# Betty J. Archie v. City of Racine, Ronald W. Chiapete, and George W. Giese

> Court of Appeals for the Seventh Circuit · May 23, 1988 · 847 F.2d 1211

URL: https://www.frixlaw.com/law-library/cases/9477702

## Case

- **Full name:** Betty J. ARCHIE, Et Al., Plaintiffs-Appellants, v. CITY OF RACINE, Ronald W. Chiapete, and George W. Giese, Defendants-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** May 23, 1988
- **Citations:** 847 F.2d 1211; 1988 U.S. App. LEXIS 7067; 1988 WL 51645
- **Precedential status:** Published
- **Opinion:** Dissent by Cummings
- **Judges:** Bauer, Cummings, Wood, Cudahy, Posner, Coffey, Flaum, Easterbrook, Ripple, Manion, Kanne
- **Cited by:** 439 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477702

## How later opinions describe it (automated extraction)

- holding fire department dispatcher who failed to send a rescue squad did not violate 5 plaintiff’s constitutional rights when the government did not cause plaintiff’s diseases or 6 otherwise propel her into danger, nor take her into custody, nor hinder her from seeking 7 other…
- holding that "it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law”
- explaining that violation of state law does not give rise to actionable § 1983 claim unless it independently violates the Constitution or federal law
- stating that the U.S. Constitution does not require state officials to comply with state law

