In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2787

MATTHEW DYKEMA,

Plaintiff-Appellee,

v.

MICHAEL SKOUMAL,

Defendant-Appellant.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 98-C-5309--James F. Holderman, Judge.

ARGUED April 18, 2001--DECIDED August 17, 2001


  Before HARLINGTON WOOD, JR., DIANE P. WOOD,
and WILLIAMS, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. This
story grows out of an unsuccessful drug-
related transaction in which the
plaintiff, Matthew Dykema, a paid
informant working with the Metropolitan
Area Narcotics Squad ("MANS"), an
interjurisdictional law enforcement group
in the Joliet, Illinois area, was shot in
the head and seriously wounded by Stephen
Stepney in October 1997. Stepney claimed
unsuccessfully at his criminal trial, in
which he was convicted of the shooting,
that he shot Dykema in self defense.
Stepney claimed that he did not even know
Dykema, but recognized him only as
someone he had previously seen in the
area where he himself was looking for
drugs.

  Subsequently, Dykema brought this action
for damages pursuant to 42 U.S.C. sec.
1983 against Michael Skoumal, a former
Joliet police officer working with MANS,
and against other MANS personnel, as well
as the City of Joliet, and MANS. After
dismissals and settlements and an adverse
summary judgment ruling by the district
court, Skoumal is the only defendant
remaining in this appeal.

I.   Background

  The background facts are taken largely
from what Dykema has alleged or argued,
or facts not otherwise contested
(although in some instances disputed by
Skoumal). The material facts upon which
this case turns are as accepted by
Skoumal or as found by the district court
and, therefore, for this appeal not
contested. Dykema, a resident of Mokena,
a town southwest of Chicago near Joliet,
Illinois, had a suspended driver’s
license and made inquiries to the police
about reinstatement of the license.
Dykema met with officers at the Mokena
police station and discussed how he could
assist the police in drug investigations.
Dykema agreed to help, induced by the
officers’ promise to facilitate the
return of his driver’s license. He went
to work for MANS using an alias assigned
by the police. Dykema signed a
confidential service document in which he
admitted he was working as an informant
under his own free will and not as a
result of intimidation or threats.

  Skoumal, a Joliet police officer working
for MANS, functioned as Dykema’s control
officer. Craig Meece, a deputy sheriff,
was the undercover officer with whom
Dykema most often worked in making drug
buys for MANS. Dykema assisted in a
number of undercover investigations and
prosecutions of drug-related offenses
from the fall of 1996 through the spring
of 1997.

  Dykema argues that in this hazardous
drug business he received no training
from MANS on how to serve as a
confidential informant, how to set up
drug deals, or how to in-teract with drug
dealers, etc. However, in his deposition
Dykema elaborated on the training issues
and turned the tables on the police. He
stated that because of his long
experience with drug transactions, he
needed no training from the police. He
stated that "[the police] are the ones
that need [training]." In mid-1997,
Dykema voluntarily entered a drug and
alcohol rehabilitation program. After his
discharge he told Skoumal and Meece that
he no longer wanted to assist them.
Although the police deny this, Dykema
stated that after repeated entreaties by
police, assisted by cash payments and
beer, he agreed to resume his undercover
work.

  With that background, we approach the
particular circumstances giving rise to
the critical facts in question. A
suspected drug dealer named Jonathan
Dantzler was a MANS target. Dykema and
Meece, who posed as Dykema’s brother on
several occasions in September 1997,
purchased crack cocaine from Dantzler,
although no arrest was made. In order to
build a better case against Dantzler,
Skoumal and Meece planned a "reverse
buy." Instead of buying drugs from
Dantzler, Dykema and Meece would attempt
to sell drugs to him, then Dantzler would
be arrested. Drug transactions generally
are considered dangerous, but it is
claimed that a reverse buy poses even
greater dangers. The reverse buy was
first attempted on October 21, 1996, with
Dykema wearing a wire, but it fell
through when Dantzler, now buying instead
of selling, wanted to first inspect the
drugs before parting with his money.
Dantzler drove out of the parking lot and
MANS agents left to follow him. Stephen
Stepney, Dantzler’s cousin, was
reportedly acting as protection for
Dantzler. This occurred a week before
Stepney shot Dykema. On October 28, Meece
attempted to complete the reverse buy
without Dykema, but this failed because
Dantzler refused to deal without Dykema
being present.

