868 F.

2d 9
57 USLW 2499

Suzanne GERMANY, Plaintiff, Appellee,

v.
Carol VANCE, et al., Defendants, Appellants.
Suzanne GERMANY, Plaintiff, Appellant,
v.
Carol VANCE, et al., Defendants, Appellees.
Nos. 88-1578, 88-1579.

United States Court of Appeals,

First Circuit.
Heard Dec. 8, 1988.
Decided Feb. 14, 1989.
As Amended Feb. 24, 1989.
Rehearing Denied March 20, 1989.

Steven B. Rosenthal, with whom Bornstein & Rosenthal, Boston, Mass.,

was on brief, for plaintiff, appellee.
Michelle A. Kaczynski, Asst. Atty. Gen., Civ. Bureau, Torts Div., with
whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief for
defendants, appellants.
Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit
Judges.
LEVIN H. CAMPBELL, Chief Judge.

It can be a deprivation "of life, liberty, or property, without due process of law,"
in violation of the Fourteenth Amendment, for state officials to deny a person
"access to the courts." Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52
L.Ed.2d 72 (1977). At issue in this appeal is whether state caseworkers
unconstitutionally denied court access to a juvenile offender committed to their
care. The district court so held, imposing liability upon the caseworkers under
42 U.S.C. Sec. 1983 (1982). The Supreme Court has ruled, however, that

merely negligent actions or omissions by state officials do not "deprive" a

person of life, liberty, or property within the meaning of the Fourteenth
Amendment, and thus are not actionable under section 1983. Daniels v.
Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v.
Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Because the
conduct here in question may have been negligent rather than intentional or
reckless, we vacate and remand for further proceedings.
2

Evidence below indicated that employees of the Massachusetts Department of

Youth Services ("DYS") were told by plaintiff's parents that the parents had
fabricated the assault and battery charge which had caused their teenage
daughter to be placed in DYS custody. The parents' statement thus raised the
likelihood that the girl had been adjudicated a delinquent on the basis of
trumped up testimony. Nonetheless, the DYS employees did not convey what
they had learned either to the girl herself or to the state court which had
adjudged her a delinquent child. As a result, the girl may have remained in
DYS custody--or in particular custodial facilities--for a longer period than she
would have, had the parents' statement been promptly relayed to her or to the
court.

The court below awarded partial summary judgment in favor of the girl on the
issue of the employees' liability, ruling that the DYS employees' conduct had,
as a matter of law, interfered with the girl's constitutional right of access to the
courts. A jury then found that the employees' conduct had harmed the girl and
awarded her $40,000 in compensatory damages against them. In reviewing
these proceedings, we must confront an issue not addressed by the district
court: whether the DYS employees' conduct was "merely negligent"--rather
than "intentional" or "reckless"--in which case it could not have caused an
unconstitutional deprivation of liberty.1 We conclude that defendants' conduct,
while most certainly regrettable, could not be found, as a matter of law on
summary judgment, to be intentional or reckless, rather than merely negligent.2
Thus, the court erred in ruling, as it did, that the employees were summarily
liable for an unconstitutional deprivation of plaintiff's rights. We therefore
reverse the summary judgment for plaintiff and remand for further
consideration of defendants' liability.

I. FACTUAL AND PROCEDURAL BACKGROUND

4

The district court outlined the facts of the case in its memorandum and order
awarding partial summary judgment to plaintiff. Germany v. Vance, 673
F.Supp. 1143, 1145 (D.Mass.1987). This version was based upon the parties'
statement of agreed upon facts and on exhibits and affidavits submitted by the

parties. In the following summary, we rely primarily on the district court

statement.
5

On September 17, 1979, plaintiff Suzanne Hussey Germany, then 16 years old,
was charged with assault and battery upon her father, Michael Hussey. After a
juvenile trial in the Woburn District Court, at which plaintiff's father testified in
support of the charge, she was found delinquent and was committed to the
custody of DYS.3 Plaintiff appealed from the judgment to a jury of six in the
Lowell District Court, where she pleaded delinquent to the charge of assault
and battery. Under the terms of an agreed upon disposition, she was given a
suspended sentence in the custody of DYS, with probation. On March 11, 1980,
after a suspension hearing, her probation was revoked, and she was surrendered
to DYS custody. At that time, defendants Carol Vance, a DYS caseworker, and
John Paladino, a DYS case manager and Vance's supervisor, were assigned by
DYS to supervise plaintiff's care, treatment, and housing.

On March 25, 1980, in the course of a meeting between plaintiff's parents and
defendant Vance, plaintiff's mother told Vance that the alleged assault and
battery by plaintiff on her father had never taken place. The mother said that
the father had lied about the assault in order to obtain DYS services for his
daughter. Plaintiff's father was present and did not deny that he had lied.
Defendants later stipulated that the statement was made by plaintiff's "parents,"
because the father, by his silence, had in effect adopted it. Vance mentioned the
parents' statement in a report that she prepared on or before April 2, 1980, and
submitted to Paladino. Vance and Paladino subsequently discussed the parents'
statement with one another.

Neither Vance nor Paladino told plaintiff of her parents' statement. On April 18,
1980, Paladino submitted a report about plaintiff to the Woburn District Court,
but did not mention the parents' statement. In May 1980, plaintiff's mother
again told Vance that the assault and battery charge had been fabricated. While
plaintiff was under the supervision of Vance and Paladino, she was never
actually incarcerated; during this period she lived in a foster home, her parents'
home, and a friend's home.

