Ramirez-Lluveras v. Pagan-Cruz

Filing 332

OPINION AND ORDER re 113 Motion to Dismiss Amended Complaint. Defendants' motion to dismiss and for judgment on the pleadings is GRANTED IN PART AND DENIED IN PART. Signed by Judge Francisco A. Besosa on 10/03/2011. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EVELYN RAMIREZ-LLUVERAS, et al.,
Plaintiff,
v.

CIVIL NO. 08-1486 (FAB)

JAVIER PAGAN-CRUZ, et al.,
Defendants.

OPINION AND ORDER
BESOSA, District Judge.
This is a civil-rights action brought under 42 U.S.C. § 1983
(“section 1983”) arising from the highly publicized death of
Miguel A. Caceres-Cruz (“Caceres”). Caceres’ wife, Evelyn RamirezLluveras, and their three children, Jenitza Caceres, MC and MAC
(collectively, “plaintiffs”), commenced this action on behalf of
themselves and Caceres against several field officers in the Puerto
Rico Police
Carlos

Department

(“PRPD”),

Sustache-Sustache

(collectively

the

“Field

Javier

(“Sustache”),
Officers”),

Pagan-Cruz
Zulma

and

(“Pagan”),

Diaz

several

(“Diaz”)

supervisory

officers in the PRPD, Juan Colon-Baez (“Colon”), Rafael FigueroaSolis (“Figueroa”), Victor Cruz-Sanchez (“Cruz”), Edwin RiveraMerced (“Rivera”) and Pedro Toledo-Davila (“Toledo”) (collectively,
the “Supervisory Defendants”). (Docket No. 64.) Plaintiffs allege

Civil No. 08-1486 (FAB)

2

that their rights under the Fourth, Fifth, Eighth, and Fourteenth
Amendments of the Constitution of the United States were violated
when Caceres was forced to the ground by the Field Officers and was
eventually shot and killed by Pagan in Humacao, Puerto Rico.

They

also claim damages pursuant to article 1802 of the Civil Code.
Currently before the Court is the Supervisory Defendants’
motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6)
(Rule 12(b)(6)) and for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(c) (Rule 12(c)).

(Docket No. 113.)

For the

reasons set forth below, the Court GRANTS in part and DENIES in
part the motion to dismiss and the motion for judgment on the
pleadings.
FACTS
The facts taken from the complaint, which are assumed to be
true, are as follows:
On August 11, 2007, Caceres was on a street in Humacao, Puerto
Rico.

(Docket No. 64 at ¶ 4.1.)

The Field Officers, without

justification, forced Caceres to the ground and threatened to
arrest him.

Id.

With Sustache and Diaz’s encouragement and

instigation, Pagan shot at Caceres.

Id. at ¶ 4.2.

After shooting

Caceres several times, Pagan delivered the fatal blow and shot
Caceres in the head.

Id. at ¶ 4.2-4.3.

After the shooting, the

Civil No. 08-1486 (FAB)

3

Field Officers abandoned the scene without aiding Caceres.
at ¶ 4.5.

Id.

Although Diaz reported the incident through the police

communication system, she omitted that Pagan shot and killed
Caceres.

Id. at 4.6.

As of the date of the shooting, the Supervisory Defendants
held high-ranking positions within the PRPD: Colon was the highest
level supervisor in the Humacao Area Tactical Operations Division
(the “TOD”), Figueroa was the interim director of the TOD, Cruz was
the Commander of the Humacao District of the PRPD, Rivera was the
Humacao Area Commander, and Toledo was the PRPD Superintendent.
Id.

at

3.9-3.13.

Defendants

proximately

deliberately
supervise,

Plaintiffs
caused

indifferent
evaluate,

to

assign

contend

that

Caceres’

death

plaintiffs’
and

monitor

the

Supervisory

when

rights,
the

they
failed

Field

were
to

Officers

adequately, and fostered an environment within the PRPD such that
the Field Officers felt that they could act illegally with impunity
and without consequence.

Id. at 3.13.

Specifically, plaintiffs plead that a year prior to the
shooting, Pagan was facing expulsion from the PRPD because of his
“proven misconduct and violence towards citizens.”

Id. at ¶ 4.19.

Nevertheless,

to

suspension.

Toledo
Id.

reduced

Pagan’s

penalty

a

60-day

Subsequently, Rivera placed Pagan in an “impact

Civil No. 08-1486 (FAB)
unit”

despite

Pagan’s

4
suspension

aggression and insubordination.

and

several

complaints

Id. at ¶ 4.20-4.31.

of

Cruz and

Figueroa made pro forma high evaluations of Pagan and Sustache
despite their known danger.

Id. at ¶ 4.9.

In fact, in January

2007, Cruz gave Pagan a glowing evaluation despite the fact that
Pagan was disciplined and had other complaints pending against him.
Id. at ¶ 4.13.
PROCEDURAL BACKGROUND
On April 20, 2010, the Supervisory Defendants moved to dismiss
the amended complaint pursuant to Rule 12(b)(6) and for judgment on
the pleadings under Rule 12(c).

(Docket No. 113.)

submitted an opposition on December 20, 2010.

Plaintiffs

(Docket No. 232.)

The Supervisory Defendants replied on February 15, 2011.
No. 246.)

