Rivera v. Rhode Island

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

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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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