Rios v. Sanchez-Lizardi et al

Filing 20

OPINION AND ORDER granting 18 Motion to Dismiss. Signed by Judge Salvador E Casellas on 2/10/2010.(THD)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 D e f e n d a n ts J A IM E RIOS Plaintiff

I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO

v. L O U R D E S SANCHEZ-LIZARDI, et al

C iv il No. 09-1788

OPINION & ORDER P e n d in g before the Court is a Motion to Dismiss (Docket # 18), filed by Co-defendants, Sgt. Lourdes Sanchez-Lizardi ("Sanchez-Lizardi") and Sgt. Jose D. Gonzalez-Montanez (" G o n z a le z -M o n ta n e z " ) (collectively, "Defendants"). Plaintiff has not filed a reply, or any o th e r form of opposition. After reviewing the filings, and the applicable law, Defendants' m o tio n to dismiss will be GRANTED for the reasons set forth below. Factual Background A s this case is at the motion to dismiss stage, the facts will be reviewed as presented in th e Complaint. Docket # 1. At the time of the events, Plaintiff worked as a recruiter for the Association of Organized P o lic e (in Spanish, "Asociacion de Policias Organizados")("APO"). Docket # 1 at 1. Plaintiff a lle g e s that on August 5th , 2009, after returning from lunch to his office at APO he overheard a loud discussion between a man and a woman. He entered to find Gonzalez-Montanez ejecting F e lix Plaud ("Plaud") from the premises. Id. at 2. At the same time, Sanchez-Lizardi joined the f ra y and began to shout at Plaintiff telling him that he could not be in the office, and allegedly p u s h e d him several times, causing him to fall and sustain injuries.1 Id. at 3. Gonzalez-Montanez,

T h e type and extent of the injuries has not be described in the Complaint, which does not clearly specify if said in j u r ie s are physical or psychological.

1

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a lle g e d ly, then " . . . grabbed Plaintiff [by] the shoulder and drew his service weapon b ra n d is h in g the weapon in a manner to suggest that if Plaintiff did not leave his place of e m p lo ym e n t he would be shot . . ." Id. Immediately thereafter, Plaintiff alleges that several p la in c lo th e s Puerto Rico Police Department ("PPPD") officers, acting under the direct orders o f Sanchez-Lizardi, were ordered to arrest him.2 Notwithstanding, the Complaint does not d e s c rib e if Plaintiff was in fact arrested, detained, or otherwise accosted by the plainclothes o f f ic e rs . As a result of this incident, Plaintiff claims to have suffered permanent injury and to have s u f f e re d significant emotional distress. Id. at 4. Nevertheless, he does not allege the class or type o f injury that allegedly resulted from the abovementioned situation. The Complaint's final f a c tu a l contention is that: Defendants are both members of the "APO" and act as officers of the Association o f Organized Police, they are/were involve[d] in a disputed fight over the control o f the association for personal gain, they also personal receive income, benefits f ro m the association and placed their financial interest over the act of serving, and p ro te c tin g plaintiff under the laws of the United States and Puerto Rico. Id. at 4.3 A s a result of this incident, Plaintiff brought the present suit under 42 U.S.C. § 1983, a lle g in g violations of his rights under the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the Constitution of the United States of America ("the Constitution"). He also brings a cause o f action under 42 U.S.C. § 1981, and supplemental causes of action under the Constitution of th e Commonwealth of Puerto Rico Art. II, §§ 1 & 7 . Defendants subsequently filed a motion to dismiss alleging that claims against them in their official capacities are barred by the Eleventh

2

T h e Complaint also avers that said officers were on duty at the time of the incident.

S e v e r a l allegations as to the service history of Gonzalez-Montanez and Sanchez-Lizardi also pepper the Complaint, b u t given their irrelevance to the present motion this Court will refrain from reciting them, given their potential to unjustly h a r m the reputations of the abovementioned PRPD officers.