On September 23, 2011, plaintiffs filed an informative

motion regarding new case law on section 1983 liability.
No. 324.)

(Docket

(Docket

In compliance with an order issued by the Court (Docket

No. 325.), defendants submitted a motion to present their analysis
of the new case law.

(Docket No. 325.)

The Supervisory Defendants contend that plaintiffs’ amended
complaint must be dismissed because:
standing

to

bring

a

section

1983

(1) plaintiffs do not have
action;

(2)

plaintiffs

insufficiently plead a cause of action under the Fourth, Fifth,

Civil No. 08-1486 (FAB)
Eighth

and

Fourteenth

5
Amendments;

and

(3)

the

Supervisory

Defendants are shielded from liability under the doctrine of
qualified immunity. (Docket No. 113 at 14-45.) Each argument will
be discussed in turn.
DISCUSSION
I.

Standard Under Rule 12(b)(6) and Rule 12(c)
A defendant may move to dismiss an action for failure to state

a cause of action pursuant to Rule 12(b)(6) and for judgment on the
pleadings pursuant to Rule 12(c).

A motion for judgment on the

pleadings is governed by the same standards as a motion to dismiss.
Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2009)
(citing Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir. 2007)).
When analyzing a motion to dismiss, the facts contained in the
pleadings are viewed in the light most favorable to the non-moving
party and all reasonable inferences are drawn from those facts.
R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir.
2006), Yet, “[A] plaintiff is not entitled to ‘proceed perforce’ by
virtue of allegations that merely parrot the elements of the cause
of action.”

Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12

(1st Cir. 2011).

Accordingly, the Court proceeds in two steps.

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544(2007); Ashcroft v.
Iqbal, 129 S.Ct. 1937 (2009).

First, the Court separates legal

Civil No. 08-1486 (FAB)

6

conclusions “couched as fact” and “threadbare recitals of the
elements

of

allegations.

a

cause

of

action”

from

non-conclusory

Ashcroft, 129 S.Ct. at 1949-50.

factual

The latter are

treated as true, whereas the former are disregarded.

Id.; Ocasio-

Hernandez, 640 F.3d at 11-13. Second, the Court determines whether
the non-conclusory factual allegations are “plausible” rather than
merely “conceivable.”
II.

Id.

Standing
Standing concerns the threshold issue of whether the plaintiff

is the appropriate person to bring the matter to the court.
Benjamin v. Aroostook Med. Ctr., 57 F.3d 101, 104 (1st Cir. 1995)
(quoting Erwin Chemerinsky, Federal Jurisdiction § 2.3, at 48
(1989)). To have standing, plaintiffs have the burden to plead the
plausibility that (1) plaintiffs suffered or will imminently suffer
an injury (2) that is traceable to the Supervisory Defendants’
conduct, such that (3) a favorable decision is likely to redress
the injury.

Nat’l. Org. for Marriage v. McKee, Nos. 10-2000, 10-

2049l, 2011 WL 3505544, at *6 (1st Cir. Aug. 11, 2011) (internal
citations omitted); Vargas v. Carrion, No. 10-1153, 2011 WL 92030,
at *1 (D.P.R. Jan. 3, 2011).

Plaintiffs allege that they have

standing to bring both a claim on their own behalf and a survival
claim on Caceres’ behalf.

(Docket No. 232 at 13.)

Civil No. 08-1486 (FAB)
A.

7

Plaintiffs’ Claim as Caceres’ Representative
As a general rule, a plaintiff does not have standing to

assert claims for parties who are not before the court.

Allen v.

Wright, 468 U.S. 737, 751 (1984) (“Article III of the United States
Constitution limits standing in federal court to persons who have
themselves been injured.”).

As an exception to the general rule,

an heir has standing to bring a section 1983 action on behalf of a
deceased person if the law of the state embracing the federal
district court where the action is commenced permits recovery.
Robertson v. Wegmann, 426 584, 98 (1978); Gonzalez Rodriguez v.
Alvarado, 134 F.Supp.2d 451, 452-54 (D.P.R. 2011).
Under Puerto Rico law, a decedent’s heirs may recover for
the decedent’s

pain

and

suffering

prior

to

death.

Gonzalez

Rodriguez, 134 F.Supp.2d at 454 (citing Vda. de Delgado v. Boston
Insurance, 101 P.R. Dec. 598 (1973)).

Thus, “Puerto Rican law

permits an heir to bring a § 1983 action in his representative
capacity only when there is a showing that the deceased has
suffered prior to his death.”

Id.; Lopez-Jimenez v. Pereira,

No. 09-1156, 2010 WL 500407, at *2 (D.P.R. Feb. 3, 2010).
The amended complaint states that the Field Officers
forced Caceres to the ground and threatened to arrest him. (Docket
No. 64 at ¶ 4.1.)

Pagan shot Caceres several times and eventually

Civil No. 08-1486 (FAB)

8

delivered the fatal blow by shooting Caceres in the head.
¶ 4.3.

The Field Officers did not aid Pagan.

shooting

caused

Caceres

to

suffer

Id. at

Id. at ¶ 4.5.

“excruciating

pain,

The

fear,

desperation and other emotion [sic] and physical suffering, and
survived in that condition for a period of time . . .”
¶ 4.39.

