Soto-Torres v. Fraticelli
Filing
OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [10-1619]
Case: 10-1619
Document: 00116248449
Page: 1
Date Filed: 08/19/2011
Entry ID: 5573818
United States Court of Appeals
For the First Circuit
No. 10-1619
GERMAN A. SOTO-TORRES,
Plaintiff, Appellee,
v.
LUIS FRATICELLI, Special Agent in Charge,
Defendant, Appellant,
ROBERT MUELLER, Director of the Federal Bureau of Investigation;
CONJUGAL PARTNERSHIP MUELLER-DOE; CONJUGAL PARTNERSHIP
FRATICELLI-DOE; TEN UNKNOWN AGENTS OF THE
FEDERAL BUREAU OF INVESTIGATION,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. Garcia-Gregory, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
H. Thomas Byron III, Appellate Staff, Civil Division, with
whom Tony West, Assistant Attorney General, Rose E. RodriguezVelez, United States Attorney, and Barbara L. Herwig, Appellate
Staff, Civil Division, were on brief, for appellant.
Francisco M. López-Romo, with whom Edgar R. Vega-Pabón was
on brief, for appellee.
August 19, 2011
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LYNCH, Chief Judge.
the
Special
operations,
Agent
Luis
in
Charge
Fraticelli,
Date Filed: 08/19/2011
Entry ID: 5573818
The question before us is whether
(SAC)
who
of
is
the
sued
FBI's
in
Puerto
his
Rico
individual
capacity, is entitled to qualified immunity on the grounds that
German A. Soto-Torres's second amended complaint failed to meet the
requirements of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
Soto-
Torres brought suit asserting claims of unlawful detention and
excessive force under a Bivens theory.
See Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Soto-Torres complains of actions during the September 23,
2005, execution of a search warrant by FBI or other federal agents
on the residence of Filiberto Ojeda Rios, a notorious fugitive and
convicted felon who was thought to be dangerous and hiding in a
house in Hormigueros, Puerto Rico.
property of Soto-Torres's parents.
That house was near the
The complaint alleges that, in
the course of these operations, unnamed FBI agents assaulted SotoTorres, pushed him to the ground and handcuffed him, and detained
him in handcuffs for approximately four hours without explaining
the basis of his detention.
Although SAC Fraticelli was in charge
of the operation, he was not present during the operation and had
no personal contact with Soto-Torres.
The complaint originally named as defendants Fraticelli
and ten unknown FBI agents, in their official and individual
capacities,
as
well
as
FBI
Director
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Mueller
in
his
official
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capacity.
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Entry ID: 5573818
Only the Bivens claim against Fraticelli remains1 and is
before us. The complaint was filed about one year after the event;
Soto-Torres filed his first amended complaint about two years
later.
His second amended complaint was filed in October 2009,
after the decision in Iqbal.
Defendants
originally
moved
for
summary
judgment
on
grounds of qualified immunity, which the district court denied.
The Supreme Court then decided Iqbal, after which defendants filed
a Rule 12(c) motion requesting judgment on the pleadings on SotoTorres's personal capacity claims against Fraticelli; defendants
also moved to dismiss the official capacity claims against Mueller,
Fraticelli, and the unnamed agents pursuant to Rule 12(b)(1) on
grounds of sovereign immunity.
Torres
to
amend
his
The district court allowed Soto-
complaint
in
light
of
Iqbal
and
denied
defendants' 12(b)(1) motion without prejudice so that it could be
re-filed after the complaint was amended.
After Soto-Torres filed
his second amended complaint, defendants renewed their motion. The
district court granted the motion to dismiss the official capacity
claims against Mueller, Fraticelli, and the unnamed agents, but it
denied the motion as to the personal capacity claims, including
those against Fraticelli.
Fraticelli filed this interlocutory
appeal from that denial.
1
The plaintiff has never identified the John Doe unnamed
FBI agent defendants.
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We hold that plaintiff's pleadings are insufficient under
Iqbal, reverse, and direct entry of judgment for Fraticelli.
I.
In an interlocutory appeal from the denial of qualified
immunity on a motion to dismiss on the pleadings, we accept the
well-pleaded facts of the plaintiff's claim as alleged in the
complaint.
