United States Court of Appeals
For the First Circuit
No. 04-1568
IRIS RIVERA, Individually and as Administratrix
of the Estate of Jennifer Rivera,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND; CITY OF PROVIDENCE; EMILIO MATOS,
Individually; JOHN FINEGAN, Individually; RANDY WHITE,
Individually; GEORGE PAGE, Individually; URBANO PRIGNANO, JR.,
Individually and in his Official Capacity as Chief of Police for
the City of Providence; POLICE DEPARTMENT OF THE CITY OF
PROVIDENCE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Michael T. Eskey, with whom Amato A. DeLuca, Miriam
Weizenbaum, DeLuca & Weizenbaum Ltd., Nick Brustin, and Cochran,
Neufeld & Scheck, LLP were on brief, for Appellant.
Marc DeSisto, with whom Kathleen M. Daniels and DeSisto Law
were on brief, for Appellees Randy White and George Page.
Joseph F. Penza, Jr., with whom Martin K. DeMagistris and
Olenn & Penza, LLP were on brief, for Appellees Emilio Matos and
John Finegan.
Kevin F. McHugh, Assistant City Solicitor, Providence Law
Department, with whom Joseph M. Fernandez, City Solicitor, and
Caroline Cole Cornwell, Assistant City Solicitor, were on brief,
for Appellees City of Providence and Urbano Prignano, Jr.
March 22, 2005
LYNCH, Circuit Judge. In May 2000, fifteen year old
Jennifer Rivera was shot dead in front of her house in Providence,
Rhode Island, to stop her from testifying at a murder trial that
she saw Charles Pona, the defendant in the trial, fleeing from the
scene of the murder of Hector Feliciano in August of 1999. Her
death has been avenged in one sense: Charles Pona, who ordered her
murder, was convicted of her murder in state court. Charles Pona
was sentenced to life plus twenty years.
Iris Rivera, Jennifer's mother, seeks to avenge her
daughter's death in another sense. She filed a federal lawsuit
alleging the police had violated Jennifer's constitutional
substantive due process right to life by failing, after promising
to do so, to protect Jennifer from the danger posed by Pona if she
agreed to testify against him. She sued the Providence Police
Department (PPD); police officers Matos and Finegan and state
Assistant Attorneys General White and Page, whom she said acted
directly to compel Jennifer to testify; the Providence Police Chief
Urbano Prignano for failing to train and properly supervise his
officers; and the City for having a policy and practice of not
protecting endangered witnesses who were given assurances of
protection.1 In addition to her federal constitutional claims, the
1
These are the defendants on appeal. The defendants before
the district court included the State of Rhode Island, the City of
Providence, Police Officers Matos and Finnegan, Police Detective
Morris, Rhode Island Attorney General Whitehouse, Assistant
Attorneys General White and Page, Police Chief Urbano Prignano,
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sole basis on which she is in federal court, Rivera brings claims
under Rhode Island law.2
It would be inhumane not to feel a sense of outrage over
Jennifer's death, or a sense of deep sympathy for Iris Rivera who
has lost her daughter. But our question is one of federal law, not
one of sympathy. The Supreme Court has said that only in very rare
situations will the state's failure to protect someone amount to a
constitutional violation, even if the state's conduct is grossly
negligent. The Court has cautioned that "[t]he doctrine of
judicial self-restraint requires [courts] to exercise the utmost
care whenever [they] are asked to break new ground in this field."
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Based
on the facts alleged in the complaint, we conclude that this is not
one of those rare cases.
The most difficult analysis involves those constitutional
claims against the police officers and state attorneys who made the
promises.3 In fact, it may be that the officers made no promises
Jr., and the Providence Police Department. Defendants Morris and
Whitehouse are not parties to this appeal. The only claims against
the State and Attorneys Page and White, in their official
capacities, are state law claims.
2
The district court dismissed these state law claims without
prejudice.
3
We add that while the issue of a claim of constitutional
right is difficult, it is quite unlikely, for other reasons having
to do with immunity doctrines and separate requirements for causes
of action under 42 U.S.C. § 1983, that the claims against the
defendants would have survived in any event.
