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

Filing 135

OPINION AND ORDER. DENIED 120 MOTION for Reconsideration re Partial Judgment. Signed by Judge Salvador E Casellas on 3/2/2010.(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 tiffs 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 Wendel Delgado Sánchez (hereinafter "Wendel"), and D w ig h t Delgado Sánchez's ("Dwight") (collectively "Plaintiffs") Motion for Reconsideration (D o c k e t # 120), and Defendant Pedro Toledo-Davila's opposition thereto (Docket # 127). After re v ie w in g the filings, and the applicable law, Plaintiffs' motion for reconsideration is DENIED. Procedural Background P la in tiffs seek relief for the damages suffered by Plaintiffs as a result of the alleged ille g a l seizure, false arrest, imprisonment, and assault undertaken by members of the Puerto R ic o Police Department. Plaintiffs' complaint is premised on Title 42 U.S.C.A. §1983, the F o u rth , Fifth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and s e v e ra l state laws.1 Plaintiffs brought this suit against Toledo, the Police Department S u p e rin te n d e n t; Francisco Carbó Marti, the Director of the drug and addictions control of P u e r to Rico; Felicita Coriano-Rivera, Lieutenant of the Carolina Tactics Operation; Carlos

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C a rrió n Rodríguez, Lieutenant of the Carolina Drug Division; Carlos Sanchez-Ofaril, S u p e rv is o r of the Carolina Drug Division; agents José L. López Pagán, Endel Meléndez, Carlos T o le d o -R e y e s, and Ernesto Santiago; Diego Figueroa, President of the Frente Unido de Policías O rg a n iz a d o s (hereinafter FUPO); and several unnamed defendants.

The initial complaint was filed on August 8, 2007 (Docket # 1), and a first amended complaint was filed on August 15, 2007. Docket # 2. On December 26, 2007, Plaintiffs filed a second amended complaint. Docket # 12.

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O n December 26, 2007, Plaintiffs filed a second amended complaint. Docket # 12. 3 D e fe n d a n ts moved this Court to strike Plaintiffs' second amended complaint, however, their 4 re q u e st was denied, (Docket # 26, and on January 28, 2008, Defendants moved for dismissal. 5 6 7 8 9 10 11 12 13 14 15 16 a motion seeking to alter or amend said judgment. The rule itself does not specify on what 17 g ro u n d s the relief sought may be granted, and courts have ample discretion in deciding whether 18 19 20 21 22 23 24 25 26 Although in his response Defendant fails to address the procedural issues raised by Plaintiffs, and merely discusses the pending administrative proceedings, this Court will address Plaintiffs' arguments individually.
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In its prior Opinion & Order, this Court dismissed with prejudice all of Plaintiffs' claims federal a g a in st Toledo, as well as Plaintiffs' Fifth, Eighth and Ninth Amendment claims against all D e fe n d a n ts . Docket # 40. On August 6, 2008, Plaintiff requested that this Court reconsider its p rio r holding, and reinstate all claims against Toledo. Docket # 42. Specifically, Plaintiffs a rg u e d that the allegations in the second amended complaint were sufficient to survive a motion to dismiss for failure to state a claim upon which relief can be granted. This Court granted P la in tiffs ' request, and their Section 1983 claims against Toledo were reinstated. Docket # 72. On May 26, 2009, Toledo moved for summary judgment (Docket # 84), and his request w a s granted by this Court (Dockets ## 114 & 115). Shortly thereafter, Plaintiffs moved for re c o n sid e ra tio n on procedural grounds. Docket # 120. Defendant opposed.2 Docket # 127. S ta n d a r d of Review F ED. R. CIV. P. 59(e) allows a party, within ten (10) days of the entry of judgment, to file

to grant or deny such a motion. Venegas-Hernández v. Sonolux Records, 370 F.3d 183, 190 (1 st C ir. 2004) (citations omitted). In exercising that discretion, courts must balance the need for g iv in g finality to judgments with the need to render a just decision. Id. (citing Edward H. Bolin C o . v. Banning Co., 6 F.3d 350, 355 (5 th Cir. 1993)). D e s p ite the lack of specific guidance by the rule on that point, the First Circuit has stated th a t a Rule 59(e) motion "must either clearly establish a manifest error of law or must present

