Diaz-Colon et al v. Toledo-Davila et al
Filing
170
OPINION AND ORDER re 123 Motion to Dismiss; and re 155 Report and Recommendation. The Court ADOPTS IN PART and REJECTS IN PART the magistrate judge's recommendations. All federal claims against defendants Jose Fuentes-Agostini, Pedro Toled o-Davila, Anibal Solivan-Solivan, Daniel Colon, Hector Tirado, Jose Figueroa and Jose Capo are DISMISSED WITH PREJUDICE. The section 1983 claims against defendants Francisco Baez-Quinones, Jesus Figueroa-Cruz and Gabriel Redondo under the Fourteenth Amendment are also DISMISSED WITH PREJUDICE. Signed by Judge Francisco A. Besosa on 02/08/2013. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSE LUIS DIAZ-COLON, et al.,
Plaintiffs,
v.
CIVIL NO. 09-1835 (FAB/MEL)
PEDRO TOLEDO-DAVILA, et al.,
Defendants.
CARMELO VELAZQUEZ-COLON, et al.,
Plaintiffs,
v.
CIVIL NO. 10-1097 (FAB/MEL)
JOSE FUENTES-AGOSTINI, et al.,
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is Magistrate Judge Marcos E. Lopez’s Report
and
Recommendation
defendants’
motion
(“R&R”),
to
(Docket
dismiss,
No.
(Docket
No.
155),
123),
supplement to motion to dismiss, (Docket No. 129).
judge recommends that
Fuentes-Agostini,
concerning
and
their
The magistrate
all federal claims against defendants Jose
Pedro
Toledo-Davila,
Anibal
Solivan-Solivan,
Daniel Colon, and Jose Capo be DISMISSED WITH PREJUDICE and all
state claims against them be DISMISSED WITHOUT PREJUDICE.
The
magistrate judge also recommends that all federal claims against
defendants Hector Tirado and Jose Figueroa be DISMISSED WITH
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
2
PREJUDICE, and all state claims be DISMISSED WITHOUT PREJUDICE with
respect to them in Velazquez-Colon v. Fuentes-Agostini in Civil
Case No. 10-1097 (D.P.R. filed Feb. 8, 2010).
No dismissal is
recommended for defendants Tirado and Figueroa with respect to
Diaz-Colon
v.
Toledo-Davila,
Civil
No.
09-1835
(D.P.R.
Aug. 21, 2009), because they are in default in that case.
filed
The
magistrate judge also recommends that only the 42 U.S.C. §§ 1983,
1988 claims
against
defendants
Francisco
Baez-Quiñones,
Jesus
Figueroa-Cruz and Gabriel Redondo under the Fourteenth Amendment
should be DISMISSED WITH PREJUDICE, but not the claims under the
Fourth Amendment or the state claims, over which the Court has
supplemental
jurisdiction.
Having
considered
the
plaintiffs’
response to the supplemental motion to dismiss filed in VelazquezColon v. Fuentes-Agostini, Civil Case No. 10-1097, the magistrate
judge’s
recommendations,
(Docket
No.
155),
the
defendants’
objections to the R&R, (Docket No. 161), the plaintiffs’ opposition
to
the
defendants’
objections,
(Docket
No.
166),
and
the
defendants’ reply to the plaintiffs’ opposition, (Docket No. 169),
the Court ADOPTS IN PART and REJECTS IN PART the findings and
recommendations of the magistrate judge.
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
3
DISCUSSION
I.
Procedural Background
On August 21, 2009, the plaintiffs1 filed a complaint against
the
defendants2
for
violations
of
the
Fourth
and
Fourteenth
Amendments to the U.S. Constitution pursuant to 42 U.S.C. §§ 1983,
1988 (“section 1983” and “section 1988”), and claims arising under
article II, sections 7, 8, and 10 of the Constitution of the
Commonwealth of Puerto Rico, and Articles 1802 and 1083 of the
Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141, 5142
(2012).
(Docket No. 1.)
The first set of plaintiffs filed an
amended complaint on November 9, 2009.
(Docket No. 8.)
In a
1
The first set of plaintiffs in this case are Jose Luis DiazColon, on his own behalf and on behalf of his minor son, J.L.D.R.;
Linda Delgado, on behalf of her minor daughter, D.M.D.D.; Zoraida
Colon-Cartagena; Pedro Diaz; Pedro Luis Diaz-Colon; Yahaira Enid
Diaz-Colon; the Estate of Leopoldo Sanabria-Diaz, comprised of his
minor children, J.L.S.D., J.L.L.S.D, and L.S.D.; Alberta DiazCarballo; Leonardo Sanabria-Diaz; Jennifer Piris-Jusino, on her own
behalf and on behalf of her minor daughter, G.R.P.; and Lucy
Guzman-Borrero (“first set of plaintiffs”).
2
The defendants in this case are Pedro Toledo-Davila
(“Toledo”), Anibal Solivan-Solivan (“Solivan”), Hector Tirado
(“Tirado”), Daniel Colon (“Colon”), Francisco Baez-Quiñones
(“Baez”), Jesus Figueroa-Cruz (“Figueroa-Cruz”), Jose FuentesAgostini (“Fuentes”), the Estate of Ulpiano Crespo (“Crespo”),
Gabriel Redondo (“Redondo”), Jose Figueroa (“Figueroa”), Jose Capo
(“Capo”), and Zoe Diaz-Colon (“Diaz-Colon”).
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
4
separate case, a second set of plaintiffs3 filed a complaint on
February 8, 2010 against the same twelve individuals who are
defendants in the 2009 case for violations of the Fourth, Eighth,
and Fourteenth Amendments pursuant to sections 1983 and 1988 and
claims arising under the same provisions of Puerto Rico law.4
Complaint, Velazquez-Colon v. Fuentes-Agostini, Civil Case No. 101097 (D.P.R. filed Feb. 8, 2010).5
The two cases were consolidated
on September 1, 2010. (Docket No. 54.)
In both cases, the
plaintiffs voluntarily dismissed their Fourteenth Amendment Due
Process claims as to all defendants.
(Docket No. 124 at 1 n.1.)
Defendants Colon, Capo, Figueroa, Redondo, Tirado, Fuentes,
Toledo,
Solivan,
Baez,
and
Figueroa
Cruz
(collectively,
“defendants”) filed a motion to dismiss, as well as a supplement to
the motion to dismiss.
(Docket Nos. 123 & 129.)
All plaintiffs
from the consolidated case filed a response in opposition. (Docket
3
The second set of plaintiffs in this case are Carmelo
Velazquez-Colon, Carmelo Colon-Rivera, Orlando Colon-Velazquez,
Orlando Ramos-Felix (“Ramos”), Josefa Felix, Jose Antonio Felix,
Eliseo Ramos-Felix, Hector Julio Merced-Gomez, Juan Marcos MercedGomez, Hector Merced-Rodriguez, Maria E. Gomez-Velazquez, Leopoldo
Sanabria-Morales, Maribel Ortiz-Vazquez on behalf of minor
J.M.S.O., Ana Luisa Diaz-Rivera, Yolanda Ortiz-Diaz, Evelyn OrtizDiaz, Luis Daniel Ortiz-Diaz, Digno Ortiz-Diaz, and Francis I.
Lopez-Diaz (“second set of plaintiffs”).
4
Some names and statutes were referred to incorrectly in the
complaints, but the Court will only refer to the correct names and
statutes. (See Docket 155 at p. 2 nn.1-5 (explaining the errors).)
5
Hereinafter “Civil Case No. 10-1097.”
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
No. 124.)
5
On November 16, 2012, Magistrate Judge Lopez issued an
R&R on those motions.
(Docket No. 155.)
On December 10, 2012, the
defendants filed objections to portions of the R&R.
No.
161.)
On
January
22,
2013,
the
plaintiffs
filed
opposition to the defendants’ objections to the R&R.
No. 166.)
(Docket
their
(Docket
Additionally, on January 22, 2013, the plaintiffs filed
a response to the supplemental motion to dismiss in Civil Case
No. 10-1097.6
(Civil Case No. 10-1097 at Docket No. 26.)
On
February 4, 2012, the defendants filed a reply in response to the
plaintiff’s opposition to defendants objections to portions of R&R.
(Docket No. 169.)
II.
Factual Background
The Court declines to rehash all of the facts.
Instead, it
provides a brief overview of the facts, and will supply more
details as needed. At the motion to dismiss stage, Federal Rule of
Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) requires the court to
6
In this motion, plaintiffs contend that defendants have not
complied with discovery requests, and, therefore, that the
plaintiffs’ request for admissions should be treated as true for
the motion to dismiss. (Civil Case No. 10-1097 at Docket No. 26 at
p. 2 & add. 2.) At the motion to dismiss stage, however, unless
the Court converts the motion to dismiss to a motion for summary
judgment, the Court considers only the facts alleged in the
complaint. Fed.R.Civ.P. 12; Alt. Energy, Inc. v. St. Paul Fire &
Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). Further, the
Court will not consider a motion to resolve a discovery dispute
until counsel have exhausted attempts to resolve the issue
themselves. See Loc. Rule 26(b).
