Souza v. Pina

• Court: Court of Appeals for the First Circuit
• Decided: April 28, 1995
• Docket: 94-2079
• Status: Published

Opinion

USCA1 Opinion

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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                                          3



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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                                          4



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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                                          5



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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                                          6



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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                                          7



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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                                          8



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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                                          9



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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                                          10



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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                                          11



"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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                                          12



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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