Terenzio v. Urena

• Court: Court of Appeals for the First Circuit
• Decided: December 18, 2025
• Docket: 24-1244
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1244

DELMA TERENZIO, as Personal Representative of the Estate of Joseph A. Terenzio; THOMAS SULLIVAN, as Personal Representative of the Estate of John J. Sullivan; EDWARD POULIN, as Personal Representative of the Estate of Maurice C. Poulin,

Plaintiffs, Appellants,

v.

FRANCISCO URENA; MARYLOU SUDDERS; CHERYL LUSSIER POPPE; JOHN DOE 1; JANE DOE 1; JOHN DOE 2; JANE DOE 2,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge, and Rikelman,* Circuit Judge.

Christopher M. Reilly, with whom Anthony J. Antonellis, John A. Donovan III, and Sloane & Walsh, LLP were on brief, for appellants.

Austin P. Anderson, with whom Lon F. Povich, Christina S.

* Judge Selya heard oral argument in this case and participated in the initial semble thereafter. His death on February 22, 2025 ended his involvement in this case. The remaining two panelists issued this opinion pursuant to 28 U.S.C. § 46(d). Marshall, Kristen R. Gagalis, Anderson & Kreiger LLP, Robert L. Peabody, Husch Blackwell, LLP, and Richard Goldstein were on brief, for appellees.

December 18, 2025 BARRON, Chief Judge. This appeal concerns the Soldiers'

Home in Chelsea, Massachusetts, a state-run facility that provides

long-term care for veterans. In Spring 2020, three

veterans -- Joseph A. Terenzio, John J. Sullivan, and Maurice C.

Poulin -- died after contracting COVID-19 while living at the

Soldiers' Home. Representatives of the estates of the three

veterans (the "Representatives") thereafter sued multiple

Massachusetts state officials responsible for the operation of the

Soldiers' Home (the "Defendants"). The Representatives alleged

that the Defendants had violated the substantive due process rights

of the three veterans, as well as other similarly situated veterans

in a putative class. The claims premised the alleged

constitutional violations on the Defendants' response to the

threat posed by COVID-19 to the veterans while they were residing

at the Soldiers' Home and the living conditions that were

maintained at the facility during that time.

The Defendants filed a motion to dismiss, which the

United States District Court for the District of Massachusetts

granted based on the Defendants' qualified immunity. The

Representatives now appeal. Although the conduct alleged in the

Representatives' complaint is quite disturbing, we must affirm,

given the arguments that have been made on appeal.

- 3 - I.

The Representatives filed the operative complaint on

May 11, 2023. It named as Defendants Francisco Urena, the former

Secretary of the Massachusetts Department of Veterans' Services;

Marylou Sudders, the former Secretary of Massachusetts' Executive

Office of Health and Human Services; Cheryl Lussier Poppe, the

former Superintendent of the Soldiers' Home; and four unnamed

officials who had been affiliated with the Soldiers' Home.1

The complaint set forth claims under 42 U.S.C. § 1983

for damages against the Defendants in their individual capacities.

The claims allege that the Defendants violated the veterans'

substantive due process rights under the Fourteenth Amendment of

the U.S. Constitution through the Defendants' (1) response to the

COVID-19 pandemic and (2) improper maintenance of the Soldiers'

Home facilities while the virus was spreading.

Regarding the response to COVID-19, the Representatives

allege that the Defendants failed to ensure that the Soldiers'

Home residents were properly socially distanced, permitted the

commingling of sick and nonsick residents and employees, lacked

testing procedures for employees, discouraged employees from

wearing certain protective gear, and lacked overarching COVID-19

procedures. Regarding the living conditions, the Representatives

1 The four unnamed officials are not parties to this appeal.

- 4 - allege that the Defendants maintained inhumane and unsafe living

conditions by leaving residents to sit in their own excrement for

extended periods of time; failing to clean various rooms that

contained human excrement, rodents, and bugs; improperly

restraining residents; and allowing illegal drugs to enter the

Soldiers' Home.

On July 21, 2023, the Defendants filed a motion to

dismiss. They asserted that the Representatives failed to

sufficiently allege a substantive due process violation and that,

in any event, they were entitled to qualified immunity because the

claims did not allege a violation of clearly established law. The

District Court granted Defendants' motion on February 12, 2024,

and ordered dismissal of the complaint on February 13, 2024.

The District Court explained that the Representatives'

COVID-19-response claims "fail[ed] to specify how any individual

Defendant was involved in the alleged misconduct." As a result,

the District Court concluded, the claims necessarily "fail[ed] on

both prongs of the qualified immunity analysis."

