# RAKES v. ROEDERER

> District Court, S.D. Indiana · October 18, 2022

URL: https://www.frixlaw.com/law-library/cases/10169544

## Case

- **Court:** District Court, S.D. Indiana
- **Decided:** October 18, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

AMANDA RAKES, Administrator of the Estate of )
Amylyn Slaymaker and Next Friend to the )
Minor Children G.C. and M.C., )
)
Plaintiff, ) No. 4:21-cv-00114-JMS-DML
)
vs. )
)
JONATHAN PAUL ROEDERER and THE ESTATE )
OF TE'JUAN JOHNSON, )
)
Defendants. )

ORDER

Amylyn Slaymaker was tragically killed by her husband, RJ Slaymaker, the day after a
violent encounter with RJ. The Administrator of Amylyn's Estate, Amanda Rakes, initiated this
litigation as next friend to Amylyn's two minor children, focusing on the actions of two of the
police officers who responded to the scene of the encounter – Defendants Jonathan Roederer and
Te'Juan Johnson. Officer Roederer and the Estate of Officer Johnson1 have filed a Motion for
Judgment on the Pleadings, [Filing No. 46], which is now ripe for the Court's review.
I.
STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed – but
early enough not to delay trial – a party may move for judgment on the pleadings." Pleadings
include "the complaint, the answer, and any written instruments attached as exhibits." Federated
Mut. Ins. Co. v. Coyle Mech. Supply Inc., 983 F.3d 307, 312 (7th Cir. 2020) (quotation and citation

1 Officer Johnson passed away after the events which are the subject of this litigation. Although
his Estate is the Defendant in this matter, the Court refers to Officers Johnson and Roederer
collectively as "Defendants" in this Order.
omitted). "The only difference between a motion for judgment on the pleadings and a motion to
dismiss [under Rule 12(b)(6)] is timing; the standard is the same." Id. When evaluating a motion
to dismiss, the Court is required to "accept as true all of the well-pleaded facts in the complaint
and draw all reasonable inferences in favor of the plaintiff." Kubiak v. City of Chicago, 810 F.3d

476, 480-81 (7th Cir. 2016) (citation omitted).
Under Federal Rule of Civil Procedure 12(b)(6), the allegations in a complaint must
"'plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative
level.'" Id. at 480 (quoting EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir.
2007)). A complaint that offers "'labels and conclusions'" or "'a formulaic recitation of the
elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court must identify allegations "that,
because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft,
556 U.S. at 679. Ultimately, dismissal is only appropriate "if it appears beyond doubt that the
plaintiff could prove no set of facts in support of [her] claim that would entitle [her] to the relief

requested." Enger v. Chicago Carriage Cab Corp., 812 F.3d 565, 568 (7th Cir. 2016) (quotation
and citation omitted).
The Court notes that Ms. Rakes submitted several exhibits with her response to the Motion
for Judgment on the Pleadings, including two flash drives with dashcam or bodycam video from
Defendants, Charlestown Police Department Standard Operating Procedures, a Case Report
completed by Officer Johnson, medical records for RJ from Clark Memorial Hospital, and an
investigative report completed by Detective James Haehl. [Filing No. 48-1; Filing No. 48-2; Filing
No. 48-3; Filing No. 48-4; Filing No. 48-5; Filing No. 48-6.] "If, on a motion under Rule…12(c),
matters outside the pleadings are presented to and not excluded by the court, the motion must be

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treated as one for summary judgment under Rule 56. All parties must be given a reasonable
opportunity to present all the material that is pertinent to the motion." Fed. Rule Civ. P. 12(d).
Defendants specifically request that their motion not be converted into one for summary judgment,
[Filing No. 47 at 6], and Ms. Rakes does not request that the motion be converted to one for

summary judgment based on her submission of the exhibits, [see Filing No. 48]. The Court
declines to convert Defendants' Motion for Judgment on the Pleadings into a Motion for Summary
Judgment and, consequently, does not consider the exhibits that Ms. Rakes submitted with her
response brief.
II.
BACKGROUND

