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

No. 02-2363
CHAUNCE WINDLE,
                                             Plaintiff-Appellant,
                                v.

CITY OF MARION, INDIANA, a municipal corporation,
CITY OF MARION, INDIANA, POLICE DEPARTMENT,
and ROB RAYMER, SERGEANT, in his official and
individual capacity,
                                  Defendants-Appellees.
                     ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, Fort Wayne Division.
             No. 1:00 CV 0468—William C. Lee, Judge.
                         ____________
    ARGUED JANUARY 8, 2003—DECIDED MARCH 3, 2003
                    ____________


 Before FLAUM, Chief Judge, and EASTERBROOK and
DIANE P. WOOD, Circuit Judges.
  FLAUM, Chief Judge. Chaunce Windle (“Chaunce”), a
minor student, was sexually molested by Carol Rigsbee
(“Rigsbee”), then a middle school music teacher in Marion,
Indiana. After the ongoing and inappropriate relation-
ship between Rigsbee and Chaunce came to light, Rigsbee
was prosecuted for child molestation. The case before us
today is about the Marion Police Department’s response to
their knowledge of this improper relationship. Chaunce
has brought this 42 U.S.C. § 1983 claim against Sergeant
2                                            No. 02-2363

Rob Raymer and the City of Marion for allegedly violating
her due process rights by not intervening to protect her
from the molestation that they were aware was occurring.
The district court granted the defendants’ motion for
summary judgment. For the reasons stated herein, we
affirm.


                    I. Background
  Sometime in 1997 certain officers at the Marion Police
Department began intercepting cellular phone conversa-
tions between Chaunce and Rigsbee on their scanners.
These conversations evidenced an ongoing sexual relation-
ship between Chaunce and Rigsbee, who had come to
know Chaunce both through school and through private
music lessons.
  At first the officers who intercepted the calls thought
they were listening to conversations between two lesbian
lovers about their relationship. A possible implication
from the record and from Chaunce’s allegations is that
the officers continued to listen to the conversations for
the sake of personal entertainment. In late September or
early October of 1997, Sergeant Raymer was informed
by the officers of these conversations. Raymer personally
intercepted several of the conversations over the next
two months. Raymer became concerned when the content
of the conversations revealed to him that the participants
were an older female who was a middle school teacher
and a younger female who was a student. At some point,
the officers, including Raymer, became aware of the fact
that the younger female’s first name was Chaunce.
  One might anticipate that a police officer armed with
this information would have aggressively investigated
and intervened in an attempt to protect the well-being
of the minor female. Indeed, given the uncommonness
of the name Chaunce and the fact that some of the officers
No. 02-2363                                              3

in the department knew her father and were aware of the
existence of a Chaunce Windle, it appears this case would
not have required a great deal of further investigative
effort. Nonetheless, Raymer took no intervening action
for about two months. Only when Raymer intercepted
a phone conversation on November 24, 1997, that led him
to believe that Chaunce was in danger of doing some-
thing drastic and was possibly suicidal did he decide to
act. The next day he went to Kent Cocking, a school coun-
selor at Tucker Middle School. Cocking and Raymer then
spoke to Chaunce’s father, Rich Windle. Raymer then
spoke with Rigsbee, who admitted to molesting Chaunce.
On December 2, 1997, Raymer submitted an incident
report. This was the first written report filed regarding
these events. Rigsbee’s prosecution followed.
  Chaunce brought this § 1983 suit claiming that Ray-
mer, and the City of Marion, violated her due process
rights in failing to protect her from the acts of Rigsbee.
The district court held that Chaunce’s allegations do not
support a claim under § 1983 and granted the defendants’
motion for summary judgment. Chaunce appeals.


                     II. Discussion
  We review a district court’s grant of summary judgment
de novo. Dykema v. Skoumal, 261 F.3d 701, 704 (7th Cir.
2001). Summary judgment is proper where there is no
genuine issue as to any material fact and the moving par-
ty is entitled to a judgment as a matter of law. Tesch v.
County of Green Lake, 157 F.3d 465, 471 (7th Cir. 1998).
Therefore we must examine Chaunce’s allegations to see
whether the facts, construed in the light most favorable
to her, establish an actionable claim under § 1983. To
succeed on such a claim a plaintiff must show that: (1) the
defendant deprived the plaintiff of a right secured by
the Constitution and laws of the United States, and (2)
4                                             No. 02-2363

