324 F.3d 535 (7th Cir. 2003), 02-3268, Hernandez v. City of Goshen

Docket Nº:02-3268, 02-3269
Citation:324 F.3d 535
Party Name: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.
Case Date:March 31, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 535

324 F.3d 535 (7th Cir. 2003)

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.

Nos. 02-3268, 02-3269

United States Court of Appeals, Seventh Circuit

March 31, 2003

ARGUED FEBRUARY 26, 2003

Page 536

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.

Timothy J. Walsh (argued), Anderson, Agostino & Keller, South Bend, IN, for Plaintiffs-Appellants in Nos. 02-3268 & 02-3269.

James S. Stephenson (argued), Stephenson, Daly, Morow & Kurnik, Indianapolis, IN, for Defendants-Appellees in Nos. 02-3268 & 02-3269.

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 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 NuWood 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...

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