  On the afternoon of October 29, the day
the MANS agents had planned to again
attempt the reverse buy, Dykema was
arrested after an incident in a tavern.
He was taken to the Lockport, Illinois
police station and charged. Skoumal,
Meece, and another agent, none of them in
uniform, arrived at the station, and
Dykema was released into their custody.
The four walked down the main street of
Lockport, and Meece and Dykema then went
on to the bar where Dykema had earlier
been arrested in order to pick up
Dykema’s truck. Meece and Dykema then
left the bar and drove a few blocks to
Dykema’s apartment. There Dykema had an
argument with his landlord, who proceeded
to evict him and his belongings. Skoumal
and the other agent had gone to wait for
Dykema at the parking lot of a laundromat
located across the street from Dykema’s
apartment. Skoumal and the other officer
had been joined by two other agents, with
all four observing the argument taking
place at Dykema’s apartment. Dykema and
Meece then joined Skoumal and the other
three agents in the parking lot across
the street. At no time during these
events were any of the agents in uniform
or in marked cars.

  Meece did not want to work with Dykema
that day be-cause Dykema had been
drinking, so he decided the reverse buy
attempt would not take place. A little
later Dykema was driving to a restaurant
when Skoumal and another agent waived him
to the side of the road. Skoumal gave
Dykema $20.00 to buy cocaine from
Dantzler. He told Dykema to "smooth
things over" with Dantzler and to tell
Dantzler they still wanted to do business
with him but at some other time. Dykema
went on to the restaurant and began
trying to contact Dantzler, but with no
success. He first drove by Dantzler’s
home, then to where he knew a good friend
of Dantzler’s worked, but had no success
in locating Dantzler. Dykema tried
unsuccessfully to "beep" Dantzler, and
then drove back to Dantzler’s house at
around 6:00 p.m. Suddenly, Dykema was
shot in the head. Later, he could not
remember any of the details. However, at
his deposition, Dykema said that he later
realized he had seen Stepney (the
shooter) sitting in a car several cars
away from Dykema at the time of the first
unsuccessful reverse buy. As to whether
Dykema had seen Stepney at any other
time, his answer was, "possibly could
have." Dykema said he had not expected to
see Stepney at Dantzler’s house. At his
criminal trial, Stepney testified he did
not know Dykema and recognized him only
as someone he had previously seen in the
area trying to buy drugs. This recital of
the facts gives us a sufficient basis to
consider the legal issues.

II.   Analysis

  We must first address Dykema’s claim
that this court has no jurisdiction
before analyzing the merits of
appellant’s arguments. Dykema maintains
that this is an interlocutory appeal
since Skoumal’s claim of qualified
immunity was denied by the district court
on a motion for summary judgment because
the court found that there were disputed
issues of material fact. See Johnson v.
Jones, 515 U.S. 304, 313-18 (1995)
(holding that a defendant, entitled to
invoke a qualified immunity defense, may
not appeal a summary judgment order when
that order determines there is a
"genuine" issue of material fact for
trial). However, Skoumal has conceded
Dykema’s version of the facts and
challenges only whether those conceded
facts establish a violation of clearly
established law. See Coady v. Steil, 187
F.3d 727, 730 (7th Cir. 1999) (citing
Behrens v. Pelletier, 516 U.S. 299, 313
(1996)).

  In reviewing the propriety of a district
court summary judgment ruling under
Fed.R.Civ.P. 56, we review de novo and
adhere to the same standards as the
district court set forth in its
memorandum opinion and order under
Anderson v. Liberty Lobby, Inc., 477 U.S.
242 (1996). See American Postal Workers
Union v. Runyon, 185 F.3d 832, 835 (7th
Cir. 1999). In Anderson, the Court held
that at the summary judgment stage, the
district court’s function is not to weigh
the evidence or determine the truth of
the matter. 477 U.S. at 249. "The
evidence of the non-movant is to be
believed, and all justifiable inferences
are to be drawn in his favor." Id. at
255. However, even though there may be
material facts in dispute, we review the
order of summary judgment by accepting
the district court’s determination that a
genuine issue of material fact exists.
Coady, 187 F.3d at 730-31. Skoumal does
not quarrel with that rule, and for the
purpose of this appeal concedes the
critical factual dispute which caused the
district court to deny his motion for
summary judgment. It is necessary,
therefore, to determine both the question
of this court’s jurisdiction and what
effect as a matter of law the material
facts as found by the district court may
have on the summary judgment ruling.