The following factual allegations are taken from the Complaint, [Filing No. 1], and are
accepted as true solely for the purpose of this Order.
A. The July 18, 2019 Incident
On July 18, 2019 at approximately 11:30 p.m., Defendants, who were both officers with
the Charlestown Police Department, were dispatched to a domestic disturbance after a 911 caller
advised that a man was hitting a woman and that it appeared the man had a gun. [Filing No. 1 at
2.] When Defendants arrived, Amylyn immediately told Officer Johnson, "I'm scared for my life.
Is the gun off him? He has PTSD and he's drunk and he's threatening to kill me, my family. And
my kids live right over there." [Filing No. 1 at 2.] Amylyn told Defendants that RJ had struck her
with a gun and then punched her in the face, although she had blocked the punch with her arm.
[Filing No. 1 at 2.] RJ told Officer Roederer that the couple had argued because RJ was drinking
and driving, but he denied threatening or hitting Amylyn. [Filing No. 1 at 3.]
Defendants asked Amylyn why she had a gun in her purse, and she responded, "Because
he'd threatened to kill my kids' dad and my kids." [Filing No. 1 at 3.] Amylyn told Defendants
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that RJ pretended to shoot himself in a video call with her earlier that evening, and later texted her
that he was going to her ex's house, where her children were staying, to kill her ex. [Filing No. 1
at 3.] Amylyn advised Defendants that she had come to try to stop RJ and that when she confronted
him in front of her ex's house, he had said, "do you want me to shoot you and then the kids come

out in the morning to see their mother dead?" [Filing No. 1 at 3.] Amylyn showed Defendants the
threatening text messages from RJ and told them that in the past, RJ had told her that if she called
the police, he would "commit suicide by cop." [Filing No. 1 at 3.]
Officer Roederer interviewed the individuals who had called 911 regarding the encounter
between Amylyn and RJ, and they told Officer Roederer that they saw RJ hit Amylyn through her
car window with "what looked to be a gun." [Filing No. 1 at 3.] After interviewing the 911 callers,
Officer Roederer told Officer Johnson that the witnesses "saw [RJ's] arms going up, but didn't see
him hit her," and that they did not "know for sure if they saw a gun." [Filing No. 1 at 3.]
Defendants decided there was no evidence that RJ has struck or threatened Amylyn and determined
that they would not make an arrest. [Filing No. 1 at 3.] Defendants also determined that they

would not let RJ drive home because he was intoxicated, and that they would take custody of his
handgun. [Filing No. 1 at 3.]
When Officer Johnson told Amylyn that they would not be arresting RJ but would take
temporary custody of his gun due to his intoxication, she asked Officer Johnson if he would also
take custody of two AR-15s which were at their house. [Filing No. 1 at 3.] Officer Johnson
advised Amylyn that she should spend the night at her parents' house, to which she replied "he's
going to hurt me…once he finds me." [Filing No. 1 at 4.] Officer Johnson told Amylyn that she
needed to get a protective order, "act as an adult," and file for divorce. [Filing No. 1 at 4.] He told
her that if her children had been present that night, "[Child Protective Services] would get involved.

4
Your kids would be taken away." [Filing No. 1 at 4.] Officer Johnson also told Amylyn that a
protective order is "a piece of paper…that's not going to keep him away from you," and Officer
Roederer advised Amylyn to get a mental inquest warrant. [Filing No. 1 at 4.]
Amylyn told Defendants that RJ was suicidal and showed them a picture of RJ pointing a

gun at his head. [Filing No. 1 at 4.] Defendants then told RJ that they wanted him to go to Clark
Memorial Hospital to be evaluated. [Filing No. 1 at 4.] They told RJ that they could "write up
everything" and force him to go to the hospital, or he could go voluntarily. [Filing No. 1 at 4.]
Defendants promised RJ that if he agreed to go to the hospital, they would not share the photograph
of him pointing a gun at his head with medical personnel, or disclose any details about that evening.
[Filing No. 1 at 4.] Defendants also told RJ that if he went to the hospital voluntarily, he would
not be forced to stay there for any specified time and he could have Amylyn pick him up when he
was finished. [Filing No. 1 at 4.] When paramedics arrived, Officer Johnson told them, "This is
RJ. He got in trouble with his wife. He's having a bad day. Problems. He wants to volunteer to
get checked out." [Filing No. 1 at 4.] Officer Johnson did not provide any other information to

the paramedics, and RJ left the scene with them. [Filing No. 1 at 4.]
When Defendants returned to Amylyn's vehicle, she asked, "you said it's a 24-hour thing,
right? For his evaluation?," to which Officer Johnson replied, "Yes." [Filing No. 1 at 5.] Amylyn
told Defendants that RJ regularly forced her to engage in sex acts with strangers, and that he was
upset that night because she did not meet the man she was supposed to have sex with. [Filing No.
1 at 5.] She also told Defendants that RJ had shot at her in the past. [Filing No. 1 at 5.] Officer
Johnson asked Amylyn if she was going to return to her house, and Amylyn responded, "well,
tonight, yeah. You said it's a 24 hour." [Filing No. 1 at 5.] Amylyn said she would collect her

