On the appointed day, the Centro group gathered at the church while a group of Chicago police officers stationed themselves around the school. Commander Curtin was in charge of the force of police officers and he stationed himself inside of the school. Officer Todaro, meanwhile, surveyed the situation at the church and then joined his fellow officer at the school.
Commander Curtin told Dr. Evan to lock the front door of the school to keep the protesters outside. The protesters marched from the church to the school, carrying placards. They arrived at the school and began to shout for Dr. Evan.
At some time during the beginning of this demonstration, Officer Curtin ordered the police officers who were outside of the school to remove themselves to positions outside of the view of the protesters. After the police officers had obeyed this order, Officer Todaro asked Dr. Evan to come to the front door to let in some of the protesters. She agreed to do so and came to the front door. Officers Curtin and Todaro stood behind Dr. Evan while she opened the door. As she did so, Jorge Morales, a participant in the protest, came forward and tried to force the door open. After struggling with Dr. Evan, he grabbed her by the wrist and pulled her to the ground, causing Dr. Evan to lose consciousness.
When deciding a motion to dismiss, the court must 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 plaintiff. Doe on Behalf of Doe v. St. Joseph's Hospital, 788 F.2d 411, 414 (7th Cir. 1986); Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985). A complaint should only be dismissed if it appears beyond a doubt that the plaintiff can prove no set of facts upon which relief could be granted. Doe, 788 F.2d at 414; Ellsworth, 774 F.2d at 184, cert. denied, 475 U.S. 1047, 106 S. Ct. 1265, 89 L. Ed. 2d 574 (1986); Benson v. Cady, 761 F.2d 335, 338 (7th Cir. 1985). A plaintiff need only plead facts sufficient to outline the cause of action, but the complaint must contain direct or inferential allegations concerning all of the elements of the cause of action. Papapetropoulous v. Milwaukee Transport Services, 795 F.2d 591, 594 (7th Cir. 1986).
A. Count IV; 42 U.S.C. § 1983
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must ". . . prove that the defendant has deprived him of a right secured by the 'Constitution and laws' of the United States." Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970). The plaintiff must also show ". . . that the defendant deprived him of this Constitutional right 'under color of any statute, ordinance, regulation, custom or usage, of any State or Territory." Id., 398 U.S. at 150, 90 S. Ct. at 1604. In this case, plaintiff has failed to establish the first of these requirements.
In order to show that she has been deprived of a constitutional right, plaintiff must first demonstrate that a constitutional right exists. Here, plaintiff is claiming that her constitutional right to substantive due process under the Fourteenth Amendment has been violated by Commander Curtin and Officer Todaro due to their failure to protect her from harm and/or by their affirmative act in telling her to open the door while simultaneously removing the police protection from the parameters of the building.
1. Duty to Protect
Generally, there is no Constitutional right to be protected from the dangers of the world. ". . . the Due Process Clauses generally confer no affirmative 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." DeShaney, 109 S. Ct. at 1003. That is, the Due Process Clauses confer only a negative right -- the right to be free of government intrusion -- and not a positive right -- the right to be protected from acts by private citizens. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983), cert. denied, 465 U.S. 1049, 104 S. Ct. 1325, 79 L. Ed. 2d 720 (1984).
However, a constitutional duty to protect a private citizen may arise for the purposes of § 1983, when the state has affirmatively exercised its power over an individual such that a corresponding duty to protect the citizen is necessary. There are two different lines of cases defining the scope of this duty. A duty to protect may arise when the state has taken the private citizen into custody such that the state, through the ". . . exercise of its power so restrains an individual's liberty that it renders him unable to care for himself . . .," DeShaney v. Winnebago County DDS, 489 U.S. 189, 109 S. Ct. 998, 1005-6, 103 L. Ed. 2d 249 (1989), or when the state has affirmatively created a dangerous situation for the private citizen. Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989), cert. denied, 112 L. Ed. 2d 305, 111 S. Ct. 341 (1990).
Where the state takes a private citizen into its custody, a Constitutional duty to protect that citizen may arise. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976), (an affirmative duty to provide adequate medical care is created under the Eighth Amendment when the State incarcerates a prisoner); Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (an affirmative duty to provide safe conditions of confinement, freedom from unreasonable bodily restraints, and minimal training is created under the Due Process Clause when the state involuntarily commits a mental patient); Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983) (an affirmative duty to provide medical care is created under the Due Process Clause when a suspect is harmed during an arrest). DeShaney summed up these cases by stating:
"Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being . . . The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e.g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause . . . The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf."