Delgado-Sanchez et al v. Toledo-Davila et al

Filing 110

OPINION AND ORDER. GRANTED 83 Amended MOTION for Summary Judgment and Memorandum filed by Diego Figueroa; MOOT 91 MOTION to Strike Plaintiffs' Exhibits; MOOT 102 Second MOTION to Strike Plaintiffs' exhibits in opposition to motion for Summary Judgment; MOOT 106 MOTION to Strike. The documents Figueroa sought to exclude were not considered by this Court upon ruling on the motion for summary judgment. As such, all motions on this issue are moot. Signed by Judge Salvador E Casellas.(LB)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO W E N D E L DELGADO SANCHEZ, et al P la in tif f s v. Civil No. 07-1709 (SEC) P E D R O TOLEDO DAVILA, et al Defendants

O P I N I O N AND ORDER P e n d in g before this Court is Defendant Diego Figueroa Torres' ("Defendant" or " F ig u e ro a " ) Motion for Summary Judgment (Dockets # 83), and Plaintiff Wendel Delgado S á n c h e z 's ("Plaintiff" or "Wendel") opposition thereto (Docket ## 87 and 89). After reviewing th e filings, and the applicable law, Figueroa's motion is GRANTED. Factual and Procedural Background O n August 9, 2006, Plaintiffs Wendel and his brother, Dwight Delgado Sánchez, were a rre s te d and allegedly assaulted by police, and thereafter confined for over 12 hours, as a result o f an investigation on the part of the Police of Puerto Rico regarding an alleged drug kingpin. W e n d e l was a member of the police force when this incident allegedly took place. During his tim e as a police officer, he was also a member of Frente Unido de Policías Organizados ("F U P O " ). In June 2007, FUPO stopped providing legal services to Wendel during his a d m in is tra tiv e hearing. As a result, on December 26, 2007, Wendel brought this suit against F ig u e ro a , president of FUPO, alleging he acted in retaliation by denying him further legal

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c o u n s e l. Docket # 12. Specifically, Wendel alleges that Figueroa retaliated against him because th e administrative proceedings involved other police officers which were allegedly friends of F ig u e ro a .

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Civil No. 07-1709 (SEC) S ta n d a r d of Review

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3 F ED. R. CIV. P. 56 4 T h e Court may grant a motion for summary judgment when "the pleadings, depositions, 5 6 7 8 9 10 11 12 13 14 15 16 (1 st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be 17 r e s o l v e d in favor of either party and, therefore, requires the finder of fact to make `a choice 18 19 20 21 22 23 24 25 26 b e tw e e n the parties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 1 1 2 , 116 (1st Cir. 2005)(quoting Garside, 895 F.2d at 48 (1st Cir. 1990)); see also SEC v. F ic k e n , 546 F.3d 45, 51 (1st Cir. 2008). In order to defeat summary judgment, the opposing party may not rest on conclusory a lle g a tio n s , improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 4 0 7 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997). Once th e party moving for summary judgment has established an absence of material facts in dispute, a n s w e rs to interrogatories, and admissions on file, together with the affidavits, if any, show that th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." FED.R.CIV.P. 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 248(1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1st Cir. 2005). In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., In c . v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines th e record in the "light most favorable to the nonmovant," and indulges all "reasonable in f e re n c e s in that party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st C ir. 1994). O n c e the movant has averred that there is an absence of evidence to support the n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at least o n e fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48

