                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3705
                                   ___________

Demetrius Gatlin, as Trustee for the   *
Estate of Juwan Gatlin,                *
                                       *
             Appellant,                *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Sergeant Michael Green, individually *
and in his official capacity as a      *
Minneapolis Police Officer; City of    *
Minneapolis, a municipal corporation, *
                                       *
             Appellees.                *
                                  ___________

                             Submitted: December 15, 2003
                                Filed: March 16, 2004
                                 ___________

Before WOLLMAN, GIBSON, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.


       Juwan Gatlin (Gatlin) was murdered by Mickey Cobra (MC) gang members
after Gatlin cooperated with police. Demetrius Gatlin (Mrs. Gatlin), Gatlin’s widow
and trustee for Gatlin’s estate, filed this lawsuit against a Minneapolis police
detective and the City of Minneapolis (City), alleging violations of federal and state
law. The district court1 entered summary judgment in favor of the defendants on Mrs.
Gatlin’s federal claims and declined to exercise jurisdiction over the state law claims.
Mrs. Gatlin appeals. We affirm.

I.     BACKGROUND
       Gatlin was a long-time member of the MC gang. In June 1997, while serving
time in the Hennepin County Jail on charges of armed robbery, Gatlin told authorities
he wished to cooperate in exchange for assistance with his state charges and a chance
to start a new life free of gang ties. Minneapolis Police Sergeants Michael Green
(Sergeant Green) and Michael Carlson (Sergeant Carlson) interviewed Gatlin. Gatlin
told Sergeants Green and Carlson what he knew about criminal activities perpetrated
by the MC gang and other gangs, including detailed information relating to the
suspected MC gang-murder of Anthony Dawson (Dawson), a member of the Gangster
Disciples.

       In April 1998, based on information obtained from Gatlin, Arthur Hurd (Hurd)
was indicted and arrested for Dawson’s murder and a related attempted murder. In
May 1998, the Minnesota state court reduced Gatlin’s twelve and one-half year
sentence for armed robbery to three years probation in return for his vital assistance.
The sentencing judge ordered Gatlin to maintain contact with the prosecutor and
police, to cooperate fully in Hurd’s prosecution, and to testify when called to do so.

       While awaiting trial, Hurd was incarcerated in the Carver County Detention
Center. In June 1998, during a routine mail inspection, Carver County Sheriff
officials discovered Hurd had attempted to mail a transcript2 of Gatlin’s police
statement to Andrew Neal (Neal), a MC gang member, along with a handwritten note

      1
       The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
      2
          Presumably, Hurd received a copy of Gatlin’s statement from his attorney.

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stating, “Check this out. Something must be done about this.” Upon discovering the
transcript and note, Sergeant Reed Ashpole (Sergeant Ashpole) called Sergeant
Green, whose name was recorded as an interviewer in the transcript. Sergeant Green
had since been reassigned and was no longer actively working on the Dawson murder
case. However, Sergeant Green accepted the call, and the Sergeants discussed
whether the Hurd letter should be subpoenaed. Sergeant Green told Sergeant Ashpole
to hold the Hurd letter until Sergeant Green could explore the matter. Sergeant Green
immediately called Gary McGlennen (Prosecutor McGlennen), the Assistant
Hennepin County Attorney in charge of prosecuting the Hurd case, and asked for the
position of the Hennepin County Attorney’s Office on mailing the intercepted Hurd
letter. Prosecutor McGlennen told Sergeant Green he would find out and call
Sergeant Green back.

        Two days later, Sergeant Ashpole again called Sergeant Green to ask what
should be done with the intercepted Hurd letter. At this time, Prosecutor McGlennen
had not provided Sergeant Green with an answer to his inquiry. What Sergeant Green
told Sergeant Ashpole in the second telephone call is disputed. Sergeant Ashpole
testified Sergeant Green told him the police were not interested in subpoenaing the
Hurd letter and it could be mailed. Sergeant Green testified he told Sergeant Ashpole
that he had not received an answer from the Hennepin County Attorney’s Office; but
also advised that, if the Carver County Sheriff Department’s policies did not prohibit
mailing the Hurd letter, then Sergeant Green personally did not know how the Hurd
letter could lawfully be withheld from mailing. Prison authorities released the hold
on the Hurd letter, and the Hurd letter was mailed to Neal.3

