Souza v. Pina

                United States Court of Appeals
                            United States Court of Appeals
                    For the First Circuit
                                For the First Circuit
                                         

No. 94-2079

                         DIANE SOUZA,

                     Plaintiff, Appellee,

                              v.

                     RONALD PINA, ET AL.,

                   Defendants, Appellants.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]
                                                                  

                                         

                            Before

                    Torruella, Chief Judge,
                                                      
                Bownes, Senior Circuit Judge,
                                                        
                  and Stahl, Circuit Judge.
                                                      

                                         

William  J. Meade,  Assistant Attorney  General, with  whom  Scott
                                                                              
Harshbarger, Attorney General, was on brief for appellants.
                   
Kenneth C. Ponte for appellee.
                            

                                         

                        April 28, 1995
                                         


          STAHL, Circuit Judge.   In  this 42  U.S.C.    1983
                      STAHL, Circuit Judge.
                                          

proceeding,   defendants-appellants,   the  former   district

attorney for Bristol County, Massachusetts, and three members

of  his  staff (collectively,  "appellants"),  appeal from  a

denial of  their motion  to dismiss  on grounds  of qualified

immunity.  We now reverse.

                              I.
                                          I.
                                            

A.  Standard of Review
                                  

          We  review a motion to dismiss de novo.  See, e.g.,
                                                                        

Armstrong v. Jefferson  Smurfit Corp.,  30 F.3d  11, 11  (1st
                                                 

Cir.  1994).  We accept  the allegations of  the complaint as

true  and, if the allegations are sufficient to state a claim

for which  relief can be granted, then the denial of a motion

to dismiss will be upheld.  Id.   
                                           

B.  Factual Allegations and Procedural History
                                                          

          Plaintiff-appellee Diane Souza,  mother of  Anthony

R.  Degrazia,   brought  this  action   individually  and  as

administrator of Degrazia's  estate.  The  complaint contains

the  following factual  allegations.   During 1988  and 1989,

nine  young   women  were   murdered  in  the   New  Bedford,

Massachusetts  area  in what  became  known  as the  "highway

killings  case."   The  Bristol  County  district attorney,  

appellant  Ronald A.  Pina,  appointed himself  as the  chief

prosecutor  and investigator in the case.  Pina and his press

secretary, appellant James  Martin, conducted numerous  press

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conferences and  other media interviews in  which they caused

or encouraged  the  media to  link  Degrazia to  the  highway

killings case.  The complaint alleges that appellants knew or

should have known that Degrazia would take his own life  as a

result of these statements to the  media.  On July 27,  1991,

Degrazia committed suicide.

          On May 26, 1993,  Souza commenced this action under

42  U.S.C.     19831  against  Pina,  Martin, and  two  other

members  of  Pina's  staff,2  alleging  that   they  violated

Degrazia's constitutional rights under the Fifth, Eighth, and

Fourteenth Amendments by  denying him due process as  well as

his   right   to  be   free   from   "arbitrary  and   brutal

punishment."3   Appellants  moved  to  dismiss, arguing  that

Souza had failed to state a  claim upon which relief could be

granted  and  that  appellants  were  entitled  to  qualified

immunity.    By  margin  orders, the  district  court  denied

appellants'   motion  and   their  subsequent   requests  for

reconsiderationand forwritten findings.4 Thisappeal followed.

                    
                                

1.  Souza also sought recovery under pendent state claims.

2.  The   other   defendants-appellants   are  former   first
assistant district  attorney Raymond  Veary and  former chief
investigator Robert St. Jean.

3.  At oral  argument,  Souza  waived  consideration  of  her
claims arising under the Fifth and Eighth Amendments.

4.  Although "findings  of facts  and conclusions of  law are
unnecessary  on decisions of motions under  Rule 12," Fed. R.
Civ. P. 52(a),  as we have observed before,  some explication
of  the trial court's reasoning  will often prove valuable to

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                             II.
                                         II.
                                            

A.  Jurisdiction
                            

          Our  jurisdiction  does   not  normally   encompass

appeals from  the denial  of  a motion  to dismiss.   See  28
                                                                     

U.S.C.    1291  ("[t]he courts  of appeals  . . .  shall have

jurisdiction  of  appeals from  all  final  decisions of  the

district  courts").   However,  the  denial  of a  government

official's "dispositive pretrial motion premised on qualified

immunity  falls within  a  narrow exception  to the  finality

principle   and   is,  therefore,   immediately  appealable."

Buenrostro  v.  Collazo, 973  F.2d  39,  41  (1st Cir.  1992)
                                   

(citing Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985)). 
                                       

B.  Qualified Immunity
                                  

          The analytical  path we  traverse is  well defined.

Qualified   immunity   shields  state   officials  exercising

discretionary authority from civil damages "insofar  as their

conduct  does not  violate  clearly established  statutory or

constitutional rights of which a reasonable person would have

been aware."  Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
                                              

The  "clearly  established" inquiry  necessarily incorporates

"whether  the  plaintiff  has   asserted  a  violation  of  a

constitutional right at  all."  Siegert  v. Gilley, 500  U.S.
                                                              

226,   232  (1991).     The   right  must   be  stated   with

                    
                                

both  the  litigants and  to  the  reviewing  court.   Roque-
                                                                         
Rodriguez v. Lema Moya, 926 F.2d 103, 106 (1st Cir. 1991).
                                  

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                                          4


particularity.  See, e.g.,  Frazier v. Bailey, 957  F.2d 920,
                                                         

930 (1st Cir.  1992).   Otherwise, as the  Supreme Court  has

observed,  the  generality  at  which  courts  identify   the

"clearly established" legal  right threatens to  "convert the

rule of  qualified immunity . .  .  into a  rule of virtually

unqualified  liability   simply  by  alleging   violation  of

extremely abstract rights."   Anderson v. Creighton, 483 U.S.
                                                               

635, 639 (1987).  For example, the Court noted, "the right of

due  process of law is  quite clearly established  by the Due

Process Clause, and thus there is a sense in which any action

that  violates that Clause (no  matter how unclear  it may be

that a particular  action is a violation)  violates a clearly

established  right."    Id.    Such  a  level  of generality,
                                       

however,  would defeat the  objective reasonableness required

by  Harlow.     Id.     Accordingly,  a  right   is  "clearly
                               

established" if  its contours are "sufficiently  clear that a

reasonable official  would understand  that what he  is doing

violates that right."  Id. at 640.  Additionally, implicit in
                                      

the Harlow formulation quoted  above is a temporal dimension:
                      

the right must have  been clearly established at the  time of

the defendants' alleged improper actions, and a court may not

find  that the  right  was  established  through the  use  of

hindsight.  See, e.g., Bailey, 957 F.2d at 929.
                                         

          The qualified  immunity doctrine enables  courts to

weed  out unfounded  suits.   See Siegert,  500 U.S.  at 232.
                                                     

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                                          5


Thus,  courts advance  the central  purpose of  the doctrine,

which is to protect state officials from "`undue interference

with their  duties and from potentially  disabling threats of

liability.'"  Elder v. Holloway, 114 S. Ct. 1019, 1022 (1994)
                                           

(quoting Harlow, 457 U.S. at  806).  Qualified immunity plays
                           

a critical role  in striking the "balance  . . . between  the

interests in vindication  of citizens' constitutional  rights

and  in  public  officials'  effective performance  of  their

duties."  Davis v. Scherer, 468 U.S. 183, 195 (1984).    
                                      

C.  Substantive Due Process
                                       

          What we have delineated frames the remainder of our

inquiry:  we  must determine whether Souza  has alleged, with

sufficient particularity, that appellants' allegedly improper

conduct violated a clearly established  constitutional right.

We conclude that she has not.  

          In  Count I  of her  complaint, Souza  alleges that

appellants' repeated statements to the press implicating  her

son  violated his "right to be free from arbitrary and brutal

punishment,  and of  his  right not  to  be deprived  of  due

process  of law."   At  oral  argument, Souza's  counsel made

clear that the  thrust of the complaint  was that appellants'

actions  violated  Degrazia's   rights  to  substantive   due

process.5   Specifically, Souza  claims that appellants "knew

                    
                                

5.  Although at oral argument counsel waived consideration of
recovery under procedural due process, because Souza's  brief
discusses  violation of that right,  we pause to address that

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                                          6


or should have known that Degrazia would take his own life as

a result" of their statements to the press.

          The Fourteenth Amendment  provides that "[n]o State

shall . . . deprive any person of life, liberty, or property,

without due process  of law."  U.S.  Const. amend. XIV.   The

substantive  component   of  due  process   protects  against

"certain government actions regardless of the fairness of the

procedures used to implement them."  Daniels v. Williams, 474
                                                                    

U.S. 327, 331 (1986).    Souza  points  to  no caselaw  under

which appellants'  actions would constitute a  violation of a

clearly   established  right.     Indeed,  Souza's  complaint

presents no  theory as  to how  the alleged  conduct violated

Degrazia's rights,6  and her brief to this  court offers only

minimal argumentation on the  point.  Two broad possibilities

                    
                                

theory.  The first step in assessing a procedural due process
claim is to  determine whether state action has  deprived the
individual  of  a protected  interest  --  life, liberty,  or
property.   See, e.g., Rumford Pharmacy, Inc. v. City of East
                                                                         
Providence,  970  F.2d  996,  999 (1st  Cir.  1992)  (quoting
                      
Zinermon v. Burch, 494 U.S. 113, 125-26 (1990)).  Souza makes
                             
clear that  the protected interest in this case is Degrazia's
life.   However, as our discussion  regarding substantive due
process establishes, no state  action led to the deprivation,
and therefore, her procedural due process claims fails.

6.  We limit our  analysis to the alleged deprivation of life
by  appellants.   We  note that  Souza  did not  specifically
allege a  liberty-deprivation claim under Paul  v. Davis, 424
                                                                    
U.S. 693 (1976) (state  action damaging reputation plus other
tangible  loss  may   constitute  cognizable  deprivation  of
liberty interest) and its progeny.  However, even if she had,
because the complaint contains no allegation that appellants'
statements to  the press  were false,  a damage-to-reputation
claim must  fail.  See, e.g., Powers v. Coe, 728 F.2d 97, 105
                                                       
(2d Cir. 1984).  

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                                          7


exist,  both  implicated   by  Souza's  complaint:     first,

appellants violated Degrazia's rights by  actually inflicting

harm;  second,  appellants   violated  Degrazia's  rights  by

failing to prevent the  infliction of harm.  We  explore each

possible theory.

          There is a constitutional  right not to be deprived

of life  without due  process of law.   Thus,  a state  actor

cannot murder a  citizen.   See, e.g., Estate  of Gilmore  v.
                                                                     

Buckley,  787 F.2d  714,  720 (1st  Cir.)  (citing Bowers  v.
                                                                     

DeVito, 686 F.2d 616, 618 (7th Cir. 1982)), cert. denied, 479
                                                                    

U.S.  882  (1986).   Critically,  however, Souza's  complaint

alleges no such direct state  action.  Instead, Souza alleges

that because of appellants' statements to the press, Degrazia

took his  own life.   Souza  does not  allege that  the state

actors  did anything to harm Degrazia  directly, nor does she

allege that appellants in  any way impeded Degrazia's ability

either  to  seek treatment  or  otherwise  avoid his  injury.

Simply  stated, under  the circumstances alleged  here, there

was no  existing authority under which  appellants could have

been reasonably aware that statements made with the knowledge

that Degrazia would take his own life would violate a clearly

established right.  Cf. Martinez v. California, 444 U.S. 277,
                                                          

284-85 (1980)  (no  constitutional deprivation  of life  when

parole board releases parolee  who commits murder five months

later   regardless  of   whether   parole   board's   actions

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                                          8


proximately caused  murder under state law);  see also Estate
                                                                         

of  Gilmore, 787 F.2d at 719 ("The [F]ourteenth [A]mendment .
                       

. . does  not protect against the deprivation of  life by any

person  at all, but only  against the deprivation  of life by

the state without due process.").  

          However,  at the  time of  appellants' actions  (as

well  as today), there were  some circumstances under which a

victim  who dies at the hands of  a private individual who is

neither an agent of,  nor employed by, the state  nonetheless

had  clearly  established  rights  to  protection  from harm.

Estate  of Gilmore, 787 F.2d at 719-23.  Souza faintly argues
                              

that a "special  relationship," and thus, a  duty to protect,

existed between  appellants and Degrazia because  first, they

had  knowledge of  his  suicidal tendencies  and, second,  by

linking  his name  to  the killings,  Degrazia's freedom  was

limited  "as  greatly   as  if  he  were  locked  in  maximum

security."     Souza's  argument  fails  because the  Supreme

Court has made clear that the state has a duty to protect its

citizens  only when  it  affirmatively acts  to restrain  the

"individual's freedom  to act  on his own  behalf --  through

incarceration,  institutionalization,  or other  restraint of

personal  liberty."   DeShaney v.  Winnebago County  Dep't of
                                                                         

Social  Servs., 489  U.S.  189, 200  (1989).   As  the  Court
                          

explained:  

          [t]he  [Due Process] Clause is phrased as
          a limitation on the State's power to act,

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                                          9


          not  as  a guarantee  of  certain minimal
          levels  of  safety   and  security.    It
          forbids  the  State  itself   to  deprive
          individuals of life, liberty, or property
          without  "due process  of  law," but  its
          language  cannot  fairly  be extended  to
          impose an affirmative  obligation on  the
          State to  ensure that those  interests do
          not come to harm through other means.

Id.   In DeShaney, the  Court held that  county officials did
                             

not  violate  a  child's  due process  rights  when,  despite

repeated warnings, they failed to take action  to protect the

child  from beatings by his father.  The Court concluded that

"a State's  failure to protect an  individual against private

violence  simply does not  constitute a violation  of the Due

Process Clause."  Id. at 197.  
                                 

          We  agree  with   appellants  that  their   alleged

statements fall outside DeShaney's bounds of constitutionally
                                            

proscribed  conduct.  The complaint does  not allege that, at

any   time,  the  government  restricted  Degrazia's  liberty

interests  so as  to  give rise  to  an affirmative  duty  to

protect.   DeShaney,  489 U.S.  at 200;  see also  Monahan v.
                                                                      

Dorchester Counseling Ctr., Inc., 961 F.2d 987, 991 (1st Cir.
                                            

1992).  Absent the  kind of custodial relationship apparently

contemplated by  the Court, the  Due Process Clause  does not

require the state to protect citizens from "private violence"

in  whatever  form,  including  suicide.   To  be  sure,  the

complaint   alleges   numerous   acts  by   appellants   that

undoubtedly  rendered Degrazia  more vulnerable to  danger in

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                                          10


the sense that  those acts  may have exacerbated  -- or  even

brought  about -- Degrazia's  suicidal tendencies.   However,

these are not  the kind  of "affirmative acts"  by the  state

that  would give  rise to a  constitutional duty  to protect.

Cf. Monahan,  961 F.2d at 992-93  (state official's knowledge
                       

of voluntarily  admitted mental patient's propensity  to jump
                          

out of  automobiles gave  rise to  no constitutional duty  to

protect  against  a  similar  occurrence).    Simply  stated,

appellants' actions did not "[restrain Degrazia's] freedom to

act on his own  behalf," DeShaney, 489 U.S. at  200, and thus
                                             

they  could  not  be  reasonably  aware  that  their  actions

violated Degrazia's clearly established rights.  