The District Court then addressed the Representatives'

living-conditions claims. It determined that these claims failed

to sufficiently allege a constitutional violation because the

complaint failed to detail "any specifics" describing how the named

veterans were individually harmed by the living conditions

described in the complaint, especially where the allegations were

- 5 - based on facts "documented in the 2022 and 2023 Reports," while

the veterans died in 2020. The District Court also concluded that

"there was no clearly established controlling authority" showing

that "physically limited, long-term residents are de facto

involuntary wards of a state-run facility." Thus, the District

Court concluded that qualified immunity barred these claims.

This timely appeal followed.

II.

The Fourteenth Amendment's Due Process Clause prohibits

any person acting under color of law from depriving any person of

"life, liberty, or property, without due process of law." U.S.

Const. amend. XIV, § 1. The Clause's procedural component "ensures

that government, when dealing with private persons, will use fair

procedures," while its substantive component "safeguards

individuals against certain offensive government actions,

notwithstanding that facially fair procedures are used to

implement them." DePoutot v. Raffaelly, 424 F.3d 112, 118 (1st

Cir. 2005).

Only the Clause's substantive protections are at issue

in this appeal. As a general matter (save for exceptions discussed

further below), to state a substantive due process claim, a

plaintiff must plausibly allege that the person acting under color

of state law named as the defendant directly caused the harm in

question. That is because, in general, "a State's failure to

- 6 - protect an individual against private violence simply does not

constitute a violation of the Due Process Clause." DeShaney v.

Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197 (1989).

Because the Defendants were acting under color of law

and are being sued for damages in their individual capacities,

they may be entitled to qualified immunity. To successfully assert

that defense, at the motion to dismiss stage, they must make either

of two showings: (1) that the Representatives have failed to

plausibly allege a federal constitutional violation at all, or

(2) that the Representatives have failed to show that the conduct

alleged to constitute a substantive due process violation was

undertaken in contravention of clearly established law. See

Maldonado v. Fontanes, 568 F.3d 263, 268-69 (1st Cir. 2009).

"We review the dismissal of a complaint under

Rule 12(b)(6) de novo." Ocasio-Hernández v. Fortuño-Burset, 640

F.3d 1, 7 (1st Cir. 2011). In doing so, we ask "whether, construing

the well-pleaded facts of the complaint in the light most favorable

to the plaintiffs, the complaint states a claim for which relief

can be granted." Id. "[W]e are not wedded to the district court's

reasoning" but instead can affirm its decision "on any ground made

manifest by the record." Young v. Wall, 642 F.3d 49, 52 (1st Cir.

2011).

- 7 - III.

As to the Representatives' COVID-19-response claims, we

agree with the Defendants, that, insofar as the complaint alleges

that "[t]he defendants created and/or enhance[d] the danger of

death or illness to the residents of [the Soldiers' Home] by

failing to protect the residents from the risks associated with

the COVID-19 virus and failing to address or mitigate the grave

risks posed by the COVID-19 virus," (emphasis added), it does not

allege that the Defendants "did anything to harm [the veterans]

directly," Souza v. Pina, 53 F.3d 423, 426 (1st Cir. 1995).

Similarly, as to the Representatives' living-conditions claims, we

agree with the Defendants that, insofar as the complaint alleges

that "the defendants failed to provide the veteran residents of

the [Soldiers' Home] with clearly established minimally adequate

living conditions and forced the veterans at the [Soldiers' Home]

to live in unsafe and unsanitary conditions," (emphasis added), it

does not allege that the Defendants "did anything to harm [the

veterans] directly," id.

The Representatives appear to argue otherwise by

invoking our precedents explaining that proximate causation under

§ 1983 "can be established not only by some kind of direct personal

participation in the deprivation, but also by setting in motion a

series of acts by others which the actor knows or reasonably should

know would cause others to inflict the constitutional injury,"

- 8 - Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989)

(quoting Springer v. Seaman, 821 F.2d 871, 879 (1st Cir. 1987)).

The Representatives contend, based on these precedents, that it

follows that a state actor is "responsible for those consequences

attributable to reasonably foreseeable intervening forces,

including the acts of third parties." (Citation modified.)

The invocation of these precedents does not support the

Representatives' contention, however, because the Representatives

do not identify any "others" who have inflicted the constitutional

injury. Gutierrez-Rodriguez, 882 F.2d at 561. Nor do the

Representatives explain how the complaint plausibly alleges that

the deaths or other harms were attributable to reasonably

foreseeable forces of the kind that our precedents recognize as

able to establish proximate causation.

