Coyne v. Cronin

United States Court of Appeals
For the First Circuit

No. 03-2357

JOHN COYNE,

Plaintiff, Appellee,

v.

MARGARET CRONIN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya, and Howard, Circuit Judges.

Jeremy M. Sternberg, Assistant United States Attorney with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellant.
Harry L. Miles with whom Green, Miles, Lipton & Fitz-Gibbon,
was on brief, for appellee.

October 12, 2004
 HOWARD, Circuit Judge. Defendant Margaret Cronin, an FBI

agent, brings this interlocutory appeal to challenge the district

court's denial of her motion to dismiss a federal constitutional

claim asserted against her by plaintiff John Coyne under the Bivens

doctrine. See Bivens v. Six Unknown Named Agents, 403 U.S. 388,

397 (1971). We have jurisdiction because Cronin's motion was based

on her claim of qualified immunity and because her challenge to its

denial involves only abstract legal questions. See, e.g., Limone

v. Condon, 372 F.3d 39, 43 (1st Cir. 2004). Disposition of this

appeal requires us to decide, first, whether assertions made in an

affidavit Coyne submitted to the government in connection with

administrative proceedings on a related claim should be considered

part of the relevant corpus of facts, and second, whether the

relevant corpus of facts gives rise to a viable claim that Cronin

violated a "clearly established" constitutional right. See, e.g.,

Santana v. Calderon, 342 F.3d 18, 23 (1st Cir. 2003).

The operative complaint in this troubling case alleges

that, in April 1999, Coyne began sending letters to the security

team at the Concord State Prison in Concord, Massachusetts, where

he was incarcerated. The letters contained information about

corruption in the prison and illegal activities committed or

planned by other inmates. In September 1999, Coyne was transported

to the United States Courthouse in Boston, where he met with

Cronin, another unnamed FBI agent, an unnamed assistant United

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States Attorney, and a police officer from the city of Cambridge.

The meeting was held in response to the letters Coyne had been

sending to the prison's security team.

During the meeting, Coyne told Cronin that he had

additional information, but that he feared for his safety if he

passed it along. Cronin thanked Coyne for his prior disclosures

and assured him that she would take the precautions necessary to

keep him safe. Relying on this representation, Coyne shared the

information with Cronin, who thereafter persuaded Coyne to feign an

interest in participating in a still-developing plot by inmates to

rob an armored car after their release from prison. Cronin told

Coyne to send a letter to one of the individuals planning the

robbery -- an inmate at the Norfolk State Prison -- stating that he

(Coyne) would participate in the scheme if the others could wait

until after his release. Knowing that mail cannot be sent between

inmates at different penal institutions, Cronin instructed Coyne to

send this "dummy letter," along with a second letter containing

more detailed information for the FBI, to a phony company address

in Boston that served as an FBI mail drop. Cronin told Coyne that

the letter to the inmate would be forwarded to the inmate's

girlfriend, who presumably would pass it along to the inmate, while

she (Cronin) would keep the letter to the FBI. At some point

during the next month, Coyne sent the requested letters to the mail

drop.

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 On or about October 5, 1999, Coyne was brought to a

conference room at the prison where he was met by Cronin. Cronin

told Coyne that the FBI had made a "terrible mistake" and had

forwarded Coyne's entire parcel -- including his letter to the FBI

(which was sure to alert any reader that Coyne was an FBI

informant) -- to the girlfriend of the inmate in the Norfolk State

Prison. Cronin expressed concern for the safety of Coyne and his

family and promised to do everything necessary to protect them.

After the meeting, Cronin called Coyne's ex-wife and told her what

had happened. She also called the local police in Coyne's ex-

wife's town to warn them of the danger. Thereafter, word of

Coyne's actions spread through the prison system and, at some

point, Coyne had his teeth broken by a fellow inmate who accused

him of "ratting" on others. Eventually, Coyne was transferred to

the Hampshire House of Correction. Because of this transfer, Coyne

lost an opportunity to participate in a halfway house program. He

has since been released from prison. Coyne lives in fear for his

safety and has received numerous threats since his term of

imprisonment expired.

