Marrero-Rosado et al v. Cartagena et al

Filing 153

OPINION AND ORDER DENYING 138 MOTION to Strike; GRANTING IN PART 121 MOTION for Summary Judgment. Plaintiff's Section 1983 claims against all Defendants in their official capacities are DISMISSED pursuant to the court's prior Opinion, O rder, and Partial Judgment. Defendants' Motion on Plaintiff's Section 1983 claims against Defendants Santiago, Cartagena, Pereira, Diaz, and Armendariz in their personal capacities is GRANTED. Having summarily disposed of Plaintiff's S ection 1983 claims against Defendants Santiago, Cartagena, Pereira, Diaz, and Armendariz, Plaintiff's supplemental claims brought pursuant to 28 U.S.C. § 1367(a) against the same Defendants are DISMISSED with prejudice. 28 U.S.C. § 136 7(c)(3). The issue remaining to be adjudicated in this case is Plaintiff's Section 1983 claim against Defendant Roman for an alleged Fourth Amendment violation. Signed by Chief Judge Jose A Fuste on 3/27/09.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO MARTA MARRERO-ROSADO, on behalf of her minor son JLSM, Plaintiff, v. AGUSTÍN CARTAGENA, et al., Defendants. Civil No. 05-2063 (SEC/JAF)

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OPINION AND ORDER Plaintiff Marta Marrero-Rosado ("Rosado"), on behalf of her son Jorge Luis Santos Marrero ("JLSM"), brings this action against Defendants ("Román"), Agustín Nelson Cartagena F. ("Cartagena"), Juan R. Díaz-Román Miguel A.

Maldonado-Santiago

("Santiago),

Pereira ("Pereira"), Ramón Díaz-Correa ("Díaz"), Dra. Ana RiusArmendáriz (Armendáriz), Agents A, B, and C, Correctional Officers D, E, and F, Doctors G, H, and I, Lady Jane J, K, L, M, N, O, and Insurance Companies X, W, Z. Docket No. 1 and 51. Before the court are Defendants' Motion for Summary Judgment and Memorandum of Law ("Defendants' Motion") and Defendants' Motion to Strike Plaintiff's Response thereto. Docket Nos. 121 and 138. Defendants' Motion to Strike is DENIED. Defendants' Motion has been considered and is GRANTED in part.

Civil No. 05-2063 (SEC/JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 I. Introduction

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This case is an action for money damages brought pursuant to 28 U.S.C. §§ 1331, 1343, and 1367 and 42 U.S.C. § 1983 against

representatives of the Puerto Rico Police Department, Puerto Rico Department of Corrections, de Servicos and the Puerto de Rico Medical Center

(Administración

Médicos

Puerto

Rico).

Plaintiff

alleges that his father, Maldonado, suffered and died due to the actions or omissions of Defendants. Docket No. 51, ¶4.18. Claims are brought by Rosado on behalf of her son, JLSM. Docket No. 51, at 2, II. Plaintiff's Section 1983 claims are brought against Defendants in their official and personal capacities for the alleged violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution. Docket No. 137, at 22. Supplemental claims are brought under Sections 3018 (Fraud, negligence, or delay in fulfilling

obligation), 3019 (Liability arising from fraud), 3024 (Losses and damages for which debtor liable), and 5141 (Obligation when damage caused by fault or negligence) in Title 31 of the Laws of Puerto Rico. With the exception of Section 1983 claims brought against Defendant Román, the only defendant to have any direct interaction with Maldonado, Plaintiff's Section 1983 claims are premised on a theory of supervisory liability. Plaintiff's claims against Defendant

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Román, a Puerto Rico police officer in the Vega Baja Precinct, are based on allegations that Román physically struck Maldonado on two occasions and filed a false incident report. Docket No. 51, ¶ 3.2. Defendant Santiago was a supervisor of Officer Román during the relevant time period. Plaintiff's claims against Santiago are based, in part, on an allegation that Santiago approved Román's allegedly false incident report. Docket No. 51, ¶ 3.4. Santiago had no direct interaction with Maldonado during the relevant time period.

Defendant Cartagena was the Superintendent of the Puerto Rico Police at the time of the alleged beating and false report, but Cartagena had no direct interaction with Maldonado or involvement with his case. Docket No. 51, ¶ 3.1. Plaintiff's claims against Santiago and Cartagena are also based upon their alleged failure to supervise operations of the Vega Baja Precinct and adequately institute a protocol for police officers on how to handle street people with drug addictions. Docket No. 51, ¶ 4.19. Defendant Pereira was the Secretary of Corrections at the time Maldonado was incarcerated, but had no direct interaction with Maldonado or involvement in his case. Docket No. 51, at ¶ 3.4. Defendant Díaz was the Superintendent of the Bayamón Correctional Complex at the time of Maldonado's incarceration but had no direct interaction with Maldonado or involvement in his case. Docket No. 51, ¶ 3.5. Plantiff's claims against Defendants Pereira and Díaz are based on their alleged failure to supervise and maintain adequate

