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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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

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

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

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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