McLeod-Lopez v. Rosa-Algarin et al

Filing 25

OPINION AND ORDER. GRANTED in part and DENIED in part 6 MOTION to dismiss Under Fed. Rule Civ. Proc. 12(b)(6) as to Juan Rosa-Algarin, Pedro A. Toledo-Davila. Signed by Judge Salvador E Casellas on 3/23/2009.(LB)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

M A T T H E W CRIS MCLEOD-LOPEZ P la in tif f v. J U A N ROSA ALGARIN, ET AL Defendants Civil No. 08-1315 (SEC)

O P I N IO N and ORDER P e n d in g before this Court is Co-Defendants Pedro Toledo Dávila ("Toledo") and Juan A . Rosa Algarín's ("Rosa") (collectively "Defendants") motion to dismiss (Docket # 6), and P la in tif f Matthew Cris McLeod-López's ("Plaintiff") opposition thereto (Docket # 11). After re v ie w in g the filings, and the applicable law, Defendants' motion to dismiss is GRANTED in p a r t and DENIED in part. Factual Background O n March 14, 2008, Plaintiff filed the instant complaint under Sections 1983, 1986 and 1 9 8 8 of the Civil Rights Act of 1964, 42 U.S.C. §§ 1983, 1986 & 1988, the Fourth, Fifth, E i g h th , Ninth and Fourteenth Amendments of the U.S. Constitution, Article II of the C o m m o n w e a lth 's Constitution, and Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141, against Toledo, Rosa, various police officers, and other unnamed defendants, in d iv id u a lly and in their personal capacity. Docket # 1.1 Plaintiff seeks relief for the damages h e suffered as a result of the alleged assault undertaken by members of the Puerto Rico Police D e p a rtm e n t during his arrest. Id.

On December 31, 2008, Plaintiff filed an amended complaint, adding several defendants. Docket # 14.

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P u rs u a n t to the complaint, the facts are as follows. On March 19, 2007, while Plaintiff 3 w a s with his common law wife, his son, nephew, and niece in his residence, located at Palmas 4 d e Cerro Gordo Housing Development, approximately fifteen police officers, including Rosa, 5 a rriv e d to serve a warrant for arrest for contempt charges. When Plaintiff opened the door, one 6 o f the police officers inquired as to McLeod-López's whereabouts, whereupon another police 7 o f f ic e r identified Plaintiff as McLeod-López. Plaintiff did not resist arrest. However, Rosa, 8 a n d other officers, attacked and hit Plaintiff, while arresting him. The police officers hit and 9 p u n c h e d Plaintiff in the genital area, moved him out of his residence, and continued to beat him 10 w h ile he was handcuffed and lying on the floor. Subsequently, the officers entered, with 11 P la in tif f , into his residence, and forced him to open a safe deposit box from which the officers 12 a lle g e d ly took an estimated $3,000. During the arrest, Plaintiff was never informed about nor 13 re a d his constitutional rights. 14 Plaintiff was then transported to the Criminal Investigation Center ("CIC") in Vega Baja. 15 The police officers kept hitting and punching Plaintiff, until they arrived at said location. 16 P la in tif f complained about severe pain in his genital area, abdomen, and back to the officers. 17 P la in tif f remained in the CIC for approximately an hour, after which he was transported to the 18 H a to Rey Police Headquarters, where he was put in a solitary cell, and left handcuffed. Plaintiff 19 c o n tin u e d to complain about pain in his genital area. At around 4:00 am on March 20, 2007, a 20 p a ra m e d ic examined Plaintiff, and stated that "he was well." Docket # 14 at ¶ 23. At around 21 1 0 :3 0 am, Plaintiff was transferred to the Diagnostic Treatment Center in Rio Piedras, where 22 th e y ordered he be taken to the emergency room at the Rio Piedras Medical Center. At the 23 M e d ic a l Center, Plaintiff underwent surgery to remove one of his testicles. 24 On March 21, 2007, Plaintiff was taken to the Bayamon Judicial Center, and charged 25 w ith drug and weapons possession. The court found probable cause for said violations, and he 26