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
6
accept “the well-pleaded facts as they appear in the complaint,
extending [the] plaintiff every reasonable inference in his [or
her] favor.”
Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 34
(1st Cir. 2002); see also Fed.R.Civ.P. 12(b)(6).
The factual
allegations in the complaints in both cases substantially overlap.
(Docket No. 8; Civil Case No. 10-1097 at Docket No. 1.)
The non-
conclusory factual allegations are taken as true at the motion to
dismiss stage.
Beginning on August 2, 1995, Zoe Diaz-Colon was a confidential
informant for the Criminal Investigations Corps of Guayama (“CIC”),
which is a Puerto Rico Police Unit.
(Docket No. 8 at ¶ 3.17; Civil
Case No. 10-1097 at Docket No. 1 at ¶ 51.)
In May or June 1988,
defendant Figueroa-Cruz, a police officer, and defendant Capo, a
Puerto Rico District Attorney, discussed Diaz-Colon’s testimony
regarding several unsolved murders.
(Docket No. 8 at ¶¶ 3.10,
3.15, 4.1-4.2; Civil Case No. 10-1097 at Docket No. 1 at ¶ 33.)
Defendant Capo then requested subordinate prosecutors to take DiazColon’s statements under oath and file charges against the people
identified as murderers.
(Docket No. 8 at ¶ 4.2; Civil Case
No. 10-1097 at Docket No. 1 at ¶ 33.)
Diaz-Colon gave several statements under oath to defendant
Figueroa in the presence of defendant Baez, a police officer.
(Docket No. 8 at ¶¶ 3.10, 4.3; Civil Case No. 10-1097 at Docket
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
No. 1 at ¶¶ 34-36.)
7
Her statements provided facts sufficient to
find probable cause for murder charges against several individuals
in connection with the unrelated murders of Julio Antonio Peña
(“the Peña case”), Rafael Colomba-Ortiz (“the Colomba case”), and
Edgard Mariani-Cordero (“the Mariani case”).
(Docket No. 8 at
¶¶ 3.10, 4.3; Civil Case No. 10-1097 at Docket No. 1 at ¶¶ 34-36.)
In the Colomba case, Diaz-Colon identified Leopoldo Sanabria-Diaz,
Lourdes
de
murderers.
Jesus-Velazquez,
and
Orlando
Ramos-Felix
as
the
(Docket No. 8 at ¶ 4.5; Civil Case No. 10-1097 at
Docket No. 1 at ¶ 39.)
In the Peña case, Diaz-Colon identified
Jose Luis Diaz-Colon, Hector Julian Merced, Aneudi Rivera,7 Domingo
Martinez, and Manuel Ortiz-Diaz as the murderers. (Docket No. 8 at
¶ 4.7; Civil Case No. 10-1097 at Docket No. 1 at ¶¶ 34-36, 40.)
Diaz-Colon also made a statement in the Mariani case, in which she
identified Pablo Torres (“Torres”) and Jorge Vives (“Vives”) as the
murderers.
(Docket No. 8 at ¶ 4.9; Civil Case No. 10-1097 at
Docket No. 1 at ¶¶ 34-36.)
7
District Attorney Capo instructed
Plaintiff Rivera was living in Rochester, New York, and was
not present in Puerto Rico when the Peña murder occurred. (Docket
No. 8 at ¶¶ 4.15-4.17.) Plaintiff Rivera returned to Puerto Rico
when he heard he had been charged, and his attorney showed he was
not present in the jurisdiction when the crime occurred. (Docket
No. 8 at ¶¶ 4.16-4.18.) Defendant District Attorney Crespo said he
would not pursue charges against him. (Docket No. 8 at ¶ 4.18.)
The charges against plaintiff Rivera, however, were never dropped.
(Docket No. 8 at ¶ 4.18.)
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
defendant
Figueroa
to
present
Diaz-Colon’s
8
statements
to
the
Guayama Division of the Court of First Instance of the Commonwealth
of Puerto Rico (“Guayama Court”).
(Docket No. 8 at ¶ 4.10; Civil
No. 10-1097 at Docket No. 1 at ¶ 33.)
The judge issued arrest
warrants for everyone implicated in her statements.8
(Docket No. 8
at ¶ 4.10.)
During pretrial proceedings in the Peña and Colomba cases, the
criminal
defendants
repeatedly
requested
discovery
of
all
exculpatory evidence, including contracts or agreements with DiazColon.
(Docket No. 8 at ¶ 4.19; Civil Case No. 10-1097 at Docket
No. 1 at ¶ 42.)
No discovery was provided before trial, and in a
status conference in the Colomba case, the prosecution denied that
Diaz-Colon had been offered immunity.
(Docket No. 8 at ¶ 4.19.)
The prosecution in the murder cases first turned over the police
reports and notes indicating who had contradicted Diaz-Colon’s
statements on the day of the opening arguments in the Colomba case.
(Docket No. 8 at ¶ 4.22; Civil Case No. 10-1097 at Docket No. 1 at
¶ 44.)
8
The prosecution told the Court the files had been lost but
On January 22, 1999, Diaz-Colon made another sworn
statement. She indicated that Jose Manuel Luna (“Luna”) was also
involved in the Peña murder, but that she did not mention him
before because he had threatened to kill her. (Docket No. 8 at
¶ 4.8.) After the preliminary hearings in the Peña and Mariani
cases, the judge did not find probable cause to indict Luna or
Torres. (Docket No. 8 at ¶ 4.11.)
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
were recently located.
9
(Docket No. 8 at ¶ 4.22; Civil Case No. 10-
1097 at Docket No. 1 at ¶ 44.)
Plaintiffs Diaz, Merced, and Ortiz were convicted for Weapons
Law Violations, Conspiracy, and Murder in the First Degree in the
Peña case, and were each sentenced to 110 years of imprisonment.
(Docket No. 8 at ¶ 4.23; Civil Case No. 10-1097 at Docket No. 1 at
¶ 45.) Plaintiffs Sanabria, Ramos, and Velazquez were convicted of
Weapons Law Violations, Conspiracy, and Murder in the First Degree
in the Colomba case, and were each sentenced to 108 years of
imprisonment.
(Docket No. 8 at ¶ 4.25; Civil Case No. 10-1097 at
Docket No. 1 at ¶ 47.)
Vives was acquitted of all charges
following a jury trial in the Mariani case.
(Docket No. 8 at
¶ 4.25.)
Sixteen days after his conviction, Ortiz committed
suicide.
(Docket No. 8 at ¶ 4.24; Civil Case No. 10-1097 at Docket
No. 1 at ¶ 46.)
On May 5, 2011, Diaz-Colon recanted her testimonies in the
Peña, Colomba, and Mariani cases.
(Docket No. 8 at ¶ 4.28; Civil
Case No. 10-1097 at Docket No. 1 at ¶ 48.)
She said that she did
not have personal knowledge of any of the murders; that she gave
the statements because defendants Baez and Figueroa-Cruz exerted
pressure on her; and because defendants Crespo and Redondo offered
her money, a house, an asthma therapy machine, and assistance with
recovering custody of her children.
(Docket No. 8 at ¶ 4.28; Civil
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
10
Case No. 10-1097 at Docket No. 1 at ¶¶ 33,48-50.)
When she
recanted, Diaz-Colon stated that police officers conducted at least
ten review sessions with her, where they showed her photographs of
the criminal defendants, took her to the crime scenes, and showed
her diagrams reflecting the positions of the corpses.
(Docket
No. 8 at ¶ 4.28; Civil Case No. 10-1097 at Docket No. 1 at ¶ 49.)
In addition, she stated that she memorized scripted testimony.
(Docket No. 8 at ¶ 4.28; Civil Case No. 10-1097 at Docket No. 1 at
¶ 49.)
The defendants learned that Diaz-Colon was a paid informant
and that she had been paid for her testimony in their cases for the
first time when she recanted on May 5, 2011.
(Docket No. 8 at
¶ 4.29; Civil Case No. 10-1097 at Docket No. 1 at ¶¶ 48, 51.)
In
addition, a narcotics agent, Jorge Diaz-Rivera provided a statement
that Diaz-Colon was known for providing false information about
criminal activity and that she had diminished mental capacity.
(Docket No. 8 at ¶ 4.30.)
In addition, he said he warned defendant
Baez that they were all going to look foolish if they prosecuted
plaintiff Velazquez.
Plaintiff
(Docket No. 8 at ¶ 4.30.)
