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

_________________
Harshbarger, Attorney General, was on brief for appellants.
___________
Kenneth C. Ponte for appellee.
________________

Sc
__

____________________
April 28, 1995
____________________

STAHL, Circuit Judge.

STAHL, Circuit Judge.
_____________
proceeding,

In

defendants-appellants,

this 42

the

U.S.C.

former

1983

district

attorney for Bristol County, Massachusetts, and three members

of

his

staff (collectively,

denial of

their motion

immunity.

We now reverse.

"appellants"),

to dismiss

I.
I.
__

on grounds

appeal from

of qualified

A. Standard of Review
______________________
We

review a motion to dismiss de novo.

__ ____

Armstrong v. Jefferson Smurfit Corp.,

_________
________________________

the allegations of

11, 11

(1st

Cir.

1994).

true

and, if the allegations are sufficient to state a claim

for which

We accept

30 F.3d

See, e.g.,
___ ____

the complaint as

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,
R.

Degrazia,

brought

this

administrator of Degrazia's
the
nine

following factual
young

women

Massachusetts
killings
appellant
prosecutor

case."

in what
The

Ronald A.

estate.

murdered
became

Bristol
Pina,

The

in

the

known

County

and

and 1989,

New

Bedford,

as the

"highway

district attorney,

appointed himself

as the

chief

Pina and his press

Martin, conducted numerous

-22

as

complaint contains

During 1988

and investigator in the case.

secretary, appellant James

Anthony

individually

allegations.

were

area

action

mother of

press

conferences and
or encouraged

other media interviews in

the

killings case.

media to

link

which they caused

Degrazia to

the

highway

The complaint alleges that appellants knew or

should have known that Degrazia would take his own life
result of these statements to the

media.

as a

On July 27,

1991,

Degrazia committed suicide.

On May 26, 1993,
42

U.S.C.

members

of

19831
Pina's

Souza commenced this action under

against

Pina,

staff,2

Martin, and

alleging

that

two

they

other

violated

Degrazia's constitutional rights under the Fifth, Eighth, and

Fourteenth Amendments by
his

right

to

punishment."3

be

denying him due process as

free

Appellants

Souza had failed to state a

granted

and

immunity.
appellants'

that
By

moved

and

"arbitrary
to

and

brutal

dismiss, arguing

that

claim upon which relief could be

appellants

margin

motion

from

well as

were

entitled

to

orders, the

district

court

their

subsequent

qualified
denied

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

claims arising under the Fifth and Eighth Amendments.

her

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
-33

II.
II.
___
A. Jurisdiction
________________
Our
appeals from
U.S.C.

the denial

1291

jurisdiction
district

jurisdiction

does

of

("[t]he courts
of

appeals from

courts").

However,

not

a motion

normally

encompass

to dismiss.

See
___

of appeals

. . .

all

final

decisions of

the

denial

28

shall have

of a

the

government

official's "dispositive pretrial motion premised on qualified

immunity

falls within

principle

and

Buenrostro
__________

v.

is,

narrow exception

therefore,

Collazo, 973
_______

F.2d

to the

immediately
39,

41

finality

appealable."

(1st Cir.

1992)

(citing Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985)).

________
_______
B. Qualified Immunity
______________________
The analytical
Qualified

immunity

path we

shields

traverse is

state

well defined.

officials

exercising

discretionary authority from civil damages "insofar

conduct

does not

violate

clearly established

as their

statutory or

constitutional rights of which a reasonable person would have

been aware."
The

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

______
__________

"clearly

"whether

the

established" inquiry
plaintiff

constitutional right at
226,

232

(1991).

necessarily incorporates

has

asserted

all."

Siegert
_______

The

right

violation

v. Gilley, 500
______

must

be

stated

of

U.S.
with

____________________
both

the

litigants and

to

the

Roque______
Rodriguez v. Lema Moya, 926 F.2d 103, 106 (1st Cir. 1991).
_________
_________
-44

reviewing

court.

particularity.
930 (1st Cir.
observed,

See, e.g.,
___ ____
1992).

the

Frazier v. Bailey, 957

_______
______

Otherwise, as the

generality

at

"clearly established" legal

rule of

liability

simply

extremely abstract rights."

635, 639 (1987).

Supreme Court

courts

identify

right threatens to

qualified immunity . .

unqualified

due

which

into a

by

F.2d 920,
has
the

"convert the

rule of virtually

alleging

violation

of

Anderson v. Creighton, 483 U.S.

________
_________

For example, the Court noted, "the right of

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

that a particular
established
however,
by

action is a violation)

right."

Id.
___

would defeat the

Harlow.
______

Id.
___

established" if

matter how unclear

Such

violates a clearly

level

violates that right."