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w a s incarcerated at the Bayamon Correctional Facility. The charges were later dismissed due 3 to lack of evidence. 4 On June 5, 2008, Defendants filed a motion requesting the dismissal of the case under 5 F ED. R. CIV. P. 12(b)(6). According to Defendants, all claims against them should be dismissed 6 b e c a u s e : (1) they are entitled to Eleventh Amendment Immunity in their official capacity, (2) 7 T o le d o , in his personal capacity, is entitled to qualified immunity, (3) the respondeat superior 8 d o c tr i n e does not apply to Toledo as a supervisor, (4) Plaintiff does not state a claim of 9 s u p e rv is o ry liability under Section 1983, (5) the complaint does not state a claim of malicious 10 p ro s e c u tio n , false arrest, and illegal seizure under the Fourth and Fourteenth Amendments, and 11 (6 ) Plaintiff failed to state Fifth and Ninth Amendment claims. As a result of the foregoing, 12 D e f e n d a n ts also move for the dismissal of all pendent state law claims. 13 S ta n d a r d of Review 14 F e d . R. Civ. P. 12(b)(6) 15 T o survive a Rule 12(b)(6) motion, Plaintiffs' "well-pleaded facts must possess enough 16 h e f t to show that [they are] entitled to relief." Clark v. Boscher, 514 F. 3d 107, 112 (1 st Cir. 17 2 0 0 8 ). In evaluating whether Plaintiffs are entitled to relief, the court must accept as true all of 18 th e ir "well-pleaded facts [and indulge] all reasonable inferences therefrom" in the plaintiff's 19 f a v o r. Id. Moreover, a court must determine "whether the complaint, so read, limns facts 20 s u f f ic ie n t to justify recovery on any cognizable theory." LaChapelle v. Berkshire Life Ins. Co., 21 1 4 2 F.3d 507, 508 (1st Cir. 1998) (citations omitted). The Supreme Court has held that "a 22 c o m p la in t should not be dismissed for failure to state a claim unless it appears beyond doubt 23 th a t the plaintiff can prove no set of facts in support of his claim which would entitle him to 24 re lie f ." Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 654 (1999) (citing Conley v. Gibson, 25 3 5 5 U.S. 41, 45-46 (1957)). 26

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H o w e v e r, "[a]lthough this standard is diaphanous, it is not a virtual mirage." Berner v. 3 D e la h a n ty, 129 F.3d 20, 25 (1st Cir. 1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 4 (1st Cir. 1988)). Plaintiffs must rely in more than unsupported conclusions or interpretations of 5 la w , as these will be rejected. Id. That is, "factual allegations must be enough to raise a right to 6 re lie f above the speculative level, on the assumption that all allegations in the complaint are 7 tru e ." Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008). Therefore, "dismissal for failure to state 8 a claim is appropriate if the complaint fails to set forth factual allegations, either direct or 9 in f e re n t i a l, respecting each material element necessary to sustain recovery under some 10 a c tio n a b le legal theory." Gagliardi v. Sullivan, 513 F. 3d 301, 305(1 st Cir. 2008). The Court 11 " m a y augment the facts in the complaint by reference to documents annexed to the complaint 12 o r fairly incorporated into it, and matters susceptible to judicial notice." Id. at 305-306. As such, 13 in judging the sufficiency of a complaint, courts must "differentiate between well-pleaded facts, 14 o n the one hand, and `bald assertions, unsupportable conclusions, periphrastic circumlocution, 15 a n d the like,' on the other hand; the former must be credited, but the latter can safely be 16 ig n o re d ." LaChapelle, 142 F.3d at 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1 st 17 C ir.1 9 9 6 )); see also Rogan v. Menino, 175 F.3d 75, 77 (1 st Cir. 1999). 18 T o survive a motion to dismiss at this stage, "it is enough for a plaintiff to sketch an 19 a c tio n a b le claim by means of a generalized statement of facts from which the defendant will be 20 a b le to frame a responsive pleading." Langadinos v. American Airlines, Inc., 199 F.3d 68, 73 21 (1st Cir. 2000) (citing Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1 st Cir. 22 1 9 9 2 ) (internal citations omitted))). In so doing, "a plaintiff can make allegations either on the 23 b a s is of personal knowledge or on `information and belief.'" Id. 24 A p p lic a b le Law and Analysis 25 P la in tiff's Section 1983 Claims 26

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D e f e n d a n ts ' argue that Plaintiff failed to state a Section 1983 claim, and that the Section 3 1 9 8 3 claims against those Defendants who are supervisors should be dismissed because there 4 is no respondeat superior liability under said statute. Plaintiffs oppose dismissal on both fronts, 5 a rg u in g that they have included averments within their complaint sufficient to survive dismissal 6 a t this stage. This Court begins its discussion by addressing the familiar Section 1983 standard. 7 A claim under Section 1983 is established by demonstrating that a government official, 8 a c tin g under the color of state law, has caused the depravation of a federal right. Burke v. Town 9 o f Walpole, 405 F.3d 66, 76 (1st Cir. 2005)(citing Kentucky v. Graham, 473 U.S. 159, 166 10 (1 9 8 5 )). Furthermore, a Plaintiff in a civil rights action must allege an injury to a cognizable 11 in te re s t, and that this injury is "...causally related to the challenged conduct," and can be 12 re d re s s e d through the litigation in question. See Pagan v. Calderon, 448 F.3d 16, 27 (1st Cir. 13 P .R . 2006). The conduct alleged to have caused the violation must also be intentional or 14 re c k le s s ly indifferent to the plaintiff's federal statutory or constitutional right. Del 15 V illa r-R o s a rio v. P.R. DOJ, No. 06-2089, 2008 U.S. Dist. LEXIS 36059,*5 (D.P.R. Mar. 3, 16 2 0 0 8 ); see also Gutierrez Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989); Simmons 17 v . Dickhaut, 804 F.2d 182, 185 (1st Cir. 1986). 18 The First Circuit has held that "[i]n an action brought under §1983, supervisors are not 19 a u to m a tic a lly liable for the misconduct of those under their command." Carmona v. Toledo, 20 2 1 5 F.3d 124, 132 (1st Cir. 2000). However, a supervisor's liability "can be grounded on either 21 th e supervisor's direct participation in the unconstitutional conduct, or through conduct that 22 a m o u n ts to condonation or tacit authorization." Whitfield v. Meléndez-Rivera, 431 F.3d 1, 14 23 (1st Cir. 2005) (citing Camilo Robles v. Zapata, 175 F.3d 41, 44 (1 st Cir. 1999)). Unless the 24 s u p e rv is o r directly participated in the deprivation of the plaintiff's constitutional rights, he may 25 o n ly be held liable if: "(1) the behavior of his subordinates results in a constitutional violation 26

