Ramirez-Lluveras v. Pagan-Cruz
Filing
382
OPINION AND ORDER re 365 Motion for Judgment. Plaintiffs' motion for partial summary judgment is GRANTED in part and DENIED in part. Plaintiffs' motion is GRANTED as to Pagan's liability pursuant to section 1983 for a Fourth amendm ent violation, and pursuant to article 1802. Summary judgment is GRANTED in Pagan's favor with respect to plaintiffs' claims under the Fifth, Eighth and Fourteenth Amendments. Plaintiffs are ORDERED TO SHOW CAUSE no later than 4/30/2012 at 5:00 p.m., why the Court should not grant summary judgment in favor of defendants Diaz and Sustache-Sustache with respect to plaintiffs' claims brought pursuant to the Fifth, Eighth and Fourteenth Amendments of the Constitution of the United States. Signed by Judge Francisco A. Besosa on 04/23/2012. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EVELYN RAMIREZ-LLUVERAS, et al.,
Plaintiffs,
v.
CIVIL NO. 08-1486 (FAB)
JAVIER PAGAN-CRUZ, et al.,
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
This
litigation
arises
out
of
Miguel
A.
Caceres-Cruz’s
(“Caceres”) murder by former Puerto Rico Police Department (“PRPD”)
officer Javier Pagan-Cruz (“Pagan”).
Pagan was convicted by the
Puerto Rico Court of First Instance, Humacao Division, of First
Degree Murder, P.R. Laws Ann. Tit. 33, § 4734, for shooting and
killing Caceres while attempting to arrest him.
Caceres’ widow,
Evelyn Ramirez-Lluveras, and their three children, Jenitza Caceres,
MC and MAC (collectively, the “plaintiffs”) bring suit against
Pagan, on behalf of themselves and Caceres, pursuant to 42 U.S.C.
§ 1983 (“section 1983”) and Article 1802 of the Puerto Rico Civil
Civil No. 08-1486 (FAB)
2
Code, P.R. Laws Ann. tit. 31, § 5141 (“article 1802”).1
(Docket
No. 64.)
Before
the
Court
is
the
plaintiffs’
unopposed
motion
requesting partial summary judgment regarding Pagan’s liability.2
(Docket No. 365.)
The principal issue is whether there is a
genuine issue of material fact that Pagan violated the plaintiffs’
rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments
of the Constitution when Pagan was convicted of First Degree
Murder. For the reasons set forth below, the Court:
(1) GRANTS in
part and DENIES in part the plaintiffs’ motion; (2) GRANTS summary
judgment in Pagan’s favor with respect to plaintiffs’ claims under
the
Fifth,
Eighth
and
Fourteenth
Amendments;
(3)
DISMISSES
plaintiffs’ section 1983 claim brought in their personal capacities
1
The plaintiffs also brought suit against fellow PRPD field
officers Carlos Sustache-Sustache (“Sustache”) and Zulma Diaz
(“Diaz”) (along with Pagan, the “field officers”) and several PRPD
supervisors, Juan Colon-Baez (“Colon”), Rafael Figueroa-Solis
(“Figueroa”), Victor Cruz-Sanchez (“Cruz”), Edwin Rivera-Merced
(“Rivera”) and Pedro Toledo-Davila (“Toledo”) (collectively, the
“supervisory defendants”). On December 22, 2011, the Court granted
the supervisory defendants’ motion for summary judgment and
dismissed the plaintiffs’ suit against them. (Docket No. 338.)
The suit continued as to the field officers.
2
The Court entered default against Pagan for failing to
answer plaintiffs’ complaint despite being served with process.
(Docket No. 20.) Defendant Diaz responded that she does not oppose
plaintiffs’ motion. (Docket No. 367 at ¶ 2.) Diaz states that she
“opposes the collateral use of the judgment against her or any
reference in the judgment to her.” (Id. at ¶ 3.) As plaintiffs’
motion only concerns the preclusive effect of the judgment against
Pagan, the Court need not, at present, address Diaz’s conclusory
contention.
Defendant Sustache-Sustache has not responded in a
timely manner. See D.P.R. Civ. R. 7, 56(a).
Civil No. 08-1486 (FAB)
3
against Pagan; and (4) ORDERS PLAINTIFFS TO SHOW CAUSE why the
Court should not grant summary judgment in favor of defendants Diaz
and Sustache-Sustache with respect to plaintiffs’ claims brought
pursuant to the Fifth, Eighth and Fourteenth Amendments.
