Rivera-Colon et al v. Toledo-Davila et al

Filing 152

OPINION AND ORDER granting in part and denying in part 69 MOTION to dismiss Pursuant Rule 12(b)(6) of the Federal Rules of Civil Procedure. Signed by Judge Salvador E Casellas on 3/24/2010.(THD)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO E V E L Y N RIVERA-COLON, ET AL P la in tif f v. P E D R O TOLEDO-DAVILA, ET AL Defendants Civil No. 08-1590(SEC)

O P I N IO N and ORDER B e f o re this Court is a Motion to Dismiss filed by co-defendants, Pedro Toledo (" T o le d o " ), Jose Figueroa Sancha ("Figueroa"), and Wally Matos ("Matos") (Docket # 69), jo in e d by Felipe Ortiz Diaz ("Ortiz"), Benjamin Rodriguez ("Rodriguez"), Francisco Quijano (" Q u ija n o " ), Felix Bauzo ("Bauzo"), Israel Lozada ("Lozada"), Carlos Toledo ("C. Toledo"), E d d i Vicente Rivera ("Rivera"), Carlos Guzman ("Guzman"), Ricardo Gonzalez ("Gonzalez"), C e s a r Ostolaza ("Ostolaza"), Julio Fermaint ("Fermaint"), Enrique Mena ("Mena"), and Eric V e la z q u e z ("Velazquez") (collectively, "Defendants"). Dockets ## 102 & 146. Plaintiffs, E v e lyn Rivera-Colon ("Rivera-Colon"), and her two sons E.P.R. I and E.P.R. II (collectively " P la in ti f f s " ) , opposed.1 Dockets ## 88 & 102. After considering the pleadings and the

a p p lic a b le law, the Motion to Dismiss is hereby GRANTED in part and DENIED in part. Factual and Procedural Background T h is suit makes claims for a series of incidents, which Plaintiffs allege constitute part of a larger pattern of racially motivated police brutality and harassment in the predominantly AfroC a rib b e a n Puerto Rico community of Villa Cañona in the Municipality of Loiza. The allegations a re as follows:

E.P.R. I is a minor of 16 years of age. E.P.R. II is 24 years of age, but he has severe mental disabilities and RiveraC o lo n is his legal guardian.

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P la in tif f s allege that on May 30th , 2007, unidentified Puerto Rico Police Department 3 (" P R P D " ) agents approached E.P.R. I as he was walking down a road near his house and, 4 w ith o u t provocation, struck him in the leg with a nightstick. Docket # 144 at 10. The Complaint 5 a ls o alleges that the officers then followed E.P.R. I 6 " in d is c rim in a te ly pepper spray[ed] through the windows into the house where at least ten people 7 w e re gathered and became affected." Id. Rivera-Colon soon rushed to the scene with her other 8 s o n , E.P.R. II, who Plaintiffs aver has developmental disabilities. The Complaint then narrates 9 th a t the same PRPD officer used pepper spray on E.P.R. II, and when Rivera-Colon intervened 10 o n his behalf, telling them of his disability, she too was sprayed. Id. at 11-12. Plaintiffs allege 11 th a t on this occasion the intervening officers wore face coverings, and concealed the name tags 12 o n their badges.2 Both E.P.R. I and E.P.R. II received treatment at a local health clinic as a 13 re su lt of the incident. Id. Because she felt that at no time she nor her sons threatened the PRPD 14 o f f ic e rs , Rivera-Colon filed an administrative complaint before the Auxiliary Superintendent's 15 O f f ic e of Public Integrity ("PRPD Public Integrity"), which Plaintiffs allege was not 16 in v e stig a te d . 17 Various months later, on August 8, 2007, E.P.R. II was riding his bicycle when agents 18 J o s e Delgado-Ubiles ("Delgado"), Mena, and Velazquez allegedly started to pursue him in their 19 p a tro l car. Id. at 13. The police vehicle allegedly struck E.P.R. II, causing him to fall to the 20 g ro u n d . Id. As the officers exited the vehicle the Complaint avers that neighbors tried to inform 21 D e lg a d o , Mena, and Velazquez about his disability, but the officers handcuffed E.P.R. II and 22 m a d e him lay face-down against the ground. Id. At this point he was allegedly held and beaten. 23 T h e officers then departed, allegedly leaving E.P.R. II on the ground, in pain. After being 24 25 26
The Complaint alleges that these included some combination of Lozada, C. Toledo, Rivera, Guzman, Gonzalez, O s ta la z a , or Fermaint (collectively, "Tactical Agents"). Delgado, Mena, and Velazquez were also PRPD officers assigned to the Tactical Operations Division in the Carolina Area.
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to his aunt's home, where they