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a n d that he or she is entitled to judgment as a matter of law, the "party opposing summary 3 ju d g m e n t must present definite, competent evidence to rebut the motion." Méndez-Laboy v. 4 A b b o t Lab., 424 F.3d 35, 37 (1st Cir. 2005) (quoting from Maldonado-Denis v. Castillo 5 6 7 8 9 10 11 12 13 14 15 16 re q u ire m e n ts of Local Rule 56, and file a statement of facts, set forth in numbered paragraphs, 17 a n d supported by record citations. See Local Rule 56(b). In turn, when confronted with a motion 18 19 20 21 22 23 24 25 26 f o r summary judgment, the opposing party must: [ s ]u b m it with its opposition a separate, short, and concise statement of material f a c ts . The opposition shall admit, deny or qualify the facts by reference to each n u m b e re d paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation a s required by this rule. The opposing statement may contain in a separate section a d d itio n a l facts, set forth in separate numbered paragraphs and supported by a re c o rd citation...Local Rule 56(c). L o c a l Rule 56(e) further provides that "[a]n assertion of fact set forth in a statement of material f a c ts shall be followed by a citation to the specific page or paragraph of identified record m a te ria l supporting the assertion." Moreover, a "court may disregard any statement of material f a c t not supported by a specific record citation to record material properly considered on R o d ríg u e z , 23 F.3d 576, 581 (1st Cir. 1994). "The non-movant must `produce specific facts, in suitable evidentiary form' sufficient to limn a trial-worthy issue. . . .Failure to do so allows th e summary judgment engine to operate at full throttle." Id.; see also Kelly v. United States, 9 2 4 F.2d 355, 358 (1st Cir. 1991) (warning that "the decision to sit idly by and allow the s u m m a ry judgment proponent to configure the record is likely to prove fraught with c o n s e q u e n c e " ); Medina-Muñoz, 896 F.2d at 8 (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F .2 d 179, 181 (1st Cir. 1989)) (holding that "[t]he evidence illustrating the factual controversy c a n n o t be conjectural or problematic; it must have substance in the sense that it limns differing v e rs io n s of the truth which a factfinder must resolve."). Applicable Law and Analysis O n May 21, 2009, Figueroa filed this motion for summary judgment. Docket # 83. B e c a u s e the instant motion is for summary judgment, the moving party must comply with the

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s u m m a ry judgment." Local Rule 56(e). Local Rule 56(e)(2) further states that, if the opposing 3 p a rty does not respond to a motion for summary judgment, "summary judgment should, if 4 a p p ro p ria te , be entered against that party." When "a party opposing summary judgment fails to 5 6 7 8 9 10 11 12 13 14 15 16 o p p o s in g party's proposed uncontested facts, this Court will deem as admitted those facts which 17 a re supported by the record. 18 19 20 21 22 23 24 25 26 T h e relevant uncontested facts are as follows. Coreano was Plaintiff's supervisor. P la in tif f 's SUMF ¶ 4; PTO at Docket # 105, p. 56. Figueroa is the President of FUPO, and is n o t a public official. Plaintiff's SUMF ¶ 3; PTO at Docket # 105, p. 56. FUPO is a private, nong o v e rn m e n ta l organization. Defendant's SUMF ¶ 5. At some point, Plaintiff was a member of F U P O . Plaintiff's SUMF ¶ 2; PTO at Docket # 105, p. 55. Per his deposition testimony, P la in tif f has no personal knowledge that a meeting between Figueroa and Coreano took place. D e f e n d a n t's SUMF ¶ 4. Plaintiff did not show that Figueroa and Coreano communicated to a c t in accordance with the rigors that such a rule imposes, a district court is free, in the exercise o f its sound discretion, to accept the moving party's facts as stated." Cabán-Hernández v. Philip M o rris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007). These rules "are meant to ease the district c o u rt's operose task and to prevent parties from unfairly shifting the burdens of litigation to the c o u rt." Id. at 8. The First Circuit has held that when the parties ignore the Local Rule, they do s o at their own peril. See Ruiz-Rivera v. Riley, 209 F. 3d 24, 28 (1st Cir. 2000). A s per Local Rule 56, Figueroa filed a Motion for Summary Judgment, and an a c c o m p a n yin g Statement of Uncontested Material Facts (Defendant's SUMF). Docket # 83. T h e re a f te r Plaintiff filed a memorandum in opposition to Figueroa's motion for summary ju d g m e n t, and a Statement of Uncontested Material Facts (Plaintiff's SUMF) in support thereof. D o c k e ts ## 87 and 89. However, both parties failed to properly oppose each other's proposed s ta te m e n ts of fact. Insofar as both Defendant and Plaintiffs failed to admit, deny, or qualify the