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a n d (2) the supervisor's action or inaction was affirmatively linked to the behavior in the sense 3 th a t it could be characterized as supervisory encouragement, condonation or acquiescence or 4 g ro s s negligence amounting to deliberate indifference." Id. (quoting Hegarty v. Somerset 5 C o u n ty, 53 F.3d 1367, 1379-1380 (1 st Cir. 1995)).2 6 T o le d o avers that there are no allegations linking him to any of the facts set forth in the 7 c o m p la in t. He further contends that he was brought into this suit exclusively because he is the 8 P o lic e Department's Superintendent. Upon reviewing the complaint, this Court notes that 9 T o le d o did not directly participate in the events which led to this suit, therefore, he can only be 10 f o u n d liable if Plaintiff has first shown that his subordinates' behavior results in a constitutional 11 v io la tio n . Taking as true all well-pleaded facts in the complaint, this Court finds that there could 12 b e several constitutional violations on the part of the police officers. As such, for purposes of 13 th is analysis, the answer to this first factor is in the affirmative. 14 Next, this Court must consider whether Toledo's actions or inactions were affirmatively 15 lin k e d to the police officer's behavior. Although the allegations against Toledo may be less 16 s p e c if ic than those regarding the arresting officers, they still pass muster under Rule 12(b)(6). 17 S p e c if ic a lly, Plaintiff alleges that Toledo was responsible for Rosa's, and the other arresting 18 o f f ic e rs ' supervision, recruitment, the evaluation of their performance, and assuring that their 19 20 21 22 23 24 25 26
Failure to train claims may, in appropriate circumstances, lead to an imposition of liability on a supervisor or a municipality. See Calvi v. Knox County, 470 F.3d 422, 429 (1st Cir. 2006) (liability will attach if "the municipality fails to provide adequate training notwithstanding an obvious likelihood that inadequate training will result in the violation of constitutional rights") (citing Whitfield, 431 F.3d at 10). However, an assertion that a supervisor "failed to train" his subordinates and that he should be held liable for such failure, without identifying the factual underpinnings of such failure, nor identifying the causal nexus between the failed training and the street-level misconduct, is not enough. See Rodríguez-Vázquez v. Cintrón-Rodríguez, 160 F. Supp. 2d 204 (D.P.R. 2001) (dismissing claims against Police Superintendent; broad and general allegations of inadequate training and supervision of the police force that are not linked to the particular defendants joined in the action insufficient to state a claim against the superintendent); Rodríguez-Esteras, 266 F. Supp. 2d 270 (dismissing failure to train claim against police superintendent for failure to plead minimum facts in support of such a claim).
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tra in in g was adequate. Moreover, Plaintiff avers Toledo "knew or should have known and 3 id e n tif ie d the dangerous tendencies of said police officers and the threat that they represented..." 4 D o c k e t # 14 at ¶ 30. As such, he posits that Toledo had actual or, at least, constructive 5 k n o w le d g e of the arresting officers' violent tendencies. Id. at ¶ 34. According to Plaintiff, 6 T o le d o 's failure to train, supervise, evaluate, and discipline the arresting police officers, 7 to g e th e r with his failure to identify their violent nature during the implementation of the 8 d e p a r t m e n t's training and disciplinary system, shows a callous and reckless disregard, and 9 d e lib e ra te indifference to Plaintiff's and all Puerto Rico citizens' rights. Id. A review of these, 10 a n d the remaining averments within the complaint regarding Defendants, persuades this Court 11 th a t Plaintiff has sufficiently pled a viable Section 1983 claim against them to survive a motion 12 to dismiss. 13 S in c e Plaintiffs have pled the necessary elements for a Section 1983 claim against each 14 o f the Defendants, their motion to dismiss for failure to state a claim, and lack of supervisory 15 lia b ility, is DENIED. 16 Plaintiff's Fifth Amendment Claims 17 B e c a u s e there are no federal actors in this case, Defendants argue that the Court should 18 d ism is s Plaintiff's Fifth Amendment claim. The Fifth Amendment provides that "[n]o person 19 s h a ll... be deprived of life, liberty, or property, without due process of law..." U.S. Const. 20 a m e n d . V; see also Gerena v. Puerto Rico Legal Services, 697 F. 2d 447, 449 (1 s t Cir. 1983). 21 T h is amendment applies to actions of the federal government, not those of private individuals, 22 o r of state, local or municipal governments. Id. at 449; see also Martínez-Rivera v. Sánchez23 R a m o s , 498 F. 3d 3, 8 (1st Cir. 2007) (affirming dismissal of Plaintiffs' claims under the Fifth 24 A m e n d m e n t because the police officers where state actors and not federal actors). Because 25 P la in tif f 's complaint does not allege that any of the Defendants are federal actors; instead they 26