5
belongings and the AR-15s and then go to her parents' house, and Defendants agreed with that
course of action. [Filing No. 1 at 5.]
RJ entered the Clark Memorial Hospital Emergency Department alone at approximately
1:00 a.m. [Filing No. 1 at 5.] He told medical workers that he did not use a handgun during the

argument with Amylyn, that he did not threaten anyone, and that he was not homicidal or suicidal.
[Filing No. 1 at 5.] RJ's blood alcohol level at the hospital was 0.12. [Filing No. 1 at 5.]
At 1:33 a.m., Amylyn called Officer Johnson and told him that she had found visible
injuries on her body as proof that RJ had hit her. [Filing No. 1 at 5.] She then went to the
Charlestown Police Department so that Officer Johnson could photograph her injuries. [Filing No.
1 at 5.] While she was there, Amylyn again asked how long RJ would be in the hospital. [Filing
No. 1 at 5.] Defendants did not complete police reports that night, and did not input any narrative
notes into the dispatch call record. [Filing No. 1 at 5.]
RJ left Clark Memorial Hospital at 3:18 a.m., went to the home he shared with Amylyn,
and shot and killed Amylyn with one of his AR-15s. [Filing No. 1 at 5.] That evening, he

confessed to his mother that he had killed Amylyn, and committed suicide shortly thereafter.
[Filing No. 1 at 6.]
B. The Lawsuit
Ms. Rakes initiated this litigation on July 15, 2021 as the Administrator of Amylyn's Estate
and the next friend of her two minor children. [Filing No. 1.] She asserts claims against
Defendants: (1) under 42 U.S.C. § 1983 for violation of Amylyn's Fourteenth Amendment rights
by "affirmatively plac[ing] Amylyn in a heightened state of special danger that Amylyn would not
otherwise have faced when they falsely told Amylyn that RJ would be in the hospital for 24 hours
and it was safe to return home," because "[i]t was foreseeable that RJ would return to the home

6
and harm Amylyn during the 24-hour period that Amylyn thought RJ would be hospitalized"; and
(2) under 42 U.S.C. § 1985 for conspiring to deprive Amylyn of her constitutional right to equal
protection because Amylyn "was a member of a protected class" and Defendants' actions "were
motivated by discriminatory animus toward Amylyn's gender." [Filing No. 1 at 6-7.] Defendants

have now filed a Motion for Judgment on the Pleadings as to both of Ms. Rakes' claims. [Filing
No. 46.]
III.
DISCUSSION

In their Motion for Judgment on the Pleadings, Defendants argue that: (1) Ms. Rakes' §
1983 claim fails because she cannot establish that a constitutional violation took place; (2) Ms.
Rakes' § 1985 claim fails because there was no underlying constitutional violation to support a
conspiracy claim; and (3) Defendants are entitled to qualified immunity on all of Ms. Rakes'
claims. [Filing No. 47 at 6-21.] The Court discusses each argument in turn.
A. Whether Ms. Rakes Has Sufficiently Alleged That a Constitutional Violation
Took Place

In support of their motion, Defendants argue that Ms. Rakes does not have a valid § 1983
claim because they did not violate Amylyn's Due Process rights. [Filing No. 47 at 9.] They assert
that in order to assert a state-created danger claim – as Ms. Rakes does here – "a plaintiff must
plead facts showing some affirmative act on the part of the state that either created a danger to the
plaintiff or rendered [her] more vulnerable to an existing danger." [Filing No. 47 (quotation and
citation omitted).] Defendants contend that "[t]he Seventh Circuit has steadfastly required
affirmative state action that created danger where none previously existed before it will sustain a
state-created danger exception," and that "Defendants did nothing to create a danger and nothing
to exacerbate the danger Amylyn already faced with RJ." [Filing No. 47 at 9-13.] They rely
7
heavily on a Fourth Circuit Court of Appeals case that they claim is "closely analogous" – Pinder
v. Johnson, 54 F.3d 1169 (4th Cir. 1995) – and argue that Ms. Rakes' allegations are more akin to
a failure to protect Amylyn, which does not constitute a constitutional violation. [Filing No. 47 at
14.] Defendants argue further that Ms. Rakes cannot establish that the Officers' actions were the