Id. at

Accordingly, plaintiffs have standing to assert a section

1983 claim on Caceres’ behalf. Lopez-Jimenez, 2010 WL 500407 at *2
(finding standing to bring a section 1983 claim in a representative
capacity where the complaint alleged that the decedent “suffered
extreme physical and mental pain while he was suffering a health
condition that required emergency medical care.”).
B.

Plaintiffs’ Individual Claims
“First Circuit case law holds that surviving family

members cannot recover in an action brought under section 1983 for
deprivation of rights secured by the federal constitution for their
own damages from the victim’s death unless the unconstitutional
conduct was aimed at the familial relationship.” Robles-Vazquez v.
Garcia, 110 F.3d 204, 206 n. 4 (1st Cir. 1997); Vargas, 2011 WL
92030,

at

decisions,

*2.

Government

such

as

interference

procreation,

or

in

with

certain
the

private

parent-child

relationship, are aimed at the family relationship for section 1983
purposes.

Reyes Vargas v. Rosello Gonzalez, 135 F.Supp.2d 305,

Civil No. 08-1486 (FAB)

9

308-09 (D.P.R. 2001) (citing Pittsley v. Warish, 927 F.2d 3, 8 (1st
Cir. 1991)).
Plaintiffs argue that they have standing because the
Supervisory Defendants allegedly impeded their constitutional right
to the enjoyment of their father’s and husband’s company.

(Docket

No. 64 at ¶ 4.37.) (“[t]he actions of defendant . . . had the
effect

of

depriving

the

plaintiffs

herein

of

the

company,

affection, and companionship of their father and husband . . .”).
“There is no absolute right to enjoy the companionship of one’s
family members free from all encroachments by the state.”
Flores, 103 F.3d 1056, 1062 (1st Cir. 1997).

Soto v.

Thus, the loss of

companionship, without more, is insufficient to show governmental
interference aimed at the family relationship.

Id.; Reyes Vargas,

135 F.Supp.2d at 305-09 (“State action that affects the parental
relationship only incidentally, even though the deprivation may be
permanent as in the case of an unlawful death, is not sufficient to
establish

a

violation

of

an

identified

liberty

interest.”);

Gonzalez Rodriguez v. Alvarado, 134 F.Supp.2d 451, 452-53 (D.P.R.
2011).
Plaintiffs’ contention that they have standing because
the

Supervisory

Defendants’

conduct

was

“shocking

to

the

conscience” and taken with “intent to do harm” is inapposite.

Civil No. 08-1486 (FAB)

10

(Docket No. 232 at 37-41.)

Although the Supreme Court recognizes

a person’s substantive due process rights upon a showing of conduct
“shocking to the conscience” or carried out “with intent to do
harm,” the defendant’s conduct must still be aimed at the family
relationship.

Reyes

Vargas,

135

F.Supp.2d at

08-09.

Thus,

plaintiffs reliance on Porter v. Osborne, 546 F.3d 1131 (9th Cir.
2008) is misplaced.
decedent’s

parents

In Porter, the court recognized that the
may

assert

their

own

cause

of

action

for

violating their Fourteenth Amendment right to the companionship and
society of

their

children if

the

district

court,

on

remand,

determines the defendant acted with a “purpose to harm.”

The

court, however, still required the unconstitutional behavior to be
aimed at the family relationship.

Id. at 1136.

The Ninth Circuit

Court of Appeals, unlike the First Circuit Court of Appeals,
affords a parent a Fourteenth Amendment right to the companionship
and society of their children.

Id.

The Court declines, as it

must, to follow Ninth Circuit precedent when the First Circuit
Court of Appeals has spoken otherwise.
Therefore, plaintiffs’ section 1983 action against the
Supervisory Defendants in their personal capacity is DISMISSED WITH
PREJUDICE,

but

plaintiffs

section

representative capacity, survives.

1983

action,

in

their

Civil No. 08-1486 (FAB)

11

III. Supervisory Liability Under Section 1983
Section 1983 is a vehicle for asserting rights conferred by
the United States Constitution against state officers.
Connor, 490 U.S. 386, 393-94 (1989).
section

1983,

plaintiffs

must

Graham v.

To state a claim pursuant to

plausibly

plead

that

(1)

the

Supervisory Defendants’ conduct denied Caceres’ Constitutional
rights while (2) acting “under color of state law.” Soto, 103 F.3d
at 1056; Moreno-Perez v. Toledo-Davila, 764 F.Supp 2d. 351, 359
(D.P.R. 2011).

The Supervisory Defendants do not dispute the

second element:

that they were acting under the color of state

law.

Therefore, the issue in dispute is the first element:

whether plaintiffs have sufficiently pled that the Supervisory
Defendants’

conduct

denied

Caceres’

constitutional

rights

guaranteed by the Fourth, Fifth, Eighth, and Fourteenth Amendments
to the Constitution.
A

court

will

find

supervisory

liability

where

(a)

the

supervisor’s subordinates violated the constitution and (b) the
supervisor’s acts or omissions were “affirmatively linked” to the
behavior

so

that

“it

could

be

characterized

as

supervisory

encouragement, condonation or acquiescence or gross negligence
amounting to deliberate indifference.”