Accordingly,

would understand
Id. at 640.
___

the Harlow formulation quoted

______
the right must have

of generality,

objective reasonableness required

right

its contours are "sufficiently

reasonable official

it may be

is

"clearly

clear that a

that what he

is doing

Additionally, implicit in

above is a temporal dimension:

been clearly established at the

time of

the defendants' alleged improper actions, and a court may not

find

that the

hindsight.

right

was

established

through the

See, e.g., Bailey, 957 F.2d at 929.

___ ____ ______

use

of

The qualified
weed

out unfounded

immunity doctrine enables

suits.

See Siegert,
___ _______

courts to

500 U.S.

at 232.

-55

Thus,

courts advance

the central

purpose of

the doctrine,

which is to protect state officials from "`undue interference

with their

duties and from potentially

liability.'"

Elder v. Holloway, 114 S. Ct. 1019, 1022 (1994)

_____
________

(quoting Harlow, 457 U.S. at

______
a critical role

in

duties."

public

806).

Qualified immunity plays

in striking the "balance

interests in vindication
and

disabling threats of

. . . between

of citizens' constitutional

officials'

effective performance

of

the

rights
their

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

son

her

violated his "right to be free from arbitrary and brutal

punishment,
process

and of

of law."

clear that the

actions
process.5

his
At

right not
oral

to

argument, Souza's

thrust of the complaint

violated

be deprived

Degrazia's

rights

Specifically, Souza

of

due

counsel made

was that appellants'

to

substantive

due

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
-66

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
substantive

of law."

component

of

U.S.
due

Const. amend. XIV.

process

protects

The

against

"certain government actions regardless of the fairness of the

procedures used to implement them."
U.S. 327, 331 (1986).
which appellants'
clearly

Souza

points

to

no caselaw

actions would constitute a

established

presents no

Daniels v. Williams, 474

_______
________

right.

theory as

Degrazia's rights,6

to how

Indeed,
the alleged

and her brief to this

minimal argumentation on the

point.

under

violation of a

Souza's

complaint

conduct violated
court offers only

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).

-77

exist,

both

implicated

by

Souza's

complaint:

appellants violated Degrazia's rights by

harm;

second,

appellants

failing to prevent the

violated

first,

actually inflicting

Degrazia's

infliction of harm.

We

rights

by

explore each

possible theory.
There is a constitutional
of life

without due

cannot murder a
Buckley,
_______

process of law.

citizen.

787 F.2d

right not to be deprived

714,

Thus,

a state

actor

See, e.g., Estate of Gilmore

___ ____ __________________
720 (1st

Cir.)

(citing Bowers
______

v.
v.

DeVito, 686 F.2d 616, 618 (7th Cir. 1982)), cert. denied, 479
______
_____ ______
U.S.

882

(1986).

Critically,

alleges no such direct state

however, Souza's

action.

complaint

Instead, Souza alleges

that because of appellants' statements to the press, Degrazia

took his
actors

own life.

Souza

does not

did anything to harm Degrazia

allege that appellants in

allege that

the state

directly, nor does she

any way impeded Degrazia's ability

either

to

seek treatment

or

otherwise

Simply

stated, under

was no

existing authority under which

avoid his

the circumstances alleged

injury.

here, there

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)

constitutional deprivation

(no

parole board releases parolee

later

regardless

of

of life

when

who commits murder five months

whether

parole

board's

actions

-88

proximately caused

murder under state law);

see also Estate

___ ____ ______

of Gilmore, 787 F.2d at 719 ("The [F]ourteenth [A]mendment .

___________
. . does
person

not protect against the deprivation of

at all, but only

against the deprivation

life by any
of life by

the state without due process.").

However,

at the

time of

appellants' actions

(as

well

as today), there were

victim

who dies at the hands of

neither an agent of,

had

some circumstances under which a

clearly

a private individual who is

nor employed by, the state

established

rights

to

protection

Estate of Gilmore, 787 F.2d at 719-23.

__________________

relationship," and thus, a

existed between

appellants and Degrazia because

knowledge of

linking

his name

limited

"as

security."

his

duty to protect,

suicidal tendencies

to

the killings,

greatly

as

Souza's

if

he

argument

from harm.

Souza faintly argues

that a "special

had

nonetheless

first, they

and, second,

Degrazia's freedom
were

fails

locked

by
was

in

maximum

because the

Supreme

Court has made clear that the state has a duty to protect its
citizens

only when

"individual's freedom
incarceration,
personal

it

affirmatively acts
to act

on his own

institutionalization,

liberty."

Social Servs., 489

______________

DeShaney v.
________
U.S.

189, 200

to restrain
behalf --

or other

through

restraint of

Winnebago County Dep't of

__________________________
(1989).

As

explained:
[t]he [Due Process] Clause is phrased as
a limitation on the State's power to act,
-99

the

the

Court

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.
___
not

In DeShaney, the
________
violate

Court held that

child's

due process

county officials did

rights

repeated warnings, they failed to take action

child

from beatings by his father.

