     06-1983-cv
     Matican v. City of New York

 1                                 UNITED STATES COURT OF APPEALS
 2
 3                                     FOR THE SECOND CIRCUIT
 4
 5                                         -------------
 6
 7                                        August Term 2007
 8
 9   Argued: October 22, 2007                        Decided: April 23, 2008
10
11                                     Docket No. 06-1983-cv
12
13   --------------------------------------------------X
14
15   ROBERT MATICAN,
16
17                                         Plaintiff-Appellant,
18
19                   - against -
20
21   CITY OF NEW YORK, JOHN SCHNEIDER,
22   JULIO C. ORDONEZ, and CHRIS ZIMMERMAN,
23
24                                         Defendants-Appellees.
25
26   --------------------------------------------------X
27
28           Before:          FEINBERG, WINTER, and STRAUB, Circuit Judges.
29
30        Plaintiff-appellant, who participated in a police sting and
31   was later assaulted by the target of the sting, asserted that
32   conduct of defendants-appellees constituted both denial of
33   substantive due process and negligence, and brought claims under
34   42 U.S.C. § 1983 and state common law. The district court granted
35   summary judgment to defendants-appellees on the federal claims
36   and declined to exercise jurisdiction over the state-law claims.
37   Judgment affirmed.
38
39                            MICHAEL A. HASKEL, Mineola, N.Y., for Plaintiff-
40                                 Appellant.
41
42                            JOHN     HOGROGIAN, Assistant Corporation Counsel
43                                    (EDWARD F.X. HART, HEIDI GROSSMAN, JENNIFER
44                                    ROSSAN, of counsel, MICHAEL A. CARDOZO,
45                                    Corporation Counsel of the City of New York,
46                                    on   the  brief),   New  York,   N.Y.,   for
47                                    Defendants-Appellees.
 1   FEINBERG, Circuit Judge:

 2        Plaintiff-appellant Robert Matican participated in a sting

 3   to help officers of the New York Police Department (“NYPD”)

 4   arrest a suspected drug dealer: Matican set up a drug buy, and

 5   the police descended on the dealer in force when he arrived

 6   about an hour later. After the dealer was released on bail, he

 7   assaulted plaintiff Matican with a box cutter, injuring him

 8   severely. Matican sued the City of New York (“City”) and three

 9   individual NYPD officers –- Captain Julio C. Ordonez,

10   Lieutenant John Schneider, and Sergeant Chris Zimmerman

11   (collectively, “the officers”) -- arguing that the way they

12   conducted the sting and their failure to alert Matican to the

13   dealer’s release gave away Matican’s identity and left him in

14   peril. He asserted claims for damages under 42 U.S.C. § 1983

15   and New York state law. By memorandum and order dated March 28,

16   2006, the United States District Court for the Eastern District

17   of New York (Block, J.) granted defendants-appellees’ motion

18   for summary judgment on the § 1983 claims and declined to

19   exercise supplemental jurisdiction over the state-law claims.

20   For the reasons stated below, we affirm the judgment of the

21   district court.

22

23                              I. BACKGROUND




                                     -2-
 1        For purposes of Matican’s appeal from a grant of summary

 2   judgment, we take his allegations as true and draw all

 3   reasonable inferences in his favor. Jenkins v. City of New

 4   York, 478 F.3d 76, 85 n.4 (2d Cir. 2007).

 5        On the evening of September 18, 2001, Matican purchased

 6   crack cocaine from a drug dealer he knew as “Mike,” who had

 7   supplied him with drugs on a number of prior occasions.

 8   Undercover NYPD officers then arrested Matican and took him to

 9   a precinct house in Bayside, Queens. While Matican was in a

10   holding cell, defendant Zimmerman approached him and offered to

11   make the arrest “go away” if Matican would agree to help the

12   officers arrest Mike. Matican was interested in the offer but

13   expressed concern for his safety if Mike made bail. Matican

14   testified that Zimmerman responded, “Don’t worry, Robert, we

15   will look after you. We will protect you.” Matican agreed to

16   cooperate based on Zimmerman’s promise.