On June 9, 1980, because the legal residence of plaintiff's parents had changed,
responsibility for plaintiff's case was transferred from Vance and Paladino to
DYS employees in another region, Mark Mulcahy and James Donadini, Jr.
Shortly before the transfer, copies of all material concerning plaintiff's
commitment and treatment were forwarded to caseworker Mulcahy. Upon
reading this material, Mulcahy learned of the parents' statement that the charges
against plaintiff had been fabricated. Mulcahy immediately notified his

supervisor, Donadini. On the day of the transfer, Mulcahy told plaintiff of her
parents' statement. At a meeting on June 9, 1980, Donadini told plaintiff that
"anything which can be done to help the situation" would be done.
9

Plaintiff remained in DYS custody. Within a few weeks, she wrote a letter to
Judge Cullen of the Woburn District Court informing him of the allegedly
fabricated testimony, but she apparently received no reply. On October 1, 1980,
Donadini sent a letter informing Judge Cullen that plaintiff's parents had
admitted that the charges had been falsified. Upon receipt of Donadini's letter,
Judge Cullen appointed counsel for plaintiff. On November 13, 1980, plaintiff
was placed in an independent living situation. She was discharged from DYS
custody on September 1, 1981, shortly after her 18th birthday.

10

Plaintiff brought this section 1983 action against Vance, Paladino, Mulcahy,
and Donadini, alleging, among other things, that they had deprived her of her
constitutional right of access to the courts.4 The court below awarded partial
summary judgment on the issue of liability in favor of plaintiff against
defendants Vance and Paladino. The district court held that the statement of
agreed upon facts, affidavits, and exhibits established, as a matter of law, that
defendants Vance and Paladino, by failing to inform plaintiff of her parents'
potentially exculpatory statement, had violated plaintiff's constitutional right of
access to the courts. See Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491,
1494, 52 L.Ed.2d 72 (1977). The district court also ruled that the right of access
to the courts had been "clearly established" by 1980, the time of defendants'
conduct in question, and so defendants were not entitled to qualified immunity.
See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982). The case against Vance and Paladino was set for a jury trial on
damages. The district court awarded summary judgment in favor of Mulcahy
and Donadini, holding that they had "promptly relayed the evidence of
recantation to the plaintiff, thereby fulfilling their constitutional duty." 673
F.Supp. at 1148.

11

A two-day trial on damages was held, which included testimony by plaintiff

and by defendants Vance and Paladino. The plaintiff also presented testimony
by a clinical psychologist who had examined plaintiff shortly before the trial
and who stated that defendants' failure to report promptly the parents' statement
to plaintiff had caused her considerable psychological harm. The district court
submitted to the jury the task of assessing compensatory damages. The district
court denied plaintiff's request to instruct the jury that it could also award
punitive damages, holding that plaintiff had not shown the required element of
recklessness.

12

The jury proceeded to award plaintiff $40,000 in compensatory damages.

Following the verdict, the district court denied defendants' motion for judgment
notwithstanding the verdict or for a new trial. The district court also denied
defendants' post-trial motions to alter or amend the partial summary judgment
holding them liable as well as their renewed cross-motion for summary
judgment in their favor.

13

On appeal, defendants call for a reversal of the summary judgment on liability

and for summary judgment in their own favor. In the alternative, defendants ask
for a judgment notwithstanding the verdict on damages or, failing that, a new
trial on damages. Plaintiff cross-appeals on two grounds. First, she asks for a
reversal of the summary judgment on liability in favor of Donadini. Second,
she asks for a reversal of the district court's decision not to instruct the jury on
punitive damages.II. THE RIGHT OF ACCESS TO THE COURTS

14

The district court awarded partial summary judgment on liability to plaintiff, on

the ground that defendants Vance and Paladino had, as a matter of law, denied
plaintiff's "constitutional right of access to the courts." Bounds v. Smith, 430
U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977).5 The court noted
that a recantation by the principal witness against the plaintiff (her father)
would have been grounds for plaintiff, notwithstanding her plea of delinquent,
to make a motion for a new trial in the state district court. By failing to provide
plaintiff with information about the "recantation," defendants deprived plaintiff
of her ability to make such a motion--and, therefore, of her right of access to the
courts.6

15

As the district court has noted, the Supreme Court "emphasized that the states
have an affirmative obligation to assure that inmates have meaningful access to
the courts." Germany, 673 F.Supp. at 1149 (emphasis in original). See Bounds
v. Smith, 430 U.S. at 824, 97 S.Ct. at 1496. Thus, in Bounds, the Supreme
Court held that the Constitution requires that adequate law libraries or other
legal assistance be made available to prisoners. More generally, the Court has
"struck down restrictions and required remedial measures to insure that inmate
access to the courts is adequate, effective, and meaningful." Id. at 822, 97 S.Ct.
at 1495.

16

In the district court's view,

17should have been clear to any official under the circumstances presented by this
It
case that withholding from plaintiff the evidence that her father had recanted his
testimony would deny her "meaningful access" to the courts. See Bounds v. Smith....

The Supreme Court illustrated the constitutional importance of a prison law library
by noting that a prisoner must "know what the law is in order to determine whether a
colorable claim exists...." Bounds v. Smith, 430 U.S. at 825 [97 S.Ct. at 1496].... An
individual certainly has at least as strong a need to know the key facts of his or her
case in order to determine whether a colorable claim exists. Indeed, failure to
disclose facts which are essential to an incarcerated7 individual's claim for relief
may be more effective in denying access to the courts than destroying court papers
or limiting access to the mail.
18

Germany v. Vance, 673 F.Supp. at 1149 (footnote omitted). The district court
noted that defendants' "personal opinions as to the truth or falsity of the
recantation" were beside the point:

19was not for the defendants to determine the strength of plaintiff's claim. Once a
It
principal witness had recanted his testimony, plaintiff had a right to present her case
to a judge, whether or not she would ultimately prevail in her motion.
20

Id. at 1148 n. 2.

21

We agree with the district court that it would be an unconstitutional deprivation

of life, liberty or property for a caseworker having charge of a juvenile offender
in DYS custody to withhold important exculpatory information--provided,
however, that the withholding was intentional or recklessly indifferent. See
infra. It is true that most of the cases involving the right of access involve
situations that are factually dissimilar to the one at hand, regarding inmates'
opportunities to prepare, to possess, and to send legal papers. See Simmons v.
Dickhaut, 804 F.2d 182, 183-84 (1st Cir.1986) (collecting cases). Nevertheless,
the underlying right recognized by the Supreme Court, as well as by many
lower courts, involves not simply a right of prisoners to prepare and dispatch
papers but a more general right of prisoners and criminal defendants to have
access to the courts that is "adequate, effective, and meaningful." Bounds, 430
U.S. at 822, 97 S.Ct. at 1495. In at least two cases, appellate courts have found
that a state official who intentionally withholds evidence that would enable an
individual to prove a claim in court violates the individual's constitutional right
of access. See Bell v. City of Milwaukee, 746 F.2d 1205, 1260-63 (7th
Cir.1984); Ryland v. Shapiro, 708 F.2d 967, 971-75 (5th Cir.1983).8

22

To be sure, if the present potentially exculpatory information had come to the

attention of a state employee having a less responsible relationship to plaintiff,
the question would arise as to whether that employee had any duty to convey
the information to plaintiff or to the courts. But we think that Vance and
Paladino had the requisite duty to look out for plaintiff's interests in this regard.

We have said that

23the state takes a person into custody or otherwise assumes responsibility for that
if
person's welfare, a "special relationship" may be created in respect of that person,
and the fourteenth amendment imposes a concomitant duty on the state to assume
some measure of responsibility for the person's safety and well-being.
24

Estate of Gilmore v. Buckley, 787 F.2d 714, 721 (1st Cir.), cert. denied, 479
U.S. 882, 107 S.Ct. 270, 93 L.Ed.2d 247 (1986). See also Fox v. Custis, 712
F.2d 84, 88 (4th Cir.1983) (collecting cases regarding the state's duty to protect
people in the state's custody). See generally Note, Actionable Inaction: Section
1983 Liability for Failure to Act, 53 U.Chi.L.Rev. 1048 (1986). In the present
case, the DYS's custodial responsibility for plaintiff was being discharged by
Vance, plaintiff's caseworker, and Paladino, Vance's immediate supervisor. As
plaintiff's officially assigned DYS workers, defendants had the sort of "special
relationship" with plaintiff that would give them, in appropriate circumstances,
a duty to take affirmative steps to ensure plaintiff's continuing right of access to
the courts. The fact that plaintiff was a minor could only serve to heighten this
responsibility.

25

Because of this special relationship, the present case is easily distinguishable

from Kompare v. Stein, 801 F.2d 883 (7th Cir.1986), cited by defendants in
support of their contention that they were not constitutionally obligated to
inform plaintiff of the potentially exculpatory information that they had
received. In Kompare, the court held that a medical examiner did not violate
any constitutional duty to a criminal defendant by not revealing exculpatory
information to the grand jury and prosecutor. But the medical examiner lacked
the sort of "special relationship" with a criminal defendant that DYS workers
have with a juvenile under their direct supervision. That the medical examiner
was held to have had no constitutional duty to reveal the exculpatory
information is not determinative of the duty in this case. Other cases cited by
defendants involving officials' alleged failures to investigate claims of
innocence, Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433
(1979); Lopez v. Ruhl, 584 F.Supp. 639 (W.D.Mich.1984), are likewise
inapposite. Plaintiff is not protesting defendants' failure to undertake an
investigation, but rather their failure to convey information that might have
enabled her to obtain a court hearing.

26

As already suggested, plaintiff's status as a juvenile offers no excuse.

Defendants contend that "the Constitutional requirements of Bounds have never
been applied to juvenile correctional systems." We reject any implication that
the constitutional right of access to the courts does not apply to juveniles in

DYS custody. The Supreme Court has clearly recognized the due process rights
of minors in the adjudicatory stage of the juvenile process. In re Gault, 387 U.S.
1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). See Schall v. Martin, 467 U.S. 253,
263, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207 (1984) (reviewing the basic
constitutional protections that apply to juveniles accused of crimes). In deciding
that the "proof beyond a reasonable doubt" standard applies to juveniles, the
Court made an observation that is relevant to this case:
27

It is true, of course, that the juvenile may be engaging in a general course of

conduct inimical to his welfare that calls for judicial intervention. But that
intervention cannot take the form of subjecting the child to the stigma of a
finding that he violated a criminal law and to the possibility of institutional
confinement on proof insufficient to convict him were he an adult.

28

In re Winship, 397 U.S. 358, 367, 90 S.Ct. 1068, 1074, 25 L.Ed.2d 368 (1970)
(footnote omitted). In the present instance, similarly, it might be argued that it
would not have been in plaintiff's best interests to reopen her criminal case. But
by effectively denying plaintiff the opportunity to petition for a new trial,
defendants risked allowing plaintiff to remain branded with a possibly false
adjudication that she had assaulted her father.

29

We hold that a juvenile has a right of access to the courts in the adjudicatory
stage of the juvenile process, including instances in which new evidence may
allow the juvenile to petition the court for a new trial. If new evidence suggests
that a minor may have been unfairly accused of a crime, her custodians have at
least as much of an obligation to take action to enable the minor to clear her
name as would the custodians of an adult inmate. Cf. Coleman v. Alabama, 827
F.2d 1469 (11th Cir.1987) (holding that the failure of state employees to advise
juvenile of his right to request special consideration under state Youthful
Offender Act violated juvenile's due process rights). Indeed, custodians of a
minor may well have a greater obligation to take action to ensure the minor's
"meaningful access" to the courts than do the custodians of an adult inmate,
because of the minor's greater reliance on the correctional system for care and
protection.

