Ramirez-Lluveras v. Pagan-Cruz
Filing
404
OPINION AND ORDER re 394 Motion in Compliance: NOTED. Summary judgment is GRANTED as to plaintiffs' claims brought against Sustache and Diaz pursuant to the Fifth, Eighth and Fourteenth Amendment. Signed by Judge Francisco A. Besosa on 05/21/2012. (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 is a civil rights action brought pursuant to 42 U.S.C.
§ 1983 (“section 1983”) and Article 1802 of Puerto Rico Civil Code,
P.R. Laws Ann. Tit. 31, § 5141 (“article 1802”).
Before the Court
is plaintiffs’ motion in compliance with the Court’s Order to Show
Cause why summary judgment should not be granted in defendants’
Carlos Sustache-Sustache (“Sustache”) and Zulma Diaz’s (“Diaz”)
favor with respect to plaintiffs’ claims brought pursuant to the
Fifth, Eighth, and Fourteenth Amendments of the Constitution.
(Docket Nos. 382, 394.)
For the reasons discussed below, summary
judgment is GRANTED as to plaintiffs’ claims brought against
Sustache and Diaz pursuant to the Fifth, Eighth and Fourteenth
Amendments.
See Fed.R.Civ.P. 56(f).
BACKGROUND
On March 3, 2009, plaintiffs Evelyn Ramirez-Lluveras, Jenitza
Caceres, MC and MAC (collectively, the “plaintiffs”) filed an
Civil No. 08-1486 (FAB)
2
amended complaint on behalf of themselves and Miguel Caceres-Cruz
(“Caceres”), against Puerto Rico Police Department (“PRPD”) field
officers Sustache, Diaz and Javier Pagan-Cruz (“Pagan”).1
(Docket
No. 64.) Plaintiffs allege that the field officers and supervisory
defendants violated their rights under the Fourth, Fifth, Eighth,
and Fourteenth Amendments of the Constitution when Caceres was shot
and killed during an arrest.
On September 30, 2011, the Court granted in part and denied in
part the supervisory defendants’ motion to dismiss the plaintiffs’
complaint and for judgment on the pleadings.
332.)
The Court held that:
(Docket Nos. 329,
(a) plaintiffs did not have standing
to bring suit on their own behalf, but had standing to sue as
Caceres’
representative;
(b)
plaintiffs’
adequately
pled
supervisory liability; and (c) plaintiffs’ stated a cause of action
pursuant to the Fourth Amendment but failed to do so pursuant to
the Fifth, Eighth, and Fourteenth Amendments.
28.)
(Docket No. 332, 6-
Subsequently, in an opinion and order dated December 22,
2011, the Court granted the supervisory defendants’ motion for
summary judgment because plaintiffs’ did not establish a question
of material fact that the supervisory defendants may be held liable
under a supervisory liability theory.
1
(Docket No. 338 at 13-31.)
Plaintiffs also filed suit against 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”).
Civil No. 08-1486 (FAB)
3
Plaintiffs then moved for summary judgment against Pagan,
arguing that Pagan’s civil liability was conclusively established
because Pagan was previously convicted of First Degree Murder.
(Docket No. 365 at ¶ 24.)
In an opinion and order dated April 23,
2012, the Court dismissed plaintiffs’ section 1983 claim brought in
their personal capacities against Pagan, granted summary judgment
in plaintiffs’ favor as to Pagan’s liability pursuant to section
1983 for a Fourth amendment violation and article 1802, and granted
summary judgement in Pagan’s favor with respect to plaintiffs’
claims under the Fifth, Eighth and Fourteenth Amendments.
No. 382 at 10-17.)
(Docket
The Court also ordered plaintiffs to show cause
why summary judgment should not be granted in Diaz’s and Sustache’s
favor with respect to plaintiffs’ claims brought against them
pursuant to the Fifth, Eighth, and Fourteenth Amendments.
(Id
at 18.) Plaintiffs complied with the Court’s order on May 3, 2012.
(Docket No. 394.)
