Rivera v. Rhode Island

Decision Date22 March 2005
Docket NumberNo. 04-1568.,04-1568.
Citation402 F.3d 27
PartiesIris RIVERA, Individually and as Administratrix of the Estate of Jennifer Rivera, Plaintiff, Appellant, v. State of RHODE ISLAND; City of Providence; Emilio Matos, Individually; John Finegan, Individually; Randy White, Individually; George Page, Individually; Urbano Prignano, Jr., Individually and in his Official Capacity as Chief of Police for the City of Providence; Police Department of the City of Providence, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Michael T. Eskey, with whom Amato A. DeLuca, Miriam Weizenbaum, DeLuca & Weizenbaum Ltd., Nick Brustin, and Cochran, Neufeld & Scheck, LLP were on brief, for Appellant.

Marc DeSisto, with whom Kathleen M. Daniels and DeSisto Law were on brief, for Appellees Randy White and George Page.

Joseph F. Penza, Jr., with whom Martin K. DeMagistris and Olenn & Penza, LLP were on brief, for Appellees Emilio Matos and John Finegan.

Kevin F. McHugh, Assistant City Solicitor, Providence Law Department, with whom Joseph M. Fernandez, City Solicitor, and Caroline Cole Cornwell, Assistant City Solicitor, were on brief, for Appellees City of Providence and Urbano Prignano, Jr.

Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

In May 2000, fifteen year old Jennifer Rivera was shot dead in front of her house in Providence, Rhode Island, to stop her from testifying at a murder trial that she saw Charles Pona, the defendant in the trial, fleeing from the scene of the murder of Hector Feliciano in August of 1999. Her death has been avenged in one sense: Charles Pona, who ordered her murder, was convicted of her murder in state court. Charles Pona was sentenced to life plus twenty years.

Iris Rivera, Jennifer's mother, seeks to avenge her daughter's death in another sense. She filed a federal lawsuit alleging the police had violated Jennifer's constitutional substantive due process right to life by failing, after promising to do so, to protect Jennifer from the danger posed by Pona if she agreed to testify against him. She sued the Providence Police Department (PPD); police officers Matos and Finegan and state Assistant Attorneys General White and Page, whom she said acted directly to compel Jennifer to testify; the Providence Police Chief Urbano Prignano for failing to train and properly supervise his officers; and the City for having a policy and practice of not protecting endangered witnesses who were given assurances of protection.1 In addition to her federal constitutional claims, the sole basis on which she is in federal court, Rivera brings claims under Rhode Island law.2

It would be inhumane not to feel a sense of outrage over Jennifer's death, or a sense of deep sympathy for Iris Rivera who has lost her daughter. But our question is one of federal law, not one of sympathy. The Supreme Court has said that only in very rare situations will the state's failure to protect someone amount to a constitutional violation, even if the state's conduct is grossly negligent. The Court has cautioned that "[t]he doctrine of judicial self-restraint requires [courts] to exercise the utmost care whenever [they] are asked to break new ground in this field." Collins v. City of Harker Heights, 503 U.S 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Based on the facts alleged in the complaint, we conclude that this is not one of those rare cases.

The most difficult analysis involves those constitutional claims against the police officers and state attorneys who made the promises.3 In fact, it may be that the officers made no promises or contingent promises at best. It may be that they intended to keep or tried to keep the promises, but were unable to guarantee Jennifer's safety. We do not know the defendants' version of the events. They chose to test the plaintiff's claims by motion to dismiss, so we must assume the truth of everything alleged by the plaintiff in the complaint. Still, we conclude that the plaintiff has not stated a claim of violation of Jennifer's federal constitutional rights. For that reason, the claims against all defendants were properly dismissed. Whether the plaintiff has some recompense under the laws of Rhode Island is another matter for Rhode Island to decide. Whatever recompense there can be to Jennifer and Iris Rivera, it is not to be found in this case.

We explain our reasons, starting with the allegations in the complaint.


We look only to the allegations in the complaint4 and take them as true, as required in a Rule 12(b)(6) motion.

On August 28, 1999, Hector Feliciano was shot to death in a vacant lot next to Jennifer Rivera's home. Fifteen year old Jennifer Rivera, who lived at 95 Congress Street in Providence, Rhode Island, heard gun shots, went to her kitchen window, and saw a dark skinned man scale the fence of the lot and drive away in a sport utility vehicle. At the request of a Providence police officer, Jennifer went to the police station that same day and signed a witness statement.

On August 31, at the request of Feliciano's family, she went to the police station a second time. She signed another statement and identified Charles Pona from police photographs as the man she saw fleeing the crime scene. On October 28, 1999, Charles Pona was arrested for the murder of Feliciano. On November 1, 1999, he began serving a six-month sentence on unrelated charges.

Starting in November of 1999, Rivera was continually threatened with death if she agreed to testify as to the murder she witnessed. At this time, Jennifer and her mother informed Jennifer's counselor of the death threats that she had been receiving. The PPD and Providence police detectives were immediately notified of the threats against Jennifer's life if she were to testify about having witnessed the murder.

"[S]oon thereafter, the PPD repeatedly assured her she would be safe." The PPD also informed defendants White and Page, prosecutors in the Attorney General's office, of the threats against Jennifer.

Based on these promises of protection, Jennifer agreed to and did testify at the grand jury hearing on November 15, 1999.

Another fifteen year old boy testified at this grand jury hearing as well, apparently also identifying Pona. That evening a passenger in an automobile pointed a gun at this boy's sister and asked where her brother was. Upon learning of these threats, the PPD placed the boy in a witness protection program that same day.

The threats against Jennifer's life, if she agreed to testify against Pona, continued. Specifically, Police Detectives Matos and Finegan were repeatedly informed of the death threats made against Jennifer. On November 23, 1999, Detective Finegan confirmed that he had received the information regarding the threat and indicated that he would speak with Jennifer. In January 2000, a detective of the PPD contacted Jennifer's counselor to confirm that he was aware of the threats against Jennifer's life as a result of her willingness to testify about having witnessed the murder.

On March 1, 2000, Charles Pona was indicted on charges of murdering Hector Feliciano, and on April 22, 2000, he was released on bail after completing his six-month sentence on unrelated charges. All defendants were aware of the release of Charles Pona.

On May 15, 2000, a subpoena was issued by defendants White and Page to Jennifer to appear in court at 9:30 on May 22 to testify in the murder trial of Charles Pona. White and Page were aware of the threats being made against Jennifer's life if she agreed to testify. On May 16, the PPD notified Jennifer that she was required to testify on May 22, 2000. As late as May 17, 2000, Jennifer told the defendants White and Page and a PPD detective that she was afraid to go to court because she would be killed. Again, the defendants promised to protect her in order to secure her testimony.

As a result of the promises for protection, Jennifer continued in her willingness to testify to what she had seen on the day of the murder and to identify Charles Pona at trial as the killer of Feliciano.

On May 21, 2000, Jennifer Rivera was standing in front of her house when a young man with a hooded shirt stepped out of a car, grabbed her, and shot her in the head. Dennard Walker, Pona's half brother, shot Jennifer and was convicted for her murder. On November 12, 2003, Charles Pona was convicted of Jennifer's murder and conspiracy to commit murder because he had ordered Jennifer killed.

The complaint alleges that despite the repeated threats to Jennifer's life, her repeated requests for protection, and the defendants' repeated assurances that they would protect her, the defendants took no action to protect Jennifer including, among other things, failing to place her in the state's witness protection program. Rivera alleged that the defendants undertook a duty to protect Jennifer by identifying her as a witness to the murder and taking her statement, promising to protect her if she testified, and subpoenaing her to testify before the grand jury and at the trial of Charles Pona, "knowing that she was reluctant to testify without such protection because of the repeated death threats she had received."

The complaint also alleges that the City of Providence and the PPD maintain legally inadequate training and supervision of employees, including the individual defendants, for protecting witnesses.

Rivera alleged in the complaint that by failing to protect Jennifer the defendants acted with "deliberate indifference to [Jennifer's] constitutional rights" and that the defendants' conduct "shocks the conscience."

II. Defendants Matos, Finegan, White, and Page
A. Standard of Review

With respect to defendants Matos, Finegan, White, and Page, the district court dismissed the case against them for failure to state a claim under Fed.R.Civ.P. 12(b)(6). This court re...

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