                              In the
    United States Court of Appeals
                For the Seventh Circuit
                          ____________

Nos. 02-3268 & 02-3269
JESUS HERNANDEZ, TABITHA HERNANDEZ
and ISMAEL GARZA,
                               Plaintiffs-Appellants,
                         v.

CITY OF GOSHEN, INDIANA, GOSHEN POLICE DEPARTMENT
and MICHAEL C. MURPHY, Personal Representative of the
Estate of ROBERT L. WISSMAN, Deceased,
                                           Defendants-Appellees.
                          ____________
            Appeals from the United States District Court
      for the Northern District of Indiana, South Bend Division.
             Nos. 3:02-CV-0387-RM & 3:02-CV-0388-RM—
                  Robert L. Miller, Jr., Chief Judge.
                          ____________
    ARGUED FEBRUARY 26, 2003—DECIDED MARCH 31, 2003
                     ____________


 Before FLAUM, Chief Judge, and EASTERBROOK and
KANNE, Circuit Judges.
  FLAUM, Chief Judge. Plaintiffs Jesus Hernandez and
Ismael Garza suffered injuries during a fatal shooting
spree waged by a coworker at their manufacturing plant.
Hernandez1 and Garza filed lawsuits seeking damages


1
  Tabitha Hernandez joins her husband, Jesus Hernandez, as
a plaintiff in this lawsuit, claiming that the Defendants are li-
                                                   (continued...)
2                                      Nos. 02-3268 & 02-3269

from the Defendants under 29 U.S.C. § 1983 and state
tort law. Hernandez and Garza’s § 1983 claims allege that
the City of Goshen, through its police department (togeth-
er “the City”), violated their constitutional right to liberty
by not acting to prevent the shooting even after receiving
a call from the plant manager reporting a threat of vio-
lence to plant employees. The district court dismissed the
§ 1983 counts under Rule 12(b)(6) for failure to state a
claim, finding that the City’s failure to protect Hernandez
and Garza from their coworker’s violence did not amount
to a constitutional violation. We affirm.


                       I. BACKGROUND
   Jesus Hernandez, Ismael Garza, and Robert Wissman
were employed at the Nu-Wood Decorative Millwork plant
in Goshen, Indiana, in December 2001. During their work
shift on December 6, 2001, Wissman got into a physical
fight with another Nu-Wood employee. Wissman left the
plant after the fight, but on his way out he threatened
to return “to do bodily harm.” After Wissman left, Nu-
Wood plant manager Greg Oswald called the Goshen
police department to report that he was concerned about
his and his employees’ safety because of Wissman’s ear-
lier altercation and parting threat, and because Oswald
knew Wissman had access to guns. The unidentified person
who answered the phone for the police department put
Oswald on hold several times and then told him that the
police department would not get involved unless and until
Wissman harmed someone. Wissman returned to the Nu-


1
  (...continued)
able under Indiana state law for her loss of services, society
and consortium due to her husband’s injury. Since Mrs. Hernan-
dez’s state law claims are not before us on appeal, our references
to “Hernandez” in the opinion apply only to Jesus Hernandez.
Nos. 02-3268 & 02-3269                                     3

Wood plant later that day and made good on his threat:
he shot and killed Oswald, shot and injured Hernandez,
shot at Garza, and shot and injured several other Nu-
Wood employees. Wissman also died during the shooting
spree.
  Hernandez, his wife Tabitha Hernandez, and Garza
sued the City and Wissman’s estate under Indiana state
tort law, alleging negligence and wrongful death, and they
sued the City under 29 U.S.C. § 1983, alleging a substan-
tive due process violation. The federal and state law
claims against the City are based on the City’s alleged
failure, through its police department’s conduct, policies
and procedures, to reasonably protect the Plaintiffs from
Wissman’s shooting spree. The district court dismissed the
§ 1983 counts against the City under Fed. R. Civ. P. 12(b)(6)
for failure to state a claim, finding that “a government’s
failure to protect a person against private violence gen-
erally does not amount to a violation of the [f]ederal
[c]onstitution.” See also DeShaney v. Winnebago County
Dept. of Social Svcs., 489 U.S. 189 (1989). The court then
remanded the remaining state law claims to the Elkhart
County, Indiana, Circuit Court pursuant to Fed. R. Civ. P.
54(b).