On July 23, 2001, Coyne brought the present lawsuit

against the United States, Cronin and other unknown FBI agents, and

the unknown assistant United States Attorney. The operative

complaint charged the individual defendants with breach of contract

and all defendants with negligence (the claim against the United

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States lying under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-

2680) and a federal constitutional violation. The United States

and Cronin moved to dismiss the complaint. Coyne filed an

opposition to these motions, to which the United States and Cronin

jointly replied. In the text of their reply memorandum, the United

States and Cronin first alerted the district court to an affidavit

Coyne had filed with the FBI in connection with the administrative

claim he was obliged to file prior to filing his FTCA claim against

the United States. See, e.g., Cascone v. United States, 370 F.3d

95, 103 (1st Cir. 2004) (prior filing of an administration claim is

a jurisdictional prerequisite to a claim under the FTCA). The

United States and Cronin took the position that the court could

regard the affidavit as merged into the complaint, and therefore

properly to be considered by it, despite the fact that their

motions invoked Fed. R. Civ. P. 12. See Beddall v. State Street

Bank & Trust Co., 137 F.3d 12, 17 (1st Cir. 1998) ("When . . . a

complaint's factual allegations are expressly linked to -- and

admittedly dependent upon -- a document (the authenticity of which

is not challenged), that document effectively merges into the

pleadings and the trial court can review it in deciding a motion to

dismiss under Rule 12(b)(6)."). They argued that, because the

narrative in the affidavit was pertinent to whether Cronin had been

acting within the scope of her employment (and thus pertinent to

whether there was subject matter jurisdiction over the negligence

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claims against Cronin and the United States, see Cascone, 370 F.3d

at 103; Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir. 1996)

(court lacks subject matter jurisdiction to entertain tort claim

against federal employee who committed the tort while acting within

the scope of federal employment); see also 28 U.S.C. §§ 2679(b)(1),

(d)(1)), the affidavit was so merged, see Dynamic Image

Technologies, Inc. v. United States, 221 F.3d 34, 37-38 (1st Cir.

2000) (extrinsic materials bearing on a court's subject matter

jurisdiction may be considered in connection with a Rule 12 motion

to dismiss without conversion of motion into one for summary

judgment); Aversa, 99 F.3d at 1210 (similar).

Coyne's affidavit contained additional details about

Cronin's actions after she learned of the mistaken mailing. But

rather than attaching the affidavit to their reply memorandum, the

United States and Cronin quoted from it, explaining that it

contained sensitive information concerning third parties and

asserting that its authenticity was undisputed. (Defendants also

offered to make the affidavit available to the court upon request.)

The quotations read as follows: (1) "Agent Margaret Cronin . . .

called a member of the Inner Perimeter Security Team at Concord to

request that [Coyne] be placed in 'the hole,'" and (2) "[Coyne met]

with Special Agent Margaret Cronin of the FBI, and Lieutenant

Branco of the Inner Perimeter Security Team (IPS), from Concord

Prison [and at that meeting] Agent Cronin . . . explained that

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[Coyne] was to be transferred out of Concord the next day to the

Hampshire House of Correction in Northampton."

In a published opinion, the district court granted in

part and denied in part defendants' motions. After explaining a

prior oral ruling denying Coyne's motion to vacate the government's

certification that Cronin had been acting within the scope of her

employment, the court permitted Coyne's FTCA claim against the

government to proceed but granted Cronin's motion to dismiss the

negligence claim against her. See Coyne v. United States, 270 F.

Supp.2d 104, 108-18 (D. Mass. 2003). The court also dismissed

Coyne's breach of contract claims against the individual

defendants. See id. at 118-19. Finally, the court denied the

individual defendants' motions to dismiss the constitutional claim

both on the merits and on the basis of the qualified immunity

doctrine. See id. at 119-20.