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
Civil No. 08-1486 (FAB)
a matter of law.”
4
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
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
Civil No. 08-1486 (FAB)
5
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,
improbable inferences, and unsupported speculation.”
Medina-Muñoz
v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
DISCUSSION
The Court proceeds in two steps.
The Court first analyzes
whether plaintiffs have standing to bring suit under section 1983
against Sustache and Diaz.
After concluding that plaintiffs have
standing to sue as Caceres’ representatives, the Court addresses
whether there is no issue of material fact concerning whether
Sustache
and
Diaz
violated
the
Fifth,
Eighth
and
Fourteenth
Amendments.
I.
Standing
“The standing inquiry focuses on whether the plaintiff is the
proper party to bring this suit . . . .”
Raines v. Byrd, 521 U.S.
Civil No. 08-1486 (FAB)
811, 818 (1997).
6
The Court has addressed whether plaintiffs have
standing to sue in two prior opinions.
Docket No. 382 at 5-6.)
plaintiffs
have
standing
(Docket No. 332 at 6-10;
On both occasions, the Court held that
to
assert
a
section
1983
action
on
Caceres’ behalf, but lacked standing to bring a section 1983 suit
in their personal capacities.
(Id.)
The Court sees no reason to
diverge from its prior holdings.
In short, plaintiffs have standing to sue on Caceres’ behalf
because Puerto Rico law permits a decedent’s heirs to recover for
the decedent’s pain and suffering prior to death.
Robertson v.
Wegmann, 436 U.S. 584, 98 (1978) (holding that a decedent’s heirs
may recover under section 1983 if the state survivorship law so
permits); Gonzalez Rodriguez v. Alvarado, 134 F.Supp.2d 451, 454
(D.P.R. 2001) (“Puerto Rican law permits an heir to bring a § 1983
action in his representative capacity only where there is a showing
that the deceased has suffered prior to his death.”) (internal
citations omitted).
Plaintiffs do not have standing, however, to
sue Sustache and Diaz in their personal capacities.
To have
standing to bring suit pursuant to section 1983, plaintiffs must
avail themselves of the exception to the general bar on third party
standing:
that the alleged constitutional violation was aimed at
the family relationship.
Robles-Vazquez v. Garcia, 110 F.3d 204,
206 n. 4 (1st Cir. 1997) (“First Circuit case law holds that
surviving family members cannot recover in an action brought under
Civil No. 08-1486 (FAB)
§
1983
for
7
deprivation
of
rights
secured
by
the
federal
constitution for their own damages from the victim’s death unless
the
unconstitutional
relationship.”).
action
was
aimed
at
the
familial
First Circuit case law makes clear that the loss
of companionship does not establish a governmental interference
aimed at the family relationship.
1062 (1st
Cir.
1997);
Reyes
Soto v. Flores, 103 F.3d 1056,
Vargas v.
Rosello
Gonzalez, 135
F.Supp.2d 305, 308-09 (D.P.R. 2001). Because Sustache’s and Diaz’s
conduct was not aimed at the familial relationship, plaintiffs do
not have standing to bring suit in their personal capacities.
While plaintiffs’ argument is difficult to unpack, it appears
as though they argue that the First Circuit Court of Appeals no
longer requires conduct to be “aimed at the familial relationship”
to have standing to sue for violations of substantive due process.
(Docket No. 394, 5-9.) (citing Maldonado v. Fontanes, 568 F.3d 263
(1st Cir. 2009). Plaintiffs misinterpret Maldonado. In Maldonado,
the residents of three public housing developments brought suit
against the mayor of Barceloneta, alleging that he unlawfully
seized and killed their pet cats and dogs.
Id. at 266.
The issue
in dispute was, inter alia, whether the mayor was entitled to
qualified immunity because the complaint, on its face, did not
describe conduct that shocked the conscience.
Id. at 272.
The
court in Maldonado did not hold that a decedent’s heirs have
Civil No. 08-1486 (FAB)
8
standing to sue on their own behalf if the defendant’s conduct
shocks the conscience.
