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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 98-1316 <br> <br>                        MARK J. FOURNIER, <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                  CHARLES REARDON, ETC., ET AL., <br> <br>                     Defendants, Appellants. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Joseph L. Tauro, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                Boudin and Stahl, Circuit Judges. <br> <br>                      _____________________ <br> <br>    William P. Breen, Jr., with whom John J. Davis and Morrison, <br>Mahoney & Miller were on brief, for appellants. <br>    Thomas C. Regan, with whom Pearl, McNiff, Crean, Cook & <br>Sheehan was on brief, for appellee. <br> <br> <br>                       ____________________ <br>                                 <br>                       November 10, 1998 <br>                      ____________________

          TORRUELLA, Chief Judge. Defendant-appellants appeal the final <br>order and judgment denying the defendants' motion to dismiss.  <br>Plaintiff-appellee, Mark J. Fournier ("Fournier"), claims that he <br>is entitled to monetary damages for personal injuries allegedly <br>sustained as a result of the defendants' alleged deprivation of <br>his rights under the Fourth and Fourteenth Amendments.  Fournier <br>asserts that the defendants are liable under the Federal Civil <br>Rights Act, 42 U.S.C.  1983, and under the Massachusetts Civil <br>Rights Act, Mass. Gen. Laws ch. 12,  11I.  For the following <br>reasons, we reverse. <br>BACKGROUND  Fournier was employed by the Essex County Sheriff's <br>Department as a corrections officer for more than ten years prior <br>to entering a basic training academy ("academy") run by the Essex <br>County Sheriff's Department.  On May 1, 1995, Fournier and twenty <br>other corrections officers began attending a nine week basic <br>training course which the Essex County Sheriff's Department <br>required for full-time employment.  The academy was staffed by <br>other Essex County Sheriff's Department corrections officers.  It <br>offered both classroom and physical training such as standing at <br>attention, instruction as to chain of command, and protocol in <br>interacting with superior officers. <br>          On the second day of the course, Fournier was ordered to report <br>to the academy training staff's office.  Protocol taught and <br>enforced at the academy required that Fournier, an academy <br>recruit: (1) knock outside the instructors' office door; (2) <br>announce his presence; and (3) request permission to enter before <br>entering the instructors' office.  Fournier breached academy <br>protocol when he failed to follow this regimented procedure and <br>entered the office unannounced. <br>          To punish Fournier for violating academy protocol, one of the <br>drill instructors present in the room ordered Fournier to turn <br>around and bend over.  When Fournier complied, the drill <br>instructor placed handcuffs on his wrists and informed Fournier <br>that he was being placed under "house arrest" for entering the <br>instructors' office without having requested permission.  The <br>drill instructor then allegedly put Fournier's written reports in <br>his mouth and ordered him to return to the classroom.  The other <br>drill instructors in the room failed to intervene on Fournier's <br>behalf. <br>          Fournier returned, in handcuffs, to the classroom.  Within five <br>minutes of the "house arrest," the drill instructor entered the <br>classroom.  Pursuant to academy protocol, the recruits rose to <br>attention upon the entrance of a superior officer.  When the <br>drill instructor ordered the class to be seated, Fournier <br>attempted to seat himself.  Unfortunately, Fournier missed his <br>chair and fell to the ground, allegedly sustaining serious <br>personal injuries, including a fractured vertebra. <br>DISCUSSION  <br>I.  Standard of Review <br>          Although most denials of motions to dismiss are not "final <br>decisions," and thus are not independently appealable, a district <br>court's rejection of a qualified immunity defense is a "final <br>decision,"  Mitchell v. Forsyth, 472 U.S. 511, 528 (1985), and <br>thus we review it here.  Because "[a] necessary concomitant to <br>the determination of whether the constitutional right asserted by <br>a plaintiff is 'clearly established' at the time the defendant <br>acted is the determination of whether the plaintiff has asserted <br>a violation of a constitutional right at all,"  Siegert v. <br>Gilley, 500 U.S. 226, 232 (1991), we will consider whether <br>Fournier has asserted a violation of any constitutional right in <br>his complaint. <br>II.  Section 1983 Claims <br>            Section 1983 states, in relevant part: <br>            Every person who, under color of any statute, ordinance, <br>            regulation, custom, or usage, of any State . . . subjects, or <br>            causes to be subjected, any citizen of the United States   . . . <br>            to the deprivation of any rights, privileges, or immunities <br>            secured by the Constitution and laws shall be liable to the party <br>            injured in any action at law, suit in equity, or other proper <br>            proceeding for redress. <br> <br>42 U.S.C.  1983.  "[Section] 1983 'is not itself a source of <br>substantive rights,' but merely provides 'a method for <br>vindicating federal rights conferred.'"  Graham v. Connor, 490 <br>U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, <br>144 n.3 (1979)).  "To succeed, a section 1983 plaintiff must show <br>a violation of a right secured by federal law."  Skinner v. City <br>of Miami, 62 F.3d 344, 346 (11th Cir. 1995).   <br>          Fournier claims three separate constitutional violations:  (1) a <br>violation of his Fourth Amendment rights; (2) a violation of his <br>right to due process under the Fourteenth Amendment; and (3) a <br>violation of his right to equal protection of the laws under the <br>Fourteenth Amendment.  None of his arguments is persuasive. <br>          A.  Fourth Amendment <br>          The Fourth Amendment provides that "[t]he right of the people to <br>be secure . . . against unreasonable . . . seizures, shall not be <br>violated."  U.S. Const. amend. IV.  Under the Mendenhall test, <br>formulated by Justice Stewart in United States v. Mendenhall, 446 <br>U.S. 544, 554 (1980), and adopted by the United States Supreme <br>Court in later cases, see Michigan v. Chesternut, 486 U.S. 567, <br>573 (1988):  "[A] person has been 'seized' within the meaning of <br>the Fourth Amendment only if, in view of all of the circumstances <br>surrounding the incident, a reasonable person would have believed <br>that he was not free to leave."  Mendenhall, 446 U.S. at 554.  <br>          Fournier argues that when the drill instructor placed him under <br>"house arrest" and handcuffed him behind his back, he was seized <br>for purposes of Fourth Amendment analysis.  We disagree. Under <br>the Mendenhall test, a court must look at all the circumstances <br>surrounding the incident to determine if a reasonable observer <br>would have believed that Fournier was not free to leave. <br>          Although Fournier was handcuffed, no evidence presented would <br>support a finding that he was not free to leave at any point <br>during the scenario.  Fournier understood that "house arrest" was <br>part of the basic training academy course.  He submitted to being <br>handcuffed, and then returned to the classroom.  We grant that if <br>he did object to being handcuffed, there could possibly have been <br>negative consequences for his continued employment as a <br>corrections officer.  However, the possible effect that refusing <br>to be handcuffed may have had on his employment status is not an <br>issue for us to consider.  Rather, the question is whether a <br>violation of Fournier's right to be free from seizure occurred.  <br>In view of all the circumstances surrounding the incident, a <br>reasonable observer would conclude that Fournier was the subject <br>of improper hazing, which might give rise to a state law claim <br>based on tort or employment theories, but would not believe that <br>Fournier was not free to call an end to the "house arrest" and <br>have the handcuffs removed. <br>          B.   Fourteenth Amendment Due Process Claims <br>          The Fourteenth Amendment states that a "State [shall not] deprive <br>any person of life, liberty, or property, without due process of <br>law . . . ."  U.S. Const. amend. XIV.  Due process claims may <br>take either of two forms:  "procedural due process" or <br>"substantive due process."  Pittsley v. Warish, 927 F.2d 3, 6 <br>(1st Cir. 1991).  Procedural due process requires that the <br>procedures provided by the state in effecting the deprivation of <br>life, liberty or property are adequate in light of the affected <br>interest.  Id.  Substantive due process, however, imposes limits <br>on what a state may do regardless of what procedural protection <br>is provided.  Id. (citing Monroe v. Pape, 365 U.S. 167, 171-72 <br>(1961); Rochin v. California, 342 U.S. 165, 169 (1952)).  