17        According to Matican, Zimmerman then instructed Matican to

18   arrange a drug buy with Mike the following evening in front of

19   the Bayside Jewish Center, a frequent location for prior drug

20   transactions between Matican and Mike. The police would be

21   waiting with two cars and four officers in each car. When Mike

22   executed his customary illegal U-turn in front of the Jewish

23   Center, Matican would identify the car from the safety of a

24   darkened athletic field across the street, and the police would


                                   -3-
 1   pull over Mike as if for a routine traffic stop. Defendant

 2   Schneider asked Matican what quantity of drugs Mike would be

 3   carrying; when Matican replied that Mike would have 20 or 30

 4   bags of crack, Schneider replied, “[I]f he has that many bags,

 5   he is not going to even make bail.” After the plan was

 6   formulated, the officers released Matican with a desk

 7   appearance ticket.

 8        The following evening, Matican met the officers at the

 9   prearranged location and paged Mike to arrange a large drug

10   buy. Mike arrived and Matican identified his car, as planned.

11   According to Matican, the officers then cut Mike off with two

12   police vehicles, pulled him from the driver’s seat, and pinned

13   him against his car. The officers searched Mike’s person and

14   car, discovered drugs, and arrested him. Matican remained

15   hidden and unseen in the darkened field.

16        Mike, whose real name was Steven Delvalle, was found to be

17   in possession of 16 bags of crack cocaine, two bags of

18   marijuana, and about $2,000 in cash. Delvalle was charged with

19   two counts of criminal possession of a controlled substance, as

20   well as various moving violations. A criminal check performed

21   at the precinct revealed that Delvalle had six prior arrests,

22   including arrests for possession of a handgun and assault with

23   a box cutter. On September 28, 2001, Delvalle was released on

24   bail. Matican was not informed of Delvalle’s arrest history,


                                   -4-
 1   his release, or his real name, and he alleges that had he known

 2   these facts, he would have moved to California to live with his

 3   brother.

 4        Matican never contacted Delvalle again after the sting

 5   operation. He acknowledges that he discussed his participation

 6   in the sting with his parents and a close friend, and that at

 7   least one other person knew about his role. On December 8,

 8   2001, Delvalle approached Matican on a street in Queens.

 9   Delvalle said, “You ratted me. Why did you rat me?” He slashed

10   Matican’s face twice with a box cutter, then fled. Delvalle was

11   arrested several days later; he eventually pled guilty to one

12   count of attempted assault and one count of attempted criminal

13   possession of a controlled substance, and was sentenced to

14   eight years in prison.

15        Matican filed his suit in the Eastern District in November

16   2002, stating causes of action under 42 U.S.C. § 1983 and New

17   York common law. Defendants moved for summary judgment on all

18   claims. The district court granted summary judgment on the

19   § 1983 claims and declined to exercise supplemental

20   jurisdiction over the state claims. Matican v. City of New

21   York, 424 F. Supp. 2d 497 (E.D.N.Y. 2006). This appeal

22   followed.

23

24                            II. DISCUSSION


                                   -5-
 1        We review de novo the district court’s grant of summary

 2   judgment, construing the evidence in the light most favorable

 3   to Matican, the nonmoving party, and drawing all inferences and

 4   resolving all ambiguities in his favor. Doro v. Sheet Metal

 5   Workers’ Int’l Ass’n, 498 F.3d 152, 155 (2d Cir. 2007). Summary

 6   judgment is appropriate “if the pleadings, the discovery and

 7   disclosure materials on file, and any affidavits show that

 8   there is no genuine issue as to any material fact and that the

 9   movant is entitled to judgment as a matter of law.” Fed. R.

10   Civ. P. 56(c).

11        Matican asserted the following causes of action: (1) a

12   claim under 42 U.S.C. § 1983 that the officers violated his

13   right to substantive due process under the Fourteenth Amendment

14   by failing to protect him from Delvalle’s assault; (2) a § 1983

15   claim against the City for failing to train its officers to

16   protect confidential informants from harm; and (3) claims

17   sounding in state law against all defendants asserting that the

18   officers behaved negligently, and that the City is vicariously

19   liable for their actions under the doctrine of respondeat

20   superior.

21        The first two claims depend on a single threshold

22   question: did the officers’ actions violate Matican’s

23   constitutional rights? If they did not, then the City cannot be

24   liable to Matican under § 1983, regardless of whether the


                                   -6-
 1   officers acted pursuant to a municipal policy or custom. City

 2   of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per

 3   curiam). Furthermore, if Matican has no valid claim under

 4   § 1983 against any defendant, it is within the district court’s

 5   discretion to decline to exercise supplemental jurisdiction

 6   over the pendent state-law claims. See Kolari v. New

 7   York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006)

 8   (citing 28 U.S.C. § 1367(c)(3)).1 We therefore begin with the

 9   threshold question of whether the officers’ conduct infringed

10   Matican’s constitutional rights.

11        Among the liberties protected by the Due Process Clause of

12   the Fourteenth Amendment is “a right to be free from . . .