Velazquez moved for a
new
trial
based
information in Diaz-Colon’s and Diaz-Rivera’s statements.
on
the
(Docket
No. 8 at ¶ 4.30; Civil Case No. 10-1097 at Docket No. 1 at ¶ 52.)
During the hearing on the motion, the paymaster in charge of paying
Civil No. 09-1835 and Civil No. 10-1097 (FAB/MEL)
11
the informants admitted that a Puerto Rico prosecutor asked him to
provide a copy of Diaz-Colon’s contract for the Colomba case and
that he sent the contract to the District Attorney’s office.
(Docket No. 8 at ¶ 4.31.)
Defendant Baez also testified that the
police files were always available in the CIC and had never been
lost. (Docket No. 8 at ¶ 4.31.)
Defendant Crespo admitted that he
had lied about losing the files on the first day of trial.
(Docket
No. 8 at ¶ 4.31.)
The Guayama court denied the motion for retrial, and Sanabria
committed suicide thereafter.
(Docket No. 8 at ¶¶ 4.31, 4.32;
Civil Case No. 10-1097 at Docket No. 1 at ¶¶ 52, 53.)
On appeal,
the Puerto Rico Supreme Court reversed the trial court’s decision
and ordered a new trial.
(Docket No. 8 at ¶ 4.33; Civil Case
No. 10-1097 at Docket No. 1 at ¶ 54.)
The court found that the
prosecution withheld critical impeachment evidence when they did
not reveal that Diaz-Colon was a paid informant or turn over the
police files in the Colomba case until the first day of trial.
(Docket No. 8 at ¶ 4.33; Civil Case No. 10-1097 at Docket No. 1 at
¶ 54.)
On either February 2, 2009 or February 10, 2009, the Guayama
Court dismissed all of the criminal charges against plaintiffs
Diaz, Merced, Ortiz, Sanabria, Ramos, and Velazquez. (Docket No. 8
at ¶ 4.34; Civil Case No. 10-1097 at Docket No. 1 at ¶ 55.)
These
Civil No. 09-1835 and 10-1097 (FAB/MEL)
12
plaintiffs were actually released from jail and received their
final notification of the judgments on October 1, 2009.
(Civil
No. 10-1097 at Docket No. 1 at ¶ 55.)
II.
Legal Standards
A.
Standard under 28 U.S.C. § 636(b)(1)
A district court may refer a case to a magistrate judge
for a report and recommendation.
See 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b); Loc. Rule 72(b).
Any party adversely affected
by the report and recommendation may file written objections within
fourteen days of being served with the magistrate judge’s report.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Loc. Rule 72(d).
A
party that files a timely objection is entitled to a de novo
determination
of
“those
portions
of
the
report
or
specified
proposed findings or recommendations to which specific objection is
made.”
Fed.R.Civ.P. 72(b); Loc. Rule 72(d); Sylva v. Culebra Dive
Shop, 389 F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States
v. Raddatz, 447 U.S. 667, 673 (1980)).
rule precludes further review.
Failure to comply with this
See Davet v. Maccorone, 973 F.2d
22, 30-31 (1st Cir. 1992); Templeman v. Chris Craft Corp., 770 F.2d
245, 247 (1st Cir. 1985).
In conducting its review, the court is
free to “accept, reject, or modify, in whole or in part, the
findings
28
or
U.S.C.
recommendations
§
636
made
(b)(1)(C);
by
Alamo
the
magistrate
Rodriguez
v.
judge.”
Pfizer
Civil No. 09-1835 and 10-1097 (FAB/MEL)
Pharmaceuticals,
Inc.,
286
F.Supp.2d
13
144,
146
(D.P.R.
2003).
Furthermore, the Court may accept those parts of the report and
recommendation
to
which
the
parties
do
not
object.
See
Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 6 (D.P.R. 2005)
(citing Lacedra v. Donald W. Wyatt Det. Facility, 334 F.Supp.2d
114, 125 (D.R.I. 2004)).
B.
Standard Under Rule 12(b)(6) Motion to Dismiss
Pursuant to Rule 12(b)(6), the Court can dismiss a
complaint that fails to state a claim upon which relief can be
granted.
Fed.R.Civ.P.
12(b)(6).
When
assessing
whether
a
plaintiff’s complaint provides “fair notice to the defendants” and
states “a facially plausible legal claim,” the Court must utilize
a two-pronged approach.
See Ocasio-Hernandez v. Fortuño-Burset,
640 F.3d 1, 11-12 (1st Cir. 2011).
First, the Court can disregard
statements that “offer legal conclusions couched as fact,” because
the plaintiff must do more than “parrot the elements of the cause
of action.”
Id. at 12.
Second, the Court is bound to treat all
“properly pled factual allegations” as true and draw all reasonable
inferences in the plaintiffs’ favor.
Id.
The Court must base its
determination solely on the material submitted as part of the
complaint and expressly incorporated within it.
See Alternative
Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33
(1st Cir. 2001).
Civil No. 09-1835 and 10-1097 (FAB/MEL)
14
The factual material pled must be sufficient “to raise a
right to relief above the speculative level,” and to permit the
Court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Ocasio-Hernandez, 640 F.3d
at 12 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
The
Supreme Court has held that a plaintiff’s pleading must cross “the
line between possibility and plausibility.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 577 (2007).
A district court should not
attempt to forecast the likelihood of success even if proving the
alleged facts is “improbable.”
Id. at 556.
A complaint that
contains a plausible basis for relief, therefore, “may proceed even
if it appears that a recovery is very remote and unlikely.”
at 556 (internal citation omitted).
its
judicial
experience
complaint’s plausibility.
and
Id.
The trial court must draw “on
common
sense”
in
evaluating
the
Grajales v. P.R. Ports Auth., 682 F.3d
40, 44 (1st Cir. 2012) (internal citation omitted).
III. Legal Analysis
The defendants move for dismissal of all claims against them.
First, they argue that they were sued in their official capacity
and are entitled to Eleventh Amendment immunity.
Second, they
contend that some of the plaintiffs bringing claims do not have
standing. Third, they argue that the claims have expired under the
applicable statute of limitations.
Fourth, they contend that the
Civil No. 09-1835 and 10-1097 (FAB/MEL)
plaintiffs
fail
to
plead
any
claims
15
sufficiently,
malicious prosecution under the Fourth Amendment.
including
Fifth, the
defendants argue that the plaintiffs fail to plead a claim for
conspiracy under the Fourth Amendment sufficiently.
prosecutor
defendants
contend
that
as
Sixth, the
prosecutors,
they
are
entitled to absolute immunity for their actions.
Seventh, all
defendants,
by
including
prosecutors
not
shielded
absolute
immunity, contend that they are protected by qualified immunity.
Finally, the defendants argue that the state claims should be
dismissed for lack of supplemental jurisdiction.
Nos. 123 & 129.)
A.
(See Docket
The Court addresses each argument in turn.
Eleventh Amendment Immunity
Defendants Fuentes, Capo, Toledo, Solivan, and Tirado
argue that they were sued in their official capacity and are
entitled to Eleventh Amendment immunity.9
p. 34.)
(Docket No. 123 at
Often, when a suit is brought against a state official, it
is considered a suit against the state, which triggers Eleventh
Amendment
immunity.
U.S.
Const.
Amend.
XI;
Asociacion
de
Subscripcion Conjunta del Seguro de Responsabilidad Obligatorio v.
9
The Eleventh Amendment provides that “[t]he 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 United
States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. Const. Amend. XI.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
16
Flores Galarza, 484 F.3d 1, 24 (1st Cir. 2007).
It is well-settled
law, however, that section 1983 suits against state officials in
their personal or official capacity may proceed so long as the
plaintiff is not seeking compensation from state funds.
See
Edelman v. Jordan, 415 U.S. 651, 677 (1974); Ex Parte Young, 209
U.S. 123, 167 (1908).
Defendants in that type of suit do not
receive Eleventh Amendment protection.
See id.
The Court finds that the defendants’ arguments regarding
Eleventh Amendment immunity are unavailing.
Both the amended
complaint in Diaz-Colon v. Toledo-Davila, Civil No. 09-1835, and
the complaint in Velazquez-Colon v. Fuentes-Agostini, Civil Case
No. 10-1097 state that the moving defendants are only being sued in
their
individual
capacity,
and
plaintiffs
are
not
seeking
compensation from state funds. (Docket No. 8 at ¶¶ 3.7-3.15; Civil
Case No. 10-1097 at Docket No. 1 at ¶¶ 21-28.)
Defendants Fuentes,
Capo, Toledo, Solivan, and Tirado were not sued in their official
capacity; therefore, the magistrate judge is correct in finding
that there is no Eleventh Amendment immunity for these defendants.
Accordingly, the Court ADOPTS the magistrate judge’s recommendation
and DENIES the motion to dismiss on Eleventh Amendment immunity
grounds.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
B.
