The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Samantha Brown sued Defendant Jesus Reyes, the Acting Chief Probation Officer of the Cook County Adult Probation Department, for inadequately monitoring Acurie Collier, a convicted sex offender, while he was on probation. According to Brown, Reyes and his agents failed to notice that Collier violated curfew and computer use restrictions imposed by his probation, and that as a result, Collier was able to meet DP, Brown's minor daughter, over the internet, break into her house, and sexually abuse her. He also physically assaulted Brown as part of the same incident. The complaint alleges that Reyes violated Brown and DP's constitutional rights by depriving them of their "right to safety," as well as a pair of state law claims.*fn1 Reyes asserts in his motion to dismiss that he and his agents had no affirmative constitutional duty to protect Brown and DP from Collier. For the following reasons, the Court grants Reyes's motion to dismiss and dismisses the case in its entirety.
The following facts from Brown's complaint are assumed to be true for purposes of this motion to dismiss. Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). As the Acting Chief Probation Officer of the Cook County Adult Probation Department, Reyes was responsible for supervising, training, and managing Cook County probation officers. (Compl. ¶ 7.) Collier, a convicted sex offender, was on probation and subject to the requirements of the Cook County Probation Department's Adult Sex Offender Program. (Id. ¶ 5.) This program imposed a curfew and prohibited Collier from possessing a computer. (Id. ¶ 8.) One unidentified probation officer, an agent of Reyes, was specifically responsible for ensuring that Collier complied with these conditions of probation. (Id.)
Prior to July 30, 2010, Collier violated the terms of his probation over forty times by using a computer and violating curfew. (Id. ¶¶ 12-13.) Specifically, Collier contacted DP over the internet and obtained her home address. (Id. ¶ 13.) Then, on the evening of July 30, 2010, Collier forced his way into Brown and DP's home where he physically assaulted Brown and sexually assaulted DP. (Id. ¶ 13.) Neither Reyes nor the probation officer assigned to Collier discovered and disciplined Collier for these probation violations that enabled him to attack Brown and DP. (Id. ¶ 10.)
To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See id. at 1949.
In his motion, Reyes asserts that Brown lacks standing because the Cook County Probation Department never had an affirmative duty to protect Brown and DP from Collier. Whether Reyes and the probation department had a duty under the Due Process Clause to protect Brown and DP's "right to safety," however, is a question of whether Brown can state a claim upon which relief may be granted and falls under Rule 12(b)(6). The Court will evaluate Brown's § 1983 claim in that context.
Under § 1983, Brown must allege: (1) a deprivation of a right guaranteed by the Constitution or laws of the United States; and (2) that a person acting under the color of state law caused the deprivation. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004). The Fourteenth Amendment's Due Process Clause provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." By failing to intervene to stop Collier's attack, Brown claims that Reyes deprived her and DP of their constitutional "right to safety." In other words, according to Brown, Reyes violated Brown and DP's interest in being free from unwarranted invasions of their personal security.
The Due Process Clause, however, is "phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." DeShaney v. Winnebago County Dep't of Social Services, et al., 489 U.S. 189, 195 (1989). As a general rule, a state is not responsible for protecting citizens from harm by private actors under the Due Process Clause. Id. (finding the Due Process Clause serves "to protect the people from the State, not to ensure that the State protect[s] them from each other"); Buchanan-Moore, 570 F.3d at 827 (same). Brown's § 1983 claim turns on Reyes's alleged failure to protect Brown and DP from another private actor, Collier. Consequently, under DeShaney, Reyes has no duty to protect Brown and DP from violence from another private citizen.
The inquiry does not end there because there are two exceptions to the DeShaney rule where the state has an affirmative duty to protect individual citizens, the "special relationship" exception and the "state-created danger" exception. First, the state is obligated to protect those individuals in custodial settings where the state has limited an individual's ability to care for himself. DeShaney, 489 U.S. at 199-200 (the state has a duty to provide for the well-being of a private individual when the state "takes [that] person into its custody and holds him there against his will."); see also Buchanan-Moore, 570 F.3d at 827 ("when a state has custody over a person, it must protect him because no alternative avenues of aid exist."); Paine v. Johnson, 689 F. Supp. 2d 1027, 1075 (N.D. Ill. 2010) (Kendall, J) (same). In other words, when the state restrains an individual's freedom through incarceration or institutionalization, that individual can no longer provide for himself, creating a state duty to provide for "basic human needs," such as food, clothing, shelter, medical care, and safety. DeShaney, 489 U.S. at 200; Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). This exception does not apply because Brown and DP were never incarcerated or otherwise restrained by the state.
That leaves the state-created danger exception. This exception applies when the state affirmatively places an individual in a position of danger that she would have not otherwise faced. See Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1174 (7th Cir. 1997). Specifically, under this exception, Reyes could be liable to Brown if Brown demonstrates: (1) by an affirmative act, ...