Iqbal, 129 S. Ct. at 1950.
We do not accept the
complaint's legal conclusions or "'naked assertion[s]' devoid of
'further
factual
enhancement.'"
Id.
at
1949
(alteration
in
original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557
(2007)); see also Maldonado v. Fontanes, 568 F.3d 263, 266 (1st
Cir. 2009).
We provide some undisputed background facts, agreed upon
by the parties. Soto-Torres's claims arise out of an FBI operation
to apprehend Filiberto Ojeda Rios, a Puerto Rico fugitive and
leader of the Macheteros group.
The Macheteros have claimed
responsibility for acts of violence in Puerto Rico, including the
murders of a police officer in 1978 and U.S. Navy sailors in 1979
and 1982.
In 1983, Macheteros operatives robbed a Wells Fargo
facility in West Hartford, Connecticut.
Two years later, when FBI
agents acted to arrest Ojeda and other Macheteros members in
connection with the robbery, Ojeda shot and wounded an agent.
He
was acquitted of the shooting charge in a 1989 trial in which he
represented himself.
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In 1990, while released on bond pending his trial for the
armed robbery charges, Ojeda severed his electronic monitoring
device and fled; the next day the U.S. District Court for the
District of Connecticut issued a warrant for his arrest.
In 1992,
Ojeda was tried in absentia for the armed robbery, convicted on
fourteen counts, and sentenced to fifty-five years in prison.
In early September 2005, the San Juan FBI determined that
Ojeda was living in a house in Hormigueros on the west side of
Puerto Rico.
At this time there were warrants for Ojeda's arrest
both for his 1990 flight and for his 1992 conviction.
Consistent
with the hazards of the operation, on September 22, 2005, "a team
of
FBI
sniper-observers
residence."
initiated
surveillance
of
the
Ojeda
Their surveillance "continue[d] until September 23,
2005."
The parents of Soto-Torres lived within "hundreds of
feet" of this Ojeda target residence.
adjoin,
and
from
Soto-Torres's
The two properties did not
parents'
home
"there
was
no
visibility toward the targeted residence" due to "the topography of
the place."
No warrant was requested to search Soto-Torres's
parents' property.
During the period of the FBI surveillance,
Soto-Torres went to his parents' property "on a daily basis" to
feed his horse.
On September 23, 2005, at approximately 3:45 p.m., SotoTorres arrived at his parents' property to feed his horse and work
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on fences on the property.
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Entry ID: 5573818
At some point between 4:10 p.m. and
4:15 p.m., two unidentified helicopters flew overhead and "several
vehicles . . . full of armed federal agents" arrived at the
property.
Soto-Torres alleges that these agents "assaulted and
pushed [him] to the floor" and that he was subsequently "detained
and handcuffed behind his back for almost four hours" while being
"strongly interrogated by several federal agents."2
He alleges
that the agents "pointed their firearms" toward him for "most of"
this time and threatened to put him in prison.
He alleges that he
was not told what was happening until his eventual release at
around 8:00 p.m., "having be[en] placed under the most severe
mental distress for almost four (4) hours."
As injury, he alleges
that this detention and treatment caused him "physical harm and
emotional suffering," such that he "required psychological and
medical treatment."3
2
The complaint's allegations that Soto-Torres was
"illegally and unreasonabl[y] detained" and that "excessive force"
was used in pushing him to the floor are legal conclusions that are
not to be credited. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009).
3
He also claims that there were several residences closer
to the targeted residence in which no one was detained or
handcuffed.
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Soto-Torres does not allege that SAC4 Fraticelli was
present when these events occurred or that Fraticelli witnessed
their occurrence. Rather, he makes only two relevant allegations.
He alleges that Fraticelli "was the officer in charge during the
incident"
and
that
he
"participated
in
or
directed
the
constitutional violations alleged . . . or knew of the violation[s]
and failed to act to prevent them."
These are the only allegations
that address Fraticelli's involvement in Soto-Torres's detention.5
4
Each of the FBI's fifty-six field offices, also called
divisions, across the United States and in Puerto Rico is overseen
by a Special Agent in Charge (SAC), except for the field offices in
Los Angeles, New York City, and Washington, D.C., which are headed
by Assistant Directors in Charge due to those offices' large size.