II.
Section 1983 Liability
A prima facie case under section 1983 requires proof of two
elements: that Sustache and Diaz (1) caused Caceres to be deprived
of a right, privilege, or immunity secured by the Constitution or
laws of the United States, (2) while acting under the color of
state law.
Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.
2008).
A.
Alleged Deprivation of Constitutional Rights
Plaintiffs allege that Sustache and Diaz violated their
rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments
of the Constitution.
1.
Each amendment will be addressed in turn.
Fifth and Fourteenth Amendments
The due process clause of the Fifth Amendment of the
United States Constitution 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.
Similarly, the
due process clause of the Fourteenth Amendment states, “nor shall
any state deprive a person of life, liberty, or property without
due process of law.”
Fifth
Amendment
due
U.S. Const. amend XIV. (emphasis added).
process
clause
applies
to
the
The
federal
government, whereas the Fourteenth Amendment due process clause
applies to state governments. Dusenbery v. United States, 534 U.S.
Civil No. 08-1486 (FAB)
161, 167 (2002).
9
Plaintiffs point out that the Supreme Court has
yet to definitively determine whether Puerto Rico is a state or an
arm of the federal government for due process purposes.
No. 394, 1-5.)
(Docket
Nevertheless, it is well established in the First
Circuit that PRPD officers, such as Sustache and Diaz, are state
actors
subject
Amendment.
to
the
Fourteenth
Amendment,
not
the
Fifth
See Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 8
(1st Cir. 2007); Natal-Rosario v. Puerto Rico Police Dep’t., 609
F.Supp.2d 194, 201 (D.P.R. 2009).
Plaintiffs appear to allege that Sustache and Diaz
violated Caceres’ Fourteenth Amendment rights by using excessive
force against Caceres and failing to intervene to prevent Pagan
Civil No. 08-1486 (FAB)
from using excessive force.2
10
(Docket No. 394, 9).
Both theories
are unavailing because allegations of excessive force and failure
to intervene are analyzed exclusively under the Fourth Amendment.
Graham v. Connor, 490 U.S. 386, 395 (1989) (“all claims that law
enforcement officers have used excessive force - deadly or not - in
the course of an arrest, investigatory stop, or other “seizure” of
a free citizen should be analyzed under the Fourth Amendment and
its ‘reasonableness’ standard, rather than under a ‘substantive due
2
Plaintiffs never sufficiently articulated to the Court their
theory of Fourteenth Amendment liability, despite having the
opportunity on separate occasions:
plaintiffs’ response to the
supervisory defendants’ motion to dismiss, plaintiff’s own motion
for partial summary judgment against Pagan and their response to
the Court’s order to show cause. (Docket Nos. 2, 64, 232, 365,
394.) Indeed, the Court stated in a prior opinion that “[c]ounsel
seems to view the Constitution as merely a buffet table of
violations ripe for listing in the complaint, leaving the Court to
fill in the logical blanks.” (Docket No. 329, at 21-22) (quoting
Colon-Andino v. Toledo-Davila, 634 F.Supp.2d 220, 232 n. 31 (D.P.R.
2009))).
The Court has attempted to connect plaintiffs’ factual
allegations with the appropriate constitutional amendment. It is
conceivable that additional theories of liability are available.
But it is not the Court’s obligation to scour the record with the
hope of finding actionable constitutional violations. Nor should
it be: “It is the duty of an attorney to research the law and to
present the court with citations to controlling legal authority”
because “[n]o court, no matter how capable and knowledgeable, can
possibly keep in front of its mind every precedent and statute in
the myriad specialized areas of law.” Vargas v. McNamara, 608 F.2d
15, 19 (1st Cir. 1979)(citing Model Code of Prof’l. Responsibility
Canon 7.). Accordingly, plaintiffs’ arguments are waived to the
extent that the Court may have missed a diamond in the rough. See
Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.
2011).
Civil No. 08-1486 (FAB)
11
process’ approach.”); see Torres-Rivera v. O’Neill-Cancel, 406 F.3d
43, 50-54 (1st Cir. 2005).