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or contingent promises at best. It may be that they intended to
keep or tried to keep the promises, but were unable to guarantee
Jennifer's safety. We do not know the defendants' version of the
events. They chose to test the plaintiff's claims by motion to
dismiss, so we must assume the truth of everything alleged by the
plaintiff in the complaint. Still, we conclude that the plaintiff
has not stated a claim of violation of Jennifer's federal
constitutional rights. For that reason, the claims against all
defendants were properly dismissed. Whether the plaintiff has some
recompense under the laws of Rhode Island is another matter for
Rhode Island to decide. Whatever recompense there can be to
Jennifer and Iris Rivera, it is not to be found in this case.
We explain our reasons, starting with the allegations in
the complaint.
I.
We look only to the allegations in the complaint4 and
take them as true, as required in a Rule 12(b)(6) motion.
On August 28, 1999, Hector Feliciano was shot to death in
a vacant lot next to Jennifer Rivera's home. Fifteen year old
4
Under the district court's scheduling order of May 15, 2003,
discovery started and was scheduled to close in December of that
same year. Some reference to discovered material is in the record
and the plaintiff has included her answers to interrogatories in
the Appendix before this court. However, the defendants did not
include discovered material in their motions to dismiss and the
district court did not consider the discovered material.
Accordingly, we do not either.
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Jennifer Rivera, who lived at 95 Congress Street in Providence,
Rhode Island, heard gun shots, went to her kitchen window, and saw
a dark skinned man scale the fence of the lot and drive away in a
sport utility vehicle. At the request of a Providence police
officer, Jennifer went to the police station that same day and
signed a witness statement.
On August 31, at the request of Feliciano's family, she
went to the police station a second time. She signed another
statement and identified Charles Pona from police photographs as
the man she saw fleeing the crime scene. On October 28, 1999,
Charles Pona was arrested for the murder of Feliciano. On November
1, 1999, he began serving a six-month sentence on unrelated
charges.
Starting in November of 1999, Rivera was continually
threatened with death if she agreed to testify as to the murder she
witnessed. At this time, Jennifer and her mother informed
Jennifer's counselor of the death threats that she had been
receiving. The PPD and Providence police detectives were
immediately notified of the threats against Jennifer's life if she
were to testify about having witnessed the murder.
"[S]oon thereafter, the PPD repeatedly assured her she
would be safe." The PPD also informed defendants White and Page,
prosecutors in the Attorney General's office, of the threats
against Jennifer.
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Based on these promises of protection, Jennifer agreed to
and did testify at the grand jury hearing on November 15, 1999.
Another fifteen year old boy testified at this grand jury
hearing as well, apparently also identifying Pona. That evening a
passenger in an automobile pointed a gun at this boy's sister and
asked where her brother was. Upon learning of these threats, the
PPD placed the boy in a witness protection program that same day.
The threats against Jennifer's life, if she agreed to
testify against Pona, continued. Specifically, Police Detectives
Matos and Finegan were repeatedly informed of the death threats
made against Jennifer. On November 23, 1999, Detective Finegan
confirmed that he had received the information regarding the threat
and indicated that he would speak with Jennifer. In January 2000,
a detective of the PPD contacted Jennifer's counselor to confirm
that he was aware of the threats against Jennifer's life as a
result of her willingness to testify about having witnessed the
murder.
On March 1, 2000, Charles Pona was indicted on charges of
murdering Hector Feliciano, and on April 22, 2000, he was released
on bail after completing his six-month sentence on unrelated
charges. All defendants were aware of the release of Charles Pona.
On May 15, 2000, a subpoena was issued by defendants
White and Page to Jennifer to appear in court at 9:30 on May 22 to
testify in the murder trial of Charles Pona. White and Page were
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aware of the threats being made against Jennifer's life if she
agreed to testify. On May 16, the PPD notified Jennifer that she
was required to testify on May 22, 2000. As late as May 17, 2000,
Jennifer told the defendants White and Page and a PPD detective
that she was afraid to go to court because she would be killed.