proximate cause of Amylyn's death, nor that the Defendants' actions shocked the conscience.
[Filing No. 47 at 15-18.]
In her response, Ms. Rakes argues that Defendants' actions of assuring Amylyn that RJ
would be held at the hospital for 24 hours and that it was safe for her to go home amounted to
Defendants "actively stag[ing] the circumstances that allowed RJ to ambush and kill [her]." [Filing
No. 48 at 10.] Ms. Rakes contends that if not for Defendants' assurances, Amylyn would not have
gone home that evening and that "[i]t is unlikely that RJ would still be a threat to Amylyn 24 hours
after their encounter with [Defendants]." [Filing No. 48 at 11.] Ms. Rakes argues that other courts
of appeals have "regularly distinguished" Pinder. [Filing No. 48 at 8-9.] As to proximate cause,
Ms. Rakes argues that "not only was Amylyn part of a foreseeable class as a domestic violence

victim, she was also part of the incredibly limited class of people Defendants knew RJ was actively
threatening: Amylyn, her parenting partner, and their children." [Filing No. 48 at 13.] Finally,
Ms. Rakes argues that "[t]he combination of the passage of time [between the initial encounter and
Defendants assuring Amylyn that it was safe to go home], the repeated knowing lies and violations
of policy, and the continued disregard for Amylyn's safety amounts to deliberate indifference" to
Amylyn's safety. [Filing No. 48 at 14.]
In their reply, Defendants argue that any failure to follow internal procedures "does not
amount to affirmative conduct and sounds in inaction rather than action." [Filing No. 52 at 4-5.]
They also reiterate their argument that Defendants "did not create or encourage RJ's violent

8
tendencies," but rather "[t]he danger to Amylyn was created by the already-existing, violent nature
of RJ." [Filing No. 52 at 6.] Defendants also argue that state-created danger claims are properly
decided at the pleadings stage, and again rely extensively on Pinder. They assert that their conduct
was not conscience-shocking because they questioned Amylyn, RJ, and the 911 callers; took

custody of RJ's firearm; advised Amylyn to spend the night at her parents' house; and instructed
her to file for divorce, seek a protective order, and get a mental inquest warrant. [Filing No. 52 at
11.]
"The Fourteenth Amendment's Due Process Clause protects persons against deprivations
of life, liberty, or property; and those who seek to invoke its procedural protection must establish
that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Ms. Rakes
alleges that Defendants violated Amylyn's Fourteenth Amendment rights by informing Amylyn
that RJ would be held at the hospital for 24 hours and assuring her that it was safe for her to return
home, which "placed [her] in a heightened state of special danger that [she] would not otherwise
have faced." [Filing No. 1 at 6.] The Due Process Clause generally has not been interpreted to

require state actors to protect individuals from injuries caused by private actors, DeShaney v.
Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 195 (1989), but a state-created danger
exception to that general rule has been recognized where the state actor "affirmatively creates a
danger that injures the individual," Jaimes v. Cook Cnty., 2022 WL 2806462, at *3 (7th Cir. July
18, 2022). A claim under the state-created danger theory succeeds if the plaintiff shows: "(1) that
[the state actor], by its affirmative acts, created or increased a danger that [the plaintiff] faced; (2)
that [the state actor's] failure to protect [the plaintiff] from the danger was the proximate cause of
their injuries; and (3) that [the state actor's] conduct 'shocks the conscience.'" Id. (citing Estate of
Her v. Hoeppner, 939 F.3d 872, 876 (7th Cir. 2019)). Liability under the state-created danger

9
theory "has only been found under 'rare and often egregious' circumstances." Id. (quoting Doe v.
Village of Arlington Heights, 782 F.3d 911, 917 (7th Cir. 2015)); see also First Midwest Bank
Guardian of Estate of LaPorta v. City of Chicago, 988 F.3d 978, 988 (7th Cir. 2021) ("The
DeShaney exception for state-crated dangers is narrow.").

