Ramirez-Lluveras v. Pagan-Cruz

Filing 338

OPINION AND ORDER re 249 Motion for Summary Judgment. Because plaintiffs' have not established that the supervisory defendants behavior was casually related to Caceres' injury, the supervisory defendants' Motion for Summary Judgment is GRANTED. Plaintiffs' section 1983 and article 1802 claims against the supervisory defendants are DISMISSED WITH PREJUDICE. Signed by Judge Francisco A. Besosa on 12/22/2011. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EVELYN RAMIREZ-LLUVERAS, et al.,
Plaintiffs,
CIVIL NO. 08-1486 (FAB)

v.
JAVIER PAGAN-CRUZ, et al.,
Defendants.

OPINION AND ORDER
BESOSA, District Judge.
This is a civil rights action brought pursuant to 42 U.S.C.
§ 1984 (“section 1983”) and Article 1802 of the Puerto Rico Civil
Code, P.R. Laws Ann. tit. 31, § 5141 (“article 1802”) arising from
the highly publicized death of Miguel A. Caceres-Cruz (“Caceres”).
Before

the

Court

is

Juan

Colon-Baez

(“Colon”),

Rafael

Figueroa-Solis (“Figueroa”), Victor Cruz-Sanchez (“Cruz”), Edwin
Rivera-Merced

(“Rivera”)

and

Pedro

Toledo-Davila’s

(“Toledo”)

(collectively, the “supervisory defendants”) motion for summary
judgment

pursuant

No. 249.)
supervisory

to

Fed.R.Civ.P.

56

(“Rule

56”).

(Docket

For the reasons set forth below, the Court GRANTS the
defendants’

motion

for

summary

judgment

of

the

plaintiffs’ claims against them brought pursuant to section 1983
and article 1802.

Civil No. 08-1486 (FAB)
I.

2

FACTUAL BACKGROUND
A.

Procedural Background
Caceres’ wife, Evelyn Ramirez-Lluveras, and their three

children,

Jenitza

Caceres,

MC

and

MAC

(collectively,

the

“plaintiffs”) filed an amended complaint on behalf of themselves
and Caceres against several field officers in the Puerto Rico
Police Department (“PRPD”), Javier Pagan-Cruz (“Pagan”), Carlos
Sustache-Sustache (“Sustache”), Zulma Diaz (“Diaz”) (collectively,
the “field officers”)1 and the supervisory defendants.
No. 64.)

(Docket

Plaintiffs allege that their rights under the Fourth,

Fifth, Eighth, and Fourteenth Amendments of the Constitution were
violated when Caceres was forced to the ground by the field
officers and was eventually shot and killed by then Officer Pagan
in the Punta Santiago sector of Humacao, Puerto Rico.

Id.

They

also seek damages pursuant to article 1802.
In an opinion and order dated October 3, 2011, the Court
dismissed all claims against the supervisory defendants except for
plaintiffs’

Fourth

Amendment

claim

in

their

representative

capacities, pursuant to section 1983 and article 1802.
No. 332.)

On February 18, 2011, the supervisory defendants filed

their motion for summary judgment pursuant to Rule 56.
No. 249.)

1

(Docket

Plaintiffs opposed on March 15, 2011.

(Docket

(Docket No. 262.)

Pagan has been convicted of killing Mr. Caceres.
Sustache were found not guilty by a jury.

Diaz and

Civil No. 08-1486 (FAB)

3

On March 25, 2011, plaintiffs filed a motion to supplement their
opposition to add a reference to a case decided by the Ninth
Circuit Court of Appeals.

(Docket No. 274.)

The supervisory

defendants replied to plaintiffs’ opposition on May 17, 2011.
(Docket

No.

sur-reply.

297.)

B.

On

May

25,

2011,

plaintiffs

submitted

a

(Docket No. 311.)
Factual Background
1.

Preliminary Evidentiary Issues
The supervisory defendants argue that plaintiffs’

Statement of Material Facts (Docket No. 262) is defective because
many of the documents on which they relied are not authenticated by
and attached to an authenticating affidavit, and that plaintiffs’
exhibits Z, AA, BB, CC, DD, EE, which detail Pagan’s disciplinary
history, constitute inadmissible hearsay.

(Docket No. 296 at

¶¶ 5.3-5.13; Docket No. 297 at 4-5.)
Documents must be authenticated by and attached to
an affidavit to be admissible to be considered to decide a motion
for summary judgment.

Fed.R.Civ.P. 56(e); Carmona v. Toledo, 215

F.3d 124, 131 (1st Cir. 2000) (quoting Orsi v. Kirkwood, 999 F.2d
86,

92

(4th

Cir.

1993).

Plaintiffs

did

not

provide

an

authenticating affidavit for many of the exhibits they rely upon in
their Statement of Material Facts.
¶¶ 5.1-5.4.)

(See, e.g., Docket No. 262 at

“The Court has discretion to allow a party to cure

deficiencies in supporting documentation.”

Goguen ex rel. Estate

Civil No. 08-1486 (FAB)

4

of Goguen v. Textron, Inc., 234 F.R.D. 13, 17 (D.Mass 2006) (citing
McMahon v. Digital Equipment Corp., 162 F.3d 28, 34 (1st Cir.
1998)).

Plaintiffs attempted to cure this defect by submitting a

sworn statement by Judith Berkan, one of plaintiffs’ attorneys,
declaring that the documents in question were produced during
discovery.

(Docket No. 311 at ¶¶ 9-10, Ex. D.) Documents produced

in discovery are deemed authenticated.2

See Catala v. Dep’t. of

Veterans Affairs, No. 08-1822, 2010 WL 1664884, at *2 (D.P.R.
Apr. 21, 2010); Vachon v. R.M. Davis, Inc., No. 03-245, 2004 WL
1146630,

at

omitted);

*1-3

Estes

(D.Me.
Exp.

Apr.

Lines,

13,

2004)

Inc.

v.

(internal
Macy’s

Corp.

No. 08-3582, 2010 WL 398740 at *5 (D.N.J. 2010).
plaintiffs

cured

the

defect

and

the

court

citations

will

Serv.,

Accordingly,
consider

the

exhibits.
The

supervisory

defendants’

argument

that

plaintiffs’ exhibits Z, AA, BB, CC, DD, and EE, which detail
Pagan’s disciplinary history, constitute inadmissible hearsay is

2

The supervisory defendants argue in their motion to strike
the plaintiffs’ sur-reply that Diaz-Román v. Denis, No. 08-1420,
2010 WL 3069942, at *2 (D.P.R. Aug 2, 2010) stands for the
proposition that documents are not authenticated merely because
they were obtained during discovery.
(Docket No. 314 at 6.)
Diaz-Román, however, does not stand for that proposition.
Id.
Rather, the court held there that citing to pages of discovery
materials does not make those materials automatically part of the
record. Id.
To be part of the record, the proponent must take
“appropriate steps” to include them.
Id.
Accordingly, the
supervisory defendants’ argument fails and the documents are
admissible.