Again, the defendants promised to protect her in order to secure
her testimony.
As a result of the promises for protection, Jennifer
continued in her willingness to testify to what she had seen on the
day of the murder and to identify Charles Pona at trial as the
killer of Feliciano.
On May 21, 2000, Jennifer Rivera was standing in front of
her house when a young man with a hooded shirt stepped out of a
car, grabbed her, and shot her in the head. Dennard Walker, Pona's
half brother, shot Jennifer and was convicted for her murder. On
November 12, 2003, Charles Pona was convicted of Jennifer's murder
and conspiracy to commit murder because he had ordered Jennifer
killed.
The complaint alleges that despite the repeated threats
to Jennifer's life, her repeated requests for protection, and the
defendants' repeated assurances that they would protect her, the
defendants took no action to protect Jennifer including, among
other things, failing to place her in the state's witness
protection program. Rivera alleged that the defendants undertook
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a duty to protect Jennifer by identifying her as a witness to the
murder and taking her statement, promising to protect her if she
testified, and subpoenaing her to testify before the grand jury and
at the trial of Charles Pona, "knowing that she was reluctant to
testify without such protection because of the repeated death
threats she had received."
The complaint also alleges that the City of Providence
and the PPD maintain legally inadequate training and supervision of
employees, including the individual defendants, for protecting
witnesses.
Rivera alleged in the complaint that by failing to
protect Jennifer the defendants acted with "deliberate indifference
to [Jennifer's] constitutional rights" and that the defendants'
conduct "shocks the conscience."
II.
Defendants Matos, Finegan, White, and Page
A. Standard of Review
With respect to defendants Matos, Finegan, White, and
Page, the district court dismissed the case against them for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). This
court reviews de novo the district court's dismissal of Rivera's
federal claims.
For civil rights cases, unless the statute specifies
otherwise, there is no heightened pleading standard. Leatherman v.
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Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 168 (1993); Educadores Puertorriqueños En Acción v. Hernàndez,
367 F.3d 61, 66-67 (1st Cir. 2004). Thus in adjudicating motions
to dismiss under Rule 12(b)(6), the district court must apply the
notice pleading requirements of Rule 8(a)(2). Educadores, 367 F.3d
at 66. Under that lenient rule, the complaint only needs to
include "a short and plain statement of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This
statement must "give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests." Conley
v. Gibson, 355 U.S. 41, 47 (1957); Educadores, 367 F.3d at 66.
In considering a motion to dismiss for failure to state
a claim, a court must take the allegations in the plaintiff's
pleadings as true and must make all reasonable inferences in favor
of the plaintiff. See Pena-Borrero v. Estremeda, 365 F.3d 7, 11
(1st Cir. 2004). A complaint may be dismissed for failure to state
a claim "only if it is clear that no relief could be granted under
any set of facts that could be proved consistent with the
allegations." Id. (internal quotation marks omitted). Still,
"notice pleading notwithstanding, Rule 12(b)(6) is not entirely a
toothless tiger." Educadores, 367 F.3d at 67 (quoting Dartmouth
Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989)). In
substantive due process cases, the Supreme Court has held that such
claims must be carefully scrutinized to determine if the alleged
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facts support the conclusion that the state has violated an
individual's constitutional rights. See Collins, 503 U.S. at 125
("It is important . . . to focus on the allegations in the
complaint to determine how [the plaintiff] describes the
constitutional right at stake" and what the police officers and
state attorneys "allegedly did to deprive [the plaintiff's husband]
of that right.").
This scrutiny of the complaint entails two separate
inquiries. The first is whether the facts alleged state a claim
for violation of constitutional rights. If such a claim is stated,
there is a second inquiry as to whether the allegations meet the
separate set of requirements as to particular categories of
defendants to establish a claim within 42 U.S.C. § 1983, the
statutory provision on which suit is brought. Because we find no
cognizable claim of a violation of a constitutional right is
stated, we uphold the dismissal of the case without reaching the
second inquiry.