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in f o rm e d of the altercation, Rivera-Colon came home to find E.P.R. II injured and distressed. 3 Id . at 14. She then called the PDPR to file a complaint at the Loiza station, and two officers 4 c a m e to take the complaint. E.P.R. II had to receive treatment at the local clinic that evening, 5 a lle g e d ly as a result of Delgado, Mena, and Velazquez's use of excessive force. Id. at 15. 6 A third incident is alleged to have occurred on the morning of March 20, 2008, when 7 E .P .R . II left his house on his bicycle. At the street-corner, he encountered nearly fifteen (15) 8 p o lic e officers for the PRPD's Narcotics Unit, who are alleged to have had their badges and 9 n a m e tags covered. Id. at 16. After seeing the officers, E.P.R. II allegedly started to pedal away 10 in fear, at which point one of the officers yanked him off his bicycle, despite the fact that a 11 n e ig h b o r shouted to the officer that E.P.R. II was disabled. Plaintiffs maintain the officer then 12 p u n c h e d E.P.R. II various times and held him against the ground. Rivera-Colon then came to 13 h e r balcony and began to shout at the officers regarding E.P.R. II's mental disability, but they 14 a lle g e d ly responded by mocking her. When she allegedly told the officers that she had seen 15 th e m before and that they should know of E.P.R. II's disabilities, they threatened her with arrest. 16 Id . at 17. After the situation ended, E.P.R. II once again went to the local health clinic for first 17 a id , and Rivera-Colon filed another administrative complaint, this time with Sgt. Juan Davila 18 (" D a v ila " ). Plaintiffs aver that the police did not have probable cause to intervene with E.P.R. 19 II. Id. at 18. 20 In addition to these incidents, where administrative complaints were filed, Plaintiffs aver 21 th a t the alleged events narrated above constitute part of ". . . a pervasive pattern and practice 22 o f police abuse adopted years ago by members of the Narcotics and Tactical Operations 23 D iv isio n s of the P.R.P.D. in the Carolina area, in which defendants target residents of the Villa 24 C a ñ o n a Community." Id. at 19. 25 26

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T h is is allegedly evidenced by a July 11, 2008, meeting between Matos, community 3 le a d e rs , and various organizations, including the ACLU. Furthermore, Plaintiffs allege that 4 T o le d o and other supervisors should have been aware of the abuse through his weekly meetings 5 w ith Matos and Rodriguez.3 Id. at 20. They also aver, although only specifically in supplemental 6 m o tio n s , that in August of 2007 the Puerto Rico Civil Rights Commission ("the Commission") 7 s e n t a letter to Toledo informing him of its concern regarding alleged acts of police brutality 8 c o m m i t t e d against young people in Villa Cañona, Loiza. The letter also informs Toledo that 9 la w ye rs from the Commission had attended a meeting with residents in July of that year to 10 d isc u s s those concerns. Docket # 39-2. The Commission informed Toledo that PRPD's 11 in te rv e n tio n s ". . . could reflect a pattern of discrimination based on the race and social status 12 o f an underprivileged segment of Puerto Rican society . . ." Docket # 39-2. 13 In light of these facts, which must be considered at face value at this stage, but may be 14 d isp ro v e d at a further point in the case, Plaintiffs have made a series of claims predicated on 15 a lle g e d violations of federal civil rights under 42 U.S.C. 1983 ("Section 1983") and local law. 16 A t the present stage this Court will only discuss Plaintiffs' federal causes of action, which are 17 b a s e d on Section 1983 claims for alleged violations of the United States Constitution. To wit, 18 th e s e include, Plaintiffs' Fourth Amendment right to be free from false arrest and to be free 19 f ro m excessive use of force, substantive due process under the Fourteenth Amendment, and the 20 E q u a l Protection Clause of the Fourteenth Amendment. 21 Defendants have responded to the complaint with the Motion to Dismiss Pursuant to FED. 22 R . CIV. P. 12(b)(6) averring that some of Plaintiffs' claims for monetary damages are barred by 23 24 25 26
As to specific knowledge of the alleged situation in Villa Cañona, Plaintiffs plead: "Aside from the administrative c o m p la in ts filed by plaintiffs in each of the incidents narrated above, during the last year civil rights organizations in Puerto R ic o , including the Puerto Rico Bar Association and the Civil Rights Commission, both requested that defendant Pedro T o le d o -D á v ila investigate the incidents of police abuse in Villa Cañona, and adopt effective measures to stop the practice o f Police abuse against residents of this community." Docket # 144 at 119.
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th e Eleventh Amendment. They also aver that facts of the complaint fail to plead a cognizable 3 c la im for relief under Section 1983 as to the supervisory liability of some defendants, and that 4 P la in tif f s claims under the Fifth, Fourth (for false arrest and excessive force), and Fourteenth 5 A m e n d m ents (equal protection and substantive due process) are also defective. Plaintiffs finally 6 argue that Plaintiffs lack standing to sue, and that, in any event, Defendants are protected by the 7 d o c trin e of qualified immunity. 8 Standard of Review 9 It is well known that, "the general rules of pleading require `a short and plain statement 10 o f the claim showing that the pleader is entitled to relief.'" Gargano v. Liberty Int'l 11 U n d e rw rite rs , 572 F.3d 45, 49 (1st Cir. 2009) (FED. R. CIV. P. 8(a)(2)). The purpose of this is 12 to give a defendant fair notice of the claims against him and their grounds. Id. (citing Bell Atl. 13 C o rp . v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Therefore, 14 " e v e n under the liberal pleading standards of FED. R. CIV. P. 8, the Supreme Court has recently 15 h e ld that to survive a motion to dismiss, a complaint must allege `a plausible entitlement to 16 re lie f .'" Rodríguez-Ortíz v. Margo Caribe, Inc., 490 F.3d 92 (1st Cir. 2007) (citing Twombly, 17 1 2 7 S. Ct. at 1965). 18 " p la u sib ility standard is not akin to a `probability requirement,' but it asks for more than a sheer 19 p o s s ib ility that a defendant has acted unlawfully." Twombly, 127 S. Ct. At 1965; see also 20 A s h c ro f t v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 21 A plaintiff's obligation to "provide the `grounds' of his `entitle[ment] to relief' requires 22 m o re than labels and conclusions, and a formulaic recitation of the elements of a cause of action 23 w ill not do." Twombly, 127 S. Ct. At 1965. That is, "factual allegations must be enough to raise 24 a right to relief above the speculative level, on the assumption that all allegations in the 25 c o m p la in t are true." Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008). Of course, this Court 26 Although complaints do not need detailed factual allegations, the

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n e e d not give credence to ". . .conclusions from the complaint or naked assertions devoid of 3 f u rth e r factual enhancement." Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009) (citing 4 A s h c ro f t v. Igbal, 129 S. Ct. 1937, 1960, 173 L. Ed. 2d 868 (2009)); see also Bell Atl. Corp. 5 v . Twombly, 550 U.S. 544, 557 (2007)). Accordingly, "[t]hreadbare recitals of the elements of 6 a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. 7 a t1 9 4 9 . 8 Applicable Law & Analysis 9 E le v e n th Amendment 10 Defendants argue that Plaintiffs have requested monetary damages against Matos in his 11 o f f ic ia l capacity, as PRPD Chief in the Carolina Area, but that said claim is barred on the basis 12 o f Eleventh Amendment immunity. The Eleventh Amendment protects state officials in their 13 o f f ic ia l capacity from damages actions. The rationale behind this extension of the Eleventh 14 A m e n d m e n t protection is that a claim against a state official in his or her official capacity for 15 m o n e ta ry relief is an action for the recovery of money from the State. Ford Motor v. Dept. of 16 T re a s u ry, 323 U.S. 459 (1945); Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). 17 However, this immunity does not preclude claims for injunctive relief for future actions. 18 R e d o n d o -B o rg e s v. U.S. Dept. Of Housing and Urban Dev., 421 F.3d 1, 7 (1 st Cir. 2005). 19 T h e re f o re all claims for damages against Defendants in their official capacities are 20 D I S M I S S E D with prejudice, but the motion to dismiss as to injunctive relief under the 21 E le v e n th Amendment must be DENIED. 22 Supervisory Liability 23 Besides the Tactical Officers and the Narcotics Officers alleged to have directly 24 in te rv e n e d with Plaintiffs this suit also involves claims against several PRPD employees in their 25 s u p e rv is o ry capacity. To wit, Toledo acted as Superintendent of the PRPD; Ortiz was at the time 26

