Jennifer R. Wilson-Trattner v. Robert Campbell

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 16-2509

JENNIFER R. WILSON-TRATTNER,

Plaintiff-Appellant,

v.

ROBERT CAMPBELL, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:14-cv-1083-LJM-DML — Larry J. McKinney, Judge.

____________________

ARGUED MARCH 27, 2017 — DECIDED JULY 11, 2017

____________________

Before BAUER and EASTERBROOK, Circuit Judges, and

DEGUILIO, District Judge.

DEGUILIO, District Judge. In this appeal, the Plaintiff argues

that the district court incorrectly granted summary judgment

 Hon. Jon E. DeGuilio of the Northern District of Indiana, sitting by des-

ignation.

2 No. 16-2509

for the defense on three of her claims: a substantive due pro-

cess claim under 42 U.S.C. § 1983, a failure to train claim un-

der 42 U.S.C. § 1983 and an intentional infliction of emotional

distress claim under Indiana law. Each of these is based on

allegations that officers of the Hancock County, Indiana Sher-

riff’s Department improperly responded to the Plaintiff’s

complaints of domestic abuse. For the reasons that follow, we

affirm the judgment of the district court.

I.

Plaintiff Jennifer Wilson-Trattner began dating Scott

Roeger (then a deputy with the Hancock County Sherriff’s

Department) in 2010. By 2012, the couple’s relationship had

become combative. The allegations in this case center on four

incidents that followed.1

First, on June 17, 2012, Roeger locked Wilson-Trattner out

of her house by stealing her house key and reprogramming

her garage door opener. When she called the police, officers

from both Hancock County and another agency, the

McCordsville, Indiana Police Department, responded. Lieu-

tenant Jeff Rasche of Hancock County asked Roeger to return

the key to Wilson-Trattner, but Roeger refused. Wilson-

Trattner also showed Rasche a text message she had received

from Roeger that said “you have fucked with the wrong per-

son,” though Rasche did not find that message inappropriate.

Rasche later told Wilson-Trattner “we can’t help you; this is

1 Wilson-Trattner also cites a fifth incident on September 15, 2013, in which

Roeger contacted the Greenfield, Indiana Police Department and falsely

claimed that Wilson-Trattner had assaulted him. That would not appear

probative of Roeger’s propensity to harm Wilson-Trattner, but even if it

were, there is no evidence that the appellees were aware of it.

No. 16-2509 3

between you and him.” He also instructed Roeger that,

though Roeger’s personal life is not typically a department is-

sue, it becomes a department issue when Wilson-Trattner con-

tacts the police. Rasche drafted an internal memorandum re-

garding this incident, though no disciplinary action was taken

against Roeger.

On June 29, 2012, Roeger became angry after learning that

Wilson-Trattner had made plans on his night off. He yelled at

her, threw her against a wall and choked her to the point she

couldn’t speak. Wilson-Trattner wanted to avoid an official

police response, so she called an officer she believed to be off-

duty to get Roeger out of her house. That officer then called

his supervisor and four or five officers ultimately arrived at

Wilson-Trattner’s home from both the Hancock County and

McCordsville departments. They first spoke with Roeger

downstairs, who told them that Wilson-Trattner had hit him

and that he pushed her away to defend himself. They then

met with Wilson-Trattner, who was upstairs in her bedroom,

and told her that she could go to jail based on what Roeger

had said. Wilson-Trattner felt intimidated and was too scared

to fully provide her side of the story. Rather, she denied

Roeger’s account, stated that she did not hit Roeger until he

slammed her head into the wall and declined to talk further.

A McCordsville officer encouraged her to speak when she was

ready to do so and left her with a domestic violence handout

and a business card.

Following this incident, Hancock County Deputy Jarrod

Bradbury drafted a memorandum to Captain Bobby Camp-

bell, which stated that Roeger had been ordered to not return

to Wilson-Trattner’s house or contact her. Hancock County

Sheriff Mike Shepherd also assigned Detective Ted Munden

4 No. 16-2509

to draft a report. Munden spoke with Wilson-Trattner, but she

was unwilling to discuss the incident and said that she did not

want Roeger to get in trouble. Munden also interviewed

Roeger, who said that he had acted in self-defense. Munden

concluded that Roeger had violated departmental regula-

tions, though did not specifically recommend any personnel

action. While Munden delivered his report to Shepherd on or

before July 23, 2012, Shepherd does not remember receiving

it. He later found it in a filing cabinet, though does not recall

putting it there.

