Chaunce WINDLE, Plaintiff-Appellant, v. CITY OF MARION, INDIANA, a municipal corporation, City of Marion, Indiana, Police Department, and Rob Raymer, Sergeant, in his official and individual capacity, Defendants-Appellees.
No. 02-2363.
United States Court of Appeals, Seventh Circuit.
March 3, 2003.
April 1, 2003.
324 F.3d 658
Before FLAUM, Chief Judge, and EASTERBROOK and DIANE P. WOOD, Circuit Judges.
Argued Jan. 8, 2003.
The appeal in the instant case is patently frivolous. In spite of the trial judge‘s finding that they had submitted “obviously fraudulent documents” to the court, and had perpetrated “the most blatant example of a Rule 11 violation that [she had ever] seen,” Jimenez v. Madison Area Tech. College, et al., No. 00-C-424, at 14 (W.D.Wis. Aug. 13, 2001), Jimenez and Nunnery had the audacity to file an appeal from the trial court‘s sanction. The “foreordination” of Jimenez‘s failure on appeal could not have been more obvious. Not only did Jimenez cite to the wrong legal standard in her brief before this Court,4 she presented only one page of legal argument in her favor. In light of the flagrancy of Jimenez‘s Rule 11 violation, and the lack of support for her position on appeal, when considering the direct and castigating language reciting parts of the record by the trial judge, we conclude that appellate sanctions are appropriate in this case.
As far as the amount of attorneys’ fees is concerned, the College has presented affidavits attesting that its counsel has incurred $17,156.99 in costs and expenses since the filing of this appeal. The College‘s counsel has not, however, given a specific breakdown of those fees and costs. Despite its claim to have spent over 125 hours dealing with legal matters connected to this appeal, counsel has made no effort to inform the Court exactly what was done during those 125 hours. Indeed, such time estimates are surprisingly high in light of the simplicity of the legal issues presented to this Court.
We are not satisfied with the vague documentation of costs and expenses heretofore provided by the College‘s counsel. Thus, we order counsel to submit, within the next fifteen days, a more detailed schedule of its time allocation and other expenses incurred in connection with this appeal.
III. Conclusion
The district court‘s imposition of sanctions under
AFFIRMED; MOTION FOR RULE 38 SANCTIONS GRANTED.
Robert T. Keen, Jr. (argued), Miller, Carson, Boxberger & Murphy, Fort Wayne, IN, for Defendants-Appellees.
FLAUM, Chief Judge.
Chaunce Windle (“Chaunce“), a minor student, was sexually molested by Carol
I. Background
Sometime in 1997 certain officers at the Marion Police Department began intercepting cellular phone conversations between Chaunce and Rigsbee on their scanners. These conversations evidenced an ongoing sexual relationship between Chaunce and Rigsbee, who had come to know Chaunce both through school and through private music lessons.
At first the officers who intercepted the calls thought they were listening to conversations between two lesbian lovers about their relationship. A possible implication from the record and from Chaunce‘s allegations is that the officers continued to listen to the conversations for the sake of personal entertainment. In late September or early October of 1997, Sergeant Raymer was informed by the officers of these conversations. Raymer personally intercepted several of the conversations over the next two months. Raymer became concerned when the content of the conversations revealed to him that the participants were an older female who was a middle school teacher and a younger female who was a student. At some point, the officers, including Raymer, became aware of the fact that the younger female‘s first name was Chaunce.
One might anticipate that a police officer armed with this information would have aggressively investigated and intervened in an attempt to protect the well-being of the minor female. Indeed, given the uncommonness of the name Chaunce and the fact that some of the officers in the department knew her father and were aware of the existence of a Chaunce Windle, it appears this case would not have required a great deal of further investigative effort. Nonetheless, Raymer took no intervening action for about two months. Only when Raymer intercepted a phone conversation on November 24, 1997, that led him to believe that Chaunce was in danger of doing something drastic and was possibly suicidal did he decide to act. The next day he went to Kent Cocking, a school counselor at Tucker Middle School. Cocking and Raymer then spoke to Chaunce‘s father, Rich Windle. Raymer then spoke with Rigsbee, who admitted to molesting Chaunce. On December 2, 1997, Raymer submitted an incident report. This was the first written report filed regarding these events. Rigsbee‘s prosecution followed.