30

We agree, then, with the district court's premise that defendants' conduct might
have interfered with plaintiff's constitutionally secured right of access to the
courts. We also agree with the district court that the right of access was
sufficiently clear in 1980, when the conduct in question took place, as to
preclude qualified immunity for defendants, if they willfully or with reckless
indifference interfered with such right. As the district court stated, defendants
can be held liable under section 1983 if they violated a "clearly established ...

constitutional right of which a reasonable person would have known." Harlow

v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
In order to sustain a finding that a "clearly established" right was violated, it is
not necessary for plaintiff to cite cases in which the specific sort of conduct
complained of was found to be unlawful. "It is enough, rather, that there existed
case law sufficient to clearly establish that, if a court were presented with such a
situation, the court would find that plaintiff's rights were violated." Hall v.
Ochs, 817 F.2d 920, 925 (1st Cir.1987). In 1980, the contours of the right of
access to the courts were sufficiently clear so that a reasonable official would
understand that the right would be violated by the intentional or recklessly
indifferent withholding of potentially exculpatory information from an
adjudicated delinquent or from the court itself.III. WAS DEFENDANTS'
CONDUCT "MERELY NEGLIGENT"?
31

The difficulty in this case is whether defendants' conduct was sufficiently

willful or reckless to have violated the Constitution. Denial of the constitutional
right of access to the courts can most clearly be viewed as a denial of the
Fourteenth Amendment guarantee that the state shall not "deprive any person of
life, liberty, or property, without due process of law." See Wolff v. McDonnell,
418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974) ("The right of
access to the courts ... is founded in the Due Process clause").9 In claiming that
defendants interfered with her access to the courts, plaintiff is contending that
she was deprived of liberty without due process of law.

32

In Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986),
and Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986),
the Supreme Court made clear that not all actions of state officials that result in
a loss of life, liberty, or property are "deprivations" within the meaning of the
Fourteenth Amendment. In particular, the Court held that "the Due Process
Clause is simply not implicated by a negligent act of an official causing
unintended loss of or injury to life, liberty or property." Daniels, 106 S.Ct. at
663 (emphasis in original). As a result, such negligent conduct is not actionable
under section 1983.

33

In Daniels, a prisoner sued prison officials under section 1983, alleging that he
was injured when he slipped on a pillow negligently left on a staircase by a
correctional deputy. In Davidson, a prisoner was injured by a fellow prisoner,
after prison officials had negligently failed to take action to protect the inmate.
In both cases, the Court held that the due process clause was not implicated.
The Court noted that the guarantee of due process has historically been applied
to "deliberate decisions of government officials to deprive a person of life,
liberty or property." Daniels, 106 S.Ct. at 665 (emphasis in original) (citations

omitted). The due process clause was " ' "intended to secure the individual from
the arbitrary exercise of the powers of government." ' " Id. (quoting Hurtado v.
California, 110 U.S. 516, 527, 4 S.Ct. 111, 116, 28 L.Ed. 532 (1884), in turn
quoting Bank of Columbia v. Okely, 4 Wheat. (17 U.S.) 235, 244, 4 L.Ed. 559
(1819)). The Court held that negligent conduct does not implicate these
traditional concerns:
34

Far from an abuse of power, lack of due care suggests no more than a failure to
measure up to the conduct of a reasonable person. To hold that injury caused by
such conduct is a deprivation within the meaning of the Fourteenth Amendment
would trivialize the centuries-old principle of due process of law.

35

Daniels, 106 S.Ct. at 665.

36

Intentional interference by government agents with a person's right to life,

liberty, or property may of course activate the protections of the due process
clause. See, e.g., Simmons v. Dickhaut, 804 F.2d 182, 185 (1st Cir.1986). In
Daniels, the Supreme Court left open whether a deprivation under the
Fourteenth Amendment must be intentional, or whether "something less than
intentional conduct, such as recklessness or 'gross negligence,' is enough to
trigger the protections of the Due Process Clause." 106 S.Ct. at 667 n. 2. Cases
in this circuit suggest that government officials may be held liable for a
deprivation of life, liberty, or property without due process if their conduct
reflects a reckless or callous indifference to an individual's rights. See, e.g.,
Maldonado Santiago v. Velazquez Garcia, 821 F.2d 822, 831 (1st Cir.1987);
Clark v. Taylor, 710 F.2d 4, 9 (1st Cir.1983). An official displays such reckless
or callous indifference when it would be manifest to any reasonable official that
his conduct was very likely to violate an individual's constitutional rights.
Although such reckless or callous indifference falls short of intentional or
willful conduct, it still may exemplify the "arbitrary exercise of the powers of
government." Daniels, 106 S.Ct. at 665. Negligence, in contrast--no matter how
"gross" it may be--exemplifies lack of care, rather than the abuse of power.10

37

We apply this standard of "reckless or callous indifference" to the present case.

Plaintiff does not allege that defendants intentionally interfered with her
liberty.11 What plaintiff does allege is that defendants displayed "reckless or
callous indifference" to her rights. Plaintiff made this argument in the court
below, as well as to us, in regard to her request for a jury instruction on punitive
damages. But this argument can be transplanted to the prior question of
defendants' liability. Because we are reviewing the district court's grant of
summary judgment against defendants on liability, we view the evidence in the
light most favorable to defendants. The summary judgment can be sustained

only if, viewing the evidence in their favor, defendants' conduct was not merely
negligent, but deprived plaintiff of her liberty through reckless or callous
indifference.
38

When viewed from this perspective, we conclude that the summary judgment
for plaintiff must be reversed, and the case remanded to the district court for
reconsideration of the issue of liability. Defendants' conduct could be found as
a matter of law to be recklessly or callously indifferent only if defendants
clearly knew (or reasonably should have known) that their failure to report the
parents' statement to plaintiff or to the Woburn District Court was very likely to
deprive her of her constitutionally protected liberty. The evidence on summary
judgment does not compel such a conclusion.