Civil No. 08-1486 (FAB)

5

also unavailing. (Docket No. 296 at 5.3-5.13.) Under Federal Rule
of Evidence 801(c), hearsay is defined as “a statement other than
one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”
Here, the statements contained in the exhibits are not hearsay
because they are not being used to prove that Pagan actually
behaved

in

the

manner

described

in

the

exhibits.

See

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 575 (1st Cir.
1989).

Rather, the exhibits are offered to establish whether or

not the supervisory defendants acted with deliberate indifference
in light of Pagan’s disciplinary records.

Id. (holding that an

officers’ disciplinary files were not hearsay because they were
used to show the supervisors’ responses to complaints against an
officer.) Accordingly, the Court will consider plaintiffs’ exhibits
Z, AA, BB, CC, DD, and EE for that limited purpose.
2.

Miguel Caceres’ Death
On August 11, 2007 the field officers were in the

Punta Santiago sector of Humacao, Puerto Rico as part of the Impact
Unit.

(Docket No. 262 at 1.8, 2.38.)

Defendant Rivera, the

Humacao Area Commander from 2006 to 2007, had made the decision to
create an Impact Unit to help fight crime in the area.
¶ 2.13; Docket No. 250 at ¶ 9.

Id. at

Defendant Cruz, the Director of the

Humacao Tactical Operations Division (the “T.O.D.”), selected Diaz
to be a part of the Impact Service.

(Id. at ¶ 2.5.)

Defendant

Civil No. 08-1486 (FAB)

6

Colon, the Assistant Director of the Humacao T.O.D. from March 2006
to February 2007 and again from July 2007 to August 2007, selected
Pagan and Sustache for the Impact Unit.

Id. at ¶¶ 1.4, 2.5.

The Punta Santiago Scooter Club (the “Club”) was
also present at Punta Santiago on August 11, 2007.

The Club was

there to provide an escort for a girl celebrating her fifteenth
birthday (her “quinceañero”). Id. at ¶¶ 2.24-2.25. Roughly eleven
club members, dressed in yellow T-shirts, parked their scooters in
front of the girl’s grandmother’s house.

Id. at ¶¶ 2.25, 2.33.

The scooters blocked a quarter of a road’s lane closest to the
grandmother’s house.

Id. at ¶ 2.34.

Caceres, a member of the

Club, assisted in directing traffic, letting one side of the
traffic pass through at a time.

Id. at ¶¶ 2.35-2.36, 2.37.

The field officers arrived in a PRPD Ford Explorer
to the spot where Caceres was directing traffic.

Id. at ¶ 2.38.

After the Explorer was stopped for “a while,” Caceres instructed it
to move forward.

Id. at ¶ 2.39.

Pagan told Caceres that they

alone have the authority to tell someone to “move on” and informed
Caceres that the club members must move their scooters off the road
within

five

minutes.

Id.

at

¶¶

2.40-2.42.

After

Caceres

responded, Pagan said the scooters must be moved immediately.
at ¶ 2.42.

The parties dispute what happened next.

Docket No. 296 at ¶ 2.46.

Id.

Id. at ¶ 2.46;

According to Fermin Torres-Lopez, the

President of the Club, the club members moved their scooters to the

Civil No. 08-1486 (FAB)
sidewalk.

7

Id. at ¶ 2.46.

But according to Hector M. Huertas-

Marrero, the club members did not comply with the order.

(Docket

No. 296 at ¶ 2.46.)
In any event, after the exchange between Caceres and
Pagan, the field officers then left their vehicle and moved towards
Caceres.

(Docket No. 262 at ¶ 2.47; Docket No. 250 at ¶ 93.)

Pagan pointed at Caceres and said, “[y]ou are a charlatan.” (Id. at
¶ 2.49.)
too.”
arrest.

Caceres retorted that “[i]f I am a charlatan, you are

Id.

Officer Diaz then informed Caceres that he was under

Id. at ¶ 2.51.

Caceres moved backwards and said that he

did not do anything to justify his arrest.

Id. at ¶ 2.52.

According to Hector M. Huertas-Mercado, Caceres attempted to evade
Officer Diaz and hit her, causing her to fall into a puddle.
(Docket No. 295 at ¶ 2.52; Docket No. 322 at Ex. 26.)
After Pagan tried to grab Caceres’ shirt, Caceres
pushed him.

(Docket No. 262 at ¶ 2.54.)

Officers Pagan and Diaz

enclosed Caceres between a chain and the road.
Id. at ¶ 2.55.

Caceres fell down.

While Caceres was on the ground, Pagan punched

Caceres in the face.

Id. at ¶ 2.56.

Then, Caceres grabbed onto

Pagan’s leg, touching his gun holster as he was trying to get up.
Id. at ¶ 2.61.

Pagan placed his hand on top of Caceres’ hand and

a struggle ensued.

Id. at ¶¶ 2.61, 2.63.

While Pagan’s gun was

still in its holster, he shot himself in the leg.

Id. at ¶ 2.67.

Pagan then pulled the gun out of the holster and shot Caceres

Civil No. 08-1486 (FAB)

8

several times in the back and head.
died.

Id. at ¶¶ 2.73-2.75.

Caceres

See Id. at ¶¶ 2.22, 3.6.
Following the shooting, the field officers retreated

to the Explorer and left the scene.

Id. at ¶ 2.78.

Lieutenant

Rodriguez communicated with Officer Diaz twice through the PRPD
radio.

Id. at ¶ 3.2.

Officer Diaz informed Lieutenant Rodriguez

that Pagan was bleeding profusely but did not mention Caceres
having been shot.
3.

Id. at ¶¶ 3.2-3.4.

Pagan’s Disciplinary History
Pagan’s “Personal History” record shows that, prior

to Caceres’ death, he had been subject to seven complaints.
¶ 5.1.

Id. at

He was accused of (1) theft of government property that he

left in the trunk of his personal vehicle; (2) domestic violence;
(3) insubordination; (4) failing to appear after being subpoenaed;
(5) reporting a “loss” in a stolen and recovered vehicle report;
(6) failing to take action on a complaint filed by a citizen; and
(7) assaulting a motorcyclist.

