                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1792
                         ___________________________

                                 Tamara Villanueva

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                City of Scottsbluff; Alex Moreno, individually and
                     in his official capacity as Chief of Police

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Lincoln
                                  ____________

                          Submitted: November 13, 2014
                             Filed: February 20, 2015
                                  ____________

Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
                              ____________
RILEY, Chief Judge.

      After ending her brief affair with Scottsbluff Police Chief Alex Moreno,
Tamara Villanueva filed suit against Moreno and the City of Scottsbluff (Scottsbluff)
under 42 U.S.C. § 1983 for alleged violations of the Fourteenth Amendment of the
United States Constitution and also state tort law. The district court1 granted summary
judgment in the defendants’ favor on the § 1983 claims and declined to exercise
supplemental jurisdiction over the state law tort claim. Villanueva timely appealed,
and we affirm.2

I.     BACKGROUND
       In late 2008, Moreno and Villanueva began a watch group for Villanueva’s
neighborhood. Villanueva was the group’s contact person to the police department,
and as the contact person, she regularly communicated with Moreno about problems
in the neighborhood. In August 2010, Villanueva expressed to Moreno that she might
be the wrong person to lead the neighborhood watch because she had been in an
abusive marriage and her ex-husband, Alvaro Villanueva, had assaulted her the
previous day. Although Moreno did not file a formal written report or take any
official action against Alvaro, the next day Moreno did speak with Alvaro about the
incident. On other occasions, Scottsbluff police officers would neither arrest Alvaro
nor generate formal written reports after Villanueva complained about domestic
disputes. Officers did arrest Alvaro in August 2011 for violating a protection order.

       After the August 2010 conversation, Moreno began what Villanueva describes
as a “primping process.” He spent more time alone with Villanueva and occasionally
touched her. At this point, Villanueva viewed Moreno as a “father figure” and
believed he was someone she could go to for help in dealing with her abusive
relationship with Alvaro. After a neighborhood watch meeting in October 2010,
Moreno kissed Villanueva and thereafter started sending her sexually explicit emails
and text messages. Moreno’s and Villanueva’s platonic relationship developed into
a sexual one, and they had sexual intercourse on two occasions. In November 2010,


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
      2
       We exercise appellate jurisdiction under 28 U.S.C. §§ 1291 and 1294(1).

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Villanueva ended the relationship and then began experiencing what she believed was
harassment. Villanueva observed unknown cars parked outside her house and
received threatening phone calls from people whose voices she did not recognize.
Because the callers told Villanueva to stay away from Moreno and referenced private
conversations between Villanueva and Moreno, Villanueva believed Moreno
orchestrated the harassment.

        Villanueva reported this harassment to the Scottsbluff police on numerous
occasions, and officers were dispatched to Villanueva’s house after many of the calls,
yet the officers generated only two written reports and took no official action in
response to her complaints. Before this alleged harassment, Villanueva had suffered
from depression, but the stress of her relationship with Moreno and the subsequent
events worsened her symptoms, eventually leading to a diagnosis of depression and
Post Traumatic Stress Disorder. Distressed by the perceived harassment, Villanueva
sought help from a number of officials at different levels of government before finally
filing the instant suit.

       Villanueva sued Moreno, in his individual and official capacities, and
Scottsbluff for violating the Equal Protection Clause of the Fourteenth Amendment
and sued Moreno individually for negligent infliction of emotional distress. The
district court also liberally construed Villanueva’s complaint to allege substantive due
process violations of her right to bodily integrity and her right to be free from
state-created danger. The district court granted summary judgment in favor of
defendants on Villanueva’s constitutional claims and declined to exercise
supplemental jurisdiction over the negligence claim. Villanueva appeals.

II.   DISCUSSION
      “We review the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to [Villanueva] and drawing all reasonable inferences
in her favor.” Montgomery v. City of Ames, 749 F.3d 689, 694 (8th Cir. 2014).

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Villanueva argues the district court did not view the facts in her favor and ignored
material questions of fact that should have been submitted to a jury. In support of this
argument, Villanueva lists a number of facts she believes the district court either did
not address or “whitewashed.” Contrary to Villanueva’s assertions, the district court
directly addressed many of these facts—although not worded as strongly as in
Villanueva’s legal briefs—and the other facts not addressed are immaterial. “Only
disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). We agree with the district court that Villanueva has not
presented a triable issue on any of her claims.

       A.     Equal Protection
       Villanueva contends Moreno and Scottsbluff violated the Equal Protection
Clause by maintaining a policy of not responding to women’s complaints of domestic
violence, which amounts to gender discrimination. “[T]he state may not ‘selectively
deny its protective services to certain disfavored minorities without violating the Equal
Protection Clause.’” Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990) (quoting
DeShaney v. Winnebago Cnty. Dept. of Social Servs., 489 U.S. 189, 197 n.3 (1989)).
A police department’s failure to protect victims of domestic violence can amount to an
equal protection violation actionable under 42 U.S.C. § 1983. See Ricketts v. City of
Columbia, Mo., 36 F.3d 775, 779 (8th Cir. 1994).