39

Not all decisions to withhold information that might conceivably bear on a

juvenile's case can be viewed as reckless or callous acts. Such a decision is
recklessly indifferent only if the information is of such obvious import that
withholding it would appear very likely to lead to a miscarriage of justice. Clear
evidence of mistaken identity, showing that the wrong person was being held in
custody, might fall into this category. On this record, however, it cannot be said
as a matter of law that defendants knew (or reasonably should have known) that
the parents' statement was of such great significance that failure to transmit it
would be likely to compromise plaintiff's rights.

40

There are several reasons for suspecting that the parents' statement was not of
such clear import as to render the defendants' failure to communicate it to
plaintiff or to the state court a recklessly indifferent act. In the first place,
defendants could not be certain whether or not the parents' statement was true.
Defendants could justifiably have viewed plaintiff's entire family situation as a
confused and pathological one. In this context, they may not have taken the
parents' statement at face value. From defendants' viewpoint, the "recantation"
itself could have seemed a possible fabrication, perhaps because of the parents'
second thoughts about the consequences of the father's earlier truthful
testimony.

41

Second, defendants may have been under the impression that any fabrication of
testimony had been done, in the first instance, with plaintiff's own knowledge
and acquiescence. The following statement in Vance's case report--the same
report that recorded the parents' statement--is consistent with this interpretation:
"Sue [the plaintiff] ... says some of [her] anger towards parents was fabricated
in order for parents to get a placement for her and parents confirm this." If the
father's testimony resulted from collusion between plaintiff and her parents,
there was less reason to convey to plaintiff or even to the court the parents'

admission that the testimony had been fabricated.

42

Third, it was not necessarily clear to defendants that if they were to relay the
parents' statement to plaintiff or to the Woburn District Court, plaintiff would in
turn desire or attempt to reopen the juvenile proceeding. Given that plaintiff
had pleaded delinquent to the assault and battery charge, defendants might have
concluded that plaintiff--despite her protestations of innocence--would prefer
not to reopen the case. Indeed, after the alleged fabrication was reported to the
Woburn District Court judge, plaintiff and her newly appointed lawyer decided
not to petition for a new trial.

43

Fourth, it was not necessarily apparent to defendants that even if the parents'
statement were to be communicated to plaintiff or to the state court, plaintiff's
adjudication as a delinquent would be reversed. When the parents told Vance
that the father had fabricated his testimony, they did not suggest that he was
willing to recant his testimony in court--and, in the process, to admit to perjury.
Even if the father were willing to take this step, it was not entirely clear that the
judge would believe the recantation and grant a new trial.

44

Finally, defendants were not lawyers but caseworkers. What might have seemed
obvious to more legally knowledgeable people might have seemed less clear to
them. Defendants began with the premise that plaintiff had been legally
committed to DYS custody after due consideration of the confused family
situation. Their different focus may have predisposed them to a different
evaluation from what now, in hindsight, seems correct.

45

All of these considerations combine to compel the conclusion that defendants

could not be found, as a matter of law on summary judgment, to have withheld
so manifestly important a datum as to have recklessly or callously deprived
plaintiff of her liberty.12 To these considerations, we add that defendants neither
ignored nor attempted to cover up the parents' statement. Cf. Williams v. City
of Boston, 784 F.2d 430, 435 (1st Cir.1986) (noting that an official cover-up
may violate section 1983 if it deprives a plaintiff of his right of access to the
courts). Vance included the parents' statement in her written report on her
client, and Paladino discussed it with a Woburn District Court probation officer.
Moreover, there is no indication that defendants held any malice toward
plaintiff. To the contrary, the record suggests that Vance and Paladino acted
with concern for plaintiff, doing what they thought to be in her best interests.

46

We conclude, then, that although defendants' conduct was unfortunate and in

poor judgment, it did not necessarily display reckless or callous indifference to

plaintiff's constitutional rights. In its ruling at the close of the trial refusing to
submit the issue of punitive damages to the jury, the district court appears to
have reached the same conclusion. Indeed, the district court went beyond this
conclusion to the finding that, as a matter of law, defendants were not reckless.
In denying plaintiff's motion to instruct the jury on punitive damages, the
district court said:
47

I don't think you have made a case of recklessness.... The defendants made a
fairly technical error, I think, which probably warrants recovery, compensatory
recovery, but I don't see recklessness.

.............................................................
48
...................
49
***
50
51 situation was sufficiently confused to preclude any inference, even of reckless or
The
careless conduct.
52

The district court made this statement when it held that a jury instruction on
punitive damages would not be justified. In a section 1983 case of this type
where liability calls for intentional or reckless conduct, the threshold given to
the jury for its determination of whether to award punitive damages is similarly
phrased--that is, "evil motive or intent, or ... reckless or callous indifference to
the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56, 103
S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). The Supreme Court has held that
"this threshold applies even when the underlying standard of liability for
compensatory damages is one of recklessness." Id. See also Clark v. Taylor,
710 F.2d 4, 14 (1st Cir.1983) (noting that the threshold of conduct for which
punitive damages may be assessed in this type of section 1983 suit is "virtually
the same as that required for an award of compensatory damages"). Thus, the
district court's finding that there was no recklessness for purposes of punitive
damages suggests that there was also no recklessness for purposes of liability.

53

Given this finding by the district court after hearing the evidence at the
damages trial, a strong argument can be made for granting summary judgment
not to plaintiff but to defendants. We prefer not to take this step, however. That
"mere negligence" cannot sustain section 1983 liability was a factor apparently
not considered by the court below when ruling on liability at the summary
judgment stage. Therefore, we think it more appropriate to remand the case to
the district court to reconsider the issue of liability under the proper standard.