(Docket No. 281 at Ex. Z.)

received a warning for the theft of government property.
No. 262 at ¶ 5.2.)

Pagan
(Docket

The insubordination complaint was “filed for

future reference.” Id. The complaint for the stolen and recovered
vehicle report is pending in the PRPD’s legal affairs office.

Id.

The complaint for assault of a motorcyclist was “filed in the
record.”

Id.

There is no indication that any action was taken by

the PRPD for the complaint that Pagan failed to appear after being

Civil No. 08-1486 (FAB)
subpoenaed.

9

(Docket No. 281 at Ex. Z.)

The accusation that he

engaged in domestic violence was deemed substantiated.

Id. at Ex.

DD; Docket No. 262 at ¶ 5.3.
Maria Cabrera-Santiago (“Cabrera”) had accused Pagan
of domestic violence, stemming from three incidences.

In the

middle of 1998, Cabrera and Pagan entered into a consensual,
intimate relationship. (Docket No. 262 at ¶ 5.4.) Cabrera alleged
that in August 1998, Pagan saw her speaking with another police
officer.

Id. at ¶ 5.5.

face

pointed

and

his

Subsequently, Pagan slapped her in the
police-issued

firearm

at

her.

Pagan

purportedly said, “[i]f I catch you with another man, I’m going to
kill you.”
CC.

Id. at ¶¶ 5.2-5.3, 5.5, 5.7; Docket No. 281 at Ex. AA,

In the second incident, Cabrera alleged that Pagan stored an

arrestee’s firearm and laser in Cabrera’s home for three days. Id.
at ¶ 5.8; Docket No. 281 at Ex. CC.

Pagan attached the laser to

his police-issued firearm, pointed to the wall and swore that he
was going to kill the arrestee.
In

the

final

incident,

(Id.; Docket No. 281 at Ex. DD.)

Cabrera

alleged

that

after

their

relationship deteriorated, Cabrera sent Pagan a bill for a beeper
she previously had given to Pagan as a gift.
No. 281 at Ex. CC.

Id. at ¶ 5.5; Docket

That purportedly caused Pagan to “burst” into

Cabrera’s home, question her about what she had done and assault
her.

Id. at ¶ 5.5; Docket No. 281 at Ex. CC.

Civil No. 08-1486 (FAB)

10

The District Attorney decided not to file charges
against Pagan because he didn’t think Puerto Rico Law 54, which
addresses domestic violence, applied and/or because of Cabrera’s
“lack of interest.”

(Id. at ¶ 5.5; Docket No. 281 at Ex. AA, CC.)

Pagan’s police-issued firearm was seized and he was referred to the
Domestic Violence Division.

(Docket No. 281 at Ex. BB.)

On

August 23, 2000, the Domestic Violence Division concluded that
Pagan committed four violations of PRPD Personnel Regulations.
(Id. at Ex. DD; Docket No. 262 at ¶ 5.10.)
then

PRPD

Superintendent

Augustin

On August 30, 2004,

Cartagena

found

that

committed six violations of PRPD Personnel Regulations.
Ex. CC; Docket No. 262 at ¶ 5.11.)

(Id. at

Cartagena wrote Pagan that he

intended to expel him from the police force.
Docket No. 262 at ¶ 5.11.)

Pagan

(Id. at Ex. CC;

In November 2004, however, Pagan was

transferred to the “T.O.D,” to work as in a Special Response Team
(the “S.R.T.”).3

Docket No. 262 at ¶ 5.13.

According to a letter signed by Ramon A. OrtegaRodriguez (“Ortega”) and with Toledo’s name appearing below the
valediction, Pagan was once again notified of the intent to expel
him from the PRPD.

3

Id. at ¶ 5.22; Docket No. 281 at Ex. LL.

An

The T.O.D. is an elite unit within the PRPD composed of
agents trained to deal with sensitive situations. (Docket No. 262
at ¶ 5.14.) The S.R.T. is a “select group” within the T.O.D. Id.
Members of the S.R.T. receive additional training and are
authorized to perform tasks not all T.O.D. agents are permitted to
perform. Id.

Civil No. 08-1486 (FAB)

11

administrative hearing was held on October 8, 2005.
hearing, Pagan’s expulsion was modified.

Id.

Id.

After the

Instead, he was

suspended from employment without pay for sixty (60) days. (Id. at
¶ 5.23; Docket No. 281 at Ex. LL.

Pagan served the suspension from

August 23, 2006 to October 22, 2006.
II.

(Id. at ¶ 5.24.)

SUMMARY JUDGMENT STANDARD
The Court’s discretion to grant summary judgment is governed

by Rule 56 of the Federal Rules of Civil Procedure.
states, in
judgment

pertinent

only

interrogatories,

if

part,

“the

and

that

the

pleadings,

admissions

on

court

may

grant summary

depositions,
file,

Rule 56

answers

together

with

to
the

affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.”

See also Santiago-Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000).
Summary judgment is appropriate if “there is no genuine issue
as to any material fact and . . . the moving party is entitled to
a judgment as a matter of law.”

See Rule 56(c).

The party moving

for summary judgment bears the burden of showing the absence of a
genuine issue of material fact.

See Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986).
Once a properly supported motion has been presented, the
opposing party has the burden of demonstrating that a trial-worthy
issue exists that would warrant the court’s denial of the motion

Civil No. 08-1486 (FAB)
for summary judgment.

12
For issues where the opposing party bears

the ultimate burden of proof, that party cannot merely rely on the
absence of competent evidence, but must affirmatively point to
specific facts that demonstrate the existence of an authentic
dispute.

See Suarez v. Pueblo Int’l., Inc., 229 F.3d 49 (1st Cir.

2000).
In

order

for

a

factual

controversy

to

prevent

summary

judgment, the contested facts must be “material” and the dispute
must be “genuine.”

“Material” means that a contested fact has the

potential to change the outcome of the suit under governing law.
The issue is “genuine” when a reasonable jury could return a
verdict for the nonmoving party based on the evidence.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

See
It is

well settled that “[t]he mere existence of a scintilla of evidence”
is insufficient to defeat a properly supported motion for summary
judgment.”

Id. at 252.

It is therefore necessary that “a party

opposing summary judgment must present definite, competent evidence
to rebut the motion.”

Maldonado-Denis v. Castillo-Rodriguez, 23

F.3d 576, 581 (1st Cir. 1994).
In making this assessment, the court “must view the entire
record in the light most hospitable to the party opposing summary
judgment, indulging in all reasonable inferences in that party’s
favor.”

Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).

