Kylie Di Donato v. Tim Panatera

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1692
K YLIE DI DONATO,
Plaintiff-Appellant,
v.
TIM PANATERA, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-cv-02737 — Virginia M. Kendall, Judge.
____________________
A RGUED S EPTEMBER 13, 2021 — DECIDED F EBRUARY 3, 2022
____________________
Before R IPPLE, R OVNER , and S CUDDER , Circuit Judges.
SCUDDER , Circuit Judge. Section 1983 lawsuits can raise
hard questions about whether misconduct constitutes state or
private action. While the wrongdoing alleged here is plenty
disturbing, we find the line drawing more straightforward.
Kylie DiDonato was seriously injured when she fell and hit
her head in Tim Panatera’s bathroom. DiDonato later invoked
§ 1983 and alleged that Panatera—a City of Chicago para-
medic—shirked his responsibility to treat her and instead saw

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2 No. 20-1692
her weakened state as an opportunity to sexually assault her.
She contended that this inaction by someone acting under
“color of state law” violated her rights under the U.S. Consti-
tution. The district court recognized the gravity of Panatera’s
alleged misconduct, but rightly concluded that DiDonato
failed to plead facts showing that Panatera was acting in his
capacity as a City paramedic for purposes of a § 1983 claim.
We affirm.
I
Kylie DiDonato slipped, fell, and seriously injured her
head on a bathtub in Tim Panatera’s home in March 2018. Pan-
atera found DiDonato disoriented and badly bleeding on the
bathroom floor. But rather than calling 911, driving DiDonato
to the hospital himself, or drawing upon his training as a par-
amedic to treat her, Panatera allegedly did no more than rinse
the blood from DiDonato’s head and wrap it in a towel. From
there, DiDonato contends, Panatera moved her to his bed and
sexually assaulted her as she drifted in and out of conscious-
ness. When DiDonato regained consciousness the next after-
noon, Panatera drove her home and then reported to work.
With the help of a friend, DiDonato made her way to an
emergency room later that day. The ER team sutured her head
wounds and informed her that she had sustained head
trauma and a concussion.
A few months later DiDonato filed this lawsuit and, in an
amended complaint, added a § 1983 claim against Panatera.
She alleged that Panatera, as a licensed paramedic, violated
her rights under the Fourteenth Amendment’s Due Process
Clause by failing to provide medical care after her fall. She

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No. 20-1692 3
also brought a host of state law claims, including for assault,
battery, and negligence.
The district court dismissed DiDonato’s § 1983 claim for
two interrelated reasons. First, the court explained that, under
the Supreme Court’s decision in DeShaney v. Winnebago
County Department of Social Services and related cases, Di-
Donato had to allege that a state actor failed to adhere to a
duty to protect and care for a person with whom the state had
a “special relationship.” 489 U.S. 189, 200–02 (1989). The clas-
sic example is a prisoner: the state owes those in its custody
physical protection and medical care. See, e.g., Estelle v. Gam-
ble, 429 U.S. 97, 103–04 (1976). But, the district court contin-
ued, states (and municipalities like the City of Chicago here)
are not in a “special relationship” with all residents and thus
do not shoulder a constitutional duty to provide medical care
to anyone needing help. Applying those principles led the dis-
trict court to conclude that DiDonato failed to allege facts nec-
essary to show the City—through one of its off-duty para-
medics—had a constitutional obligation to protect and care
for her following her fall. What was lacking, the district court
emphasized, was any allegation that DiDonato, as a func-
tional matter, was ever in the City’s care or custody.
Second, and relatedly, the district court concluded that Di-
Donato failed to plausibly allege that Panatera acted “under
color of state law” on the night in question. Section 1983, the
court explained, does not cover disputes between private cit-
izens, and an individual’s employment by the state does not
render any and all action by that person state action. To be
sure, the district court acknowledged that some steps Pan-
atera took may have amounted to medical care, such as wrap-
ping DiDonato’s head in a towel. But the district court

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4 No. 20-1692
determined that the necessary state action inquiry could not
proceed at that level of generality. Instead, the analysis
needed to account for the context in which DiDonato’s need
for help and medical care arose—an entirely private interac-
tion between Panatera and DiDonato within his home. The al-
leged facts, in short, did not permit a plausible finding that
Panatera failed to perform any official duty as a licensed par-
amedic.
Having dismissed DiDonato’s § 1983 claim, the district
court then declined to exercise supplemental jurisdiction over
the remaining state law claims.
DiDonato now appeals.
II
A
A plaintiff may hold a public official personally liable for
misconduct under § 1983 upon satisfying two “essential ele-
ments.” Yang v. Hardin, 37 F.3d 282, 284 (7th Cir. 1994). First,
the challenged conduct must have been “committed by a per-
son acting under color of state law”—a requirement coming
directly from § 1983’s text. Id. Second, the state actor’s conduct
must have deprived the plaintiff of “rights, privileges, or im-
munities secured by the Constitution” or federal law. 42
U.S.C. § 1983; see also Wyatt v. Cole, 504 U.S. 158, 161 (1992)
(“The purpose of § 1983 is to deter state actors from using the
badge of their authority to deprive individuals of their feder-
ally guaranteed rights and to provide relief to victims if such
deterrence fails.”).
The traditional understanding of what it means for an of-
ficial to act “under color of state law” encompasses miscon-
duct by officials exercising power “possessed by virtue of

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No. 20-1692 5
state law and made possible only because the wrongdoer is
clothed with the authority of state law.” West v. Atkins, 487
U.S. 42, 49 (1988) (citation omitted). Indeed, it is “firmly estab-
lished” that a § 1983 defendant acts “under color of state law
when he abuses the position given to him by the State.” Id. at
49–50.
But it is equally well settled that a “mere assertion that one
is a state officer does not necessarily mean that one acts under
color of state law.” Gibson v. City of Chicago, 910 F.2d 1510,
1516 (7th Cir. 1990); see also Wilson v. Price, 624 F.3d 389, 392
(7th Cir. 2010) (“Not every action by a state official or em-
ployee is to be deemed as occurring ‘under color’ of state
law.”) (citation omitted). Nor is it dispositive whether the
state employee was on- or off-duty at the time the incident
occurred. See, e.g., Briscoe v. LaHue, 663 F.2d 713, 721 n.4 (7th
Cir. 1981) (“[A]cts committed by a police officer even while on
duty and in uniform are not under color of state law unless
they are in some way ‘related to the performance of police du-
ties.’”) (citation omitted); see also Pickrel v. City of Springfield,
45 F.3d 1115, 1118–19 (7th Cir. 1995) (collecting cases conclud-
ing that off-duty officers were nonetheless acting under color
of state law in particular circumstances). Whether an individ-
ual is acting under color of state law “turn[s] largely on the
nature of the specific acts” the official performed, “rather than
on merely whether he was actively assigned at the moment”
to the performance of his official duties. Pickrel, 45 F.3d at
1118.
Our case law illustrates the necessity of a rigorous fact-
bound inquiry. Take, for example, our decision in Pickrel.
Crystal Pickrel alleged that an off-duty officer acted under
color of state law by informing her she was under arrest,

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6 No. 20-1692
throwing her to the ground, and putting her in handcuffs. See
id. at 1117. We concluded Pickrel had pled enough to survive
a motion to dismiss based on her allegations that the officer
was wearing his police uniform, complete with badge and
gun, and driving his marked squad car at the time of their en-
counter. See id. at 1116–18 (emphasizing that the uniform and
badge were both “signs of state authority,” the gun enabled
the officer to “enforce his authority,” and the squad car “ad-
vertis[ed] the presence of a police officer” to those present).
We adhered to similar reasoning in Lopez v. Vanderwater,
620 F.2d 1229 (7th Cir. 1980). Flor Lopez brought a § 1983 suit
against a state court judge who detained him at gunpoint, in-
itiated charges for petty theft, convicted him on an allegedly
forged guilty plea, and sentenced him to eight months in jail.
See id. at 1231–33. Though then-Judge Vanderwater over-
stepped the bounds of his state-granted authority, we con-
cluded his actions were taken under color of state law. “Action
taken by a state official who is cloaked with official power and
who purports to be acting under color of official right is state
action,” and the judge was only able to take the constitution-
ally offensive actions he did “because he was cloaked with the
office of the judge.” Id. at 1236–37.
Where, on the other hand, a plaintiff does not allege that a
public official’s actions involved some inappropriate invoca-
tion or exercise of state authority, there is no § 1983 claim.
And that is so, our cases demonstrate, even if the alleged con-
duct resembles job-related tasks the official performs at the
state’s behest. We saw this in Barnes v. City of Centralia. 943
F.3d 826 (7th Cir. 2019). A police officer reported credible
threats made against him and his family to a state prosecutor,
and the prosecutor decided to press charges against the

