In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3621

TERITA BUCHANAN-MOORE, ET AL.,

Plaintiffs-Appellants,

v.

COUNTY OF MILWAUKEE,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:07-cv-00730-CNC—Charles N. Clevert, Jr., Judge.

ARGUED FEBRUARY 26, 2009—DECIDED JUNE 29, 2009

Before BAUER, KANNE and SYKES, Circuit Judges.

BAUER, Circuit Judge. In the summer of 2006, Sidney K.

Gray, Jr., a mentally ill man, committed a string of crimes

in Milwaukee which landed him into, then back out of,

the Milwaukee County jail. The short stays and quick

releases from confinement were allegedly the result of

bureaucratic errors made by municipal agents. Furthermore, although Gray’s history of mental illness was

known to Milwaukee County authorities, he was not

administered his medications while confined. Returned
2 No. 08-3621

to the Milwaukee streets for a final time on July 22,

Gray broke into a home on the city’s north side. Frank

Moore, a neighbor, unwittingly crossed Gray’s path.

When he did, Gray shot and killed him.

Moore’s survivors (Appellants) sued several entities

including the County of Milwaukee, alleging, in part, a

deprivation of due process. The district court granted

Defendants’ motion to dismiss on the pleadings, which

we affirm on appeal.

I. BACKGROUND

According to the facts alleged in the Appellants’ original

complaint, Gray was well known to the County of Milwaukee (County) and to the City of Milwaukee (City).

He was arrested by City police officers at least 35 times on

77 charges between July 1996 and July 2006. Many of

those arrests stemmed from assaultive and violent

attacks by Gray; one was for criminal trespass to a dwelling. Gray was committed to the County Mental Health

Complex numerous times and placed on prescription

medications. Over the course of his stays there, it became apparent to County doctors that the medications

were successful in reducing Gray’s assaultive behavior;

however, Gray did not take the medications when left

unsupervised. Consequently, the County frequently contacted Gray’s family members following Gray’s release.

On June 13, 2006, Gray was detained by City police

after swinging a golf club at bystanders. At a civil commitment hearing, City police and County doctors testified
No. 08-3621 3

that Gray posed an immediate threat to others because

of his assaultive behavior. The judge agreed, and ordered

Gray committed. Less than a week later, the County

released Gray with his necessary medications but without contacting his family. The next day, City police arrested Gray for invading an occupied home and took

him to the County jail. Although the County knew that

Gray’s assaultive behavior could continue if he remained

unmedicated, Gray was not administered his prescribed

medications.

On June 24, 2006, while Gray remained in custody, City

Police Officer Terrence Bender signed a criminal trespass

complaint, drafted by the District Attorney’s Office.

According to protocol, the task of physically delivering

the complaint to be numbered and filed with the state

court resided with the City police. Unfortunately, this

was not done; the court never received the complaint,

and Gray was released by the County on July 9, 2006.

Approximately one week later, essentially the same

episode was repeated. Gray again was arrested by City

police for invading an occupied home, placed in the

County jail, not administered his medication, and released four days later. It is unclear why charges

were not filed against Gray.

On July 22, 2006, Frank Moore crossed paths with Gray

and lost his life. Gray had broken into the home next

door to Moore’s by kicking in the front door. Moore

walked up to the lot line in the small area separating

the homes; Gray emerged from the side door and shot

Moore in the head.
4 No. 08-3621

The missing criminal complaint from June 24, 2006,

resurfaced in August 2006.

Appellants brought a civil rights action under 42 U.S.C.

§ 1983 against the City, the County, Officer Bender and

other anonymous employees, alleging that these actors

violated Moore’s substantive due process rights by

placing Moore in a position of danger that he would not

have otherwise faced.

On January 18, 2008, Defendants moved for judgment

on the pleadings, arguing that there was no constitutional right to be protected from violence by a private

individual. On September 15, 2008, the district court

granted the motion. Appellants now challenge only the

dismissal of the charge alleging a violation of civil rights

by the County as set forth in the complaint. Appellants

contend that the County violated Moore’s civil rights by

releasing Gray after a 72-hour confinement during

which the County failed to provide psychiatric medications to Gray. According to Appellants, those medications would have quelled Gray’s assaultive behavior.

Instead, by denying Gray his needed medications, the

County “weaponized” a mentally ill man and “unleashed”

him on the public, proximately causing Moore’s death.

II. DISCUSSION

We review a district court’s ruling on a Rule 12(c) motion

for judgment on the pleadings de novo. Northern Indiana

Gun and Outdoor Shows, Inc. v. City of South Bend, 163

F.3d 449, 452 (7th Cir. 1998). Rule 12(c) permits a party to
No. 08-3621 5

move for judgment after the complaint and answer have

been filed by the parties. See Fed. R. Civ. P. 12(c). We

review Rule 12(c) motions by employing the same standard

that applies when reviewing a motion to dismiss for

failure to state a claim under Rule 12(b)(6). Pisciotta v. Old

Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). Thus,

we view the facts in the complaint in the light most

favorable to the nonmoving party and will grant the

motion “only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim

for relief.” Northern Indiana Gun and Outdoor Shows, Inc.,

163 F.3d at 452 (internal quotations omitted). However,

we need not ignore facts set forth in the complaint

that undermine the plaintiff’s claim or give weight to

unsupported conclusions of law. Id.