3

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A m e n d m e n t to the Constitution, the Fifth Amendment does not apply to the case at hand, and th e Complaint fails to allege cognizable claims under the Sixth and Eight Amendments and 42 U .S .C . §, Docket # 18 at 2. More importantly, Defendants allege that Plaintiff failed to plead f a c ts averring that Defendants were acting under color of state law, as required by 42 U.S.C. § 1 9 8 3 . Id. Said motion to dismiss was filed on November 23, 2010, but as of this date Plaintiff has n o t filed an opposition, or requested an extension of time to do so. Accordingly, on December, 1 6 , 2009, Defendants filed a motion to adjudicate the motion to dismiss as unopposed. Docket # 19. The Federal Rules of Civil Procedure allow for the allegations included in a motion to be d e e m e d as unopposed if the non-moving party fails to file a proper reply. To wit, Local Rule 7 (b ) states: "Unless within fourteen (14) days after the service of a motion the opposing party f ile s a written objection to the motion, incorporating a memorandum of law, the opposing party s h a ll be deemed to have waived objection." In light of the clarity of the rule's applicability to th e present facts, this Court will evaluate Defendants' motion as unopposed since Plaintiffs f a ile d to reply to said motion within the time allotted by Local Rule 7(b). Standard of Review It is well known that, "the general rules of pleading require `a short and plain statement o f the claim showing that the pleader is entitled to relief.'" Gargano v. Liberty Int'l 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 to give a defendant fair notice of the claims against him and their grounds. Id. (citing Bell Atl. C o rp . v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Therefore, " e v e n under the liberal pleading standards of FED. R. CIV. P. 8, the Supreme Court has recently h e ld that to survive a motion to dismiss, a complaint must allege `a plausible entitlement to re lie f .'" Rodríguez-Ortíz v. Margo Caribe, Inc., 490 F.3d 92 (1st Cir. 2007) (citing Twombly,

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CIVIL NO. 09-1788 (SEC) 1 2 7 S. Ct. at 1965).

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Although complaints do not need detailed factual allegations, the

" p la u sib ility standard is not akin to a `probability requirement,'but it asks for more than a sheer p o s s ib ility that a defendant has acted unlawfully." Twombly, 127 S. Ct. At 1965; see also A s h c ro f t v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A plaintiff's obligation to "provide the `grounds' of his `entitle[ment] to relief' requires m o re than labels and conclusions, and a formulaic recitation of the elements of a cause of action w ill not do." Twombly, 127 S. Ct. At 1965. That is, "factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the c o m p la in t are true." Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008). Of course, this Court n e e d not give credence to ". . .conclusions from the complaint or naked assertions devoid of f u rth e r factual enhancement." Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009) (citing 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. v . Twombly, 550 U.S. 544, 557 (2007)). Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. a t1 9 4 9 . Applicable Law & Analysis Eleventh Amendment Immunity D e f e n d a n ts argue that Plaintiff has failed to state a valid claim against them in their o f f ic ia l capacities because the PPPD, as a Commonwealth of Puerto Rico ("Commonwealth") a g e n c y, is entitled to Eleventh Amendment immunity. The Eleventh Amendment to the United S ta te s Constitution states: [ t]h e Judicial power of the United States shall not be construed to extend to any s u it in law or equity, commenced or prosecuted against one of the United States b y Citizens of another State, or by Citizens or Subjects of any Foreign State.

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U .S . Const. Am. XI. While the text describes states, the Commonwealth is considered a state f o r the purposes of the Amendment. Negron Gaztambide v. Hernandez Torres, 145 F.3d 410 (1 st Cir. 1998). Precedent clearly establishes that the PPPD is an arm or alter ego of the Commonwealth, a n d thus covered by Eleventh Amendment immunity. Id. Furthermore, the protection extends to state officials in their official capacity because, ". . .a claim against a state official in [his or h e r] official capacity for monetary relief is, in essence, a claim against the State." M c L e o d -L o p e z v. Algarin, 603 F. Supp. 2d 330, 343 (D.P.R. 2009). This immunity can be w a iv e d , but Plaintiff does not allege, nor does case law suggest, that any waiver applies to the p r e se n t facts. Therefore, all claims against Defendants in their official capacities are hereby D IS M IS S E D . Miscellaneous Claims Plaintiff has essentially alleged that law enforcement officers used excessive force a g a in st him as the consequence of internal conflicts regarding APO's leadership. Such claims s h o u ld be analyzed under the Fourth Amendment and its "reasonableness" standard. Id.; see also G ra h a m v. Connor, 490 U.S. 386, 395; Tavarez-Guerrero v. Toledo-Davila, 573 F. Supp. 2d 5 0 7 , 512 (D.P.R. 2008). Except for the claim of excessive force in violation of the Fourth A m e n d m e n t, Plaintiff's allegations under the Fifth, Sixth, Seventh, and Eighth Amendments c a n n o t prosper. Given they are facially invalid, these claims will be discussed only very cursorily as to n o t waste judicial resources analyzing frivolous pleadings. To wit, the Seventh Amendment p ro v id e s for the right to a jury in civil cases. Plaintiff undoubtedly has the right to request a jury tria l in the present action, but his claim certainly does not arise as a result of the violation of said rig h t. Furthermore, the Fifth Amendment only applies to federal actors, not employees of the