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a v e r that they are state officials acting under color of state law (see, Docket # 12 ¶15 ), his 3 c la im s pursuant to the Fifth Amendment are hereby DISMISSED with prejudice. 4 Plaintiff's Eighth Amendment Claims 5 T h e United States Supreme Court has stated that this amendment, applicable to the states 6 th ro u g h the Fourteenth Amendment, "prohibits the infliction of cruel and unusual punishments 7 o n those convicted of crimes." Wilson v. Seiter, 501 U.S. 294, 296-97 (1991)(emphasis added); 8 s e e also Martínez-Rivera, 498 F. 3d at 8. That is, the Eight Amendment only comes into play 9 a f te r there has been a formal adjudication of guilt, through a criminal prosecution, in accordance 10 w ith due process of law. Martínez-Rivera, 498 F. 3d at 8 (stating that "because there had been 11 n o formal adjudication of guilt against [Plaintiffs] at the time of the alleged constitutional 12 d e p riv a tio n , the Eighth Amendment is inapplicable and any claim brought on that theory was 13 p ro p e rly dismissed.") The amendment also covers "deprivations that were not specifically part 14 o f the sentence but were suffered during imprisonment." Id. at 297. Furthermore, "only the 15 u n n e c e s s a ry and wanton infliction of pain implicates the Eight Amendment." Id. 16 Plaintiff has not alleged that he was convicted and imprisoned, after a formal process of 17 a d ju d ic a tio n , and subjected to unnecessary and wanton infliction of pain as punishment. On the 18 c o n tra ry, he states that all charges against him were dismissed for lack of evidence. Moreover, 19 a s this Court will discuss shortly, the Supreme Court has held that claims that law enforcement 20 o f f ic e rs have used excessive force in the course of an arrest should be analyzed under the Fourth 21 A m e n d m e n t and its "reasonableness" standard. Graham v. Connor, 490 U.S. 386, 395 (1989); 22 s e e also Tavarez-Guerrero v. Toledo-Davila, 573 F. Supp. 2d 507, 512 (D.P.R. 2008). Thus, the 23 E ig h th Amendment is inapplicable to the instant case. Therefore, Plaintiff's claims under the 24 E ig h t Amendment are hereby DISMISSED with prejudice. 25 26

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3 In the complaint, Plaintiffs contend that Defendants also violated his Ninth Amendment 4 rig h ts . In turn, Defendants argue that the Ninth Amendment does not create a constitutional 5 rig h t or a private cause of action and, as a result, the before mentioned claims should be 6 d ism is s e d . The Ninth Amendment provides "that `the enumeration in the Constitution of certain 7 rig h ts , shall not be construed to deny or disparage others retained by the people.'" U.S. Const. 8 a m e n d . IX. The First Circuit Court has previously stated that the Ninth Amendment "does not 9 c re a te substantive rights beyond those conferred by governing law." Vega-Rodríguez v. Puerto 10 R ic o Tel. Co., 110 F.3d 174, 182 (1st Cir.1997); see also Gibson v. Matthews, 926 F.2d 532, 537 11 (6th Cir.1991). It "refers only to unenumerated rights, while claims under §1983 must be 12 p re m is e d on specific constitutional guarantees." Bussey v. Phillips, 419 F. Supp.2d 569 13 (S .D .N .Y .2 0 0 6 ); see also Khalid v. Reda, 2003 WL 42145, at p.6 (S.D.N.Y. 14 2 0 0 3 )(u n p u b lis h e d ); Gibson, 926 F.2d at 537 (dismissing Plaintiffs' Ninth Amendment claim 15 o n the ground that "the ninth amendment does not confer substantive rights in addition to those 16 c o n f e rre d by other portions of our governing law."); DeLeón v. Little, 981 F. Supp. 728, 734 17 (D . Conn.1997) (holding that "the [Ninth Amendment] does not guarantee any constitutional 18 rig h t sufficient to support a claim under 42 U.S.C. §1983."). Because Plaintiffs' claim arise 19 u n d e r Section 1983, that is, a section that requires a specific constitutional right violation, 20 P la in tif f 's Ninth Amendment claims are DISMISSED with prejudice. 21 Plaintiffs' Fourteenth Amendment Claims 22 D e f e n d a n ts argue that when a constitutional violation is covered by a particular statute, 23 th a t specific provision must be applied, instead of the Fourteenth Amendment. Insofar as 24 P l a i n ti f f 's claims are premised on Section 1983, they aver that Plaintiff cannot establish a 25 s u b s ta n tiv e due process claim. In response, Plaintiff contends that, during his arrest, Defendants 26