                      II. DISCUSSION
  We review the district court’s decision to dismiss the
§ 1983 claims under Rule 12(b)(6) de novo, accepting all of
the well-pleaded factual allegations in the complaint as
true and drawing all inferences in favor of Hernandez
and Garza. We will affirm the dismissal if it appears be-
yond doubt from our reading of the complaint that Her-
nandez and Garza can prove no set of facts that would
entitle them to relief. White v. City of Markham, 310 F.3d
989, 992 (7th Cir. 2002); Conley v. Gibson, 355 U.S. 41, 45
(1957).
4                                   Nos. 02-3268 & 02-3269

  An actionable claim for relief under § 1983 requires a
plaintiff to plead (1) a deprivation of a right secured by
the constitution or laws of the United States (2) caused by
an action taken under color of state law. Baker v. McCollan,
443 U.S. 137, 140 (1979). Only the first requirement is
at issue in this case. Hernandez and Garza’s complaints
allege that the City is liable for their injuries under § 1983
because it deprived them of their constitutional right to
liberty “by reason of a policy and/or custom of its police
department not to come to the aid of persons like [Her-
nandez and Garza] who [were] at foreseeable risk of harm
and/or by reason of inadequate training of its police de-
partment employees or agents amounting to deliberate
indifference to” Hernandez and Garza’s “constitutional
rights.”
  The district court thought that Hernandez and Garza’s
claims that the City deprived them of a “constitutional
right to personal safety and security” were “nearly identi-
cal” to the claim made by Joshua DeShaney, who alleged
that the State had deprived him of “his liberty interest
in freedom from unjustified intrusions on personal secu-
rity.” DeShaney, 489 U.S. at 195. Like the Supreme Court
in DeShaney, the district court in this case interpreted
Hernandez and Garza’s claims as alleging a deprivation of
a protected liberty interest under the 14th Amendment
resulting from the City’s failure to do anything to prevent
Wissman’s shooting spree. The court then dismissed Her-
nandez and Garza’s § 1983 claims because “a govern-
ment’s failure to protect a person against private violence
generally does not amount to a violation of the federal
constitution.” See DeShaney, 489 U.S. at 202-03.
  On appeal Hernandez and Garza argue strenuously that
their claims do not allege a constitutional violation re-
sulting from the City’s failure to protect them against
private violence, but instead assert a constitutional viola-
tion resulting from the City’s “egregious, arbitrary and
Nos. 02-3268 & 02-3269                                      5

oppressively exercised power” that contributed to its “de-
liberate indifference to risks of foreseeable bodily harm.” In
other words, Hernandez and Garza insist that their com-
plaint establishes
    a cause of action of violation of substantive due proc-
    ess under § 1983 because, at the time of the incident,
    the city and its police department had in place arbi-
    trary policies, procedures and customs of deliberate
    indifference to foreseeable victims of preventable
    violence that shocks the conscience, that was a proxi-
    mate cause of the denial of the constitutional right
    to personal security and bodily integrity and, in turn,
    the horrendous damages inflicted upon [Plaintiffs].
By using the phrases “deliberate indifference” and “shocks
the conscience” to describe the City’s conduct, Hernandez
and Garza try to make their case fit under Rochin v.
California, 342 U.S. 172 (1952) (holding police liable under
§ 1983 because conduct undertaken to obtain evidence—
illegally entering defendant’s bedroom and forcibly ex-
tracting pills from defendant’s body by pumping his
stomach—shocked the conscience and went beyond the
realm of reasonable evidentiary search and seizure), or
Estelle v. Gamble, 429 U.S. 97 (1976) (finding that pris-
on officials could be liable for defendant’s injuries under
§ 1983 if injuries were caused by their deliberate indiffer-
ence to prisoner’s medical needs), or County of Sacramento
v. Lewis, 523 U.S. 833 (1998) (affirming “shocked the con-
science” test but finding police not liable under § 1983 for
causing death of bystander in high speed police chase),
instead of DeShaney.
  Regardless of the words Hernandez and Garza use to
describe the City’s conduct in their brief, we review the
sufficiency of their § 1983 claims under Rule 12(b)(6) based
on the pleadings alone. In their complaints Hernandez
and Garza allege that the City is liable under § 1983
6                                   Nos. 02-3268 & 02-3269

