Jane Doe v. Village of Arlington Heights

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1461

JANE DOE,

Plaintiff-Appellant,

v.

VILLAGE OF ARLINGTON HEIGHTS, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11-cv-02764 — Edmond E. Chang, Judge.

____________________

ARGUED OCTOBER 1, 2014 — DECIDED APRIL 13, 2015

____________________

Before WOOD, Chief Judge, and RIPPLE and TINDER, Circuit

Judges.

TINDER, Circuit Judge. Jane Doe sued police officer Mark

Del Boccio and his employer, the Village of Arlington

Heights (“Arlington Heights” or the “Village”), alleging

claims arising out of Del Boccio’s response to a 911 call when

he encountered Doe and three males in an apparently intoxi-

cated state. Del Boccio left Doe with the males and she was

then sexually assaulted. The district court dismissed all

2 No. 14-1461

claims, denied leave to amend the complaint, and denied

Doe’s motion to alter or amend its judgment. We affirm.

I. The Complaint’s Allegations

Jane Doe, a minor female, was drinking alcohol with a

group of teenagers on the premises of an apartment complex

located in both Arlington Heights and Mount Prospect, Illi-

nois. A site manager assigned to the apartment complex ob-

served the group smoking and drinking near the complex’s

dumpster and called 911 to report them. Shortly after calling

911, the manager saw part of the group leave; Doe and three

males remained and drank straight from a vodka bottle. Doe

became intoxicated and the three males began moving her to

a secluded area. Two of them had to hold her up because she

was so intoxicated.

Arlington Heights Police Officer Mark Del Boccio arrived

on the scene. At the time, one of the males, Christopher

Balodimas, was holding Doe up from behind because she

could not stand up by herself. In addition, her head was

down and her eyes were closed, all because of her intoxica-

tion. Del Boccio rolled down his window and talked to the

three males. Then Del Boccio allowed them to leave the sce-

ne with Doe.

The site manager approached Del Boccio and Del Boccio

told him that the three males were taking Doe home. The

manager told Del Boccio that the group had been drinking

straight from a vodka bottle, and Del Boccio responded that

the males were taking Doe home. Del Boccio left the scene.

He failed to ask Doe or any of the males for identification.

Had Del Boccio done so and had he investigated, he would

have learned that Balodimas was on probation for armed

No. 14-1461 3

robbery and that Doe and the other males were minors. Del

Boccio reported to dispatch that he had checked the scene

and the subjects of the 911 call were gone on arrival. At some

point, although it is unclear exactly when, Del Boccio called

off Officer Patrick Spoerry, who had also been dispatched to

the scene.

After Del Boccio left the scene, the three males carried

Doe into a laundry room in one of the buildings of the

apartment complex. When the site manager observed this

happening, he again called 911. Mount Prospect police offic-

ers responded to the call. When the officers entered the

laundry room, they caught Balodimas sexually assaulting

Doe. Balodimas and the two other males were arrested.

II. The District Court Proceedings

Doe sued Del Boccio and Arlington Heights in Illinois

state court. Defendants removed the case to the federal dis-

trict court in the Northern District of Illinois. The 66–page

complaint alleged the following: state law claims of negli-

gence, willful and wanton conduct, and intentional infliction

of emotional distress against Del Boccio and the Village

(Counts I, II, and III); a claim under 42 U.S.C. § 1983, against

Del Boccio (Count IV); a § 1983 municipal liability claim

against the Village based on its background check and hiring

of Del Boccio (Count V); a § 1983 claim against the Village

based on Del Boccio’s conduct (Count VI); a § 1983 claim

against the Village based on the alleged negligent hiring of

Del Boccio (Count VII); and a state-law willful and wanton

misconduct in hiring claim against the Village (Count VIII).

Defendants moved to dismiss the complaint for failure to

state a claim, contending among other arguments that Del

4 No. 14-1461

Boccio was entitled to qualified immunity, there was no con-

stitutional duty to protect Doe, and state law provided the

defendants immunity. The district court granted the motion

to dismiss.