B. The Existence of a Constitutional Violation
The due process guarantees of the Fourteenth Amendment
forbid the State itself from depriving a person of life, liberty,
or property, without due process of laws.
In order to establish a substantive due process claim,
the plaintiff must first show a deprivation of a protected interest
in life, liberty, or property. See Rhode Island Bhd. of
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Correctional Officers v. Rhode Island, 357 F.3d 42, 49 (1st Cir.
2004); Macone v. Town of Wakefield, 277 F.3d 1, 9 (1st Cir. 2002).
It is not enough to claim the governmental action shocked the
conscience. See Washington v. Glucksberg, 521 U.S. 702, 722 (1997)
(The implication of a fundamental right is a threshold requirement
for establishing a due process violation). The complaint alleges
that Jennifer was caused to be deprived of her life, a protected
interest.
Second, the plaintiff must show that the deprivation of
this protected right was caused by governmental conduct. That is
easily met when a government actor causes the injury, such as when
police officers act under color of law. See Martinez v. Colon, 54
F.3d 980, 986 (1st Cir. 1995) ("To be sure, violence is
attributable to state action if the perpetrator is acting under
color of state law."). It is much more difficult when the person
who inflicts the injury is a private person. The Due Process
Clause acts as a check on the government, not on actions by private
individuals. Here, of course, the person who killed Jennifer was
a private individual. Nonetheless, there are possible scenarios of
government involvement with a private individual which amount to
government conduct -- for example, if the police had handed the
murderer the gun with instruction to shoot her, cf. Hemphill v.
Schott, 141 F.3d 412, 418-19 (2d Cir. 1998), or assured Pona that
he could attack Jennifer with impunity, cf. Dwares v. City of New
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York, 985 F.2d 94, 96-97 (2d Cir. 1993). That is certainly not the
case. The claimed governmental involvement in causing Jennifer's
death was much more indirect: the government is said to have
enhanced the danger posed by a private individual and then failed
to protect against this risk.
The Supreme Court has stated that as a general matter, "a
State's failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause."
DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189,
197 (1989). That is because the purpose of the Due Process Clause
is to protect the people from the state, not to ensure that the
state protects them from each other. "The Clause is phrased as a
limitation on the State's power to act, not as a guarantee of
certain minimal levels of safety and security," id. at 195, because
"[t]he Framers were content to leave the extent of governmental
obligation in the latter area to the democratic political
processes," id. at 196.
However, the Court recognized that this general principle
is not absolute: in situations in which there is a "special
relationship," an affirmative, constitutional duty to protect may
arise when the state "so restrains an individual's liberty that it
renders him unable to care for himself, and at the same time fails
to provide for his basic human needs." Id. at 200. "The
affirmative duty to protect arises not from the State's knowledge
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of the individual's predicament or from its expressions of intent
to help him, but from the limitation which it has imposed on his
freedom to act on his own behalf." Id. This court has recognized
that this relationship, and thus a constitutional duty, may exist
when the individual is incarcerated or is involuntarily committed
to the custody of the state. See Monahan v. Dorchester Counseling
Ctr., Inc., 961 F.2d 987, 991-92 (1st Cir. 1992).
The Supreme Court also suggested, but never expressly
recognized, the possibility that when the state creates the danger
to an individual, an affirmative duty to protect might arise:
While the State may have been aware of the
dangers that [the plaintiff] 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. [By returning the
plaintiff's child to his abusive father, the
State] placed him in no worse position than
that in which he would have been had it not
acted at all.
DeShaney, 489 U.S. at 201 (emphasis added). From this statement
comes Rivera's argument that the Due Process Clause is implicated
when the state has played a role in creating the danger or has
enhanced the danger to an individual.5 At least three circuit
courts have recognized the existence of a constitutional violation
5
It is not clear from the "creation of danger" language in
DeShaney whether a state action which enhances or creates danger to
an individual would provide a separate exception to the general
rule of no duty to protect, or whether the language is simply in
service of the special relationship exception and provides a set of
circumstances where the state’s actions might create a "special
relationship" and thus a duty to protect.