The court may safely ignore, however, “conclusory allegations,

Civil No. 08-1486 (FAB)

13

improbable inferences, and unsupported speculation.”

Medina-Muñoz

v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
III. DISCUSSION
Section 1983 permits a plaintiff to recover money damages from
government officials who violate the plaintiff’s constitutional
rights.

Camreta v. Greene, 131 S.Ct. 2020, 2024 (2011).4

section 1983 claim has two elements:

A

(1) the defendant must have

acted under color of state law; and (2) the defendant’s conduct
must have deprived the plaintiff of rights secured by the United
States Constitution or by federal law.

Gagliardi v. Sullivan, 513

F.3d 301, 306 (1st Cir. 2008) (citing Rodriguez-Cirilo v. Garcia,
115 F.3d 50, 52 (1st Cir. 1997); Lipsett v. Univ. of P.R., 864 F.2d
881, 901-02 (1st Cir. 1998) (citing Voutour v. Vitale, 761 F.2d 812
(1st Cir. 1985).

The supervisory defendants do not dispute that

they were acting under color of state law.
Under the supervisory liability doctrine, a supervisor who
does not directly engage in the unconstitutional behavior may be
liable under section 1983. Camilo-Robles v. Hoyos, 151 F.3d 1, 6-7

4

Section 1983 provides in relevant part:

“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . .
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .”

Civil No. 08-1486 (FAB)

14

(1st Cir. 1998) (citing City of Okla. City v. Tuttle, 471 U.S. 808
(1985)).

But, a supervisor is not liable for their subordinates’

unconstitutional conduct under the theory of respondeat superior.5
Id.; Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009); Whitfield v.
Melendez-Rivera,

431

F.3d

1,

14

(1st

Cir.

2005)

(citing

Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (1st Cir. 1999).
Rather, “[s]upervisors may only be held liable under § 1983 on the
basis of their own acts or omissions.”

Whitfield, 431 F.3d at 1.

Accordingly, to establish the second element of section 1983
liability, two prongs must be satisfied:
subordinate

must

have

violated the

(a) the supervisor’s

plaintiff’s

constitutional

rights; and (b) the supervisor’s “action or inaction” must be
‘affirmative[ly] link[ed]. . .’ to that behavior in the sense 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); Sanchez v. Alvarado, 101 F.3d 223, 227; Lipsett, 864
F.2d at 902 (citing Bohen, 799 F.2d at 1189; Maldonado-Denis, 23
F.4d at 582 (1st Cir. 1994) (internal citations omitted).

The

supervisory defendants concede, for purposes of their motion, the
first

5

prong

–

that

the

field

officers

violated

Caceres’

The Restatement (Third) of Agency § 2.04 cmt. b (2010)
defines respondeat superior as “a basis upon which the legal
consequences of one person’s acts may be attributed to another
person.”

Civil No. 08-1486 (FAB)

15

constitutional rights.
second

prong

plaintiffs

–

of

(Docket No. 249 at 13.)

whether

their

the

Fourth

supervisory
Amendment

At issue is the

defendants

rights

by

deprived

acting

with

acted

with

deliberate indifference.
To

establish

that

the

supervisory

defendants

deliberate indifference, plaintiffs must show (1) a grave risk of
harm,

(2)

the

supervisory

defendants’

actual

or

constructive

knowledge of that risk, (3) that the supervisory defendants failed
to take easily available measures to address the risk, and (4) an
“affirmative link” between the supervisory defendants’ deliberate
indifference
subordinates.

and

the

resulting

violation

committed

by

their

Figueroa-Torres v. Toledo-Davila, 232 F.3d 270, 279

(1st Cir. 2000); Camilo-Robles, 151 F.3d at 7 (citing Manarite v.
City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992); Maldonado
v. Fontanes, 568 F.3d 262, 275 (2009) (internal citations omitted);
Sanchez v. Figueroa, 996 F.Supp. 143, 149 n. 7 (D.P.R. 1998);
Cruz-Acevedo v. Toledo-Davila, 660 F.Supp.2d 205, 216 (D.P.R. 2009)
(citing Maldonado-Denis, 23 F.3d at 582).
The case law reveals two overarching theories sufficient to
impose liability:
subordinate’s

risk

where the supervisor knows of but disregards a
of

constitutional

violations,

and

where

a

supervisor “formulat[es] a policy or engage[s] in a custom . . .
that leads to the challenged occurrence.

See McIntyre v. United

States, 336 F.Supp.2d 87, 127 (D.Mass. 2004) (describing many of

Civil No. 08-1486 (FAB)

16

the scenarios in which the First Circuit Court of Appeals found
that

supervisors

acted

with

Barreto-Rivera, 168 F.3d at 49;
The

gravamen

of

plaintiffs’

deliberate

indifference);

Maldonado-Denis, 23 F.3d at 582.
claim

is

that

the

supervisory

defendants were deliberately indifferent because they:

(a) had

actual or constructive knowledge that Pagan posed a risk and failed
to dismiss him from the PRPD; and (b) failed to establish adequate
supervision policies when there was no specific record keeping and
analysis of officer-involved shootings, had excessive delays in the
disciplinary

system,

lacked

supervisory

staff

at

the

Humacao

Civil No. 08-1486 (FAB)

17

T.O.D., and failed to hold officers accountable for misconduct.6
(Docket No. 262 at 34; See Docket No. 262 at ¶¶ 6.1-8.51; Docket
No. 64 ¶¶ 4.13-4.34.)

The supervisory defendants argue that they

are entitled to summary judgment because their conduct did not

6

Plaintiffs’ opposition to the supervisory defendants’ motion
states “there is evidence of the overall failings in the
disciplinary system and the failure to comply with recognized norms
inpolice [sic] administration . . .”
(Docket No. 262 at 34.)
Plaintiffs leave the court to speculate, however, what those
failings were and how they caused Caceres’ death.
The First
Circuit Court of Appeals has recently reiterated that “Judges are
not mind-readers, so parties must spell out their issues clearly,
highlighting the relevant facts and analyzing on-point authority.”
Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.
2011). The Court has attempted to tease out plaintiffs’ arguments.
Nevertheless, additional evidence of the PRPD’s failings may be
found buried within plaintiff’s 107-page Statement of Facts.
Plaintiff’s opposition alludes to the PRPD’s failings in a cursory
fashion, however, without any case law or factual development and
with the hope that the court will connect the dots. Plaintiffs
have, in effect, shifted their lawyering duties onto the court.
This they cannot do and the remainder of their arguments are
waived. Id.; United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) (“it is not enough merely to mention a possible argument in
the most skeletal way, leaving the court to do counsel’s work,
create the ossature for the argument, and put flesh on its bones.”)
Although this is an admittedly harsh result, this court has
previously stated “[i]t is not solely substantive an often
prohibitively high bar for showing of supervisory liability; it is
procedural law and the standards of the legal profession. The law,
alone, can do little to remedy injustice-proper lawyering is an
essential component.” Cruz-Acevedo, 660 F.Supp.2d at 219 (D.P.R.
2009). See also Local Civil Rule 56.