In this <br>case, Fournier invokes the latter prong of due process <br>protection:  (1) by arguing that he had a constitutionally <br>protected liberty interest in being disciplined only as set forth <br>in the Essex County Sheriff's Department Training Manual; and (2) <br>by contending that the county owed him and others similarly <br>situated a constitutional right to safe conditions and freedom <br>from bodily restraint. <br>            1.  Disciplinary Procedure Due Process Claim <br>          It is well established that a state actor's failure to observe a <br>duty imposed by state law, standing alone, is not sufficient to <br>establish a  1983 claim.  See Martnez v. Coln, 54 F.3d 980, <br>989 (1st Cir. 1995).  Although it is true that constitutional <br>significance may attach to certain interests created by state <br>law, not every transgression of state law does double duty as a <br>constitutional violation.  Id.  As this Court stated in Martnez: <br>"[T]he Constitution is not an empty ledger awaiting the entry of <br>an aggrieved litigant's recitation of alleged state law <br>violations . . . ."  Id. <br>          Fournier cites Massachusetts law, see  Mass. Gen. Laws ch. 265,  <br>40, and departmental regulations which govern the discipline of <br>recruits in training programs, to found his claim of a  1983 <br>violation.  However, whether Massachusetts law was violated or <br>the department failed to follow its own disciplinary procedures <br>matters little because neither alleged deficiency establishes a  <br>1983 violation.   <br>          2.  Affirmative Obligation Due Process Claim <br>     The substantive element of the Due Process Clause protects those <br>rights that are fundamental, rights that are "implicit in the <br>concept of ordered liberty."  Palko v. Connecticut, 302 U.S. 319, <br>325 (1937).  The Supreme Court has deemed that most, but not all, <br>of the rights enumerated in the Bill of Rights are fundamental.  <br>In addition, certain unenumerated rights, such as the right to <br>privacy, are deemed fundamental. <br>     While the Supreme Court has extended substantive due process <br>protection to certain unenumerated rights, it has not extended <br>Fourteenth Amendment coverage to many areas.  "Tort law is one <br>such area that remains largely outside substantive due process <br>jurisprudence."  Skinner, 62 F.3d at 346 (citing Daniels v. <br>Williams, 474 U.S. 327, 332 (1986) (noting that the Due Process <br>Clause "does not purport to supplant traditional tort law in <br>laying down rules of conduct to regulate liability for injuries <br>that attend living together in society")) (citations omitted). <br>     Fournier contends that there is a constitutional right to safe <br>conditions.  But see  DeShaney v. Winnebago County Department of <br>Social Services, 489 U.S. 189, 195, 202 (1989) ("The Clause is <br>phrased as a limitation on the State's power to act, not as a <br>guarantee of certain minimal levels of safety and security . . . <br>. A State may, through its courts and legislatures, impose such <br>affirmative duties of care and protection upon its agents as it <br>wishes.  But not 'all common-law duties owed by government actors <br>were . . . constitutionalized by the Fourteenth Amendment.'"  <br>(quoting Daniels, 474 U.S. at 335)).  Second, Fournier claims his <br>constitutional right to freedom from bodily restraint was <br>violated when he was handcuffed.  As discussed above, Fournier's <br>"house arrest" does not rise to the level of a constitutional <br>violation.  See supra, at 5-6.  Fournier's Complaint attempts to <br>conflate an ordinary tort--battery--into a constitutional <br>violation.  Unfortunately for his cause, not everything is a <br>federal case. <br>      3.  Equal Protection Clause Claim <br>     In a novel, yet utterly misguided attempt at an Equal Protection <br>Clause claim, Fournier contends: "[The drill instructor] placed <br>the plaintiff under house arrest because of the plaintiff's <br>conduct as a recruit.  It is fair to infer that . . . [the drill <br>instructor] would not have placed a non-recruit under house <br>arrest for similar conduct."  Appellee's Br. at 13.  We do not <br>find that such a distinction rises to the level of an Equal <br>Protection violation. <br>CONCLUSION <br>     Because Fournier has not been able to show a violation of a <br>federal right, it is not necessary for this Court to reach the <br>defense of qualified immunity.  For the reasons stated in this <br>opinion, we reverse the judgment of the district court.  Judgment <br>is issued for the defendant-appellants. <br></pre>

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