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 . . . 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
for summary judgment.
For issues where the opposing party bears
Civil No. 08-1486 (FAB)
4
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 inference in that party’s
favor.”
Griggs-Ryan v. Smith, 904 F.3d 112, 115 (1st Cir. 1990).
The Court may safely ignore, however, “conclusory allegations,
Civil No. 08-1486 (FAB)
5
improbable inferences, and unsupported speculation.”
Medina-Muñoz
v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
DISCUSSION
The plaintiffs argue that they are entitled to partial summary
judgment
on
liability
because
the
issue
preclusion
doctrine
conclusively establishes Pagan’s liability when Pagan was found
guilty of murdering Caceres.3
After addressing the plaintiffs’
standing to bring suit under section 1983, the Court analyzes
whether the plaintiffs are entitled to summary judgment.
I.
Section 1983 Standing
“Standing is the determination of whether a specific person is
the proper party to bring a particular matter to the court for
adjudication.” Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101,
104 (1st Cir. 1995) (citing Erwin Chemerinsky, Federal Jurisdiction
§ 2.3, at 48 (1989)).
Plaintiffs bring suit against Pagan on their
own behalf and a survival claim on Caceres’ behalf.
(Docket
No. 64.) The Court may review whether the plaintiffs have standing
to bring suit sua sponte.
Pagan v. Calderon, 448 F.3d 16, 26 (1st
Cir. 2006) (internal citations omitted).
3
Issue preclusion is defined as “[t]he binding effect of a
judgment as to matters actually litigated and determined in one
action on later controversies between the parties involving a
different claim from that on which the original judgment was
based.” Black’s Law Dictionary (9th ed. 2009). Issue preclusion
is often referred to as collateral estoppel.
Civil No. 08-1486 (FAB)
6
Plaintiffs have standing to assert a section 1983 action on
Caceres’ behalf because Puerto Rico law permits a decedent’s heirs
to recover for the decedent’s pain and suffering prior to death.
Ramirez-Lluveras v. Pagan-Cruz, No. 08–1486, 2011 WL 4552536, at
*4–5
(D.P.R.
Oct.
3,
2011)
(“Ramirez-Lluveras
I”)
(internal
citations omitted). In contrast, plaintiffs have standing to bring
suit in their individual capacities pursuant to section 1983 only
if Pagan’s conduct was aimed at the familial relationship. RoblesVazquez v. Tirado-Garcia, 110 F.3d 204, 206 n.4 (1st Cir. 1997).
In Ramirez-Lluveras I, this Court held that the plaintiffs lacked
standing to bring suit against supervisory defendants in their
personal
capacities.
There,
the
Court
reasoned
that
the
plaintiffs’ allegation that the supervisory defendants’ conduct
deprived them of the enjoyment of Caceres’ company was not aimed at
the familial relationship.
Id.
(citing Soto v. Flores, 103 F.3d
1056, 1062 (1st Cir. 1997); Reyes-Vargas v. Rosello-Gonzalez, 135
F.Supp.2d
305,
308-09
(D.P.R.
2001);
Gonzalez-Rodriguez
Alvarado, 134 F.Supp.2d 451, 452-53 (D.P.R. 2001).
v.
Accordingly,
here, like in Ramirez-Lluveras I, the plaintiffs’ section 1983
action brought in their personal capacities against Pagan is
DISMISSED WITH PREJUDICE.
II.
The Preclusive Effect of
Subsequent Civil Actions
State
Criminal
Convictions
on
The plaintiffs argue that Pagan’s conviction conclusively
establishes Pagan’s liability under section 1983.
(Docket No. 365
Civil No. 08-1486 (FAB)
at ¶ 1.)
7
The plaintiffs do not cite to any authority addressing
the preclusive effect of a state court criminal conviction on a
subsequent federal civil suit.4
Nevertheless, the Court will delve
into the lacuna left by the plaintiffs and determine to what
extent, if any, the Court may use Pagan’s criminal conviction.
Pursuant to 28 U.S.C. § 1738, “judicial proceedings of any
court of any . . . State, Territory or Possession . . . shall have
the same full faith and credit in every court within the United
States . . . as they have by law or usage in the courts of such
State, Territory or Possession from which they are taken.”