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detox facilities and failure to institute or train employees on a protocol for the handling of "street people" with drug addictions. Docket No. 51, ¶¶ 3.4, 3.5, and 4.15. Defendant Armendáriz was the Executive Director of the Puerto

Rico Medical Center during the time Maldonado was a patient at that facility, but had no direct interaction or involvement with

Maldonado's case. Docket No. 51, ¶ 3.6. Plaintiff's claims against Armendáriz are based upon Armendáriz' alleged failure to "establish, implement, and/or make sure, that his employees followed a protocol" for the care and treatment of "street people" with drug addictions, and to ensure the ongoing availability of lab services and adequate nursing services. Docket No. 51, ¶¶ 3.6 and 4.16. II. Factual Background We review the facts supported by the record. On September 27, 2004, Román was on patrol with Officer Juan M. Pérez Luciano

("Luciano") when he observed Maldonado, a "deambulante" (homeless man), at Sánchez López Street in Alto Cuba, Vega Baja. Defts' SUMF Nos. 3, 5 and 7; Pltf's Exhibit No. 5; Pltf's Reply ¶ 2. Román observed Maldonado "walking in a negligent manner, moving from side to side of the street, and lying down in the middle of the street." Defts' SUMF No. 6; Pltf's Exhibit No. 5; Pltf's Reply ¶ 2. It is undisputed that Maldonado used illegal drugs. Docket No. 51, at 6. Presumably, Román was aware of Maldonado's habit on September 27,

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2004, because Román had previously counseled Maldonado about his drug addiction. Defts' SUMF No. 4. At 12:15 p.m., Román issued a citation to Maldonado for violation of Law 22, Art. 9.02, of the Transit Law. Defts' SUMF No. 8. The citation required Román to appear before a Judge on September 28, 2004, at 8:30 a.m. Defts' SUMF No. 8, 11, 13, and 14. Román was not incarcerated on September 27, 2004. Defts' SUMF No. 10. Román's description of his intervention with Maldonado is

corroborated by the written statement of Officer Luciano, provided to the Superintendent of Public Integrity, Police of Puerto Rico, on January 4, 2005. Luciano's statement reads as follows: "Juan Díaz Román proceeded to intervene with the individual that afterwards resulted to be called Jorge Santos Maldonado, for art. 9.02(6) Law 22, reading him the legal warnings, then we proceeded to take him before the presence of the Honorable Judge José V. Meléndez that found cause, fixing a bond of $200 dollars, that he did not post, same being carried to Bayamón Jail 705." Pltf's Exhibit No. 5 (emphasis supplied); Plaintiff's Reply, ¶ 2. It is not clear from Luciano's statement as to exactly when they proceeded to take

Maldonado before the Judge. Román avers that he has never hit Maldonado. Defts' SUMF No. 9. But, Plaintiff submits the sworn statement of Ramón Luis Martínez Vélez (Vélez), who avers that in August 2004 he witnessed Román hit Maldonado on the neck with his hand and in the lower part of the

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stomach with a black-jack. Pltf's Exhibit No. 1. Vélez also avers that he witnessed Román hit Maldonado, arrest him, and take him away on the morning of September 27 or 28 at approximately the same time Román issued Maldonado the citation. Id. Until Román's intervention with Maldonado, the Superintendent of Public Integrity received no complaints concerning Román since his admission on March 8, 2005. Defts' SUMF No. 62. On October 13, 2004, Maldonado's father, Nicolás Santos Santos ("Santos"), filed the first complaint on record against Román, alleging that Román arrested Maldonando without cause. Defts' Exhibit No. 19. In response, the Director of the Division of Public Integrity in the Puerto Rico Police Department completed an investigation and found no cause for or evidence to support Santos' complaint. Defts' SUMF No. 64; Defts' Exhibit 20. As noted by Plaintiff, the Director's report indicates that Román's intervention with Maldonado occurred on September 26, 2004, and not September 27, 2004. Id. But, Plaintiff himself alleges that the intervention occurred on September 27, 2004. Pltf's Reply ¶ 2. In September 2004, Defendant Cartagena was Superintendent of the Puerto Rico Police Department. Docket No. 51, at 2, ¶3.1; Defts' SUMF No. 57. Cartagena is not now and was not in September 2004 Román's direct supervisor. Defts' SUMF No. 60. Cartagena has never met Plaintiff or his father, and did not confer with any police officers

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or others regarding the handling of Maldonado's case. Defts' SUMF Nos. 58, 59 and 61. According to the complaint, Maldonado appeared by himself before Judge José V. Meléndez at 9:30 a.m. on September 28, 2004. Defts' SUMF No. 14. Finding probable cause, Judge Meléndez set trial for November 8, 2004. When Maldonado was unable to post bail, Judge Meléndez ordered that Maldonado be remanded to the Bayamón

