
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                                         -2-                                          2            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                                         -3-                                          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).            _________    _________                                         -4-                                          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.                                          ___ _______                                         -5-                                          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                                         -6-                                          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).                                           -7-                                          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                                         -8-                                          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,                                         -9-                                          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                                         -10-                                          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                                         -11-                                          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.                                      _______                                         -12-                                          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.                      ________   _______________________________________                                         -13-                                          13