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n e w ly discovered evidence." F.D.I.C. v. World Univ., Inc., 978 F.2d 10, 16 (1 st Cir. 1992) 3 (c itin g Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7 th Cir. 1986)). Rule 59(e) may 4 n o t, however, be used to raise arguments that could and should have been presented before 5 6 7 8 9 10 11 12 13 14 15 16 c ita tio n s in support of any of their assertions of fact, and SUMF ¶¶ 1 4 and 12 did not have 17 re c o rd citations. Also, Exhibits ## 1, 3, 4, 7, and 8 were not properly authenticated. 18 19 20 21 22 23 24 25 26 Notwithstanding, this statement of fact has been admitted by the parties, and as such, will be considered by this Court.
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ju d g m e n t was entered, nor to advance new legal theories. Bogosonian v. Woloohojian Realty C o rp ., 323 F.3d 55, 72 (1 st Cir. 2003). A p p lic a b le Law and Analysis P r o c e d u r a l Issues In its prior Opinion and Order, this Court noted that although Defendant complied with R u le 56, and submitted a Statement of Uncontested Facts, numbered, and supported by record c ita tio n s , Plaintiffs did not admit, deny or qualify Toledo's SUMF by reference to each n u m b e re d paragraph. Instead, Plaintiffs provided additional facts which were not related to T o le d o 's SUMF. Since Plaintiffs did not properly oppose Toledo's SUMF in compliance with R u le 56, this Court deemed as uncontested those facts that were properly supported by the r e c o rd .3 F u rth e rm o re , this Court pointed out that Plaintiffs failed to provide specific record

A d d itio n a lly , the English Translation of Exhibit # 8, provided in support of SUMF ¶9, was m is s in g pages 2-12. Lastly, portions of Plaintiffs' SUMF ¶¶ 5, 8, and 10, set forth conclusions o f law regarding alleged violations to the Puerto Rico Police Department's regulations, to P la in tiff's rights, and local laws, which were matters best left for this Court to decide.

SUMF ¶¶ 1-4, and 6-10. SUMF ¶5, a conclusion of law, was left for this Court to decide.

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P la in tiffs contend that this Court erroneously failed to consider their Exhibits ## 1, 3, 4, 3 7 , and 8 in ruling upon Defendant's motion for summary judgment. However, page 6 of this 4 C o u rt's Opinion and Order provides that "since Plaintiffs' SUMF ¶¶ 4, 5, 8, and 10, which are 5 6 7 8 9 10 11 12 13 14 15 16 n .1 1 (1988)). Although public records fall within the hearsay exception for "public records" 17 in FED. R. EVID. 803(8), they must be properly authenticated under FED. R. EVID. 901 or 902. 18 19 20 21 22 23 24 25 26 R u le 901(b) provides examples of authentication conforming under said rule, and provides that p u b lic records or reports are properly authenticated when there is "evidence that a writing a u th o riz e d by law to be recorded or filed and in fact recorded or filed in a public office, or a p u rp o rte d public record, report, statement, or data compilation, in any form, is kept from the p u b lic office where items of this nature are kept." In the present case, there is no affidavit from a custodian or record keeper, nor a certified copy of said exhibits under Rule 902. N o tw ith s ta n d in g , even if this Court deemed Exhibit # 7 admitted, it is irrelevant for p u rp o s e s of the motion for summary judgment, that is, Plaintiffs' procedural due process claims a g a in st Toledo, and allegations regarding his failure to provide adequate training. Even more, s u p p o rte d by Exhibits ## 1, 3 and 4, coincide with Toledo's SUMF, said exhibits' validity is d e e m e d admitted by Toledo. Accordingly, Plaintiffs' SUMF ¶¶ 4, 5, 8, and 10 will be c o n s id e re d by this Court." Docket # 114, p. 6. As such, Exhibits ## 1, 3, and 4 were not e x c lu d e d in ruling upon Defendant's motion. A s to Exhibit # 7, an investigation request from the Director of the Internal Affairs D iv isio n , and Exhibit # 8, a recommendation issued by the Examining Officer, this Court finds th a t they were not properly authenticated. FED. R. EVID. 803 (8) provides that public records are n o t excluded by the hearsay rule "unless the sources of information or other circumstances in d ic a te lack of trustworthiness." The First Circuit has held that "[t]rustworthiness in this c o n te x t refers to matters such as whether the evidence is self- authenticating or c o n te m p o ra n e o u s ly compiled by a person of adequate skill and experience." Blake v. Pellegrino, 3 2 9 F.3d 43, 48 (1st Cir. Mass. 2003) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167

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it demonstrates that a thorough investigation took place. By the same token, this Court notes 3 th a t Exhibit # 8 provides a recommendation from the Examining Officer, and not a binding 4 5 6 7 8 9 10 11 12 13 14 15 16 o n page 6, footnote 4, this Court specifically stated: "[a]t Plaintiffs' SUMF ¶11, they posit that 17 `T o le d o did not provide adequate training to the Carolina drug division police officers regarding 18 19 20 21 22 23 24 25 26
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m a n d a te for the Superintendent.5 Furthermore, therein the Officer recommended that Wendel D e lg a d o be suspended from work and salary for 120 days, and removed from his work unit for v io la tin g Article 14, Section 14.5, Sub-sections 1, 3, 27 and 29 of the Police Department's P e rs o n n e l Regulations #4216, May 11, 1990. Thus the Examining Officer found Wendel v io la te d the Personnel Regulations on several fronts. Additionally, Plaintiffs argument that this C o u rt should have alerted them about the omission of pages 2-12 from the English translation o f Exhibit # 8 lacks merit. In an adversarial system, the parties cannot ask this Court to c o n tin u a lly remind them of their need to comply with the applicable procedural rules. The p a rtie s bear the burden of complying with the applicable procedural rules, or face the c o n s e q u e n c e s of their omissions. A d e q u a te training P la in tiffs also argue that this Court did not address their allegations regarding D e fe n d a n t's failure to provide adequate training regarding the penetration of houses. However,

th e penetration of houses.' However, considering that Plaintiffs arrest took place on the street, n o t inside a house or structure, said statement of fact is irrelevant to the case at bar." Docket # 1 1 4 , p. 6, n. 4. This Court also emphasized that pursuant to the uncontested facts, Plaintiffs' o n ly evidence regarding Toledo's failure to train the police force is his own perception and a lle g a tio n that "you are not taught to beat on people at the Academy, and you are not taught to lib e l persons at the Academy." Docket # 114 (citing Toledo's SUMF ¶3). Plaintiffs have no

Plaintiffs later provided a Certified English translation. Docket # 120.

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e v id e n c e of lack of training other than the allegation in the previous statement, which is 3 in su ffic ie n t to survive summary judgment. Id. (citing Toledo's SUMF ¶ 4). 4 Procedural due process 5 6 7 8 9 10 11 12 13 14 15 16 1 9 9 0 . Although Wendel was not accused of committing a crime, investigating officers had 17 o b s e rv e d him on previous occasions at the site of the drug bust that took place on August 10, 18 19 20 21 22 23 24 25 26 Exhibit # 8, which was not considered by this Court in ruling upon the motion for summary judgment. Specifically, Wendel showed "manifest inability, incompetence, carelessness, bias or negligence in the performance of his duties, functions, and responsibilities," "harmful, inmoral and disorderly conduct detrimental to the Police Department," "associate with...persons with doubtful reputations," and leaving "service weapons or any other weapon authorized to be owned or carried
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T h is Court points out that, invoking his procedural due process claims, Wendel argues th a t Toledo deprived him of the established pre-termination procedures. According to Wendel, he was summarily suspended, without an investigation into the facts of the case, or an a d m in is tra tiv e hearing pursuant to the Police Department's Personnel Regulations. He further c o n te n d s that the hearing was held five months after his suspension, in violation of the a p p lic a b le rules. After reviewing the record, this Court finds that it is uncontested that Wendel was s u m m a rily suspended. Notwithstanding, the Police Department's Personnel Regulations allows th e Superintendent to summarily suspend a member of the Force from employment and wages, p rio r to the administrative hearing, when there is misuse of public funds, lack of competence, m is c o n d u c t or crime charged, or whenever there is a reasonable belief that the public's health o r safety may be endangered. Article 14.3(2)(b)(1)(b), Personnel Regulation #4216, May 11,

2 0 0 6 , and in fact Wendel was arrested on said date during the operative. Furthermore, pursuant to the summary suspension letter, as well as the examining officer's report,6 Wendel was s u s p e n d e d for a period of one hundred twenty days, and removed for his work unit for violations to Article 14, Section 14.5, Serious Offenses ## 1, 3, 27, and 29.7 Personnel Regulation #4216.