Correctional Facility. Defts' SUMF Nos. 16 and 17; Docket No. 137, at 02-03; Pltfs' Exhibit Nos. 2 and 3. As noted by Plaintiff, the date of Judge Meléndez' signature on the complaint originally indicated January 27, 2004, but would appear to have been subsequently changed to January 28, 2004. Pltfs' Exhibit Nos. 2 and 3. The Magistrate's secretary, however, wrote on the same complaint that Maldonado appeared in court on September 28, 2004. Id. On September 28, 2004, a police officer (not Román) delivered a copy of the complaint to Santos, Maldonado's father. Pltf's Exhibit No. 6; Pltf's Reply ¶4. The complaint provided to Santos was not signed by Judge Meléndez. Pltf's Reply ¶2; Pltf's Exhibit No. 3. Pursuant to Judge Meléndez' order, on September 28, 2004, Román brought Maldonado to the Bayamón Correctional Facility, Bayamón No. 705. Defts' SUMF No. 24. At Bayamón No. 705, Román filled out the pre-admission form, indicating that, in his opinion, Maldonado was in good physical shape, was not bleeding, was not in any medical danger, was not unstable, did not show suicidal tendencies, made no attempt

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to escape, and did not need immediate medical attention. Defts' SUMF No. 25. Román did not indicate on the pre-admission form that Maldonado was under the influence of any drug or had a history of drug abuse. The pre-admission form does not specifically request this type of information, however. Docket No. 137, at 15. Defendants represent that when Maldonado arrived at Bayamón No. 705, someone asked Maldonado if he was "in need of immediate medical attention," "had ever received medical attention in Bayamón 705," and "in need of certain medicines." Defts' SUMF Nos. 26, 27, and 28. Notations in the pre-admission form indicate that these questions were answered in the negative, either by Maldonado or for him. Defts' Exhibit No. 16. During September and October 2004, Defendant Pereira was the Secretary of Corrections and Defendant Díaz was the Regional Director for the Northern Region of the Administration of Corrections, a region which included Bayamón No. 705. Defts' SUMF No. 18, 31, and 32; Docket No. 51, ¶¶ 3.4, 3.5. Under Pereira and Díaz, the

Department of Corrections had a protocol for the care and treatment of prisoners who are drug addicts, which included the use of a detox facility. Defts' SUMF Nos. 21 and 22; Defts' Exhibit Nos. 2 and 3. Neither Defendant Díaz nor Defendant Pereira have ever met Plaintiff or his father and neither conferred with anyone in any way concerning Maldonado's case. Defts' SUMF Nos. 19, 20, 23 and 36. The Subdirector of the Administration of Corrections, Ramón Luis Díaz Correa, who is not a named defendant in this case, avers that he

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received reports from a Superintendent and on-duty Commander, that upon admission, Maldonado was immediately referred to "Infirmary 448 of Bayamón's 308 Institution." Defts' SUMF 29; Defts' Exhibit Nos. 4 and 17. On September 29, 2008, "Infirmary 448 of Bayamón's 308 Institution" referred Maldonado to the Puerto Rico Medical Center emergency room because he had high blood pressure and "tachycardia." Defts' SUMF 29; Defts' Exhibit Nos. 4 and 17. The Puerto Rico Medical Center admitted Mr. Maldonado at 6:21 p.m. on September 29, 2004. Defts' SUMF 37; Defts' Exhibit 8(a) and 17; Docket No. 137, at 6. ¶ 4.11. Medical records detail Maldonado's condition and the care he received at the Puerto Rico Medical Center until his death on October 4, 2004. Defts' Exhibit No. 8. The majority of Maldonado's medical records submitted by Defendants are illegible and, therefore, offer limited support for Defendants' Motion.1 Maldonado's admission record, dated September 29, 2004, indicates that upon admission, Maldonado was in withdrawal from heroin and cocaine. Defts' Exhibit No. 8(b). At 7:28 p.m. on September 29, 2004, the Radiology Division completed a "Chest PA" exam. Defts' Exhibit No. 8. The Radiology report indicates that Maldonado was suffering from tachypnea and in drug withdrawal. Defts' Exhibit No. 8. Medical records indicate that

In the future, the court recommends that the parties reproduce any illegible medical records using a word processing program for submission to the court, with affidavits validating the accuracy of copy.

1

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attending physicians or nurses made a written record of Maldonado's condition at 8:45 a.m, 11:00 a.m., and 11:45 a.m. on September 30, 2004, at 9:45 a.m., 2:00 p.m. and 4:00 p.m. on October 1, 2004, and at 7:00 p.m. and 9:00 p.m. on October 2, 2004. Defts' Exhibit No. 8;