17
Standing
The
defendants
collectively
argue
that
many
of
the
plaintiffs do not have standing to bring claims under section 1983
because relatives of victims of constitutional violations do not
have standing.
(Docket No. 123 at pp. 21-23.)
The only federal
claims that the relatives bring, however, are on behalf of the
heirs of Ortiz and Sanabria, who are now deceased.
(Docket No. 8
at ¶¶ 5.20-5.30; Civil Case No. 10-1097 at Docket No. 1 at ¶¶ 99103; 111-15.)
Section 1983 does not address whether or not the
members of an estate can bring a cause of action under the statute.
The question of whether the members of an estate can bring a
section 1983 claim is governed by section 1988, which the Supreme
Court has interpreted as providing that survivorship issues are
determined by state law.
See Rivera v. Medina, 963 F.Supp. 78, 84
(D.P.R. 1997) (citing Robertson v. Wegmann, 436 U.S. 584 (1978)).
In this case, the law of Puerto Rico governs whether members of an
estate can bring the cause of action.
See id. (looking to Puerto
Rico law to determine if a section 1983 claim of depravation of
life without due process of law is inheritable).
The Court finds that the plaintiffs who are members of an
estate have standing to bring a section 1983 claim.
Puerto Rico
explicitly allows the members of an estate to bring a survivorship
action in tort.
See Widow of Delgado v. Boston Ins., 1 P.R. Offic.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
18
Trans. 823, 834-35 (1973); see also Rivera, 963 F.Supp. at 84
(“Case law indicates that § 1983 actions base[d] on deprivation of
life without due process of law under the Fourteenth Amendment are
inheritable under Puerto Rico law.”).
heirs,
therefore,
have
inherited
section 1983 claims in this case.
Ortiz’s and Sanabria’s
the
right
to
bring
the
Because the remaining relatives
brought claims under Puerto Rico law, and not under federal law,
the defendants’ section 1983 standing arguments do not apply to
those
relatives.
recommendation
and
The
Court
DENIES
the
ADOPTS
the
motion
to
magistrate
dismiss
on
judge’s
standing
grounds.
C.
Statute of Limitations
Defendants argue that plaintiffs’ section 1983 claim must
be dismissed because the statute of limitations has run.
It is
undisputed that the statute of limitations for plaintiffs’ section
1983 claims is one year, borrowed from the Puerto Rico personal
injury statute of limitations. (Docket No. 123 at pp. 9-10; Docket
No. 124 at p. 7); see also Chevere-Rodriguez v. Pagan, 114 F.App’x.
412, 414 (1st Cir. 2004).
The one-year clock begins to run the day
after the accrual of the cause of action, which federal law
determines is the date “when the plaintiff knows, or has reason to
know, of the injury on which the action is based.”
Id.; Rivera-
Muriente v. Agosto-Alicea, 959 F.2d 349 (1st Cir. 1992). Different
Civil No. 09-1835 and 10-1097 (FAB/MEL)
19
causes of action will have different accrual dates because the
expectation of when the plaintiff knew or should have known of the
injury will vary depending on when all of the elements for the
claim are established.
(1st Cir.
See Nieves v. McSweeney, 241 F.3d 46, 52
2001).
The plaintiffs and defendants disagree over the date of
accrual.
The defense contends that the accrual date is based on a
cause of action for false arrest, while the plaintiffs argue that
the statute of limitations for malicious prosecution applies.10 The
plaintiffs’ claims are for malicious prosecution.
Thus, the Court
agrees with the plaintiffs.
The plaintiffs correctly argue that the accrual for their
section 1983 malicious prosecution claim is “the termination of the
antecedent criminal proceedings.”
(citing Nieves, 241 F.3d at 51.)
(Docket No. 124 at pp. 7-8
The defendants, however, state
that the accrual date occurs when “the aggrieved person ‘knows, or
has reason to know, of the injury on which the action is based.’”
(Docket No. 123 at p. 10 (citing Rivera-Muriente v. Agosto-Alicea,
10
Malicious prosecution involves “wrongfully instituting legal
process,” Harrington v. City of Nashua, 610 F.3d 24, 30 (1st Cir.
2010), whereas false arrest involves “detention without legal
process,” Wallace v. Kato, 549 U.S. 384, 389 (emphasis in
original).
The elements of malicious prosecution include the
termination of a criminal action in the plaintiffs’ favor, but
termination is not an element of false arrest. See, e.g., BarrosVillahermosa v. U.S., 642 F.3d 56, 58 (1st Cir. 2011).
Civil No. 09-1835 and 10-1097 (FAB/MEL)
20
959 F.2d 349, 353 (1st Cir. 1992)).) Alternatively, the defendants
state that “the statute of limitations upon a section 1983 claim
seeking damages for a false arrest . . . where the arrest is
followed by criminal proceedings, begins to run at the time the
claimant becomes detained pursuant to the legal process.”
No. 123 at p. 11 (citing Wallace, 549 U.S. at 397).)
(Docket
Because the
defendants are arguing that the statute of limitations for false
arrest applies rather than the malicious prosecution statute of
limitations, they state the wrong accrual date.
Because the
plaintiffs’ claims are for section 1983 violations of malicious
prosecution, (Docket No. 8 at ¶ 4.1; Civil Case No. 10-1097 at
Docket No. 1 at ¶ 31), they could not have brought the claims until
the criminal actions terminated in their favor.
The Court finds that the statute of limitations has not
run as to the complaints filed by either set of plaintiffs.
The
termination of criminal action in the plaintiffs’ favor occurred
when the Guayama Court dismissed all charges against Jose Luis
Diaz-Colon, Merced, Ortiz, Sanabria, Ramos, and Velazquez.
The
first set of plaintiffs state that this occurred on February 2,
Civil No. 09-1835 and 10-1097 (FAB/MEL)
2009.11
(Docket No. 8, ¶ 4.34.)
21
The first set of plaintiffs filed
their initial complaint on August 21, 2009, which is well within
the one-year statute of limitations period.
(Docket No. 1.)
Therefore, the statute of limitations does not bar the first set of
plaintiffs’ claims.
The second set of plaintiffs did not file their complaint
until
February
8,
February 2, 2009.
2010,
which
is
more
than
one
year
after
(Civil Case No. 10-1097 at Docket No. 1.)
According to that complaint, however, the dismissal of all charges
took place on February 10, 2009, and the notification of the
dismissal order took place on October 1, 2009.
Id. at ¶ 55.
The
defendants only cite to the first set of plaintiffs’ complaint to
support
their
contention
that
the
charges
were
dismissed
on
February 2, 2009, but the defendants do not address the second date
in their motion.
11
(Docket No. 123 at p. 4.)
At the Rule 12(b)(6)
The two complaints consolidated in this case indicate that
the charges were dismissed on different days. Because the facts
pled are taken as true at the motion to dismiss stage, the Court
will evaluate the statute of limitations based on the date alleged
in each complaint for each set of plaintiffs. At later stages in
the case, the Court can consider additional evidence regarding the
correct date the charges were dismissed and revisit the statute of
limitations argument. See Fed.R.Civ.P. 56(c) (stating a court may
grant summary judgment if “the pleadings, depositions, answers to
interrogatories, and admissions of file, together with the
affidavits, if any, show there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.”).
Civil No. 09-1835 and 10-1097 (FAB/MEL)
22
motion to dismiss stage, the non-conclusory allegations of the
complaint are accepted as true. Therefore, as the magistrate judge
found, the second set of plaintiffs’ claims are also not barred by
the statute of limitations because they were filed within one year
after the charges were dismissed as to all plaintiffs.
The Court
ADOPTS the magistrate judge’s recommendation and DENIES the motion
to dismiss on statute of limitations grounds.
D.
Section 1983 Malicious Prosecution Claims
Section 1983 provides a cause of action for a plaintiff
to
bring
a
civil
claim
against
a
person
who
violates
their
constitutional rights while acting under the color of state law.
42 U.S.C. § 1983.
Section 1988 outlines how the claims brought
under section 1983 will proceed procedurally; it also indicates
what law will govern the claim.
42 U.S.C. § 1988.
The First
Circuit Court of Appeals has “assume[d] without deciding that
malicious prosecution can, under some circumstances, embody a
violation of the Fourth Amendments and thus ground a cause of
action under section 1983.” Moreno-Medina v. Toledo, 458 F.App’x.
4, 7 (1st Cir. 2012); see also Nieves, 241 F.3d at 54.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
1.
23
Defendants Colon, Fuentes, Solivan, Tirado, and
Toledo
a.
Personal Liability for Malicious Prosecution
Defendants Colon, Fuentes, Solivan, Tirado, and
Toledo argue that plaintiffs’ malicious prosecution claims are not
sufficient to sustain a section 1983 cause of action.