Civil No. 08-1486 (FAB)

18

inexorably lead to Caceres’ death.7

(Docket No. 249 at 2-3.)

Specifically, the supervisory defendants contend that there is no
issue of material fact (1) that the field officers posed a grave
risk of harm; (2) that the supervisory defendants had actual or
constructive

know

of

the

risk;

and

(3)

that

the

supervisory

defendants failed to take measures to address the risk.
at 13.)
A.

(Id.

The Court agrees.
Risk of Harm
It is axiomatic that prior to characterizing behavior as

being “deliberately indifferent,” there must first be a problem.
Lipsett, 864 F.2d at 902 (“One cannot make a ‘deliberate’ or
‘conscious’ choice to act or not to act unless confronted with a
problem that requires the taking of affirmative steps.”).

Thus,

the test for deliberate indifference is whether “it would be
manifest to any reasonable official that his . . . [a subordinate
officer’s] conduct was very likely to violate an individual’s
constitutional rights.”

7

Hegarty v. Somerset County, 53 F.3d 1367,

The supervisory defendants also argue that plaintiffs do not
have standing to bring a section 1983 claim, that they are entitled
to qualified immunity, and that plaintiffs’ Fourteenth and Fifth
Amendment claims fail as a matter of law because the Supreme
Court’s decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 rejected
supervisory liability predicated on “deliberate indifference.”
(Docket No. 249, 6-12, 20-38.)
In an opinion and order dated
October 3, 2011, the Court rejected these contentions. (Docket
No. 332.) Accordingly, the court need not address these arguments
because the plaintiffs have not put forth any new argument or
evidence, the Court grants the supervisory defendants’ motion for
summary judgment on other grounds.

Civil No. 08-1486 (FAB)

19

1380 (1st Cir. 1995) (quoting Febus-Rodriguez v. Betancourt-Lebron,
14 F.3d 87, 92).

In conducting this inquiry, the court’s duty is

to determine whether the field officers’ “reasonably observable
characteristics, behavior or conduct indicated an abnormally high
likelihood that [they] posed a threat to violate the constitutional
rights of citizens in the manner alleged . . . .”

Figueroa, 966

F.Supp. at 148-49 (D.P.R. 1998) (citing Gutierez-Rodriguez, 882
F.2d at 564-66); Camilo-Robles, 151 F.3d at 7.
Plaintiffs

allege

that

the

field

officers

violated

Caceres’ constitutional rights when Pagan wrongfully shot and
killed him during an arrest, failed to prevent the use of force and
did not assure that Caceres received medical attention.

(Docket

No. 64 at ¶¶ 3.6-3.8.) Nevertheless, plaintiffs have not raised an
issue of material fact that the field officers presented a grave
risk to violate citizens’ constitutional rights.
Plaintiffs have not provided the court with evidence
indicating that Sustache and Diaz were subject to any complaints or
discipline prior to Caceres’ death on August 11, 2007.

Plaintiffs

have not even offered Diaz and Sustache’s disciplinary records.
Accordingly, the court is unable to find that the supervisory
defendants ignored any grave risk that Sustache’s and Diaz’s
continued

employment

Camilo-Robles,

151

with

F.3d

at

the
7;

PRPD
See

may

have

Cummings

v.

presented.
McIntire,

No. 00-211-P-H, 2001 WL 30529, at *10-11 (D.Me. Jan. 11, 2011)

Civil No. 08-1486 (FAB)

20

(granting summary judgment because the plaintiffs did not produce
evidence that police officer was subject to a complaint, discipline
or negative performance review which would evidence a propensity to
violence).
Moreover, the complaints filed against Pagan do not
indicate that Pagan had a propensity to assault, shoot or kill a
citizen during an arrest.

Maldonado-Denis, 23 F.3d at 582; See

Gonzalez-Perez v. Toledo-Davila, 709 F.Supp.2d 125, 132 (D.P.R.
2010).

According to Pagan’s “Personal History,” Pagan had seven

complaints prior to Caceres’ death.

(Docket No. 262 at ¶ 5.1.) Of

those seven, only two related to crimes against a person:

a

domestic violence claim and an assault against a motorcyclist. Id.
Of

those

two,

substantiated.

only

the

domestic

violence

complaint

(Id. at ¶ 5.3; Docket No. 281 at Ex. DD.)

was

Cabrera

alleged that Pagan slapped her in the face, threatened her with his
police-issued firearm, stored an arrestee’s firearm in Cabrera’s
home, told Cabrera that he was going to kill the arrestee, and
burst into her home and assaulted her. There is no indication that
Cabrera ever had a propensity to abuse citizens’ rights while on
duty and acting under color of law.
proffered

evidence

officers

were

that,

subject

prior
to

to

Thus, plaintiffs have not
Caceres’

discipline

death,

concerning

the

field

unlawfully

discharging firearms in the line of duty, much less complaints
alleging violation of constitutional rights.

Civil No. 08-1486 (FAB)
This

case

is

21
on

all

fours

with

Burgos-Yantin

v.

Municipality of Juana Diaz, 669 F.Supp.2d 191, 198-199 (D.P.R.
2009).

In Burgos-Yantin, the plaintiffs filed a section 1983 suit

against various PRPD officers and supervisors alleging that the
PRPD

officers

used

excessive

force

when

they

shot

at

the

plaintiffs, fatally hitting one in the back of the head and the
other in the knee.

Id. at 194.

The previous complaints against

the officers revealed the use of a firearm in self-defense, an
assault against another officer, a dispute with a supervisor and a
domestic dispute.

The Burgos-Yantin court held that the PRPD

officers did not show a pattern of behavior evincing a likelihood
of constitutional violations.
in

Burgos-Yantin,

Pagan

was

Id. at 198.
accused

Here, like a defendant
of

domestic

violence.

Moreover, like the officers in Burgos-Yantin, Pagan did not have
any substantiated prior incident displaying violent tendencies
while

acting

under

color

of

law

as

a

member

of

the

PRPD.

Accordingly, plaintiffs have not proffered sufficient evidence to
raise a question of material fact that Pagan possessed a propensity
towards violence under color of state law.
Barreto-Rivera, 168 F.3d 42 is inapposite.

There, the

decedent’s relatives brought a section 1983 suit against a PRPD
police officer and his supervisor.

The First Circuit Court of

Appeals vacated the district court’s grant of summary judgment.
The court of appeals held that there was sufficient evidence to

Civil No. 08-1486 (FAB)
show

the

police

22

officer’s

propensity

toward

violent

conduct,

reasoning that the officer’s disciplinary history in the PRPD was
“troubled” at best when he was disciplined 30 times for an abuse of
power, and/or unlawful use of physical force.

Id.

There, the

police officer’s supervisor recommended his dismissal because of
the assaults and continued misbehavior despite imposing sanctions.
Id.

Here, unlike in Barreto-Rivera, of the seven complaints

against

Pagan,

only

two

related

to

physical

violence.

The

complaint against Pagan for allegedly assaulting of a motorcyclist
was merely “filed in the record.”

(Docket No. 281 at Ex. Z.)

There is no indication that the complaint was substantiated.
Although Cabrera’s domestic violence complaint was substantiated,
Pagan’s disciplinary history, unlike the officer in Barreto-Rivera,
does not evince a propensity to abuse citizens’ rights while on
duty and acting under the color of law.
The fact that the police department disciplined Pagan is
irrelevant.

On two separate occasions, Pagan was informed of the

“intent” to expel him from the PRPD.

(Docket No. 262 at ¶ 5.11;

Docket No. 281 at Ex. CC; Docket No. 262 at ¶ 5.22; Docket No. 281
at Ex. LL.)

After an administrative hearing, however, he was

suspended from employment and pay for sixty (60) days.
¶ 5.23; Docket No. 281 at Ex. LL.)

(Id. at

While more could have been

done, supervisors are not given the gift of perfect foresight. The
court declines to charge supervisors with deliberate indifference

Civil No. 08-1486 (FAB)

23

whenever an officer is suspended and later commits an act of
unforeseeable violence.

Thus, the fact that Pagan was disciplined

does not necessarily reflect that he had dangerous propensities or
that he represented a grave risk of harm.
The Court cautions that the result it reached neither
follows nor

establishes

a

rule

entitled to “one free bite.”
supervisory

liability

it

must

mandating

that

(Id. at 34.)
be

an

officer

is

Rather, to impose

foreseeable

that

the

field

officers’ would violate Caceres’ constitutional rights “in the
manner alleged.”

Figueroa, 996 F.Supp. at 148-49.

Mere isolated

instances of unconstitutional conduct are insufficient, as a matter
of law, for supervisory liability to attach.
F.3d at 582.

Maldonado-Denis, 23

There is no genuine issue of material fact that the

field officers presented such a risk. Accordingly, the supervisory
defendants are entitled to summary judgment.
B.

Actual or Constructive Knowledge of Risk
Even assuming, arguendo, that plaintiffs are able to show

that

the

field

officers

represented

a

grave

risk

of

harm,

defendants Colon, Figueroa, Cruz and Rivera are also entitled to
summary judgment because there is no issue of material fact as to
whether they had knowledge of the field officers’ disciplinary

Civil No. 08-1486 (FAB)
history.8

24

(Docket No. 250 at ¶¶ 56-67; Docket No. 250 at ¶¶ 55-67,

100-111, 148-159, 199-211).
Pursuant

to

section

1983,

“[a]ctual

or

constructive

knowledge of a rights violation is a prerequisite . . .” to finding
liability.

Feliciano-Hernandez v. Pereira-Castillo, No. 11-1052,

2011 WL 6118537, at *7 (1st Cir. Dec. 9, 2011).

The supervisory

defendants argue that they are also entitled to summary judgment
because

they

did

not

have

knowledge

of

the

field

officers’

dangerous tendencies, any problem with citizen interventions, or
with any use of excessive force on citizens by agents operating
with the Impact Unit prior to the incident.

(Docket No. 248

at 13.)
Defendant Cruz did not know of administrative complaints
filed against the field officers.

(Docket No. 250 at ¶¶ 100-11.)

Plaintiffs contend that the fact that defendant Rivera signed a
letter stating that “P.O. Javier Pagan-Cruz 19664 was notified on

8

Plaintiffs raise an issue of material fact regarding the
extent of Superintendent Toledo’s knowledge of Pagan’s disciplinary
history. According to Toledo, he does not know of any complaints
levied against Pagan prior to Caceres’ death. (Docket No. 250 at
¶ 19.)
But, Toledo’s name appears below the valediction of a
letter signed by Ortega indicating the intent to expel Pagan from
the PRPD. (Docket No. 262 at ¶ 5.22; Docket No. 281 at Ex. LL).
Moreover, the letter indicates that Toledo and Ortega “evaluated
the record.” (Id. at Ex. LL.) Nevertheless, this issue is not
dispositive because the Court has previously concluded that the
supervisory defendants are entitled to summary judgment because,
based on the evidence presented, the field officers did not present
a risk of violating citizens’ constitutional rights or that the
supervisory defendants conduct was “affirmatively linked” to
Caceres’ death.

Civil No. 08-1486 (FAB)

25

August 23, 2006 of the 60-day employment and salary suspension” is
sufficient to establish that defendant Rivera had knowledge of
Pagan’s disciplinary history (Docket No. 262 at ¶ 56; Ex. TT.)
This letter, however, does not indicate that Rivera had knowledge
of the reasons underlying the suspension.

A police officer may be

subject to disciplinary actions for a myriad of reasons. Thus, the
letter merely reflects defendant Rivera’s knowledge that Pagan was
notified about his suspension, nothing more.
Similarly, defendant Figueroa stated in his deposition
that he remembered serving Pagan with disciplinary papers regarding
either the suspension or proposed expulsion.

(Id. at ¶ 6.24.)

Nevertheless, defendant Figueroa stated that his duty was merely to
deliver the disciplinary papers; he did not investigate the reasons
for the disciplinary action taken against Pagan.
8.24.)

(Id. at ¶¶ 6.24,

Likewise, there is also no evidence that defendant Colon

had knowledge of the field officers’ dangerousness.

Defendant

Colon previously stated that he served Pagan with sanctions.
(Docket No. 281 at Ex. J.)

Defendant Colon believed that Pagan was

suspended for 60 days for domestic violence.
¶ 190.)

(Docket No. 281 at

It is not established, however, that defendant Colon knew

of this information prior to Caceres’ death.