Pltf's Exhibit No. 11; Pltf's Reply ¶ 8. A physician's note made at 9:00 p.m. on October 2, 2004 indicates that labs were unavailable due to a system shutdown. Defts' Exhibit No. 8. Certain lab analyses were run, including two for "hematology" on October 2 and 3, 2004, and one for "coagulation" on October 3, 2004. A record entitled, "death summary," indicates that nurses found Maldonado in cardiorespiratory arrest at 6:30 a.m. on October 3, 2004, and that attempts were made to resuscitate him. Defts' Exhibit No. 8. The attending physician declared Maldonado dead at 6:40 a.m. Id. On October 5, 2004, after Santos made repeated inquiries as to his son's whereabouts, the police informed Santos of his son's death. Pltf's Reply ¶5; Pltf's Exhibit No. 6. On October 7, 2004, Santos identified his son's body at a forensic medical laboratory. Pltf's Exhibit No. 7; Pltf's SUMF No. 7; Defts' Exhibit No. 9. On February 22, 2005, Dr. Rodríguez issued a Forensic Medical Report, detailing the autopsy results. Defts' Exhibit No. 9. The report indicates that Maldonado died of natural causes, including "cardiac arrhythmia associated with intramyocardial pathway of the left coronary artery" and "chronic drug use." Defts' Exhibit No. 9. Maldonado's death certificate, based on Dr. Rodríguez' report,

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indicates the same. Defts' Exhibit No. 10. Dr. Rodríguez' report does not indicate that she found any recent marks, bruising or external injury on Maldonado's body. Defts' Exhibit No. 9; Defts' SUMF No. 51. During September and October 2004, Armendáriz was the Executive Director of the Puerto Rico Medical Services Administration

(Administración de Servicios Médicos de Puerto Rico). Docket No. 51, at 2, ¶3.6; Defts' Exhibit No. 5. Armendáriz does not know Plaintiff or his father. Defts' SUMF No. 54 and 55. No person directly responsible for the care and treatment of Maldonado from the time of his admission on January 29, 2004, until his death on October 4, 2004, conferred with Armendáriz regarding Maldonado's care or

treatment. Defts' SUMF No. 38. On November 15, 2006, the Puerto Rico Medical Services

Administration's Office of Legal Advice and Labor Relations issued an investigative report detailing events leading up to the death of Maldonado. Like the Forensic Medical Report, the investigative report lists the cause of Maldonado's death to be "cardiac arrhythmia" and "chronic narcotism" ("narcotismo crónico"). Pltf's Exhibit No. 9; Pltf's Reply ¶11. At the time of his death, Maldonado was in the custody of Manuel Vélez Medina ("Medina"), an Officer of the Department of Corrections. Pltf's Exhibit No. 8; Pltf's Reply ¶8. Plaintiff submitted a logbook entry, that would appear to have been written and signed by one Officer Medina. Plft's Exhibit No. 8; Docket No. 145. According to

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the log, Medina made an entry in the logbook after returning to Bayamón 705 from the Puerto Rico Medical Center at approximately 9:50 a.m. The log indicates that Medina witnessed the medical team2 p e r f o rm what they themselves called "Respiratory Therapies" on

Maldonado after finding him in physical distress the morning of October 3 2004. According to the logbook, Medina inquired with two different physicians as to the cause of Maldonado's death.

Maldonado's emergency room physician, Carlos Tejeda, informed Officer Medina that Maldonado died because he "suffered some secretions which provoked some kind of asphyxia," but did not mention "cardiac

arrhythmia." Doctor Lesliane Castro Santana of Internal Medicine, who certified Maldonado's death, informed Medina that the cause of death was "cardiac infarction produced by cocaine and pneumonia." Pltf's Reply ¶8; Pltf's Exhibit No. 8. III. Procedural Background To clarify claims pending upon the filing of Defendants' Motion, we review the court's prior partial judgment. On June 19, 2006, the court entered partial judgment on three motions to dismiss, or alternatively, for a more definite statement pursuant to the court's

According to the logbook entry, the "medical team" consisted of Dr. Carlos Tejeda, an emergency room physician, Dr. Lesliane Castro Santana, of Internal Medicine, who certified Maldonado's death, and the following five nurses: Doris Dávila Cirino, Jesús Navarro, Araseli Matos, Francisca Castro, and Ana Figueroa.

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Opinion and Order of the same date. Docket Nos. 7, 15 and 31. The court's entry of partial judgment dismissed with prejudice: (1) all § 1983 claims brought by then Plaintiff Santos and JLSM, in their personal capacity; (2) all Plaintiffs' § 1985 claims; (3) all

Plaintiffs' claims against Defendant Puerto Rico Medical Center and Defendants Díaz, Armendáriz, Pereira, Cartagena, and Santiago in their official capacities; and (4) granted moving Defendants' request for a more definite statement. Docket Nos. 39 and 41. The court ordered Plaintiff to file an amended complaint pursuant to deadlines established in the court's forthcoming Case Management and Scheduling Orders. Such amended complaint was to (1) "include an averment as to the capacity in which [Plaintiff] is suing" and (2) "specify what constitutional rights of decedent they allege were violated and, as to each violation, which Defendant or Defendants they allege is responsible." Id. On July 7, 2006, Plaintiff untimely filed Plaintiff's Amended Complaint.3 Docket Nos. 51. Plaintiff's Amended Complaint wholly disregards the court's order, failing to specify "the constitutional rights . . . they allege were violated and . . . Defendants they allege is responsible." which Defendant or answered

Defendants

Plaintiff's Amended Complaint without objection, however. Docket No. 53.