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o f the Complaint, Auxiliary Superintendent of Field Operations for the PRPD in the Carolina 3 A re a ; Matos and Rodriguez were Chief Commanders of the Carolina Area PRPD department; 4 Q u ija n o acted as Supervisor of the PRPD Tactical Operations Division in the Carolina Area; 5 B a u z o acted as Director of the Narcotics Division for the Carolina Area. Defendants aver that 6 P la in tif f s ' allegations against the abovementioned supervisory Defendants for being 7 " re s p o n s ib le for the actions and policies that led to the events described in this complaint." 8 (C o m p la in t Par. 14 and 18), and that the other defendants acted pursuant to the authority 9 d e le g a te d by Toledo and Matos, do not meet the applicable pleading standards for a Section 10 1 9 8 3 claim. 11 They also correctly point out that there is no respondent superior liability, and 12 s u p e rv is o rs are not automatically liable for the acts those under their command. Carmona v. 13 T o le d o , 215 F.3d 124, 132 (1st Cir. 2000). Under First Circuit case law, "supervisors may only 14 b e found liable on the basis of their own acts or omissions." Febus-Rodriguez v. Betancourt15 L e b ro n , 14 F.3d 87, 91 (1st Cir. 1994). Supervisory responsibility can only constitute a claim 16 u n d e r Section 1983 if "(1) the behavior of [his] subordinates results in a constitutional violation, 17 a n d (2) the [supervisor]'s action or inaction was affirmative[ly] link[ed] to that behavior in the 18 s e n s e that it could be characterized as supervisory encouragement, condonation or acquiescence 19 o r gross negligence amounting to deliberate indifference." Pineda v. Toorney, 533 F.3d 50, 54 20 (1st Cir. 2009)(citing Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir. 1988)). 21 T h e re f o re , for Defendants behavior to equate to a possible violation this Court ". . . must find 22 th a t [the supervisory Defendants] knew of the risk of constitutional violations . . . but failed to 23 ta k e reasonable steps to abate that risk." Rodriguez-Rivero v. Toledo-Davila, 2009 U.S. Dist. 24 L E X IS 102885 (D.P.R. 2009); Burrell v. Hampshire County, 307 F.3d 1, 7-8 (1st Cir. 2002). 25 T h e y also may be liable if they encouraged, condoned, acquiesced, or were deliberately 26

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in d if f e re n t to the behavior of their subordinates, which requires effective notice. Febus3 R o d rig u e z , 14 F.3d at 93. 4 The Complaint does not compellingly plead a racial motivation for the alleged use of 5 e x c e s siv e force, nor does it directly tie these events in to the alleged existence of a larger trend 6 o f profiling, besides the fact that they involve allegations of excessive force in Villa Cañona. 7 Furthermore, nothing in the complaint suggests that high ranking officials were aware of the 8 s p e c if ic incidents involving Plaintiffs. Of course, the public meetings might in some other 9 c irc u m s ta n c e s suffice, but the alleged general trend has only been linked to the events at bar 10 th ro u g h conclusory statements, which simply cannot pass the post-Iqbal standard. What is 11 c o n c e rn in g is that nothing was done at the unit level regarding Rivera-Colon's alleged 12 c o m p la in ts . However, no facts have been pled to indicate that the inaction went far up the chain 13 o f command. Given this, only the immediate supervisors should have plausibly known about 14 th e series of events described in the Complaint. However, it is plausible they might have been 15 w ilf u lly indifferent to the allegedly violent acts of the officers who intervened with Plaintiffs. 16 Moreover, this Court finds that no solid allegations regarding the training of PDPR 17 o f f ic e rs has been proffered. Therefore, no supervisory liability can be found as to Matos, 18 R o d rig u e z , Ortiz, and Toledo, and all Section 1983 claims against them shall be DISMISSED 19 w ith prejudice. Nevertheless, the motion to dismiss as to Quijano and Bauzo for supervisory 20 lia b ility must be DENIED. 21 Fifth Amendment 22 The Fifth Amendment provides that "[n]o person shall... be deprived of life, liberty, or 23 p ro p e rty, without due process of law..." U.S. CONST. AMEND. V. This amendment applies to 24 a c tio n s of the federal government, not those of private individuals, or of state, local or 25 m u n ic ip a l governments. Gerena v. Puerto Rico Legal Services, 697 F. 2d 447, 449 (1 st Cir. 26