Pineda v. Toomey, 533 F.3d

50, 54 (1st Cir. 2008) (quoting Lipsett v. University of Puerto

Civil No. 08-1486 (FAB)

12

Rico, 864 F.2d 881, 902 (1st Cir. 1998)).

Thus, a supervisor may

not be held liable for a subordinate’s violation of Constitutional
rights under a theory of respondeat superior.

Iqbal, 129 S.Ct.

at 1952 (“Absent vicarious liability, each government official, his
or

her

title

notwithstanding,

is

liable

for

his

or

her

own

misconduct.”). Rather, supervisory liability must be predicated on
a supervisor’s own acts or omissions.

Colon-Andino v. Toledo-

Davila, 634 F.Supp.2d 231, 232 (2009) (citing Camilio-Robles v.
Zapata, 175 F.3d 41, 44 (1st Cir. 1999) (“Supervisory liability may
be found either where the supervisor directly participated in the
unconstitutional conduct or where his or her conduct amounts to

Civil No. 08-1486 (FAB)

13

tacit authorization.”); Aponte-Matos v. Toledo-Davila, 135 F.3d
182, 192 (1st Cir. 1998) (internal citations omitted).1
“Supervisory

liability

under

a

theory

of

deliberate

indifference ‘will be found only if it would be manifest to any
reasonable official that his conduct was very likely to violate an

1

The Supervisory Defendants argue that the Supreme Court’s opinion
in Iqbal, 129 S.Ct. 1937, changed the substantive law governing the
imposition of supervisory liability under section 1983. Although
in Maldonado, the First Circuit Court of Appeals stated that
“[S]ome recent language from the Supreme Court may call into
question our prior circuit law on the standard for holding a public
official liable for damages under § 1983”, the court nevertheless
applied its pre-Iqbal jurisprudence. Maldonado, 568 F.3d at 275
(holding that “the Mayor’s promulgation of a pet policy that was
silent as to the manner in which the pets were to be collected and
disposed of, coupled with his mere presence at one of the raids, is
insufficient to create the affirmative link necessary for a finding
of supervisory liability, even under a theory of deliberate
indifference.”); Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756
(2010) (“Officers may be held liable ‘if the plaintiff can
establish that her constitutional injury resulted from the direct
acts or omissions of the official, or from indirect conduct that
amounts to condonation or tacit authorization.’”) (internal
citations omitted). Indeed, district courts embracing the First
Circuit and at least one leading treatise have affirmed the
viability of the First Circuit’s pre-Iqbal formulation of
Supervisory Liability. See, e.g., Oquendo-Rivera v. Toledo, 736
F.Supp.2d 434 (D.P.R. 2010); Valle Colon v. Municipality of
Maricao, No. 09-2217, 2011 WL 1238437 (D.P.R. Mar. 23, 2011)
(quoting Martin A. Schwartz, Section 1983 Litigation: Claims and
Defenses, § 7.19[D] (4th Ed. 2010)); Casanova v. Hillsborough Cnty.
Dep’t. of Corr., No. 10-485, 2011 WL 3568347, at *8 (D.N.H.
Jul. 25, 2011); Hofland v. LaHaye, No. 09-172, 2011 WL 2490959, at
*8 (D. Me. Jun. 21, 2011); How v. Town of N. Andover, No. 10-10116,
2011 WL 1103181, at *4 (D. Mass. Mar. 12, 2011). Therefore, unless
and until the First Circuit Court of Appeals definitively extols on
the issue, the Court will proceed under the pre-Iqbal formulation
of supervisory liability.

Civil No. 08-1486 (FAB)

14

individual’s constitutional rights.’”

Maldonado v. Fontanes, 568

F.3d 263, 275 (2009) (internal citations omitted).

Liability will

be found even if the supervisor does not have actual knowledge of
the unconstitutional behavior.

See, Colon-Andino, 634 F.Supp.2d

at 232 (citing Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
582 (1st Cir. 1994)).

Accordingly, “liability attaches if a

responsible official supervises, trains, or hires a subordinate
with deliberate indifference toward the possibility that deficient
performance of the task eventually may contribute to a civil rights
deprivation.”
omitted).

Camilo-Robles, 175 F.3d at 44 (internal citations

“Under such a theory, a supervisor may be brought to

book even though his actions have not directly abridged someone’s
rights; it is enough that he has created or overlooked a clear risk
of future unlawful action by a lower-echelon actor over whom he had
some degree of control.”

Id. at 44.

Plaintiffs have adequately pled that each of the Supervisory
Defendants’ conduct was linked to each of the Field Officers’
alleged unconstitutional conduct under a theory of deliberate

Civil No. 08-1486 (FAB)

15

indifference.2 See Maldonado, 568 F.3d 263; Torres Calderon v.
Puerto Rico Police Dep’t., No. 05-1722, 2007 WL 2428675, at *1
(D.P.R. Aug. 22, 2007).
The

thrust

Supervisory
monitored

of

plaintiffs’

Defendants

and

complaint

(1)

improperly

the

Field

assigned

is

twofold:

supervised,

Officers,

which

the

evaluated,
ultimately

resulted in them being placed in an “impact unit”, and (2) fostered
an environment within the PRPD such that the Field Officers felt
that they could act illegally with impunity.
at

4.13,

4.31-34.)

