Dykema, Michael v. Skoumal, Michael

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2787

MATTHEW DYKEMA,

Plaintiff-Appellee,

v.

MICHAEL SKOUMAL,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 98-C-5309--James F. Holderman, Judge.

ARGUED April 18, 2001--DECIDED August 17, 2001

Before HARLINGTON WOOD, JR., DIANE P. WOOD,

and WILLIAMS, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge. This

story grows out of an unsuccessful drug-

related transaction in which the

plaintiff, Matthew Dykema, a paid

informant working with the Metropolitan

Area Narcotics Squad ("MANS"), an

interjurisdictional law enforcement group

in the Joliet, Illinois area, was shot in

the head and seriously wounded by Stephen

Stepney in October 1997. Stepney claimed

unsuccessfully at his criminal trial, in

which he was convicted of the shooting,

that he shot Dykema in self defense.

Stepney claimed that he did not even know

Dykema, but recognized him only as

someone he had previously seen in the

area where he himself was looking for

drugs.

Subsequently, Dykema brought this action

for damages pursuant to 42 U.S.C. sec.

1983 against Michael Skoumal, a former

Joliet police officer working with MANS,

and against other MANS personnel, as well

as the City of Joliet, and MANS. After

dismissals and settlements and an adverse

summary judgment ruling by the district

court, Skoumal is the only defendant

remaining in this appeal.

I. Background

The background facts are taken largely

from what Dykema has alleged or argued,

or facts not otherwise contested

(although in some instances disputed by

Skoumal). The material facts upon which

this case turns are as accepted by

Skoumal or as found by the district court

and, therefore, for this appeal not

contested. Dykema, a resident of Mokena,

a town southwest of Chicago near Joliet,

Illinois, had a suspended driver’s

license and made inquiries to the police

about reinstatement of the license.

Dykema met with officers at the Mokena

police station and discussed how he could

assist the police in drug investigations.

Dykema agreed to help, induced by the

officers’ promise to facilitate the

return of his driver’s license. He went

to work for MANS using an alias assigned

by the police. Dykema signed a

confidential service document in which he

admitted he was working as an informant

under his own free will and not as a

result of intimidation or threats.

Skoumal, a Joliet police officer working

for MANS, functioned as Dykema’s control

officer. Craig Meece, a deputy sheriff,

was the undercover officer with whom

Dykema most often worked in making drug

buys for MANS. Dykema assisted in a

number of undercover investigations and

prosecutions of drug-related offenses

from the fall of 1996 through the spring

of 1997.

Dykema argues that in this hazardous

drug business he received no training

from MANS on how to serve as a

confidential informant, how to set up

drug deals, or how to in-teract with drug

dealers, etc. However, in his deposition

Dykema elaborated on the training issues

and turned the tables on the police. He

stated that because of his long

experience with drug transactions, he

needed no training from the police. He

stated that "[the police] are the ones

that need [training]." In mid-1997,

Dykema voluntarily entered a drug and

alcohol rehabilitation program. After his

discharge he told Skoumal and Meece that

he no longer wanted to assist them.

Although the police deny this, Dykema

stated that after repeated entreaties by

police, assisted by cash payments and

beer, he agreed to resume his undercover

work.

With that background, we approach the

particular circumstances giving rise to

the critical facts in question. A

suspected drug dealer named Jonathan

Dantzler was a MANS target. Dykema and

Meece, who posed as Dykema’s brother on

several occasions in September 1997,

purchased crack cocaine from Dantzler,

although no arrest was made. In order to

build a better case against Dantzler,

Skoumal and Meece planned a "reverse

buy." Instead of buying drugs from

Dantzler, Dykema and Meece would attempt

to sell drugs to him, then Dantzler would

be arrested. Drug transactions generally

are considered dangerous, but it is

claimed that a reverse buy poses even

greater dangers. The reverse buy was

first attempted on October 21, 1996, with

Dykema wearing a wire, but it fell

through when Dantzler, now buying instead

of selling, wanted to first inspect the

drugs before parting with his money.

Dantzler drove out of the parking lot and

MANS agents left to follow him. Stephen

Stepney, Dantzler’s cousin, was

reportedly acting as protection for

Dantzler. This occurred a week before

Stepney shot Dykema. On October 28, Meece

attempted to complete the reverse buy

without Dykema, but this failed because

Dantzler refused to deal without Dykema

being present.

On the afternoon of October 29, the day

the MANS agents had planned to again

attempt the reverse buy, Dykema was

arrested after an incident in a tavern.