Thus,
because the plaintiffs attempt to use Pagan’s Puerto Rico criminal
conviction to establish liability in this civil suit, Puerto Rico
law governs the preclusive effect of the conviction.
See Allen v.
McCurry, 449 U.S. 90, 95 (1980) (internal citations omitted)
4
The plaintiffs merely state that “[b]y supplying the court
with documents herewith, it is respectfully submitted that any
doubt this court may have had concerning Mr. Pagan’s liability
being conclusively established should be allayed.” (Docket No. 365
at ¶ 24.) The plaintiffs’ omission is especially troubling because
on at least two other occasions the Court stressed to plaintiffs’
counsel the importance of developed legal analysis. (See e.g.,
Docket Nos. 338, 353.) Indeed, the Court previously denied the
plaintiffs’ motion to reconsider the Court’s order denying the
plaintiffs’ motion for partial final judgment, in part because the
plaintiffs’ counsel failed to even acknowledge the requirements
needed to establish issue preclusion. (Docket No. 353 at 4.) It
should go without saying that legal analysis is at least a threestep process: “(1) finding similar cases; (2) identifying a rule
that explains the holdings in those cases; and (3) applying that
rule to your situation to predict an outcome.” Cathy Glazer et
al., The Lawyer’s Craft:
An Introduction to Legal Analysis,
Writing, Research, and Advocacy 30 (2002).
Plaintiffs have
neglected performing each of the three fundamental steps.
Civil No. 08-1486 (FAB)
8
(“Congress has specifically required all federal courts to give
preclusive effect to state-court judgments whenever the courts of
the state from which the judgment emerged would do so.”).
Puerto Rico’s issue preclusion law is codified at P.R. Laws
Ann. tit 31, § 3343 (“section 3343”).5
Under Puerto Rico law, the
issue
relitigation
preclusion
doctrine
precludes
of
an
issue
determined by a Puerto Rico criminal court in a subsequent federal
civil suit only “‘if in the adjudication of the prior case, facts
which are necessarily decisive for the second [case] were clearly
and directly considered and adjudged.’”
Perry v. Capitol Air,
Inc., 649 F. Supp. 1260, 1264-65 (D.P.R. 1986) (quoting Pueblo v.
Ortiz-Marrero, 106 D.P.R. 140, 144 (1977)); Canales Garcia v.
Santiago, Case No. N3CI2007–00299, 2011 WL 4018185, at *4 (TCA
July
15,
conviction
2011).
are
not
The
facts
identical
liability in this case.
necessary
to
those
for
Pagan’s
required
to
criminal
establish
A prima facie case under section 1983
requires, among other things, the defendant to be acting under the
color of state law.
Gutierrez-Rodriguez v. Cartagena, 882 F.2d
553,
1989)
559
5
(1st
Cir.
(internal
citations
omitted).
In
Pursuant to section 3343, issue preclusion applies where
“between the case decided by the sentence and that in which the
same is invoked, there be the most perfect identify between the
things, causes, and persons of the litigants, and their capacity as
such.” See Baez-Cruz v. Municipality of Comerio, 140 F.3d 24, 29
(1st Cir. 1998) (internal citations omitted) (observing that
although section 3343 refers only to claim preclusion, section 1983
also extends to issue preclusion).
Civil No. 08-1486 (FAB)
9
contrast, the Puerto Rico Penal code defines First Degree Murder as
any murder committed “by means of . . . premeditation.”
Ann. tit. 33, § 4733.
P.R. Laws
The prosecution need not establish that the
accused was acting under the color of law to sustain a conviction.
Therefore, Pagan’s guilty conviction is not entitled to full
preclusive effect in this case. See Perry, 649 F.Supp. at 1264-65.
Nevertheless, the Puerto Rico Supreme Court has stated that
even if a criminal conviction is not entitled to full preclusive
effect, “[t]he facts established in a criminal prosecution . . .
constitute prima facie evidence of their existence, admissible in
the civil action.”
Toro-Lugo v. Ortiz-Martinez, 5 P.R. Offic.
Trans. 310, 315 (1976) (emphasis added); Croly v. Mercado de la
Pena, Nos. D DP2008-0806, D DP2008-0102 2010 WL 4386823, at *5 (TCA
June 18, 2010).
Neither Pagan, who is in default, nor Diaz and
Sustache-Sustache, who don’t oppose plaintiffs’ motion, challenge
the facts underlying Pagan’s conviction.
Pagan’s
conviction
does
not
Accordingly, even though
conclusively
establish
Pagan’s
Civil No. 08-1486 (FAB)
liability
under
10
section
1983,
the
Court
may
use
underlying the conviction as proof of liability.6
the
facts
Id.
III. Pagan’s Section 1983 Liability
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).
Graham v.
To be entitled to partial
summary judgment, the plaintiffs must establish that there is no
issue of material fact that Pagan:
(1) caused Caceres to be
deprived
immunity
of
a
right,
privilege,
or
secured
by
the
Constitution or laws of the United States, (2) while acting under
the color of state law.
Cartagena, 882 F.2d at 559 (internal
citations omitted); Sanchez v. Pereira-Castillo, 590 F.3d 31, 41
(1st Cir. 2009) (citing section 1983).
6
The plaintiffs support
The Eleventh Circuit’s opinion in Parker v. Williams, 862
F.2d 141 (11th Cir. 1989) is inapposite. The plaintiff in Williams
was raped by a county’s chief jailer. Id. at 1473-74. After the
chief jailer was convicted in state court, the plaintiff brought a
civil suit under section 1983 against, inter alia, the chief jailer
and the county sheriff.
Id.
The district court prevented the
sheriff from introducing potentially exculpatory evidence because
the issue preclusion doctrine prevented relitigation of the facts
found in the criminal conviction. Id. The Eleventh Circuit Court
of Appeals stated that the district court erred in applying the
issue preclusion doctrine because the sheriff was not permitted to
litigate the facts of the rape in the chief jailer’s criminal
trial. Id. at 1474-75. Here, unlike in Williams, the Court is not
affording full preclusive effect to Pagan’s murder conviction.
Rather, in accordance with Puerto Rico law, the Court is only
treating the facts established in Pagan’s criminal trial as prima
facie evidence that may be rebutted. Neither Diaz nor SustacheSustache submitted evidence casting doubt on the facts underlying
Pagan’s conviction. Thus Diaz and Sustache-Sustache, unlike the
sheriff in Williams, had, but squandered, the opportunity to
challenge the veracity of the facts underlying Pagan’s conviction.
Civil No. 08-1486 (FAB)
11
their motion by submitting the judgment from the Appellate Court of
the Commonwealth of Puerto Rico affirming Pagan’s First Degree
Murder conviction and the Supreme Court of Puerto Rico’s resolution
denying certiorari.
(Docket No. 365-1.)
Each element will be
discussed in turn.
A.
Alleged Deprivation of Caceres’ Constitutional Rights
Plaintiffs allege that Pagan violated their rights under
the
Fourth,
Fifth,
Eighth,
and
Fourteenth
Amendments
of
the
Constitution when Pagan murdered Caceres.
1.
Fifth, Eighth, and Fourteenth Amendments
In Ramirez-Lluveras I, this Court held that the
plaintiffs’ claims against the supervisory defendants grounded on
the Fifth, Eighth and Fourteenth Amendments must be dismissed as a
matter of law.
2011 WL 4552536, at *5-9.
dismissed the plaintiffs’ claims because:
In short, the Court
the Eighth Amendment
does not protect Caceres because Caceres was murdered during the
course of an arrest; the Fifth Amendment applies only to the
federal government, not PRPD officers; and excessive force claims
are cognizable by the Fourth rather than the Fourteenth Amendment.
Id.
Therefore, for the reasons set forth in Ramirez-Lluveras I,
the plaintiffs’ motion for partial summary judgment against Pagan
is DENIED with respect to the plaintiffs’ action brought under the
Fifth, Eighth, and Fourteenth Amendments to the Constitution.
Moreover, summary judgment is GRANTED in Pagan’s favor with respect
Civil No. 08-1486 (FAB)
to
plaintiffs’
claims
12
brought
under
the
Fifth,
Eighth
and
Fourteenth Amendments because plaintiffs had the opportunity to
argue but failed to show why they are able to state a claim under
those provisions.
Id.; See Bank v. Int’l. Bus. Machs. Corp., 145
F.3d 420, 431 (1st Cir. 1998) (holding that a court may move sua
sponte for summary judgment in favor of a nonmoving party “if the
litigation is sufficiently advanced that both parties have had a
reasonable opportunity to present any material evidence in their
favor.”); Fed.R.Civ.P. 56(f).
2.
Fourth Amendment
The
Fourth
Amendment
to
the
U.S.
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.
rights are violated when:
was unreasonable.
A person’s Fourth Amendment
(1) they are seized; and (2) the seizure
See Graham, 490 U.S. at 395-96.
The first
element is of no moment because Pagan murdered Caceres.
(Docket
No. 365-1); Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“there can
be no question that apprehension by the use of deadly force is a
seizure . . .”).
In general, questions of reasonableness are a jury’s
provenance.
Roy v. Inhabitants of Lewiston, 42 F.3d 691, 694-95
(1st Cir. 1994).
But where, as here, the record establishes that
no reasonable juror could find that an officer was reasonable in
Civil No. 08-1486 (FAB)
13
using deadly force, reasonableness may be determined as a question
of law by the court.
See id.
An officer’s use of deadly force is
reasonable “if an objectively reasonable officer in the same
circumstances would have believed that an individual posed a threat
of serious physical harm either to the officer or others.”
Estate
of Bennett v. Wainwright, 548 F.3d 155, 175 (1st Cir. 2008)
(internal quotations and citations omitted).
or motivation is irrelevant.
The officer’s intent
Graham, 490 U.S. at 397 (internal
citations omitted).
As previously mentioned, under Puerto Rico law, a
person is guilty of First Degree Murder when they commit murder “by
means of . . . premeditation.”
P.R. Laws Ann. tit. 33, § 4734.
Murder, in turn, is defined as “to kill another human being with
intent.”
P.R. Laws Ann. tit. 33, § 4733.
Thus, it is axiomatic
that Pagan acted unreasonably when he murdered Caceres.
To hold
otherwise would imply the unsustainable conclusion that a person
guilty of murdering another may have acted in an objectively
reasonable manner.
of
the
Indeed, as acknowledged by the Appellate Court
Commonwealth
of
Puerto
Rico,
a
First
Degree
Murder
conviction determines the absence of just cause or excuse. (Docket
No. 365-1 at 29); Pueblo v. Gonzalez-Pagan, 20 P.R. Offic. Trans.
713, 719 (1988).
Even assuming, arguendo, Pagan was not convicted of
murder, the facts found by the Puerto Rico Court of First Instance
Civil No. 08-1486 (FAB)
14
and the record indicate that Pagan acted unreasonably.7
Nos. 365-1, 262, 338.)
(Docket
To determine whether an officer acted
unreasonably, the court consults three factors:
(1) the severity
of the decedent’s crime; (2) whether the decedent posed a threat to
safety; and (3) whether the decedent resisted arrest.
Graham, 490
U.S. at 396 (internal citations omitted); Raiche v. Pietroski, 623
F.3d 30, 36 (1st Cir. 2010).
First, it is doubtful that Caceres
committed any crime, let alone a severe crime:
Pagan initially
intervened with Caceres because Caceres was directing traffic and
responded to Pagan with attitude.
(See Docket No. 262 at ¶¶ 2.38-
2.42, 2.49; Docket No. 365-1 at 24.)
Second, although the record
indicates that Caceres retreated backward to avoid arrest, there is
no indication that physical force, deadly or otherwise, was needed
to detain Caceres.
(Docket No. 262 at ¶¶ 2.51-2.52; Docket No. 322
at Ex. 26; Docket No. 365-1.)
Caceres did not brandish a weapon,
attempt to flee the scene or otherwise behave belligerently.
Finally, any threat Caceres may have posed was neutralized after
Pagan fired at and injured Caceres.
Docket No. 262 at ¶¶ 2.73-2.75.)
(Docket No. 365-1 at 25, 30;
Nevertheless, after the initial
shots, Caceres paused and shot Pagan again.
Id.; see Napier v.
Town of Windham, 187 F.3d 177, 185-87 (1st Cir. 1999) (analyzing
7
Fed.R.Civ.P. 56(c)(3) states that although “[t]he court need
consider only the cited materials . . . it may consider other
materials in the record.”
Civil No. 08-1486 (FAB)
15
each series of an officer’s shots separately to determine whether
the officer’s conduct was reasonable).
Accordingly, there is no issue of material fact that
Pagan acted unreasonably when he murdered Caceres.
The next issue
is whether Pagan acted under the color of state law.
B.
Acting Under Color of State Law
Section 1983 only applies to persons acting under color
of state law.
Rehberg v. Paulk, 132 S. Ct. 1497, 1505 (2012)
(citing Briscoe v. LaHue, 460 U.S. 325, 329 (1983)).
Pagan was a
PRPD officer when he murdered Caceres. (Docket No. 365-1 at 24-25;
Docket No. 262 at ¶¶ 1.8, 2.38.)
Nevertheless, in determining
whether an officer was acting under the color of law or was merely
engaging in personal conduct, “[t]he key determinant is whether the
actor, at the time in question, purports to act in an official
capacity or to exercise official responsibilities pursuant to state
law.”
Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995) (citing
West v. Atkins, 487 U.S. 42,
Pagan
was
acting
49 (1988)).
under
color
of
state
law
when
he
attempted to arrest Caceres. See Screws v. United States, 325 U.S.
91, 107 (1945) (holding that law enforcement officials were acting
under the color of law when “making the arrest . . . and in
assaulting” a citizen.); see also West, 487 U.S. at 50 (“Thus,
generally, a public employee acts under color of state law while
acting
in
his
official
capacity
or
while
exercising
his
Civil No. 08-1486 (FAB)
responsibilities.”).
16
Moreover, Pagan arrived at the scene in a
PRPD vehicle and used his service weapon to shoot Caceres. (Docket
No. 365-1 at 24-25; Docket No. 262 at ¶ 2.38); see Parrilla-Burgos
v. Hernandez-Rivera, 108 F.3d 445, 449 (1st Cir. 1997) (citing
Martinez, at 986-87) (holding that the Court may consider several
“not
necessarily
determinative”
factors
including
officer’s garb; an officer’s duty status . . .;
“a
police
the officer’s use
of a service revolver; and, the location of the incident.”).
Accordingly, because there is no issue of material fact
that Pagan deprived Caceres’ of his Fourth Amendment rights while
acting under the color of state law, plaintiffs’ motion for partial
summary judgment as to Pagan’s liability under section 1983 is
GRANTED.
IV.
Pagan’s Article 1802 liability
The plaintiffs invoke the Court’s supplemental jurisdiction to
bring a claim under article 1802.
Plaintiffs allege that Pagan’s
liability is conclusively established because Pagan was found
guilty
of
First
Degree
Murder.
(Docket
No.
365
at
¶
24.)
Article 1802 provides, in pertinent part, that “[a] person who by
an act or omission causes damage to another through fault or
negligence shall be obligated to repair the damage so done.” Thus,
article 1802 “establishes three elements for a tort claim:
(1) a
negligent or intentional act or omission; (2) damages; and (3) a
causal connection between the damages and the defendant’s act or
Civil No. 08-1486 (FAB)
omission.
17
Kolker v. Hurwitz, No. 09-1895, 2011 WL 292264, 6
(D.P.R. Jan. 31, 2011) (citing Vazquez-Filippetti v. Banco Popular
de Puerto Rico, 504 F.3d 43, 49 (1st Cir. 2007); Torres v. Kmart
Corp., 233 F.Supp.2d 277-78).
Plaintiffs satisfy each element
because Pagan intentionally murdered Caceres by shooting him during
an arrest.
(Docket No. 365-1.)
Accordingly, plaintiffs’ motion
for partial summary judgment as to Pagan’s liability under article
1802 is GRANTED.
V.
CONCLUSION
For the reasons set forth above, the plaintiffs’ motion for
partial summary judgment is GRANTED in part and DENIED in part.
Plaintiffs’ motion is GRANTED as to Pagan’s liability pursuant to
section 1983 for a Fourth amendment violation, and pursuant to
Summary judgment is GRANTED in Pagan’s favor with
article 1802.
respect
to
Fourteenth
plaintiffs’
plaintiffs’
claims
Amendments.
section
1983
under
Additionally,
claims
the
Fifth,
the
brought
in
Eighth
Court
their
and
DISMISSES
personal
capacities against Pagan.
As a final matter, plaintiffs are ORDERED TO SHOW CAUSE no
later than April 30, 2012 at 5:00 p.m., why the Court should not
grant summary judgment in favor of defendants Diaz and SustacheSustache with respect to plaintiffs’ claims brought pursuant to the
Fifth, Eighth and Fourteenth Amendments of the Constitution of the
United States.
See Fed.R.Civ.P. 56(f) (“After giving notice and a
Civil No. 08-1486 (FAB)
18
reasonable time to respond, the court may grant summary judgment
for a nonmovant.”).
IT IS SO ORDERED.
San Juan, Puerto Rico, April 23, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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