"a State's
violence

failure to protect an
simply does not

Process Clause."
We

when,

despite

to protect the

The Court concluded that

individual against private

constitute a violation

of the Due

Id. at 197.
___

agree

with

appellants

that

their

alleged

statements fall outside DeShaney's bounds of constitutionally

________
proscribed
any

time,

conduct.
the

The complaint does

government

interests

so as

to

protect.

DeShaney,
________

restricted

give rise
489 U.S.

to

not allege that, at

Degrazia's

an affirmative

at 200;

see also
___ ____

liberty
duty

to

Monahan v.
_______

Dorchester Counseling Ctr., Inc., 961 F.2d 987, 991 (1st Cir.
________________________________
1992).

Absent the

contemplated by

kind of custodial relationship apparently

the Court, the

Due Process Clause

does not

require the state to protect citizens from "private violence"

in

whatever

complaint

form,

including

alleges

numerous

undoubtedly

suicide.
acts

rendered Degrazia

To

by

be

sure,

the

appellants

more vulnerable to

that

danger in

-1010

the sense that

brought

the kind

would give

Cf. Monahan,
___ _______

against

by the

constitutional duty

rise to

similar

even

However,
state

to protect.

(state official's knowledge

admitted mental patient's propensity

automobiles gave

protect

of "affirmative acts"

rise to a

-- or

suicidal tendencies.

961 F.2d at 992-93

of voluntarily
___________
out of

may have exacerbated

about -- Degrazia's

these are not

that

those acts

to jump

no constitutional duty

occurrence).

Simply

to

stated,

appellants' actions did not "[restrain Degrazia's] freedom to

act on his own
they

could

not

behalf," DeShaney, 489 U.S. at

________
be

reasonably

aware

that

200, and thus

their

actions

violated Degrazia's clearly established rights.

Souza

also

argues that

"conscience-shocking,"
Fourteenth Amendment.
172 (1952), the
pumping
violated
conduct

thus constituting a

violation of the

In Rochin v. California, 342 U.S. 165,

______
__________

suspect's

substantive due
so

actions were

Supreme Court held that evidence obtained by

criminal

was

appellants'

stomach

against

process because the

egregious

as to

"shock

the

his

will

state actor's
conscience."

Accordingly, in the usual course, a plaintiff may establish a

substantive

due

process

shocking" behavior.
37, 43
(1st

through

"conscience-

See, e.g., Harrington v. Almy, 977

___ ____ __________
____

(1st Cir. 1992);

Cir. 1990),

violation

Amsden v. Moran, 904

______
_____

cert. denied,
_____ ______

498 U.S.

F.2d

F.2d 748, 757

1041 (1991).

We

conclude that appellants' actions do not rise to the level of

-1111

"conscience-shocking"
have

conduct.

Like

the Rochin
______

found "conscience-shocking" conduct

engage

in

extreme

or

intrusive

Harrington, 977 F.2d

__________

at 43.

possibility

government

Pittsley
________

that

v.

Warish, 927
______

denied, 502 U.S.

______
harm, may

contact.

While we do not
official's
7

See
___

foreclose the
statements, see
___

n.3 (1st

Cir.), cert.
_____

879 (1991), or other forms of psychological

constitute a violation of

due

process rights, we find

not

rise to that level.7

that we

where state actors

physical

F.2d 3,

Court, we

a citizen's substantive

that the facts

That

alleged here do

said, we pause to make clear

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.
_______
-1212

an integral part of a prosecutor's job, and . . . may serve a

vital public
2606,

2618

function," Buckley
_______
(1993)

(citation

strictly

limited

by the

justice.

We

recognize

pressures,

especially

v. Fitzsimmons, 113
___________
omitted),

prosecutor's

in

that
high

that

S. Ct.

function

is

overarching duty

to

prosecutors
profile

face

cases.

myriad
Nothing,

however, diminishes the trust they hold.

A
wrongful,"

government
Pittsley,
________

necessarily give
claim
first,
Process

against the

official's
927

F.2d

at

rise to a recoverable
official.

the conduct must violate

Clause as

plainly "despicable
7,

conduct

does

and
not

federal civil rights

This result

obtains because,

a right secured

authoritatively interpreted

by the Due
and, second,

that right must be

official's conduct.
under which

"clearly established" at the time

In the end, Souza points to no authority

appellants would be reasonably

alleged conduct would be unlawful.

to establish

of the

that appellants'

Because

acts

aware that their

Souza has failed

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.
reversed.
________

Judgment shall issue for the defendants.

Judgment shall issue for the defendants.
_______________________________________

-1313