Jennifer R. Wilson-Trattner v. Robert Campbell ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2509
JENNIFER R. WILSON-TRATTNER,
Plaintiff-Appellant,
v.
ROBERT CAMPBELL, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14-cv-1083-LJM-DML — Larry J. McKinney, Judge.
____________________
ARGUED MARCH 27, 2017 — DECIDED JULY 11, 2017
____________________
Before BAUER and EASTERBROOK, Circuit Judges, and
DEGUILIO, District Judge.
DEGUILIO, District Judge. In this appeal, the Plaintiff argues
that the district court incorrectly granted summary judgment
 Hon. Jon E. DeGuilio of the Northern District of Indiana, sitting by des-
ignation.
2 No. 16-2509
for the defense on three of her claims: a substantive due pro-
cess claim under 42 U.S.C. § 1983, a failure to train claim un-
der 42 U.S.C. § 1983 and an intentional infliction of emotional
distress claim under Indiana law. Each of these is based on
allegations that officers of the Hancock County, Indiana Sher-
riff’s Department improperly responded to the Plaintiff’s
complaints of domestic abuse. For the reasons that follow, we
affirm the judgment of the district court.
I.
Plaintiff Jennifer Wilson-Trattner began dating Scott
Roeger (then a deputy with the Hancock County Sherriff’s
Department) in 2010. By 2012, the couple’s relationship had
become combative. The allegations in this case center on four
incidents that followed.1
First, on June 17, 2012, Roeger locked Wilson-Trattner out
of her house by stealing her house key and reprogramming
her garage door opener. When she called the police, officers
from both Hancock County and another agency, the
McCordsville, Indiana Police Department, responded. Lieu-
tenant Jeff Rasche of Hancock County asked Roeger to return
the key to Wilson-Trattner, but Roeger refused. Wilson-
Trattner also showed Rasche a text message she had received
from Roeger that said “you have fucked with the wrong per-
son,” though Rasche did not find that message inappropriate.
Rasche later told Wilson-Trattner “we can’t help you; this is
1 Wilson-Trattner also cites a fifth incident on September 15, 2013, in which
Roeger contacted the Greenfield, Indiana Police Department and falsely
claimed that Wilson-Trattner had assaulted him. That would not appear
probative of Roeger’s propensity to harm Wilson-Trattner, but even if it
were, there is no evidence that the appellees were aware of it.
No. 16-2509 3
between you and him.” He also instructed Roeger that,
though Roeger’s personal life is not typically a department is-
sue, it becomes a department issue when Wilson-Trattner con-
tacts the police. Rasche drafted an internal memorandum re-
garding this incident, though no disciplinary action was taken
against Roeger.
On June 29, 2012, Roeger became angry after learning that
Wilson-Trattner had made plans on his night off. He yelled at
her, threw her against a wall and choked her to the point she
couldn’t speak. Wilson-Trattner wanted to avoid an official
police response, so she called an officer she believed to be off-
duty to get Roeger out of her house. That officer then called
his supervisor and four or five officers ultimately arrived at
Wilson-Trattner’s home from both the Hancock County and
McCordsville departments. They first spoke with Roeger
downstairs, who told them that Wilson-Trattner had hit him
and that he pushed her away to defend himself. They then
met with Wilson-Trattner, who was upstairs in her bedroom,
and told her that she could go to jail based on what Roeger
had said. Wilson-Trattner felt intimidated and was too scared
to fully provide her side of the story. Rather, she denied
Roeger’s account, stated that she did not hit Roeger until he
slammed her head into the wall and declined to talk further.
A McCordsville officer encouraged her to speak when she was
ready to do so and left her with a domestic violence handout
and a business card.
Following this incident, Hancock County Deputy Jarrod
Bradbury drafted a memorandum to Captain Bobby Camp-
bell, which stated that Roeger had been ordered to not return
to Wilson-Trattner’s house or contact her. Hancock County
Sheriff Mike Shepherd also assigned Detective Ted Munden
4 No. 16-2509
to draft a report. Munden spoke with Wilson-Trattner, but she
was unwilling to discuss the incident and said that she did not
want Roeger to get in trouble. Munden also interviewed
Roeger, who said that he had acted in self-defense. Munden
concluded that Roeger had violated departmental regula-
tions, though did not specifically recommend any personnel
action. While Munden delivered his report to Shepherd on or
before July 23, 2012, Shepherd does not remember receiving
it. He later found it in a filing cabinet, though does not recall
putting it there.
