APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
523 N.E.2d 64, 168 Ill. App. 3d 777, 119 Ill. Dec. 596 1988.IL.465
Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.
JUSTICE JOHNSON delivered the opinion of the court. JIGANTI, P.J., and McMORROW, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON
Plaintiffs, Judy and William Henderson, appeal from an order of the circuit court of Cook County dismissing their second amended complaint against defendants and holding that defendants did not owe a duty to them under Illinois common law or 42 U.S.C. section 1983, the Civil Rights Act. Defendants are Charles Bradford, Edward Schultes, Edward Corrigan, Emil Woolridge, Grover Roach, Allen Fort, Dennis Westbrook, Gerald Bolen, Floyd Reaska, Randolph Jett, Shirley J. Casper, Melvin Franks, Michael Burnett, Tom Palmore, Anthony Suggs, Louis Oliver Lowery, Kenneth McGinnis (warden of Pontiac Correctional Center), and Michael Lane (Director of the Illinois Department of Corrections). Defendants are employees of the Department of Corrections, most of whom work at the Pontiac, Illinois, facility.
The sole issue on review is whether a special relationship existed between plaintiffs and defendants and whether defendants had a duty to protect plaintiffs and their children from escaped inmates.
Plaintiffs, who are residents of Pontiac, Illinois, were assaulted by Anthony Davis, an inmate who escaped from the Pontiac Correctional Center in the early morning of March 16, 1983. Davis was in maximum security, serving a 25-year sentence for armed robbery and burglary. In the course of his escape, Davis kidnapped Judy Henderson and her children, Melanie and William Henderson, Jr. He then forced Judy to drive him to Chicago and raped her in the presence of her children.
Plaintiffs, in their second amended complaint, allege that defendants were negligent in failing to protect them from danger of escaped inmates. Plaintiffs assert that they are entitled to relief under 42 U.S.C. section 1983. Specifically, they argue that defendants had a constitutional duty under the fourteenth amendment to protect them from assault by escaped inmates and that defendants breached that duty. This right to affirmative protective services, plaintiffs allege, arises from the special relationship between them as residents of Pontiac and the defendants. The court dismissed the second amended complaint, finding that the defendants did not owe a duty to plaintiffs. This appeal followed.
To support their contention, plaintiffs attempt to distinguish Martinez v. California (1980), 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553, and Bowers v. DeVito (7th Cir. 1982), 686 F.2d 616, by contending that in these cases the defendants' conduct constituted acts of commission as opposed to acts of omission, as in the present case. However, these cases support the dismissal of plaintiffs' section 1983 claim. Bowers involved the release of a mental patient with a violent history who murdered a woman upon his release from a mental institution. The court held that "the only duties of care that may be enforced in suits under section 1983 are duties founded on the Constitution or laws of the United States; and the duty to protect the public from dangerous madmen is not among them." (Bowers, 686 F.2d at 619.) In Martinez, the Supreme Court held that the members of the parole board, allegedly with reckless disregard for defendant's dangerousness, were not liable under section 1983 for damages caused when he was paroled and committed murder five months after his release. Contrary to plaintiffs' assertion, Martinez and Bowers are not distinguishable on the basis of the differentiation between a commission and an omission. Such a distinction is without merit.
The success of a section 1983 claim is not to be determined by whether the actor affirmatively took steps to release a dangerous person when he should not have been released or whether the actor negligently allowed the dangerous person to escape. "Section 1983 imposes liability on anyone who under color of state law 'subjects . . . any citizen . . . or other person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . .,' and thus applies only if there is a deprivation of a Constitutional right. [Citation.]" (Bowers, 686 F.2d at 618.) Thus, the initial inquiry into a section 1983 action is whether the conduct complained of deprived the plaintiffs of a right, privilege, or immunity secured by the Constitution or laws of the United States. We find that plaintiffs were not deprived of a right or privilege secured by the Constitution or laws of the United States.
The concept of liberty granted in the fourteenth amendment does not include the right to basic public services. Nowhere in the Constitution is there a provision which requires governmental units to act when individuals of the general public are confronted with danger. (Ellsworth v. City of Racine (7th Cir. 1985), 774 F.2d 182, 185, cert. denied (1986), 475 U.S. 1047, 89 L. Ed. 2d 574, 106 S. Ct. 1265; Jackson v. Byrne (7th Cir. 1984), 738 F.2d 1443, 1446.) "The Constitution is a charter of negative liberties; it tells the [government] 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." (Byrne, 738 F.2d at 1446; Bowers v. DeVito (7th Cir. 1982), 686 F.2d 616, 618.) Additionally, the contours of what constitutes a "special relationship" between a State and its citizens is unclear. However, the existence of a special relationship has only been found where the plaintiff was involuntarily deprived by the State of any means to protect his constitutional rights. Walker v. Rowe (7th Cir. 1986), 791 F.2d 507, 511, cert. denied (1986), 479 U.S. 994, 93 L. Ed. 2d 597, 107 S. Ct. 597.
Plaintiffs here have failed to cite a single case, nor do we find one, which establishes a constitutional right to protection from assault by escaped inmates. Accordingly, numerous courts have held that State correction officials or other law enforcement officials do not have a constitutional duty to protect members of the general public from criminals. For example, in Walker, plaintiff were correctional officers employed at Pontiac Correctional Center who were murdered or injured by inmates during a prison riot. The court held that plaintiffs did not have a fourteenth amendment right to protection from assault by inmates in their work place. The rationale behind the court's decision was that the plaintiffs were not drafted by the State to be guards; they enlisted and were free to quit at any time. Furthermore, in Jones v. Phyfer (1985), 761 F.2d 642, plaintiff was raped by a juvenile who had been released from a juvenile facility for the holidays while serving time for burglarizing plaintiff's home. The juvenile was released to the custody of his grandmother, who lived in proximity to the plaintiff. The court found that even if the State is remiss in allowing a person to be in a position to cause danger to a member of the public, the due process clause of the Constitution does not protect a ...