On July 8, 2013, Roeger became angry after seeing Wilson-

Trattner get a phone call from another man. He sent that man

and Wilson-Trattner numerous lewd and threatening text

messages, including sexually explicit photos and videos of

Wilson-Trattner. He also told Wilson-Trattner that she had

“fucked with the wrong person” and wished that she would

die. This prompted Wilson-Trattner to file a formal complaint

with Campbell. Campbell said he did not see anything threat-

ening about Roeger’s text messages. He told Wilson-Trattner

that he was “sick of dealing with this shit” and that she

“shouldn’t call [Hancock County] for this personal shit.” He

then advised her to obtain a protective order. There is no evi-

dence that she ever did so. Campbell also told Roeger that his

conduct was inappropriate and instructed him not to contact

Wilson-Trattner. Campbell initiated an internal investigation,

though says he misplaced the investigation paperwork in the

trunk of his car. He never delivered the findings of his inves-

tigation to Shepherd.

Things culminated on October 6, 2013, when Roeger broke

into Wilson-Trattner’s house while he was extremely intoxi-

cated. When Wilson-Trattner confronted him, he pushed her

No. 16-2509 5

out of the way. He then saw a male friend of Wilson-Trattner’s

and became enraged. He screamed and punched a hole in a

door and knocked three pictures off of the wall. He left the

house briefly, only to return and threaten Wilson-Trattner and

her friend. Wilson-Trattner’s friend then called 911 and

Roeger left before the police arrived. Hancock County Deputy

Gary Achor responded and told Wilson-Trattner “we’re sick

of getting these calls from you” and “if you keep crying wolf,

we’re just going to stop responding.” The McCordsville De-

partment subsequently arrested Roeger. He pled guilty to

criminal charges and resigned from the Hancock County

Sherriff’s Department following the initiation of termination

proceedings against him.

Wilson-Trattner filed this lawsuit on June 27, 2014 against

Roeger, Shepherd, Campbell and Munden, as well as Han-

cock County Officer Brad Burkhart.2 On summary judgment,

as is relevant here, the district court granted judgment for the

defense on Wilson-Trattner’s § 1983 substantive due process

claim (against Shepherd, Campbell, Munden, Burkhart and

Roeger in their individual and official capacities), § 1983 fail-

ure to train claim (against Shepherd in his official capacity)

and intentional infliction of emotional distress claim (against

Shepherd in his official capacity). It declined to grant judg-

ment on the battery and intentional infliction of emotional

distress claims against Roeger. The district court then entered

partial final judgment in favor of all of the above defendants

2 Wilson-Trattner also initially sued Hancock County and the Hancock

County Sherriff’s Department, but later agreed to voluntarily dismiss

them.

6 No. 16-2509

other than Roeger under Federal Rule of Civil Procedure

54(b). This appeal followed.

II.

We review the district court’s grant of summary judgment

de novo, construing all facts and drawing all reasonable infer-

ences in the Plaintiff’s favor. See, e.g., Collins v. Al-Shami, 851

F.3d 727, 730–31 (7th Cir. 2017).

The parties first contest whether Wilson-Trattner suffi-

ciently substantiated her substantive due process claim. The

due process clause generally confers “no affirmative right to

governmental aid, even where such aid may be necessary to

secure life, liberty, or property interests.” DeShaney v. Winne-

bago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). As such,

a state’s failure to protect an individual against private vio-

lence does not constitute a violation of the due process clause.