Rather, defendant

Colon stated that the sanctions he served did not indicate that it
was

for

domestic

indicated.

violence;

only

the

(Docket No. 291 at Ex. J.)

intent

to

suspend

was

The inferential step

Civil No. 08-1486 (FAB)

26

required to impute knowledge of an officer’s dangerousness upon
supervisors merely by virtue of them having notice of a suspension
is too tenuous, at best, to make at the summary judgment stage.
Moreover, there is no issue of a material fact that
defendants

Colon,

Figueroa,

knowledge of a risk.

Cruz

and

Rivera

had

constructive

A supervisor is liable even if he or she does

not have actual knowledge of the unconstitutional behavior.

See,

Colon-Andino, 634 F.Supp.2d at 232 (citing Maldonado-Denis, 23 F.3d
at 582.)

“Constructive knowledge ‘may be evidenced by the fact

that the practices have been so widespread or flagrant that in the
proper exercise of [their] official responsibility the [municipal
policy makers] should have known of them.’”

Bordanaro v. Mcleod,

871 F.2d 1151, 1157 (1st Cir. 1989) (internal citations omitted).
Nevertheless, plaintiffs have not established that the supervisory
defendants had constructive knowledge, precisely because they have
not

established

that

the

field

officers’

conduct

was

either

widespread or flagrant. As the Court previously concluded, Pagan’s
disciplinary history did not evince a risk of constitutional
violations.
Plaintiffs point to the supervisory defendants’ lack of
knowledge of Pagan’s disciplinary record and failure to look at
agents

with

“repetitive

conduct”

as

demonstrative

supervisory defendants’ deliberate indifference.

of

the

This contention,

however, without more, is insufficient to attach liability.

See

Civil No. 08-1486 (FAB)

27

Calderón v. P.R. Police Dep’t., No. 05-1722, 2008 WL 2960694 at *4
(D.P.R. Jul. 30, 2008) (holding that an allegation that defendants
lacked

knowledge

“reckless

of

disregard”

disciplinary
by

the

record

defendants

does
when

not
the

demonstrate
officers

in

question did not demonstrate a dangerous propensity to violate the
Constitution).
C.

Affirmative Link
Even assuming, arguendo, that the field officers were a

grave risk and that the supervisory defendants had knowledge of
that risk, “not every official who is aware of a problem exhibits
deliberate

indifference

Feliciano-Hernandez,

2011

by

failing

WL

6118537,

to
at

resolve
*8

it.”

(quoting

Feliciano-Hernandez, No. 09-1569, 2010 WL 3372527, at *11 (D.P.R.
Aug 24, 2010).

Plaintiffs have not established that the PRPD’s

failure to expel Pagan from the force or a deficient policy was
“affirmatively linked” to Caceres’ death. See Figueroa, 966 F.Supp
at 184.
“Deliberate

indifference

is

not

the

be-all

and

the

end-all of a section 1983 claim premised on supervisory liability
. . . there is a causation element as well.”

(Id. at 149 (D.P.R.

1998) (quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
582 (1st Cir. 1994); Camilo-Robles, 151 F.3d at 7. Plaintiffs must
establish that had the supervisory defendants not acted with
deliberate indifference, Caceres would not have been killed.

Id.

Civil No. 08-1486 (FAB)

28

at 184 (holding that the court may not impose liability when proper
screening or supervision mechanisms would not have prevented the
constitutional violation) (citing Rodriguez-Cirilo, 115 F.3d at 52;
Thayer v. Dion, No. 09-00435, 2010 WL 4961739, at *20 (D.Me.
Nov. 30, 2010) (citing Sanchez v. Pereira-Castillo, 590 F.3d 31, 40
(1st Cir. 2009); Maldonado, 568 F.3d at 274-75.

The test is also

satisfied when there is a “[A] pattern of misconduct sufficient to
put the [defendant] on inquiry notice.”

Maldonado-Denis, 268 F.3d

at 583.
According

to

plaintiffs,

the

supervisory

defendants

caused Caceres’ death when they created an environment within the
PRPD such that the field officers thought that they could act
illegally with impunity and without consequence, not following
policies regarding officers who return from suspension, lacked
record-keeping

and

analyses

of

officer-involved

shootings,

conducted pro-forma evaluations, provided excessive delays in the
disciplinary system and lacked supervisory staff at the T.O.D.
Speculation that a police officer felt like they could
act with impunity and without consequence is too tenuous, as a
matter of law, to establish liability.
at 93 (1st Cir. 1994).

Febus-Rodriguez, 14 F.3d

In Febus-Rodriguez, the plaintiffs filed

suit against PRPD police officers and supervisors claiming that
Febus-Rodriguez’s constitutional rights were violated when the
police officers assaulted him and denied him medical treatment

Civil No. 08-1486 (FAB)

29

during an arrest. Id. at 89. The plaintiffs contended that because
the officer

was

not

sanctioned

for

five

prior

incidents, he

believed he could get away with assaulting the plaintiffs.
at 94.

Id.

The district court denied the supervisor’s motion for

summary judgment on the grounds of qualified immunity.

Id.

The

First Circuit Court of Appeals reversed the district court and
remanded.

Id.

The court of appeals reasoned that the supervisors

were entitled to summary judgment, because, inter alia, “[t]he
inference that because Officer Rodriguez had not been sanctioned
with respect to these grave incidents, he could get away with
anything, including assaulting [plaintiff], is too tenuous.
at 94.

Id.

Here, plaintiffs, like the plaintiff in Febus-Rodriguez,

also claim that PRPD fostered a sense of impunity among the ranks
which resulted in the killing of Caceres.

Accordingly, here, like

in Febus-Rodriguez, summary judgment must be granted.
Similarly, plaintiffs also fail to establish that the
PRPD’s policy regarding officers involved in shootings caused
Caceres’ death.

Plaintiffs’ expert, Lou Reitner stated that the

PRPD is the only major police force that does not have a policy for
handling

officer-involved

admitted

that

even

if

shootings.

supervisors

Nevertheless,

looked

at

Reitner

officer-involved

shootings, their effort would have been fruitless because the field
officers never fired their firearms prior to August 11, 2007.
Therefore, plaintiffs have not established that the failure to have

Civil No. 08-1486 (FAB)

30

a policy for officer-involved shootings caused Caceres’ death. See
Rossi-Cortes v. Toledo-Rivera, 540 F.Supp.2d 318, 324 (D.P.R. 2008)
(“Allegations that a supervisor failed to train his subordinate
officers and that he should be held liable for such failure,
without identifying the factual underpinnings of such failure, nor
identifying the casual nexus between the failed training and the
subordinate’s misconduct, are not enough to sustain a claim of
liability under Section 1983.”)
Plaintiffs’ contention that the supervisory defendants
were linked to Caceres’ death because the Humacao T.O.D. lacked
sufficient supervisory staff is also without merit.