the defendant acted under color of state law. Reed v. City
of Chicago, 77 F.3d 1049, 1051 (7th Cir. 1996). The se-
cond requirement is not at issue in this case.
  As to the first requirement, Chaunce claims that Ray-
mer’s inaction violated her due process rights. Generally,
failure to protect does not rise to the level of a consti-
tutional violation. See DeShaney v. Winnebago County
Dept. of Soc. Serv., 489 U.S. 189 (1989). Recognizing this,
Chaunce tries to fit her claim against Raymer into the
“state-created danger exception.” This approach arises
out of the Supreme Court’s opinion in DeShaney. While
the Court in DeShaney held that a failure to protect was
not a constitutional violation, it also suggested that a
different outcome might result where the state has
created or exacerbated the danger from which it failed to
protect the victim. The Court stated: “While the State
may have been aware of the dangers that Joshua faced
in the free world, it played no part in their creation, nor
did it do anything to render him any more vulnerable to
them.” Id. at 201. Drawing on this language the lower
courts have fashioned the “state-created danger excep-
tion.” See, e.g., Reed v. Gardner, 986 F.2d 1122, 1125 (7th
Cir. 1993); Gregory v. City of Rogers, 974 F.2d 1006, 1010
(8th Cir. 1992).
  The facts in Monfils v. Taylor, 165 F.3d 511 (7th Cir.
1998), provide an example of the kind of behavior that
falls under this exception. Thomas Monfils provided an
anonymous tip to the police about the criminal activity
of one of his co-workers. Monfils requested that the tape
of his tip not be released because he feared violent re-
taliation. He was assured that it would not be released.
Still the police released the tape to the accused co-worker
who recognized Monfils’s voice. Monfils was subsequently
murdered by his co-workers. This court found an action-
able claim under the state-created danger exception be-
cause the state placed Monfils in an increased position
No. 02-2363                                                      5

of danger and failed to protect him from that danger.
Monfils, 165 F.3d at 517.
  Appellant tries to liken the behavior of Raymer and the
Marion Police in this case to the behavior that created the
danger in Monfils. We find this argument unpersuasive.
Monfils, along with our other cases dealing with this is-
sue, suggest that the key question in determining wheth-
er state behavior violated the victim’s constitutional
rights is: “What actions did [the state actor] affirmatively
take, and what dangers would [the victim] otherwise
have faced?” Id. (quoting Wallace v. Adkins, 115 F.3d
427, 430 (7th Cir. 1997)); see also Dykema, 261 F.3d at 706.
In Monfils we looked at the state’s affirmative action of
releasing the tape and the fact that, had the state not
released the tape, Monfils would have faced consider-
ably less danger. Therefore, the state enhanced the dan-
ger and by failing to protect Monfils from that danger, it
violated his due process rights. With this analysis in
mind Appellant attempts to show that Raymer took an
affirmative action, even though he plainly did not.1 She
characterizes Raymer’s inaction as an affirmative choice,
using phrases like “affirmatively choosing to stand idle”
and “affirmatively chose not to take action” throughout
her brief. We find this line of argument lacking and
not in accord with our understanding of “taking an ac-
tion affirmatively.”2


1
  In the text we discuss why the actions Appellant argues are
affirmative are not. While it is true that the state did take some
affirmative actions like continuing to listen to conversations, or
in the end finally assisting the victim, Appellant wisely does not
argue that these could possibly have increased her level of danger.
2
   The term “affirmative act” suggests a willful deviation from
the status quo. Thus an affirmative act will have as a counter-
point a non-affirmative position. Typically, this involves inac-
tion. Here Appellant posits a situation where not acting was
                                                   (continued...)
6                                                  No. 02-2363

  Even if one were to construe the conduct of the officers
as some sort of affirmative action, we must then ask
what new danger would have otherwise befallen the vic-
tim. If Raymer, under Appellant’s theory, had not taken
the so-called affirmative action of doing nothing and had
done something, we have no way of knowing what would
have occurred. Indeed, the police might have failed at
protecting Chaunce. We therefore have no assurance
that the danger would not have existed in the absence of
the so-called affirmative action of doing nothing.
  In focusing exclusively on whether the police acted
affirmatively, Appellant fails to grasp that she has to
establish that the police failed to protect her from a dan-
ger they created or made worse. She confuses the inert
failure to protect with the proactive creation or exacer-
bation of danger. In this case the police did nothing to
create a danger, nor did they do anything to make
worse any danger Chaunce already faced.3 If the police
had never overheard the conversation, and had never been
involved at all, the danger faced by Chaunce would likely
have been the same or perhaps worse. The police did not