      “In order to survive summary judgment, a plaintiff must proffer
      sufficient evidence that would allow a reasonable jury to infer that it is
      the policy or custom of the police to provide less protection to victims
      of domestic violence than to other victims of violence, that
      discrimination against women was a motivating factor, and that the
      plaintiff was injured by the policy or custom.”

Id. (quoting Hynson v. City of Chester Legal Dept., 864 F.2d 1026, 1031 (3d Cir.
1988)).
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       Villanueva has produced evidence Moreno and other Scottsbluff police officers
did not formally report some of Villanueva’s complaints of domestic abuse and did
not always arrest Alvaro in response to her complaints. Villanueva additionally
points to two other women whose complaints of rape and domestic violence the
Scottsbluff police allegedly did not address. These incidents, however, are
insufficient to allow a reasonable jury to find the Scottsbluff Police Department had
“a policy which was motivated by an intent to discriminate against women.” Id. at
781. In Ricketts, we found the plaintiffs’ substantial statistical evidence that
(1) domestic violence claims resulted in fewer arrests than claims of other types of
violence, and (2) the majority of domestic violence was perpetrated against women
was not enough to prove an equal protection violation. See id. at 781-82. Villanueva
has brought forward far less evidence than the plaintiffs in Ricketts. Her smattering
of anecdotal experiences is not enough under the law to prove a violation of the Equal
Protection Clause.

       Indeed, Villanueva has made no showing the department’s alleged failure to
respond to domestic violence was motivated by an intent to discriminate against
women. Villanueva contends “a jury could conclude that it was [Villanueva’s]
gender that motivated the policy and/or custom of inaction” because Villanueva “and
other females in the community” did not receive adequate police responses to their
complaints of rape and domestic violence. But evidence that those who received
inadequate responses were women—without more—is not proof of discrimination.
A policy that does not facially discriminate against a discrete group will not violate
the Equal Protection Clause without some showing of discriminatory purpose. See,
e.g., Washington v. Davis, 426 U.S. 229, 238-42 (1976). Proving discriminatory
purpose is no simple task. It requires a showing that the law or practice in question
was “implemented ‘at least in part because of, not merely in spite of, its adverse
effects upon an identifiable group.’” Ricketts, 36 F.3d at 781 (quoting Personnel
Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Villanueva’s contention that

                                         -5-
the domestic violence and rape complaints of three women—including
Villanueva—went unaddressed is simply not enough to demonstrate discriminatory
purpose.

       B.     Substantive Due Process
       The district court also determined there were no triable issues concerning
Villanueva’s substantive due process claims. Although we question whether
Villanueva even raised substantive due process violations in her complaint, we agree
with the district court that, to the extent she did so, her claims lack merit.

                1.    Right to Be Free from State-Created Danger
       Villanueva, advancing the district court’s interpretation of her claims, argues
Moreno’s failure formally to report her claim of domestic abuse and the department’s
failure to respond to her claims of harassment denied her due process. “As a general
matter, . . . a State’s failure to protect an individual against private violence simply
does not constitute a violation of the Due Process Clause.” DeShaney, 489 U.S. at
197; accord Beck v. Wilson, 377 F.3d 884, 889 (8th Cir. 2004). One exception to
this principle is the “state-created-danger theory” under which “‘the state owes a duty
to protect individuals if it created the danger to which the individuals are subjected.’”
Fields v. Abbott, 652 F.3d 886, 890 (8th Cir. 2011) (quoting Hart v. City of Little
Rock, 432 F.3d 801, 805 (8th Cir. 2005)). To establish such a duty, Villanueva must
show:

      “(1) that she was a member of a limited, precisely definable group,
      (2) that the municipality’s conduct put her at a significant risk of serious,
      immediate, and proximate harm, (3) that the risk was obvious or known
      to the municipality, (4) that the municipality acted recklessly in
      conscious disregard of the risk, and (5) that in total, the municipality’s
      conduct shocks the conscience.”




                                       -6-
Montgomery, 749 F.3d at 694-95 (quoting Fields, 652 F.3d at 891). There is no
evidence in this record indicating the department’s and Moreno’s failures to respond
to Villanueva’s complaints “put her at a significant risk of serious, immediate, and
proximate harm.” Id. at 694.

       In support of her claim, Villanueva points to her inability to receive a protection
order against Alvaro because there were no documented complaints upon which a
court could base such an order. Villanueva’s inability to obtain a protection order did
not “render [her] more vulnerable to risks created by others,” S.S. v. McMullen, 225
F.3d 960, 962 (8th Cir. 2000) (en banc), but rather left her in the same situation as
before she sought the protection order. Absent some increased danger due to the
defendants’ inaction, there is no due process violation.