Plaintiff has argued to us a view of the evidence that might suggest that
defendants were in fact recklessly or callously indifferent. This argument, in a
nutshell, is that defendants' decision to withhold the potentially exculpatory
information from plaintiff reflected the self-righteous attitude that plaintiff
must have been guilty of the alleged offense, and even if she was not, she was
still a problem child who should remain in DYS custody. We are not convinced
that this theory--in effect, an indictment of DYS employees' alleged
paternalism--would suffice to ground a jury finding of "reckless and callous
indifference" under the circumstances of this case. Rather than deciding the
issue, however, we remand it to the district court for consideration.
54

On remand, the district court may or may not, at its discretion, admit further
materials relevant to defendants' cross-motion for summary judgment. The
district court may conclude, consistent with its own finding at the close of the
trial on punitive damages, that the evidence cannot as a matter of law sustain a
finding of liability and that summary judgment for defendants is appropriate.
Alternatively, the district court may order a trial, to consider the issue of
liability as well as of damages, infra.

IV. THE SUMMARY JUDGMENT FOR DONADINI

55

The original defendants in the case included Mark Mulcahy and James
Donadini, Jr., the DYS caseworker and assistant regional director who assumed
responsibility for plaintiff after her case had been transferred to a new region.
After learning of plaintiff's parents' statement that the father's testimony had
been fabricated, Mulcahy and Donadini immediately relayed this information to
the plaintiff. The district court found that this action by Mulcahy and Donadini
"fulfill[ed] their constitutional duty." Germany, 673 F.Supp. at 1148. The court
therefore granted summary judgment in favor of Mulcahy and Donadini.
Plaintiff appeals only from the summary judgment for Donadini. We affirm the
summary judgment for Donadini, although on different grounds from those
relied on by the district court.

56

The district court found that on June 9, 1980, after reporting the parents'
statement to plaintiff, Donadini told plaintiff that " 'anything which can be done
to help the situation' would be done." Id. at 1145. Plaintiff contends that
Donadini took no action until almost four months later, on October 1, 1980. At
that time, Donadini sent a letter to Judge Cullen of the Woburn District Court,
informing him that plaintiff's parents had admitted that the charges against
plaintiff had been "falsified in an effort to obtain services for Suzanne."
Plaintiff suggests that Donadini's delay in informing the court of the alleged
falsification constituted an unconstitutional denial of access to the courts.

Plaintiff also argues that she relied on Donadini's assurance that "anything that
could be done for me would be done." By failing to discharge the responsibility
that he had assumed, plaintiff argues, Donadini effectively deprived her of the
opportunity to petition the court for relief.
57

The district court seems to have decided that by relaying the parents' statement
to plaintiff, Donadini (along with Mulcahy) automatically "fulfill[ed] [his]
constitutional duty." Id. at 1148. To the extent that it equated conveying this
information to plaintiff with safeguarding plaintiff's liberty, the district court
erred. Suzanne Hussey (Germany) was 16 years old and had not completed the
tenth grade at the time that she was informed of her parents' statement. We
cannot say that under these circumstances simply relaying the parents'
statement to plaintiff was the sort of "affirmative conduct" needed to ensure her
right of access to the courts. It is possible that a DYS employee entrusted with
the supervision of a minor had the duty to take further steps--for example, by
personally bringing the information to the attention of the court or, at least, to
some other DYS official or legal officer who could be expected to take proper
action.

58

Despite this, we affirm the summary judgment for Donadini because it is

apparent that his delay in reporting the information to Judge Cullen, after
having earlier advised plaintiff, was, at worst, merely negligent. There is no
evidence to suggest that Donadini's delay was either intentional or reckless. See
Daniels, 106 S.Ct. 662; Davidson, 106 S.Ct. 668. Donadini did not set out to
deprive plaintiff of her liberty, nor was it self-evident that his delay would
make such a deprivation very likely. Moreover, plaintiff's argument about the
paternalism of DYS employees seems less applicable to Donadini's delay--after
plaintiff herself had been told of her parents' statement--than it is to Vance's
and Paladino's failure to tell plaintiff of the statement. We conclude, therefore,
that under the Supreme Court's holdings in Daniels and Davidson, the
complaint against Donadini must be dismissed.

V. DAMAGES
59

In addition to their appeals from the summary judgments, defendants appeal

from the jury award to plaintiff of $40,000 in compensatory damages.
Defendants protest, in particular, that the district court erred in admitting
evidence of events that occurred after plaintiff had left Vance's and Paladino's
supervision. Plaintiff, for her part, appeals from the district court's failure to
instruct the jury that it could award punitive damages to plaintiff. Because we
have reversed the summary judgment in favor of plaintiff against Vance and
Paladino, we need not confront these issues at this time. It is possible that the

district court, on remand, will award summary judgment to defendants and that,
therefore, a new trial will not take place. In the event that a new trial does take
place, however, we see no clear error in the district court's admission of the
evidence of damages suffered by plaintiff after she had left Vance's and
Paladino's supervision. The district court's instruction sufficed to make clear to
the jury that it could impose damages only if it found that the harm had actually
been caused by defendants' conduct.
60

We also observe that damages may be imposed in a new trial only if the jury
finds that defendants recklessly or callously deprived plaintiff of her liberty. If
a jury were to make such a finding, it would be appropriate for it to consider
punitive, as well as compensatory, damages. As discussed above at page 20, in
a section 1983 case involving the deprivation of liberty without due process,
the standards for a) imposing liability and b) allowing a jury to consider
punitive damages are virtually identical.