because the police department had a policy of not coming
to the aid of persons who were at a foreseeable risk of
harm and because its inadequate training of its employ-
ees amounted to “deliberate indifference” to Hernan-
dez and Garza’s constitutional rights. Given the facts as
pleaded, this allegation simply does not establish any
constitutional violation for which the City could be found
liable under § 1983, and the claims were appropriately
dismissed under Rule 12(b)(6).
  First, neither Rochin nor Estelle nor Lewis is applic-
able here; in all of those cases and their progeny, § 1983
liability arises from state action or inaction based on a
recognized duty or affirmative course of conduct be-
tween the defendant state actor and the injured plaintiff.
The critical difference in this case is that the City had no
duty to the residents of Goshen to provide a police depart-
ment whose policy is to investigate threats of violence,
even credible ones, made by private persons and re-
ported by private persons. As the Supreme Court held in
DeShaney and we recently reiterated in Windle v. City of
Marion, Indiana, 2003 WL 728964, at *2 (7th Cir. 2003),
police departments have no constitutional duty to protect
private persons from injuring each other, at least where
the police department has not itself created the danger.
Thus, no matter how egregious Hernandez and Garza
might find the City’s failure to investigate credible threats
of private violence such as the one posed by Wissman,
the City’s conduct was not unconstitutional.
  Second, Hernandez and Garza have not presented any
facts which would lead us to conclude that this case falls
within the narrow “state-created danger” exception to
DeShaney. We have recognized the possibility that a state
actor might incur liability under § 1983 if his or her con-
duct created or exacerbated the danger faced by the vic-
tim. See Windle, 2003 WL 728964, at *2; DeShaney, 489
U.S. at 201. In Windle we found no § 1983 liability where
Nos. 02-3268 & 02-3269                                     7

police officers learned of potential danger to the plaintiff,
Chaunce Windle, by listening to conversations between
her and her sexual abuser over a police scanner but did
not investigate the situation or act to prevent further abuse
for a period of about two months. Id., 2003 WL 728964,
at *2. We said in Windle that, just as the social workers
in DeShaney knew that Joshua DeShaney’s father was
abusing him but did not stop the abuse, the mere fact
that the officers knew that Chaunce Windle faced danger
but did not intervene until the situation reached crisis
did not mean that the officers created the danger or made
it worse for the purpose of imposing § 1983 liability.
Windle, 2003 WL 728964, at *2.
   In this case, the pleadings allege that the Goshen police
department learned from Nu-Wood plant manager Greg
Oswald’s phone call that employee Robert Wissman threat-
ened to do bodily harm to Nu-Wood employees, and that
Oswald knew Wissman had access to guns. No other
evidence of the City’s knowledge or involvement with the
situation at Nu-Wood appears on the face of the com-
plaint. This is even less information about the specific
danger facing Hernandez and Garza than the police had
in Windle or the social workers had in DeShaney, and we
therefore do not find that the City, through its police
department’s decision not to investigate the phoned-in
threat, created or increased the danger faced by the Plain-
tiffs and their fellow Nu-Wood employees that day.


                     III. CONCLUSION
  Hernandez and Garza’s § 1983 claims are based on
allegations that they suffered a constitutional violation
when the City failed to come to their aid despite knowing
that they were at risk of harm. This case fits squarely
within DeShaney’s general rule that a state actor’s fail-
ure to protect private persons from injuring each other
8                                 Nos. 02-3268 & 02-3269

does not establish a constitutional violation. Accordingly,
we affirm the dismissal of Hernandez and Garza’s federal
§ 1983 counts under Rule 12(b)(6) for failure to state a
claim upon which relief can be granted.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—3-31-03