The Seventh Circuit discussed the state-created danger exception in Monfils v. Taylor, 165
F.3d 511 (7th Cir. 1998). There, Thomas Monfils called the police to inform them that a fellow
employee, Keith Kutska, was planning to steal an electrical cord when he left work at the James
River Paper Mill in Green Bay, Wisconsin. Id. at 513. The police informed security at the Mill,
security stopped Mr. Kutska on his way out the door, and Mr. Kutska was suspended for five days
after refusing to submit to a search. Id. at 513. Mr. Kutska then set out to determine who had
reported him to the police, and he eventually obtained a tape recording of Mr. Monfils' call from
the police department even though a police officer had assured Mr. Monfils and the assistant
district attorney that the tape would not be released. Id. at 513-15. Subsequently, Mr. Monfils
was beaten and thrown into a pulp vat at the Mill with a 50-pound weight tied around his neck,

where he was discovered, deceased, two days later. Id. at 513. Mr. Kutska and six co-workers
were found guilty of murdering Mr. Monfils. Id. The Seventh Circuit found that the officer who
assured Mr. Monfils and the assistant district attorney that the tape would not be released but did
nothing to make sure it was not released was not entitled to qualified immunity because "by
assuring [Mr. Monfils and the assistant district attorney] that he would make sure the tape was not
released but not following through, he created a danger [Mr.] Monfils would not otherwise have
faced." Id. at 518.
Monfils shares some similarities with this case. Taking Ms. Rakes' allegations as true, as
the Court must at the pleadings stage, Defendants assured Amylyn that RJ would be held for 24

10
hours at the hospital and that it was safe to go home, but did nothing to make sure that he was, in
fact, held for 24 hours. [Filing No. 1 at 4 (Ms. Rakes alleging that Defendants informed
paramedics that RJ "got in trouble with his wife," was "having a bad day," and "wants to volunteer
to get checked out," but not providing any other information or accompanying RJ to the hospital).]

The affirmative act Ms. Rakes alleges is similar to the affirmative act at play in Monfils – assuring
the victim that something would occur that would make them safe, but then not taking steps to
make sure that it occurred. The Court can conceive of facts consistent with Ms. Rakes' allegations
which could support a claim that Defendants violated Amylyn's Fourteenth Amendment rights by
assuring her that RJ would be held for 24 hours and that it was safe for her to go home.
The Court also acknowledges the Fourth Circuit's decision in Pinder, however, which
involved facts similar to Ms. Rakes' allegations in this case. There, officers responded to a
domestic disturbance at the home of Carol Pinder. 54 F.3d 1169, 1172 (4th Cir. 1995). Ms.
Pinder's ex-boyfriend had broken into her home and was abusive and violent, screaming and
threatening Ms. Pinder and her children, and saying that he would murder them all. Id. Ms. Pinder

explained to the officer that her ex-boyfriend had threatened her in the past, and had just been
released from prison after having attempted arson at her house ten months earlier. Id. An officer
questioned the ex-boyfriend, placed him under arrest, and assured Ms. Pinder that he would be
locked up overnight and that Ms. Pinder would need to wait until the next day to "swear out a
warrant" because a county commissioner would not be available to hear the charges until then. Id.
Based on the officer's assurances, Ms. Pinder returned to work. Id. The same evening, the officer
brought the ex-boyfriend in front of a county commissioner – despite telling Ms. Pinder that this
would not occur until the next day – and the ex-boyfriend was only charged with misdemeanor
offenses so was immediately released on his own recognizance. Id. The ex-boyfriend returned to

11
Ms. Pinder's house that evening and set it on fire, killing Ms. Pinder's three children who were
sleeping inside. Id.
The Fourth Circuit found that the officer was entitled to qualified immunity because the
constitutional right Ms. Pinder claimed was violated was not clearly established. Id. at 1174-75.

