Hernandez v. City of Goshen, Indiana

• Decision Date: 31 March 2003
• Docket Number: No. 02-3268.,No. 02-3269.,02-3268.,02-3269.
• Citation: 324 F.3d 535
• Parties: 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.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 535

324 F.3d 535

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.

No. 02-3268.

No. 02-3269.

United States Court of Appeals, Seventh Circuit.

Argued February 26, 2003.

Decided March 31, 2003.

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, Nu-Wood 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-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 Nu-Wood 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, 109 S.Ct. 998, 103 L.Ed.2d 249 (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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

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, 99 S.Ct. 2689, 61 L.Ed.2d 433 (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, 109 S.Ct. 998. 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, 109 S.Ct. 998.

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 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. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (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, 97 S.Ct. 285, 50 L.Ed.2d 251 (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, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (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 because the police...