He was taken to the Lockport, Illinois

police station and charged. Skoumal,

Meece, and another agent, none of them in

uniform, arrived at the station, and

Dykema was released into their custody.

The four walked down the main street of

Lockport, and Meece and Dykema then went

on to the bar where Dykema had earlier

been arrested in order to pick up

Dykema’s truck. Meece and Dykema then

left the bar and drove a few blocks to

Dykema’s apartment. There Dykema had an

argument with his landlord, who proceeded

to evict him and his belongings. Skoumal

and the other agent had gone to wait for

Dykema at the parking lot of a laundromat

located across the street from Dykema’s

apartment. Skoumal and the other officer

had been joined by two other agents, with

all four observing the argument taking

place at Dykema’s apartment. Dykema and

Meece then joined Skoumal and the other

three agents in the parking lot across

the street. At no time during these

events were any of the agents in uniform

or in marked cars.

Meece did not want to work with Dykema

that day be-cause Dykema had been

drinking, so he decided the reverse buy

attempt would not take place. A little

later Dykema was driving to a restaurant

when Skoumal and another agent waived him

to the side of the road. Skoumal gave

Dykema $20.00 to buy cocaine from

Dantzler. He told Dykema to "smooth

things over" with Dantzler and to tell

Dantzler they still wanted to do business

with him but at some other time. Dykema

went on to the restaurant and began

trying to contact Dantzler, but with no

success. He first drove by Dantzler’s

home, then to where he knew a good friend

of Dantzler’s worked, but had no success

in locating Dantzler. Dykema tried

unsuccessfully to "beep" Dantzler, and

then drove back to Dantzler’s house at

around 6:00 p.m. Suddenly, Dykema was

shot in the head. Later, he could not

remember any of the details. However, at

his deposition, Dykema said that he later

realized he had seen Stepney (the

shooter) sitting in a car several cars

away from Dykema at the time of the first

unsuccessful reverse buy. As to whether

Dykema had seen Stepney at any other

time, his answer was, "possibly could

have." Dykema said he had not expected to

see Stepney at Dantzler’s house. At his

criminal trial, Stepney testified he did

not know Dykema and recognized him only

as someone he had previously seen in the

area trying to buy drugs. This recital of

the facts gives us a sufficient basis to

consider the legal issues.

II. Analysis

We must first address Dykema’s claim

that this court has no jurisdiction

before analyzing the merits of

appellant’s arguments. Dykema maintains

that this is an interlocutory appeal

since Skoumal’s claim of qualified

immunity was denied by the district court

on a motion for summary judgment because

the court found that there were disputed

issues of material fact. See Johnson v.

Jones, 515 U.S. 304, 313-18 (1995)

(holding that a defendant, entitled to

invoke a qualified immunity defense, may

not appeal a summary judgment order when

that order determines there is a

"genuine" issue of material fact for

trial). However, Skoumal has conceded

Dykema’s version of the facts and

challenges only whether those conceded

facts establish a violation of clearly

established law. See Coady v. Steil, 187

F.3d 727, 730 (7th Cir. 1999) (citing

Behrens v. Pelletier, 516 U.S. 299, 313

(1996)).

In reviewing the propriety of a district

court summary judgment ruling under

Fed.R.Civ.P. 56, we review de novo and

adhere to the same standards as the

district court set forth in its

memorandum opinion and order under

Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1996). See American Postal Workers

Union v. Runyon, 185 F.3d 832, 835 (7th

Cir. 1999). In Anderson, the Court held

that at the summary judgment stage, the

district court’s function is not to weigh

the evidence or determine the truth of

the matter. 477 U.S. at 249. "The

evidence of the non-movant is to be

believed, and all justifiable inferences

are to be drawn in his favor." Id. at

255. However, even though there may be

material facts in dispute, we review the

order of summary judgment by accepting

the district court’s determination that a

genuine issue of material fact exists.

Coady, 187 F.3d at 730-31. Skoumal does

not quarrel with that rule, and for the

purpose of this appeal concedes the

critical factual dispute which caused the

district court to deny his motion for

summary judgment. It is necessary,

therefore, to determine both the question

of this court’s jurisdiction and what

effect as a matter of law the material

facts as found by the district court may

have on the summary judgment ruling.

Skoumal raises two issues aside from the

jurisdictional question raised by Dykema.

First, Skoumal claims that his conduct

did not violate Dykema’s substantive due

process rights, notwithstanding the fact

that the district court held that

Skoumal’s affirmative action placed

Dykema in a position of danger that he

otherwise would not have faced, and which

resulted in Dykema being shot by Stepney.

Secondly, Skoumal maintains that he is

entitled to qualified immunity even

though the district court found that at

the time of the shooting Dykema had a due

process right not to be placed in a

position of increased danger created by

Skoumal. Our answer to these two issues

disposes of the jurisdictional question

as well.

A number of cases have been cited by the

parties, including the cases relied on by

the district court. We have considered

them all, but not all are needed to

resolve the issues. The district court

determined that Dykema raised a genuine

issue of material fact in his sec. 1983

claim on the basis that his

constitutional rights were violated under

the "state-created danger exception"

which was developed in DeShaney v.

Winnebago County Department of

SocialServices, 489 U.S. 189 (1989).

DeShaney held that the state had no

constitutional duty to protect a child

against his father’s violent abuse. Id.

at 202. In DeShaney, there was strong

evidence of child abuse in the home, and

on one occasion the child required

emergency hospital care. Id. at 192. The

county social services agency looked into

the charge and the juvenile court as a

result placed the child in the temporary

custody of the hospital. A child

protection team was assembled, ad hoc,

which recommended certain measures to

protect the child. The father voluntarily

agreed to comply with the team’s

recommendations and the court returned

the child to the father’s custody. The

caseworker made monthly visits for the

next six months, each time noting

suspicious injuries on the child and

recording that none of the protective

measures had been adopted. Id. at 192-93.

Calls from emergency room physicians also

continued, the last one made in November

1983. Id. The caseworker made two more

visits but did nothing except to note

that on both occasions she was told the

boy was too ill to be seen. No other

action was taken. Id. at 193. In March

1984, the father beat the four-year-old

boy so severely that he suffered

permanent brain damage and was expected

to spend the rest of his life

institutionalized. The father was

subsequently convicted of child abuse,

but that was too late to benefit the boy.

Id.

DeShaney laid out the basic law

concerning substantive due process

claims, holding that due process forbids

the state from depriving another of life,

liberty, or property without due process

of law, but "nothing in the language of

the Due Process Clause itself requires

the State to protect the life, liberty,

and property of its citizens against

invasion by private actors." Id. at 195.

The purpose of due process is to protect

people from the state, not to require the

state to protect individuals from each

other. Id. at 196. Nor is there a right

to governmental aid, "even where such aid

may be necessary to secure life, liberty,

or property interests of which the

government itself may not deprive the

individual." Id. An exception is made for

state prisoners because prisoners have

lost the freedom to act for themselves.

Id. at 198. The Court rejected the

argument that some "special relationship"

created or assumed by the state might

impose a duty to protect individuals

arising from the interventions of the

state social services agency. Id. at 197.

The state’s duty to protect does not

arise from the state’s knowledge of the

person’s problems, "but from the

limitation which [the state] has imposed

on [the individual’s] freedom to act on

his own behalf." Id. at 200.

In this present case, the district court

relied on an exception which has

developed from the language in DeShaney,

which states that even though the state

may have been aware of the abusive

dangers the boy faced, "it played no part

in their creation, nor did it do anything

to render him any more vulnerable to

them." Id. at 201. This circuit has taken

advantage of that language to hold that

state liability may exist if any state

action "creates, or substantially

contributes to the creation of a danger

or renders citizens more vulnerable to a

danger than they otherwise would have

been." Reed v. Gardner, 986 F.2d 1122,

1126 (7th Cir. 1993). In Reed, the police

officer defendants arrested the driver of

a car,/1 but not the drunken passenger

who was left in the car with the driver’s

car keys. The drunk passenger used the

keys to drive away and crashed head on

into the plaintiffs’ car killing a

pregnant woman and injuring five other

passengers. Id. at 1123-24. Although the

panel noted that "we have been hesitant

to find sec. 1983 liability outside the

custodial setting," it found that the

officers in this case "initiated the

state action and that the state

intervention created the dangerous

condition, a drunk driver on the road."

Id.

In Monfils v. Taylor, 165 F.3d 511, 513

(7th Cir. 1998), we had another unique

factual situation where an informant,

Monfils, who was an employee in a paper

plant, made a telephone call to the

police informing them that another

employee, Kutska, was going to steal

plant property. Monfils insisted on

anonymity because he knew Kutska had a

reputation for violent behavior. Kutska

subsequently was caught when he attempted

the theft. He vowed to discover the

informant’s identity and requested a copy

of the taped call from the police. Id. At

the same time, Monfils made several calls

trying to prevent the release of the

recording and was assured each time that

the tape would never be released.