          Souza  also  argues that  appellants'  actions were

"conscience-shocking,"  thus constituting a  violation of the

Fourteenth Amendment.  In Rochin v. California, 342 U.S. 165,
                                                          

172 (1952), the  Supreme Court held that evidence obtained by

pumping  a  criminal  suspect's  stomach  against  his   will

violated  substantive due  process because the  state actor's

conduct  was  so  egregious  as to  "shock  the  conscience."

Accordingly, in the usual course, a plaintiff may establish a

substantive  due  process   violation  through   "conscience-

shocking" behavior.  See, e.g., Harrington v. Almy, 977  F.2d
                                                              

37, 43  (1st Cir. 1992);  Amsden v. Moran, 904  F.2d 748, 757
                                                     

(1st  Cir. 1990),  cert. denied,  498 U.S.  1041 (1991).   We
                                           

conclude that appellants' actions do not rise to the level of

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                                          11


"conscience-shocking"  conduct.   Like  the Rochin  Court, we
                                                              

have  found "conscience-shocking" conduct  where state actors

engage  in  extreme  or  intrusive  physical  contact.    See
                                                                         

Harrington, 977 F.2d  at 43.   While we do not  foreclose the
                      

possibility  that  a  government  official's  statements, see
                                                                         

Pittsley  v.  Warish, 927  F.2d 3,  7  n.3 (1st  Cir.), cert.
                                                                         

denied, 502 U.S.  879 (1991), or other forms of psychological
                  

harm, may  constitute a violation of  a citizen's substantive

due  process rights, we find  that the facts  alleged here do

not  rise to that level.7  That  said, we pause to make clear

that we  do not condone the conduct alleged by Souza.  In our

system, prosecutors occupy a unique position of public trust:

          Between the private  life of the  citizen
          and   the   public   glare  of   criminal
          accusation stands the  prosecutor.   That
          state  official has  the power  to employ
          the  full  machinery   of  the  state  in
          scrutinizing any given individual.   Even
          if a defendant  is ultimately  acquitted,
          forced     immersion      in     criminal
          investigation   and  adjudication   is  a
          wrenching  disruption  of everyday  life.
          For  this   reason,  we  must   have  the
          assurance that those who would wield this
          power  will be  guided  solely  by  their
          sense  of  public responsibility  for the
          attainment of justice.  

Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.
                                                               

787,  814 (1987).  Although "[s]tatements to the press may be

                    
                                

7.  Moreover, as we have previously observed,  if the lack of
an  affirmative exercise  of state  power forecloses  a claim
under  DeShaney,  then  a plaintiff's  "shock-the-conscience"
                           
argument is precluded.  Monahan, 961 F.2d at 994 n.7.  
                                           

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                                          12


an integral part of a prosecutor's job, and . . . may serve a

vital public  function," Buckley  v. Fitzsimmons, 113  S. Ct.
                                                            

2606,  2618  (1993)  (citation  omitted),  that  function  is

strictly  limited  by the  prosecutor's  overarching duty  to

justice.     We  recognize   that  prosecutors  face   myriad

pressures,  especially  in  high  profile  cases.    Nothing,

however, diminishes the trust they hold.

          A  government  official's  plainly "despicable  and

wrongful,"  Pittsley,  927  F.2d   at  7,  conduct  does  not
                                

necessarily give  rise to a recoverable  federal civil rights

claim  against the  official.   This result  obtains because,

first,  the conduct must violate  a right secured  by the Due

Process  Clause as  authoritatively interpreted  and, second,

that right must be  "clearly established" at the time  of the

official's conduct.  In the end, Souza points to no authority

under which  appellants would be reasonably  aware that their

alleged conduct would be unlawful.  Because  Souza has failed

to establish  that appellants'  acts  transgressed a  clearly

established right, we conclude that defendants may invoke the

defense of qualified immunity.

                             III.
                                         III.
                                             

          For  the  foregoing reasons,  the  decision  of the

district court is 

          reversed.  Judgment shall issue for the defendants.
                      reversed.  Judgment shall issue for the defendants.
                                                                        

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