  Skoumal raises two issues aside from the
jurisdictional question raised by Dykema.
First, Skoumal claims that his conduct
did not violate Dykema’s substantive due
process rights, notwithstanding the fact
that the district court held that
Skoumal’s affirmative action placed
Dykema in a position of danger that he
otherwise would not have faced, and which
resulted in Dykema being shot by Stepney.
Secondly, Skoumal maintains that he is
entitled to qualified immunity even
though the district court found that at
the time of the shooting Dykema had a due
process right not to be placed in a
position of increased danger created by
Skoumal. Our answer to these two issues
disposes of the jurisdictional question
as well.

  A number of cases have been cited by the
parties, including the cases relied on by
the district court. We have considered
them all, but not all are needed to
resolve the issues. The district court
determined that Dykema raised a genuine
issue of material fact in his sec. 1983
claim on the basis that his
constitutional rights were violated under
the "state-created danger exception"
which was developed in DeShaney v.
Winnebago County Department of
SocialServices, 489 U.S. 189 (1989).
DeShaney held that the state had no
constitutional duty to protect a child
against his father’s violent abuse. Id.
at 202. In DeShaney, there was strong
evidence of child abuse in the home, and
on one occasion the child required
emergency hospital care. Id. at 192. The
county social services agency looked into
the charge and the juvenile court as a
result placed the child in the temporary
custody of the hospital. A child
protection team was assembled, ad hoc,
which recommended certain measures to
protect the child. The father voluntarily
agreed to comply with the team’s
recommendations and the court returned
the child to the father’s custody. The
caseworker made monthly visits for the
next six months, each time noting
suspicious injuries on the child and
recording that none of the protective
measures had been adopted. Id. at 192-93.
Calls from emergency room physicians also
continued, the last one made in November
1983. Id. The caseworker made two more
visits but did nothing except to note
that on both occasions she was told the
boy was too ill to be seen. No other
action was taken. Id. at 193. In March
1984, the father beat the four-year-old
boy so severely that he suffered
permanent brain damage and was expected
to spend the rest of his life
institutionalized. The father was
subsequently convicted of child abuse,
but that was too late to benefit the boy.
Id.

  DeShaney laid out the basic law
concerning substantive due process
claims, holding that due process forbids
the state from depriving another of life,
liberty, or property without due process
of law, but "nothing in the language of
the Due Process Clause itself requires
the State to protect the life, liberty,
and property of its citizens against
invasion by private actors." Id. at 195.
The purpose of due process is to protect
people from the state, not to require the
state to protect individuals from each
other. Id. at 196. Nor is there a 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." Id. An exception is made for
state prisoners because prisoners have
lost the freedom to act for themselves.
Id. at 198. The Court rejected the
argument that some "special relationship"
created or assumed by the state might
impose a duty to protect individuals
arising from the interventions of the
state social services agency. Id. at 197.
The state’s duty to protect does not
arise from the state’s knowledge of the
person’s problems, "but from the
limitation which [the state] has imposed
on [the individual’s] freedom to act on
his own behalf." Id. at 200.

  In this present case, the district court
relied on an exception which has
developed from the language in DeShaney,
which states that even though the state
may have been aware of the abusive
dangers the boy faced, "it played no part
in their creation, nor did it do anything
to render him any more vulnerable to
them." Id. at 201. This circuit has taken
advantage of that language to hold that
state liability may exist if any state
action "creates, or substantially
contributes to the creation of a danger
or renders citizens more vulnerable to a
danger than they otherwise would have
been." Reed v. Gardner, 986 F.2d 1122,
1126 (7th Cir. 1993). In Reed, the police
officer defendants arrested the driver of
a car,/1 but not the drunken passenger
who was left in the car with the driver’s
car keys. The drunk passenger used the
keys to drive away and crashed head on
into the plaintiffs’ car killing a
pregnant woman and injuring five other
passengers. Id. at 1123-24. Although the
panel noted that "we have been hesitant
to find sec. 1983 liability outside the
custodial setting," it found that the
officers in this case "initiated the
state action and that the state
intervention created the dangerous
condition, a drunk driver on the road."
Id.