With respect to the constitutional claims, the district

court trained its focus exclusively on Cronin. The court stated

that, while Coyne's constitutional claim against Cronin was "not

well-developed," it "essentially amount[ed] to a generalized

assertion that [Cronin's] actions violated a generic right to

safety that is protected by the Fifth and Eighth Amendments." Id.

at 119. Concluding that Coyne could demonstrate a violation of

this right if he could show that Cronin had exhibited a "deliberate

indifference" to his safety, id. at 119-20 (discussing cases

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involving violence against inmates and a government informant), the

court determined that the allegations in Coyne's complaint were

sufficient to state such a claim:

It can be fairly inferred from the
allegations in the complaint that . . .
Cronin, knowing that Coyne was in danger,
failed to take steps to inform prison
officials of the risk or otherwise make
provision for his safety. In other words, she
was deliberately indifferent to the danger he
faced. The constitutional dimension of
deliberate indifference to Coyne's plight is
compounded because he was both a prisoner and
was in danger by virtue of his cooperation
with the government. Of course, proving this
claim will require a showing that the
defendant had actual, subjective knowledge of
the risk to Coyne and did nothing to protect
him -- more than mere negligence. But Coyne's
allegations surely are adequate to survive a
motion to dismiss.

Id. at 120.1 The court then rejected Cronin's claimed entitlement

to qualified immunity because the defense applies to conduct that

does not violate "clearly established" rights of which a reasonable

person would have known, id. at 120 (citing Hope v. Pelzer, 536

U.S. 730, 739 (2002)), and because "the law was clearly established

at the time of the events in the case that government agents may

not be deliberately indifferent to prisoner safety or government-

1
The court also stated: "If, for example, . . . Cronin
informed prison officials of the danger to Coyne and they then
failed to protect him, she might arguably have fulfilled her
constitutional obligations. Coyne then might still have potential
claims against prison officials, but he has not named them as
defendants in this case." 270 F. Supp. 2d at 120 n.8.

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created dangers that cooperating citizens face; they have a duty to

protect in such circumstances," id.

Cronin moved for reconsideration of this ruling, arguing

that the inference that the district court drew -- that Cronin had

"failed to take steps to inform prison officials of the risk or

otherwise make provision for [Coyne's] safety" -- was contradicted

by Coyne's affidavit. This time, Cronin attached a copy of the

affidavit (with portions redacted) to her submission. But the

court denied the motion in an unpublished order, holding that the

affidavit was not properly before it on a Rule 12 motion. The

court explained that, in its view, consideration of the affidavit

would require conversion of Coyne's motion to dismiss into one for

summary judgment. The court did not believe that such a conversion

was warranted because "[t]he record is simply not sufficiently

developed at this time to permit full and fair adjudication of this

issue in a summary judgment posture." The court also emphasized

that, even if it were to consider the affidavit, Coyne had only

averred therein that it was his "understanding" that Cronin "had

called a member of the Inner Perimeter Security Team at Concord to

request that [Coyne] be place[d] in 'the hole' for [his]

protection." In the court's view, Coyne's "understanding" did not

permit it to "make a solid assessment of the extent and sufficiency

of actions [Cronin] may have taken to protect [Coyne]." Finally,

the court rejected Cronin's argument that the affidavit was

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effectively merged into the complaint because, "unlike asserted

exceptions to the Federal Tort Claims Act, the qualified immunity

defense against the plaintiff's Bivens claim does not implicate the

Court's jurisdiction."

Cronin challenges the district court's decision not to

consider Coyne's affidavit. Cronin renews her argument that the

affidavit was merged into the complaint under Beddall and similar

cases. Alternatively, Cronin contends that the court erred in

failing to consider the affidavit because the merits of an asserted

entitlement to qualified immunity is to be determined "at the

earliest possible state of litigation." Hunter v. Bryant, 502 U.S.

224, 227 (1991). Coyne does not argue that the court was entitled

to disregard the affidavit. He contends that the court

did consider it, but concluded that the document failed to

undermine the inferences the court had drawn: that Cronin did

nothing to alert prison officials or protect him after learning of

the FBI's error. In pressing this argument, Coyne picks up on the

court's statement that the affidavit only set forth his

"understanding" that Cronin had contacted a member of the prison's

Inner Perimeter Security Team and asked that Coyne be transferred

to more secure environs.