Doe moved to alter or amend the judgment, seeking to

vacate the dismissal of her federal claims and asserting for

the first time that she had a class-of-one equal protection

claim. According to Doe, she sought to amend her complaint

to allege that Del Boccio was a racist who wanted harm to

come to her because she was an intoxicated white girl social-

izing with African-American youths. Doe did not attach a

proposed amended complaint to her Federal Rule of Civil

Procedure 59(e) motion, but she did assert facts that she ar-

gued supported a class-of one claim. In an effort to portray

Del Bocchio as a racist in her appellate brief, Doe refers to a

tragic incident in 2004 when Del Boccio, while operating an

unmarked police car, ran over and killed an eight-year-old

boy and seriously injured an eleven-year-old girl and then

lied to cover it up. (The children were African American.)

She asked the court to vacate its dismissal of her supple-

mental state-law claims, relinquish jurisdiction over them,

and remand them to state court, arguing for the first time

that the state claims raised novel and complex issues of state

law. The court treated Doe’s motion in part as a motion for

leave to amend her complaint and denied leave to amend on

the basis of futility. The court also denied the motion to alter

or amend its judgment.

No. 14-1461 5

III. Discussion

Doe appeals the district court’s judgment of dismissal

and its denial of her motion to alter the judgment. 1 She ar-

gues that the court erred in dismissing her complaint for

failure to state a claim and denying her leave to amend to

assert a class-of-one equal protection claim. Doe also argues

that the court abused its discretion in exercising jurisdiction

over the supplemental state law claims and, alternatively,

that it erred in predicting how the Illinois Supreme Court

would decide those claims. We review the grant of a motion

to dismiss for failure to state a claim de novo. Camasta v. Jos.

A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). We

review the denial of a motion to alter or amend the judg-

ment for abuse of discretion. Cincinnati Life Ins. Co. v. Beyrer,

722 F.3d 939, 953 (7th Cir. 2013). A party “establishes an

abuse of discretion only when no reasonable person could

agree with” the district court’s decision. Id. (quoting Jones v.

Lincoln Elec. Co., 188 F.3d 709, 735 (7th Cir. 1999)).

“To survive a motion to dismiss under Rule 12(b)(6), the

complaint must provide enough factual information to ‘state

a claim to relief that is plausible on its face’ and ‘raise a right

to relief above the speculative level.’” Camasta, 761 F.3d at

736 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007)). “A claim has facial plausibility when the plaintiff

1 Doe fails to mention the two federal claims against Arlington Heights

premised on its background check and hiring of Del Boccio (Counts V

and VII); she therefore waived any challenge to the district court’s dis-

missal of those claims. See, e.g., McCoy v. Maytag Corp., 495 F.3d 515, 525

(7th Cir. 2007).

6 No. 14-1461

pleads factual content that allows the court to draw the rea-

sonable inference that the defendant is liable for the miscon-

duct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When

reviewing a dismissal for failure to state a claim, we accept

all well-pleaded facts as true and view them in a light most

favorable to the plaintiff; however, mere conclusory state-

ments are insufficient to survive a motion to dismiss.

Camasta, 761 F.3d at 736. “Where a complaint pleads facts

that are ‘merely consistent with’ a defendant’s liability, it

‘stops short of the line between possibility and plausibility of

entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twonbly,

550 U.S. at 557).

The district court decided that Del Boccio was entitled to

qualified immunity. Qualified immunity shields a govern-

ment official from liability for damages when the official’s

“conduct does not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would

have known.’” Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th

Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)); see also Mordi v. Zeigler, 770 F.3d 1161, 1163–64 (7th

Cir. 2014) (discussing the qualified immunity doctrine).

Courts use a two-part test to determine whether officers are

entitled to qualified immunity: “(1) whether the facts,

viewed in a light most favorable to the injured party,

demonstrate that the conduct of the officers violated a con-

stitutional right, and (2) whether that right was clearly estab-

lished at the time the conduct occurred.” Hardaway, 734 F.3d

at 743 (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). A

court has discretion to consider either part of the test first.

Pearson, 555 U.S. at 236.