As the court
discussed earlier, however, the plaintiffs’ complaint only needs to
be a “short and plain statement” with enough detail to give the
defendant “fair notice of what the . . . claim is and the grounds
upon which it rests.”
Fed. R. Civ. P. 8(a); Twombly, 550 U.S.
at 555. To show entitlement to relief, “[f]actual allegations must
be enough to raise a right to relief above the speculative level on
the assumption that all of the complaint’s allegations are true.”
Twombly 550 U.S. at 555.
Statements that “offer legal conclusions
couched as fact” can be disregarded because the plaintiff must do
more
than
“parrot
the
elements
of
the
cause
Ocasio-Hernandez, 640 F.3d at 12 (1st Cir. 2011).
of
action.”
Facts that are
non-conclusory, however, must be treated as true, even if they seem
unbelievable.
Iqbal, 556 U.S. at 681.
If the facts taken as true
“allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged,” the claim is
plausible enough to withstand a Rule 12(b)(6) motion to dismiss.
Id. at 678.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
24
The first set of plaintiffs only allege that
defendants Colon, Fuentes, Solivan, Tirado, and
Toledo “displayed
a reckless or callous indifference” to the rights of citizens they
encountered, including the plaintiffs.
4.37.)
(Docket No. 8 at ¶¶ 4.36-
The second set of plaintiffs only assert that Colon,
Fuentes, Solivan, Tirado, and Toledo gave their “acquiescence,”
provided a “lack of supervision,” and “displayed a reckless or
callous indifference to the rights” of the plaintiffs. (Civil Case
No. 10-1097 at Docket No. 1 at ¶¶ 31, 57-58.)
The facts pled in
the complaints do not mention any words or actions by these five
defendants.
Both complaints contain only conclusory assertions to
meet the elements of the cause of action, and are unsupported by
any real factual allegations with respect to Colon, Fuentes,
Solivan, Tirado, and Toledo. In Morales v. Toledo, the court found
that
the
plaintiff
failed
to
plead
a
section
1983
claim
sufficiently under the Fourteenth Amendment because the plaintiff
only alleged that the defendant failed to supervise and train
police officers properly.
court
indicated
that
the
See 638 F.Supp.2d 168, 175 (2009).
complaint
lacked
additional
The
factual
allegations to link the defendant’s inaction to a constitutional
violation.
See Morales, 638 F.Supp.2d at 175.
Similarly, in this
case, where there are no facts alleged to show a plausible link
between
the
plaintiffs’
failure
of
supervision,
reckless
Civil No. 09-1835 and 10-1097 (FAB/MEL)
25
indifference, or acquiescence to any constitutional violation, the
conclusory statements are not enough to sustain a section 1983
claim
against
the
defendants
in
their
personal
capacity.
Therefore, the Court ADOPTS the magistrate judge’s recommendation.
The malicious prosecution claims against these five defendants are
DISMISSED.
b.
Supervisory Liability
Supervisory liability cannot be used to attach
liability for malicious prosecution to these defendants either.
Plaintiffs admit that respondeat superior is not a viable theory
under section 1983.
(Docket No. 124 at p. 15 (citing Rodriguez-
Ramos v. Hernandez-Gregorat, 685 F.3d 24, 41 (1st Cir. 2012)).)
Only
“persons
who
have
actually
abused
their
positions
of
authority, and hence only persons who were directly involved in the
wrongdoing may be held liable.”
Cordero-Suarez v. Rodriguez, 689
F.3d 77, 82 (1st Cir. 2012) (internal citation omitted).
At least
one other court in this district has found that “[m]erely alleging
that a supervisor failed to train his subordinates is patently
insufficient to establish a [s]ection 1983 claim against the
supervisor.” Rossi-Cortes v. Toledo-Rivera, 540 F.Supp.2d 318, 325
(D.P.R.
2008).
identify
any
In
factual
Rossi-Cortes,
support
for
the
plaintiff’s
failure
to
the
supervisory
defendant’s
alleged failure to train or a link between the alleged failure to
Civil No. 09-1835 and 10-1097 (FAB/MEL)
train
and
the
alleged
actions
to
26
violate
the
plaintiff’s
constitutional right was insufficient to sustain a section 1983
claim based on supervisory liability.
540 F.Supp.2d at 324.
Similarly, as the magistrate judge found, because there are no
factual
allegations
linking
any
subordinate’s
violation
of
constitutional rights to the actions of defendants Colon, Fuentes,
Solivan, Tirado, and Toledo, the plaintiffs’ supervisory liability
allegations fail to support a section 1983 claim.12
The Court
ADOPTS
DISMISSES
the
magistrate
judge’s
recommendation
and
plaintiffs’ supervisor liability claims against defendants Colon,
Fuentes, Solivan, Tirado and Toledo.
2.
Defendants Capo and Figueroa
a.
Section 1983 Malicious Prosecution Claims
Defendants Capo and Figueroa also argue that
the
plaintiffs
fail
to
plead
sufficient
malicious prosecution claim against them.
facts
to
sustain
a
As discussed earlier,
the First Circuit Court of Appeals has assumed, without deciding,
that malicious prosecution claims can be brought under section 1983
12
The Court agrees with the magistrate judge that this also
applies to defendants Capo and Figueroa because similarly there is
no factual allegations to link the actions of their subordinates to
the allegations against them. Therefore, a cause of action for
malicious prosecution cannot be sustained on a theory of
supervisory liability with respect to Capo and Figueroa either.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
27
as a violation of the Fourth Amendment.13
F.App’x. at 7.
Moreno-Medina, 458
To establish a claim for malicious prosecution
pursuant to section 1983, the plaintiffs “must prove:
(1) state
action; and (2) a deprivation of [federal] constitutional rights.”
Meehan v. Town of Plymouth, 167 F.3d 85, 88 (1999).
With regards to the first requirement, state
action for malicious prosecution, the plaintiffs “must prove four
elements:
‘1) that a criminal action was initiated or instigated
by the defendants; 2) that the criminal action terminated in favor
of plaintiff; 3) that defendants acted with malice and without
probable cause; and 4) that plaintiff suffered damages.’”
Barros-
Villahermosa, 642 F.3d at 58 (quoting Gonzalez Rucci v. U.S.
I.N.S., 405 F.3d 45, 49 (2005)).
Under Puerto Rico law, proving
“malice” is equivalent to proving “bad faith.”
Unlike
the
previous
Id. at 59.
group
of
defendants
discussed, the plaintiffs make non-conclusory allegations against
defendants Capo and Figueroa with respect to the first, second, and
fourth element of a malicious prosecution claim.
The plaintiffs,
however, fail to make non-conclusory factual allegations to support
the
third
13
element
of
malice.
The
non-conclusory
factual
The Fourth Amendment states that “[t]he right of the people
to be secure in their person, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.” U.S.
Const. Amend. IV.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
allegations from the plaintiffs are:
28
1) defendants Figueroa-Cruz
and Capo “discussed the testimony proffered by [Diaz-Colon]”;
2) “[Capo] ordered subordinate prosecutor defendants to take her
statements under oath and to file criminal charges against the
purported murders”; 3) defendant Figueroa took Diaz-Colon’s sworn
statements, “containing facts sufficient to sustain findings of
probable cause” against the innocent plaintiffs; 4) under orders
from defendant Capo, defendant Figueroa “presented in the Guayama
Court the false statements given under oath by [Diaz-Colon]”; and
5) defendant Capo “manifested that [defendant] prosecutor Figueroa
insisted in not dismissing the criminal charges” during a status
conference.
(Docket No. 8 ¶¶ 4.2-4.4, 4.10, 4.20; Civil Case
No. 10-1097 at Docket No. 1 at ¶ 33-35, 38.)
These factual
allegations support three of the elements of malicious prosecution,
because they link defendants Figueroa-Cruz and Capo to the criminal
charges brought against the plaintiffs, which eventually were
terminated in the plaintiffs’ favor and caused them damages.
The plaintiffs fail to allege, however, nonconclusory factual allegations to support the third element of
showing that
the
defendants acted
Villahermosa, 642 F.3d at 58.
with
malice.
See
Barros-
The plaintiffs claim that the
defendants “fabricated evidence and induced and threatened a paid
informant to provide false testimony,” (Civil Case No. 10-1097 at
Civil No. 09-1835 and 10-1097 (FAB/MEL)
29
Docket No. 1 at ¶ 4.), or, alternatively, “conspired with each
other and/or aided and abetted one another to fabricate charges and
maliciously prosecute innocent individuals,” (Docket No. 8 at
¶ 4.1.) The plaintiffs’ primary evidence of bad faith is the sworn
statement Diaz-Colon made recanting her earlier testimony.
When
Diaz-Colon recanted her statement, however, she never mentioned
defendant Capo or Figueroa.
(Docket No. 8 at ¶ 4.28.)