See Local FBI Offices, http://www.fbi.gov/contact-us/field (last
visited Aug. 12, 2011).
5
Soto-Torres's complaint also alleges that his detention
would have been prevented if the FBI had taken the time to
"investigate and to determine who [he] was" prior to executing the
warrant, and that "Fraticelli incurred [sic] in deficient decisions
reflecting inadequate assessment of the known circumstances leading
to the detention."
The complaint states that the FBI began
surveillance on September 19 "following and receiving direct orders
from defendant Fraticelli," that Soto-Torres went to his "parent's
property on a daily basis . . . in the same vehicle which was
registered under his name and address," and consequently that the
FBI agents would have been "able to get the vehicle's license
plates to determine who [he] was and to investigate all they
need[ed] to know about the property owners in the property
registry."
All of these allegations are beside the point because the
complaint does not allege that this purported omission was itself
unconstitutional, nor would the law support such a claim.
See
Daniels v. Williams, 474 U.S. 327, 333 (1986) ("[I]njuries
inflicted by governmental negligence are not addressed by the
United States Constitution."); Billington v. Smith, 292 F.3d 1177,
1190 (9th Cir. 2002) ("The Fourth Amendment's 'reasonableness'
standard is not the same as the standard of 'reasonable care' under
tort law, and negligent acts do not incur constitutional
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II.
The district court's denial of Fraticelli's qualified
immunity defense is immediately appealable as a final decision
within the meaning of 28 U.S.C. § 1291.
1947.
See Iqbal, 129 S. Ct. at
We review de novo the court's denial of Fraticelli's motion
for judgment on the pleadings. See Perez-Acevedo v. Rivero-Cubano,
520 F.3d 26, 29 (1st Cir. 2008).
A.
Bivens, Qualified Immunity, and the Pleading Requirements
Bivens
establishes,
as a
general
proposition, "that
victims of a constitutional violation perpetrated by a federal
actor may sue the offender for damages in federal court despite the
absence of explicit statutory authorization for such suits."
Ruiz
Rivera v. Riley, 209 F.3d 24, 26 (1st Cir. 2000) (quoting Wright v.
Park, 5 F.3d 586, 589 n.4 (1st Cir. 1993)) (internal quotation mark
omitted).
This implied cause of action is the federal analog to
§ 1983 suits against state officials.
Iqbal, 129 S. Ct. at 1948.
"The purpose of Bivens is to deter individual federal officers from
committing constitutional violations." Chiang v. Skeirik, 582 F.3d
238, 243 (1st Cir. 2009) (quoting Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 70 (2001)) (internal quotation marks omitted).
A government officer is entitled to qualified immunity
from Bivens liability on a Rule 12(c) motion unless (1) "the facts
that a plaintiff has alleged . . . make out a violation of a
liability.").
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constitutional right" and (2) "the right at issue was 'clearly
established' at the time of [the official's] alleged misconduct."
Pearson v. Callahan, 129 S. Ct. 808, 816 (2009).
A right is
clearly established only if "it would be clear to a reasonable
officer
that
confronted."
his
conduct
was
unlawful
in
the
situation
he
Brosseau v. Haugen, 543 U.S. 194, 199 (2004); see
also Mlodzinski v. Lewis, Nos. 10-1966, 10-1967, 2011 WL 2150741,
at *6 (1st Cir. June 2, 2011).
A plaintiff bringing a Bivens action "must plead that
each Government-official defendant, through the official's own
individual actions, has violated the Constitution."6
Ct. at 1948.
There is no vicarious liability.
Iqbal, 129 S.
See id. (citing
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)).
As to an assertion of supervisory liability, we held in
Maldonado
that
a
supervisor
may
6
not
be
held
liable
for
the
Although one line of Soto-Torres's complaint alleges he
was unlawfully arrested, the remainder of the complaint makes clear
that the purported basis for Soto-Torres's claim is not that he was
unlawfully arrested, but rather that he was detained, allegedly, in
violation of the Fourth Amendment.