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1 9 8 3 ) ; see also Martínez-Rivera v. Sánchez-Ramos, 498 F. 3d 3, 8 (1 st Cir. 2007). The 3 C o m p la in t does not allege that any of the Defendants are federal actors, but instead establishes 4 th a t they are Commonwealth officials acting under color of state law. Accordingly, their claims 5 p u rs u a n t to the Fifth Amendment are hereby DISMISSED with prejudice. 6 Fourth Amendment False Arrest 7 T h e First Circuit has summarized the requirements for a typical false arrest claim as 8 f o llo w s : "(1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of 9 th e confinement; (3) the plaintiff did not consent to the confinement; and (4) the defendant had 10 n o privilege to cause the confinement." Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 n. 6 11 (1st Cir. 1995) ; see also Rodriguez v. Garcia, 403 F.Supp. 2d 174, 177 (D.P.R. 2005). If taken 12 a s true, the facts of the Complaint suggest that Defendants did not have probable cause to 13 in te rv e n e or stop Rivera-Colon, or her two sons, during the various incidents. However, the 14 q u e s tio n remains if such brief interventions can constitute arrests, or confinements. 15 In the case of Rivera-Colon, this Court understands that she was not detained by the 16 a ll e g e d use of pepper spray or threat of arrest. Furthermore, Plaintiffs' citation of Henderson 17 v . Munn, 439 F.3d 497, 503 (8th Cir. 2006), is misleading because the use of pepper-spray came 18 in conjunction with an unquestionable detainment when the Eighth Circuit was addressing the 19 u s e of excessive force. The facts surrounding the third incident involving E.P.R. II are less 20 c le a r, because the Complaint avers that he was pinned down. Nevertheless, this Court finds that 21 th e s e facts are more appropriately addressed under an excessive force claim. Therefore, 22 P la in tif f s ' cause of action for Fourth Amendment false arrest is Dismissed with prejudice. 23 Fourth Amendment Excessive Force 24 E x c e s s iv e force claims ". . . must show that the defendant officer employed force that 25 w as unreasonable under the circumstances." McLeod-Lopez v. Algarin, 602 F.Supp.3d 330, 341 26

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(D .P .R . 2009)(citing Jennings v. Jones, 449 F.3d 2, 11 (1st Cir. 2008)); see also Kentucky v. 3 G ra h a m , 473 U.S. 159, 166 (1985). This is an objective standard, to be determined "in light of 4 th e facts and circumstances confronting [the officer], without regard to their underlying intent 5 o r motivation." Graham, 490 U.S. at 397. This must be judged through the lens of "a reasonable 6 o f f ic e r on the scene." Id. 7 Here, the Complaint has presented three separate incidents, which if true, clearly 8 c o n s titu te the infliction of unnecessary pain on each of the three (3) Plaintiffs, especially E.P.R. 9 I and E.P.R. II. The Complaint avers three separate unprovoked interventions, all involving 10 s o m e sort of violence on the part of the PRPD against Plaintiffs. Furthermore, the use of pepper 11 s p ra y on Rivera-Colon could also have been unreasonable depending on the circumstances. 12 T a k in g the facts of the Complaint as true, she does not appear to have posed an immediate threat 13 to the officers, or been at risk of evading arrest by flight. 14 At present, the allegations are sufficient to establish a Fourth Amendment Claim for 15 e x c e s siv e force. As such, the motion to dismiss on these grounds will be DENIED. 16 Fourteenth Amendment Substantive Due Process Clause 17 F o u rth Amendment excessive force generally supplants Fourteenth Amendment 18 s u b s ta n tiv e due process. That is, "[t]he Supreme Court has held that all claims that law 19 e n f o rc e m e n t officers have used excessive force -- deadly or not -- in the course of ... [the] 20 `se iz u re ' of a free citizen should be analyzed under the Fourth Amendment and its 21 `re a s o n a b le n e s s ' standard, rather than under a `substantive due process' approach." Mcleod22 L o p e z , 603 F.Supp. 2d at 340(citing Graham, 490 U.S. at 395) (internal citations omitted). The 23 th re s h o ld question is whether the behavior is egregious and outrageous enough to shock the 24 c o n te m p o ra ry conscience. Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 53 (1st Cir. 2006). This 25 g e n e ra lly involves the intentional infliction of harm. Id. 26