The inference upon which the district court premised its

denial of Cronin's motion to dismiss on qualified immunity grounds

-- that Cronin "failed to take steps to inform prison officials of

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the risk or otherwise make provision for his safety," 270 F. Supp.

2d at 120 -- is unsustainable if the allegations in Coyne's

affidavit are to be credited. Even if we leave aside the

allegations based on Coyne's mere "understanding" about the nature

of Cronin's call to prison staff, the balance of the affidavit

unambiguously places a state prison security official at a meeting

within the prison during which Cronin told Coyne about the FBI's

mistake and the plan to place him in more secure detention pending

his transfer to the Hampshire House of Correction "the next day."

If the details of this meeting are to be considered, one simply

cannot infer reasonably that Cronin failed to communicate with

prison officials or to make at least some provisions for Coyne's

safety. For this reason, as set forth in our introductory

paragraph, the outcome determinative questions in this appeal are

whether the court erred in declining to consider the affidavit and,

if so, whether Cronin is entitled to qualified immunity in light of

the affidavit. We think that each question must be answered in the

affirmative.

As we already have indicated, there are times when a

court should take into account documents beyond the complaint in

evaluating whether a Fed. R. Civ. P. 12 motion should be granted.

See, e.g., Beddall, 137 F.3d at 17; Watterson v. Page, 987 F.2d 1,

3-4 (1st Cir. 1993); Romani v. Shearson Lehman Hutton, 929 F.2d

875, 879 n.3 (1st Cir. 1991). One such situation occurs when there

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is some doubt about a court's subject matter jurisdiction. See

Dynamic Image Technologies, 221 F.3d at 37-38; Aversa, 99 F.3d at

1209-10. Coyne's sworn admissions that Cronin informed prison

officials of the FBI's error and took affirmative measures to keep

him safe were pertinent to the jurisdictional inquiries that the

district court was obliged to conduct in connection with Coyne's

motion to vacate the government's scope-of-employment certification

and, by extension, the United States' and Cronin's motions to

dismiss the negligence claims. We therefore think that the

admissions, and the affidavit which contained them, were properly

before the court.

We recognize that the admissions were not brought to the

district court's attention until the United States and Cronin

replied to Coyne's opposition to their motions to dismiss, and that

the affidavit was not itself submitted until Cronin filed her

motion for reconsideration. We also recognize that the admissions

were not introduced in connection with the motions raising

questions about the court's jurisdiction. But to hold that the

affidavit must be disregarded on either of these bases would waste

time and resources without reason. Coyne does not oppose

consideration of the affidavit and he gives no reason for allowing

himself to back away from it. Cf. Coluatuoni v. Alfred Calcagni &

Sons, Inc. 44 F.3d 1, 5 (1st Cir. 1994) (affidavit of interested

witness that contradicts same witness's earlier deposition does not

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create a factual conflict unless change in testimony is

satisfactorily explained); Cleveland v. Policy Mgmt. Sys. Corp.,

526 U.S. 795, 806-07 (1999) (listing without endorsing cases

similar to Coluantuoni across the circuits and holding that a

"similar insistence upon explanation is warranted . . . where the

conflict involves a legal conclusion"). Moreover, as we shall

explain momentarily, the admissions are highly relevant to Cronin's

entitlement to qualified immunity -- an issue the court was

obligated to resolve as early as possible. See Hunter, 502 U.S. at

227. Under the circumstances, we think that the admissions in the

affidavit should have been taken into account.

This takes us to the nub of the qualified immunity

inquiry: whether the operative set of allegations might ground a

plausible finding that Cronin violated Coyne's clearly established

constitutional rights. See, e.g., Santana, 342 F.3d at 23. The

threshold question in conducting this inquiry is whether the

allegations, taken in the light most favorable to Coyne, could

support a conclusion that Cronin abridged any such right. See id.