Plaintiffs state that Sustache’s and Diaz’s conduct
was shocking to the conscience, and thus actionable under the
Fourteenth Amendment because:
the facts in the case at bar, involving inter alia an
intervention for no legitimate law enforcement purpose,
the summary execution of a citizen for no reason, the
actions of Diaz and Sustache in promoting the
intervention and then failing to stop Pagan, while also
preventing citizens from coming to Mr. Caceres’s aid, the
failure of Sustache and Diaz to procure any medical
assistance to the dying man, the radio call by Diaz, in
front of Sustache, in which she failed to mention the
injuries to the citizen, and the subsequent attempts by
these two defendants to cover up their wrongdoing and to
falsely place blame on Mr. Caceres . . .
(Docket No. 394, 9.) Plaintiffs contention is too little too late.
As previously mentioned, the Court construed plaintiffs’ complaint
as
asserting
allegations
intervene during an arrest.
of
excessive
force
and
failure
to
Claims of excessive force and failure
to intervene are only cognizable by the Fourth Amendment.
Graham,
490 U.S. at 395; Torres-Rivera, 406 F.3d at 50-54; compare Cummings
v.
McIntire,
271
F.3d
341,
344
(1st
Cir.
2001)
(“Claims
of
excessive force by a police officer arising outside the context of
a seizure, and thus outside the Fourth Amendment, are analyzed
under substantive due process principles.”).
Moreover, conscience-shocking behavior may be found
where there is “an extreme lack of proportionality, as the test is
Civil No. 08-1486 (FAB)
12
primarily concerned with ‘violations of personal rights . . . so
severe . . . so disproportionate to the need presented, and . . .
so inspired by malice or sadism rather than a merely careless or
unwise excess of zeal that it amounted to a brutal and inhumane
abuse of official power literally shocking to the conscience.’”
Gonzalez-Fuentes v. Molina, 607 F.3d 864, 881 (1st Cir. 2010)
(quoting Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002).
despite
the
extreme
level
of
conduct
required
to
Yet,
establish
conscience-shocking behavior and plaintiffs’ own recognition that
the
First
Circuit
Court
of
Appeals
has
never
found
conduct
sufficient to satisfy the standard, plaintiffs’ chose not to
accompany their response to the Court’s Order to Show Cause with
evidence regarding Sustache’s and Diaz’s conduct.
As the First
Circuit Court of Appeals has stated, litigants “must give us the
‘raw materials’ (transcripts spring quickly to mind) so we can do
our work, or they may lose as a consequence.”
Rodriguez, 650 F.3d
at 175.
Accordingly, summary judgment is GRANTED in Sustache
and Diaz’s favor with respect to plaintiffs’ claim brought pursuant
to the Fifth and Fourteenth Amendments.
2.
Eighth Amendment
The Eighth Amendment of the Constitution states that
“[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted.”
U.S. Const.
Civil No. 08-1486 (FAB)
amend. VIII.
13
The scope of the Eighth Amendment’s protection
extends to incarcerated convicts.
Graham, 490 U.S. at 395 n. 10,
398 (internal citations omitted); Martinez-Rivera, 498 F.3d at 9.
Plaintiffs concede that the Eighth Amendment is inapplicable in the
instant case.
(Docket No. 394, 5.)
Because Sustache’s and Diaz’s
alleged unconstitutional conduct arises out of an arrest, not while
Caceres
was
incarcerated
after
being
convicted
of
a
crime,
defendants’ motion for summary judgment is GRANTED in Sustache’s
and Diaz’s favor with respect to plaintiffs’ claim brought pursuant
to the Eighth Amendment.
CONCLUSION
For the reasons set forth above, summary judgment is GRANTED
as to plaintiffs’ claims brought against Sustache and Diaz pursuant
to the Fifth, Eighth and Fourteenth Amendment.
IT IS SO ORDERED.
San Juan, Puerto Rico, May 21, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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