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C o m m o n w e a lth . McLeod-Lopez, 603. F.Supp. at 338. The Sixth Amendment provides the right to a speedy trial and to confront witnesses in criminal proceedings. None of the facts involved a llu d e to any criminal proceedings, or charges brought against plaintiff, thus, it is impossible to understand how Plaintiff's claims could arise under the Sixth Amendment. Finally, the Eighth A m e n d m e n t's proscription of cruel and unusual punishment, clearly does not apply to the case a t bar, because Plaintiff has not alleged that alleged that ". . . he was convicted and imprisoned, a f t e r a formal process of adjudication, and subjected to unnecessary and wanton infliction of p a in as punishment." Id. Plaintiff's invocation of 42 U.S.C. § 1981 is also unrelated to the alleged facts, as this c a s e does not involve the right to make contracts, equal access to judicial process, full benefits u n d e r the law, or racial discrimination. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 4 7 4 -4 7 5 (2006)(holding "Among the many statutes that combat racial discrimination, § 1981, o rig in a lly § 1 of the Civil Rights Act of 1866, 14 Stat. 27, has a specific function: It protects the e q u a l right of `all persons within the jurisdiction of the United States' to `make and enforce c o n tra c ts ' without respect to race."). As the Complaint makes no mention of racial motives, c o n tra c ts , or judicial process, it is thus, nearly impossible to imagine any relationship between th e aforementioned statute and the present controversy. This Court has been brief in dismissing the above claims, because it is baffled why P la in tif f 's counsel included these clearly frivolous causes of action. Any further discussion of th e same would constitute an inefficient use of judicial resources. Not all claims can be expected to prosper, or even have a probability of success, but at minimum a pleading's alleged facts s h o u ld reflect the laws under which it prays for relief. In the future, Plaintiff's counsel should ta k e more care in preparing accurate pleadings, and is as such ADMONISHED. See FED. R. C IV. P. 11(b)(2).

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CIVIL NO. 09-1788 (SEC) S ta te Action

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Defendants allege that this claim must be dismissed because the Complaint does not p le a d facts showing that Defendants were acting under the color of state law. Establishing a re c o v e ra b le § 1983 claim requires the satisfaction of two basic elements: (1) that a government o f f ic ia l, acting under the color of state law, (2) has caused the depravation of a federal right. B u rk e v. Town of Walpole, 405 F.3d 66, 76 (1st Cir. 2005) (citing Kentucky v. Graham, 473 U .S . 159, 166 (1985)). Furthermore, there is no respondeat superior liability under § 1983 ; e a c h defendant must be directly liable on the basis of his or her own acts or omissions. Ayala-Rodriguez v. Rullan, 511 F.3d 232, 236 (1st Cir. 2007). Additionally, "the conduct a lle g e d to have caused the violation must also be intentional or recklessly indifferent to the p la in tif f 's federal statutory or constitutional right." Gonzalez v. Toledo, Civ. No. 08-1869, 2009 U .S . Dist. LEXIS 57489 (D.P.R. June 16, 2009). The First Circuit has affirmed that, private violence between government employees g e n e ra lly does not constitute state action. Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 4 4 9 (1st Cir.1997)(citing Martinez v. Colon, 54 F.3d 980, 985 (1st Cir. 1995) (finding "Private v i o l e n c e -- even private violence engaged in by one who happens to work for the state -- has d if f e re n t legal ramifications than violence attributable to state action.")). This is because state a c tio n requires an act, "under pretense of law when an individual imbued with official authority p u rp o rts to exercise that authority when actually acting wholly outside of it." Id. Thus, there is th e question of, whether the actor could have performed in the manner under question without th e authority of his or her office. Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir. 1 9 9 9 )(c itin g Martinez, 54 F.3d at 986). Answering this question requires assessing the totality of the circumstances, both as to th e particular facts of the conduct in question and the relationship of said conduct to the duties

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o f a specific government employee. Id. at 125-126. In the case of a police officer, the courts m u s t go beyond merely asking, "whether an officer stays strictly within the line of duty, or o v e rste p s it." Id. (citing Martinez, 54 F.3d at 986)(internal citations omitted). However, purely p riv a te brawls, even those involving officers of the law, do not constitute state action. Z a m b ra n a -M a rre ro , 172 F.3d at 126. Even in personal feuds the courts have asked whether, "the o f f ic e r was on duty, in uniform, patrolling in his cruiser, and he relied on his authority as a p o lic e officer to stop the decedent and demand his license and registration." Id. (alluding to B a rre to -R iv e ra v. Medina-Vargas, 168 F.3d 42, 45 (lst Cir. 1999)). Nevertheless, . . . when the victim is himself a fellow officer and the particular interaction b e tw e e n the two officers is of a distinctively personal nature, it can generally be a s s u m e d that the aggressor's official trappings, without more, will not lead the v ic tim to believe that the aggressor is acting with the imprimatur of the state and, in turn, to forgo exercising his legal rights. M a rtin e z , 54 F.3d at 988. Therefore, asking if the officer entered into the dispute, or was an original participant is a n o th e r important point to analyze in understanding the totality of the circumstances. Id. at. 127. T h is helps understand if an officer, ". . . exercise[d], or purport[ed] to exercise, any power (real o r pretended) possessed by virtue of state law. . . [,] related either to his official status or to the p e rf o rm a n c e of his police duties. " Id. at 987. T h e present case appears to have originated with a dispute between different factions w ith in APO. The animosity between members and employees of APO was personal in nature, a n d their actions to intimidate Plaintiff and throw him out of the office reflect personal motives in their private roles as members of APO. Plaintiff clearly alleges that the officer's personal in te re s t in APO, not their role as police officers, led them to be aggressive with him. Docket # 1 at 4. While not a police officer, Plaintiff had a private professional relationship with G o n z a le z -M o n ta n e z and Sanchez-Lizardi, suggesting that the alleged aggression, if it in fact

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o c c u rre d , was of a personal nature. Plaintiff has not opposed this assertion, nor was GonzalezM o n ta n e z pushing Plaintiff or threatening him commiserate with the exercise of official a u th o rity, where the context and motivation for the threats were, apparently, purely private. APO is not a state agency, and Gonzalez-Montanez and Sanchez-Lizardi were certainly original participants, not intervening officers. As to the orders allegedly given to arrest Plaintiff, th e re is no indication that he was actually arrested, or otherwise detained, and therefore cannot h a v e suffered injury via malicious prosecution. Furthermore, no cause of action has been pled u n d e r the Fourteenth Amendment, which would be the proper remedy for such a claim. If true, th e facts included in the Complaint suggest a private conflict, not under the color of state law. A n y constitutional violations, as alleged, have not ". . .raise[d] a right to relief above the s p e c u la tiv e level . . ." Iqbal, 129 S. Ct. at1949 . Therefore, Plaintiff's 42 U.S.C. § 1983 claims w ill hereby be DISMISSED WITHOUT PREJUDICE for want of action under the color of s ta te law. Supplemental Claims F in a lly, this Court will dismiss the Commonwealth law causes of action brought pursuant to supplemental jurisdiction. Dismissal of said claims is proper once all federal claims have b e e n disposed of in non-diversity cases such as the present. Newman v. Burgin, 930 F.2d 955, 9 6 3 (1st Cir. 1991) ("[t]he power of a federal court to hear and to determine state-law claims in non-diversity cases depends upon the presence of at least one `substantial' federal claim in th e lawsuit."); see also Rivera v. Murphy, 979 F.2d 259, 265 (1st Cir. 1992); Lares Group, II v . Tobin, 221 F.3d 41, 45 (1st Cir. 2000). Accordingly, Plaintiffs' supplemental law claims will b e DISMISSED WITHOUT PREJUDICE.

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For the reasons explained above, Defendants' Motion to Dismiss is hereby GRANTED. P la in tif f s ' claims under the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments to the C o n s titu tio n , and under 42 U.S.C. § 1981 and 42 U.S.C. § 1983, are hereby DISMISSED W I T H O U T PREJUDICE. Judgement shall be entered to this effect. IT IS SO ORDERED. In San Juan, Puerto Rico, this 10th day of February, 2009. S / Salvador E. Casellas S A L V A D O R E. CASELLAS U n ite d States District Judge