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u s e d violence and excessive force, and invaded his privacy, in violation of the Fourth and 3 F o u rte e n th Amendments. 4 U n d e r the Fourteenth Amendment, no State shall "deprive any person of life, liberty, or 5 p ro p e rty, without due process of law." U.S. Const. amend. XIV, §1. In order to establish a 6 p ro c e d u ra l due process claim under Section 1983, a plaintiff must first prove that he has a 7 p ro p e rty interest as defined by state law and, second, that Defendants, acting under color of state 8 la w , deprived him of that property interest without a constitutionally adequate process. Logan 9 v . Zimmerman Brush Co., 455 U.S. 422,428 (1982); PFZ Properties, Inc. v. Rodríguez, 928 10 F .2 d 28, 30 (1st Cir. 1991). As previously stated, that test has been met here by Plaintiff. 11 H o w e v e r, to meet the burden on a substantive due process cause of action, Plaintiff must 12 " p re se n t a well-pleaded claim that a state actor deprived it of a recognized life, liberty, or 13 p ro p e rty interest, and that he did so through conscience-shocking behavior." Estate of Bennett 14 v . Wainwright, 548 F.3d 155, 162 (1st Cir. 2008) (citing Clark, 514 F.3d at 112; see also 15 R a m o s -P in e ro v Puerto Rico, 453 F.3d 48, 53 (1st Cir. 2006) (stating that the "shock the 16 c o n s c ie n c e " standard implicates behavior "so egregious, so outrageous, that it may fairly be said 17 to shock the contemporary conscience") (citing County of Sacramento v. Lewis, 523 U.S. 833, 18 8 4 8 n.8, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998))). Only "[b]ehavior `intended to injure in 19 s o m e way unjustifiable by any government interest' - is the sort of official action most likely 20 to `shock the conscience.'" Ramos-Pinero, 453 F.3d at 53 (citations omitted). Plaintiff argues 21 th a t he has shown that the defendants engaged in conscience-shocking behavior by beating him 22 a n d stealing $3,000 from his safe deposit box, and as such, violated his substantive due process 23 r ig h ts . 24 P la in tif f 's substantive due process claim, premised on the deprivation of his liberty fails 25 in so f a r as his claim is really an excessive force claim that should be, and is, brought under the 26

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F o u rth Amendment. Wainwright, 548 F.3d at 163; see also Graham, 490 U.S. at 395. The 3 S u p re m e Court has held that "all claims that law enforcement officers have used excessive force 4 -- deadly or not -- in the course of ... [the] `seizure' of a free citizen should be analyzed under 5 th e Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due 6 p ro c e ss ' approach." Graham, 490 U.S. at 395; see also Wainwright, 548 F.3d at 163. A 7 " s e iz u re " which entitles Plaintiff to "the Fourth Amendment's protections occurs only when 8 g o v e rn m e n t actors have, `by means of physical force or show of authority, . . . in some way 9 re stra in e d the liberty of a citizen...'" Graham, 490 U.S. at 395, n. 10 (citing Terry v. Ohio, 392 10 U .S . 1, 19, n. 16 (1968)). The Court further stated that "[b]ecause the Fourth Amendment 11 p ro v id e s an explicit textual source of constitutional protection against this sort of physically 12 in tru s iv e governmental conduct, that Amendment, not the more generalized notion of 13 `su b sta n tiv e due process,' must be the guide for analyzing these claims." Id.; see also Albright 14 v . Oliver, 510 U.S. 266, 273 (1994). Since an alternative constitutional claim is available in this 15 c a s e , Plaintiff's substantive due process claims on this front cannot prevail. See Wainwright, 16 5 4 8 F.3d at 163. 17 However, Plaintiff also alleges that the arresting police officers entered his home, 18 w ith o u t a search warrant, and took an estimated $3,000 from his safe deposit box. Docket # 14 19 a t ¶ 19. The Supreme Court has held that "the due process guarantee does not entail a body of 20 c o n s titu tio n a l law imposing liability whenever someone cloaked with state authority causes 21 h a rm ." County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). As such, the Court has 22 re je c te d imposing tort liability under the Fourteenth Amendment, and has held "that the 23 C o n s titu tio n does not guarantee due care on the part of state officials." Id. According to the 24 C o u rt, "conduct intended to injure in some way unjustifiable by any government interest is the 25 s o rt of official action most likely to rise to the conscience-shocking level." Id. at 849. Although 26