It noted that there needed to be a "special relationship" between Ms. Pinder and the officer, and
that the officer's explicit promise that the ex-boyfriend would be incarcerated overnight did not
create that special relationship because there was no custodial context. Id. at 1175 ("Promises do
not create a special relationship – custody does. Unlike custody, a promise of aid does not actually
place a person in a dangerous position and then cut off all outside sources of assistance. Promises
from state officials can be ignored if the situation seems dire enough, whereas custody cannot be
ignored or changed by the persons it affects."). Ultimately, the Fourth Circuit's decision in Pinder
relied at least in part on the lack of a custodial relationship between Ms. Pinder and the officers, a
relationship the Seventh Circuit does not appear to require for the state-created danger exception
to apply. See Monfils, 165 F.3d 511 (finding constitutional violation under state-created danger

exception to DeShaney in absence of a custodial relationship between Mr. Monfils and the officer
who assured him that the tape would not be released). Additionally, Pinder is not binding on this
Court.
What Pinder and Monfils demonstrate, however, is that whether the state-created danger
exception to DeShaney applies is a highly fact-specific inquiry. And while there are situations
where the Court can conclude that a plaintiff has not adequately alleged a constitutional violation
at the pleadings stage, this is not one of them. The Court can conceive of facts reasonably drawn
from the Complaint which are consistent with Ms. Rakes' allegations, and which may support a
viable § 1983 claim for a Fourteenth Amendment violation based on the state-created danger

12
exception in this case. Accordingly, the Court finds that Ms. Rakes has sufficiently alleged a §
1983 claim based on the Fourteenth Amendment and DENIES Defendants' Motion for Judgment
on the Pleadings on that issue.
B. Whether Ms. Rakes Has Sufficiently Alleged a Conspiracy Claim

Defendants argue that they are entitled to judgment on the pleadings on Ms. Rakes'
conspiracy claim because she has not sufficiently alleged an underlying constitutional violation.
[Filing No. 47 at 18-19.]
Ms. Rakes argues in response that Amylyn "suffer[ed] a constitutional injury, and [Ms.
Rakes is] entitled to pursue discovery in support of the conspiracy claim." [Filing No. 48 at 14.]
Defendants do not address the conspiracy claim in their reply. [See Filing No. 52.]
Ms. Rakes' conspiracy claim is based on the § 1983 Fourteenth Amendment claim, and
Defendants argue that it rises or falls with that claim at the pleadings stage. Consequently, because
the Court finds that Ms. Rakes has stated a claim for violation of Amylyn's Fourteenth Amendment
rights, it DENIES Defendants' Motion for Judgment on the Pleadings as it applies to Ms. Rakes'

conspiracy claim under § 1985.
C. Whether Defendants are Entitled to Qualified Immunity
In support of their Motion for Judgment on the Pleadings, Defendants argue that even if
Ms. Rakes has adequately alleged that Defendants violated Amylyn's constitutional right, such a
right was not clearly established because "[a]t the time of the Defendants' contact with Amylyn,
no Supreme Court or Seventh Circuit precedent pronounced a due process obligation to protect a
citizen from private acts of violence under analogous circumstances," and "all precedent is directly
to the contrary." [Filing No. 47 at 20.]

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In response, Ms. Rakes points to three Seventh Circuit cases – Paine v. Cason, 678 F.3d
500 (7th Cir. 2012); Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), and Monfils, 165 F.3d 511 –
in arguing that "the Seventh Circuit has clearly established that the Fourteenth Amendment
prohibits state actors from placing victims in the path of dangerous criminal acts by third parties."

[Filing No. 48 at 15.]
In their reply, Defendants argue that Ms. Rakes defines the clearly established right
generally, but that she has not identified any cases involving facts similar to this case, "let alone a
factually particularized case that would be necessary to put the constitutional question beyond
debate." [Filing No. 52 at 13 (quotation and citation omitted).] Defendants argue that the three
cases upon which Ms. Rakes relies all involved situations where the plaintiff was safe before the
police acted, but that here "RJ was a danger to Amylyn before Defendants interacted with them."
[Filing No. 52 at 14.]
"A public official is entitled to qualified immunity from suit unless he violated a clearly
established constitutional right." Dockery v. Blackburn, 911 F.3d 458, 466 (7th Cir. 2018) (citing

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). The qualified immunity doctrine is an affirmative
defense, and "once the defense is raised, it becomes the plaintiff's burden to defeat it." Smith v.
Finkley, 10 F.4th 725, 737 (7th Cir. 2021) (quotation and citation omitted). Granting a motion for
judgment on the pleadings on qualified immunity grounds "is a 'delicate matter'" because, under
the federal rules, a plaintiff is not required to "anticipate the assertion of qualified immunity by the
defendant and plead allegations that will defeat that immunity." Jacobs v. City of Chicago, 215
F.3d 758, 765 n.3 (7th Cir. 2000). Dismissal of a claim based on qualified immunity is only
appropriate where "the plaintiffs' well-pleaded allegations, taken as true, do not 'state a claim of
violation of clearly established law.'" Hanson v. LeVan, 967 F.3d 584, 590 (7th Cir. 2020) (quoting