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H o w e v e r, in the case at bar, Plaintiffs' substantive due process claims are better posed 3 4 s e e also Graham, 490 U.S. at 395. They are thus better analyzed under the Fourth Amendment's 5 re a s o n a b le n e ss standard. Id. This is because ". . . an alternative constitutional claim is available 6 in this case, Plaintiff's substantive due process claims on this front cannot prevail." McLeod7 L o p e z v. Algarin, 603 F.Supp. 2d 330, 340 (D.P.R. 2009). Plaintiffs´ substantive due process 8 c la im s are therefore DISMISSED with prejudice. 9 F o u r te e n th Amendment Equal Protection Clause 10 A n equal protection claim based on alleged racial profiling requires showing ". . . that 11 th e challenged law enforcement practice had a discriminatory effect and was motivated by a 12 13 14 c o m p e llin g ly plead a racial motivation for the alleged use of excessive force. In fact, none of 15 th e three (3) alleged incidents include averments regarding racially disparaging language. The 16 g e n e ra l allegation that Villa Cañona is subject to racial discrimination does not suffice to make 17 a plausible pleading regarding the specific events in this Complaint. This Court finds that such 18 a statement is conclusory in the absence of specific facts to link the general phenomenon to the 19 d isc re e t acts constituting the claim. Furthermore, the allegations are not averted to be connected 20 to any other trends within Puerto Rico. Therefore, this Court shall grant the motion to dismiss 21 o n equal protection grounds, and those claims are therefore DISMISSED with prejudice. 22 23 24 Qualified Immunity 25 26 d isc rim in a to ry purpose." Carrasca v. Pomeroy, 313 F.3d 828, 834 (3rd Cir. 2002); Marshall v. C o l o m b ia Lea Rel'l Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003). The Complaint does not a s excessive force claims. Estate of Bennett v. Wainwright, 548 F.3d 155, 162 (1 st Cir. 2008);

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Q u a lif ie d immunity is an affirmative defense against personal liability which may be 3 4 " p ro v id e s a safe harbor for public officials acting under the color of state law who would 5 o th e rw is e be liable under 42 U.S.C. §1983 for infringing the constitutional rights of private 6 p a rtie s ." Id.; see also Anderson v. Creighton, 483 U.S. 635, 638 (1987). In determining whether 7 a defendant is entitled to qualified immunity, courts shall apply a three-part test: "(1) whether 8 th e plaintiff has alleged a constitutional violation; (2) whether the law was clearly established 9 th a t defendants' action violated a constitutional right of the plaintiff; and (3) whether a 10 re a s o n a b le official would have understood that his actions violated a constitutional right." 11 12 In the case at bar Plaintiffs have presented a valid Section 1983 cause of action against 13 c e rta in Defendants for the use and condonation of excessive force. If true, a reasonable police 14 o f f ic e r, or supervisor, would not have believed that the incidents described above were lawful 15 in light of clearly established law. Therefore, the motion to dismiss on these grounds must be 16 D E N IE D . 17 18 19 20 21 22 23 24 25 26 S /S a lv a d o r E. Casellas S a lv a d o r E. Casellas U .S . District Judge Conclusion B a s e d on the foregoing, Defendants' motion to dismiss is GRANTED in part and D E N I E D in part, and Plaintiff's Fifth and Fourteenth Amendment claims are DISMISSED w ith prejudice, as are all claims against Matos, Rodriguez, Ortiz, and Toledo. IT IS SO ORDERED. S a n Juan, Puerto Rico, this 24th day of March, 2010. R iv e ra -J im é n e z v. Pierluisi, 362 F. 3d 87, 93 (1st Cir. 2004); Jennings, 499 F.3d at 11. ra is e d by state officials. Whitfield v. Meléndez-Rivera, 431 F. 3d 1, 6 (1 st Cir. 2005). It