In the Fourth Amendment
context, to make out a claim of unlawful detention, the plaintiff
must sufficiently allege that the detention was not supported by
reasonable suspicion. Morelli v. Webster, 552 F.3d 12, 19 (1st
Cir. 2009).
Soto-Torres also alleges that excessive force was
used. To make out a claim of excessive force, the standard is
whether the force used was unreasonable under the circumstances.
Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007); see also
Mlodzinski v. Lewis, Nos. 10-1966, 10-1967, 2011 WL 2150741 (1st
Cir. June 2, 2011) (addressing claim of excessive force in
qualified immunity framework and ordering immunity on claims of
prolonged detention in handcuffs).
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constitutional violations committed by his or her subordinates,
unless there is an "'affirmative link' between the behavior of a
subordinate and the action or inaction of his supervisor . . . such
that the supervisor's conduct led inexorably to the constitutional
violation."
568 F.3d at 275 (quoting Pineda v. Toomey, 533 F.3d
50, 54 (1st Cir. 2008)) (internal quotation marks omitted).7
In determining whether the facts alleged in the complaint
are sufficient to survive the Rule 12(c) motion, we employ a
two-pronged approach.
The first prong is to identify the factual
allegation and to identify statements in the complaint that merely
offer legal conclusions couched as facts or are threadbare or
conclusory.
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12
(1st Cir. 2011).
"[S]ome allegations, while not stating ultimate
legal conclusions, are nevertheless so threadbare or speculative
that they fail to cross 'the line between the conclusory and the
factual.'"
Peñalbert–Rosa v. Fortuño-Burset, 631 F.3d 592, 595
(1st Cir. 2011) (quoting Twombly, 550 U.S. at 557 n.5).
The second prong is to ask whether the facts alleged
would "allow[] the court to draw the reasonable inference that the
7
In Maldonado we observed that "recent language from the
Supreme Court may call into question our prior circuit law on the
standard for holding a public official liable under § 1983 [and
Bivens] on a theory of supervisory liability." Maldonado, 568 F.3d
263, 274 n.7 (1st Cir. 2009) (citing Iqbal, 129 S. Ct. at 1948).
However, as in Maldonado, "[w]e need not resolve this issue . . .
because we find that [Soto-Torres has] not pled facts sufficient to
make out a plausible entitlement to relief under our previous
formulation of the standards for supervisory liability." Id.
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defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct.
at 1949.
"The make-or-break standard . . . is that the combined
allegations, taken as true, must state a plausible, not a merely
conceivable, case for relief."
Sepúlveda–Villarini v. Dep't of
Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).
"The plausibility
standard is not akin to a 'probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully."
Id. (quoting Iqbal, 129 S. Ct. at 1949) (internal
quotation marks omitted).
When
a
complaint
pleads
facts
that
are
"'merely
consistent with' a defendant's liability, it 'stops short of the
line
between
relief.'"
possibility
and
plausibility
of
entitlement
to
Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at
557).
B.
The Insufficiency of the Complaint
Soto-Torres essentially brings this suit on a theory of
supervisory liability.
The only allegations in the complaint
linking Fraticelli with the detention of Soto-Torres are that
Fraticelli "was the officer in charge during the incident" and that
he "participated in or directed the constitutional violations
alleged herein, or knew of the violation[s] and failed to act to
prevent them."
Iqbal and our precedents applying it make clear
that these claims necessarily fail.
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As our discussion of the law of supervisory liability
makes clear, the allegation that Fraticelli was "the officer in
charge" does not come close to meeting the required standard.
While the complaint states that Fraticelli "participated
in or directed the constitutional violations alleged herein," it
provided no facts to support either that he "participated in" or
"directed" the plaintiff's detention.
In some sense, all high
officials in charge of a government operation "participate in" or
"direct" the operation.
Iqbal makes clear that this is plainly
insufficient to support a theory of supervisory liability and fails
as a matter of law.
For the complaint to have asserted a cognizable claim, it
was required to allege additional facts sufficient to make out a
violation of a constitutional right.
Those additional facts would
then be measured against the standards for individual liability.
The complaint would have had to plead facts supporting a plausible
inference that Fraticelli personally directed the officers to take
those
steps
against
plaintiff
Constitution in some way.
which
themselves
violated
the
Such a pleading would then have been
tested to see whether the standards for immunity had been met. But
in this case, the complaint does not even meet the first prong of
our two-part Iqbal inquiry.