## Opinion text

CUMMINGS, Circuit Judge,
with whom CUDAHY, Circuit Judge, joins, dissenting.
Grossly negligent conduct or reckless disregard still may be actionable under 42 U.S.C. § 1983 . That question has been reserved by the Supreme Court (Daniels v. Williams, 474 U.S. 327 , 334 n. 3, 106 S.Ct. 662 , 667 n. 3, 88 L.Ed.2d 662 ) and has been affirmatively answered as to gross negligence by the Third and Sixth Circuits, while recklessness or deliberate indifference is sufficient to state a claim in the Second Circuit. See n. 8 supra. Moreover, the facts of this case demonstrate a special relationship between the state and the victim, requiring minimum competent action by defendant Giese while overseeing Rena DeLacy. See generally Taylor v. Ledbetter, 818 F.2d 791, 797-798 (11th Cir.1987) {en banc) (applying special relationship theory to relationship between the state and a child it placed in a foster home). Unlike the majority, we cannot definitively assert the contrary because certiorari was recently granted on that issue in DeShaney v. Winnebago County Dept. of Social Services, 812 F.2d 298 (7th Cir.1987), 108 S.Ct. 1218 . Even the defendant conceded at oral argument that it would be liable if a special relationship existed between it and DeLacy. Since the state effectively took control over DeLacy’s physical welfare when Giese instructed her to breathe into a paper bag instead of dispatching the ambulance, it was responsible for providing her with adequate protection from harm and her ultimate demise. Walker v. Rowe, 791 F.2d 507, 511 (7th Cir.1986). As in Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 283 (6th Cir.1987) (en banc), Giese was entrusted by the state with the power to save DeLacy’s life and his complete failure to dispatch her aid can be deemed gross negligence or reckless indifference and hence actionable under Section 1983.
Until the Supreme Court decides DeShaney, I will adhere to the panel opinion herein. 826 F.2d 480 (7th Cir.1987).
RIPPLE, Circuit Judge,
with whom CUMMINGS and CUDAHY, Circuit Judges, join, dissenting.
The Supreme Court of the United States has granted certiorari in DeShaney v. Win *1228 nebago County Dept. of Social Servs., 812 F.2d 298 (7th Cir.1987), cert. granted, — U.S. -, 108 S.Ct. 1218 , 99 L.Ed.2d 419 (1988). The Supreme Court’s opinion in DeShaney will undoubtedly provide important and, in all likelihood, controlling guidance with respect to the final disposition of this case. Under these circumstances, our respect for the decision-making processes of that Court and our responsibility to prevent the incursion of unnecessary litigation costs by the parties before us counsels against our rendering a decision in this case in advance of the Supreme Court’s decision in DeShaney.
However, because my brothers have decided to act at this time, I am constrained to reach the merits. Yet, in doing so, I do not believe that I can ignore the pendency of DeShaney. If this court is to dispose of this case now, its decision ought to be in strict conformity with the established law of the circuit. This is hardly a time to break new ground; higher authority has already informed us, by the grant of certio-rari, that any new ground will come from its pen, not from ours.
As the court noted in Walker v. Rowe, 791 F.2d 507 (7th Cir.), cert. denied, — U.S. -, 107 S.Ct. 597 , 93 L.Ed.2d 597 (1986), the case law of this circuit establishes that “when the state takes someone into its care or cuts off sources of private aid, the state must afford replacement protec-tion_ Sometimes we shorten this inquiry to a search for a ‘special relationship’ between the state and the person to be protected. Whatever the name, the rationale lies in constraints the state imposes on private action.” Id. at 511 (citations omitted). As the court put the point in Bowers v. DeVito, 686 F.2d 616 (7th Cir.1982), all of these cases are variations on the principle that “[i]f the state puts a man in a position of danger from private persons and then fails to protect him ... it is as much an active tortfeasor as if it had thrown him into a snake pit.” Id. at 618 ; see also Ellsworth v. City of Racine, 774 F.2d 182, 187 (7th Cir.1985) (Coffey, J., concurring), cert. denied, 475 U.S. 1047 , 106 S.Ct. 1265 , 89 L.Ed.2d 574 (1986). 1
Mr. Giese did not only fail to dispatch an ambulance to Mrs. DeLacy. He also counseled her with respect to the appropriate *1229 medical treatment for her complaint. Moreover, he affirmatively discouraged her and the person with her from seeking other medical assistance. Under our cases, such an assumption of responsibility, coupled with a discouragement of seeking other help, constitutes the sort of conduct that we have held actionable. Moreover, the record contains sufficient evidence to permit a jury to determine that this action was undertaken at a level of performance which would permit recovery under Daniels v. Williams, 474 U.S. 327 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986). On this basis, I would reverse the judgment of the district court and remand the case for further proceedings.
. Judge Coffey concurred in the judgment of the court on the ground that the plaintiff had relieved the city of its special duty to her by discharging her bodyguard because she did not think it was necessary for the officer to stay. Ellsworth v. City of Racine, 774 F.2d 182, 186-87 (7th Cir.1985). Nevertheless, he wrote, “I believe that if it were not for this admission, the plaintiffs complaint would state a cause of action under 42 U.S.C. § 1983 (1982).” Id. at 186 . With respect to the “special relationship” concept he wrote:
The due process clause of the 14th Amendment encompasses a right to be free from "unjustified intrusions on personal security’ such as the plaintiff suffered at the hands of her attacker. Ingraham v. Wright, 430 U.S. 651, 673 , 97 S.Ct. 1401, 1413 , 51 L.Ed.2d 711 (1976). See also, White v. Rockford, 592 F.2d 381 , 383 (7th Cir.1979) ("White"). Although the City has no general duty to protect members of the public from such danger, Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984) (“Byrne"); Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir.1983) (“Joliet"); a constitutional duty to protect the personal security of specific members of the public exists under certain “special relationship[s]'\ Byrne, 738 F.2d at 1446-47 . I agree with the majority that "what constitutes a ‘special relationship’ ... [is] hazy and indistinct.” However, I would not be as hasty as the majority to conclude that "[u]pon reviewing the facts of this case, we are unable to include within the concept of ‘special relationship’ the relationship between the city and the [plaintiff].”
A review of the cases suggests at least two factors to consider in deciding whether a special relationship exists. One factor that has been stressed is whether the danger which the defendant allegedly had a duty to prevent was directed at the public at large or only at a specific individual. See Martinez v. California, 444 U.S. 277, 285 , 100 S.Ct. 553, 559 , 62 L.Ed.2d 481 (1980); Fox v. Custis, 712 F.2d 84, 88 (4th Cir.1983). Another factor to consider is how closely the danger to the plaintiff is linked to actions of the defendant. See Byrne, 738 F.2d at 1446 . Taking the allegations of the complaint as true, in the instant case, the defendant had clear notice of a specific danger to the plaintiff. The danger was limited to the plaintiff and her family and did not encompass the general public.
Moreover, the danger arose as a result of the City’s actions in investigating and prosecuting illegal drug dealings in the City of Racine. I tun not prepared to say that, given these allegations, no "special relationship" between the city and the plaintiff could be found in this case.
Id. at 187.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477702. Public record. Not legal advice.