Coyne's documentary submissions are unclear about the theories he

is advancing and the conduct that Coyne believes to have exceeded

constitutional limits. At oral argument, however, Coyne clarified

that he is claiming under the Fifth Amendment's due process

guarantee and the Eighth Amendment's proscription against cruel and

unusual punishments for Cronin's lapses during two distinct time

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periods: the period prior to the point at which Cronin learned that

Coyne's letter to the FBI had been forwarded, and the period after

she learned of the mistaken mailing. As to the first of these

periods, Coyne identifies as unconstitutional Cronin's alleged

failure to oversee with care the letter-writing ruse in which she

asked him to participate; as to the second, Coyne cites Cronin's

alleged abandonment of him in the dangerous prison environment.

Because Cronin is a federal agent and does not work for

Coyne's jailer (the Commonwealth of Massachusetts), we have

difficulty seeing how her acts and omissions could constitute

"punishment" within the sweep of the Eighth Amendment's Cruel and

Unusual Punishments Clause. Cf. Ingraham v. Wright, 430 U.S. 651,

671-72 n.40 (1977) (observing that the punishment with which the

Eighth Amendment is concerned is that imposed by a sovereign after

it has secured a formal adjudication of guilt in accordance with

due process of law). But to say that Coyne has no viable Eighth

Amendment claim against Cronin because she is not an agent of the

sovereign that incarcerated him is not to say, ipso facto, that

Cronin has no constitutional claim against Cronin. The Fifth

Amendment's due process guarantee is in part substantive and, in a

narrow set of circumstances, may itself be invoked to challenge

executive conduct where no other constitutional provision more

directly applies. See County of Sacramento v. Lewis, 523 U.S. 833,

842-45 (1998). And although the government's failure to protect an

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individual from third-party private violence (even in the face of

a known danger) ordinarily does not constitute a due process

violation, see DeShaney v. Winnebago County Dep't of Soc. Servs.,

489 U.S. 189, 197 (1989), we have recognized that the Due Process

Clause may be implicated where the government affirmatively acts to

increase the threat to an individual of third-party private harm or

prevents that individual from receiving assistance, see Frances-

Colon v. Ramirez, 107 F.3d 62, 64 (1st Cir. 1997); see also Butera

v. District of Columbia, 235 F.3d 637, 648-51 & n.10 (D.C. Cir.

2001) (noting that the federal circuit courts are unanimous in

excepting cases of this sort from application of the DeShaney

principle). Thus, while Cronin cannot be liable to Coyne under the

Eighth Amendment for breaching constitutional obligations running

from jailers to prisoners, he might at least theoretically premise

a due process claim against Cronin on the facts that he (Coyne) was

someone else's prisoner and therefore especially vulnerable, that

Cronin (a federal agent) promised him protection, and that Cronin's

actions -- in permitting the letter to the FBI to be forwarded and

in failing to protect him afterwards -- were the source of an

increased danger that ultimately caused him harm. Cf. Butera, 235

F.3d at 652 (recognizing that a viable due process claim might

arise from a failure to protect a government informant

participating in a sting operation from third-party private harm).

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 Coyne's problem is that, in order to prevail on any such

theory (assuming arguendo its viability), he would have to show

that Cronin's conduct was "so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience." Lewis, 523

U.S. at 847 n.8. The hurdle is high because "[o]ur Constitution

deals with the large concerns of the governors and the governed,

but it does not purport to supplant traditional tort law in laying

down rules of conduct to regulate liability for injuries that

attend living together in society." Id. at 848 (quoting Daniels v.

Williams, 474 U.S. 327, 332 (1986)) (internal quotation marks

omitted); see also Paul v. Davis, 424 U.S. 693, 701 (1976)

(explaining that the Fourteenth Amendment's Due Process Clause is

not "a font of tort law to be superimposed upon whatever systems

may already be administered by the States").