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d e lib e ra te indifference may also be sufficient to satisfy a due process claim, it must be equally 3 s h o c k in g to conscience. Insofar as conduct "that shocks in one environment may not be so 4 p a te n tly egregious in another, (the need to preserve) the constitutional proportions of substantive 5 d u e process demands an exact analysis of circumstances before any abuse of power is 6 c o n d e m n e d as conscience-shocking." Id. at 850. 7 In the instant case, to equate the taking of $3,000 from Plaintiff's safe to such brutal 8 c o n d u c t as a rape, a nearly two-month unlawful imprisonment, a shooting, a student blinded in 9 o n e eye when a coach intentionally struck him in the head with a metal weight, a teacher's 10 f a b ric a tio n of sexual abuse charges against a father, resulting in loss of contact with his child 11 f o r three years, a 57-day unlawful detention in the face of repeated requests for release, and 12 p o lic e officers aiding a third-party in shooting the plaintiff, would be to lower the very high 13 th re s h o ld for constitutional wrongdoing. See Cummings v. McIntire, 271 F.3d 341, 346 (1 st Cir. 14 2 0 0 1 ) (citations omitted). More so, when Plaintiff's claim of an unlawful search may be duly 15 a d d re ss e d under the Fourth Amendment. As such, Plaintiff's claims under the Fourteenth 16 A m e n d m e n t claims are DISMISSED with prejudice.ss 17 P la in tiff's Fourth Amendment Claims 18 In requesting the dismissal of Plaintiff's Fourth Amendment claims, Defendants aver that 19 P la in tif f failed to establish a case of malicious prosecution, false arrest, and illegal seizure under 20 th e Fourth Amendment.3 However, as previously stated, Plaintiff's claims stem from the 21 22 23 24 25 26
Defendants also correctly assert that there is no "substantive due process right under the Fourteenth Amendment to be free of malicious prosecution." Cruz-Erazo v. Rivera-Montañez, 212 F.3d 617, 621 (1st Cir. 2000). Furthermore, they argue that a claim for malicious prosecution is properly addressed under state law. Notwithstanding, this Court notes that in order to establish a claim "for malicious prosecution, a plaintiff must show that `criminal proceedings were initiated against him without probable cause and for an improper purpose and were terminated in his favor.'" Meehan v. Town of Plymouth, 167 F.3d 85, 88-89 (1st Cir. 1999) (citing Landrigan v. City of Warwick, 628 F.2d 736, 745 n.6 (1st Cir. 1980). Under Section 1983, a claim for malicious prosecution action, based upon a deprivation of Fourth Amendment rights, requires a showing of the absence
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a lle g e d beating undertaken by the arresting police officers, and the alleged taking of his monies 3 f ro m the safe deposit box, both of which are appropriately addressed under the Fourth 4 A m e n d m e n t. 5 The Fourth Amendment provides that citizens have a right "to be secure in their persons, 6 h o u s e s , papers, and effects, against unreasonable searches and seizures, shall not be violated, 7 a n d no warrants shall issue, but upon probable cause, supported by oath or affirmation, and 8 p a rtic u la rly describing the place to be searched, and the persons or things to be seized." U.S. 9 C o n s t. amend. IV. To establish a Fourth Amendment violation based on excessive force, a 10 p la in tif f must show that the defendant officer employed force that was unreasonable under the 11 c irc u m s ta n c e s . Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2008); see Graham, 490 U.S. at 397. 12 W h e t h e r the force used is reasonable "must be judged from the perspective of a reasonable 13 o f f ic e r on the scene." Graham, 490 U.S. at 396; see also Tavarez-Guerrero, 573 F. Supp.2d at 14 5 1 4 . The reasonableness inquiry is objective, to be determined "in light of the facts and 15 c irc u m s ta n c e s confronting [the officer], without regard to their underlying intent or motivation." 16 G r a h a m , 490 U.S. at 397. Moreover, "the facts and circumstances of each particular case, 17 in c lu d in g the severity of the crime at issue, whether the suspect poses an immediate threat to 18 th e safety of the officers or others, and whether he is actively resisting arrest or attempting to 19 e v a d e arrest by flight," are of specific relevance. Id. at 396. This district has held that "[t]he use 20 o f excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and 21 u n n e c e s s a ry period of time are certainly unreasonable actions." Tavarez-Guerrero, 573 F. 22 S u p p .2 d at 514. 23 24 25 26
of probable cause to initiate the proceedings. Id. However, Plaintiff does not allege that he was arrested without probable case. As such, a claim for malicious prosecution lacks merit.