Subsequent to the filing of Plaintiff's Amended Complaint, Plaintiff successfully petitioned for leave to amend. Docket No. 61.

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On October 7, 2009, Defendants filed the pending Motion for Summary Judgment and Memorandum of Law followed by supporting

exhibits. Docket Nos. 121 and 125. In their Motion, Defendants argue for the first time on record that Plaintiff failed to comply with the court's order to amend. Docket No. 121, at. The court granted Plaintiff two extensions of time to file his response to Defendants' Motion. Docket Nos. 127 and 135. Despite the court's leniency, on December 5, 2008, Plaintiff filed his response two days late. Docket No. 137. Even more troublesome, Plaintiff's response fails to clearly admit, deny or qualify Defendants' statement of material facts. Id. As required, we considered all facts not clearly denied, to be admitted. Fontanez-Nuñez v. Janssen Ortho LLC, 447 F.3d 50 (1st Cir. 2006). On January 26, 2009, Defendants filed their Reply to

Plaintiff's Opposition. Docket No. 149. IV. Analysis

The standard for summary judgment is straightforward and wellestablished. A district court should grant a motion for summary judgment "if the pleadings, and depositions, on file, and answers to the the

interrogatories,

admissions

together

with

affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A factual dispute is "genuine"

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if it could be resolved in favor of either party, and "material" if it potentially affects the outcome of the case. Torres-Martinez v. Puerto Rico Dept. of Corrections, 485 F.3d 19, 22 (1st Cir.

2007)(citing Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004)). The moving party carries the burden of establishing that there is no genuine issue as to any material fact; however, the burden "may be discharged by showing that there is an absence of evidence to support the nonmoving party's case." See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden has two components: (1) an initial burden of production, which shifts to the non-moving party if satisfied by the moving party; and (2) an ultimate burden of

persuasion, which always remains on the moving party. See Freadman v. Metropolitan Property and Cas. Ins. Co., 484 F.3d 91, 99-100 (1st Cir. 2007). The non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment cannot be defeated by relying on "improbable inferences, conclusory allegations, or rank speculation." Ingram v. Brink's, 414 F.3d 222, 228-29 (1st Cir.2005). Summary judgment exists "to pierce the boilerplate of the pleadings and assess the proof in order to determine the need for trial."

Euromodas, Inc. v. Zanella, 368 F.3d 11, 16-17 (1st Cir. 2004)(citing

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Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). B. Plaintiff's Section 1983 claims against Defendants' Pereira, Santiago, Cartagena, Armendáriz, Díaz and Román, in their official capacities. Defendants argue for dismissal of Plaintiff's Section 1983 claims against Defendants Pereira, Cartagena, Armendáriz, Díaz-Correa, and Díaz-Román in their official capacity on the ground that such claims were previously dismissed by the court with prejudice. Indeed, we dismissed Plaintiff's Section 1983 official-capacity claims in our prior Opinion, Order, and Partial Judgment, holding that Defendants are entitled to Eleventh Amendment immunity. Docket No. 39 and 40 (June 19, 2006). Plaintiff nevertheless attacks the court's prior partial judgment, arguing that Defendants "do not qualify for any immunity." Docket No. 137, at 22. In support of his argument, Plaintiff relies solely on an excerpt from the United States Supreme Court's opinion in Padilla Román v. Hernández Pérez, 381 F.Supp. 2d 17 ("Third, a citizen may seek monetary damages against a state officer for acts done while the officer was acting in his or her official capacity.") (citing

Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Plaintiff's reliance on Padilla and Kentucky is misplaced. In Padilla, this court relied on Kentucky for the proposition that "a citizen may seek monetary damages against a state officer for acts done while the officer was acting in his or her official capacity."

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But, the above language from Padilla refers to Section 1983 suits brought against state officers in their personal capacity, not their official capacity. This is evident on review of the Supreme Court's opinion in Kentucky.4 Kentucky reiterates the difference between official-capacity and personal-capacity suits brought pursuant to Section 1983, namely, that citizens may seek monetary damages against state officers in their personal capacity for acts done while acting in their official capacity. Kentucky, 473 U.S. at 166, 105 S.Ct. at 3105, 87 L.Ed.2d 114 (1985) ("On the merits, to establish personal liability in a section 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.") (citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5L.Ed.2d 492 (1961)). It is well-established that an award of damages in federal court against state officers sued in their official capacity under Section 1983 is barred by the Eleventh Amendment. See Docket No. 39, at 1416. The court's prior Partial Judgment stands as the law of the case. Gener-Villar v. Adcom Group, Inc., 530 F.Supp.2d 392, 403, fn 7 (D.P.R. 2007) ("the law of the case . . . is invoked to require a court to follow its own rulings in a case"). Accordingly, Plaintiff's Section 1983 claims brought against Defendants in their official

In Kentucky, the Supreme Court held that a prevailing plaintiff cannot recover attorney's fees from a governmental entity pursuant to 42 U.S.C. § 1988 when they sue governmental employees in their personal capacities and prevail.