In Paret-
Ruiz v. U.S., the court denied a motion to dismiss and found that
the plaintiffs sufficiently pled factual allegations to support bad
faith for a malicious prosecution claim.
(D.P.R. 2012).
847 F.Supp.2d 289, 298
The court reasoned that “the complaint was rife
with allegations” naming the defendant Drug Enforcement Agency
agents and alleging those defendants lied and misrepresented the
plaintiffs
actions
and
statements
in
order
get
a
grand
jury
indictment, which was enough to support an allegation of bad faith.
Id.
Unlike in Paret-Ruiz, the plaintiffs in this case have not
made
non-conclusory
factual
allegations
to
support
their
allegations that defendants Capo and Figueroa fabricated evidence
or
improperly
induced
testimony.
There
are
no
statements
specifically linking Capo and Figueroa to the fabrication of
evidence.
Moreover, even assuming that other co-defendants acted
in bad faith, no reasonable inference can be made from the facts
pled that Capo and Figueroa acted in bad faith.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
30
The plaintiffs also allege that the prosecution
withheld exculpatory evidence during the plaintiffs’ trials as
evidence of malice. They contend that the prosecution waited until
“[t]he day of the opening arguments in the Colomba Case” to provide
the defense “the names of witnesses that were interviewed by the
homicide
agents
and
whose
statements
contradicted
the
sworn
statements of the prosecution[’s] star witness, [Diaz-Colon].”
(Docket No. 8 at ¶ 4.22; see also Civil Case No. 10-1097 at Docket
No. 1 at ¶ 44.)
The defense in the murder cases had requested all
exculpatory evidence many times leading up to the trials, but
prosecutors repeatedly denied any such evidence existed.
(Docket
No. 8 at ¶ 4.19; see also Civil Case No. 10-1097 at Docket No. 1 at
¶ 42.)
The prosecution said that the files had been lost, but
later defendant Baez revealed that the files were never really
missing.
(Docket No. 8 at ¶¶ 4.22, 4.31; Civil Case No. 10-1097 at
Docket No. 1 at ¶ 44.)
In addition, the prosecution did not reveal
the fact that Diaz-Colon was a paid informant for the CIC, and it
was not until she recanted that the defense learned this.
(Docket
No. 8 at ¶¶ 4.19, 4.28; Civil Case No. 10-1097 at Docket No. 1 at
¶¶
42,
51.)
Other than
conclusory
statements,
however,
the
plaintiffs do not establish a link between the failure to disclose
and defendants Capo or Figueroa.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
31
None of the factual allegations alleges that
defendant
Capo
or
Figueroa
were
aware
that
any
exculpatory
documents existed or that Diaz-Colon was a paid informant.
The
fact that defendant Figueroa was present when Diaz-Colon made her
statement, after she worked extensively with police officers, does
not lead to an inference that defendant Figueroa was knowingly
involved in any misconduct.
Also, none of the facts pled leads to
an inference that defendant Capo was even aware of any misconduct.
A plaintiff’s non-conclusory factual allegations must demonstrate
a “right to relief above the speculative level.” Twombly, 550 U.S.
at 555.
As the magistrate judge found, the facts accepted as true
do not lead to a plausible inference that defendants Capo and
Figueroa were involved with the alleged misconduct. The Court will
not address whether the plaintiffs sufficiently pled a deprivation
of a constitutional right to bring the section 1983 claim because
the elements of the state action were not satisfied with respect to
defendants Capo and Figueroa. Thus, the Court ADOPTS the magistrate
judge’s recommendation and DISMISSES the malicious prosecution
claims against defendants Capo and Figueroa.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
3.
32
Defendants Baez, Figueroa-Cruz, and Redondo
a.
Section 1983 Malicious
State Elements
Prosecution
Claims:
The Court finds that plaintiffs’ section 1983
claims against defendants Baez, Figueroa-Cruz, and Redondo are
sufficiently well-pled to survive a motion to dismiss. For a claim
of malicious prosecution to be successful under section 1983, the
plaintiffs “must prove: (1) state action; and (2) a deprivation of
constitutional rights.”
Meehan v. Town of Plymouth, 167 F.3d 85,
88 (1999).
As stated above, with regard to satisfying the
first element of proving the state action, the plaintiffs “must
prove four elements:
instigated
by
the
‘1)that a criminal action was initiated or
defendants;
2)
that
the
criminal
action
terminated in favor of plaintiff; 3) that defendants acted with
malice and without probable cause; and 4) that plaintiff suffered
damages.’”
Barros-Villahermosa, 642 F.3d at 58.
The plaintiffs
pled sufficient facts to establish the first two elements:
1) the
defendants prosecuted the plaintiffs for the crime of murder in a
court in Puerto Rico, and 2) the action was eventually terminated
in
favor
Plaintiffs
of
the plaintiffs
also
allege
that,
when
as
all
a
charges
result of
were
dismissed.
the
defendants’
actions, most of the plaintiffs were wrongfully imprisoned for
Civil No. 09-1835 and 10-1097 (FAB/MEL)
33
nearly ten years,14 which establishes the fourth prong of suffering
damages.
The only remaining element required to prove
malicious
prosecution
is
the
third
element,
which
requires
plaintiffs to show both bad faith or malice and a lack of probable
cause.
The
Court
finds
that
plaintiffs’
complaints
are
sufficiently well-pled to meet that element as against defendants
Baez, Figueroa-Cruz and Redondo.
The plaintiffs allege that:
1) defendants Baez, Figueroa-Cruz and Redondo “offered [Diaz-Colon]
cash, a house, an asthma therapy machine and the recovery of the
custody of her children” in exchange for her testimony in these
cases; 2) defendants Baez and Figueroa-Cruz pressured Diaz-Colon
into making the false statements; 3) defendant Baez testified that
the files that had been requested but not turned over to the
defense in the murder cases were always available in the CIC and
had never been lost; 4) Diaz-Colon stated she memorized scripted
testimony after police officers conducted at least ten review
sessions with
her,
where
they
showed
her
photographs
of
the
criminal defendants, took her to the crime scenes, and showed her
diagrams reflecting the positions of the corpses. (Docket No. 8 at
14
Ortiz committed suicide sixteen days after his conviction,
and was imprisoned for an unspecified length of time prior to that.
Sanabria served nearly seven years in prison prior to committing
suicide while incarcerated.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
34
¶ 4.28; Civil Case No. 10-1097 at Docket No. 1 at ¶ 49.)
In Paret-
Ruiz, the court denied a motion to dismiss and found that the
plaintiffs sufficiently pled factual allegations to support bad
faith in a malicious prosecution claim. 847 F.Supp.2d at 298.
The
court reasoned that “the complaint was rife with allegations”
naming the defendant Drug Enforcement Agency agents and alleging
those defendants lied and misrepresented the plaintiffs actions and
statements in order get a grand jury indictment, which supported
the bad faith allegation.
Id. Similarly, in this case, there are
non-conclusory factual allegations that defendants Baez, FigueroaCruz,
and
indictment.
Redondo
fabricated
testimony
to
get
a
grand
jury
From these facts, it is plausible to infer that
defendants Baez, Figueroa-Cruz, and Redondo pressured Diaz-Colon to
testify falsely with testimony they created; worked with her to
ensure she was able to testify to the false statements at trial;
and brought criminal charges without probable cause.
The defendants’ argument that the plaintiffs
fail to allege a lack of probable cause is unpersuasive.
The
defendants contend that because the jury believed Diaz-Colon’s
testimony, then there was sufficient probable cause to bring
criminal charges against the plaintiffs.
The complaint alleges
that the probable cause for the arrest warrants and indictments
came solely from Diaz-Colon’s false statements, and without them
Civil No. 09-1835 and 10-1097 (FAB/MEL)
35
the Guayama Court dismissed all charges when the cases were sent to
be retried.
(Docket No. 8 at ¶¶ 4.3. 4.10, 4.34; Civil Case
No. 10-1097 at Docket No. 1 at ¶¶ 35, 43, 45-47.)
Accepting the
non-conclusory factual allegations in the complaint as true, the
defendants knew Diaz-Colon’s statements were untrue, the statements
were the only evidence provided to establish probable cause, and,
therefore, it is reasonable to infer that there was no probable
cause in these cases.
As the magistrate judge found, taking the
factual allegations as true, a reasonable inference can be made
that defendants Baez, Figueroa-Cruz, and Redondo acted in bad faith
and without probable cause in these prosecutions.
The plaintiffs,
therefore, have sufficiently pled all four of the state action
requirements of a section 1983 malicious prosecution claim.
The
Court ADOPTS the magistrate judge’s recommendation and DENIES
defendants Baez’s, Figueroa-Cruz’s and Redondo’s motion to dismiss
plaintiffs’ section 1983 malicious prosecution claims.
b.