Our precedents make clear that it is not enough to state
that a defendant "was the officer in charge during the incident"
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that
he
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"participated
violations" alleged.
in
or
Date Filed: 08/19/2011
directed
the
Entry ID: 5573818
constitutional
We so held in Maldonado,8 where we dismissed
a claim against a mayor who promulgated a no-pets policy in
municipal housing properties that led to the killing of pets by
subordinate officials.
dismissal
by
observing
568 F.3d at 273-74.
that
the
mayor's
We explained the
alleged
level
of
involvement in the killing of the pets was "insufficient to support
a finding of liability," id. at 273, even though the complaint
alleged that the mayor observed one of the raids and "supervised,
directly or indirectly, the agencies involved," id. at 274.
The
complaint identified "no policy which authorized the killing of the
pets, much less one which the Mayor authorized."
Id. at 273.
It
is also the effect of our ruling in Peñalbert–Rosa, where we held
that a complaint did not sufficiently allege the involvement of a
governor in the alleged politically motivated termination of the
plaintiff, who worked at the governor's mansion.
8
631 F.3d at 595.
The district court erred as a matter of law when it
disregarded this clear statement in Maldonado. The district court
treated the reasoning of Maldonado as inapplicable to this case
because the portions of Maldonado that laid out the requirements
for supervisory liability concerned a Fourteenth Amendment
substantive due process claim, whereas here, Soto-Torres attempts
to state a supervisory liability theory for violation of his Fourth
Amendment rights.
However, the constitutional source of a
plaintiff's claims are irrelevant to this court's analysis of
whether a plaintiff has satisfactorily articulated a supervisory
liability theory.
Neither Maldonado nor Iqbal suggest that
supervisory liability theories should be treated differently based
on whether they are made to support a claim under the Fourth
Amendment or the Fourteenth Amendment.
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The complaint merely stated that the governor was in charge of
approving all personnel decisions at the mansion, including the
termination of the plaintiff, and that the governor "knew or
assumed" that the plaintiff belonged to a different political
party.
Id.9
Soto-Torres's
allegations
about
Fraticelli's
active
involvement are no more concrete than those of the plaintiff in
Iqbal.
The plaintiff in Iqbal alleged that Attorney General
Ashcroft and FBI Director Mueller "knew of, condoned, and . . .
agreed to subject" him to harsh conditions of detention, and that
Ashcroft was the "principal architect" of the policy that led to
his detention and that Mueller was "instrumental" in adopting and
executing it.
Iqbal, 129 S. Ct. at 1951.
The Court deemed those
bare allegations to be too conclusory to be "entitled to the
assumption of truth."
As
to
Id.
Soto-Torres's
alternative
formulation
that
Fraticelli "knew of the violation[s] and failed to act to prevent
them,"
his
factual
allegations
are
9
again
insufficient.
The
Pineda v. Toomey, 533 F.3d 50 (1st Cir. 2008), a preIqbal case in this circuit, also supports the proposition that
stating that a defendant was "in charge," without more, is
insufficient to support a theory of supervisory liability. Id. at
54-55 (holding that plaintiff failed to "affirmatively link[]," id.
at 55, defendant Boston Police sergeants to alleged constitutional
violations by subordinate officers where defendant sergeants
neither authorized nor witnessed alleged constitutional violations,
were not at the scene when alleged violations took place, and were
unaware of plaintiff's existence at the time of alleged
violations).
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complaint does not provide facts regarding what Fraticelli is
alleged to have known when, nor does it specify how he is alleged
to
have
known
it,
or
how
he
somehow
personally
caused
the
detention.
Soto-Torres has been unable to provide adequate facts
although he has twice amended his complaint over a period of many
years.
If Soto-Torres "had any basis beyond speculation for
charging [Fraticelli] with knowing participation in the wrong, it
seems almost
certain
that
this
would
have
been
mentioned."
Peñalbert-Rosa, 631 F.3d at 596.
III.
We reverse and direct judgment in favor of Fraticelli
on grounds of qualified immunity.
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