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Ellsworth v. City of Racine

September 23, 1985


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 84-C-751-Myron L. Gordon, Judge.

Author: Gibson

Before COFFEY, FLAUM, Circuit Judges, and GIBSON, Senior Circuit Judge.*fn*

GIBSON, Senior Circuit Judge.

The plaintiffs, Marie and Paul Ellsworth, appeal from the district court's dismissal of their complaint on the basis that it failed to state a claim upon which relief could be granted. FED. R. CIV. P. 12(b)(6). We AFFIRM.


Paul Ellsworth was an undercover narcotics officer employed by the Police Department of Racine, Wisconsin. Because of the testimony he was to give against individuals arrested as a result of an undercover investigation, Mr. Ellsworth and his family became the target of threats from underworld figures. In response to these acts of intimidation, the police department assigned an officer to protect Ms. Ellsworth for the eight hours each day that her husband was working. On July 21, 1980, Ms. Ellsworth and her bodyguard saw an automobile driving slowly past the Ellsworth home. At 6:30 p.m. the same day Ms. Ellsworth released her bodyguard from duty. Shortly thereafter, Ms. Ellsworth went into her backyard looking for her dog. While outside, she was attached by a masked man who told her to "tell the pig to keep his mouth shut." The man beat Ms. Ellsworth severely.

The plaintiffs brought this action pursuant to the Civil Rights Act of 1871. 42 U.S.C. § 1983 (1982).*fn1 In their complaint, the plaintiffs alleged that the defendant City of Racine (City) denied Ms. Ellsworth her Fourteenth Amendment rights by negligently failing to provide her with round-the-clock police protection.


The plaintiffs argue that the district court erred in dismissing their complaint, because it adequately stated a claim upon which relief could have been granted. The plaintiffs contend that, first, by deciding to provide Ms. Ellsworth with police protection, the police department either acted pursuant to an official policy or established an official policy on behalf of the City.*fn2 Second, because the Ellsworth family was endangered as a direct result of Mr. Ellsworth's work with the police department, the Ellsworth family had a special relationship with the City. Third, because of this relationship, the City had an obligation to protect Ms. Ellsworth adequately, the City "caused" an unjustified intrusion into her Fourteenth Amendment rights to bodily integrity and persona security. In other words, the City had a constitutional duty to protect Ms. Ellsworth, the City breached that duty, and, as a result, Ms. Ellsworth suffered great bodily injury. These allegations, plaintiffs argue, establish a claim for relief under § 1983 against the City. We disagree.

The sole issue on appeal is the sufficiency of the complaint. We take the allegations in the complaint to be true and view them, along with the reasonable inferences to be drawn from them, in the light most favorable to the plaintiffs. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff is unable to prove any set of facts which would entitle the plaintiff to relief. Benson v. Cady, 761 F.2d 335, 338 (7th Cir. 1985) quoting, Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Conley, 355 U.S. at 47; Benson, 761 F.2d at 338. Nevertheless, a plaintiff must allege sufficient facts to outline the cause of action, proof of which is essential to recovery. Benson, 761 F.2d at 338. We hold that the allegations in the plaintiffs' complaint failed to outline the elements of a constitutional violation by the City.

One of the initial inquiries in a § 1983 case is whether the conduct complained of deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Martinez v. California, 444 U.S. 277, 284, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980), quoting, Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979); Jackson v. Byrne, 738 F.2d 1443, 1445-46 (7th Cir. 1984). The essence of the plaintiffs' complaint is that the City violated Ms. Ellsworth's Fourteenth Amendment rights to bodily integrity and personal security by failing to protect her adequately.

The plaintiffs acknowledge, as they must, that the concept of liberty found in the Fourteenth Amendment does not include a right to basic public services. Jackson v. City of Joliet, 715 F.2d 1200, 1204 (7th Cir. 1983), cert. denied, 465 U.S. 1049, 104 S. Ct. 1325, 79 L. Ed. 2d 720 (1984). That is, there is nothing in the Constitution which requires governmental units to act when members of the general public are in danger. Jackson v. Byrne, 738 F.2d at 1446.

There is no constitutional right to be protected by the state against [crimes committed] by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.

Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). See also Benson, 761 F.2d at 339; Jackson v. Byrne, 738 F.2d at 1446; Beard v. O'Neal, 728 F.2d 894, 900 (7th Cir.), cert. denied, 469 U.S. 825, 105 S. Ct. 104, 83 L. Ed. 2d 48 (1984); Jackson v. City of Joliet, 715 F.2d at 1204. However, the plaintiffs argue that Ms. Ellsworth was more than just a member of the general public. Rather, by virtue of the fact that Mr. Ellsworth was a city police officer who encountered danger as a result of his work, the City had raised the Ellsworth family above the level of the general public and had entered into a special relationship ...

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