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In the complaint, Plaintiff specifies how the arrest, beating, and seizure were made. He 3 d o e s n 't deny there was a valid warrant for his arrest. However, Plaintiff alleges that the 4 a rre s tin g police officers used violence and excessive force, despite the fact that he did not resist 5 a rre s t, and that they took his money without a valid search warrant. Taking Plaintiffs' 6 a lle g a tio n s as true, this Court concludes that he has pled a plausible entitlement to relief under 7 th e Fourth Amendment against Defendants. As such, Defendants' motion to dismiss the Fourth 8 A m e n d m e n t claim is hereby DENIED. 9 Eleventh Amendment Immunity 10 D e f e n d a n ts posit that the claims against them in their official capacities should be 11 d ism is s e d because the Police Department, as a Commonwealth agency, is entitled to Eleventh 12 A m e n d m e n t immunity. The Eleventh Amendment to the United States Constitution provides: 13 14 15 16 17 18 19 20 21 22 23 24 25 26
The Supreme Court has established that the Eleventh Amendment protection primarily furthers two goals: the protection of a state's treasury and the protection of its dignitary interest of not being haled into federal court. Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir. 2003) (citing Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002)).
4

[ t]h e Judicial power of the United States shall not be construed to extend to any s u it in law or equity, commenced or prosecuted against one of the United States b y Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. C o n s t. Am. XI.4 A lth o u g h the Eleventh Amendment literally seems to apply only to suits against a State by c itiz e n s of another State, the Supreme Court has consistently extended the scope of this A m e n d m e n t to suits by citizens against their own State. See Board of Trustees of the Univ. of A la . v. Garrett, 531 U.S. 356, 362 (2001); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 7 2 -7 3 (2000); Hans v. Louisiana, 134 U.S. 1, 15 (1890). Although the Commonwealth of P u e r t o Rico is not a state, it enjoys the protection of the Eleventh Amendment. See JusinoM e rc a d o v. Commonwealth of Puerto Rico, 214 F.3d 34, 37 (1 st Cir. 2000); Ortiz Feliciano v.

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T o le d o Dávila, 175 F.3d 37, 39 (1st Cir. 1999); Futura Development v. Estado Libre Asociado. 3 1 4 4 F.3d 7,12-13 (1st Cir. 1998); Culebras Enters. Corp. v. Rivera Ríos. 838 F.2d 506, 516 (1 st 4 C ir. 1987); Ramírez v. Puerto Rico Fire Servs., 715 F.2d 694, 697 (1 st Cir. 1984). 5 H o w e v e r, the Eleventh Amendment immunity is not absolute and may be waived by the 6 s ta te or "stripped away" by Congress. Metcalf & Eddy v. P.R.A.S.A., 991 F.2d 935, 938 (1 st Cir. 7 1 9 9 3 ). There are four (4) circumstances in which the Eleventh Amendment protection unravels: 8 ( 1 ) when a state consents to be sued in a federal forum; (2) when a state waives its own 9 i m m u n i t y by statute or the like; (3) when Congress abrogates state immunity ("so long as it 10 s p e a k s clearly and acts in furtherance of particular powers"); and (4) when, provided that 11 c irc u m s ta n c e s allow, other constitutional imperatives take precedence over the Eleventh 12 A m e n d m e n t's protection. Id. at 938 (citations omitted). Despite number two above, the First 13 C irc u it has held that the fact that a state has waived its immunity to be sued does not 14 a u t o m a tic a lly means that it waived its immunity in federal court. See Díaz-Fonseca v. 15 C o m m o n w e a lth of Puerto Rico, 451 F. 3d 13, 33 (1st Cir. 2006)(holding that although the 16 C o m m o n w e a lth waived its immunity to be sued in certain circumstances in its own courts, it did 17 n o t waive its immunity to be sued in federal court). 18 T h e Eleventh Amendment bar extends to governmental instrumentalities which are an 19 a rm or "alter ego" of the State. See Ainsworth Aristocrat Int'l Pty. Ltd. v. Tourism Co. of P.R., 20 8 1 8 F.2d. 1034, 1036 (1st Cir. 1987); Ochoa Realty Corp. v. Faría, 618 F. Supp. 434, 435 21 (D .P .R . 1985); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Mt. Healthy 22 C ity Sch. Dist. v. Doyle, 429 U.S. 274, 280-281 (1977); Ursulich v. P.R. Nat'l Guard, 384 F. 23 S u p p . 736, 737-38 (D.P.R. 1974). It also protects state officials in their official capacity. The 24 r a t io n a l e behind this extension of the Eleventh Amendment protection is that a claim against 25 a state official in his or her official capacity for monetary relief is an action for the recovery of 26

