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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Coyne v. Cronin
Court: Court of Appeals for the First Circuit
Date filed: 2004-10-12
Citations: 386 F.3d 280
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