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No. 20-1692 7
individual involved. See id. at 829–30. After the charges were
dropped, the individual brought a § 1983 case against the of-
ficer. We explained that although the interaction that led to
the plaintiff’s arrest “occurred during [the defendant’s] em-
ployment” as a police officer, the officer acted as a private cit-
izen when he lodged his complaint with the prosecutor, “not
as an investigating officer.” Id. at 831. His report was therefore
“a private act that did not involve any exercise of state author-
ity.” Id.
Similarly, in Hughes v. Meyer, we concluded that a Wiscon-
sin game warden who reported threatening conduct to law
enforcement was “functionally equivalent to . . . any private
citizen” making a police report—and, critically, his “status as
a DNR official did not clothe him with greater authority” in
that act “than any other citizen would possess.” 880 F.2d 967,
972 (7th Cir. 1989).
Considered together, these cases supply the principles
that resolve this appeal. To plead that a defendant acted un-
der color of state law, a § 1983 plaintiff must allege that a de-
fendant’s invocation of state authority in one way or another
facilitated or enabled the alleged misconduct. That the de-
fendant is a state employee is not enough. “[S]tate officials or
employees who act without the cloth of state authority do not
subject themselves to § 1983 suits.” Id. at 971; see also, e.g., La-
tuszkin v. City of Chicago, 250 F.3d 502, 506 (7th Cir. 2001) (af-
firming dismissal of a § 1983 claim brought against an intoxi-
cated off-duty police officer who struck and killed a pedes-
trian in his private vehicle because the plaintiff did not allege
that the officer was “engaged in police activity, that he dis-
played any police power, or that he possessed any indicia of
his office at the time of the accident”).

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8 No. 20-1692
B
The district court applied these exact principles and deter-
mined that DiDonato failed to allege that Panatera acted un-
der color of state law. We reach the same conclusion after tak-
ing our own independent look at the allegations in Di-
Donato’s second amended complaint. See, e.g., Bilek v. Fed. Ins.
Co., 8 F.4th 581, 586 (7th Cir. 2021) (applying de novo review
to a Rule 12(b)(6) dismissal).
DiDonato alleged Panatera was acting “[i]n performance
of his official duties” as a trained paramedic when he “picked
[her] off the floor, placed her in his bathtub,” “rinsed blood
from her head and body” and “wrapped [her] head with a
non-sterile bathroom towel.” But what the rest of the com-
plaint makes clear is fatal to DiDonato’s § 1983 claim: the
events in question all occurred in the privacy of Panatera’s
home and, more importantly, in the context of DiDonato and
Panatera’s personal relationship.
Panatera’s alleged attempts to slow or stem DiDonato’s
bleeding certainly relate to the duties he performs as a para-
medic—no doubt he routinely treats head and other superfi-
cial wounds while responding to 911 calls. And Panatera was
more able to respond to DiDonato’s injuries than someone
without medical training. His professional background leaves
more room for criticism of the adequacy of Panatera’s re-
sponse and the wisdom of his decision making, and perhaps
leaves him exposed to liability for negligence under state law.
But the mere overlap between Panatera’s routine job re-
sponsibilities and the conduct DiDonato complained of does
not mean that Panatera acted under color of state law when
he decided not to take DiDonato to the emergency room or to

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No. 20-1692 9
provide other medical help. What is missing from DiDonato’s
complaint is any plausible allegation either that Panatera’s ac-
tion or inaction was a misuse of the City’s power or that his
wrongdoing was made possible because he was “clothed with
the authority of state law.” Barnes, 943 F.3d at 831 (citation
omitted). Panatera was not dispatched to the scene to tend to
DiDonato’s injuries in his role as a City paramedic. Nor did
he invoke his authority to interfere with someone else’s at-
tempt to treat her wounds. Common decency, not his employ-
ment status, demanded Panatera take some steps to stop Di-
Donato’s bleeding. And it was Panatera’s alleged self-serving
opportunism, not an exercise of state authority, that pre-
vented DiDonato from leaving his home and seeking further
care.
DiDonato urges a different conclusion by focusing on a
particular detail alleged in her complaint—that Panatera was
“on call” as a paramedic on March 19 and took at least one
phone call from a work colleague before he drove her home.
But that contention, which we accept as true, does not change
our analysis. DiDonato’s complaint still lacks any allegation
that Panatera’s alleged misconduct toward her was facilitated
by a misuse of state power or involved an invocation of state
authority. See, e.g., Luce v. Town of Campbell, 872 F.3d 512, 514
(7th Cir. 2017) (concluding that a public official who made de-
famatory posts about the plaintiff and who “did some of the
dirty work while on duty” using office equipment did not act
under color of state law).
DiDonato’s complaint describes behavior that, while ab-
horrent, was “wholly unconnected” to Panatera’s employ-
ment. First Midwest Bank v. City of Chicago, 988 F.3d 978, 987
(7th Cir. 2021). DiDonato and Panatera did not encounter each

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10 No. 20-1692
other as paramedic and patient, but as private persons to-
gether in Panatera’s home. Panatera’s “actions were those of
a private citizen in the course of a purely private social inter-
action.” Id. Any action or inaction was not under color of state
law.
Because we agree with the district court that DiDonato
failed to allege that Panatera acted under color of state law,
we need not immerse ourselves in any aspect of the court’s
reasoning under DeShaney. We instead stop on the state action
point and AFFIRM the dismissal of DiDonato’s § 1983 claim.

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