VI. CONCLUSION
61

For the reasons stated, summary judgment for plaintiff against defendants
Vance and Paladino is reversed. On remand, the district court is directed to
reconsider Vance's and Paladino's liability, in conformity with the standards
that we have enunciated. The district court may either award summary
judgment in favor of Vance and Paladino, or it may order a new trial on both
liability and punitive damages. The jury's present finding on compensatory
damages may, in such event, stand unless the district court determines, in its
discretion, that it should hold a new trial on compensatory damages also. See
Winn v. Lafayette Town House, 839 F.2d 835 (1st Cir.1988); Crane v.
Consolidated Rail Corp., 731 F.2d 1042, 1049-51 (2d Cir.1984) (discussing
factors relevant to conducting retrial limited to liability). Summary judgment in
favor of Donadini is affirmed.

62

Vacated and remanded for proceedings consistent herewith.

MEMORANDUM AND ORDER

63

In her petition for rehearing, Germany argues that we were wrong to apply the
Supreme Court's holding in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662,
88 L.Ed.2d 662 (1986), to the present case. But the Court's explicit and
unqualified language in Daniels leaves little room for debate:

64 conclude that the Due Process Clause is simply not implicated by a negligent act
We
of an official causing unintended loss of or injury to life, liberty, or property.

65

474 U.S. at 328, 106 S.Ct. at 663 (emphasis in original). Germany does not
dispute the holding of the district court, which we adopted, that the right of
access to the courts is based in the Due Process Clause. Therefore, Daniels
must prevail. To the extent that the many pre-Daniels cases cited by Germany
suggest anything different, they must be viewed as having been overruled by
Daniels.

66

Germany also notes that two First Circuit cases that we cited, allowing for
recovery of damages caused by "reckless or callous indifference" to
constitutional rights, involved prison officials. Maldonado Santiago v.
Velazquez Garcia, 821 F.2d 822, 831 (1st Cir.1987); Clark v. Taylor, 710 F.2d
4, 9 (1st Cir.1983). She argues that we inappropriately extended this standard to
all government officials, such as the caseworkers in the present case. But
Germany fails to come to terms with the fact that the Supreme Court's holding
in Daniels--that mere negligence does not implicate the Due Process Clause--is
not restricted to prison officials.* The "reckless or callous indifference" standard
is one that is not inconsistent with Daniels, see 474 U.S. at 334 n. 3, 106 S.Ct.
at 666 n. 3, and that stays in harmony with our circuit's precedents.

67

Our opinion is also consistent with DeShaney v. Winnebago County

Department of Social Services, --- U.S. ----, 109 S.Ct. 998, 103 L.Ed.2d 249
(1989), announced by the Supreme Court after our opinion in the present case
was issued. In DeShaney, the Court held that the failure of state social workers
to remove a child from the custody of an abusive father, who proceeded to
cause tragic injury to the child, did not violate the child's rights under the Due
Process Clause. The Court held that "[a]s a general matter, ... a State's failure to
protect an individual against private violence simply does not constitute a
violation of the Due Process Clause." --- U.S. at ----, 109 S.Ct. at 1000. In the
present case, in contrast, we held that the defendant caseworkers had an
affirmative obligation to plaintiff Germany because of the "special
relationship" (custodial in nature) between these state officials and a juvenile in
their custody. At ---- - ----. This holding is in accord with the Supreme Court's
observation in DeShaney that "when the State takes a person into its custody
and holds him there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his safety and general
well-being." --- U.S. at ----, 109 S.Ct. at 1005 (citing Youngberg v. Romeo, 457
U.S. 307, 317, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982)).

68

When there is such an affirmative duty, nothing in DeShaney suggests that a

merely negligent breach of that obligation could constitute a violation of the
Due Process Clause. The very same factors that created an affirmative duty
here (a custodial relationship) created the duty in Daniels, where the Court

rejected a mere negligence standard. DeShaney forcefully restates the Court's

view that "the Due Process Clause ... does not transform every tort committed
by a state actor into a constitutional violation." --- U.S. at ----, 109 S.Ct. at 1006
(citing, inter alia, Daniels, 474 U.S. at 335-336, 106 S.Ct. at 667). Indeed,
Justice Brennan's dissent in DeShaney acknowledges the following:
69
[T]hat
the Due Process Clause is not violated by merely negligent conduct, see
Daniels, supra, and Davidson v. Cannon, 474 U.S. 344 [106 S.Ct. 668, 88 L.Ed.2d
677] (1986), means that a social worker who simply makes a mistake of judgment
under what are admittedly complex and difficult conditions will not find herself
liable in damages under Sec. 1983.
70

--- U.S. at ----, 109 S.Ct. at 1012 (Brennan, J., dissenting). Justice Brennan's
observation is strikingly apt in the present case.

71

The petition for rehearing is denied.

Defendants did not emphasize this argument in their brief to us, and it is not
clear whether they raised the argument before the district court. But because it
involves so basic an issue of constitutional law--involving the imposition of
section 1983 liability on state employees for arguably negligent conduct--we
hold that it belongs to the very small category of important issues that should be
reviewed on appeal notwithstanding the failure of the parties to raise it properly
below. See United States v. Krynicki, 689 F.2d 289, 291 (1st Cir.1982) (noting
that in exceptional cases an appellate court will review questions of law neither
pressed nor decided below) (citing United States v. Miller, 636 F.2d 850, 853
(1st Cir.1980))

In characterizing defendants' conduct as "merely negligent," we do not mean to

condone it. To the contrary, it seems to have reflected a serious, if nonmalicious, professional misjudgment. We use the phrase "merely negligent"
only for the purpose of distinguishing negligent conduct, which cannot
constitute a violation of the due process clause, from "intentional" or "reckless"
conduct, which can constitute such a violation

Under Massachusetts law, a minor found to have violated the criminal law is
ordinarily not convicted and sentenced like an adult criminal but may instead be
adjudicated a delinquent and committed to the custody of DYS. See Mass.Gen.
Laws ch. 119, Sec. 58 (1984)