2
   (...continued)
an affirmative act and therefore the police were faced with the
choice between affirmatively choosing to do nothing and affirma-
tively doing something. Under this scenario there is no non-
affirmative position for the police to have taken. This is simply
illogical.
3
  In her reply brief and in rebuttal at oral arguments, Appellant
mentions that certain officers in the Marion Police Department
who were concerned about the abuse of Chaunce were dissuaded
from protecting her by Raymer and others. This argument is
mentioned only in passing in two paragraphs of Appellant’s re-
ply brief. As such we find the argument waived and do not ad-
dress the question of whether a constitutional violation would
exist where one member of a law enforcement unit discouraged
or prevented another from protecting a victim.
No. 02-2363                                                7

place Chaunce in the custody of Rigsbee, and they did
nothing to assist Rigsbee. They just failed to intervene
until Raymer thought that matters had reached a crisis.
This case is indistinguishable from DeShaney where the
Supreme Court concluded that no constitutional viola-
tion had occurred when state actors who may have been
aware that a child was being abused by his father did
nothing to protect the child. Deshaney, 489 U.S. at 201.
  Appellant attempts to salvage her constitutional claims
by alleging that the police violated their duty under an
Indiana statute. With nothing more to go on than a
state statute, she cannot succeed in saving her claim. State
law violations do not form the basis for imposing § 1983
liability. Estate of Novack v. County of Wood, 226 F.3d
525, 531-32 (7th Cir. 2000); see also White v. Olig, 56 F.3d
817, 820 (7th Cir. 1995) (“It is therefore a truism, reiter-
ated many times by this court, that mere allegations of
state law infraction are insufficient to support a Section
1983 claim.”).
  Finally, we note that this opinion addresses liability
when Raymer and the Marion Police are the relevant state
actors. Appellant has not included in this suit a claim
against Rigsbee, who as a teacher could also be consid-
ered a state actor. Rigsbee’s status as a potential state
actor does however raise one important question regard-
ing the duties of the Marion Police. In certain cases liabil-
ity under § 1983 may exist when one state actor fails
to intervene to prevent another state actor from causing
direct harm to a victim. Yang v. Hardin, 37 F.3d 282,
285 (7th Cir. 1994). Just such a case can exist when one
law enforcement officer has reason to know “that any
constitutional violation has been committed by [another]
law enforcement official; and the officer had a realistic
opportunity to intervene to prevent the harm from occur-
ring.” Id. Liability under this theory is certainly not lim-
ited to the context of a police officer’s relationship with
other officers in her department; but on the other hand
8                                            No. 02-2363

the rule is not so broad as to place a responsibility on
every government employee to intervene in the acts of
all other government employees. In the instant case
there appears no particular governmental connection be-
tween Rigsbee and the Marion Police. Appellant has not
alleged that the Marion Police have any authority over
teachers that they do not have over any other citizen
of Marion or that they share any joint responsibility
with school officials. To be sure, we are not today decid-
ing a case where an employee of one government entity
failed to intervene to prevent harm by an employee of
another entity where the two entities shared, in practice,
some relationship. Against the background of this case,
Yang does not apply.
  As for the claim of municipal liability, a plaintiff
must prove that the individual officers are liable on the
underlying substantive claim in order to recover dam-
ages from a municipality under either a failure to train
or failure to implement theory. Tesch v. County of Green
Lake, 157 F.3d 465, 477 (7th Cir. 1998). Having deter-
mined that Chaunce did not suffer a constitutional vio-
lation from the inaction of Raymer or any other police
officer in Marion, we must conclude that the City of
Marion cannot be held liable for a failure to train or a
failure to institute a policy.


                    III. Conclusion
  As regrettable as the delayed reaction of Sergeant
Raymer and the Marion Police Department may have
been, it did not violate any constitutional rights of
Chaunce Windle. That being the case the district court
appropriately granted summary judgment in favor of
Raymer and the City of Marion in this § 1983 suit. The
judgment of the district court is AFFIRMED.
No. 02-2363                                         9

A true Copy:
      Teste:

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




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