Section 1983 Malicious Prosecution
Constitutional Violation
Claims:
In order for a malicious prosecution claim to
proceed under the Fourth Amendment, plaintiffs who bring a claim
pursuant
to
section
1983
must
show
a
violation
of
their
constitutional rights in addition to meeting the state elements.
See Britton v. Maloney, 196 F.3d 24, 28-29 (1999).
“The crux of
Civil No. 09-1835 and 10-1097 (FAB/MEL)
36
the inquiry is whether a “seizure” occurred.”
Id. at 29.
A
plaintiff proves that a seizure occurred by showing “‘deprivation
of
liberty
accompanying
prosecution itself.”
the
prosecution’
rather
than
in
the
Id. (quoting Gallo v. Philadelphia, 161 F.3d
217, 222 (3rd Cir. 1998)). The deprivation of liberty normally
“takes ‘the form of an arrest warrant (in which case the arrest
would constitute the seizure) or a subsequent charging document (in
which case the sum of post-arraignment deprivations would comprise
the seizure).’”
Moreno-Medina, 458 Fed. App’x. at 7 (quoting
Nieves, 241 F.3d at 54).
The plaintiffs in this case demonstrated a
deprivation of liberty because their conviction was based on false
testimony and the charges were dropped when the false testimony was
discovered.
Post-arraignment deprivation of liberty can be shown
if the plaintiffs were “arrested, detained, restricted in [their]
travel, or otherwise subject to a deprivation of [their] liberty
before the charges against [them] were dismissed.”
F.3d at 30.
Britton, 196
Most of the plaintiffs were incarcerated for nearly
ten years, which most certainly qualifies as a deprivation of
liberty. See Rodriguez-Esteras v. Solivan-Diaz, 266 F.Supp.2d 270,
280 (D.P.R. 2003) (finding that post-arraignment detention for a
little over a month was a deprivation of liberty under the Fourth
Amendment
in
a
malicious
prosecution
claim).
Because
the
Civil No. 09-1835 and 10-1097 (FAB/MEL)
37
plaintiffs have shown a deprivation of liberty that constitutes a
“seizure” under the Fourth Amendment in addition to the state
elements, they have met all of the elements of their section 1983
Fourth Amendment claim.
Therefore, the Court agrees with the
magistrate judge that the claims against defendants Baez, FigueroaCruz, and Redondo are sufficiently well-pled. The Court ADOPTS the
magistrate judge’s recommendation.
The motion to dismiss the
constitutional violation claim against these defendants is DENIED.
E.
Conspiracy
The defendants additionally argue that the plaintiffs’
conspiracy claims should be dismissed because the plaintiffs did
not state a conspiracy claim under section 1983.
at pp. 23-25.)
(Docket No. 123
They state that the plaintiffs’ only allegation
linking the defendants to a conspiracy is the fact that the
defendants work together, and that is not enough to sustain a
conspiracy claim.15
Id. at p. 25.
“In order to make out an
actionable conspiracy under section 1983, a plaintiff has to prove
not only a conspiratorial agreement but also an actual abridgement
of some federally-secured right.”
15
Nieves, 241 F.3d at 53.
A
The defendants incorrectly cite to Aulson v. Blanchard,
which is a case about claims of conspiracy under 42 U.S.C. § 1985,
not section 1983. 83 F.3d 1, 3 (1st Cir. 1996). The elements
required for a conspiracy claim under section 1983 differ from
those required under section 1985.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
38
conspiratorial agreement under section 1983 requires the plaintiffs
to show “a combination of two or more persons acting in concert to
commit an unlawful act, or to commit a lawful act by unlawful
means, the principal element of which is an agreement between the
parties ‘to inflict a wrong or injury upon another,’ and ‘an overt
act that results in damages.’”
Earle v. Benoit, 850 F.2d 836, 844
(1st Cir. 1998) (internal citations omitted).
abridgment
of
a
federally
secured
right
In order to show an
in
this
case,
the
plaintiffs must successfully plead that the malicious prosecution
claim led to a “seizure” under the Fourth Amendment.
See Nieves,
241 F.3d at 54.
Plaintiffs have made a well-pled claim for conspiracy
with respect to defendants Baez, Figueroa-Cruz, and Redondo, but
not the rest of the defendants.
First, the Court will address if
a violation of a federally secured right has been well-pled and,
then, if a conspiratorial agreement has been well-pled.
The
plaintiffs have shown a “seizure” under the Fourth Amendment
through their deprivation of liberty while being incarcerated for
nearly
ten
years
as
a
result
of
malicious
prosecution.
As
discussed earlier, the plaintiffs did not allege sufficient facts
to permit even a reasonable inference that seven of the moving
defendants, Colon, Fuentes, Solivan, Tirado, Toledo, Capo and
Figueroa, participated in the malicious prosecution that led to the
Civil No. 09-1835 and 10-1097 (FAB/MEL)
39
deprivation of liberty. Thus, the plaintiffs’ complaint also fails
to plead a conspiracy against these defendants.
The Court ADOPTS
the magistrate judge’s recommendation and the conspiracy claim
against defendants Colon, Fuentes, Solivan, Tirado, Toledo, Capo
and Figueroa is DISMISSED.
Because the Court found that there was a well-pled
complaint for malicious prosecution by defendants Baez, FigueroaCruz and Redondo, the plaintiffs have sufficiently alleged a
deprivation of liberty with respect to those defendants.
The
plaintiffs have shown an abridgment of a federally secured right by
successfully pleading that the malicious prosecution claim led to
a “seizure” under the Fourth Amendment.
at 54.
See Nieves, 241 F.3d
Because there are plausible factual allegations linking
defendants
Baez,
Figueroa-Cruz
and
Redondo
to
the
malicious
prosecution, the first element of conspiracy, an abridgment of a
federally
secured
right,
has
been
established
against
these
defendants.
The plaintiffs also need to plead non-conclusory factual
allegations that a conspiratorial agreement existed between two or
more of the defendants in order to establish the conspiracy claim.
Nieves, 241 F.3d at 53.
A conspiratorial agreement can be shown
through circumstantial evidence rather than an express agreement.
Earle, 850 F.2d at 845. The plaintiffs allege that defendants Baez
Civil No. 09-1835 and 10-1097 (FAB/MEL)
and
Figueroa-Cruz
statements;
pressured
defendant
40
Diaz-Colon
Redondo
offered
into
making
the
false
her
money
and
other
incentives to testify falsely; and unidentified police officers
coached Diaz-Colon on her testimony on at least ten sessions. This
circumstantial evidence is sufficient to make for a plausible
inference that a conspiracy existed between these defendants to
generate false testimony to use against the plaintiffs.
See
Villafañe-Rivera v. Toledo-Davila, No. 10-2079, 2011 WL 5873072,
at *8 (D.P.R. Nov. 21, 2011) (finding that even though many of the
allegations of conspiracy were conclusory, an allegation that there
was a code of silence to lie about police beatings was sufficient
to withstand a motion to dismiss).
As the magistrate judge found,
therefore, the plaintiffs have stated sufficient facts for a claim
of conspiracy to survive a motion to dismiss with respect to
defendants Baez, Figueroa-Cruz, and Redondo.
The Court ADOPTS the
magistrate judge’s recommendation, and the motion to dismiss the
conspiracy
claims
against
defendants
Baez,
Figueroa-Cruz, and
Redondo, therefore, is DENIED.
F.
Absolute Immunity
Additionally, the defendants argue that the defendant
prosecutors are entitled to absolute immunity for the actions they
took during the prosecution of the murder cases.
at pp. 26-31.)
(Docket No. 123
The only remaining moving defendant prosecutor is
Civil No. 09-1835 and 10-1097 (FAB/MEL)
defendant Redondo.
41
Prosecutors acting as advocates of the state
are provided with absolute immunity, while actions taken as an
investigator
are
only
protected
through
qualified
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
immunity.
In addition, “a
prosecutor’s fabrication of false evidence during the preliminary
investigation of an unsolved crime . . . remains protected only by
qualified immunity.”
Id. at 275.
The malicious prosecution claim
alleges that prosecutors, including defendant Redondo, fabricated
evidence before any of the plaintiffs in this case were arrested.
The Court agrees with the magistrate judge’s finding that because
the plaintiffs allege that the defendant prosecutors fabricated
evidence before bringing charges against the plaintiffs, those
actions are not protected by absolute immunity.
The Court ADOPTS
the magistrate judge’s recommendation, and the motion to dismiss
based on absolute immunity is DENIED.
G.
Qualified Immunity
The defendants also argue that for anyone who is not
protected by absolute immunity, qualified immunity applies, and,
therefore, the claims should be dismissed.
(Docket No. 123 at
pp.
shields
31-33.)