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T h e re fo re , Toledo had reason to summarily suspend Wendel, and acted in compliance with the 3 P e rs o n n e l Regulations. 4 Moreover, although Plaintiffs contend that Toledo did not conduct an investigation 5 6 7 8 9 10 11 12 13 14 15 16 p ro v id e s adequate postdeprivation remedies -- either by statute or through the common-law tort 17 re m e d ie s available in its courts -- no claim of a violation of procedural due process can be 18 19 20 21 22 23 24 25 26 withint the reach of persons who may use them inappropriately or allow that others make use of the same, or not take the appropriate precautions with these." b ro u g h t under § 1983 against the state officials whose random and unauthorized conduct caused th e deprivation."). Specifically, the First Circuit has held that a plaintiffs' procedural due p r o c e s s claims fail when "state law clearly provided for adequate notice and there was no s u g g e s tio n that either by formal or informal means the state had authorized the giving of in a d e q u a te notice to persons who may be terminated, or that this was any form of regular p ra c tic e ," and proper post-deprivation remedies were provided. Hadfield v. Mc Donough, 407 F .3 d 1 at 20. b e fo re suspending Wendel, the suspension letter states that the action corresponded to a p re lim in a ry investigation regarding Wendel's conduct. Docket # 114, p.11 (citing Plaintiffs' S U M F ¶5; Exhibit # 1, Docket # 108-5). Then, after the summary suspension, a thorough in v e stig a tio n was conducted. Also, Wendel appealed the letter of suspension on August 17, 2 0 0 6 , and a hearing was held on January 16, 2007. Docket # 114, p. 11 (citing Toledo's SUMF ¶ 8 ; Plaintiffs' SUMF ¶¶ 6, 9 & 10). Considering the foregoing, Wendel's rights were properly s a fe g u a rd e d . Additionally, as previously held by this Court, even if Toledo failed to provide Wendel th e procedure due prior to making the decision to terminate him, he cannot succeed on his p ro c e d u ra l due process claim without showing that the state failed to provide him with an a d e q u a te post-deprivation remedy. Cronin v. Town of Amesbury, 81 F.3d 257, 260 (1 st Cir. 1 9 9 6 ) (citing Lowe v. Scott, 959 F.2d 323, 340-41 (1st Cir. 1992) (holding that "[i]f a state

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W e n d e l was afforded an investigation, and subsequent hearing regarding his suspension. 3 M o re o v e r, he does not contest that the Police Department informed him in both the suspension, 4 a n d the dismissal letters about his right to appeal to the Investigation, Processing and Appeal 5 6 7 8 9 10 11 12 13 14 15 16 Plaintiffs argue that the Hudson/Parratt doctrine is inapplicable to the case at bar 17 b e c a u s e Toledo is sued in his personal capacity, not as a state actor. However, they fail to 18 19 20 21 22 23 24 25 26 p ro v id e case law in support of said argument. Moreover, the Supreme Court has held that " [p ]e rs o n a l-c a p a c ity suits...seek to impose individual liability upon a government officer for a c tio n s taken under color of state law," Hafer v. Melo, 502 U.S. 21, 25 (1991), while o ffic ia l-c a p a c ity suits..."generally represent only another way of pleading an action against an e n tity of which an officer is an agent." Id. (citing Monell v. New York City Dept. of Social S e rv ic e s , 436 U.S. 658, 690, n. 55 (1978). Considering that the Hudson/Parratt applies when th e "deprivation of a property interest is occasioned by random and unauthorized conduct by s ta te officials...," and that Toledo was sued in his personal capacity for his actions while acting u n d e r color of state law, Plaintiffs arguments on this front are unpersuasive. C o m m itte e (CIPA, for its Spanish acronym). As a matter of fact, the administrative case is still p e n d in g before CIPA. Instead he argues that Toledo summarily suspended him in excess of five m o n th s , in violation of the Personnel Regulations, and intentionally deprived him of his right to a pre-termination hearing. As noted by this Circuit, "[i]n such situations, additional pred e p riv a tio n safeguards would have little value in preventing an erroneous deprivation of the p ro te c te d interest." Mard v. Town of Amherst, 350 F.3d 184, 193 (1 s t Cir. 2003). Under the H u d so n /P a r r a tt doctrine, "when a deprivation of a property interest is occasioned by random a n d unauthorized conduct by state officials, the Supreme Court has repeatedly emphasized that th e due process inquiry is limited to the issue of the adequacy of the postdeprivation remedies p ro v id e d by the state." Hadfield v. Mc Donough, 407 F.3d 11, 19 (1 st Cir. 2005); Hudson v. P a lm e r, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527 (1981). That is, in all lik e lih o o d , a pre-termination hearing would not have afforded Wendel the relief he sought.

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3 H a v in g dismissed Plaintiffs' federal law claims against Toledo, their state law libel 4 c la im s against said co-defendant are also dismissed. See Newman v. Burgin, 930 F.2d 955, 963 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S /S a lv a d o r E. Casellas S a lv a d o r E. Casellas U .S . District Judge (1 st Cir. 1991) (holding that "[t]he power of a federal court to hear and to determine sate-law c la im s in non-diversity cases depends upon the presence of at least one `substantial' federal c la im in the lawsuit.") Conclusion F o r the reasons stated above, Plaintiffs' motion for reconsideration is DENIED. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 2 n d day of March, 2010.