Id. at 197. Under the state-created danger doctrine, however,

a substantive due process claim can proceed where the state

“affirmatively places a particular individual in a position of

danger the individual would not otherwise have faced.” Doe

v. Vill. of Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015). To

prevail under such a theory, the Plaintiff must show that (1)

the state by its affirmative acts created or increased a danger

to her, (2) the state’s failure to protect her from danger was the

proximate cause of her injury and (3) the state’s failure to pro-

tect her shocks the conscience. D.S. v. E. Porter Cty. Sch. Corp.,

799 F.3d 793, 798 (7th Cir. 2015). This is a narrow doctrine that

applies only in “rare and often egregious” circumstances. Doe,

782 F.3d at 917 (quoting Estate of Allen v. City of Rockford, 349

F.3d 1015, 1022 (7th Cir. 2003)).

No. 16-2509 7

At oral argument, Wilson-Trattner conceded that Roeger

was not serving as a state actor in his interactions with her.

Rather, she argues that her claim implicates a state-created

danger because the appellees “conveyed the unmistakable

message” to Roeger that they would not interfere with his on-

going abuse, thereby emboldening him to reoffend. Thus, she

says, they placed her at a greater risk of domestic violence

than she would have faced had they done nothing at all.

She points largely to a single incident to support her

claim.3 This is the law enforcement response to the June 29,

2012 confrontation in which Roeger choked Wilson-Trattner

and slammed her head against a wall. Recall that four or five

officials responded to Wilson-Trattner’s home from the Han-

cock County Sheriff’s Department and McCordsville Police

Department. After taking Roeger’s statement, the officers ap-

proached Wilson-Trattner, who was in her bed in her upstairs

bedroom. All of the officers were male and they stood above

Wilson-Trattner in a manner that she considered “very intim-

idating.” They explained that she could go to jail, since Roeger

had said that she hit him. Wilson-Trattner argues that this

amounted to the officers “cajoling” her in the face of domestic

abuse.

3 In briefing and at oral argument Wilson-Trattner’s counsel also argued

that the appellees “cleansed” Roeger’s personnel file of references to his

misconduct. However, counsel subsequently conceded that Roeger had

no knowledge of any such actions, and that they thus could not have em-

boldened him to abuse Wilson-Trattner. Similarly, while Wilson-Trattner

ascribes some relevance to the dismissive and derisive comments Hancock

County officers made to her, there is no evidence that Roeger was aware

of them.

8 No. 16-2509

There is no indication, however, that any of these officers

did anything to embolden Roeger or otherwise indicate that

he could abuse Wilson-Trattner with immunity. As an initial

matter, it is unclear whether any of the appellees even partic-

ipated in this encounter (and if they did, what the extent of

their involvement was). Wilson-Trattner testified that she had

“no idea” who the officers were, other than one officer she

recognized who was not with the Hancock County Sherriff’s

Department. Further, it does not appear that the officers “ca-

joled” her, but rather warned her that she could go to jail in

light of Roeger’s allegations against her, and accordingly en-

couraged her to provide her side of the story. More im-

portantly, regardless of what transpired upstairs, it would not

have emboldened or otherwise affected Roeger, who was

downstairs when the officers confronted Wilson-Trattner. Fi-

nally, there is no evidence that any officer directly encouraged

Roeger or otherwise told him that he could abuse Wilson-

Trattner with immunity. On the contrary, Hancock County re-

sponded to Wilson-Trattner’s call, notified the McCordsville

Department regarding the same and interviewed both Roeger

and Wilson-Trattner. While this may have fallen short of an

optimal response, it at least would have conveyed to Roeger

that Hancock County did not consider the incident trivial.

