Brenes-LaRoche v. Toledo-Davila et al

Filing 38

ORDER granting 26 Motion to Dismiss. Signed by Judge Juan M Perez-Gimenez on 5/17/2011. (ASJ)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO

ABDERRAMAN BRENES-LAROCHE
Plaintiff,
v.

CIV. NO. 08-1815(PG)

PEDRO TOLEDO-DAVILA, ET AL.
Defendants.

OPINION AND ORDER
Plaintiff Abderraman Brenes-La Roche brought this action for
damages against several supervisory and on-the-field officers of the
Puerto Rico Police Department (“Defendants”) under 42 U.S.C. § 1983 for
constitutional violations of the Fourth Amendment allegedly stemming from
the use of excessive force. Plaintiff also pleads supplementary claims
under Puerto Rico law for assault and battery, false arrest, and
restriction of liberty. Before the Court is Defendants’ Motion to Dismiss
(Docket No. 26) for failure to execute summons as required by FED. R.
CIV. P. 4(m). For the reasons set forth below, the Court GRANTS the
Motion to Dismiss.

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Page 2

I. Background
A. Factual Background

The Court draws the following facts from Plaintiff’s Complaint
and takes them as true for purposes of resolving Defendants’ Motion
to Dismiss.
On or about August 4, 2007, Plaintiff attended a protest at a
construction project known as Paseo Caribe as a “legal observer”
assigned by the Colegio de Abogados de Puerto Rico. He accompanied
a group of demonstrators, including his son, to the fourth floor of
a parking building at the site, where they were met with about a
dozen members of the Puerto Rico Police Department’s San Juan
Tactical Operations Unit (“SJTOU”). The officers closed off all
means
of egress from the fourth floor and announced that the
demonstrators would have to leave but only by one of two means:
either jumping from the fourth floor or running through a wall of
baton-wielding police. Plaintiff and the demonstrators sat down on
the floor whereupon the officers “immediately began to
indiscriminately beat the seated demonstrators.” (Compl. ¶ 28.)
More specifically, defendant Merky Vazquez Santos (“Vazquez”)
hit Plaintiff’s son with the metal tip of his baton; Plaintiff was
jabbed in his mid-section with the metal tip of a baton belonging
to either Vazquez or another officer whose name is yet unknown
(“Doe”); and Plaintiff received a sharp blow on his right wrist
from Doe while Vasquez and other officers hit and kicked him in
various parts of his body. (Compl. ¶¶ 29-35.) Vasquez, Doe, and
other officers, acting in concert, used physical force to confine
him. Plaintiff continued to receive sharp blows as he left the
building through an opening allowed by the officers. As a result of
the physical injuries sustained, Plaintiff suffered an oblique bone
fracture, bruises, and soft tissue swelling on his left wrist.
Plaintiff also advanced claims against supervisory officers
Pedro Toledo, Jose Caldero, Benjamin Rodriguez, Walter Rivera, and
Eric Serrano (collectively,“supervisory officers”). Plaintiff
alleges that the supervisory officers are also liable for their

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Page 3

participation in deploying SJTOU the day of the beatings while
being aware of SJTOU’s use of unlawful and excessive force.
Furthermore, Plaintiff states that the supervisory officers
were aware of the SJTOU’s custom, practice, and policy of removing
their identification when using unlawful force, but failed to
enforce regulations requiring police to display their
identification when in uniform. Additionally, Plaintiff claims that
Toledo, Caldero, Rodriguez, and Rivera failed to properly train and
supervise their subordinates and to discipline them for using
unlawful force to disperse demonstrators. These acts and omissions,
Plaintiff believes, also proximately caused his injuries.
B. Procedural Background
The instant complaint was filed on July 24, 2008. Defendants filed
their first motion to dismiss pursuant to Federal Rule of Civil Procedure
4(m) on December 4, 2008. (Docket No. 8). Said motion was denied on July
23, 2009, and the Puerto Rico Police Department was ordered to provide
Plaintiff with information pertaining to the unknown defendant Doe.
(Docket No. 18). Defendants then filed a Motion for Reconsideration on
July 29, 2009, which was denied on August 19, 2009. Defendants again
filed their Motion to Dismiss pursuant to Fed. R. Civ. P. 4(m) on January
19, 2011. Plaintiff never responded to said motion. On February 17, 2011,
Plaintiff was granted five days to respond to Defendants’ Motion to
Dismiss. Plaintiff again failed to respond.
Defendants also filed a Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6) on December 4, 2008. Said motion was granted
in part and denied in part. More specifically, Plaintiff’s section 1983
claims pursuant to the Fifth and Fourteenth Amendments for substantive
due process violations were dismissed without prejudice. Plaintiff’s
section 1983 claim of unlawful detention pursuant to the Fourth Amendment
was also dismissed without prejudice. However, Plaintiff’s section 1983
claim of excessive force pursuant to the Fourth Amendment, Plaintiff’s
supervisory liability claims and
and state-law claims remained.

Plaintiff’s Puerto Rico constitutional

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II. Standard of Review
A. Rule 12(b)(4) and 12(b)(5)
Federal Rule of Civil Procedure 12(b)(4) and 12(b)(5) allow a
party to assert a defense of insufficient process or insufficient
service of process. These defenses may be waived if not timely
asserted. Williams v. Jones, 11 F.3d 247, 251 (1st Cir. 1993)(citing
Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 996 (1st Cir.1983). “A
party filing a motion under Rule 12(b)(4) or Rule 12(b)(5) is
essentially contesting the manner in which process or service of
process was performed. Therefore, the Court refers to the rules
governing service of process.” Boateng v. Inter-American Univ. of
P.R., 188 F.R.D. 26, 27 (D.P.R. 1999).
Federal Rule of Civil Procedure 4(m) states “[i]f a defendant is
not served within 120 days after the complaint is filed, the court-on
motion or on its own after notice to the plaintiff-must dismiss the
action without prejudice against the defendant or order that service
be made within a specified time.”
Rule 4(m) further states “... if the plaintiff shows good cause
for the failure, the court must extend the time for service for an
appropriate period.” Fed. R. Civ. P. 4(m). “It is appellant's burden
to demonstrate the requisite cause.” De-La-Cruz-Arroyo v. Commissioner
of Social Sec., No. 97-2378, 1998 WL 1285621 (1st Cir. 1998) (citing
United States v. Ayer, 857 F.2d 881, 884-85 (1st Cir. 1988).
Additionally, inadvertence is insufficient to require a district court
to grant an extension. Id.
III. Discussion
A study of the procedural background in the instant case reveals
that Plaintiff has had ample time to discover the name of defendant
Doe and serve him with process. Furthermore, Plaintiff failed to
comply with this Court’s Order to respond to the Motion to Dismiss by
February 23, 2011. (Docket No. 35)
Plaintiff had previously stated that he was unable to serve

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Page 5

process on the unknown defendant because he was unaware of his name.
Plaintiff has had in his possession the names of the police officers
that went to fourth floor of Paseo Caribe parking garage on the day of
the events alleged in the complaint since March 2009. In light of
these factors, as well as the fact that these proceedings were
commenced on July 24, 2008, the Court finds no reason to deny
Defendants’ Motion to Dismiss.
As a result, the Court GRANTS Defendants’ request for dismissal
of the suit against the unknown defendants.
IV. CONCLUSION
For the reasons explained above, the Court GRANTS Defendants’
Motion to Dismiss. Plaintiff’s suit against the unknown defendants is
hereby DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, May 17, 2011.

S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
U.S. DISTRICT JUDGE.