historically refused to create a “redundant federal right that simply mirrors the

available state-law tort.” Id. (quoting Khan v. Gallitano, 180 F.3d 829 (7th Cir. 1999)).

The Seventh Circuit also rejected the plaintiff’s procedural due process claim.

The Court noted that although the plaintiff “used the words ‘procedural due process’ in

his complaint, [] the remedies he seeks belie any suggestion that Taake is interested in

notice and a hearing on the County’s decision not to sell him the land.” Id. at 543.

Rather, “[t]he only remedies Taake desires are for the alleged breach of contract:

damages, specific performance of the land sale, and an injunction prohibiting the

County from transferring or disposing of the land in a manner that violates the

purported contract.” Id. The Court concluded, “‘[u]nless the plaintiff maintains that the

state actor had to offer a hearing to resolve some contested issue of fact, the dispute

belongs in state court under state law.’” Id. (quoting Goros v. Cty. of Cook, 489 F.3d 857,

859 (7th Cir. 2007)).

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Here, as in Taake, plaintiffs do not want process – they want money. They do not

allege that they were entitled to a hearing to resolve a contested issue of fact, and this

court will not determine whether a contract created a property right in the abstract. See

Goros, 489 F.3d at 860. Count III is a contract claim inappropriately dressed-up as a

constitutional claim, and therefore it belongs in state court. Accordingly, Count III will

be dismissed. 

E. State Law Claims

Plaintiffs’ remaining claims, Counts IV-VII, are all state law claims. In the

absence of any remaining federal claims, the court declines to exercise jurisdiction over

this matter any further. Principles of comity encourage the court to relinquish

supplemental jurisdiction over state law claims when all of the federal claims are

disposed of prior to trial. See Hansen v. Bd. of Trs. of Hamilton Southeastern Sch. Corp., 551

F.3d 599, 608 (7th Cir. 2008); Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); 28

U.S.C. § 1367(c)(3). 

While in some circumstances it is appropriate for a district court to retain

jurisdiction over state law claims after the federal claims have dropped out of the case,

none of those circumstances are present in this case. See RWJ Mgmt. Co., Inc. v. BP Prods.

N. Am., Inc., 672 F.3d 476, 478-81 (7th Cir. 2012); Sharp Elecs. Corp v. Metro. Life Ins. Co.,

578 F.3d 505, 514–15 (7th Cir. 2009). Here, plaintiffs will not be prejudiced by this

dismissal because they may refile the case in state court as appropriate under Indiana’s

savings statute, IND. CODE § 34–11–8–1, and the tolling provision of 28 U.S.C. § 1367(d).

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Moreover, this matter remains at the pleading stage, and there has not been such

substantial judicial resources committed to the claims that sending the case to another

court will cause a substantial duplication of effort. Finally, the merits of the state law

claims are not “absolutely” clear, and therefore a state court should have the

opportunity to address the merits of these claims in the first instance. 

F. Request for Leave to File an Amended Complaint

In their responses to the motions to dismiss, plaintiffs request that this court

grant them leave to file an amended complaint if the court dismisses any of their claims.

(DE # 107 at 15; DE # 115 at 6.) The court denies this request, as amendment would be

futile. 

Federal Rule of Civil Procedure 15(a)(2) states, “a party may amend its pleading

only with the opposing party’s written consent or the court’s leave. The court should

freely give leave when justice so requires.” “[T]he decision to grant or deny a motion to

file an amended pleading is a matter purely within the sound discretion of the district

court.” Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 720 (7th Cir. 2002). “‘Although

the rule reflects a liberal attitude towards the amendment of pleadings, courts in their

sound discretion may deny a proposed amendment if the moving party has unduly

delayed in filing the motion, if the opposing party would suffer undue prejudice, or if

the pleading is futile.’” Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008) (internal

citation omitted). “There is no abuse of discretion where the district court denies a

motion for leave to amend when the proposed amendment would not cure the

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deficiencies identified in the earlier complaint.” Bell v. City of Chicago, 694 F. App’x 408,

412 (7th Cir. 2017), reh’g and suggestion for reh’g en banc denied (Aug. 17, 2017). See also

Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015).

Here, plaintiffs could not file an amended complaint that would cure the

deficiencies in their Section 1983 claims against ECHA. As explained above, those

claims fail to identify a cause of action under the Due Process Clause. There are no

factual allegations plaintiffs could add that could transform their present claims into

viable causes of action. Thus, the court will deny plaintiffs’ request for leave to file an

amended complaint. 

IV. CONCLUSION

For the foregoing reasons, the court: 

(1) GRANTS defendant East Chicago Housing Authority’s motion to dismiss

(DE # 111) with respect to plaintiffs’ claims under 42 U.S.C. § 1983 (Counts I, II, and III); 

(2) DENIES plaintiffs’ request for leave to file an amended complaint (DE # 115);

(3) RELINQUISHES jurisdiction over plaintiffs’ state law claims (Counts IV-VII);

and

(4) DIRECTS the Clerk to close this case.

 SO ORDERED.

Date: November 27, 2018

s/James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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