Wilson-Trattner also makes a more general argument that

the appellees’ dismissive and indifferent attitudes to each of

the incidents above endangered her by progressively embold-

ening Roeger. That contention is, however, squarely fore-

closed by DeShaney. 489 U.S. at 197; see also Doe, 782 F.3d at

918 (rejecting a claim under the state-created danger doctrine

where a police officer did nothing to prevent a group of three

males from leaving with an extremely intoxicated female and

No. 16-2509 9

a sexual assault ensued). Though Wilson-Trattner character-

izes the Department’s ineffectual response as affirmatively in-

creasing the danger to her, such semantics cannot skirt prece-

dent. See Doe, 782 F.3d at 917 (“To create or increase must not

be interpreted so broadly as to erase the essential distinction

between endangering and failing to protect and thus circum-

vent DeShaney's general rule.”) (internal quotation marks and

citation omitted). Further, even if the appellees’ failure to in-

tervene ultimately increased the danger to Wilson-Trattner by

indirectly emboldening Roeger to continue to mistreat her,

that would not distinguish her case from DeShaney. There

state officials did not remove a child from an abuser’s care de-

spite numerous obvious indications of abuse over a period of

about two years. 489 U.S. at 192–93. The abuse accordingly

continued unabated, ultimately resulting in severe brain dam-

age to the child. Id. The Supreme Court nevertheless con-

cluded that the inaction of state officials was insufficient to

support a claim under the state-created danger doctrine. Id. at

201. That holding is equally applicable here.

The Supreme Court subsequently reaffirmed this princi-

ple in Town of Castle Rock v. Gonzales, in which it held that there

is no due process right to have another arrested for one’s own

protection. 545 U.S. 748 (2005). In that case, a woman’s hus-

band took her children in violation of a protective order. The

woman repeatedly implored the police to enforce the protec-

tive order, but they refused to do so, and the husband then

murdered the children. The Court found that this did not give

rise to a procedural due process claim, as the plaintiff had no

property right in the enforcement of the restraining order. It

further noted that “[i]n light of today's decision and that in

DeShaney, the benefit that a third party may receive from hav-

10 No. 16-2509

ing someone else arrested for a crime generally does not trig-

ger protections under the Due Process Clause, neither in its

procedural nor in its ‘substantive’ manifestations.” Id. at 768.

Wilson-Trattner correspondingly lacks a viable due process

claim.

We also reject her reliance on Okin v. Village of Cornwall-

On-Hudson Police Department. 577 F.3d 415 (2d Cir. 2009). In

that case, the Second Circuit allowed a substantive due pro-

cess claim to survive summary judgment where police offic-

ers expressed camaraderie with a perpetrator of domestic vi-

olence and repeatedly failed to punish him. The court of ap-

peals reasoned that, in doing so, the officers implicitly com-

municated to the perpetrator that his violence would go un-

punished, thereby increasing the risk of harm to the victim.

Id. at 429–30.

Though this holding appears to be in tension with

DeShaney and Castle Rock (indeed it is more like the dissent in

Castle Rock, which it cites in noting the “serious and unique

risks and concerns of a domestic violence situation,” Okin, 577

F.3d at 431 n.10) we need not decisively decline to follow it

since Okin involved facts significantly different from those at

issue here. In Okin, the police expressed solidarity with the

victim’s assailant by discussing football with him. Id. at 430.

The police also took no action in the face of obvious and re-

peated violence. Among other things, officers observed

bruises on the plaintiff, the plaintiff had lodged numerous

complaints of violence (including that she had been stabbed,

kicked, choked, punched and had a bottle thrown at her head)

and the perpetrator himself told the police that he “could not

help it sometimes when he smack[ed] [the victim] around.”

Id. at 420–24.

No. 16-2509 11

In contrast, here only one violent encounter occurred prior

to the October 2013 incident in which Roeger was arrested

and charged. Further, when police responded to it, Roeger in-

dicated that Wilson-Trattner had instigated the confrontation.

While Wilson-Trattner denied that (and said that Roeger had

slammed her head into the wall), she also said that she did not

want Roeger to get in trouble, did not show police her injuries

and did not provide police with her account of events.

Further, there is no evidence that responding officers ex-

pressed camaraderie with Roeger, for example by discussing

football with him as the officers did in Okin. In fact, while the

Hancock County Department’s response to Wilson-Trattner’s

complaints may have been tepid, the department did at least

repeatedly inform Roeger that his conduct was unacceptable.

Among other things, following the June 17, 2012 incident,

Rasche told Roeger that his personal life becomes a depart-

ment issue when he acts as he did and Wilson-Trattner calls

law enforcement. After the June 29, 2012 incident, Munden

completed an “insubordination warning form” following his

interview with Roeger. And after the July 8, 2013 incident,

Campbell told Roeger that his conduct was inappropriate and

instructed him not to contact Wilson-Trattner. This case is ac-

cordingly distinguishable from Okin.