No. 14-1461 7

Doe alleges that Del Boccio violated her constitutional

rights by (1) failing to adequately investigate the 911 com-

plaint, and (2) acting to prevent other officers from arriving

on the scene, specifically by calling off Officer Spoerry who

also had been dispatched, and falsely reporting to dispatch

that the subjects of the 911 call were gone on arrival. The de-

fendants argue that no clearly established law put Del Boccio

on notice that any of his alleged conduct violated Doe’s con-

stitutional rights.

In deciding whether a right is “clearly established,”

courts ask “whether it would be clear to a reasonable officer

that his conduct was unlawful in the situation he confront-

ed.” Saucier v. Katz, 533 U.S. 194, 202 (2001). A plaintiff bears

the burden of establishing that the constitutional right was

clearly established. Volkman v. Ryker, 736 F.3d 1084, 1090 (7th

Cir. 2013). Although the plaintiff need not point to a case di-

rectly on point, “existing precedent must have placed the

statutory or constitutional question beyond debate.” Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). In other words, “the

plaintiff must demonstrate either that a court has upheld the

purported right in a case factually similar to the one under

review, or that the alleged misconduct constituted an obvi-

ous violation of a constitutional right.” Lunini v. Grayeb, 395

F.3d 761, 769 (7th Cir. 2005). Doe has not identified any case

factually similar to this one that would have provided a rea-

sonable officer with notice that he had a constitutional duty

to protect Doe in the situation that Del Boccio encountered.

Nor has she argued that the alleged constitutional violation

was obvious. Instead, she argues that the district court mis-

understood her theory of liability and misread the com-

plaint. She does not, however, explain how the court erred in

8 No. 14-1461

these ways, and no error is apparent to us on reviewing the

complaint.

In addition, Doe argues that the district court erred by re-

solving the qualified immunity defense at the pleading

stage. Yet the Supreme Court “repeatedly [has] stressed the

importance of resolving immunity questions at the earliest

possible stage in litigation.” Saucier, 533 U.S. at 201 (quoting

Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Even though dis-

missal under Rule 12(b)(6) on qualified immunity grounds

may be inappropriate in many cases, see Alvarado v. Litscher,

267 F.3d 648, 651 (7th Cir. 2001) (noting “that a complaint is

generally not dismissed under Rule 12(b)(6) on qualified

immunity grounds . . . . [b]ecause an immunity defense usu-

ally depends on the facts of the case”), in some cases it is

proper; indeed, we have reversed the denial of qualified

immunity at the pleading stage where appropriate, see, e.g.,

Chassensky v. Walker, 740 F.3d 1088, 1095–97 (7th Cir. 2014)

(holding that the plaintiff failed to establish a clearly estab-

lished right and the district court erred in denying the de-

fendants’ motion to dismiss on qualified immunity

grounds); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007)

(reversing denial of motion to dismiss plaintiff’s access-to-

the-courts claim because officials were entitled to qualified

immunity).

The district court correctly determined that it was not

clearly established that calling off another police officer or

falsely reporting to dispatch that the scene was clear violates

a constitutional right of a victim of private violence. Doe has

not shown that it was clearly established that any other con-

duct or inaction of Del Boccio violated a constitutional right.

Even assuming that the complaint alleges that Del Boccio

No. 14-1461 9

violated Doe’s constitutional right, the law was not clearly

established such that he should have known he was violat-

ing her rights. Therefore, Del Boccio is entitled to qualified

immunity and Count IV against him was properly dis-

missed. And Count VI against the Village, which was prem-

ised only on Del Boccio’s conduct and not on an alleged mu-

nicipal policy or custom, was properly dismissed as well. See

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (holding

that a municipality cannot be held liable under § 1983 on a

respondeat superior theory but can be held liable only where a

municipality policy or custom causes the injury).

The district court provided an alternative ground for its

dismissal of the federal claims: the complaint did not allege a

constitutional violation. DeShaney v. Winnebago County De-

partment of Social Services holds that, as a rule, “a State’s fail-

ure to protect an individual against private violence simply

does not constitute a violation of the Due Process Clause.”