14
Behrens v. Pelletier, 516 U.S. 299, 306 (1996)). Put another way, if "(1) the plaintiff[ ] adequately
allege[s] facts that, if true, would constitute a violation of a statutory or constitutional right, and
(2) the right was 'clearly established' at the time of the alleged violation, such that a reasonable
public official would have known his conduct was unlawful," then dismissal on qualified immunity

grounds is not warranted. Hanson, 967 F.3d at 592.
A right is clearly established for purposes of qualified immunity where: (1) "a closely
analogous case establishes that the conduct is unconstitutional"; or (2) "the violation is so obvious
that a reasonable state actor would know that [his actions] violate[ ] the Constitution." Siebert v.
Severino, 256 F.3d 648, 654-55 (7th Cir. 2001); see also Dist. of Columbia v. Wesby, 138 S. Ct.
577, 590 (2018) (constitutional right is clearly established for purposes of qualified immunity
analysis if "every reasonable official would interpret [then-existing precedent] to establish the
particular rule the plaintiff seeks to apply"). Moreover, the rule must "clearly prohibit the officer's
conduct in the particular circumstances before him." Wesby, 138 S. Ct. at 590. "[E]xisting
precedent must have placed the statutory or constitutional question beyond debate," Lopez v.

Sheriff of Cook Cnty., 993 F.3d 981, 987 (7th Cir. 2021), and the focus "is on whether the officer
had fair notice that [his] conduct was unlawful," Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).
The clearly established law "must share specific details with the facts of the case at hand."
Doxtator v. O'Brien, 39 F.4th 852, 863 (7th Cir. 2022).
Ms. Rakes relies on three cases in arguing that Amylyn's Fourteenth Amendment right
under the circumstances of this case was clearly established. First, Ms. Rakes points to Paine v.
Cason, 678 F.3d 500 (7th Cir. 2012). There, Christina Eilman was arrested outside Chicago's
Midway Airport after acting erratically. Id. at 503. Ms. Eilman had bipolar disorder and was "in
an acute manic phase," but did not disclose her mental-health background to the arresting officers.

15
Id. at 504. Additionally, the officers did not believe Ms. Eilman's step-father when he told them
Ms. Eilman was bipolar, nor did they record this information in Ms. Eilman's file when her mother
also advised them of Ms. Eilman's mental-health background. Id. at 504. The officers took Ms.
Eilman to a station that had a holding facility for women and, although she continued to act

erratically, she was released on her own recognizance the next evening. Id. When Ms. Eilman
left the station (without her cell phone, because officers had not returned it to her), she did not
immediately leave the neighborhood, which had "an exceptionally high crime rate." Id.
Additionally, Ms. Eilman "was lost, unable to appreciate her danger, and dressed in a manner that
attracted attention," and was "white and well off while the local population [was] predominantly
black and not affluent, causing her to stand out as a person unfamiliar with the environment and
thus a potential target for crime." Id. Ms. Eilman eventually wound up at an apartment where she
was raped at knifepoint and then jumped out of a seven-story window in an attempt to escape and
suffered severe brain damage. Id. at 506. The Seventh Circuit found that the officers were not
entitled to qualified immunity because "[i]t is clearly established that state actors who, without

justification, increase a person's risk of harm violate the Constitution," noting that "people
propelled into danger by public employees have a good claim under the Constitution." Id. at 510.
Next, Ms. Rakes cites to Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993). There, state
troopers had arrested Cathy Irby, leaving the passenger in her car, Larry Rice, with Ms. Irby's car
keys even though they should have known that Mr. Rice was intoxicated. Id. at 1124. Later that
evening, Mr. Rice, while still intoxicated and while being pursued at a high speed by a Deputy
Sheriff, collided with a car driven by Richard Reed. Id. at 1123. The collision killed Mr. Reed's
wife and their unborn child, and injured the other occupants of Mr. Reed's car. Id. at 1123-24.
The Seventh Circuit found that Mr. Reed's Fourteenth Amendment rights were violated because