Qualified
immunity
generally
government
officials from claims that arise from discretionary actions taken,
as long as “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
Civil No. 09-1835 and 10-1097 (FAB/MEL)
42
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
For a plaintiff to overcome qualified immunity, the court must
determine if the plaintiff alleges sufficient facts to plead a
constitutional
violation
and
if
that
right
was
established” at the time the misconduct occurred.
“clearly
Pearson v.
Callahan, 555 U.S. 223, 232 (2009).
The defendants argue that they “acted within the law,”
“perform[ed]
their
duties
as
established
by
the
Puerto
Rico
Criminal Code and law at that time,” and “all the evidence pointed
to the Adjudged Plaintiffs.”
however, the
plaintiffs
Id. at p. 32.
have
As discussed earlier,
sufficiently
pled
a
claim
of a
constitutional violation as part of the malicious prosecution claim
with respect to defendants Baez, Figueroa-Cruz and Redondo.
The
only remaining issue is whether that right to be free from seizure
under the Fourth Amendment was “clearly established” at the time
the
violation
occurred.
A
constitutional
right
is
“clearly
established” for qualified immunity purposes under the Fourth
Amendment if “‘a consensus of persuasive authority’ exists ‘such
that a reasonable officer could not have believed that his actions
were lawful.’”
Maldondo v. Fontanes, 568 F.3d 263, 271 (1st Cir.
2009) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).
In
Maldonado, the question was whether the Fourth Amendment right to
be free of the seizure of family pets was “clearly established.”
Civil No. 09-1835 and 10-1097 (FAB/MEL)
Id.
43
The Maldonado court found that the Fourth Amendment right to
be free from seizure of family pets was “clearly established” when
three circuits had decided the right existed prior to the alleged
misconduct, one agreed soon thereafter, and no other circuit
decided otherwise.
Id.
In 1999, as well as today, the First Circuit Court of
Appeals has not ruled on whether a malicious prosecution claim can
be brought under the Fourth Amendment.
Since the Supreme Court
held that a malicious prosecution claim could not be brought under
the
Fourteenth
Amendment,
however,
every
circuit
that
has
considered the question has found that a malicious prosecution
claim can be brought under the Fourth Amendment.
See Britton, 196
F.3d at 29 n.3 (1st Cir. 1999) (citing eight circuits).
Five of
these circuits published their decisions prior to the first time
that Diaz-Colon gave a sworn statement.
Id.
The weight of
persuasive authority is even greater in this case than what was
sufficient in Maldonado; here, five circuits decided the right
existed
prior
to
the
alleged
misconduct,
thereafter, and no contrary authority exists.
three
agreed
soon
Thus, a reasonable
officer would have been aware of the constitutional right to be
free of a malicious prosecution seizure under the Fourth Amendment.
Therefore, the Court agrees with the magistrate judge’s finding
that the defendants are not entitled to qualified immunity in this
Civil No. 09-1835 and 10-1097 (FAB/MEL)
44
case. The Court ADOPTS the magistrate judge’s recommendation, and
the motion to dismiss on qualified immunity grounds is DENIED.
H.
Supplemental Jurisdiction
The plaintiffs have also brought claims against the
defendants pursuant to Puerto Rico law.
The defendants request
dismissal
lack
of
jurisdiction.
the
state
claims
for
(Docket No. 123 at pp. 33-34.)
of
supplemental
Federal courts have
jurisdiction over state claims when they are “so related to claims
in the action within such original jurisdiction that they form part
of the same case or controversy.”
28 U.S.C. § 1367.
Although the
federal causes of actions against defendants Fuentes, Toledo,
Solivan,
Tirado,
dismissed,
the
Colon,
Court
Capo,
can
Figueroa,
maintain
and
Capo
have
been
jurisdiction
over
the
Commonwealth claims remaining against them because there is a
complete overlap in the factual allegations in these state claims
and the remaining federal claims against defendants Baez, FigueroaCruz, Redondo and defendants not party to the motion to dismiss.
The Court ADOPTS the magistrate judge’s recommendation to maintain
jurisdiction over the Puerto Rico claims against defendants Baez,
Figueroa-Cruz, and Redondo because the factual allegations at issue
are substantially the same in the federal and Commonwealth claims.
The Court REJECTS the magistrate judge’s recommendation to dismiss
the Puerto Rico claims against defendants Fuentes, Toledo, Solivan,
Civil No. 09-1835 and 10-1097 (FAB/MEL)
45
Tirado, Colon, Capo, Figueroa, and Capo.
The dismissal of the
Commonwealth claims against all defendants is DENIED.
I.
Default as to Defendants Tirado and Figueroa
The magistrate judge recommended that the defendants’
motion to dismiss the claims against defendants Tirado and Figueroa
in Civil Case No. 09-1835 be denied because these two defendants
are in default in that case.
In their opposition to the magistrate
judge’s R&R, defendants Tirado and Figueroa requested that the
default be set aside, so the claims can be dismissed, because they
have made appearances and answered the allegations in this case.
(Docket No. 161 at pp. 5-6.)
In addition, they argue that because
they are not in default in Civil Case No. 10-1097 and the two cases
substantially overlap, their defense in that case should be applied
as a defense in Civil Case No. 09-1835.16
10.)
(Docket No. 161 at pp. 5-
The Federal Rules of Civil Procedure allow for “the court to
set aside an entry of default for good cause.” Fed.R.Civ.P. 55(c).
At least three factors are considered when evaluating good cause:
“(1) whether the default was willful; (2) whether setting aside the
default would have prejudiced [the plaintiff]; and (3) whether [the
defendant] has a meritorious defense.”
16
KPS & Associates, Inc. v.
The Court notes that the plaintiffs do not argue against the
request to set aside the default judgment in their opposition to
defendants’
objections
to
portions
of
the
report
and
recommendations. (See Docket No. 166.)
Civil No. 09-1835 and 10-1097 (FAB/MEL)
46
Designs By FMC, Inc., 318 F.3d 1, 12 (1st Cir. 2003).
factors
are
not
exhaustive,
however,
and
“each
necessarily turn on its own unique circumstances.”
case
These
must
Id. (internal
citation omitted).
First, the default was not willful because the defendants
state that they are in default due to confusion in answering both
cases after they were consolidated.
(Docket No. 161 at pp. 9-10.)
Next, because the consolidated cases substantially overlap and the
issues are the same, the plaintiffs will not be unfairly prejudiced
by setting aside the default.
Finally, the defendants do have a
meritorious defense because, as we discussed above, the claims
against these two defendants would not survive a motion to dismiss.
The Court, therefore, REJECTS the magistrate judge’s recommendation
that the claims against defendants Tirado and Figueroa in Civil
Case No. 09-1835 should not be dismissed.
The Court DISMISSES the
claims against defendants Tirado and Figueroa in Civil Case No. 091835.
IV.
Conclusion
The Court has made an independent examination of the entire
record in this case, including defendants’ objections to the R&R,
plaintiffs’
opposition
to
those
objections
and
accompanying
response to defendants’ supplemental motion to dismiss in Civil
Case No. 10-1097, and defendants’ reply to plaintiffs’ opposition
Civil No. 09-1835 and 10-1097 (FAB/MEL)
47
to the defendants objections to portions of the R&R.
For the
reasons above, the Court ADOPTS IN PART and REJECTS IN PART the
magistrate judge’s recommendations.
defendants
Jose
Fuentes-Agostini,
All federal claims against
Pedro
Toledo-Davila,
Anibal
Solivan-Solivan, Daniel Colon, Hector Tirado, Jose Figueroa, and
Jose Capo are DISMISSED WITH PREJUDICE.
The section 1983 claims
against defendants Francisco Baez-Quiñones, Jesus Figueroa-Cruz and
Gabriel Redondo under the Fourteenth Amendment are also DISMISSED
WITH PREJUDICE.
The remaining claims against the defendants who moved for
dismissal are:
1.
Section 1983 claims pursuant to the Fourth Amendment for
malicious prosecution and conspiracy against defendants Francisco
Baez-Quiñones, Jesus Figueroa-Cruz, and Gabriel Redondo;
2.
Claims arising under Article II, sections 7, 8, and 10 of
the Constitution of the Commonwealth of Puerto Rico and articles
1802 and 1083 of the Civil Code, P.R. Laws Ann. tit. 31, §§ 5141,
5142 against defendants Jose Fuentes-Agostini, Pedro Toledo-Davila,
Anibal Solivan-Solivan, Daniel Colon, Hector Tirado, Jose Figueroa,
Jose
Capo,
Francisco
Baez-Quiñones,
Jesus
Figueroa-Cruz,
and
Gabriel Redondo.
Furthermore, any claim against defendants in these cases who
did not participate in the motion to dismiss remain pending.
Civil No. 09-1835 and 10-1097 (FAB/MEL)
IT IS SO ORDERED.
San Juan, Puerto Rico, February 8, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
48
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