489 U.S. 189, 197 (1989). The purpose of the Due Process

Clause “was to protect the people from the State, not to en-

sure that the State protected them from each other.” Id. at

196. Thus, due process “generally confer[s] no affirmative

right to governmental aid, even where such aid may be nec-

essary to secure life, liberty, or property interests of which

the government itself may not deprive the individual.” Id.

Doe was assaulted by private, third-party actors. This gen-

eral rule seemingly defeats her due process claims.

However, there are two exceptions to DeShaney’s general

rule (1) when the state has a “‘special relationship’” with the

person such as “when it has custody over a person, it must

protect him because no alternate avenues of aid exist,” and

(2) under the state-created danger exception, “‘liability exists

10 No. 14-1461

when the state affirmatively places a particular individual in

a position of danger the individual would not otherwise

have faced.’” Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d

824, 827 (7th Cir. 2009) (quoting Monfils v. Taylor, 165 F.3d

511, 516 (7th Cir. 1998)); see also Slade v. Bd. of Sch. Dirs. of

Milwaukee, 702 F.3d 1027, 1030 (7th Cir. 2012) (discussing

two exceptions as the “special relationship” and “trap” cases

and stating that “[a]ll acts are affirmative, including stand-

ing still when one could save a person by warning him of

some impending danger”). On appeal, Doe argues only that

the state-created danger exception applies.

The state-created danger exception is a narrow one. Her-

nandez v. City of Goshen, Ind., 324 F.3d 535, 538 (7th Cir. 2003).

The exception applies where the state creates or increases a

danger to an individual. See Sandage v. Bd. of Comm’rs, 548

F.3d 595, 598–99 (7th Cir. 2008) (stating “had it not been for

the state’s inaction in DeShaney, there would have been no

injury”); Paine v. Cason , 678 F.3d 500, 510 (7th Cir. 2012)

(“Several decisions in this and other circuits hold that people

propelled into danger by public employees have a good

claim under the Constitution.”). To “‘create or increase’ must

not be interpreted so broadly as to erase the essential distinc-

tion between endangering and failing to protect” and thus

circumvent DeShaney’s general rule. Sandage, 548 F.3d at 599

(citation and emphasis omitted). “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 noth-

ing to prevent private violence.” Id. at 600.

The “cases in which we have either found or suggested

that liability attaches under the ‘state-created danger’ excep-

No. 14-1461 11

tion are rare and often egregious.” Estate of Allen v. City of

Rockford, 349 F.3d 1015, 1022 (7th Cir. 2003). In White v. Roch-

ford, 592 F.2d 381, 382 (7th Cir. 1979), for example, the police

arrested a driver for drag racing and left the children pas-

sengers stranded alone in the car on a busy highway on a

cold night. In Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir.

1993), we concluded that police officers could be held liable

under the state-created danger exception where they arrest-

ed a sober driver and left behind an obviously drunk pas-

senger with the keys to the vehicle who later caused a colli-

sion, injuring the plaintiffs. In Monfils, a police officer took

responsibility for preventing release of a tape recording of

an informant’s anonymous tip but then went deer hunting

instead of taking standard steps to prevent the tape’s release

despite knowing that the release would place the informant

in heightened danger, and the informant was killed. Monfils,

165 F.3d at 520. And recently in Paine, the police arrested a

woman in a safe place and released her in a hazardous one

while she was unable to protect herself. 678 F.3d at 511. In

each of these cases, the police encountered a potential dan-

ger and turned it into an actual one. And in each of these

cases, the plaintiff was safe, or at least considerably safer,

before the police acted than he or she was thereafter.

In contrast, for example, in Windle v. City of Marion, 321

F.3d 658, 661–62 (7th Cir. 2003), we held that a police of-

ficer’s failure to intervene to protect a student despite

knowledge that she was being sexually molested by a mid-

dle school teacher did not increase the danger. For at least

two months, police officers intercepted telephone conversa-

tions between the student and teacher and learned that the

student was being molested by the teacher. Id. at 660. The

officers had enough information to conduct an investigation

12 No. 14-1461

and intervene on the student’s behalf, but they did nothing.

Id. We held that the officers’ inaction did not create a danger,

nor did they do anything to make the danger to the student

worse. Id. at 662. We reasoned that “we ha[d] no way of

knowing what would have occurred” had the police actually

done something, and that “the police might have failed at

protecting [the plaintiff].” Id. Had the police never been in-

volved, the danger to the plaintiff would have been the same

or worse. Id. We noted that the plaintiff waived the argu-

ment that, and we did not address whether, “a constitutional

violation would exist where one member of a law enforce-

ment unit discouraged or prevented another from protecting

a victim.” Id. at 662 n.3.

This case is not sufficiently similar to those cases in

which we have applied the state-created danger exception; it

is more like Windle and cases in which the exception was in-

applicable. Del Boccio did not create the danger to Doe, nor

did he do anything to make the danger to her worse. When

he left Doe with the three young males, he left her just as he

found her, “plac[ing] [her] in no worse position than that in

which [s]he would have been had [he] not acted at all.”

DeShaney, 489 U.S. at 201. Not even the allegations that Del

Boccio called off Officer Spoerry (or falsely reported to dis-

patch that the subjects were gone) created or increased the

danger to Doe. Had Del Boccio had not called off Officer

Spoerry or falsely reported to dispatch, we have no way of

knowing what would have happened. Officer Spoerry might

have failed at protecting Doe. See Windle, 321 F.3d at 662.

This contrasts with Ross v. United States, 910 F.2d 1422,

1424–25 (7th Cir. 1990), where competent rescuers were on

the scene with rescue equipment and ready to begin their

No. 14-1461 13

efforts to rescue a drowning boy when the police arrived

and ordered them to cease their efforts because county poli-

cy prohibited civilian rescue attempts. A sheriff’s deputy

advised the rescuers that he would arrest them upon their

entry into the water and even placed his boat so as to pre-

vent their dive. Id. at 1425. About thirty minutes after the

boy had fallen into the water, the authorized divers arrived

and pulled him out of the water. Id. He died the next day. Id.

We held that plaintiff sufficiently alleged a constitutional in-

jury. Id. at 1433–34. Significantly, in Ross the chances of a

successful rescue were high, and there was a direct connec-

tion between the deputy’s actions and the boy’s drowning.

Here, we can only speculate whether Del Boccio made Doe

worse off, whether by calling off Officer Spoerry or falsely

reporting to dispatch.

This is not a case in which Doe was safe, or even consid-

erably safer, before Del Boccio acted. His alleged conduct

did not turn a potential danger into an actual one; Doe was

in actual danger already. Therefore, Del Boccio had no con-

stitutional duty to protect her. But even if calling off Officer

Spoerry violated Doe’s constitutional rights, it was not clear-

ly established and Del Boccio nonetheless would be entitled

to qualified immunity.

Doe suggests that discovery would have allowed her to

uncover facts to support allegations that the state-created

danger exception is applicable. She relies on Adams v. City of

Indianapolis, Ind., 742 F.3d 720 (7th Cir.), cert. denied, 135 S. Ct.

286 (2014), where we said that “the court must review the

complaint to determine whether it contains ‘enough fact to

raise a reasonable expectation that discovery will reveal evi-

dence’ to support liability for the wrongdoing alleged.” Id. at

14 No. 14-1461

729 (quoting Twombly, 550 U.S. at 556). Doe chooses to em-

phasize what she thinks discovery might reveal, for example,

that Del Boccio made statements to encourage or embolden

Balodimas to rape her. Nonetheless, a complaint must plead

“enough facts to state a claim to relief that is plausible on its

face,” Twombly, 550 U.S. at 570, “raise a right to relief above

the speculative level,” id., at 555, and “allow[] the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged,” Iqbal, 556 U.S. at 678. Doe’s com-

plaint fails to do so. It contains no allegation, for example, of

any statement of encouragement by Del Boccio. Cf. Dwares v.

City of New York, 985 F.2d 94, 99 (2d Cir. 1993) (holding that

complaint alleging officers conspired with skinheads to al-

low them to beat up others with impunity sufficiently stated

a due process claim). Similarly, in asserting the facts in her

Rule 59(e) motion that purportedly supported a class-of-one

claim, Doe failed to allege that Del Boccio said any words of

encouragement to the youths or took any other affirmative

action to suggest that he was giving them “a pass” or em-

boldening them to “have their way” with Doe. Furthermore,

the claim that Doe says discovery might support—that Del

Boccio encouraged the males to assault her—is not “plausi-

ble on its face.”

Leave to amend a complaint should be freely given

“when justice so requires.” Fed. R. Civ. P. 15(a)(2). However,

leave may be denied where the amendment would be futile.

McCoy v. Iberdrola Renewables, Inc., 760 F.3d 674, 684 (7th Cir.

2014). We review the denial of leave to amend for an abuse

of discretion, id., and “will reverse ‘only if no reasonable

person could agree with that decision,’” Adams, 742 F.3d at

734 (quoting Carroll v. Stryker Corp., 658 F.3d 675, 684 (7th

Cir. 2011) (citation omitted)).

No. 14-1461 15

The district court did not abuse its discretion in denying

Doe leave to amend her complaint to allege a class-of-one

equal protection claim. We have held that, when a plaintiff

“did not attach its proposed amended complaint to its mo-

tion for reconsideration or take the necessary steps to make

its proposed amendment a part of the record on appeal, we

cannot meaningfully assess whether its proposed amend-

ment would have cured the deficiencies in the original

pleading.” Crestview Vill. Apartments v. U.S. Dep’t of Hous. &

Urban Dev., 383 F.3d 552, 558 (7th Cir. 2004). We have also

said that “the failure to tender an amended complaint with a

motion to alter judgment may indicate a lack of diligence or

good faith.” Harris v. City of Auburn, 27 F.3d 1284, 1287 (7th

Cir. 1994). Because Doe failed to submit a proposed amend-

ed complaint with her Rule 59(e) motion, we are unable to

meaningfully evaluate whether the proposed amendment

would have cured the deficiencies in the original complaint.

Furthermore, Doe’s allegations do not suggest any plau-

sible basis for such a claim. State actions are entitled to a

presumption of constitutionality; it is the plaintiff’s burden

to show that it is plausible that the state actions were “in fact

discriminatory.” Del Marcelle v. Brown Cnty. Corp., 680 F.3d

887, 913 (7th Cir. 2012) (Wood, J., dissenting). “[T]he com-

plaint must set forth a plausible account of intentional dis-

crimination, which is required for any violation of the Equal

Protection Clause.” Id. Yet Doe alleges nothing to suggest

that Del Boccio intentionally treated her differently than he

treated others similarly situated, see, e.g., Fares Pawn, LLC v.

Ind. Dep’t of Fin. Insts., 755 F.3d 839, 845 (7th Cir. 2014); Luni-

ni v. Grayeb 395 F.3d 761, 769–70 (7th Cir. 2005) (“We have

previously held that a class of one claim must fail where the

plaintiff has failed to identify someone who is similarly situ-

16 No. 14-1461

ated but intentionally treated differently than he.” (internal

quotation marks omitted)), so an amendment would be fu-

tile. Thus, with respect to the federal claims based on Del

Boccio’s conduct, the district court’s denial of Doe’s motion

to alter the judgment, which the court construed as a motion

for leave to amend, was not an abuse of discretion. See

McCoy, 760 F.3d at 684. Moreover, the suggestion that Del

Boccio was a racist who wanted Doe raped because she was

an intoxicated white female socializing with three African-

Americans is not plausible. Del Boccio’s conduct in the tragic

motor vehicle accident involving two African-American

children and his cover-up of it bear no resemblance to his

alleged actions in this case. Any suggestion that there is a

link between the two events, and that the link is rooted in

Del Boccio’s racism, is based on rank speculation.

A district court has discretion to decline to exercise sup-

plemental jurisdiction over state law claims arising from the

same case or controversy as the federal claims where “the

claim raises a novel or complex issue of State law” or “the

district court has dismissed all claims over which it has orig-

inal jurisdiction.” 28 U.S.C. 1367(c). Bond v. Atkinson, 728

F.3d 690 (7th Cir. 2013), relied on by Doe, does not state the

contrary; it does not say that a district court “must” relin-

quish jurisdiction when all federal claims are dismissed be-

fore trial. Section 1367(c) does not say that either. 28 U.S.C. §

1367(c) (“The district courts may decline to exercise supple-

mental jurisdiction over a claim under subsection ….”); see

also Bailey v. City of Chicago, No. 13-3670, 2015 WL 968832, at

*6 (7th Cir. Mar. 6, 2015) (“[Section] 1367(c)(1) states that a

district court may decline to exercise supplemental jurisdic-

tion where a state law claim raises a novel or complex issue

of state law; it does not require a district court to do so.”).

No. 14-1461 17

We review the decision to exercise supplemental jurisdiction

under § 1367(c) for an abuse of discretion. Hansen v. Bd. of

Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 606 (7th Cir.

2008).

The complaint asserted four state law claims. Three are

based on Del Boccio’s investigation and response to the 911

call and are asserted against both defendants: Count I alleges

negligence, Count II alleges willful and wanton conduct, and

Count III alleges intentional infliction of emotional distress.

The fourth state law claim, Count VIII, is against Arlington

Heights only and alleges willful and wanton conduct in fail-

ing to adequately investigate Del Boccio’s background and

in hiring him. “‘Wilful and wanton conduct, as contemplat-

ed in [the Tort Immunity Act], consists of more than mere

inadvertence, incompetence, or unskillfulness.’” McDowell v.

Vill. of Lansing, 763 F.3d 762, 768 (7th Cir. 2014) (quoting

Geimer v. Chi. Park Dist., 650 N.E.2d 585, 592 (Ill. App. 1995)

and holding officer and governmental entity enjoyed im-

munity from state-law claim where officer’s actions were not

willful or wanton).

The district court did not abuse its discretion in retaining

jurisdiction over these claims because their resolution was

clear: the claims are barred by the Illinois Tort Immunity

Act, 745 ILCS 10/2-101–10-101. See id. §§ 2-103 (granting im-

munity to governmental entities from liability for injury

caused by the failure to enforce any law), 2-109 (granting a

governmental entity immunity from liability “for injury re-

sulting from an act or omission of its employee where the

employee is not liable”), 2-202 (“A public employee is not

liable for his act or omission in the execution or enforcement

of any law unless such act or omission constitutes willful

18 No. 14-1461

and wanton conduct.”), 2-204 (providing public employees

immunity from liability for injury caused “by the act or

omission of another person”), 2-205 (providing public em-

ployees immunity from liability for injury caused by the

failure to enforce any law), 4-102 (providing immunity to

governmental entities and employees from liability caused

by the failure to provide police protection, provide adequate

police protection, prevent the commission of crimes, detect

or solve crimes, or identify and apprehend criminals), and 4-

107 (granting governmental entities and employees immuni-

ty for injury “caused by the failure to make an arrest or by

releasing a person in custody”); McDowell, 763 F.3d at 768.

There is no willful and wanton exception for provisions of

the Act that do not expressly contain such an exception. See

Jane Doe-3 v. McClean Cty. Unit Dist. No. 5 Bd. of Dirs., 973

N.E.2d 880, 893 (Ill. 2012) (reiterating that “where a provi-

sion of the Tort Immunity Act contains no exception for will-

ful and wanton conduct, we will not read one in”); Ries v.

City of Chicago, 950 N.E.2d 631, 644 (Ill. 2011) (holding that

the willful and wanton exception in § 2-202 does not apply a

general willful and wanton exception to the other sections of

the Act). Other than § 2-202, none of these sections of the Act

contain an exception for willful or wanton conduct.

Doe suggests that the Illinois Supreme Court might de-

termine that Del Boccio owed her a duty of care under the

“community caretaking” or “emergency aid” doctrines. Un-

like Doe, we do not read in Jane Doe-3 any inkling that the

Illinois Supreme Court would conclude that where a police

officer encounters “an intoxicated, falling down drunk fif-

teen year old girl in the company of three intoxicated teen-

age males in a dark and isolated parking lot,” the state’s in-

terest in protecting children would vitiate the immunity the

No. 14-1461 19

officer otherwise would have under § 4-102 of the Tort Im-

munity Act. To be sure, in such a situation a police officer

would have a moral duty to take action, and may have state

statutory duties to act as well. But Doe points to nothing to

suggest that the existence of the duty itself is enough to ne-

gate tort immunity. Doe-3 does not even address § 4-102

immunity.

Doe cites DeSmet ex rel Estate of Hays v. County of Rock Is-

land, 848 N.E.2d 1030, 1045 (Ill. 2006), which does address §

4-102, and notes that “there may be additional exceptions to

the application of [§] 4-102 where a legislative enactment

identifies a specially protected class of individuals to whom

statutorily mandated duties are owed.” Id. at 1045. However,

Doe fails to point to any such legislative enactment that ap-

plies to someone in the situation in which Del Boccio found

her. Furthermore, even if Doe had mounted a successful

challenge to § 4-102 immunity based on the public policy of

protecting children, that would not be enough because she

wholly fails to challenge the district court’s decision that

numerous other sections of the Tort Immunity Act also pro-

vide immunity to the defendants in this case.

Doe argues that the district court erred in holding that

her negligent-hiring claim against the Village was barred by

§ 4-102 of the Tort Immunity Act. She cites Mueller by Math v.

Community Consolidated School Dist. 54, 678 N.E.2d 660 (Ill.

App. Ct. 1997), and Green v. Carlinville Community Unit

School Dist. No. 1, 887 N.E.2d 451 (Ill. App. Ct. 2008), for

support. In Mueller, a student and her mother sued a school

district and a wrestling coach for injuries arising from the

coach’s sexual assault of the student. 678 N.E.2d at 662. The

defendants argued that the school district had tort immunity

20 No. 14-1461

under various sections of the Tort Immunity Act—§§ 2-103,

2-104, 2-109, and 2-201. 678 N.E.2d at 663. The court con-

cluded that the first three sections were inapplicable and

then turned its attention to § 2-201, which immunizes gov-

ernmental entities from liability for injuries caused by the

exercise of discretionary authority. Id. at 666. A state crimi-

nal-background-check statute required that the school dis-

trict conduct an investigation of job applicants. Id. The court

concluded that the statute’s mandatory language required

the school district to begin such an investigation before it

was vested with the discretionary authority to hire. Id. Ac-

cording to the court, the school district’s “failure to comply

with the statutorily imposed condition precedent vitiates

any immunity it might otherwise have enjoyed under Sec-

tion 2–201 of the Tort Immunity Act for [its hiring decision].”

Id. Green agreed with and followed Mueller. 887 N.E.2d at

458.

Doe’s argument appears confused. First, her negligent-

hiring claim was a federal claim, not a state law claim for

which the district court found the Village entitled to immun-

ity. Second, neither Mueller nor Green addressed § 4-102 im-

munity. And neither case holds that generally a governmen-

tal entity lacks immunity under the Act from liability for

negligent hiring. Instead, the courts concluded that the

school districts’ failure to comply with a mandatory state

statute invalidated whatever immunity they might have had

under § 2-201 of the Act. Doe has not argued that a similar

statute applies in the context of police hiring. Moreover, the

Illinois state courts have determined that “[t]he decision to

hire or not to hire a police officer is an inherently discretion-

ary act and, thus, is subject to the immunities contained in

the Immunity Act.” Johnson v. Mers, 664 N.E.2d 668, 675 (Ill.

No. 14-1461 21

App. Ct. 1996). The district court did not abuse its discretion

in exercising jurisdiction over the supplemental state law

claims and did not err in dismissing them.

IV. Conclusion

The district court’s judgment is AFFIRMED.