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capacity are DISMISSED pursuant to the court's prior Opinion, Order and Partial Judgment. Docket Nos. 39 and 40. C. Plaintiffs' Section 1983 claims against Defendants' Pereira, Santiago, Cartagena, Armendáriz, Díaz and Román in their personal capacities. Defendants present two arguments in support of summary judgment on Plaintiff's Section 1983 personal-capacity claims. First,

Defendants contend that Plaintiff's Amended Complaint fails to state a Section 1983 personal-capacity claim against Defendants because Plaintiff's claims are based on conduct carried out "under color of state law." Docket No. 121, at 05-06. Defendants' argument is

untenable. Clearly, Plaintiff's Amended Complaint refers to the conduct of Defendants acting "under color of state law," but this allegation is necessary, not detrimental, to Plaintiff's Section 1983 personal-capacity claims. Personal liability in a Section 1983 action is predicated on a "[state] official, acting under color state law, causing the deprivation of a federal right." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991) (emphasis

supplied). Second, Defendants claims contend should that be Plaintiff's Section 1983

personal-capacity

summarily

dismissed

because

Plaintiff fails to establish a causal connection between the conduct of Defendants and the alleged deprivation of rights, privileges or immunities secured by the Constitution. Defendants' second argument is well-taken.

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The essential elements of a section 1983 claim are that (1) "the defendants acted under color of state law" and (2) "the defendants' conduct worked a denial of rights secured by the Constitution or by federal law." Rodriguez-Cirillo v. Garcia, 115 F.3d 50, 52 (1st Cir.1997) (citing Martinez v. Colón, 54 F.3d 980, 984 (1st Cir.1995)). To satisfy the second element, the "plaintiffs cause in must of show the that the

defendants'

conduct

was

fact

alleged

deprivation." Rodriguez, 115 F.3d at 52 (citing Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989)) (emphasis supplied). Supervisory liability under 42 U.S.C. 1983, "cannot be predicated on a respondeat superior theory . . . but only on the basis of [the supervisor's] own acts or omissions." Seekamp v. Michaud, 109 F.3d 802, 808 (1st Cir.1997) (citing Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.1996)). [A] supervisor: can be held liable . . . if (1) the behavior of [his] subordinates results in a constitutional violation, and (2) the [supervisor]'s action or inaction was `affirmative[ly] link[ed]' to that behavior in that it could be characterized as `supervisory encouragement, condonation or acquiescence' or `gross negligence amounting to deliberate indifference.' Moreover, the indifference required to support supervisory liability under section 1983 must be "deliberate, reckless or callous.' Thus, the `affirmative link' required between the action or inaction of a supervisor and the behavior of subordinates `contemplates proof that the supervisor's conduct led inexorably to the constitutional violation.'

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Id. (citations omitted). In determining supervisory liability under Section 1983 for a constitutional violation, an important factor to consider is whether the official was put on some kind of notice of the alleged violations. Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 902 (1st Cir.1988). [O]ne cannot make a `deliberate' or `conscious' choice to act or not to act unless confronted with a problem that requires the taking of affirmative steps. Once an official is so notified, either actually or constructively, it is reasonable to infer that the failure to take such steps, as well as the actual taking of them constitutes a choice `from among various alternatives.' Id. (citations omitted). It is critical to remember when considering the liability of a supervisor for an alleged constitutional violation that a "constitutional violation by a subordinate is a predicate to a supervisor's liability." Mendez v. Toledo, 968 F.Supp. 27, 36 (D.P.R. 1997). A supervisor cannot be held accountable if his or her subordinate did not violate a constitutional right. Id. Having thoroughly combed the record, the court now considers Defendants' alleged conduct against the above authority. Docket No. 137, at 22. 1. Plaintiff's Section 1983 claims against Defendant Román in his personal capacity. generally contends that Román's actions violated

Plaintiff

Maldonado's right to life, physical integrity, freedom from bodily harm, and due process of law in violation of the Fourth, Fifth,

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Eighth, and Fourteenth Amendments. Docket No. 137, at 22. The Eighth Amendment is not applicable here because there was never a formal adjudication of guilt through the criminal prosecution of Maldonado. McLeod-Lopez v. Algarin, 2009 WL 736118, *5; Martinez-Rivera v. Sanchez-Ramos, 498 F.3d 3, 8 (1st Cir.2007)("because there had been no formal adjudication of guilt against [Plaintiffs] at the time of the alleged constitutional deprivation, the Eighth Amendment is inapplicable and any claim brought on that theory was properly dismissed."). Furthermore, "excessive force" claims like Plaintiff's are not actionable under the Fifth and Fourteenth Amendments. Graham v. Connor, 490 U.S. 386, 395 (1989) ("all claims that law enforcement officers have used excessive force-deadly or not-in the course of . . . [the] `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach."); Terry v. Ohio, 392 U.S. 1, 16 (1968)(writing that the Fourth Amendment applies "whenever a police officer accosts an individual and restrains his freedom to walk away."). We, therefore, limit our analysis to Román's liability for an alleged "unreasonable seizure" in violation of the Fourth Amendment. Under the Fourth Amendment, all persons are entitled to be "secure in their persons . . . against unreasonable searches and seizures." In a traditional sense, a "seizure" occurs "[o]nly when the officer, by means of physical force or show of authority, has in