  In Monfils v. Taylor, 165 F.3d 511, 513
(7th Cir. 1998), we had another unique
factual situation where an informant,
Monfils, who was an employee in a paper
plant, made a telephone call to the
police informing them that another
employee, Kutska, was going to steal
plant property. Monfils insisted on
anonymity because he knew Kutska had a
reputation for violent behavior. Kutska
subsequently was caught when he attempted
the theft. He vowed to discover the
informant’s identity and requested a copy
of the taped call from the police. Id. At
the same time, Monfils made several calls
trying to prevent the release of the
recording and was assured each time that
the tape would never be released.
Nonetheless, one of the officers located
the tape and released a copy to Kutska.
Kutska recognized Monfils’ voice as the
informant and several hours later Monfils
was murdered. Kutska and five other
employees responsible for Monfils’ death
were convicted, and Monfils’ survivors
brought the sec. 1983 suit against the
city and police department. Id. at 514-
15. In resolving Monfils, we ratified our
previous holding in Wallace v. Adkins,
115 F.3d 427 (7th Cir. 1997). In Wallace,
we held that an order requiring a prison
guard to remain at an especially
dangerous post, while at the same time
offering him false assurances that he
would be protected, qualified as an
affirmative act for purposes of the
state-created danger claim. 115 F.3d at
430. The elements of the Wallace claim
were: "What actions did the prison
officials affirmatively take, and what
dangers would Wallace otherwise have
faced?" Monfils, 115 F.3d at 517./2

  In this present case, however, we have
a factual situation which cannot be
squeezed into any DeShaney exception, or
into the exceptions which have grown out
of DeShaney. Creating another exception
would risk undermining DeShaney. In any
event, we have no factual basis from
which to fashion an exception to fit this
case.

  Dykema was experienced in drug
transactions, a business he knew to be
dangerous. He claimed he knew how
tooperate in drug matters better than the
police. He viewed himself as an
instructor from whom the police could
learn. He was a drug dealer of his own
free will and was not forced into drug
dealing by MANS. Dykema decided to
cooperate with MANS as requested, but for
reasons he perceived as for his own
benefit--for cash, beer, and to get his
driver’s license back. He was not in
police custody. Stepney, who shot Dykema,
qualifies as a "private actor." Stepney
was not a target of any MANS sting
operation, and no evidence ties him to
Dykema and the sting operation at issue.
Dykema and Stepney both thought they
might have noticed each other on some
prior occasion, but were not known to
each other. They were just two
participants in the drug world operating
on common drug turf. They appear to have
been drug competitors. No drug
transaction was contemplated on the day
of the shooting because of Dykema’s
drinking. Although Skoumal advised Dykema
to try to "smooth things over" with
Dantzler, no one in MANS gave Dykema
instructions as to how, whether in person
or by phone, or when he should try to
smooth things over with Dantzler. Nor
were any time limitations imposed by
MANS. The details were left to Dykema and
his own judgment as an experienced drug
operator. If he thought the situation was
getting too dangerous, he could withdraw
as he had before. At that time he had
voluntarily resumed his undercover work.
He knew how to quit. His relationship
with MANS did not amount in any way or
degree to his being in the custody of
MANS. The injury to Dykema was
unfortunate, but it is general knowledge
that drug dealers are often armed to
protect their drugs and money from
competitors. MANS had nothing to do with
the particular event of Stepney shooting
Dykema. MANS was not aware that Dykema
was in any danger from Stepney. MANS was
not responsible for Dykema’s injuries.
Dykema assumed the drug dealing risks.
The mere fact that Dykema was seen in the
company of several law enforcement agents
is immaterial. There is no evidence the
agents were recognized as officers, or if
they had been recognized, how that had
anything to do with Stepney shooting
Dykema. Mere speculation and argument
cannot supply the factual basis for an
exception to DeShaney. Nor has there been
any assertion that MANS advised Dykema
that they would protect him, nor did
Dykema ask for protection.

III.   Conclusion

  Although the district court gave
attention to the facts and the applicable
precedents, we must disagree with the
judgment which resulted. There was no
material fact in dispute to defeat this
court’s review of the summary judgment,
which in turn gives this court
jurisdiction. The case is without merit
under DeShaney and its progeny, and must
be and is REVERSED. As nothing further is
required for the district court, the case
is hereby DISMISSED. The parties shall
bear their own costs.

REVERSED AND DISMISSED.

FOOTNOTES

/1 The record suggests the driver was also drunk.
See Reed, 986 F.2d at 1124.

/2 The other cases cited to us, all with varying
factual situations, need not be pursued. See
Roviaro v. United States, 353 U.S. 53 (1957);
Stevens v. Umsted, 131 F.3d 697 (7th Cir. 1997);
Losinski v. County of Trempealeau, 946 F.2d 544
(7th Cir. 1991); Gibson v. City of Chicago, 910
F.2d 1510 (7th Cir. 1990); Archie v. City of
Racine, 847 F.2d 1211 (7th Cir. 1988) (en banc);
Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982);
White v. Rockford, 592 F.2d 381 (7th Cir. 1979).