      Upon discovering the Hurd letter had been mailed, Sergeant Green notified
Sergeant Carlson, who contacted Gatlin on July 8, 1998, and advised him of the


      3
      A copy of the Hurd letter, retained by the Carver County authorities, was
subsequently lost.

                                          3
mailing. Gatlin told Sergeant Carlson he already knew his police statement had been
mailed, because Gatlin had already spoken with Neal, a life-long friend of Gatlin's.
According to Gatlin, Neal had little influence in the MC gang. Gatlin informed
Sergeant Carlson that Neal said he was considering whether to circulate Gatlin’s
police statement to MC gang members. Gatlin also told Sergeant Carlson he did not
believe Neal would circulate Gatlin’s statement; but, if Neal did circulate the
statement, Gatlin’s life would be in danger. Gatlin did remind Sergeant Carlson of
Gatlin’s fear for his safety and the safety of his family.

      The following day, officers brought Gatlin to the police station, and Prosecutor
McGlennen moved the state court to alter the terms and conditions of Gatlin’s
probation to allow him to leave Minnesota until he was needed to testify. The court
granted the motion, and the prosecutor’s office made preliminary arrangements
through its Victim/Witness Protection Program to finance Gatlin’s relocation to
Arkansas. On the same day, the City’s police department advanced $350 to Gatlin
so he could stay in a Wisconsin hotel over the weekend until Gatlin obtained
relocation funds from the prosecutor’s office. Early the following week, the
Victim/Witness Protection Program issued Gatlin a $450 check, paid for an
automobile tune up, paid for a U-Haul trailer, and agreed to provide additional funds
to cover Gatlin’s first month’s rent and security deposit in Arkansas. Thereafter, City
and Hennepin County officials believed Gatlin had left Minnesota and relocated to
Arkansas.

       Less than a month later, on August 7, 1998, police found Gatlin’s body in a
Minneapolis alley. Gatlin had been “shot between 13 and 15 times with a .40 caliber
Smith and Wesson handgun.” State v. Henderson, 620 N.W.2d 688, 693 (Minn.
2001). It was widely believed Gatlin was “murdered because he provided the police
with information about the unsolved murder of Anthony Dawson.” Id. Following a
police investigation, three MC gang members were indicted for Gatlin’s murder. Id.
at 694. One indicted gang member was reportedly killed in Chicago before police

                                          4
could arrest him, and another indicted gang member pled guilty. A third indicted
gang member was convicted by a jury of murdering Gatlin. Id. at 693.

       Mrs. Gatlin filed this lawsuit, asserting both federal and state law claims
against Sergeant Green and the City. Mrs. Gatlin claimed Gatlin was deprived of his
federal constitutional and civil rights under 42 U.S.C. §§ 1981, 1983, and 1986
(2000). She also alleged numerous state law claims, including common-law claims
of negligence, breach of contract, and placement in mortal danger leading to death,
as well as statutory violations of the Minnesota Human Rights Act and the Minnesota
Government Data Practices Act. Sergeant Green and the City moved for summary
judgment. The district court granted summary judgment in favor of Sergeant Green
on the basis of qualified immunity and also granted summary judgment in favor of the
City on all federal claims. The district court declined to exercise supplemental
jurisdiction over the state law claims.

II.    DISCUSSION
       We review de novo a district court’s grant of summary judgment. Anderson
v. Larson, 327 F.3d 762, 767 (8th Cir. 2003). A de novo standard of review is also
applicable when a district court grants summary judgment on the basis of qualified
immunity. Omni Behavioral Health v. Miller, 285 F.3d 646, 650 (8th Cir. 2002). A
district court properly grants summary judgment when the record, viewed in the light
most favorable to the nonmoving party, “show[s] that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).