Plaintiff also claimed that defendants had deprived her of her right to counsel

and of her right to be free from unreasonable seizures. The district court
dismissed these claims, 673 F.Supp. at 1147, and plaintiff does not renew them
in her appeal to us
5

Our discussion in this part and part III focuses on defendants Vance and
Paladino. We deal specifically with defendant Donadini in part IV, at page 21,
infra

It is not, in fact, clear that the father had "recanted" his testimony. To "recant,"
as defined in Black's Law Dictionary, is "[t]o withdraw or repudiate formally
and publicly." The statement by plaintiff's mother, in front of the father, that the
charge had been falsified was made in conversation with Vance, not in any
formal proceeding. Nevertheless, the statement was obviously strong evidence
that the assault and battery charge had been trumped up, and certainly provided
grounds to inquire into the earlier delinquency finding

As noted above, plaintiff was not in fact "incarcerated" during the time that she
was under the supervision of Vance and Paladino. During that period she lived
at a foster home, her parents' home, and a friend's home. However, she was at
all times in DYS custody pursuant to an adjudication of delinquency resulting
from the purported assault on her father. A person in such a status undoubtedly
has a right of access to the courts for the redress of any injustice in the
proceedings leading to her adjudication as delinquent and commitment to DYS
custody

As defendants note, these cases involve intentional, rather than arguably

negligent, acts by state officials. We return to the matter of the intentional or
negligent character of the officials' conduct at page 18, infra

The right of access to the courts has also been viewed as founded in the First
Amendment right to petition the government, see California Motor Transport
Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d
642 (1972), and as being one of the privileges and immunities accorded to
citizens under Article IV and the Fourteenth Amendment. See Chambers v.
Baltimore & Ohio R. Co., 207 U.S. 142, 148, 28 S.Ct. 34, 35, 52 L.Ed. 143
(1907). For discussions of the constitutional underpinnings of the right of
access to the courts, see Simmons v. Dickhaut, 804 F.2d 182, 183 (1st
Cir.1986); Bell v. City of Milwaukee, 746 F.2d 1205, 1262-63 (7th Cir.1984);
Ryland v. Shapiro, 708 F.2d 967, 971-72 (5th Cir.1983). We follow the district
court's view that the right of access to the courts is a species of due process
right, because this seems to be the clearest and most direct derivation of the
right of access. Neither party takes issue with this analysis. Thus, we need not
consider whether our discussion of negligent and intentional conduct would be

any different if the denial of the right of access were viewed as a violation of
the First Amendment or of the privileges and immunities clause
10

The distinction among such categories as "negligence," "reckless or callous

indifference," and "intentional" conduct can be elusive. According to general
tort principles, however, a central distinction among these categories involves
the actor's degree of certainty that negative consequences will result from his
act or omission. If a person acts either with the desire to cause the harm or with
the belief that the harm is certain to result, the action is labeled "intentional." If
the actor has no such desire or belief, but acts unreasonably in light of the risks,
his behavior is labeled "negligent." Between the poles of "intent" and
"negligence" lies the gray area of "reckless indifference." See W.P. Keeton, D.
Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts Sec. 31,
at 169-70 (5th ed.1984). In the present context, involving concerns about the
abuse of power, we find it most appropriate to view "reckless or callous
indifference" not as a heightened degree of negligence (akin to "gross
negligence"), but rather as a lesser form of intent. An intentional violation of a
person's constitutional rights occurs if the official desires to cause such a
violation or believes that his conduct is certain to result in such a violation. A
recklessly or callously indifferent violation occurs, in contrast, if the official
believes (or reasonably should believe) that his conduct is very likely (but not
certain) to result in such a violation. See Restatement (Second) of Torts Sec.
500, comment f (1977) (comparing intentional misconduct and recklessness).
Cf. Cook v. Avien, Inc., 573 F.2d 685, 692 (1st Cir.1978) (approving the view,
in the context of a securities fraud case, that "reckless conduct 'comes closer to
being a lesser form of intent than merely a greater degree of ordinary
negligence' ") (quoting Sanders v. John Nuveen & Co., 554 F.2d 790, 793 (7th
Cir.1977))

11

It is true that the evidence could support the finding that defendants' omissions
were deliberate, in the sense of being consciously intended rather than purely
inadvertent. Thus, there is no contention that Vance and Paladino simply forgot
to tell plaintiff about her parents' statement. To the contrary, Vance and
Paladino may have decided not to relay the information. But the fact that an act
or omission is deliberate, rather than inadvertent, does not mean that it should
necessarily be characterized as "intentional." In the Davidson case, defendant
Cannon, the assistant superintendent of the prison, failed to act to protect
inmate Davidson, not out of inadvertence, but because he "mistakenly believed
that the situation was not particularly serious." Davidson, 106 S.Ct. at 670. The
Supreme Court regarded Cannon's failure to take corrective action not as an
intentional act, but as an instance of "lack of due care." Id. As Justice Blackmun
noted in his dissenting opinion, "It is important not to confuse negligence with
the absence of deliberate action. Negligent acts are often deliberate." Davidson,

106 S.Ct. at 673 n. 2 (Blackmun, J., dissenting) (citing W. Prosser & W.

Keeton, Law of Torts Sec. 31, at 171 (5th ed.1984)
12

In this respect, this case seems analogous to Davidson v. Cannon, 106 S.Ct. at
670, in which the Supreme Court accepted the district court's finding that the
failure of a prison employee to protect an inmate, because he "mistakenly
believed that the situation was not particularly serious," was negligent, but not
intentional or reckless

Of course, even if the Daniels standard is viewed as specially applicable to

prison-type situations, this does not make it irrelevant here: the "special
relationship" which, as we held, imposed a duty upon the defendant
caseworkers grew out of the custodial nature of the relationship. Thus an
analogy to prisoner cases, far from being remote, is direct and obvious