       Finally, the challenged conduct was not so egregious as to “shock the
conscience.” Montgomery, 749 F.3d at 695. “To shock the conscience, . . . an
official’s action must either be motivated by an intent to harm or, where deliberation
is practical, demonstrate deliberate indifference. . . . Mere negligence, or even gross
negligence, is not actionable.” Id. Villanueva’s evidence shows Moreno failed
formally to report one complaint of domestic violence—although he informally met
with Alvaro to address Villanueva’s complaint—yet the department did respond to
other complaints and generated at least one written report. Similarly, Villanueva’s
other complaints of domestic violence did not always result in Alvaro’s arrest, but did
on at least one occasion. As to the later harassment complaints, officers always were
dispatched in response to Villanueva’s complaints—and these officers generated two
written reports—but chose not to initiate investigations or make any arrests.

      “[D]iscretion is essential to the criminal justice process,” McCleskey v. Kemp,
481 U.S. 279, 297 (1987), and officers cannot be expected to make an arrest or initiate
a formal investigation in response to every complaint, see, e.g., Ricketts, 36 F.3d at
780 (“A municipality which, in order to protect itself against the kind of claim brought

                                           -7-
by the plaintiffs here, directed its officers to arrest every person against whom an
allegation of spousal abuse was made would undoubtedly find itself facing Section
1983 claims of unconstitutional arrest without probable cause.”). The officers’
conduct here was a valid exercise of police discretion, not a conscience-shocking
disregard of Villanueva’s complaints or her constitutional rights.

             2.     Right to Bodily Integrity
      Villanueva’s final argument is Moreno used his position as police chief to
coerce her into a sexual relationship, violating her right to bodily integrity. “‘The
Eighth Circuit has recognized a substantive due process violation in some instances
of sexual misconduct by police officers.’” Cavataio v. City of Bella Villa, 570 F.3d
1015, 1022 (8th Cir. 2009) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564, 574
(8th Cir. 2009)); see, e.g., Hawkins v. Holloway, 316 F.3d 777, 783-86 (8th Cir.
2003); Rogers v. City of Little Rock, Ark., 152 F.3d 790, 796-97 (8th Cir. 1998);
Haberthur v. City of Raymore, Mo., 119 F.3d 720, 723-24 (8th Cir. 1997). And in
Rogers, we specifically found a due process violation when a police officer mentally
coerced—rather than physically forced—a woman into sexual intercourse. See
Rogers, 152 F.3d at 797. A violation of the right to bodily integrity must be “‘so
egregious, so outrageous, that it may fairly be said to shock the contemporary
conscience.’” Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998)).

       Villanueva contends Moreno, knowing she was vulnerable because of her
history of spousal abuse, used his authority to entice her into a sexual relationship.
Villanueva acknowledges she did not object to the relationship with Moreno, but
maintains she felt forced to continue the relationship because she needed Moreno’s
help with the neighborhood watch and to escape her abusive ex-husband. Villanueva
likens her situation to that in Rogers, claiming “Moreno took advantage of his position
and [Villanueva’s] mental state[,] over time coercing [Villanueva] to engage in an
unwanted sexual relationship.”

                                         -8-
       The factual differences between Villanueva’s situation and the situation in
Rogers are substantial. In Rogers, an on-duty, armed, and uniformed officer followed
a woman home after pulling her over for a broken tail light. See id. at 793. The
officer entered the woman’s house, demanded she undress, and had sexual intercourse
with her. See id. at 793-94. Although the woman never objected, we still recognized
this encounter as a rape: “an egregious, nonconsensual entry into the body which was
an exercise of power without any legitimate governmental objective.” Id. at 797. In
contrast to Rogers, Villanueva’s sexual encounters with Moreno occurred while
Moreno was off-duty, were not connected to any exercise of Moreno’s authority as an
officer, and can only be described as a consensual sexual relationship between adults.
Although Villanueva now claims to have been coerced, her contemporaneous email
and diary notes show she was attracted to Moreno and consented to the relationship
with him.

       Villanueva, relying on the testimony of her counselor, argues Moreno coerced
her by engaging in what the counselor describes as a “primping process” or “pruning
process” where Moreno“set[] the stage for [Villanueva] to become a sexual partner.”
Through this process, Villanueva asserts Moreno—knowing of Villanueva’s fragile
mental state and that she sought his help as a law enforcement agent—set up meetings
where Moreno could see Villanueva alone and began casually touching Villanueva in
an attempt to escalate their relationship beyond friendship. Villanueva’s counselor
acknowledged, however, that “[i]n all [romantic] relationships there is a pruning
process.” The evidence does not suggest Moreno coerced Villanueva into sexual
relations through an abuse of his authority so egregious and outrageous that it shocks
the conscience. See id. Although Moreno arguably acted inappropriately in pursuing
a relationship with Villanueva, viewing the evidence in the light most favorable
toVillanueva, Moreno’s conduct cannot be likened to the rape perpetrated in the
Rogers case and does not rise to the level of a due process violation.




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III.   CONCLUSION
       We affirm the well-reasoned decision of the district court.
                      ______________________________




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