13   unjustified intrusions on personal security.” Ingraham v.

14   Wright, 430 U.S. 651, 673 (1977). But in DeShaney v. Winnebago

15   County Department of Social Services, 489 U.S. 189 (1989), the

16   Supreme Court observed that “nothing in the language of the Due

17   Process Clause itself requires the State to protect the life,

18   liberty, and property of its citizens against invasion by

19   private actors.” Id. at 195. As a result, the Court held that

20   the Clause “generally confer[s] no affirmative right to

21   governmental aid, even where such aid may be necessary to



           1
             We must also determine the existence of a constitutional
      violation before we may consider the officers’ defense of
      qualified immunity. Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir.
      2004) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

                                   -7-
 1   secure life, liberty, or property interests of which the

 2   government itself may not deprive the individual.” Id. at 196.

 3        We have recognized two exceptions to this general

 4   principle, rooted in the Supreme Court’s analysis in DeShaney.

 5   First, the state or its agents may owe a constitutional

 6   obligation to the victim of private violence if the state had a

 7   “special relationship” with the victim. See Ying Jing Gan v.

 8   City of New York, 996 F.2d 522, 533 (2d Cir. 1993) (citing

 9   DeShaney, 489 U.S. at 198). Second, the state may owe such an

10   obligation if its agents “in some way had assisted in creating

11   or increasing the danger to the victim.” Dwares v. City of New

12   York, 985 F.2d 94, 98-99 (2d Cir. 1993) (citing DeShaney, 489

13   U.S. at 201, 203), overruled on other grounds by Leatherman v.

14   Tarrant County Narcotics Intelligence & Coordination Unit, 507

15   U.S. 163, 164 (1993).

16        Even if Matican’s claim falls within one of these two

17   exceptions, and the officers’ behavior violated a

18   constitutional obligation, Matican faces a further hurdle: he

19   must show that the officers’ behavior was “so egregious, so

20   outrageous, that it may fairly be said to shock the

21   contemporary conscience.” County of Sacramento v. Lewis, 523

22   U.S. 833, 848 n.8 (1998). This requirement screens out all but

23   the most significant constitutional violations, “lest the




                                   -8-
 1   Constitution be demoted to . . . a font of tort law.” Id.; see

 2   Paul v. Davis, 424 U.S. 693, 701 (1976).

 3        We consider (1) whether Matican’s claims fall within

 4   either of the two DeShaney exceptions and (2) whether the

 5   officers’ behavior can be said to shock the contemporary

 6   conscience.

 7

 8        A. Special relationship exception.

 9        The special relationship exception grows from the DeShaney

10   Court’s observation that “in certain limited circumstances the

11   Constitution imposes upon the State affirmative duties of care

12   and protection with respect to particular individuals.”

13   DeShaney, 489 U.S. at 198.2 The Court gave, as examples, the

14   obligations of states to incarcerated prisoners and

15   involuntarily committed mental patients, and concluded that

16   “when the State takes a person into its custody and holds him

17   there against his will, the Constitution imposes upon it a

18   corresponding duty to assume some responsibility for his safety

19   and general well-being.” Id. at 199-200.3 Under these limited



           2
             We recognized this principle before DeShaney, in Doe v.
      New York City Department of Social Services, 649 F.2d 134, 141
      (2d Cir. 1981).
           3
             The Court noted that the situation of a child placed in
      foster care might be sufficiently analogous to those of
      prisoners or mental patients to trigger the exception, but it
      did not decide the question. Id. at 201 n.9.

                                   -9-
 1   circumstances, the state may owe the incarcerated person an

 2   affirmative duty to protect against harms to his liberties

 3   inflicted by third parties. But the duty arises solely from

 4   “the State’s affirmative act of restraining the individual’s

 5   freedom to act on his own behalf [] through incarceration,

 6   institutionalization, or other similar restraint of personal

 7   liberty.” Id. at 200.

 8        Our own opinions have also focused on involuntary custody

 9   as the linchpin of any special relationship exception. See

10   Lombardi v. Whitman, 485 F.3d 73, 79 n.3 (2d Cir. 2007)

11   (“Special relationships arise ordinarily if a government actor

12   has assumed an obligation to protect an individual by

13   restricting the individual’s freedom in some manner, as by

14   imprisonment.”); Suffolk Parents of Handicapped Adults v.

15   Wingate, 101 F.3d 818, 824 (2d Cir. 1996) (holding that

16   plaintiffs’ claim did not fall within DeShaney exception

17   because “the plaintiffs here . . . are not involuntarily

18   institutionalized”); see also Doe v. N.Y.C. Dep’t of Soc.

19   Servs., 649 F.2d 134, 141 (2d Cir. 1981) (holding that state is

20   liable under Due Process Clause for abuse suffered by child in

21   foster care, and emphasizing custodial nature of foster care

22   placement).

23        The relationship between defendants and Matican does not

24   resemble those that have been found to lie within the bounds of


                                  -10-
 1   the special relationship exception. Matican freely agreed to

 2   serve as a confidential informant in exchange for more lenient

 3   treatment. He was not in custody at the time of the sting or of

 4   Delvalle’s assault. The state did not “render[] him unable to

 5   care for himself,” DeShaney, 489 U.S. at 200; after all,

 6   Matican argues that, had defendants warned him of Delvalle’s

 7   release, he would have moved to California to live with his

 8   brother. That he was in custody when he agreed to become a

 9   confidential informant is of no moment: he does not allege that

10   he was coerced, and his former incarceration did not exacerbate

11   his injury. See id. at 201 (“That the State once took temporary

12   custody of [petitioner] does not alter the analysis, for when

13   it returned him to his father’s custody, it placed him in no

14   worse position than that in which he would have been had it not

15   acted at all; the State does not become the permanent guarantor

16   of an individual’s safety by having once offered him

17   shelter.”).

18        We therefore join several of our sister circuits in

19   holding that a noncustodial relationship between a confidential

20   informant and police, absent more, is not a special

21   relationship. Accord Velez-Diaz v. Vega-Irizarry, 421 F.3d 71,

22   80 (1st Cir. 2005); Dykema v. Skoumal, 261 F.3d 701, 706 (7th

23   Cir. 2001); Butera v. District of Columbia, 235 F.3d 637, 648




                                  -11-
 1   (D.C. Cir. 2001); Summar v. Bennett, 157 F.3d 1054, 1059 (6th

 2   Cir. 1998).4

 3

 4        B. State-created danger exception.

 5        Like the special relationship exception, the state-created

 6   danger exception arises from the Court’s analysis in DeShaney.5

 7   After explaining that no special relationship existed between

 8   the state and petitioner, the Court further noted that,

 9   “[w]hile the State may have been aware of the dangers that

10   [petitioner] faced in the free world, it played no part in

11   their creation, nor did it do anything to render him any more

12   vulnerable to them.” DeShaney, 489 U.S. at 201. The Court

13   emphasized that government officers had done nothing worse than

14   failing to take action even though suspicious circumstances may

15   have counseled an active role. Id. at 203. These statements led



           4
             Matican encourages us to adopt the reasoning of G-69 v.
      Degnan, 745 F. Supp. 254 (D.N.J. 1990), which held that a
      special relationship exists between the state and a confidential
      informant whose safety depends on confidentiality. Id. at 265.
      But G-69 fails to distinguish between the special relationship
      and state-created danger exceptions, a distinction that may not
      have been obvious in DeShaney’s immediate aftermath. See id.
      (finding special relationship because plaintiff’s service to
      state “increased by a corresponding proportion the risk to his
      life”). As such, we do not find the decision to be particularly
      persuasive, and choose instead to follow the more recent
      analysis from our sister circuits.
           5
             The doctrine had been recognized in some circuits prior
      to DeShaney. See Kennedy v. City of Ridgefield, 439 F.3d 1055,
      1061 n.1 (9th Cir. 2006) (collecting cases).

                                   -12-
 1   us to conclude that, by negative implication, the state does

 2   infringe a victim’s due process rights when its officers assist

 3   in creating or increasing the danger that the victim faced at

 4   the hands of a third party. Dwares, 985 F.2d at 99.

 5        In applying the state-created danger principle, “we have

 6   sought to tread a fine line between conduct that is ‘passive’”

 7   (and therefore outside the exception) “and that which is

 8   ‘affirmative’” (and therefore covered by the exception). Pena

 9   v. DePrisco, 432 F.3d 98, 109 (2d Cir. 2005). Thus, we have

10   found state-created dangers (or denied summary judgment where

11   state-created danger theories were alleged) where police

12   officers told skinheads that they would not prevent them from

13   beating up protesters in a park, Dwares, 985 F.2d at 99; where

14   police officers gave a handgun to a retired officer who then

15   shot a fleeing robber, Hemphill v. Schott, 141 F.3d 412, 419

16   (2d Cir. 1998); where a prison guard told inmates that it was

17   “open season” on a prisoner, and the inmates beat up the

18   prisoner, Snider v. Dylag, 188 F.3d 51, 55 (2d Cir. 1999); and

19   where police officials encouraged an off-duty colleague to

20   drink excessively, after which he killed three pedestrians in a

21   car accident, Pena, 432 F.3d at 110-11. By contrast, we held

22   that no state-created danger existed where a police officer

23   failed to intervene to prevent a colleague from shooting




                                  -13-
 1   someone during an altercation. Pitchell v. Callan, 13 F.3d 545,

 2   549 (2d Cir. 1994).6

 3        As the district court recognized, Matican’s allegation

 4   that the officers failed to learn about, or inform him of,

 5   Delvalle’s violent criminal history or his release on bail fall

 6   on the passive side of the line. “Under DeShaney, allegations

 7   that the defendant officers merely stood by and did nothing are

 8   insufficient to state a constitutional violation.” Pena, 432

 9   F.3d at 110 (internal quotation marks omitted); see also

10   Lombardi, 485 F.3d at 79 (“It is not enough to allege that a

11   government actor failed to protect an individual from a known

12   danger of bodily harm or failed to warn the individual of that

13   danger.”). This is so notwithstanding Matican’s assertion that

14   the officers promised to protect him. See DeShaney, 489 U.S. at

15   200 (“The affirmative duty to protect arises not from the

16   State’s knowledge of the individual’s predicament or from its

17   expressions of intent to help him . . . .”).

18        By contrast, Matican’s allegation that the officers

19   planned the sting in a manner that would lead Delvalle to learn

20   about Matican’s involvement is sufficiently affirmative to

21   qualify as a state-created danger. See Kennedy v. City of


           6
             We declined to decide whether a state-created danger
      existed where, after the terrorist attacks of September 11,
      2001, federal officials informed rescue workers that the air
      near the World Trade Center site was safe to breathe, causing
      the workers to forego protective gear. Lombardi, 485 F.3d at 81.

                                   -14-
 1   Ridgefield, 439 F.3d 1055, 1063 (9th Cir. 2006) (finding that,

 2   where police officer informed assailant that victim had filed

 3   report against him, and assailant then shot victim, officer

 4   “affirmatively created an actual, particularized danger” to

 5   victim).7

 6

 7        C. Shocking the conscience.

 8        Until recently, Supreme Court and Second Circuit precedent

 9   gave little objective guidance as to whether a particular state

10   action does or does not shock the contemporary conscience. In

11   Lewis, the Supreme Court noted one set of parameters:


           7
              The defendant law enforcement officers in Dwares,
      Hemphill, Snider, and Pena all had personal relationships with
      the third-party assailants, and they either actively facilitated
      the assaults or personally communicated that assaults would go
      unpunished. Here, by contrast, the officers’ conduct might have
      indirectly alerted Delvalle to Matican’s identity, but the
      officers had no personal relationship with Delvalle other than
      the arrest itself. We have thus far found state-created dangers
      only where there is such a relationship. See Pena, 432 F.3d at
      109 (“Our distinction between these categories of cases suggests
      that   ‘special   relationship’   liability   arises  from   the
      relationship between the state and a particular victim, whereas
      ‘state created danger’ liability arises from the relationship
      between the state and the private assailant.”); see also Dwares,
      985 F.2d at 99 (describing officers’ liability in terms of
      “aid[ing] and abett[ing]”). However, other circuits have found
      state-created dangers where state officials had no relationship
      with the individual causing harm, e.g., Wood v. Ostrander, 879
      F.2d 583, 590 (9th Cir. 1989), or where the victim was not
      harmed by an individual at all, e.g., Kneipp ex rel. Cusack v.
      Tedder, 95 F.3d 1199, 1209 (3d Cir. 1996). Because the officers’
      affirmative conduct did not shock the conscience (as explained
      below), we need not decide whether the state-created danger
      exception is limited to cases where state officials had a direct
      relationship with the third party who caused injury.