       A.    Claims Against Sergeant Green
       In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the Supreme Court
explained that “government officials performing discretionary functions, generally
are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person

                                          5
would have known.” To survive summary judgment based on the affirmative defense
of qualified immunity, a claimant must “(1) assert a violation of a constitutional right;
(2) demonstrate that the alleged right is clearly established; and (3) raise a genuine
issue of fact as to whether the official would have known that his alleged conduct
would have violated plaintiff’s clearly established right.” Omni Behavioral Health,
285 F.3d at 651 (quoting Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996)).

       Mrs. Gatlin’s federal constitutional claims against Sergeant Green satisfy none
of these requirements. Count Six alleges Sergeant Green’s actions “caused the
intentional deprivation of the constitutional and civil rights of Mr. Gatlin, in violation
of 42 U.S.C. § 1983, thereby causing Plaintiff to suffer damages as alleged herein.”
“Section 1983 does not confer substantive rights but merely provides a means to
vindicate rights conferred by the Constitution or laws of the United States.” Wilson
v. Spain, 209 F.3d 713, 715 (8th Cir. 2000). Section 1983 requires a claimant to
identify the particular right that has been violated. DuBose v. Kelly, 187 F.3d 999,
1004 (8th Cir. 1999).

       Mrs. Gatlin failed to identify any violation of a right protected under the
Constitution or federal law–an essential element of a section 1983 claim. See Isakson
v. First Nat’l Bank in Sioux Falls, 990 F.2d 1098, 1098 (8th Cir. 1993). Instead of
finding the pleading deficiency fatal, which it is, the district court liberally construed
the claim to allege a substantive due process claim in violation of the Fourteenth
Amendment. Even if Mrs. Gatlin had successfully pled a substantive due process
claim, nothing Sergeant Green did – or did not do – established either a state-created
danger or special relationship which imposed an affirmative duty upon Sergeant
Green to protect Gatlin from third-party harm. See DeShaney v. Winnebago County
Dep’t of Soc. Servs., 489 U.S. 189, 194-97 (1989) (explaining exceptions to the
general rule that the Due Process Clause does not impose a duty on states to protect
citizens against private violence). The purpose of the Due Process Clause is “to



                                            6
protect the people from the State, not to ensure that the State protected them from
each other.” Id. at 196.

        Gatlin made a courageous decision to leave the MC gang, to cooperate with
police, and to start a new life. By cooperating with police in exchange for a reduced
sentence and a chance to relocate, Gatlin knowingly assumed a considerable risk that
MC gang members would eventually discover his cooperation and seek to avenge
him. Gatlin was a twenty-five year MC gang veteran. He could evaluate better than
anyone the deadly risk inherent in cooperating with police. The actions of Sergeant
Green, fellow police officers, Prosecutor McGlennen, the victim/witness personnel,
and the state judiciary were undertaken with a solitary purpose–to minimize the risk
of a retaliatory gang “hit” against Gatlin by providing him with the legal and financial
means necessary to flee his would-be avengers. Mrs. Gatlin’s contention that more
protective measures could have been taken is unavailing based on the record. That
Gatlin would ultimately remain in or return to Minneapolis without informing
authorities was unknown to Sergeant Green. Gatlin miscalculated the grave risk of
harm he assumed. Tragically, his miscalculation cost him his life.

      In Count Seven, Mrs. Gatlin asserts Sergeant Green violated Gatlin’s equal
protection rights on the basis of race by treating Gatlin, an African American, less
favorably than Caucasian government witnesses. For any equal protection claim, the
threshold inquiry is “whether the [claimant] is similarly situated to others who
allegedly received preferential treatment.” Domina v. Van Pelt, 235 F.3d 1091, 1099
(8th Cir. 2000). We have recognized state actors “may . . . treat dissimilarly situated
people dissimilarly without running afoul of the protections afforded by the clause.”
Bogren v. Minnesota, 236 F.3d 399, 408 (8th Cir. 2000). The district court correctly
ruled Mrs. Gatlin failed to establish either a racial animus motivated Sergeant Green’s
actions relating to the release of the Hurd letter, or that Gatlin was similarly situated




                                           7
to witnesses in the Haaf murder case,4 another gang murder retaliation in the same
community. We agree with the district court this claim is insufficient as a matter of
law, and Sergeant Green is entitled to qualified immunity.

        B.    Claims Against the City
        Mrs. Gatlin also filed federal civil rights claims against the City. Municipal
liability under section 1983 is premised on the existence of two prerequisites: (1) a
policy, practice, or custom must be attributable to the City through actual or
constructive knowledge; and (2) the policy, practice, or custom must directly cause
constitutional injury. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Having reviewed the record, we find no evidence of a discriminatory law enforcement
policy, practice, or custom, nor do we find any evidence suggesting a direct causal
link between any policy, practice, or custom and Gatlin’s death.

       In Count Eight, Mrs. Gatlin alleged the City failed to properly train Sergeant
Green and other police officers, thereby encouraging a policy and custom of
persistent and widespread discriminatory practices. Under certain circumstances, a
municipality can be liable under section 1983 for constitutional violations resulting
from its failure to adequately train its employees. City of Canton v. Harris, 489 U.S.
378, 380 (1989); Larkin v. St. Louis Hous. Auth. Dev. Corp., 355 F.3d 1114, 1117
(8th Cir. 2004). “Only where a municipality’s failure to train its employees in a
relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants
can such a shortcoming be properly thought of as a city ‘policy or custom’ that is
actionable under § 1983.” City of Canton, 489 U.S. at 389 (citations omitted).



      4
       The late Jerome Haaf was a Minneapolis police officer who was murdered in
September 1992 by Vice Lord gang members “in retaliation for the beating of a blind
black man by Metropolitan Transit Commission police.” State v. Willis, 559 N.W.2d
693, 696 (Minn. 1997).


                                          8
        Mrs. Gatlin claims Sergeant Green and other City police officers received
inadequate training in witness and informant protection and in jail communications.
We agree with the district court that federal law does not, under these circumstances,
impose a duty on municipalities to implement policies in their police departments
pertaining to witness protection and prison administration. We also agree with the
district court’s conclusion that “no reasonable jury could decide a lack of training in
these areas resulted in Gatlin’s death.”

       In Count Nine, Mrs. Gatlin alleged the City failed to prevent wrongs in
violation of 42 U.S.C. § 1986, which creates an action for neglect to prevent
commission of a section 1985 claim. Mrs. Gatlin theorizes the City knew in advance
of Sergeant Green’s actions regarding the Hurd letter; the City knew Sergeant Green’s
actions were unlawful; and the City was in a position to have prevented Gatlin’s gang
murder. A section 1986 claim must be predicated upon a valid section 1985 claim.5
Jensen v. Henderson, 315 F.3d 854, 863 (8th Cir. 2002). The district court properly
ruled that Gatlin had failed to plead a violation of any right protected under section
1985. We have reviewed the record and find no evidence to support Mrs. Gatlin’s
theory that Sergeant Green and others conspired to violate Gatlin’s equal protection,
due process, or voting rights, or that the City had knowledge of any alleged
conspiracy to violate Gatlin’s rights. A claimant’s failure to plead the essential


      5
          Title 42 U.S.C. § 1985(3) provides in relevant part:

      If two or more persons in any State or Territory conspire . . . for the
      purpose of depriving, either directly or indirectly, any person or class of
      persons of the equal protection of the laws . . . [and] if one or more
      persons engaged therein do, or cause to be done, any act in furtherance
      of the object of such conspiracy, whereby another is injured in his
      person or property, or deprived of having and exercising any right or
      privilege of a citizen of the United States, the party so injured or
      deprived may have an action for the recovery of damages, occasioned by
      such injury or deprivation, against any one or more of the conspirators.
                                           9
elements of a claim is a fatal deficiency warranting dismissal of the claim. The
district court properly dismissed Mrs. Gatlin’s conspiracy claim.

       C.    Pendent State Claims
       Because the district court correctly dismissed Mrs. Gatlin’s federal claims, the
court properly exercised its discretion to decline to accept supplemental jurisdiction
over the pendent state claims. See 28 U.S.C. § 1367(c)(3).

III.   CONCLUSION
       We affirm the district court’s grant of summary judgment on the federal civil
rights claims. We also grant the appellees’ motion to strike evidence and arguments
offered by Mrs. Gatlin that were not presented below.
                       ______________________________




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