On July 8, 2013, Roeger became angry after seeing Wilson-
Trattner get a phone call from another man. He sent that man
and Wilson-Trattner numerous lewd and threatening text
messages, including sexually explicit photos and videos of
Wilson-Trattner. He also told Wilson-Trattner that she had
“fucked with the wrong person” and wished that she would
die. This prompted Wilson-Trattner to file a formal complaint
with Campbell. Campbell said he did not see anything threat-
ening about Roeger’s text messages. He told Wilson-Trattner
that he was “sick of dealing with this shit” and that she
“shouldn’t call [Hancock County] for this personal shit.” He
then advised her to obtain a protective order. There is no evi-
dence that she ever did so. Campbell also told Roeger that his
conduct was inappropriate and instructed him not to contact
Wilson-Trattner. Campbell initiated an internal investigation,
though says he misplaced the investigation paperwork in the
trunk of his car. He never delivered the findings of his inves-
tigation to Shepherd.
Things culminated on October 6, 2013, when Roeger broke
into Wilson-Trattner’s house while he was extremely intoxi-
cated. When Wilson-Trattner confronted him, he pushed her
No. 16-2509 5
out of the way. He then saw a male friend of Wilson-Trattner’s
and became enraged. He screamed and punched a hole in a
door and knocked three pictures off of the wall. He left the
house briefly, only to return and threaten Wilson-Trattner and
her friend. Wilson-Trattner’s friend then called 911 and
Roeger left before the police arrived. Hancock County Deputy
Gary Achor responded and told Wilson-Trattner “we’re sick
of getting these calls from you” and “if you keep crying wolf,
we’re just going to stop responding.” The McCordsville De-
partment subsequently arrested Roeger. He pled guilty to
criminal charges and resigned from the Hancock County
Sherriff’s Department following the initiation of termination
proceedings against him.
Wilson-Trattner filed this lawsuit on June 27, 2014 against
Roeger, Shepherd, Campbell and Munden, as well as Han-
cock County Officer Brad Burkhart.2 On summary judgment,
as is relevant here, the district court granted judgment for the
defense on Wilson-Trattner’s § 1983 substantive due process
claim (against Shepherd, Campbell, Munden, Burkhart and
Roeger in their individual and official capacities), § 1983 fail-
ure to train claim (against Shepherd in his official capacity)
and intentional infliction of emotional distress claim (against
Shepherd in his official capacity). It declined to grant judg-
ment on the battery and intentional infliction of emotional
distress claims against Roeger. The district court then entered
partial final judgment in favor of all of the above defendants
2 Wilson-Trattner also initially sued Hancock County and the Hancock
County Sherriff’s Department, but later agreed to voluntarily dismiss
them.
6 No. 16-2509
other than Roeger under Federal Rule of Civil Procedure
54(b). This appeal followed.
II.
We review the district court’s grant of summary judgment
de novo, construing all facts and drawing all reasonable infer-
ences in the Plaintiff’s favor. See, e.g., Collins v. Al-Shami, 851
F.3d 727, 730–31 (7th Cir. 2017).
The parties first contest whether Wilson-Trattner suffi-
ciently substantiated her substantive due process claim. The
due process clause generally confers “no affirmative right to
governmental aid, even where such aid may be necessary to
secure life, liberty, or property interests.” DeShaney v. Winne-
bago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). As such,
a state’s failure to protect an individual against private vio-
lence does not constitute a violation of the due process clause.
Id. at 197. Under the state-created danger doctrine, however,
a substantive due process claim can proceed where the state
“affirmatively places a particular individual in a position of
danger the individual would not otherwise have faced.” Doe
v. Vill. of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015). To
prevail under such a theory, the Plaintiff must show that (1)
the state by its affirmative acts created or increased a danger
to her, (2) the state’s failure to protect her from danger was the
proximate cause of her injury and (3) the state’s failure to pro-
tect her shocks the conscience. D.S. v. E. Porter Cty. Sch. Corp.,
799 F.3d 793, 798 (7th Cir. 2015). This is a narrow doctrine that
applies only in “rare and often egregious” circumstances. Doe,
782 F.3d at 917 (quoting Estate of Allen v. City of Rockford, 349
F.3d 1015, 1022 (7th Cir. 2003)).
No. 16-2509 7
At oral argument, Wilson-Trattner conceded that Roeger
was not serving as a state actor in his interactions with her.
Rather, she argues that her claim implicates a state-created
danger because the appellees “conveyed the unmistakable
message” to Roeger that they would not interfere with his on-
going abuse, thereby emboldening him to reoffend. Thus, she
says, they placed her at a greater risk of domestic violence
than she would have faced had they done nothing at all.
She points largely to a single incident to support her
claim.3 This is the law enforcement response to the June 29,
2012 confrontation in which Roeger choked Wilson-Trattner
and slammed her head against a wall. Recall that four or five
officials responded to Wilson-Trattner’s home from the Han-
cock County Sheriff’s Department and McCordsville Police
Department. After taking Roeger’s statement, the officers ap-
proached Wilson-Trattner, who was in her bed in her upstairs
bedroom. All of the officers were male and they stood above
Wilson-Trattner in a manner that she considered “very intim-
idating.” They explained that she could go to jail, since Roeger
had said that she hit him. Wilson-Trattner argues that this
amounted to the officers “cajoling” her in the face of domestic
abuse.
3 In briefing and at oral argument Wilson-Trattner’s counsel also argued
that the appellees “cleansed” Roeger’s personnel file of references to his
misconduct. However, counsel subsequently conceded that Roeger had
no knowledge of any such actions, and that they thus could not have em-
boldened him to abuse Wilson-Trattner. Similarly, while Wilson-Trattner
ascribes some relevance to the dismissive and derisive comments Hancock
County officers made to her, there is no evidence that Roeger was aware
of them.
8 No. 16-2509
There is no indication, however, that any of these officers
did anything to embolden Roeger or otherwise indicate that
he could abuse Wilson-Trattner with immunity. As an initial
matter, it is unclear whether any of the appellees even partic-
ipated in this encounter (and if they did, what the extent of
their involvement was). Wilson-Trattner testified that she had
“no idea” who the officers were, other than one officer she
recognized who was not with the Hancock County Sherriff’s
Department. Further, it does not appear that the officers “ca-
joled” her, but rather warned her that she could go to jail in
light of Roeger’s allegations against her, and accordingly en-
couraged her to provide her side of the story. More im-
portantly, regardless of what transpired upstairs, it would not
have emboldened or otherwise affected Roeger, who was
downstairs when the officers confronted Wilson-Trattner. Fi-
nally, there is no evidence that any officer directly encouraged
Roeger or otherwise told him that he could abuse Wilson-
Trattner with immunity. On the contrary, Hancock County re-
sponded to Wilson-Trattner’s call, notified the McCordsville
Department regarding the same and interviewed both Roeger
and Wilson-Trattner. While this may have fallen short of an
optimal response, it at least would have conveyed to Roeger
that Hancock County did not consider the incident trivial.