There is no

indication that additional staff could have prevented Pagan from
shooting Caceres to death during an arrest.
allegations

that

there

disciplinary

system

and

are
that

excessive
the

Likewise, plaintiffs’
delays

supervisory

pro-forma evaluations are also insufficient.

in

the

PRPD

defendants

gave

Plaintiffs merely

outline the PRPD disciplinary process without expanding on the
manner in which the policy was deficient, how it was different than
any other police department or how it caused Caceres’ death.
Plaintiffs do argue that Pagan received the highest rank for
“self-control” in an evaluation despite the proposals that he be
expelled.

(Docket

No.

262

at

¶

6.43.)

Nevertheless,

the

evaluation covered the period from July 1, 2006 to December 31,
2006.

Id.

Pagan was accused of domestic violence in 1998, a

Civil No. 08-1486 (FAB)

31

number of years earlier.

(Docket No. 262 at ¶ 5.5.)

Therefore,

the domestic violence complaint was outside the scope of the
evaluation.

Plaintiffs’ entirely conclusory allegations, without

more, are legally insufficient to survive summary judgment.
Medina-Muñoz, 896 F.2d at 8.

See

(“conclusory allegations . . . and

unsupported speculation” are insufficient.)
“The

deliberate

indifference

standard

was

set

deliberately high by the Supreme Court to insure that § 1983 did
not become a front of constitutional tort liability.”

Beal v.

Blance, No. 02-12447, 2005 WL 352861 at *7 (D.Mass. Feb. 14, 2005).
Even

if

the

supervisory

defendants’

conduct

may

have

been

negligent, to invoke section 1983 liability the plaintiffs must
show

more

than

indifference.

mere

negligence;

they

must

show

deliberate

Maldonado-Denis, 23 F.3d at 582 (“Proof of mere

negligence, without more, is inadequate to ground supervisory
liability.”).

There

is

no

issue

of

material

fact

that

the

supervisory defendants acted with deliberate indifference.
Accordingly, plaintiffs’ motion for summary judgment is
GRANTED.

Civil No. 08-1486 (FAB)
D.

32

State Law Claims Under Article 1802
Plaintiffs also brought supplemental state law claims

under article 1802.9

(Docket No. 64 at ¶ 6.2.)

Article 1802 permits a plaintiff to recover damages for
causes of action sounding in tort.

Vazquez-Filippetti v. Banco

Popular de P.R., 504 F.3d 43, 49 (1st Cir. 2007).
damages,

article

1802

requires

a

showing

that

the

To recover
defendant

“cause[d] damage to another through fault or negligence.”

Id.

To

establish liability under article 1802, a plaintiff must establish:
(1) plaintiff’s physical or emotional injury, (2) defendant’s
negligent act or omission (“breach of duty”), and (3) a causal
nexus between the plaintiff’s injury and defendant’s negligent act
or omission (“proximate cause”).

Id.

Article 1802 and section 1983 are composed of similar
requirements.

9

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

Where, as here, state law claims remain after the court
grants summary judgment as to federal law claims, courts have
“considerable authority” to decide whether to exercise supplemental
jurisdiction. Newman v. Burgin, 930 F.2d 955, 963-64 (1st Cir.
1991); See Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 117 (1st
Cir. 1995). If the court dismisses a section 1983 claim against
police supervisors, the court may still decline to exercise
supplemental jurisdiction over article 1802 claims against them,
even where section 1983 claims remain as to other defendants. See
Cuebas v. Davila, 618 F.Supp.2d 124, 133 (D.P.R 2009) (declining
supplemental jurisdiction over the plaintiff’s article 1802 claim
against
police
supervisors
while
maintaining
supplemental
jurisdiction over the plaintiff’s article 1802 claims against other
defendants).
Nevertheless, because of the similarities between
article 1802 and section 1983, the Court, in exercising its
discretion, finds it prudent to address the merits of plaintiffs’
article 1802 claim against the supervisory defendants.

Civil No. 08-1486 (FAB)

33

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) (holding that if a plaintiff
establishes

causality

under

section

1983,

the

plaintiff

reasonably entitled to relief under article 1802).

is

To invoke

section 1983 liability, a plaintiff must show more than mere
negligence, he must show deliberate indifference. Maldonado-Denis,
23 F.3d at 582 (“Proof of mere negligence, without more, is
inadequate to ground supervisory liability.”).

The Court need not

address whether plaintiffs have satisfied the “breach of duty”
element under article 1802 because, as explained below, plaintiffs
have failed to establish the causation that article 1802 requires.
Figueroa, 966 F.Supp at 149 (quoting Maldonado-Denis, at 582);
Vazquez-Filippetti, 504 F.3d 43 at 49.
Plaintiffs have not established that the supervisory
defendants were the proximate cause of Caceres’ death.
cause is composed of two sub-elements:
(b) foreseeability.

Proximate

(a) actual cause and

Vazquez-Filippetti, 504 F.3d at 49 n.5.

“A

defendant’s action may only be the proximate cause of plaintiff’s
injuries if they in fact caused the injuries and the defendant
could have reasonably foreseen that the injuries (or related harms)
would result from his actions.

Id.

(citing Malave-Fex v. Volvo

Car Corp., 946 F.2d 967, 971-72 (1st Cir. 1991).

Here, the Court

previously concluded that plaintiffs have not presented an issue of

Civil No. 08-1486 (FAB)

34

material fact that the PRPD’s acts or omissions were “affirmatively
linked” to Caceres’ death.

Moreover, the Court has stated that it

was

former

not

foreseeable

that

officer

Pagan

would

violate

Caceres’ constitutional rights by shooting and killing him, or that
officers Diaz and Sustache failed to prevent the use of force, and
did not assure that Caceres received medical attention. Therefore,
the supervisory defendants did not cause Caceres’ injuries within
the meaning of article 1802.
Accordingly, because plaintiffs’ have not established
that the supervisory defendants behavior was casually related to
Caceres’ injury, summary judgment is GRANTED as to plaintiffs’
article 1802 claim against the supervisory defendants.
IV.

Conclusion
For the reasons set forth above, the supervisory defendants’

Motion for Summary Judgment is GRANTED.

Plaintiffs’ section 1983

and article 1802 claims against the supervisory defendants are
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
San Juan, Puerto Rico, December 22, 2011.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE