Lozano-Benitez v. Rivera-Ruiz et al

Filing 34

OPINION AND ORDER granting in part and denying in part 22 MOTION to Dismiss/Lack of Jurisdiction. Signed by Judge Salvador E Casellas on 7/6/2009.(THD)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

O S C A R L. LOZANO BENITEZ (PRO SE), Plaintiff v. Civil No. 08-1766(SEC) H E R M E N E G I L D O RIVERA RUIZ, et als. D e f e n d a n ts

O P I N I O N AND ORDER P en d in g before the Court are Co-defendants Geralda Vázquez Quiñones ("Vázquez"), Jo sé E. Rodríguez Cora ("Rodríguez"), and Hermenegildo Rivera Ruiz's ("Rivera") motion to d ism iss (Docket # 22), and Plaintiff Oscar L. Lozano Benítez's ("Lozano") opposition thereto (D o c k e t # 23). After reviewing the filings, and the applicable law, Co-defendants' motion to d i sm is s is GRANTED in part and DENIED in part. F a c tu a l and Procedural Background P la in t if f filed a Complaint and an Amendment to Complaint (Docket ## 1 & 19) against D e f en d a n ts seeking redress for the privation of rights suffered by him resulting from alleged m is tre a tm en t by Puerto Rico Police Department officers Vázquez, Rodríguez, and Rivera. He a ls o prays for the nullification of three Commonwealth courts judgments in criminal cases a g a in s t him. Plaintiff alleges that these decisions "were based on fabricated evidence and u n la w f u l procedures followed on [sic] the abuse of authority given to the Defendants by reason o f their employment as public officers." See Docket # 1, p. 3. Lozano premised his complaint o n 42 U.S.C. §§ 1983 and 1985, and 18 U.S.C. §§ 241 and 242, arguing that his civil rights w e r e deprived due to a conspiration wielded against him by state officials.

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A f ter several procedural incidents, Defendants filed the present motion (Docket # 22) to

3 d is m is s the complaint on the following grounds: (1) Plaintiff's numerous claims are a matter of 4 s ta te law; (2) federal courts lack jurisdiction to review final judgments of state courts, according 5 to the Rooker-Feldman doctrine 1 ; and (3) this Court cannot entertain Plaintiff's allegations under 6 the collateral estoppel and/or res judicata doctrines. See Docket 22, ¶ 7. 7 Because the pending motion is a motion to dismiss, this Court takes as true all well

8 p lead ed facts contained in the complaint, and draws all reasonable inferences in Plaintiff's favor. 9 A c c o rd in g to the complaint, on the night of July 12, 2007, after being instructed by police

10 to pull over, Lozano stopped his car at a shopping center parking lot in Guayama. The 11 interve n in g officer, Rodríguez, asked Lozano for his documents, while his partners, officers 12 V á z q u ez and Rivera, remained close by. In order to reach for his wallet, Lozano stepped out 13 o f the car and, once outside, asked Rodríguez about the reason for the intervention. Rodríguez 14 s ta te d that Lozano failed to lower his high intensity lights, and to follow orders from a police 15 o f f ic e r while driving. A discussion between the two regarding the correct enforcement of the 16 P u e rto Rico Transit and Vehicle Act, P.R. LAWS ANN. tit XI, § 5002 et seq. (commonly referred 17 to as Law 22,) ensued, and ended with Rodríguez threatening Lozano with arrest. Rodríguez 18 th e n allegedly yelled to officer Vázquez requesting reinforcement, stating that he was not going 19 to arrest "this one alone." See Docket # 19, ¶ 6. Lozano, while showing to Rodríguez his 20 d o c u m e n ts, asked him for his full name and badge number, to which the officer responded, "I'll 21 g ive it to you in the police station once I arrest you." Id. When Lozano tried to get Vázquez's 22 n a m e and badge number, he was allegedly assaulted from behind by members of the Tactical 23 F o r c e Division. He claims that they hit him in the face, arms, ears, and feet, and tried to throw 24 h im down against the pavement. Lozano also recounts that he experienced asphyxia when 25 26
This doctrine was created from two United States Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
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2 T a c tic a l Division officers forcefully grabbed him by the neck. During the alleged attack, Lozano 3 p le d twice to the officers that he would voluntarily go to the police station in order to stop the 4 v io le n c e against him. Notwithstanding, the officers did not stop. In Lozano's account of the 5 ev en ts, when he was finally arrested, the group of officers pushed him against another car, 6 R o d ríg u e z twisted his right arm, tightened the handcuffs, lifted him by the arms, and let him fall 7 to the pavement face down. Once in this position, another officer placed a boot on his face so 8 h e could not see, while one sat on his back, and yet another tightened even more the handcuffs 9 to the point that Lozano could not feel his fingers. 10 A lre a d y sitting inside a police patrol, Rivera took Lozano's car keys and drove his car to

11 th e Salinas police station. Lozano alleges that he was confined in a cell until the early evening 12 o f the next day, without ever receiving medical attention or a reading of the Miranda rights. 13 O f f ic e rs also denied Lozano a telephone call to speak with his family. The only person that was 14 a le rte d of Lozano's whereabouts was his grandfather, Sergio Benítez Viera, when an officer who 15 id e n tif ie d himself as Rodríguez called him using Plaintiff's cell phone. 16 At the police station, Lozano alleges that he saw how the officers that intervened with him

17 a n d claimed to be injured by him waited for more than two (2) hours before leaving to a nearby 18 h o s p ita l to have their wounds checked. During this time, Plaintiff states that Rodríguez 19 c o n d u c te d a search and seizure of his car and personal belongings, filed the transit infraction 20 t ic k e ts and "finally went back to Guayama to Hospital Episcopal Cristo Redentor[,] were he 21 a rriv e d alone to reencounter with officer Vázquez who arrived minutes earlier." See Docket # 22 1 9 , ¶ 11. 23 P la in tif f also claims that on October 4, 2007, at around 6:15 a.m., Rodríguez and a

24 p a rtn e r presented themselves at Lozano's workplace "inspecting all the cars that were entering." 25 S e e Docket # 19, ¶14. This incident happened "after a hearing in which said Co[-] defendant 26 g a v e incorrect information" about his automobile. Id.

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A last episode unfolded on January 27, 2009, when Rodríguez allegedly attempted to

3 f a ls e ly accuse Lozano again. However, the intervention was stopped due to the mediation of 4 R o d ríg u e z 's immediate supervisor "who responsibly made an effort to understand the situation 5 a n d did not give merit" to the accusations. See Docket # 23, ¶ 17(b)(i). Afterwards, Lozano filed 6 a new complaint (Complaint No. 2009-09-27-012) with the Police. Id. 7 8 9 Standard of Review F e d . R. Civ. P. 12(b)(6) T o survive a Rule 12(b)(6) motion, Plaintiff's "well-pleaded facts must possess enough

10 h ef t to show that [they are] entitled to relief." Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 11 2 0 0 8 ).2 In evaluating whether Plaintiff is entitled to relief, the court must accept as true all of 12 h is "well-pleaded facts [and indulge] all reasonable inferences therefrom" in the Plaintiff's 13 f a v o r. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). The First Circuit has held 14 th a t "dismissal for failure to state a claim is appropriate if the complaint fails to set forth factual 15 a lleg a tio n s, either direct or inferential, respecting each material element necessary to sustain 16 rec o v er y under some actionable legal theory." Gagliardi v. Sullivan, 513 F.3d 301, 305(1st Cir. 17 2 0 0 8 ). Courts "may augment the facts in the complaint by reference to documents annexed to 18 th e complaint or fairly incorporated into it, and matters susceptible to judicial notice." Id. at 30519 3 0 6 . However, in judging the sufficiency of a complaint, courts must "differentiate between 20 w e ll- p le a d e d facts, on the one hand, and `bald assertions, unsupportable conclusions, 21 p e rip h ra stic circumlocution, and the like,' on the other hand; the former must be credited, but 22 th e latter can safely be ignored." LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (citing 23 A u ls o n v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)); Buck v. American Airlines, Inc., 476 F. 3d 24 25 26
FED. R. CIV. P. 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to allow the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
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2 2 9 , 33 (1st Cir. 2007); see also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). Thus, Plaintiff 3 m u s t rely in more than unsupported conclusions or interpretations of law, as these will be 4 re je c te d . Berner v. Delahanty, 129 F.3d 20, 25 (1 st Cir. 1997) (citing Gooley v. Mobil Oil Corp., 5 8 5 1 F.2d 513, 515 (1st Cir. 1988)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-1950 6 (2 0 0 9 ) (stating that the doctrine that a court must be compelled to accept as true all of the 7 a lle g a tio n contained in a complaint "is inapplicable to legal conclusions"). 8 Therefore, "even under the liberal pleading standards of Federal Rule of Civil Procedure

9 8 , the Supreme Court has recently held that to survive a motion to dismiss, a complaint must 10 a lle g e `a plausible entitlement to relief.'" Rodríguez-Ortíz v. Margo Caribe, Inc., 490 F.3d 92 11 (1 s t Cir. 2007) (citing Twombly, 127 S. Ct. at 1965). Although complaints do not need detailed 12 f a ctu a l allegations, the "plausibility standard is not akin to a `probability requirement,'but it asks 13 f o r more than a sheer possibility that a defendant has acted unlawfully." Twombly, 127 S. Ct. 14 a t 1965; see also Iqbal, 129 S. Ct. at 1949 (2009). A plaintiff's obligation to "provide the 15 `g ro u n d s ' of his `entitle[ment] to relief' requires more than labels and conclusions, and a 16 f o rm u la ic recitation of the elements of a cause of action will not do." Twombly, 127 S. Ct. at 17 1 9 6 5 . That is, "factual allegations must be enough to raise a right to relief above the speculative 18 le v e l, on the assumption that all allegations in the complaint are true." Parker v. Hurley, 514 F. 19 3 d 87, 95 (1st Cir. 2008). As the following analysis will show, Plaintiff has set forth a complaint 20 u p o n which relief can be granted. 21 22 A p p lica b le Law and Analysis In light of the above mentioned facts, and the applicable standard of review, this Court

23 e x a m in e s the claims brought up by Plaintiff on the following grounds: (1) if Co-defendants 24 p o s s e ss immunity against § 1983 claims; (2) whether there was a state-sponsored conspiration; 25 a n d (3) if the Commonwealth's decisions can be nullified. 26

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T h is Court also underscores the particularity of the present case in which Plaintiff comes

3 f o rth pro se. Therefore, it takes "into account the liberal pleading standards applicable to 4 c o m p la in ts filed by pro se plaintiffs." Watson v. Caton, 984 F.2d 537, 539 (1st Cir. 1993) 5 (c itin g Denton v. Hernandez, 504 U.S. 25, (1992)). Of course, the above statement does not 6 a llo w this Court "to conjure up all conceivable unpled allegations to save a legally baseless 7 c o m p la in t." See McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979). 8 9 Plaintiff's § 1983 claims C o n tra ry to Defendants' Motion to Dismiss (Docket # 22, ¶ 6), the claims made by

10 L o z a n o fall under this Court's jurisdiction. Section 1983 in itself does not confer substantive 11 rig h ts , but provides a venue for vindicating federal rights elsewhere conferred. See Graham v. 12 C o n n o r, 490 U.S. 386, 393-394 (1989). In order to establish liability under § 1983, a plaintiff 13 m u s t first show that "the conduct complained of was committed by a person acting under color 14 o f state law." Gutiérrez Rodríguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989); Saugus v. 15 V o u tou r, 474 U.S. 1100 (1986); Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985). 16 S e c o n d , a plaintiff must show that the defendant's conduct deprived him of his rights,