Wilson-Trattner also makes a more general argument that
the appellees’ dismissive and indifferent attitudes to each of
the incidents above endangered her by progressively embold-
ening Roeger. That contention is, however, squarely fore-
closed by DeShaney. 489 U.S. at 197; see also Doe, 782 F.3d at
918 (rejecting a claim under the state-created danger doctrine
where a police officer did nothing to prevent a group of three
males from leaving with an extremely intoxicated female and
No. 16-2509 9
a sexual assault ensued). Though Wilson-Trattner character-
izes the Department’s ineffectual response as affirmatively in-
creasing the danger to her, such semantics cannot skirt prece-
dent. See Doe, 782 F.3d at 917 (“To create or increase must not
be interpreted so broadly as to erase the essential distinction
between endangering and failing to protect and thus circum-
vent DeShaney's general rule.”) (internal quotation marks and
citation omitted). Further, even if the appellees’ failure to in-
tervene ultimately increased the danger to Wilson-Trattner by
indirectly emboldening Roeger to continue to mistreat her,
that would not distinguish her case from DeShaney. There
state officials did not remove a child from an abuser’s care de-
spite numerous obvious indications of abuse over a period of
about two years. 489 U.S. at 192–93. The abuse accordingly
continued unabated, ultimately resulting in severe brain dam-
age to the child. Id. The Supreme Court nevertheless con-
cluded that the inaction of state officials was insufficient to
support a claim under the state-created danger doctrine. Id. at
201. That holding is equally applicable here.
The Supreme Court subsequently reaffirmed this princi-
ple in Town of Castle Rock v. Gonzales, in which it held that there
is no due process right to have another arrested for one’s own
protection. 545 U.S. 748 (2005). In that case, a woman’s hus-
band took her children in violation of a protective order. The
woman repeatedly implored the police to enforce the protec-
tive order, but they refused to do so, and the husband then
murdered the children. The Court found that this did not give
rise to a procedural due process claim, as the plaintiff had no
property right in the enforcement of the restraining order. It
further noted that “[i]n light of today's decision and that in
DeShaney, the benefit that a third party may receive from hav-
10 No. 16-2509
ing someone else arrested for a crime generally does not trig-
ger protections under the Due Process Clause, neither in its
procedural nor in its ‘substantive’ manifestations.” Id. at 768.
Wilson-Trattner correspondingly lacks a viable due process
claim.
We also reject her reliance on Okin v. Village of Cornwall-
On-Hudson Police Department. 577 F.3d 415 (2d Cir. 2009). In
that case, the Second Circuit allowed a substantive due pro-
cess claim to survive summary judgment where police offic-
ers expressed camaraderie with a perpetrator of domestic vi-
olence and repeatedly failed to punish him. The court of ap-
peals reasoned that, in doing so, the officers implicitly com-
municated to the perpetrator that his violence would go un-
punished, thereby increasing the risk of harm to the victim.
Id. at 429–30.
Though this holding appears to be in tension with
DeShaney and Castle Rock (indeed it is more like the dissent in
Castle Rock, which it cites in noting the “serious and unique
risks and concerns of a domestic violence situation,” Okin, 577
F.3d at 431 n.10) we need not decisively decline to follow it
since Okin involved facts significantly different from those at
issue here. In Okin, the police expressed solidarity with the
victim’s assailant by discussing football with him. Id. at 430.
The police also took no action in the face of obvious and re-
peated violence. Among other things, officers observed
bruises on the plaintiff, the plaintiff had lodged numerous
complaints of violence (including that she had been stabbed,
kicked, choked, punched and had a bottle thrown at her head)
and the perpetrator himself told the police that he “could not
help it sometimes when he smack[ed] [the victim] around.”
Id. at 420–24.
No. 16-2509 11
In contrast, here only one violent encounter occurred prior
to the October 2013 incident in which Roeger was arrested
and charged. Further, when police responded to it, Roeger in-
dicated that Wilson-Trattner had instigated the confrontation.
While Wilson-Trattner denied that (and said that Roeger had
slammed her head into the wall), she also said that she did not
want Roeger to get in trouble, did not show police her injuries
and did not provide police with her account of events.
Further, there is no evidence that responding officers ex-
pressed camaraderie with Roeger, for example by discussing
football with him as the officers did in Okin. In fact, while the
Hancock County Department’s response to Wilson-Trattner’s
complaints may have been tepid, the department did at least
repeatedly inform Roeger that his conduct was unacceptable.
Among other things, following the June 17, 2012 incident,
Rasche told Roeger that his personal life becomes a depart-
ment issue when he acts as he did and Wilson-Trattner calls
law enforcement. After the June 29, 2012 incident, Munden
completed an “insubordination warning form” following his
interview with Roeger. And after the July 8, 2013 incident,
Campbell told Roeger that his conduct was inappropriate and
instructed him not to contact Wilson-Trattner. This case is ac-
cordingly distinguishable from Okin.