In addition to the allegations in the complaint that we

have just addressed, the Representatives do direct our attention

to what they describe as "affirmative acts" that they allege in

their complaint. The record citations supporting that conclusory

assertion, however, refer to a long list of facts, many of which

describe instances in which the Defendants either failed to do

something or merely permitted others to do something. And the

Representatives make no effort to offer any insight into the

criteria for deeming an act "affirmative." At most, they note

that some of their allegations are "extremely similar" or

- 9 - "identical" to claims that a grand jury found "sufficient to

establish probable cause" that supervisors at another Soldiers'

Home facility had "'engaged in intentional conduct of omission.'"

(Quoting Commonwealth v. Clinton, 207 N.E.3d 487, 507 (Mass.

2023).) Thus, because the Representatives have presented this

"affirmative acts" argument in a "skeletal way," "we see no reason

to abandon the settled appellate rule that issues adverted to in

a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived." United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990).

The Representatives also contend based on an

out-of-circuit district court case -- Woodson v. City of Richmond,

88 F. Supp. 3d 551 (E.D. Va. 2015) -- that they have sufficiently

alleged that the Defendants directly caused the alleged harms as

to the COVID-19 claims because their complaint alleges that the

Defendants "put the veterans in vulnerable, unsafe situations such

that they contracted the disease in the first place." (Quoting

Terenzio v. Urena, No. 23-cv-10462, 2024 WL 555771, at *3 (D. Mass.

Feb. 12, 2024).) But Woodson involved a state prisoner's Eighth

Amendment claim under § 1983, 88 F. Supp. 3d at 562, and, as the

Defendants point out, "there is a dispositive distinction between

prison inmates who are involuntarily dependent on the state and

people who have 'voluntarily availed [themselves] of a

Commonwealth service.'" (Quoting Monahan v. Dorchester Counseling

- 10 - Ctr., Inc., 961 F.2d 987, 993 (1st Cir. 1992)) (alteration in

original). Thus, we do not see how Woodson supports the

Representatives' contention that their complaint sufficiently

alleges a clearly established substantive due process violation.

Of course, in some circumstances, a plaintiff may be

able to state a claim for a substantive due process violation even

without alleging that the defendant directly caused the alleged

harm. For example, a plaintiff may be able to do so by showing

that the defendant had a "special relationship" with the plaintiff

that gave the defendant an affirmative duty to protect the

plaintiff from the alleged harm that was directly caused by a

private actor. Monahan, 961 F.2d at 991. Or a plaintiff may be

able to do so by showing that the defendant was responsible for

creating the danger that resulted in the plaintiff being directly

harmed by a private actor. See Irish v. Fowler, 979 F.3d 65, 73-75

(1st Cir. 2020). But, on appeal, the Representatives disclaim any

reliance on either of these exceptions to the general requirement

that the defendant must have directly caused the alleged harm.

That said, we recognize that, in support of their claims,

the Representatives invoke one of our cases concerning the special

relationship exception -- Harper v. Cserr, 544 F.2d 1121 (1st Cir.

1976) -- as well as other caselaw building on Harper. But, while

Harper does establish, in the Representatives' words, "that

patients who technically voluntarily commit themselves to a state

- 11 - facility" can "become de facto involuntarily committed as a result

of their 'relatively helpless' nature" or other circumstances, it

is not our last word on the subject. In Monahan, we relied on

DeShaney to clarify that the helplessness analysis in Harper

applies only if a government official affirmatively acts to

restrain a person's ability to act on their own. See 961 F.2d at

992 ("[The Plaintiff's] helplessness was not attributable to the

state's having taken him into custody involuntarily. DeShaney

teaches that the Constitution is implicated only when the state

takes an affirmative act which restrains the individual's freedom

to act on his own behalf." (citation modified)).

On appeal, the Representatives appear to argue, with

respect to Monahan, that the Defendants affirmatively acted to

restrain the veterans when "the [Soldiers' Home] prohibited the

Veterans' families from entering" the Soldiers' Home during the

COVID-19 pandemic. But the prohibition on family visitation does

not itself suffice plausibly to show that the Soldiers Home

"force[d]" the veterans, "against [their] will, to become

dependent upon it." Id. at 993. Nor does that prohibition in and

of itself suggest that the veterans "would have been barred from

leaving [the Soldiers' Home] upon request." Id. at 992.

The Representatives also allege that the Defendants

"[c]reat[ed] unsafe conditions of confinement for the veterans at

the [Soldiers' Home]" through the Defendants' "acts or omissions."

- 12 - (Emphasis added.) But, as phrased, this allegation fails to

support their contention to us that their complaint satisfies

Monahan's requirements. As a result, the Representatives have not

explained to us how they have alleged enough under Monahan.

IV.

The judgment is affirmed.

- 13 -