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m o n e y from the State. Ford Motor v. Dept. of Treasury, 323 U.S. 459 (1945); Will v. Michigan 3 D e p t. of State Police, 491 U.S. 58, 71 (1989). Hence, a claim against a state official in her 4 o f f ic ia l capacity for monetary relief is, in essence, a claim against the State. 5 T h a t the Puerto Rico Police Department is an arm or alter ego of Puerto Rico has been 6 e s ta b lis h e d by this district on numerous occasions.5 See Nieves-Cruz v. Comm. of P.R., 425 F. 7 S u p p . 2d 188, 192 (D. P. R. 2006); López-Rosario v. Police Dept., 126 F. Supp. 2d 167, 1708 1 7 1 (D. P.R. 2000); Aguilar v. Comm. of P.R., 2006 WL 3000765 at *1; Suárez-Cestero v. 9 P a g á n -R o s a , 996 F. Supp. 133, 142-43 (D.P. R. 1998). As such, this Court need not dwell on 10 th is point. 11 N o tw ith s ta n d in g the above, herein Defendants were sued in their personal and individual 12 c a p a c itie s as well, and not just in their official capacities. As such, Defendants' request for 13 d ism is s a l on this ground is DENIED. 14 Q u a lifie d Immunity 15 D e f e n d a n ts aver that under the doctrine of qualified immunity, they are immune from suit 16 f o r money damages in their personal capacity. Specifically, Toledo argues that he did not violate 17 P la in tif f 's rights. He further contends that there are no specific factual allegations against him 18 a n d , as such, this Court should dismiss the claims against him in his personal capacity. 19 Qualified immunity is an affirmative defense against personal liability which may be 20 ra is e d by state officials. Whitfield v. Meléndez-Rivera, 431 F. 3d 1, 6 (1 st Cir. 2005). It 21 " p ro v id e s a safe harbor for public officials acting under the color of state law who would 22 23 24 25 26
The Supreme Court requires a two-step analysis in order to determine whether a government institution is an arm or alter ego of the state and thus entitled to immunity under the Eleventh Amendment. Fresenius Med. Care, 322 F.3d at 65 (citing and discussing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994)). First, the court must analyze how the state has structured the government institution and, second, if the "structural indicators point in different directions," the risk of the damages being paid from the public treasury should be assessed. Id. at 65-69.
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o th e rw is e be liable under 42 U.S.C. §1983 for infringing the constitutional rights of private 3 p a rtie s ." Id.; see also Anderson v. Creighton, 483 U.S. 635, 638 (1987). In determining whether 4 a defendant is entitled to qualified immunity, courts shall apply a three-part test: (1) whether the 5 p la in tif f has alleged a constitutional violation; (2) whether the law was clearly established that 6 d e f e n d a n ts ' action violated a constitutional right of the plaintiff; and (3) whether a reasonable 7 o f f ic ia l would have understood that his actions violated a constitutional right." Rivera-Jiménez 8 v . Pierluisi, 362 F. 3d 87, 93 (1st Cir. 2004); Jennings, 499 F.3d at 11. 9 A t this stage, this Court has concluded that Plaintiff has pled a viable Section 1983 cause 10 o f action against Defendants. Therefore, this Court cannot conclude that Plaintiff has failed to 11 a lle g e that Defendants violated his constitutional rights. Moreover, according to the facts of the 12 c o m p la in t, Toledo should have understood that his actions or omissions constituted a violation 13 o f Plaintiff's constitutional rights. This Court finds that a reasonable official would not have 14 b e lie v e d that the acts committed by the arresting police officers were lawful in light of clearly 15 e s ta b lis h e d law. Moreover, any reasonable police officer is aware that it is unlawful to use 16 v io le n c e and excessive force when arresting an individual, especially when the Plaintiff did not 17 re sis t arrest. At this point, this Court cannot conclude, without making factual determinations, 18 th a t Toledo acted reasonably under the circumstances and is entitled to qualified immunity. It 19 re m a in s to be seen whether his acts or omissions violated Plaintiff's constitutional rights. 20 T h e re f o re , at this stage, this Court is unable to conclude that Toledo is entitled to qualified 21 im m u n ity, and his motion to dismiss on this ground is DENIED. 22 S u p p le m e n ta l Law Claims 23 F in a lly, Defendants request that this Court dismiss the claims brought pursuant to it 24 s u p p le m e n ta l jurisdiction because dismissal of said claims is proper once all federal claims have 25 26

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b e e n disposed of. However, since Plaintiff's federal claims have not been dismissed, their 3 re q u e st is DENIED. 4 T h is Court reminds the parties that all representations to the court, submitted to the court 5 th ro u g h pleadings, motions, and any other document, are bound by FED. R. CIV. P. 11(b)'s 6 m a n d a t e . Therefore, all claims, defenses, and other legal arguments that are unwarranted by 7 e x is tin g law, are, in fact, frivolous, and can be sanctioned by the courts. In the instant case, both 8 P la in tif f s and Defendants have set forth unwarranted legal arguments, insofar as the current case 9 la w is extremely clear as to the applicable statutes in cases such as this one. The methodic 10 in c lu s io n of numerous allegations and defenses is unjustified, and unnecessarily onerous for the 11 c o u rts . Therefore, the parties shall take the foregoing into consideration when appearing before 12 th is Court, or face the imposition of sanctions. 13 Conclusion 14 B a s e d on the foregoing, Defendants' motion to dismiss is GRANTED in part and 15 D E N I E D in part, and Plaintiff's Fifth, Eighth, Ninth and Fourteenth Amendment claims are 16 DISMISSED with prejudice. 17 IT IS SO ORDERED. 18 S a n Juan, Puerto Rico, this 23rd day of March, 2009. 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