The conscience-shocking standard is not a monolith; its

rigorousness varies from context to context. See Lewis, 523 U.S.

at 850. In situations where a substantive due process claim might

lie but where government officials must act in haste, under

pressure, and without an opportunity for reflection, even

applications of deadly force by those officials cannot be

conscience-shocking unless undertaken maliciously and sadistically

for the very purpose of causing harm. Id. at 852-54 (applying to

a substantive due process claim arising from a high speed police

chase the "actual malice" liability standard, derived from the

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Eighth Amendment, applicable to prisoner claims arising from a

prison riot). By contrast, in situations where a substantive due

process claim might lie and where actual deliberation on the part

of a governmental defendant is practical, the defendant may be held

to have engaged in conscience-shocking activity even without actual

malice (to take one familiar example, if a government official

assumes custody of a person and then displays deliberate

indifference to his ward's basic human needs). See id. at 849-50

& n.10. The spectrum is wide because substantive due process

violations tend to come in various shapes and sizes and in a

multitude of configurations. We need not probe too deeply where

along this spectrum of levels of fault Coyne's claim against Cronin

may lie because the complaint does not fairly allege deliberate

indifference, let alone any more serious level of scienter.2

To make such a showing, Coyne must, at a bare minimum,

demonstrate that Cronin actually knew of a substantial risk of

serious harm to him and disregarded that risk. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994); Calderón-Ortiz v. Laboy-

Alvarado, 300 F.3d 60, 64 (1st Cir. 2002). Coyne's complaint does

not satisfy this standard. It fails to state a viable

2
In explaining this conclusion, we should make clear that we
are not in any way holding that Cronin's conduct in the present
context would necessarily be governed by a deliberate indifference
standard. We would have to address that issue only if the
complaint properly asserted deliberate indifference. Here, it does
not.

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constitutional claim because it fails to make such allegations

directly, or in substance, or even by fair implication. See

Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 68

(1st Cir. 2004) (the notice pleading requirements of Fed. R. Civ.

P. 8(a)(2) are minimal but they must be observed); see also Torres-

Viera v. Laboy-Alvarado, 311 F.3d 105, 108 (1st Cir. 2002)

(dismissing complaint of inmate injured by a tear gas cannister

fired in a prison riot for failing either to allege or to plead

facts "which permit[] a reasonable inference to be drawn that the

tear gas cannister was fired maliciously or sadistically for the

very purpose of doing harm").

Although the complaint alleges plenty of facts, it does

not even hint at a suggestion that Cronin acted with deliberate

indifference towards Coyne's well being. Insofar as Coyne's due

process claim is based on his first case theory -- that Cronin

violated his rights prior to learning that his letter to the FBI

had been forwarded -- Coyne has not alleged facts from which one

might infer either that (1) Cronin deliberately caused Coyne's role

as a government informant to be revealed to the prison community

(e.g., by intentionally forwarding the letter), or (2) Cronin knew

that there was a substantial risk that Coyne would be so exposed as

a result of the ruse and disregarded that risk (e.g., by telling

Coyne to mail his letter to an assistant with a known track record

of botching confidential communications and then by failing to

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supervise that assistant).3 And insofar as Coyne's claim is based

on his second case theory -- that Cronin abandoned him after

learning of the mistaken mailing -- the complaint's factual

allegations (as supplemented by his affidavit) directly contradict

the theory's premise by admitting that a prison security official

was present when Cronin notified Coyne of the mistaken mailing and

that Cronin had made arrangements for Coyne's transfer to a

different prison.

If matters were at all different or there were any

concrete suggestion as to what might plausibly be developed against

Cronin that would suggest conscience-shocking behavior, we would be

sympathetic to discovery. But everything we know from the

complaint and Coyne's own allegations show that this is basically

a negligence case to which the government must respond but for

which Cronin may not be sued under the Due Process Clause. See

Lewis, 523 U.S. at 849 ("liability for negligently inflicted harm

is categorically beneath the threshold of constitutional due

process").

The district court's judgment denying Cronin's motion to

dismiss Coyne's constitutional claims against her is reversed and

the matter is remanded for further proceedings consistent with this

opinion.

3
In any event, such allegations would be highly implausible
since Cronin was relying upon Coyne to make her case.

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