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when, on particular facts, the state fails to protect against
private violence under this state created danger theory. See
Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir.
1998); Reed v. Gardner, 986 F.2d 1122, 1125-26 (7th Cir. 1993);
Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989). One
circuit has flatly rejected the theory. See Beltran v. City of El
Paso, 367 F.3d 299, 307 (5th Cir. 2004). Other circuits have
discussed the theory. See Pinder v. Johnson, 54 F.3d 1169, 1175-76
(4th Cir. 1995) (en banc).
This court has, to date, discussed the state created
danger theory, but never found it actionable on the facts alleged.
See Coyne v. Cronin, 386 F.3d 280, 287 (1st Cir. 2004) (stating
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"); Hasenfus v. LaJeunesse, 175 F.3d 68, 73
(1st Cir. 1999) ("Where a state official acts so as to create or
even markedly increase a risk, due process constraints may exist,
even if inaction alone would raise no constitutional concern.");
Frances-Colon v. Ramirez, 107 F.3d 62, 64 (1st Cir. 1997)
(recognizing that a government employee can in a "rare and
exceptional case, affirmatively act[] to increase the threat of
harm to the claimant or affirmatively prevent[] the individual from
receiving assistance"); Soto v. Flores, 103 F.3d 1056, 1063-64 (1st
Cir. 1997) (discussing, as a possible exception to the general
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DeShaney rule, a substantive due process violation when the state,
through its affirmative acts, creates or greatly enhances the
danger faced by the plaintiff from third parties); Souza v. Pina,
53 F.3d 423, 427 (1st Cir. 1995); Monahan, 961 F.2d at 992-93.
Even if there exists a special relationship between the
state and the individual or the state plays a role in the creation
or enhancement of the danger, under a supposed state created danger
theory, there is a further and onerous requirement that the
plaintiff must meet in order to prove a constitutional violation:
the state actions must shock the conscience of the court. See
Hasenfus, 175 F.3d at 73 (In a state created danger case, state
behavior must be "conscience-shocking or outrageous"); see also
Coyne, 386 F.3d at 287-88 (using "shocks the conscience" as a
catch-all term encompassing a range of state actor behavior); Soto,
103 F.3d at 1064 ("Not every negligent, or even willfully reckless,
state action that renders a person more vulnerable to danger
'take[s] on the added character of [a] violation[] of the federal
Constitution.'") (quoting Monahan, 961 F.2d at 993) (alterations in
Soto).
In determining whether the state has violated an
individual’s substantive due process rights, a federal court may
elect first to address whether the governmental action at issue is
sufficiently conscience shocking. See County of Sacramento v.
Lewis, 523 U.S. 833, 847 n.8 (1998). The state action must be "so
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egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience." Id. "[C]onduct intended to injure in
some way unjustifiable by any government interest is the sort of
official action most likely to rise to the conscience-shocking
level." Id. at 849 (emphasis added). Of course, whether behavior
is conscience shocking varies with regard to the circumstances of
the case. See id. at 850-52. In situations where actors have an
opportunity to reflect and make reasoned and rational decisions,
deliberately indifferent behavior may suffice to "shock the
conscience." See id. at 851-52.
Keeping all of this in mind, we echo the caution
articulated in Soto: in a state creation of risk situation, where
the ultimate harm is caused by a third party, "courts must be
careful to distinguish between conventional torts and
constitutional violations, as well as between state inaction and
action." Soto, 103 F.3d at 1064.
C. Rivera's Allegations
The federal claims dismissed as to defendants Matos,
Finegan, White, and Page are alleged in counts one and two.6
Specifically Rivera alleges in the complaint that the defendants
undertook a duty to protect Jennifer and that the defendants
6
Count eight was brought by Rivera against all defendants for
deprivation of her own constitutional rights. This count was
dismissed in an earlier order by the district court on March 4,
2004, and Rivera is not appealing its dismissal.