                                   -15-
 1   negligently inflicted harm “is categorically beneath the

 2   threshold of constitutional due process,” 523 U.S. at 849

 3   (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)), whereas

 4   the intentional infliction of injury is the conduct “most

 5   likely to rise to the conscience-shocking level,” id. As for

 6   conduct between these poles, the Court held only that harm

 7   inflicted recklessly or with deliberate indifference does not

 8   shock the conscience in the context of a time-sensitive

 9   emergency, such as a high-speed chase. Id. at 853-54. Here,

10   though, the officers had ample opportunity to plan the sting in

11   advance. Matican argues that the district court erred in

12   holding that the officers did not act with deliberate

13   indifference. He proposes a balancing test to help factfinders

14   determine when the conscience is shocked by reckless or

15   deliberately indifferent state action that creates or increases

16   a danger.

17        We need not consider Matican’s proposed test, because this

18   court’s decision last year in Lombardi provides sufficient

19   guidance to resolve this issue. In that case, we considered the

20   claims of rescue and cleanup workers at the World Trade Center

21   site following the 9/11 attacks. The workers in that case

22   alleged that the defendants, federal environmental and

23   workplace-safety officials, issued intentionally false press

24   releases stating that the air in Lower Manhattan was safe to


                                  -16-
 1   breathe, and that in reliance on those statements, the workers

 2   did not use protective gear. Lombardi, 485 F.3d at 75. We held

 3   that, regardless of whether the situation was a time-sensitive

 4   emergency, plaintiffs’ allegations of deliberate indifference

 5   did not shock the conscience. Id. at 85. “Hurried or unhurried,

 6   the defendants were subjected to the ‘pull of competing

 7   obligations.’” Id. at 83 (quoting Lewis, 523 U.S. at 834). We

 8   reasoned that those competing obligations counseled against

 9   broad constitutional liability for the government officials,

10   whose decisionmaking might be inhibited by the threat of

11   lawsuits. Id. at 84. We concluded that “[w]hen great harm is

12   likely to befall someone no matter what a government official

13   does, the allocation of risk may be a burden on the conscience

14   of the one who must make such decisions, but does not shock the

15   contemporary conscience.” Id. at 85.

16        The same considerations lead us to conclude that Matican’s

17   allegations of affirmative conduct by the officers, even if

18   true, do not shock the contemporary conscience. In designing

19   the sting, the officers here had two serious competing

20   obligations: Matican’s safety and their own. They could

21   reasonably have concluded that the arrest of a potentially

22   violent drug dealer demanded the use of overwhelming force,

23   even if that show of force might jeopardize the informant’s

24   identity in the future. We are loath to dictate to the police


                                  -17-
 1   how best to protect themselves and the public, especially when

 2   our ruling could be taken to require officers to use riskier

 3   methods than their professional judgment demands.

 4        As we explained in Lombardi, the defendants in our prior

 5   state-created danger cases were not subject to “the pull of

 6   competing obligations.” See id. at 83 (discussing Pena and

 7   Dwares). Butera v. District of Columbia, 235 F.3d 637 (D.C.

 8   Cir. 2001), which Matican cites, is distinguishable for the

 9   same reason: the officers in that case sent an informant into

10   an undercover drug buy while monitoring from the safety of

11   their cars, id. at 642, and thus would have incurred no risk

12   had they fitted the informant with wires or agreed in advance

13   on danger signals, id. at 644.

14        Because the officers were obliged to protect their own

15   safety as well as Matican’s, their design of the sting in this

16   case does not shock the conscience.8 Matican therefore suffered

17   no violation of his rights under the Due Process Clause.

18

19                           III. CONCLUSION

20        We find that no constitutional violation occurred. We see

21   no need to consider whether the officers enjoyed the benefit of

22   qualified immunity, or whether Matican had a claim against the



           8
             We need not resolve the vexing questions raised by
      defendants about the proximate cause of Matican’s injuries.

                                  -18-
1   City for a practice or custom of failing to protect

2   confidential informants. Furthermore, because Matican has no

3   valid federal claims, the district court did not exceed its

4   allowable discretion in declining to exercise jurisdiction over

5   his state claims. 28 U.S.C. § 1367(c). We have considered all

6   of Matican’s other arguments for reversal of summary judgment

7   and find them to be without merit.

8        Judgment affirmed.




                                 -19-