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some way restrained the liberty of a citizen." Terry, 392 U.S. at 19, n.16. More recent jurisprudence would require "an intentional

acquisition of physical control" and a "governmental termination of freedom of movement through means intentionally applied." Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). To prevail on a claim for violation of the Fourth Amendment based on the use of excessive force, a plaintiff must show that the defendant officer employed an unreasonable amount of force under the circumstances. Mcleod-Lopez v. Algarin, 2009 WL 736118, *7 (D.P.R. 2009); Jennings v. Jones, 499 F.3d 2, 11 (1st Cir.2008). A Fourth Amendment reasonableness inquiry is an objective test, to be

determined "in light of the facts and circumstances confronting [the officer], without regard to their underlying intent or motivation." Graham, 490 U.S. at 397. Facts of particular relevance include "the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. A Fourth Amendment violation may also occur when persons acting under color of state law maliciously prosecute baseless criminal charges, provided that such prosecution occasions "a deprivation of liberty consistent with the concept of a seizure." Nieves v.

McSweeney, 241 F.3d 46, 54 (1st Cir.2001); Britton v. Maloney, 196 F.3d 24, 28 (1st Cir.1999). Notably, it is the deprivation of liberty

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resulting from the prosecution, not the prosecution itself, that triggers a Fourth Amendment claim under Section 1983. What suffices for a "seizure" arising from prosecution of unfounded charges varies among the circuits. We need not review these cases in depth here for the reasons provided below. See, e.g., Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3rd Cir.1998) (concluding that conditions imposed on pretrial release, including the payment of a bond and restrictions on travel, effected a seizure). We now turn to whether the evidence submitted by Plaintiffs in support of their allegations is sufficient to sustain a claim against Román for violation of the Fourth Amendment under either of the aforementioned theories. Plaintiff's Section 1983 claims against Román for the alleged "unreasonable seizure" of Maldonado in

violation of the Fourth Amendment are based, in part, on allegations that Román filed an "untrue report and complaint," acts which led to Maldonado's incarceration pending trial for the alleged violation of Law 22, Art. 9.02G of the Transit Law. Docket No. 51, ¶¶ 3.2, 4.1, 4.3, 4.4, 4.8, an and 4.13. The incarceration in of Maldonado of the may

constitute

unreasonable

seizure

violation

Fourth

Amendment if Román in fact issued the citation for violation of Traffic Law 22 without cause. The evidence simply does not support such a conclusion, however. Plaintiff offers no evidence to counter the sworn statement of Defendant Román that he found Maldonado "walking in a negligent manner, moving from side to side of the

Civil No. 05-2063 (SEC/JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 street, and lying down in the middle of the street,"

-24Officer

Luciano's corroborating testimony, and a finding of probable cause by Judge Meléndez. Defts' Exhibit No. 6. Accordingly, we find that the incarceration of Maldonado pending trial did not constitute an unreasonable seizure in violation of the Fourth Amendment. Regarding the alleged use of excessive force by Román against Maldonado, the evidence is not so heavily weighted. Plaintiff submits the eyewitness testimony of Vélez, who avers that in mid-August, he saw Román hit Maldonado in the back of the neck with his hand and in the lower stomach with a black-jack. Vélez further avers that he witnessed Román "hit" Maldonado again on September, 27, 2004.

Defendants counter Vélez' version of the events with the sworn statement of Román and a statement provided by Officer Luciano in an investigative interview. Luciano was with Román when he intervened with Maldonado on September 27, 2004, but apparently not in August 2004. Luciano's statement as to what occurred on September 27, 2004, makes no reference at all to physical abuse. But, Luciano's statement does not expressly state that such abuse did not occur. In consideration of the above submissions, we find an issue of material fact to exist regarding Plaintiff's Section 1983 claim against Román for the alleged violation of Maldonado's right to be free from unreasonable seizure. Under the record presently before the court, summary disposition of Plaintiff's Fourth Amendment claim against Román would, therefore, be inappropriate. Accordingly,

Civil No. 05-2063 (SEC/JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Defendants' Motion on Plaintiff's Section 1983 claims

-25against

Defendant Román in his personal capacity for violation of the Fourth Amendment is hereby DENIED. 2. Plaintiff's Section 1983 claims against Defendants Santiago and Cartagena in their personal capacities.