In sum, we find no evidence that any of the appellees cre-
ated or increased a danger to Wilson-Trattner. Mere indiffer-
ence or inaction in the face of private violence cannot support
a substantive due process claim under DeShaney and Castle
Rock. Further, Wilson-Trattner’s theory that Hancock County
officers increased a danger to her by implicitly condoning vi-
olence against her is both questionable in light of DeShaney
and Castle Rock and unsupported by the facts. As such, the
12 No. 16-2509
district court correctly granted summary judgment on the
Plaintiff’s substantive due process claim.4
III.
We also agree with the district court’s resolution of the
Plaintiff’s failure to train and intentional infliction of emo-
tional distress claims. The former cannot proceed without ev-
idence of an underlying constitutional violation, D.S., 799 F.3d
at 800, which, for reasons set forth above, we find lacking.
Moreover, Wilson-Trattner provides no evidence to support
this claim other than a one-page “pre-basic training” sched-
ule. While she says that the defense admitted in response to a
discovery request that this is the only training officers receive,
she does not cite or attach that discovery request.
As to the intentional infliction of emotional distress claim,
Wilson-Trattner must establish (1) extreme and outrageous
conduct, (2) which intentionally or recklessly (3) caused her
(4) severe emotional distress. Curry v. Whitaker, 943 N.E.2d
354, 361 (Ind. Ct. App. 2011). As the district court properly
concluded, she has not presented any evidence of extreme or
outrageous conduct.5
4 Even if we were to find otherwise, the appellees would be entitled to
qualified immunity in their individual capacities, since the unconstitu-
tionality of the appellees’ actions is far from clearly established under
DeShaney. See Doe, 782 F.3d at 915.
5 Wilson-Trattner also contends that the appellees did not carry their ini-
tial burden before the district court of articulating why summary judg-
ment was warranted on the intentional infliction of emotional distress
claim. But, while contrite, the Defendants’ brief did argue that the Plaintiff
lacked evidence of extreme and outrageous conduct. See Outlaw v.
Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (noting that a moving party may
No. 16-2509 13
She points to four occurrences to substantiate this element
of her claim: (1) officers failing to take action against Roeger
despite him threatening her and smashing her head into a
wall, (2) officers standing over her and threatening her with
arrest, (3) officers dismissing her requests for assistance by
telling her “we can’t help you,” “we’re sick of dealing with
this shit” and that she “shouldn’t call in for this personal shit”
and (4) the “misfiling” of investigative reports against Roeger.
None of this conduct is sufficiently outrageous to give rise
to a cognizable claim. Her first two allegations, if anything,
describe an insufficient response to her calls for assistance.
That is not outrageous, particularly in light of Wilson-
Trattner’s statements to police that she did not want Roeger to
get in trouble. And while officers may have indicated that she
could be arrested after the June 29, 2012 incident, that was af-
ter Roeger told them that Wilson-Trattner initiated the con-
frontation and Wilson-Trattner did not provide her full side
of the story. Wilson-Trattner’s fourth allegation seems to im-
plicate negligent conduct. But, even granting the inference
that the Department intentionally buried the reports at issue,
there is no indication that it did so with reckless disregard for
the fact that it would cause Wilson-Trattner severe emotional
distress.
Wilson-Trattner’s third allegation is simply not egregious
enough to constitute outrageous or extreme conduct. See, e.g.,
Beauchamp v. City of Noblesville, Ind., 320 F.3d 733, 747 (7th Cir.
2003) (police officer calling a woman a bitch not extreme or
outrageous conduct). While some courts have found mocking
discharge its burden by “pointing out to the district court … that there is
an absence of evidence to support the nonmoving party’s case”).
14 No. 16-2509
a sexual assault victim to give rise to an intentional infliction
of emotional distress claim, see, e.g., Snyder v. Smith, 7 F. Supp.
3d 842, 862 (S.D. Ind. 2014), the dismissive conduct at issue
here does not rise to the flagrant callousness exhibited in
those cases. As such, the district court properly granted sum-
mary judgment for Shepherd on the Plaintiff’s intentional in-
fliction of emotional distress claim. The judgment of the dis-
trict court is therefore AFFIRMED.