Chaunce brought this
II. Discussion
We review a district court‘s grant of summary judgment de novo. Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir.2001). Summary judgment is proper where there is no genuine issue as
As to the first requirement, Chaunce claims that Raymer‘s inaction violated her due process rights. Generally, failure to protect does not rise to the level of a constitutional violation. See DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). Recognizing this, Chaunce tries to fit her claim against Raymer into the “state-created danger exception.” This approach arises out of the Supreme Court‘s opinion in DeShaney. While the Court in DeShaney held that a failure to protect was not a constitutional violation, it also suggested that a different outcome might result where the state has created or exacerbated the danger from which it failed to protect the victim. The Court stated: “While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.” Id. at 201, 109 S.Ct. 998. Drawing on this language the lower courts have fashioned the “state-created danger exception.” See, e.g., Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.1993); Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992).
The facts in Monfils v. Taylor, 165 F.3d 511 (7th Cir.1998), provide an example of the kind of behavior that falls under this exception. Thomas Monfils provided an anonymous tip to the police about the criminal activity of one of his co-workers. Monfils requested that the tape of his tip not be released because he feared violent retaliation. He was assured that it would not be released. Still the police released the tape to the accused co-worker who recognized Monfils‘s voice. Monfils was subsequently murdered by his co-workers. This court found an actionable claim under the state-created danger exception because the state placed Monfils in an increased position of danger and failed to protect him from that danger. Monfils, 165 F.3d at 517.
Appellant tries to liken the behavior of Raymer and the Marion Police in this case to the behavior that created the danger in Monfils. We find this argument unpersuasive. Monfils, along with our other cases dealing with this issue, suggest that the key question in determining whether state behavior violated the victim‘s constitutional rights is: “What actions did [the state actor] affirmatively take, and what dangers would [the victim] otherwise have faced?” Id. (quoting Wallace v. Adkins, 115 F.3d 427, 430 (7th Cir.1997)); see also Dykema, 261 F.3d at 706. In Monfils we looked at the state‘s affirmative action of releasing the tape and the fact that, had the state not released the tape, Monfils would have faced considerably less danger. Therefore, the state enhanced the danger and by failing to protect Monfils from that danger, it violated his due process rights. With this analysis in mind Appellant attempts to show that Raymer took an affirmative action, even though he plainly did not.1 She
Even if one were to construe the conduct of the officers as some sort of affirmative action, we must then ask what new danger would have otherwise befallen the victim. If Raymer, under Appellant‘s theory, had not taken the so-called affirmative action of doing nothing and had done something, we have no way of knowing what would have occurred. Indeed, the police might have failed at protecting Chaunce. We therefore have no assurance that the danger would not have existed in the absence of the so-called affirmative action of doing nothing.
In focusing exclusively on whether the police acted affirmatively, Appellant fails to grasp that she has to establish that the police failed to protect her from a danger they created or made worse. She confuses the inert failure to protect with the proactive creation or exacerbation of danger. In this case the police did nothing to create a danger, nor did they do anything to make worse any danger Chaunce already faced.3 If the police had never overheard the conversation, and had never been involved at all, the danger faced by Chaunce would likely have been the same or perhaps worse. The police did not place Chaunce in the custody of Rigsbee, and they did nothing to assist Rigsbee. They just failed to intervene until Raymer thought that matters had reached a crisis. This case is indistinguishable from DeShaney where the Supreme Court concluded that no constitutional violation had occurred when state actors who may have been aware that a child was being abused by his father did nothing to protect the child. DeShaney, 489 U.S. at 201, 109 S.Ct. 998.
Appellant attempts to salvage her constitutional claims by alleging that the police violated their duty under an Indiana statute. With nothing more to go on than a state statute, she cannot succeed in saving her claim. State law violations do not form the basis for imposing
Finally, we note that this opinion addresses liability when Raymer and the Marion Police are the relevant state actors. Appellant has not included in this suit a claim against Rigsbee, who as a teacher could also be considered a state actor. Rigsbee‘s status as a potential state actor does however raise one important question regarding the duties of the Marion Police. In certain cases liability under
As for the claim of municipal liability, a plaintiff must prove that the individual officers are liable on the underlying substantive claim in order to recover damages from a municipality under either a failure to train or failure to implement theory. Tesch, 157 F.3d at 477. Having determined that Chaunce did not suffer a constitutional violation from the inaction of Raymer or any other police officer in Marion, we must conclude that the City of Marion cannot be held liable for a failure to train or a failure to institute a policy.
III. Conclusion
As regrettable as the delayed reaction of Sergeant Raymer and the Marion Police Department may have been, it did not violate any constitutional rights of Chaunce Windle. That being the case the district court appropriately granted summary judgment in favor of Raymer and the City of Marion in this