There is no evidence in the record to affirmatively link the conduct of Defendant Santiago, Officer Román's supervisor, and

Defendant Cartagena, the Superintendant of Puerto Rico Police, to the allegedly unconstitutional intervention by Román. Plaintiff does not deny that Defendants Cartagena and Santiago had no direct involvement with Maldonado's case. There is no evidence in the record to suggest that Román conferred with Cartagena or Santiago regarding events that occurred on September 27, 2004, when Roman intervened with Maldonado. Although evidence Santiago before signed the Román's to incident suggest report, there is did no so

court

that

Santiago

understanding the report to be false. There is simply no connection between the conduct of Cartagena and Santiago and the allegedly unconstitutional conduct of Román. Accordingly, Defendants' Motion on Plaintiff's Section 1983 claims against Defendants Santiago and Cartagena in their personal capacities is GRANTED. 3. Plaintiff's Section 1983 claims against Defendants Pereira and Díaz in their personal capacities.

There is no evidence in the record to affirmatively link the conduct of Defendant Pereira, the Secretary of Corrections, or Defendant Díaz, the Superintendent of Bayamón Correctional Complex,

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to the incarceration and treatment of Maldonado in "Infirmary 448." More importantly, there is no clear, underlying constitutional

violation by subordinate employees, a prerequisite to supervisory liability. Contrary to Plaintiff's assertions, at the time of Maldonado's incarceration in "Infirmary 448 of Bayamón's 308 Institution," the Correctional Health Services Program had an established protocol for the caring of inmates with drug addictions. Docket No. 133.

Noticeably absent from the record, however, is any evidence that employees of the Department of Corrections deviated from the guide's prescriptions or that Defendants encouraged, condoned or acquiesced in such behavior. There is not a scintilla of evidence to support Plaintiff's Section 1983 personal-capacity claims against Defendants Perira and Díaz. Accordingly, Defendants' Motion on Plaintiff's Section 1983 claims against Defendants Pereira and Díaz is GRANTED. 4. Plaintiff's Section 1983 claims against Defendant Armendáriz in his personal capacity.

There is no evidence in the record to affirmatively link the conduct of Defendant Armendáriz, the Executive Director of the Puerto Rico Medical Center, to the care and treatment of Maldonado while he was a patient at the Puerto Rico Medical Center. It is undisputed that Defendant Armendáriz never met Maldonado and did not confer with attending physicians, care and nurses, or other employees appears regarding to base

Maldonando's

treatment.

Plaintiff

Civil No. 05-2063 (SEC/JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Armendáriz' liability solely on Armedáriz' alleged failure

-27"to

establish, implement, and/or make sure, that his employees followed a protocol" for the care and treatment of street people with drug addictions. Defendant Armedáriz does not dispute Plaintiff's

assertion that such a protocol did not exist. But, the court finds the existence or nonexistence of such a protocol to be

inconsequential. It is the primary mission of the Puerto Rico Medical Center to provide medical care to people who are ill. An established protocol for the treatment of each type of illness would hardly seem necessary. That said, Plaintiff's submissions do raise some interesting issues. With the support of medical expert testimony, Maldonado's medical records may create an issue of fact as to whether Maldonado received adequate attention after 9:00 p.m. on October 2, 2009. Defts' Exhibit No. 8. A medical expert's opinion on reports provided by doctors to Officer Medina may bring into question whether the forensic medical report accurately documented Maldonado's cause of death. But again, there is no evidence in the record before this court that Defendant Armendáriz encouraged, condoned or acquiesced in the delivery of substandard care to Maldonado or a misdiagnosis as to his cause of death. Accordingly, Defendants' Motion on Plaintiff's Section 1983 claims against Defendant Armendáriz in his official capacity is GRANTED.

Civil No. 05-2063 (SEC/JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 V. Conclusion

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For the reasons stated above, Defendants' Motion for Summary Judgment is GRANTED in part. Plaintiff's Section 1983 claims against all Defendants in their official capacities are DISMISSED pursuant to the court's prior Opinion, Order, and Partial Judgment. Docket Document Nos. 39 and 40. Defendants' Motion on Plaintiff's Section 1983 claims against Defendants Santiago, Cartagena, Pereira, Díaz, and Armendáriz in their personal capacities is GRANTED. Having summarily Defendants Plaintiff's disposed of Plaintiff's Section 1983 claims and to against

Santiago,

Cartagena, claims

Pereira, brought

Díaz,

Armendáriz, 28 U.S.C.

supplemental

pursuant

§ 1367(a) against the same Defendants are DISMISSED with prejudice. 28 U.S.C. § 1367(c)(3). Following disposition of Defendants' Motion, the issue remaining to be adjudicated in this case is Plaintiff's Section 1983 claim against Defendant Román for an alleged Fourth Amendment violation. IT IS SO ORDERED. San Juan, Puerto Rico, this 27th day of March, 2009. S/José Antonio Fusté JOSE ANTONIO FUSTE Chief U. S. District Judge