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"[t]he officers…initiated the state action, by arresting [Ms.] Irby and removing her from the car.
That state intervention created the dangerous condition, a drunk driver on the road." Id. at 1126.
The Seventh Circuit remarked that "removing one drunk driver and failing to prevent replacement
by another drunk [driver] will not subject officers to section 1983 liability," but that "[i]t is the

special circumstance plead in this case, that the defendants removed a driver, who it must be
inferred was sober, and left behind a passenger, whom they knew to be drunk, with the car keys,
that states a claim for deprivation of constitutional rights under [§ 1983]." Id. at 1127.
And in Monfils, discussed above, the Seventh Circuit found that the officer who had
assured Mr. Monfils and the assistant district attorney that the tape of his phone call to police
would not be released to Mr. Kutska, but then never took any action to make sure that would not
happen, was not entitled to qualified immunity. Monfils, 165 F.3d 511.
These three cases all stand for the proposition that a state actor may not, by his affirmative
acts and through special circumstances, place an individual in more danger from the acts of a
private citizen than they were in before the encounter with the state actor by limiting their ability

to protect themself. Much like the question of whether Defendants violated Amylyn's
constitutional rights, the issue of whether such a rule is clearly established is very fact-specific.
And it is one that the Court finds is not appropriately decided at the pleadings stage. Through
discovery, Ms. Rakes may develop facts consistent with her allegation that Defendants' assurances
to Amylyn that RJ would be held for 24 hours and that she could safely return home for the night
made her less safe than she was when they first encountered her by limiting her ability to protect
herself. The Court finds that Ms. Rakes has alleged enough to entitle her to that discovery.
The Court's finding comes with caution, however: the state-created danger exception to
DeShaney is a narrow one. Indeed, the Supreme Court in DeShaney stated that "[t]he affirmative

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duty to protect arises not from the State's knowledge of the individual's predicament or from its
expression of intent to help [her], but from the limitation which it has imposed on [her] freedom
to act on [her] own behalf." DeShaney, 489 U.S. at 200; see also Sandage v. Bd. of Com'rs of
Vanderburgh Cnty., 548 F.3d 595, 599 (7th Cir. 2008) ("When courts speak of the state's

'increasing' the danger of private violence, they mean the state did something that turned a potential
danger into an actual one, rather than that it just stood by and did nothing to prevent private
violence.") Further, the Seventh Circuit noted in finding that an officer was entitled to qualified
immunity when a pretrial detainee under his charge escaped and terrorized hospital employees the
following:
The "state-created danger exception" to DeShaney does not tell any public
employee what to do, or avoid, in any situation. It is a principle, not a rule. And it
is a principle of liability, not a doctrine (either a standard or a rule) concerning
primary conduct…. [W]e cannot treat the "state-created danger exception" as a rule
of primary conduct forbidding any acts by public officials that increase private
dangers.

Weiland v. Loomis, 938 F.3d 917, 919 (7th Cir. 2019). The Court cautions Ms. Rakes that if the
facts do not show that Defendants imposed a limitation on Amylyn's ability to protect herself from
RJ, the state-created danger exception to DeShaney will not apply. And further, even if the facts
bear this out, Ms. Rakes will need to show that Amylyn's constitutional right was clearly
established. However, the Court cannot make those calls based on the pleadings alone. See
Alcarado v. Litscher, 267 F.3d 648, 651-52 (7th Cir. 2001) ("Because an immunity defense usually
depends on the facts of the case, dismissal at the pleading stage is inappropriate: The plaintiff is
not required initially to plead factual allegations that anticipate and overcome a defense of qualified
immunity"); Jacobs, 215 F.3d at 775 ("[Dismissal on the pleadings] is a mismatch for immunity
and almost always a bad ground for dismissal…and when defendants do assert immunity it is
essential to consider facts in addition to those in the complaint") (Easterbrook, J., concurring). The
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Court DENIES Defendants’ Motion for Judgment on the Pleadings as it relates to whether
Defendants are entitled to qualified immunity.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Motion for Judgment on the
Pleadings. [46.]

Date: 10/18/2022
Hon. Jane Magnus-Stinson, Judge
‘United States District Court
Southern District of Indiana

Distribution via ECF only to all counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10169544. Public record. Not legal advice.