Specifically,

Colon,

(Docket No. 64 ¶

Figueroa

and

Cruz,

directly supervised, assigned and monitored Pagan and Sustache.
Cruz also supervised and monitored Diaz. Cruz and Figueroa made
high pro forma evaluations on the Field Officers despite their
known danger to citizens.

Id. at ¶ 4.9.

In fact, in January 2007,

seven months before Pagan shot Caceres, Cruz gave Pagan a glowing
evaluation

of

his

work

despite

Pagan

disciplinary violations during that period.

2

being

suspended

Id. at ¶ 4.13.

for
With

In plaintiffs’ informative motion regarding new case law on Iqbal
and section 1983 liability (Docket No. 324), plaintiffs urged the
Court to consider, in its analysis, the recent First Circuit Court
of Appeals case, Haley v. City of Boston, No. 10-2064, 2011 WL
4347027 (1st Cir. Sept. 19, 2011). The Court need not consider
Haley, which concerns municipal rather than supervisory liability,
because the Court finds that plaintiffs have plausibly pled
supervisory liability under a theory of deliberate indifference.

Civil No. 08-1486 (FAB)

16

Rivera’s approval, Colon and Cruz placed Pagan, Sustache and Diaz
in the “impact unit” on August 11, 2007.
Moreover,

Toledo,

the

PRPD

Id. at ¶ 4.16, 4.20.

Superintendent,

implemented

policies that discouraged citizens from bringing complaints of
police misconduct by requiring complaints to “pass through several
levels of analysis before a conclusion was reached,” and frequently
resolved complaints in the officers’ favor merely because the
complainant failed to show further interest.

Further, Toledo did

not levy serious punishment when allegations of police misconduct
were sustained. Id. at ¶ 4.25-4.28.

One year before the shooting,

Pagan was facing expulsion because of his “proven misconduct and
violence towards citizens.”

Id. at ¶ 4.19.

penalty to a mere 60-day suspension.

Toledo reduced the

Id.

In Torres Calderon v. Puerto Rico Police Dep’t., 2007 WL
2428675, at *1, the court denied the defendant’s motion to dismiss
plaintiff’s section 1983 claims because the court found that the
plaintiff pled sufficient facts to establish supervisory liability.
Id. at *2.

There, the plaintiff brought a section 1983 action

alleging violations of plaintiff’s Fourth Amendment rights.
at *1.

Id.

The complaint alleged that a PRPD officer shot the

plaintiff.

Id.

While on route to the hospital to treat his

critical bullet wounds, PRPD police officers rammed plaintiff’s car

Civil No. 08-1486 (FAB)

17

with a police cruiser, dragged plaintiff out of the car by the
hair, beat and handcuffed him.
that

plaintiff’s

complaint

Id. at *1.

The court concluded

sufficiently

alleged

supervisory

liability. Plaintiffs pled that despite the supervisors’ knowledge
that the subordinate officers, inter alia, had been improperly
recruited, received inadequate training and supervision, had been
the subject of citizen complaints, and had a propensity and pattern
of engaging in violent acts.

Id. Nevertheless, the supervisors

failed to train or evaluate the subordinates properly and failed to
take any action against them or to implement the Department’s
existing disciplinary system.

Id. at *2.

Here, like in Torres

Calderon, plaintiffs have pled that the Supervisory Defendants knew
of Pagan’s dangerous propensities.

Although Pagan was facing

expulsion from the PRPD, Toledo reduced Pagan’s penalty to a 60-day
suspension. (Docket No 64 at ¶ 4.19.) Subsequently, Rivera placed
Pagan in an “impact unit” despite Pagan’s suspension and several
complaints of aggression and insubordination.

Id. at ¶ 4.20-4.31.

Cruz and Figueroa made high pro forma evaluations of Pagan and
Sustache despite their known danger.

Id. at ¶ 4.9.

In fact, in

January 2007, Cruz gave Pagan a glowing evaluation despite the fact
that Pagan was disciplined and had other complaints pending against

Civil No. 08-1486 (FAB)
him.

Id. at ¶ 4.13.

18

Therefore, plaintiffs’ complaint here, like

the complaint in Torres Calderon, survives a motion to dismiss.
Maldonado, 568 F.3d 263, is distinguishable.

In Maldonado,

the plaintiffs brought a section 1983 action against, inter alia,
the

Mayor

of

Barceloneta,

Puerto

Rico,

alleging

supervisor

liability for violations of their Fourth Amendment right to be free
from unreasonable seizures and Fourteenth Amendment procedural and
substantive due process rights.

Id. at 226.

The plaintiffs,

residents of three public housing complexes, contended that their
pets were unconstitutionally seized and killed.

Id.

They posited

that the Mayor was liable because the Mayor participated in the pet
seizure and promulgated the pet policy for the public housing
complex.

Id.

The First Circuit Court of Appeals overturned the

District Court’s denial of qualified immunity to the Mayor as to
the

plaintiffs’

Fourteenth

Amendment

claims, and dismissed those claims.

substantive

Id. at 226.

due

process

The court held

that the plaintiffs’ complaint did not allege a sufficient link
between the Mayor’s and the subordinates’ conduct so as to find
supervisory liability.