17 p riv ile g e s or immunities secured by the Constitution or laws of the United States. See Gutiérrez 18 R o d ríg u e z , 882 F.2d at 559. This second prong has two aspects: (1) an actual deprivation of the 19 p lain tiff 's federally protected rights, and (2) a causal connection between the defendant's 20 c o n d u c t and the deprivation of the plaintiff's federal rights. See Gutiérrez Rodríguez, 882 F.2d 21 a t 559; Voutour, 761 F.2d at 819. In turn, this second element of causal connection requires that 22 th e plaintiff establish for each defendant: 1) that the defendant's own actions deprived the 23 p lain tiff of his/her protected rights3 , and 2) that the defendant's conduct was intentional, 24 S im m o n s v. Dickhaut, 804 F.2d 182, 185 (1st Cir. 1986), grossly negligent, or amounted to a 25 26
See Monell v. Department of Social Services, 436 U.S. 658, 694 n. 58 (1978); Gutiérrez Rodríguez, 882 F.2d at 562; and Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir. 1989).
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2 re c k le ss or callous indifference to the plaintiff's constitutional rights. See Gutiérrez Rodríguez, 3 8 8 2 F.2d at 562. 4 P la in t if f avers that Defendants are liable under §1983 because they, as police officers,

5 p a rtic ip a te d in, and witnessed Lozano's arrest. In the particular case of Rodríguez, he used 6 e x c es s iv e force (i.e. violently twisting his arm and causing him to fall on the road) against 7 L o z a n o , and permitted the aggression unleashed on Lozano by the Tactical Force Division. 8 D u r in g these instances, Rivera and Vázquez did nothing to stop this conduct. Given these facts, 9 it is clear that the holding of Graham, 490 U.S. 386, applies to the issue at hand. In this case, 10 th e U.S. Supreme Court stated that: 11 12 13 all claims [in which] law enforcement officers have used excessive force -deadly or not- in the course of an arrest, investigatory stop, or other " se iz u re " o f a free citizen should be analyzed under the Fourth Amendment a n d its "reasonableness" standard, rather than under a "substantive due p ro c e s s " approach.

14 Graham,490 U.S. at 395. 15 T h e re f o re , we must examine Lozano's claim under § 1983 in the light of the Fourth Amendment. 16 17 18 19 T h e U.S. Constitution's Fourth Amendment reads: The right of the people to be secure in their persons [...] and effects, against u n re a so n a b le searches and seizures, shall not be violated, and no Warrants s h a ll issue, but upon probable cause, supported by Oath or affirmation, and p a rtic u la rly describing the place to be searched, and the persons or things to be seized.

20 U.S. CONST. amend. IV. 21 A s stated by Plaintiff, his claims arise from the alleged use of excessive force undertaken

22 b y the police officers who supposedly stopped, arrested, and detained Lozano without reading 23 h im his Miranda rights, or providing any type of medical assistance, and unlawfully searched 24 h is car. The Fourth Amendment "provides an explicit textual source of constitutional protection 25 a g a in s t this sort of physically intrusive governmental conduct [and] must be the guide for 26 an alyzin g these claims." Graham, 490 U.S. at 395 (1989).

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In order to establish a Fourth Amendment violation based on excessive force, a plaintiff

3 m u s t show that the defendant officer employed force that was unreasonable under the 4 c irc u m s ta n c es . Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2008); see also Graham, 490 U.S. at 5 3 9 7 . Whether the force used was fair or unfair "must be judged from the perspective of a 6 re a so n a b le officer on the scene." Graham, 490 U.S. at 396; see also Tavárez-Guerrero v. 7 T o led o -D á v ila, 573 F. Supp.2d 507, 514 (D.P.R. 2008). The unreasonableness inquiry is 8 o b je c tiv e , and should be determined "in light of the facts and circumstances confronting [the 9 o f f ic e r], without regard to their underlying intent or motivation." Graham 490 U.S. at 397. 10 M o r e o v e r, "the facts and circumstances of each particular case, including the severity of the 11 c r im e at issue, whether the suspect poses an immediate threat to safety of the officers or others, 12 a n d whether the suspect poses an immediate threat to the safety of the officers or others, and 13 w h e t h e r he is actively resisting arrest or attempting to evade arrest by flight," are of specific 14 re le v a n ce . Id. at 396. Furthermore, this District has held that "[t]he use of excessive force or 15 re s tra in ts that cause unnecessary pain [...] are unreasonable actions." Tavárez-Guerrero 573 F. 16 S u p p .2 d at 514. See also Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009) (holding that police 17 in c u rs in an unreasonable search of a vehicle when there are no plausible links to believe that 18 the vehicle contains evidence of the offense of arrest). 19 P la in tif f s' claims under § 1983 are tightly grounded. Lozano alleges that he was stopped

20 w ith o u t probable cause despite following the officer's orders, suffered an unwarranted physical 21 a g g r e ss io n , and was denied medical attention, and the appropriate reading of his rights. 22 T h e r e f o r e , this Court concludes that Plaintiff pled a plausible entitlement to relief against 23 D e f e n d a n ts under § 1983, and the Fourth Amendment. As such, Defendants' motion to dismiss 24 o n these grounds is DENIED. 25 26

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L o z a n o also raises a civil conspiracy claim under 42 U.S.C. § 1985 against Defendants

4 w h o allegedly violated his civil rights during the unlawful arrest and detention, and conspired 5 a g a in s t him by fabricating accusations. It is difficult to discern which subsection of § 1985 6 su p p o rts Lozano's claim due to the fact that he does not address it in the complaint, however, 7 a f ter examining both, the section and his allegations, this Court contends that the only applicable 8 su b sec tio n s are (2) and (3).4 9 S e c tio n 1985 dates back to the enactment by Congress of the Thirteenth Amendment to

10 th e U.S. Constitution, as an enforcement vehicle in order to provide black citizens equal 11 p ro te c tio n of the laws, and to rectify preexisting moral and physical inhumanities. Jones v. 12 A lf re d H. Mayer Co., 392 U.S. 409 (1968); see also Heyn v. Board of Sup'rs of Louisiana State 13 U n iv e rs ity, 417 S. Supp. 603 (E.D.La. 1976). This original purpose explains why § 1985 was 14 n o t intended to apply to all tortious interferences with rights of others, but only to those which 15 a r e founded upon some class-based or racial invidiously discriminatory intent. Maida v. Andros, 16 7 1 0 F. Supp. 524 (D.N.J.1988); see also Puentes v. Sullivan, 425 F. Supp. 249 (W.D.Tex.1977); 17 B ra in e rd v. Potratz, 421 F. Supp.836 (N.D.Ill.1976); Western Telecasters, Inc. v. California 18 F ed era tio n of Labor, AFL-CIO, 415 F. Supp. 30 (S.D.Cal.1976). 19 U n d e r § 1985 (2), the act to obstruct justice with the intent to deny equal protection of the

20 la w s is prohibited. 42 U.S.C. § 1985 (2). A claim under this subsection must include allegations 21 that the conspiracy involved " racial, or [...] otherwise class-based, invidiously discriminatory 22 23 24 25 26
"The remaining two categories, however, encompass underlying activity that is not institutionally linked to federal interests and that is usually of primary state concern. The second part of § 1985(2) applies to conspiracies to obstruct the course of justice in state courts, and the first part of § 1985(3) provides a cause of action against two or more persons who "conspire or go in disguise on the highway or on the premises of another." (footnote omitted). Each of these portions of the statute contains language requiring that the conspirators' actions be motivated by an intent to deprive their victims of the equal protection of the laws. Kush v. Rutledge, 460 U.S. 719, 725 (1983).
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2 a n im u s ." Davis v. Township of Hillside, 190 F.3d 167, 171 (3d Cir.1999) (quoting Kush, 460 3 U.S. at 725.). Lozano, in his account of the events, has not shown a racial "discriminatory 4 a n im u s " directed against him. 5 T o state a cause of action under § 1985 (3), plaintiff must show: (1) a conspiracy, (2) a

6 s e t purpose for, either directly or indirectly, depriving any person or class of persons the equal 7 p ro tec tio n of the laws, or of equal privileges and immunities under the laws, (3) an act in 8 f u rth e r a n c e of said conspiracy, and (4) a resulting individual either injured in his person or 9 p ro p e rty or deprived of any right of privilege of citizenship. Griffin v. Breckenridge, 403 U.S. 10 8 8 , 102-103 (1971); see also United Broth. of Carpenters and Joiners of America, Local 610, 11 A F L -C I O v. Scott, 463 U.S. 825, 829 (1983); Cruz Velázquez v. Rodríguez Quiñones, 550 F. 12 S u p p .2 d 243, 251 (D.P.R. 2007) (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)). The 13 f a cts set forth by Lozano in his complaint (Docket ## 1 & 19) do not state, nor even suggest, any 14 o f these four (4) elements. 15 T h i s Court does not deny pro se litigants "the opportunity to state a civil rights claim

16 b ec au se of technicalities." Kauffman v. Moss, 420 F.2d 1270, 1276 (3rd Cir. 1970). However, 17 th e law on this point is clear when it states that in order to uphold a conspiracy plead under these 18 s u b s e c tio n s , the plaintiff must be specific in the facts presented in the allegation. Rossi-Cortés 19 v . Toledo-Rivera, 540 F. Supp.2d 318, 328 (D.P.R. 2008) (citing Rolón v. Rafael Rosario & 20 A s s o c s., 450 F. Supp.2d 153, 159 (D.P.R. 2006)); see also Soto v. Schembri, 960 F. Supp. 751 21 (S .D .N .Y .1 9 9 7 ). Accordingly, a plaintiff must: "(1) expressly claim that an agreement was 22 f o rm e d between conspirators, or (2) make averments of communication, consultation, 23 c o o p e ra tio n , or command from which such an agreement can be inferred." Rossi-Cortés, 540 24 F .S u p p .2 d at 328 (citing Rolón, 450 F. Supp.2d at 159-160). 25 L o z a n o fails to relate specific facts and allegations that this Court could consider to

26 e x a m in e whether the police officers' actions were taken or staged as part of a conspiration to

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2 v io la te his civil rights. If a complaint fails to elaborate or substantiate bald claims that the 3 d e f e n d a n ts conspired with one another, dismissal of the §1985 claims is warranted. Rossi4 C o rtés, 540 F. Supp.2d at 328 (quoting Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir.1980)). 5 C o n se q u e n tly, as the legal conclusions presented by Lozano on this count are insufficient to 6 a lle g e a conspiracy for purposes of this subsection, his claims are hereby DISMISSED with 7 p r e ju d i c e . 8 9 Eleventh Amendment Immunity of officers Rodríguez, Vázquez, and Ruiz P la in tif f 's claims arise from alleged violations committed by Defendants in their official

10 c a p ac ity as officers of the Police Department, an arm of the Commonwealth of Puerto Rico. 11 T h is situation posits an unavoidable question of immunity under the Eleventh Amendent to the 12 U n i te d States Constitution, which states: 13 14 15 U.S. CONST. amend. XI.5 16 A lth o u g h the Eleventh Amendment seems to apply only to suits against a State by citizens 17 o f another State, the Supreme Court has consistently extended the scope of this Amendment to 18 su its by citizens against their own State. See Board of Trustees of the Univ. of Ala. v. Garrett, 19 5 3 1 U.S. 356, 362 (2001); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); 20 H a n s v. Louisiana, 134 U.S. 1, 15 (1890). The Commonwealth of Puerto Rico is not a state, but 21 it enjoys the protection of the Eleventh Amendment. See Jusino-Mercado v. Commonwealth 22 o f Puerto Rico, 214 F.3d 34, 37 (1st Cir. 2000); Ortiz Feliciano v. Toledo-Dávila, 175 F.3d 37, 23 24 25 26
The Supreme Court has established that the Eleventh Amendment protection primarily furthers two goals: the protection of a state's treasury, and the protection of its dignitary interest of not being haled into federal court. Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir. 2003) (citing Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002)).
5

[ t]h e Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the U n ite d States by Citizens of another State, or by Citizens or Subjects of a n y Foreign State.

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2 3 9 (1st Cir. 1999); Futura Development v. Estado Libre Asociado, 144 F.3d 7,12-13 (1st Cir. 3 1 9 9 8 ); Ramírez v. Puerto Rico Fire Servs., 715 F.2d 694, 697 (1st Cir. 1984). 4 T h e Eleventh Amendment bar extends to governmental instrumentalities which are an

5 a rm or "alter ego" of the State. See Ainsworth Aristocrat Int'l Pty. Ltd. v. Tourism Co. of P.R., 6 8 1 8 F.2d. 1034, 1036 (1st Cir. 1987); Ochoa Realty Corp. v. Faría, 618 F. Supp. 434, 435 7 (D .P .R . 1985); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Mt. Healthy 8 C ity Sch. Dist. v. Doyle, 429 U.S. 274, 280-281 (1977); Ursulich v. P.R. Nat'l Guard, 384 F. 9 S u p p . 736, 737-38 (D.P.R. 1974). It also protects state officials in their official capacity. The 10 ra tio n a le behind this extension of the Eleventh Amendment protection is that a claim against a 11 s t a te official in his or her official capacity for monetary relief is an action for the recovery of 12 m o n e y from the State. Ford Motor v. Dept. of Treasury, 323 U.S. 459 (1945); Will v. 13 M ic h ig a n D e p t. of State Police, 491 U.S. 58, 71 (1989). Hence, a claim against a state official 14 in her official capacity for monetary relief is, in essence, a claim against the State. 15 H o w e v e r, Eleventh Amendment immunity is not absolute and may be waived by the state

16 o r "stripped away" by Congress. Metcalf & Eddy v. P.R.A.S.A., 991 F.2d 935, 938 (1st Cir. 17 1 9 9 3 ) . There are four (4) circumstances into which Eleventh Amendment protection unravels: 18 (1 ) when a state consents to be sued in a federal forum; (2) when a state waives its own 19 im m u n ity by statute or the like; (3) when Congress abrogates state immunity ("so long as it 20 s p e a k s clearly and acts in furtherance of particular powers"); and (4) when, provided that 21 c irc u m sta n c e s allow, other constitutional imperatives take precedence over the Eleventh 22 A m e n d m e n t 's protection. Id. at 938 (citations omitted). Despite number two above, the First 23 C i r c u it has held that the fact that a state has waived its immunity to be sued does not 24 a u to m a tic a lly mean that it waived its immunity in federal court. See Díaz-Fonseca

25 v .C o m m o n w e a lth of Puerto Rico, 451 F. 3d 13, 33 (1st Cir. 2006) (holding that although the 26

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2 C o m m o n w e a lth waived its immunity to be sued in certain circumstances in its own courts, it did 3 n o t waive its immunity to be sued in federal court). 4 T h at the Puerto Rico Police Department is an arm or alter ego of Puerto Rico has been

5 e s ta b lis h e d by this district on numerous occasions.6 See, e.g., Nieves-Cruz v. Comm. of P.R., 6 4 2 5 F. Supp. 2d 188, 192 (D. P. R. 2006); López-Rosario v. Police Dept., 126 F. Supp. 2d 167, 7 1 7 0 -17 1 (D.P.R. 2000); Aguilar v. Comm. of P.R., 2006 WL 3000765 at *1; Suárez-Cestero 8 v .P a g á n -R o sa , 996 F. Supp. 133, 142-43 (D.P. R. 1998). Therefore, this Court need not dwell 9 o n this point. As such, Plaintiff's claims against Defendants in their official capacity are 10 D I S M I S S E D with prejudice. 11 12 Q u a lified Immunity of officers Rodríguez, Vázquez, and Ruiz Q u a lif ie d immunity is an affirmative defense against personal liability which may be

13 raised by state officials. Whitfield v. Meléndez-Rivera, 431 F. 3d 1, 6 (1stCir. 2005). It 14 " p ro v id e s a safe harbor for public officials acting under the color of state law who would 15 o th e rw ise be liable under 42 U.S.C. §1983 for infringing the constitutional rights of private 16 p a rtie s." Id.; see also Anderson v. Creighton, 483 U.S. 635, 638 (1987). In determining whether 17 a defendant is entitled to qualified immunity, courts shall apply a three-part test: "(1) whether 18 th e plaintiff has alleged a constitutional violation; (2) whether the law clearly established that 19 d e f e n d a n t's action violated a constitutional right of the plaintiff; and (3) whether a reasonable 20 o f f ic ia l would have understood that his actions violated a constitutional right." Rivera-Jiménez 21 v . Pierluisi, 362 F. 3d 87, 93 (1st Cir. 2004); Jennings, 499 F.3d at 11. 22 23 24 25 26
The Supreme Court requires a two-step analysis in order to determine whether a government institution is an arm or alter ego of the state and thus entitled to immunity under the Eleventh Amendment. Fresenius Med. Care, 322 F.3d at 65 (citing and discussing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994)). First, the court must analyze how the state has structured the government institution and, second, if the "structural indicators point in different directions," the risk of the damages being paid from the public treasury should be assessed. Id. at 65-69.
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A t this stage, this Court has concluded that Lozano pled a viable § 1983 cause of action

3 a g a in s t Defendants. Therefore, this Court cannot conclude that Lozano has failed to allege that 4 D e f e n d a n ts violated his constitutional rights. Moreover, according to the facts of the complaint, 5 R o d ríg u e z , Vázquez, and Rivera should have understood that their actions or omissions 6 c o n stitu ted a violation of Plaintiff's constitutional rights. This Court finds that a reasonable 7 o ff icial would not have believed that the acts allegedly committed by this trio of police officers 8 w ere lawful, in light of clearly established law. Moreover, any reasonable police officer is aware 9 th a t it is unlawful to use violence and excessive force when stopping and arresting an individual, 10 e sp e c ia lly when, as Lozano alleges, he did not show a suspicious behavior, and only questioned 11 o f f ice r Rodríguez about the infraction for which he was detained. See Docket # 19, ¶ 6. At this 12 p o in t, this Court cannot conclude, without making factual determinations, that Rodríguez, 13 V á z q u ez , and Rivera acted reasonably under the circumstances, and are entitled to qualified 14 im m u n ity. Therefore, their motion to dismiss on this ground is DENIED. 15 16 P la in tiff's request to nullify State Court decisions L o z a n o also attempts to nullify three Commonwealth court decisions on the grounds that

17 th e accusations, and verdicts served "were based on fabricated evidence and unlawful 18 p ro c e d u re s." See Docket #1, p.3. In this respect, the law does not favor the relief he is seeking, 19 s in c e the doctrine denies federal district courts from reviewing final judgments of state courts, 20 a power exclusively conferred to the Supreme Court of the United States. Davison, M.D. v. 21 G o v e rn m e n t of Puerto Rico-Puerto Rico Firefighters Corps, 471 F.3d 220 (1st Cir. 2006). The 22 p ro p e r forum for challenging an unlawful state court ruling is the United States Supreme Court, 23 o n appeal from the highest state court's final judgment. Id. at 223. 24 T h e Supreme Court, in Exxon Mobil Corp. V. Saudi Basic Industries Corp., 544 U.S. 280

25 (2 0 0 5 ), held that the lower courts cannot rely on Rooker-Feldman to dismiss a case if the 26 p la in tif f alleges a constitutional violation by an adverse party independent of the injury caused

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2 b y the state court judgment. Id. at 284; see also Todd v. Weltman, Weinberg & Reis Co., 434 3 F .3 d 432, 437 (6th Cir. 2006) (reiterating that Rooker-Feldman does not apply when the Plaintiff 4 co m p lain s of a wrong independent of injuries caused by a related state court judgment). 5 A c c o rd in g to Davison, M.D., 471 F.3d at 223, the "Rooker-Feldman squarely applies when a 6 p la in tif f insists that [the district court] must review and reject a final state court judgment." 7 Additionally, this Court also recognizes that under the well-known doctrines collateral

8 e sto p p e l and res judicata, it cannot entertain Plaintiff's allegations on this matter. Doing so 9 w o u ld necessarily mean changing what has already been decided by a court with jurisdiction, and 10 w h o se judgment is already final and unappealable. As such, Plaintiff's request to nullify state 11 c o u rt decisions is hereby DENIED. 12 13 C o n c lu s io n : In light of the above discussion, Co-defendants' motion to dismiss (Docket # 22) is

14 G R A N T E D in part and DENIED in part. Partial judgment will be entered accordingly. 15 16 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 I T IS SO ORDERED. In San Juan, Puerto Rico, this 6th day of July, 2009.