Nonetheless, one of the officers located

the tape and released a copy to Kutska.

Kutska recognized Monfils’ voice as the

informant and several hours later Monfils

was murdered. Kutska and five other

employees responsible for Monfils’ death

were convicted, and Monfils’ survivors

brought the sec. 1983 suit against the

city and police department. Id. at 514-

15. In resolving Monfils, we ratified our

previous holding in Wallace v. Adkins,

115 F.3d 427 (7th Cir. 1997). In Wallace,

we held that an order requiring a prison

guard to remain at an especially

dangerous post, while at the same time

offering him false assurances that he

would be protected, qualified as an

affirmative act for purposes of the

state-created danger claim. 115 F.3d at

430. The elements of the Wallace claim

were: "What actions did the prison

officials affirmatively take, and what

dangers would Wallace otherwise have

faced?" Monfils, 115 F.3d at 517./2

In this present case, however, we have

a factual situation which cannot be

squeezed into any DeShaney exception, or

into the exceptions which have grown out

of DeShaney. Creating another exception

would risk undermining DeShaney. In any

event, we have no factual basis from

which to fashion an exception to fit this

case.

Dykema was experienced in drug

transactions, a business he knew to be

dangerous. He claimed he knew how

tooperate in drug matters better than the

police. He viewed himself as an

instructor from whom the police could

learn. He was a drug dealer of his own

free will and was not forced into drug

dealing by MANS. Dykema decided to

cooperate with MANS as requested, but for

reasons he perceived as for his own

benefit--for cash, beer, and to get his

driver’s license back. He was not in

police custody. Stepney, who shot Dykema,

qualifies as a "private actor." Stepney

was not a target of any MANS sting

operation, and no evidence ties him to

Dykema and the sting operation at issue.

Dykema and Stepney both thought they

might have noticed each other on some

prior occasion, but were not known to

each other. They were just two

participants in the drug world operating

on common drug turf. They appear to have

been drug competitors. No drug

transaction was contemplated on the day

of the shooting because of Dykema’s

drinking. Although Skoumal advised Dykema

to try to "smooth things over" with

Dantzler, no one in MANS gave Dykema

instructions as to how, whether in person

or by phone, or when he should try to

smooth things over with Dantzler. Nor

were any time limitations imposed by

MANS. The details were left to Dykema and

his own judgment as an experienced drug

operator. If he thought the situation was

getting too dangerous, he could withdraw

as he had before. At that time he had

voluntarily resumed his undercover work.

He knew how to quit. His relationship

with MANS did not amount in any way or

degree to his being in the custody of

MANS. The injury to Dykema was

unfortunate, but it is general knowledge

that drug dealers are often armed to

protect their drugs and money from

competitors. MANS had nothing to do with

the particular event of Stepney shooting

Dykema. MANS was not aware that Dykema

was in any danger from Stepney. MANS was

not responsible for Dykema’s injuries.

Dykema assumed the drug dealing risks.

The mere fact that Dykema was seen in the

company of several law enforcement agents

is immaterial. There is no evidence the

agents were recognized as officers, or if

they had been recognized, how that had

anything to do with Stepney shooting

Dykema. Mere speculation and argument

cannot supply the factual basis for an

exception to DeShaney. Nor has there been

any assertion that MANS advised Dykema

that they would protect him, nor did

Dykema ask for protection.

III. Conclusion

Although the district court gave

attention to the facts and the applicable

precedents, we must disagree with the

judgment which resulted. There was no

material fact in dispute to defeat this

court’s review of the summary judgment,

which in turn gives this court

jurisdiction. The case is without merit

under DeShaney and its progeny, and must

be and is REVERSED. As nothing further is

required for the district court, the case

is hereby DISMISSED. The parties shall

bear their own costs.

REVERSED AND DISMISSED.

FOOTNOTES

/1 The record suggests the driver was also drunk.

See Reed, 986 F.2d at 1124.

/2 The other cases cited to us, all with varying

factual situations, need not be pursued. See

Roviaro v. United States, 353 U.S. 53 (1957);

Stevens v. Umsted, 131 F.3d 697 (7th Cir. 1997);

Losinski v. County of Trempealeau, 946 F.2d 544

(7th Cir. 1991); Gibson v. City of Chicago, 910

F.2d 1510 (7th Cir. 1990); Archie v. City of

Racine, 847 F.2d 1211 (7th Cir. 1988) (en banc);

Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982);

White v. Rockford, 592 F.2d 381 (7th Cir. 1979).