To state a claim for relief under 42 U.S.C. § 1983, a

plaintiff must allege that: (1) he was deprived of a right

secured by the Constitution or laws of the United States;

and (2) the deprivation was visited upon him by a

person or persons acting under color of state law. Kramer

v. Village of North Fond du lac, 384 F.3d 856, 861 (7th

Cir. 2004).

The Due Process Clause of the Fourteenth Amendment

places a limitation on the state’s power to act; however,

it generally does not impose upon the state a duty to

protect individuals from harm by private actors. Monfils

v. Taylor, 165 F.3d 511, 516 (7th Cir. 1998); King v. East

St. Louis School Dist., 496 F.3d 812, 817-18 (7th Cir.

2007). Stated another way, its purpose is, “to protect the

people from the State, not to ensure that the State pro-
6 No. 08-3621

tect[s] them from each other.” DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189, 195 (1989).

Two exceptions to this principle have arisen from

DeShaney. First, the state is duty-bound to protect individuals with whom it has a “special relationship”; that

is, when a state has custody over a person, it must protect

him because no alternate avenues of aid exist. Monfils,

165 F.3d at 516. Second, the so-called state-created danger

exception provides that “liability exists when the state

affirmatively places a particular individual in a position

of danger the individual would not otherwise have

faced.” Id. (internal quotations omitted). It is under this

doctrine that Appellants advance their claim.

In order for the Due Process Clause to impose upon

the state the duty to protect its citizens, the state, by its

affirmative acts, must create or increase a danger faced

by an individual, King, 496 F.3d at 818, and the state’s

failure to protect that individual from such a danger

must be the proximate cause of the injury to the individual. Id. And last, “because the right to protection

against state-created dangers is derived from the substantive component of the Due Process Clause, the state’s

failure to protect the individual must shock the conscience.” Id.

We need not explore the first component of Appellants’

claim under the state-created danger doctrine because

we can resolve this case on the second prong of the analysis. Appellants’ complaint must allege facts suggesting

that the County’s conduct was the proximate cause

of Moore’s death; that is, Moore must have been a fore-
No. 08-3621 7

seeable victim of the County’s acts. King, 496 F.3d at 818.

It fails to do so.

To advance their argument, Appellants rely heavily

on Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993). In that

case, a drunk driver crossed the center line of the

highway and crashed into the Reeds’ car. Earlier that

day, police had arrested the original driver of the car,

leaving a drunk passenger behind. Based on the

appellant’s allegation that the officers removed a sober

driver from the driver’s seat and knowingly replaced

him with an intoxicated driver, we found that the plaintiffs had sufficiently stated a claim that the state affirmatively created a danger for the other drivers on the road

and that the plaintiffs were foreseeable victims.

However, we also noted that foreseeability hinged on

the fact that the dangers presented by drunk drivers were

familiar and specific; in addition, the threat of harm to

other motorists was limited in both time and scope.

Reed, 986 F.2d at 1127. Here, no such limiting factors

are present.

In the factual scenario presented in Reed, the police

could be expected to know that the intoxicated man

they placed behind the wheel suffered from impaired

judgment and diminished motor skills; these were

dangers both familiar and specific that the police chose

not to heed. In this case, conversely, the complaint

does not allege facts suggesting that Gray’s access to a

gun, or propensity toward homicide, were specific

dangers that were familiar to the County. While Gray

had been arrested for home invasion and assaultive
8 No. 08-3621

The district court took judicial notice of this fact. 1

conduct, Appellants do not allege that Gray had

previously carried a weapon or shot someone. As the

district court noted, “Gray’s acquisition of a gun, and its

use on an innocent bystander” were events that were

“unpredictable rather than legally foreseeable.”

Also, in Reed, the plaintiffs were within a small,

defined group of potential victims. The drunk driver

jeopardized the safety of only those motorists traveling

on the same highway, and only for a matter of hours.

When the driver sobered up, the threat would be dispelled. Here, the complaint does not allege facts suggesting

that Gray posed a threat to a definable population. Dangers

to the public at large are insufficient for constitutional

purposes. Martinez v. State of California, 444 U.S. 277, 285

(1980). The complaint alleges no facts suggesting that the

County knew that Moore, as distinguished from the public

at large, faced any special danger.

Appellants allege that Moore was a foreseeable victim

because he lived on Milwaukee’s “north side,” the same

section of town in which the County released Gray.

But Milwaukee’s “north side” represents a large geographic and heavily populated area. The danger posed

1

to Moore by his geographic locale was shared by the

thousands of others who lived in that section of town as

well as those living in any community accessible to Gray

by foot, and perhaps even by public transit. Such a generalized, amorphous zone of danger is insufficient to

trigger a state duty to protect.
No. 08-3621 9

Furthermore, unlike in Reed, the danger was not of

limited duration. To the extent Gray posed any foreseeable danger upon his release, it was a danger that was

indefinite. Gray’s mental illness and propensity for criminal acts existed without temporal boundaries.

As the district court noted, proximate cause “is a

fact specific inquiry, involving a consideration of time,

geography, range of potential victims, and the nature of

harm that occurred.” Perhaps it can be said that if the

County had not released Gray when it did, Moore

would be alive today. However, the facts as alleged

amount to only a “but-for” casual link, they do not state

a claim that Moore’s death was proximately caused by

the County’s acts. Moore’s death was simply too remote

a consequence of the County’s actions to hold the

County responsible under the federal civil rights law.

Because relief could not be granted under any set of

facts that could be proved consistent with the allegations

in the complaint, Appellants’ claim must fail.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the district

court’s granting of the County’s motion to dismiss.

6-29-09