In sum, we find no evidence that any of the appellees cre-

ated or increased a danger to Wilson-Trattner. Mere indiffer-

ence or inaction in the face of private violence cannot support

a substantive due process claim under DeShaney and Castle

Rock. Further, Wilson-Trattner’s theory that Hancock County

officers increased a danger to her by implicitly condoning vi-

olence against her is both questionable in light of DeShaney

and Castle Rock and unsupported by the facts. As such, the

12 No. 16-2509

district court correctly granted summary judgment on the

Plaintiff’s substantive due process claim.4

III.

We also agree with the district court’s resolution of the

Plaintiff’s failure to train and intentional infliction of emo-

tional distress claims. The former cannot proceed without ev-

idence of an underlying constitutional violation, D.S., 799 F.3d

at 800, which, for reasons set forth above, we find lacking.

Moreover, Wilson-Trattner provides no evidence to support

this claim other than a one-page “pre-basic training” sched-

ule. While she says that the defense admitted in response to a

discovery request that this is the only training officers receive,

she does not cite or attach that discovery request.

As to the intentional infliction of emotional distress claim,

Wilson-Trattner must establish (1) extreme and outrageous

conduct, (2) which intentionally or recklessly (3) caused her

(4) severe emotional distress. Curry v. Whitaker, 943 N.E.2d

354, 361 (Ind. Ct. App. 2011). As the district court properly

concluded, she has not presented any evidence of extreme or

outrageous conduct.5

4 Even if we were to find otherwise, the appellees would be entitled to

qualified immunity in their individual capacities, since the unconstitu-

tionality of the appellees’ actions is far from clearly established under

DeShaney. See Doe, 782 F.3d at 915.

5 Wilson-Trattner also contends that the appellees did not carry their ini-

tial burden before the district court of articulating why summary judg-

ment was warranted on the intentional infliction of emotional distress

claim. But, while contrite, the Defendants’ brief did argue that the Plaintiff

lacked evidence of extreme and outrageous conduct. See Outlaw v.

Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (noting that a moving party may

No. 16-2509 13

She points to four occurrences to substantiate this element

of her claim: (1) officers failing to take action against Roeger

despite him threatening her and smashing her head into a

wall, (2) officers standing over her and threatening her with

arrest, (3) officers dismissing her requests for assistance by

telling her “we can’t help you,” “we’re sick of dealing with

this shit” and that she “shouldn’t call in for this personal shit”

and (4) the “misfiling” of investigative reports against Roeger.

None of this conduct is sufficiently outrageous to give rise

to a cognizable claim. Her first two allegations, if anything,

describe an insufficient response to her calls for assistance.

That is not outrageous, particularly in light of Wilson-

Trattner’s statements to police that she did not want Roeger to

get in trouble. And while officers may have indicated that she

could be arrested after the June 29, 2012 incident, that was af-

ter Roeger told them that Wilson-Trattner initiated the con-

frontation and Wilson-Trattner did not provide her full side

of the story. Wilson-Trattner’s fourth allegation seems to im-

plicate negligent conduct. But, even granting the inference

that the Department intentionally buried the reports at issue,

there is no indication that it did so with reckless disregard for

the fact that it would cause Wilson-Trattner severe emotional

distress.

Wilson-Trattner’s third allegation is simply not egregious

enough to constitute outrageous or extreme conduct. See, e.g.,

Beauchamp v. City of Noblesville, Ind., 320 F.3d 733, 747 (7th Cir.

2003) (police officer calling a woman a bitch not extreme or

outrageous conduct). While some courts have found mocking

discharge its burden by “pointing out to the district court … that there is

an absence of evidence to support the nonmoving party’s case”).

14 No. 16-2509

a sexual assault victim to give rise to an intentional infliction

of emotional distress claim, see, e.g., Snyder v. Smith, 7 F. Supp.

3d 842, 862 (S.D. Ind. 2014), the dismissive conduct at issue

here does not rise to the flagrant callousness exhibited in

those cases. As such, the district court properly granted sum-

mary judgment for Shepherd on the Plaintiff’s intentional in-

fliction of emotional distress claim. The judgment of the dis-

trict court is therefore AFFIRMED.