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enjoyed a special relationship with Jennifer. The acts and
omissions of the defendants and their failure to take appropriate
steps to protect Jennifer from the risk that Pona posed to her,
despite her requests for protection, violated her substantive due
process rights.7
Although not clear from the complaint, Rivera's
objections to the motions to dismiss and supporting memorandum
clarify that in addition to the duty which arises in the context of
a special relationship between Jennifer and the state,8 the two
counts are premised on an alleged separate duty to protect Jennifer
based on the defendants' actions which enhanced the danger to her.
Rivera has essentially conceded, by dropping her special
relationship claim on appeal, that she cannot establish such a
relationship. The factual circumstances, as alleged in the
complaint, also do not amount to the type of state creation of risk
contemplated by the doctrine. The actions of the defendants are
"not the kind of 'affirmative acts' by the state that would give
7
In count one of her complaint, Rivera also alleges that
Prignano, along with Officers Matos and Finegan, is liable for the
underlying substantive due process violation. On appeal, Rivera
does not allege that Prignano participated in the conduct which
created the danger. Rivera's only theory of liability as to
Prignano is supervisory liability.
8
The special relationship exception is not relied upon by the
plaintiff on appeal, although it appears to be the basis for the
duty alleged in the complaint. Before the district court, Rivera
also alleged a due process violation based on the defendants'
failure to properly apply the State's witness protection program.
This argument is not presented on appeal.
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rise to a constitutional duty to protect." Souza, 53 F.3d at 427.
As to Officers Matos and Finegan, Rivera argued that the
danger was created as a result of their actions of identifying and
securing Jennifer as a witness, providing her with false assurances
of protection upon which she relied,9 compelling her to act in this
capacity as a witness, and by issuing a subpoena to her to confront
Pona in open court.
As to defendants White and Page, Rivera argued that the
danger was created as a result of their promising to protect
Jennifer if she testified and subpoenaing her to testify before the
grand jury and at the trial of Charles Pona, knowing that she was
reluctant to testify without such protection because of the
repeated death threats.
Rivera argues the state's two actions in identifying
Jennifer as a witness and taking her witness statement in the
course of investigating a murder compelled Jennifer to testify and
thus enhanced the danger to Jennifer. Both are necessary law
enforcement tools, and cannot be the basis to impose constitutional
liability on the state.
9
The complaint does not allege that Matos or Finegan ever
actually spoke to Jennifer or promised her protection. The
complaint states that Matos and Finegan knew of the threats and
indicated that they would speak with her, but there are no
allegations that Matos or Finegan actually spoke with her.
However, in her motions and in her brief before this court, she
does allege that Detective Matos promised her protection.
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Rivera also argues issuance of a subpoena enhanced the
risk to Jennifer. Issuing a subpoena is also a vital prosecutorial
tool. While requiring Jennifer's testimony may in fact have
increased her risk, issuance of a subpoena did not do so in the
sense of the state created danger doctrine. Every witness involved
in a criminal investigation and issued a subpoena to testify in a
criminal proceeding faces some risk, and the issuance of a subpoena
cannot become the vehicle for a constitutional claim against a
state.
The only remaining "affirmative acts" alleged in the
complaint are the defendants' assurances of protection.10 There is
no doubt that, if accepted as true, the complaint shows that
Jennifer may have been subjected to an increased risk, if she was
promised protection, not given it, and relied on the promise. The
state, in making these promises, may have induced Jennifer into a
10
On appeal, Rivera argues for the first time that her case,
against these four defendants, must be taken as stating the claim
that they deliberately misled Jennifer, knowing she would rely on
their false promise of protection and knowing that this protection
would not be forthcoming. As a result, the risk to her was greatly
enhanced, and became fatal when they subpoenaed her and left her
without protection. As to the federal claims against these four
defendants, intentional misrepresentation was neither alleged in
the facts or claims section of the complaint. Also, intentional
misrepresentation was not argued in the district court as part of
the federal claims. "It is hornbook law that theories not raised
squarely in the district court cannot be surfaced for the first
time on appeal." McCoy v. Mass. Institute of Tech., 950 F.2d 13,
22 (1st Cir. 1991).