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3 S u b je c t Matter Jurisdiction 4 In his motion for summary judgment, Figueroa argues that this Court lacks subject matter 5 6 7 8 9 10 11 12 13 14 15 16 q u e s tio n subject matter jurisdiction, "[a] plaintiff properly invokes § 1331 jurisdiction when she 17 p le a d s a colorable claim `arising under' the Federal Constitution or laws." Id.; see Bell v. Hood, 18 19 20 21 22 23 24 25 26 Upon reviewing the record, this Court finds that ¶¶ 3-5, and 11 (incorrectly numbered as 10) of Defendant's SUMF are properly supported by the record. After examining Plaintiff's SUMF, this Court notes that although ¶¶ 1-4 are not property cited by Plaintiff, the facts set forth therein appear as uncontested facts in the parties' Joint Proposed Pretrial Order ("PTO")(Docket # 105), and as such, they will be considered by this Court upon ruling on the instant motion. These are the only relevant facts as to the issue of subject-matter jurisdiction.
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ju ris d ic tio n , therefore, dismissal of the claims against him is warranted. Specifically, Figueroa a v e rs that Plaintiff's claim amounts only to a breach of contract claim, instead of a violation of c iv il rights under § 1983. In opposition, Plaintiff contends that Coreano's involvement in the a lle g e d retaliatory action, in conjunction with Figueroa, is sufficient to prove the necessary " p e rso n acting under the color of state law" or "state action" element required under § 1983. A lth o u g h Figueroa's claim regarding lack of jurisdiction is not extensively argued in his motion, th e Supreme Court has held that, in order for the Court to hear a case, subject matter jurisdiction m u s t "be established as a threshold matter." Steel Co. v. Citizens for a Better Environment, 523 U .S . 83, 94 (1998). Therefore this Court must first address any jurisdictional issue. Subject matter jurisdiction is granted to federal courts by either "28 U.S.C. § 1331, which p ro v id e s for `[f]ederal-question' jurisdiction, [or] § 1332, which provides for `[d]iversity of c itiz e n s h ip ' jurisdiction." Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). As to federal

3 2 7 U.S. 678, 681-685 (1946). If a "federal court concludes that it lacks subject-matter ju ris d ic tio n , the complaint must be dismissed in its entirety." Id. at 502. Insofar as Plaintiffs c la im s arise under 42 U.S.C. § 1983, this Court must first address whether Plaintiff has properly in v o k e d § 1331 federal question subject matter jurisdiction by pleading a valid § 1983 claim.

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In order for a plaintiff to have a viable claim under § 1983, he must show (1) that the 3 c o n d u c t complained of was committed by a person acting under color of state law; and (2) that 4 th is conduct deprived the plaintiff of his rights, privileges, or immunities secured by the 5 6 7 8 9 10 11 12 13 14 15 16 p ro v id e d such significant encouragement, either over or covert, that the [challenged conduct] 17 m u s t in law be deemed to be that of the State.'" Id.; see also Estades-Negroni v. CPC Hosp. San 18 19 20 21 22 23 24 25 26 J u a n Capestrano, 412 F.3d 1, 5 (2005) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). P la in tif f argues that, although Figueroa is a private party, Coreano exercised coercive power and e n c o u r a g e m e n t him to retaliate against Wendel, by removing the legal counsel provided via F U P O . As such, Plaintiffs allege that Figueroa's actions joint actions should be deemed to be th o s e of the State. However, this Court disagrees. After reviewing the record, this Court notes th a t Plaintiff's knowledge of alleged communications between Figueroa and Coreano is based s o le ly on hearsay. As previously held, Plaintiff fails to provide evidence that such a meeting to o k place. Instead, he seeks to substantiate said assertion with the fact that a third party told h im about it. This is insufficient to evince that the State, acting through Coreano, exercised C o n s titu tio n or laws of the United States. See Gutiérrez v. Cartagena, 882 F. 2d 553, 559 (1 st C ir. 1989). The First Circuit has held that "Section 1983's requirement of action `under color o f state law' is identical to the `state action' requirement of the Fourteenth Amendment." A lb e rto San, Inc. v. Consejo De Titulares Del Condominio San Alberto, 522 F.3d 1, 3, n. 1 (1 st C ir. 2008). The state action requirement has two components: "[f]irst, the deprivation must be c a u s e d by the exercise of some right or privilege created by the State or by a rule of conduct im p o se d by the state . . . Second, the party charged with the deprivation must be a person who m a y fairly be said to be a state actor." Id. at 4. A "private party can be fairly characterized as a state actor if the circumstances of the c a s e meet one of three tests: the public function test, the joint action/nexus test, or the state c o m p u lsio n test." Alberto San, 522 F.3d at 4. The state compulsion test provides that "a private p a rty is fairly characterized as a state actor when the state `has exercised coercive power or has