Id. at 275.

The court reasoned that the

complaint did not survive scrutiny under Iqbal because “the Mayor’s
promulgation of a pet policy that was silent as to the manner in
which the pets were to be collected and disposed of, coupled with

Civil No. 08-1486 (FAB)

19

his mere presence at one of the raids, is insufficient to create
the

affirmative

link

necessary

for

a

finding

of

supervisory

liability, even under a theory of deliberate indifference.”
at 275.

Id.

Here, plaintiffs’ complaint goes beyond the conclusory

allegations found in Maldonado.
implemented

policies

that

Plaintiffs plead that Toledo

discouraged

citizens

from

bringing

complaints of police misconduct by requiring complaints to “pass
through

several

levels

of

analysis

before

a

conclusion

was

reached,” frequently resolving complaints in the officers’ favor
merely because the complainant failed to show further interest; and
he did not levy serious punishment when allegations of police
misconduct were sustained.

(Docket No. 64 at ¶ 4.25-4.28.); Id.

The Court finds that plaintiffs have adequately pled that each
of the Supervisory Defendants’ conduct was linked to each of the
Field Officers’ alleged unconstitutional conduct.
The next issue the Court must address is whether plaintiffs
plausibly

pled

that

the

Field

Officers

violated

Caceres’

Constitutional rights.
B.

Fifth and Eighth Amendments
The Supervisory Defendants argue that plaintiffs’ claims

under the Fifth and Eighth Amendments should be dismissed because
they must be brought under the Fourteenth Amendment:

the Eighth

Civil No. 08-1486 (FAB)
Amendment

20

protects “convicted

inmates”

rather

than

“pre-trial

detainees” and the Fifth Amendment is applicable to suits against
the federal, not state, government.

The Court agrees.

The Eighth Amendment states, “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted.”

U.S. Const. amend. VIII.

In Ruiz-Rosa v.

Rullan, 485 F.3d 150, 156 (1st Cir. 2009), the First Circuit Court
of Appeals recognized a dichotomy between pretrial detainees and
convicted inmates’ rights.

The court stated that the Fourteenth

Amendment governs pretrial detainees whereas convicted inmates
receive Eighth Amendment protection.

Id.

Because plaintiffs do

not contend that Caceres was a convicted inmate, plaintiffs’ Eighth
Amendment claims must be DISMISSED WITH PREJUDICE.
The Fifth Amendment provides, in pertinent part, that
“[n]o person shall . . . be deprived of life, liberty, or property
without due process of law.

U.S. Const. amend. V.

The First

Circuit Court of Appeals and the District of Puerto Rico have
consistently held that the Fifth Amendment is inapplicable to
causes of action against the Commonwealth of Puerto Rico.

See,

e.g., Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 7 n. 4, 8 (1st
Cir. 2007; Cruz Velazquez v. Rodriguez Quiñones, 550 F.Supp.2d 243,
250 (D.P.R. 2007) (citing Gerena v. Puerto Rico Legal Serv., Inc.,

Civil No. 08-1486 (FAB)

21

697 F.2d 447, 449 (1st Cir. 1983)).

Because plaintiffs’ cause of

action is against the PRPD, not the federal government, plaintiffs’
Fifth Amendment claims do not hold water.
Accordingly, plaintiffs’ claims under the Fifth Amendment
are DISMISSED WITH PREJUDICE.
C.

Fourteenth Amendment
The

Due

Process

Clause

of

the

Fourteenth

Amendment

states, “nor shall any state deprive any person of life, liberty,
or property without due process of law.”

U.S. Const. amend. XIV.

To survive a motion to dismiss, plaintiffs must plausibly plead
that, (1) plaintiffs were deprived of a life, liberty or property
interest, (2) in a manner that shocks the conscience.

Estate of

Bennett v. Wainwright, 548 F.3d 155, 162 (1st Cir. 2009) (Clark v.
Boscher,

514

F.3d

107,

112

(1st

Cir.

2008)).

Plaintiffs

insufficiently plead both elements.
Plaintiffs have not indicated the theory under which they
predicate

the

Supervisory

Defendants’

Fourteenth

Amendment

liability.

Rather, as stated in Colon-Andino, “[c]ounsel seems to

view the Constitution as merely a buffet table of violation ripe
for listing in the complaint, leaving the Court to fill in the
logical blanks.”

634 F.Supp.2d at 232 n. 21.

From what can be

unearthed, plaintiffs aver that Caceres was denied a life and

Civil No. 08-1486 (FAB)

22

liberty right to be free from excessive force.

(Docket No. 232

at 13 & Docket No. 64 at 6.2, 38-41.).
In Estate of Bennett, 548 F.3d at 162-3, the First
Circuit Court of Appeals held that excessive force claims are not
recognized under the Fourteenth Amendment. Rather, the claims must
be brought under the Fourth Amendment.

Id.

Here, it appears as

though plaintiffs brought suit alleging violations of Caceres’
substantive due process right to be free from excessive force.
Therefore, plaintiffs fail to state a cause of action under the
Fourteenth Amendment on the face of the pleadings.
Even assuming, arguendo, that the Court were to interpret
the amended complaint as grounding liability on an illegal seizure,
plaintiffs are still unable to state a cause of action.

“The

Supreme Court has held that ‘because the Fourth Amendment provides
an explicit textual source of constitutional protection against
this

sort

of

physically-intrusive

government

conduct,

that

Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims.’”

Cruz-

Acevedo v. Toledo-Davilla, 660 F.Supp.2d 205, 215 (D.P.R. 2009)
(quoting Graham, 490 U.S. at 395.
Accordingly,

plaintiffs

claim

Amendment is DISMISSED WITH PREJUDICE.

under

the

Fourteenth

Civil No. 08-1486 (FAB)
D.

23

Fourth Amendment
The Fourth Amendment to the Constitution protects “[t]he

right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures . . .”
U.S. Const. amend. IV. To state a claim under the Fourth Amendment,
plaintiffs must plead (1) that Caceres was seized and (2) that the
seizure

was

elements.3

unreasonable.

Plaintiffs

plausibly

plead

both

See, Morelli v. Webster, 552 F.3d 12, 23 (1st Cir.

2009).
The first element is satisfied because plaintiffs aver
that the Field Officers, without justification, forced Caceres to
the ground and threatened to arrest him.
4.5.)

(Docket No. 64 at ¶ 4.1-

With Sustache and Diaz’s encouragement and instigation,

Pagan shot and killed Caceres.

Id.; Estate of Bennett, 548 F.3d

at 167 (1st Cir. 2008) (“The seizure of a person occurs when, by
means

of

physical

force

or

a

show

of

authority,

an

officer

restrains the liberty of a person and such person submits to the
restriction feeling that he or she is not free to leave.”).

3

From what can be unearthed from plaintiffs’ complaint, plaintiffs
bring a Fourth Amendment excessive force and failure to intervene
claim based on the Field Officers’ actions leading up to Caceres’
death. (Docket No. 64.)

Civil No. 08-1486 (FAB)
In

24

excessive

force

cases,

the

question

of

“reasonableness” is an objective inquiry. Graham, 490 U.S. at 397;
Morelli v. Webster, 552 F.3d 12, 23 (1st Cir. 2009).

The Supreme

Court has extolled that the “the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying
intent or motivation.”

Id.

Plaintiffs have plausibly pled that Caceres’ seizure was
unreasonable because the Field Officers used excessive force and
Sustache and Diaz failed to intervene.

Plaintiffs aver that on

August 11, 2007 Caceres was on a street in Humacao.
at ¶ 4.1.)

(Docket No. 64

Without any cause or legal justification, Pagan,

Sustache and Diaz, “intervened with . . . [Caceres] and detained
him, forcing him to the ground and threaten[ed] him with arrest.
Id.

Moreover,

plaintiffs

aver

that

“without

any

cause

or

justification, Pagan shot at Caceres, with the encouragement and/or
instigation of Sustache and Diaz.

Id. at ¶ 4.2.

“After shooting

[Caceres] . . . several times, Pagan proceeded to shoot him in his
head, fatally injuring him.”

See, Santiago, 891 F.2d at 383

(holding that a plaintiff may seek redress under section 1983 if
there was no probable cause for an arrest); Melendez v. Muñiz
Estrada, No. 10-1891, 2011 WL 3652616, at *4 (D.P.R. Aug. 18, 2011)

Civil No. 08-1486 (FAB)

25

(Denying defendants’ motion to dismiss a claim for excessive force
because “[p]laintiffs committed no crime, nor did they pose any
danger to anyone.”); Moreno-Perez, 764 F.Supp.2d at 362 (D.P.R.
2011).
To

state

a

claim

for

failure

to

intervene

under

section 1983, plaintiffs must plead that “[a]n officer who is
present on the scene . . . fails to take reasonable steps to
protect the victim of another officer’s use of excessive force.”
Igartua v. Toledo, No. 09-1923, 2011 WL 147926, at *5-6 (D.P.R.
Jan 18, 2011) (quoting Gaudreault v. Municipality of Salem, Mass.,
923 F.2d 203, 207 n. 3 (1st Cir. 1999)).

Nevertheless, an officer

is not liable if the officer did not have the opportunity to
prevent the use of force.
Plaintiffs

aver

Id.
that

“[w]hile

defendant

Pagan

was

illegally intervening with and then shooting the unarmed decedent,
defendants Sustache and Diaz failed in their duty to prevent this
illegal and constitutional conduct on the part of a fellow PRPD
officer.”

(Docket No. 64 at ¶ 4.4.)

In fact, plaintiffs allege

that Sustache and Diaz encouraged and instigated the shooting.
(Docket No. 64 at ¶ 4.2.)

After the shooting, Pagan, Sustache and

Diaz immediately abandoned the scene.
Although

Diaz

reported

the

(Docket No. 64 at ¶ 4.5.)

incident

through

the

police

Civil No. 08-1486 (FAB)

26

communication system, Diaz deliberately did not say that a citizen
was injured.

(Docket No. 64 at ¶ 4.6.)

Therefore, plaintiffs also

state a claim under the Fourth Amendment for failure to intervene.
See Oquendo-Rivera v. Toledo, 736 F.Supp.2d 434, 440-41 (D.P.R.
2010) (holding that a reasonable jury could infer that defendants
failed to intervene during a shootout where defendants did not
provide details as to their location, timing of the shots or other
information why the shooting occurred).
Accordingly,

the

Supervisory

Defendants’

motion

for

judgment on the pleadings and motion to dismiss plaintiffs Fourth
Amendment claim in their representative capacity is DENIED.
IV.

Qualified Immunity
The qualified immunity doctrine is an “escape hatch” from a

state actor’s liability under section 1983.

Maldonado, 568 F.3d

at

qualified

268

(internal

citations

omitted)

(“The

immunity

doctrine provides defendant public officials an immunity from suit
and not a mere defense to liability.”).

In Maldonado, the First

Circuit Court of Appeals formally assumed the test for qualified
immunity articulated by the Supreme Court in Pefarson v. Callahan,
129 S.Ct. 808 (2009).

Id. at 268-69.

benefit from qualified immunity if:
violation

of

a

constitutional

A state actor does not

(1) the plaintiff makes out a

right

that

(2)

was

“clearly

Civil No. 08-1486 (FAB)

27

established” at the time of the alleged violation.

Id.

(citing

Pearson, 129 S.Ct. at 815).

Here, the first issue is not in

dispute

has

because

the

Court

held

that

plaintiffs

sufficiently pled a claim under the Fourth Amendment.

have

At issue is

the second element, whether the violation was “clearly established”
at the time of the alleged violation.
The “clearly established” element has two analytical prongs:
the clarity of the law at the time of the violation and whether a
reasonable defendant would have understood that his conduct was
unconstitutional.

Id. at 269 (citing Anderson, 482 U.S. at 640).

Thus, “[t]he relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation
he confronted.”

Id. (citing Brosseau v. Haugen, 543 U.S. 194, 199

(2004) quoting Saucier v. Katz, 533 U.S. 194, 121 (2001)).

“That

is, the salient question is whether the state of the law at the
time of the alleged violation gave the defendant fair warning that
his particular conduct was unconstitutional.”
Pelzer, 536 U.S. 730, 741 (2002)).

Id. (citing Hope v.

As such, the analysis, at the

motion to dismiss stage, turns on whether “a particular complaint
sufficiently alleges a clearly established violation of law.”
Maldonado, 568 F.3d at 268 (quoting Iqbal, 129 S.Ct. at 268.

The

Civil No. 08-1486 (FAB)

28

Supervisory Defendants had fair warning that their deliberate
indifference may be unconstitutional because the right of a person
to be free from excessive force from an officer has long been
clearly established.

Martinez-Rivera, 498 F.3d at 7 (D.P.R. 2007)

(“There is no question that the shooting of an unarmed and harmless
civilian by police officers without provocation or reason, if
proved, constitutes a constitutional violation.”).
The Supervisory Defendants argue that they are entitled to
qualified

immunity

because

in

the

First

Circuit,

liability is in flux (Docket No. 113 at 43.)

supervisory

The Supervisory

Defendants contend that the Supreme Court’s decision in Iqbal
altered the substantive law governing supervisory liability.
The

Supervisory

Defendants’

argument,

incorrect and substantively irrelevant.

however,

is

Id.

factually

As the Court previously

noted, supra n. 1, the district courts embracing the First Circuit
have

consistently

applied

supervisory liability.

the

same

pre-Iqbal

standard

to

Therefore, defendants’ motions to dismiss

and for judgment on the pleadings on the grounds of qualified
immunity is DENIED.
IV.

Article 1802
Plaintiffs

accompanied

their

section

1983

action

with

supplemental state law claims under article 1802 of the Civil Code

Civil No. 08-1486 (FAB)

29

(“Article 1802”), Laws of P.R. Ann. tit. 31 § 5141.
at ¶ 6.2.)

(Docket No. 64

“Considering the similarity of Article 1802 and

Section 1983’s requirements, if Plaintiff establishes causality
under one statute, he may reasonably be entitled to relief under
the other.”

Rodriguez-Diaz v. Marrero-Recio, No. 10-1317, 2010 WL

4117214 at *8-9 (D.P.R. Oct. 20, 2010) (Reconsideration granted, on
other grounds, by Rodriguez-Diaz v. Marrero-Recio, No. 10-1317,
2010

WL

5375952

(D.P.R.

Dec

28,

2010).

Therefore,

because

plaintiffs’ complaint survives the Supervisory Defendants’ motion
to

dismiss

section

as

1983

to
in

plaintiffs’
their

Fourth

Amendment

representative

claim

capacity,

article 1802 claim survives to the same extent.

Id.

under

plaintiffs’
Therefore,

the Supervisory Defendants’ motion to dismiss the article 1802
claim is DENIED.
CONCLUSION
For the reasons set forth above, defendants’ motion to dismiss
and motion for judgment on the pleadings is GRANTED IN PART AND
DENIED IN PART.
In

short,

plaintiffs’

the

Fourth

only

claims

Amendment

remaining

action

in

in

their

this

case

is

representative

capacity, pursuant to section 1983, and their article 1802 claim.

Civil No. 08-1486 (FAB)

30

IT IS SO ORDERED.
San Juan, Puerto Rico, October 3, 2011.

s/ Francisco A. Besosa
Francisco A. Besosa
United States District Judge