USCA1 Opinion
United States Court of Appeals United States Court of Appeals
For the First Circuit For the First Circuit
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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. ________________
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April 28, 1995
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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.
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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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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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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
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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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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
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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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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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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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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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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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"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
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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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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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