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c o e rc iv e power, or provided significant encouragement to Figueroa. As a result, Figueroa 3 c a n n o t be fairly characterized as a state actor under the state compulsion test. 4 Plaintiff also argues that Figueroa should be characterized as a state actor under the joint 5 6 7 8 9 10 11 12 13 14 15 16 a n y action, participation, or involvement to the point of interdependence by Coreano. Thus 17 P la in tif f 's argument on this front also fails. 18 19 20 21 22 23 24 25 26 Finally, the public function test provides that a private party is fairly characterized as "a s ta te actor if the plaintiff establishes that, in engaging in the challenged conduct, the private p a rty performed a public function that has been `traditionally the exclusive prerogative of the S ta te .'" E s ta d e s -N e g ro n i, 412 at 5 (quoting Blum, 457 U.S. at 1005); Alberto San, 522 F.3d at 4 . Plaintiff argues that Figueroa should be characterized as a state actor because he fails to draw th e line between his functions as President of FUPO, and his duties and responsibilities as a p o lic e officer. Nevertheless, when Figueroa withdrew Plaintiff's legal representation, he was a c tin g in his capacity as president of FUPO, and not as a police officer. Moreover, Figueroa did n o t perform a traditional public function in his capacity as the president of FUPO. The conferral a c tio n /n e x u s test because he felt obligated to be loyal to his friend, Coreano. The "nexus/joint a c tio n test provides that a private party" is fairly characterized as "a state actor where an e x a m in a tio n of the totality of the circumstances reveals that the state has `so far insinuated itself in to a position of interdependence with the [private party] that it was a joining participant in the [ c h a lle n g e d activity].'" Estades-Negroni, 412 at 5 (quoting Bass v. Parkwood Hosp., 180 F.3d 2 3 4 , 242 (5th Cir. 1999)); Alberto San, 522 F.3d at 4. As previously noted, Plaintiff has no p e rs o n a l knowledge of an alleged communication between Figueroa and Coreano. As such, the re c o rd is devoid of evidence showing that the State has "so far insinuated itself into a position o f interdependence with the [private party] that it was a joining participant in the [challenged a c tiv ity]." Bass., 180 F.3d at 242 . Moreover, the simple fact that Coreano was Figueroa's friend is insufficient to conclude that Figueroa actions towards Plaintiffs were based upon his loyalty to Coreano. Furthermore, even if Figueroa acted out of loyalty to Coreano, this does not entail

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o r denial of legal representation by FUPO, a non-governmental, private organization, is not a 3 p u b lic function that has been "traditionally the exclusive prerogative of the State." Blum, 457 4 5 6 7 8 9 10 11 12 13 14 15 16 p e rs o n acting under color of state law. Absent a valid claim `arising under' the Federal 17 C o n s titu tio n or laws, this Court lacks subject matter jurisdiction. As stated above, "when a 18 19 20 21 22 23 24 25 26
There are very few actions on the part of a private actor that have been recognized as meeting this standard. They include: "the administration of elections, the operation of a company town, eminent domain, peremptory challenges in jury selection, and, in at least limited circumstances, the operation of a municipal park." Perkins v. Londonderry Basketball Club, 196 F.3d 13, 19 (1999)(internal quotation marks omitted). "When a plaintiff ventures [beyond this short list of activities], she has an uphill climb." Id.
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U .S . at 1005.2 T h e absence of any joint participation by state officials in a private defendants' conduct p re c lu d e s Section 1983 applicability. See Alberto San, 522 F.3d at 4. Thus Plaintiff's Section 1 9 8 3 claims against Figueroa are DISMISSED with prejudice. Supplemental State Law Claims H a v in g dismissed Plaintiffs' federal law claims against Figueroa, Plaintiffs' state law c la im s against him are also dismissed. See Newman v. Burgin, 930 F.2d 955, 963 (1 st Cir. 1991) (h o ld in g that "[t]he power of a federal court to hear and to determine sate-law claims in nond iv e rs ity cases depends upon the presence of at least one `substantial' federal claim in the la w s u it." ) . C o n c lu s io n B a s e d on the foregoing, this Court finds that Plaintiff has failed to satisfy the first e le m e n t of a viable § 1983 claim, that is, that the conduct complained of was committed by a

f e d e ra l court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety."Arbaugh, 546 at 502. Thus dismissal of Plaintiff's claims against Figueroa is w a rra n te d , and Figueroa's motion for summary judgement is GRANTED. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 31st day of August, 2009.

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Civil No. 07-1709 (SEC) S /S a lv a d o r E. Casellas S a lv a d o r E. Casellas U .S . District Judge

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