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false sense of security, into thinking she had some degree of
protection from the risk, when she had none from the state.
While the unkept promises may have rendered her more
vulnerable to the danger posed by Charles Pona and his associates,
merely rendering a person more vulnerable to risk does not create
a constitutional duty to protect. See Souza, 53 F.3d at 427. In
part this is because an increased risk is not itself a deprivation
of life, liberty, or property; it must still cause such a
deprivation.
Ultimately, the claims alleged in the complaint are
indistinguishable from those in DeShaney. The allegation -- that
Jennifer trusted the state to do what it said and relied on that
promise in agreeing to testify -- is not materially different from
DeShaney, where the state was aware of the risk, by its actions
expressed promises of help, and then failed to protect a young boy
from his abusive father.
DeShaney directs that a state's affirmative
constitutional duty to protect an individual from private violence
arises when there is some deprivation of liberty by state actors.
See DeShaney, 489 U.S. at 200 ("The affirmative duty to protect
arises not from the State's knowledge of the individual's
predicament or from its expressions of intent to help him, but from
the limitation which it has imposed on his freedom to act on his
own behalf."). The state's promises, whether false or merely
-21-
unkept, did not deprive Jennifer of the liberty to act on her own
behalf nor did the state force Jennifer, against her will, to
become dependent on it. See Monahan, 961 F.2d at 993 (finding no
constitutional liability when the state did not force the plaintiff
to become dependent on the state). Moreover, the state did not
take away Jennifer's power to decide whether or not to continue to
agree to testify. Merely alleging state actions which render the
individual more vulnerable to harm, under a theory of state created
danger, cannot be used as an end run around DeShaney's core
holding.11
We add a few words about the separate shock the
conscience test which plaintiff would also have to meet if she
established a duty. In part, the test is meant to give incentives
to prevent such gross government abuses of power as are truly
outrageous. The facts here do not match the need for such
11
Rivera contrasts the situation involving false assurances
with the alternative of the police not offering false promises. If
the police had, Rivera argues, told the truth, that they would not
provide protection, Jennifer could have taken several different
courses of action. Jennifer might have chosen to cooperate, even
in the absence of protection; she might have run away prior to the
issuance of the subpoena; or she might have disregarded the
subpoena and risked being held in contempt of court. But the
danger to Jennifer, in the absence of these false assurances, would
still have been evident. She would still have been identified by
the police department as a witness to the murder; she would still
have given a statement to the police about what she saw; she would
still have, at the request of the deceased's family, given a second
statement and identified Pona; and the state would have still
issued a subpoena for her to testify before the grand jury and at
the trial.
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incentives. Intimidation and even murder of witnesses is a growing
national problem in major urban areas, plaguing witnesses, law
enforcement officers, and the communities. It is in the interests
of the police to protect witnesses, in order to secure convictions.
There can be any number of common reasons why police protection of
witnesses is ineffectual, none of which involve acts by the police
intended to cause the murder of a needed witness. Cf. County of
Sacramento v. Lewis, 523 U.S. 833, 855 (1998). Of course, there
may be an extreme set of facts involving such deliberate and
malevolent actions by police against witnesses as to shock the
conscience and implicate a constitutional violation. Those await
another day.
III.
Defendant City of Providence and Former Police Chief Urbano
Prignano
Since the plaintiff has failed to state a constitutional
claim at all, her claims against the other defendants for
supervisory liability and for failure to train fail. See City of
Canton v. Harris, 489 U.S. 378, 391 (1989) (The city's
constitutional liability for failure to train or for inadequately
training its employees is premised on there being an underlying
constitutional violation of the harmed individual's rights.);
Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581-82 (1st
Cir. 1994) (To establish supervisory liability, the plaintiff must
show an underlying constitutional violation.).
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IV.
Conclusion
We affirm the dismissal of all claims. The federal
claims are dismissed with prejudice. The dismissal of the pendent
state claims is without prejudice. No costs are awarded.
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