Gautier et al v. Velez-Colon et al
Filing
33
OPINION AND ORDER granting in part and denying in part 28 Motion to Dismiss. A separate judgment will be entered accordingly dismissing the failure train and supervise claims against Defendant Velez. Signed by Judge Jose A Fuste on 11/02/2011. (dv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JUAN C. GAUTIER-SOLORZANO, et
al.,
Plaintiffs
v.
CIVIL NO. 10-1777 (JP)
SONIA I. VELEZ-COLON, et al.,
Defendants
OPINION AND ORDER
Before the Court is Defendant Sonia I. Velez Colon’s (“Velez”)
motion
(No.
to
30).
dismiss
(No.
Plaintiffs
28)
and
brought
Plaintiffs’
this
lawsuit
opposition
against
thereto
Defendants
pursuant to 42 U.S.C. § 1983 (“Section 1983”). Plaintiffs also
brought Puerto Rico law claims.
Defendant Velez moves to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons
stated herein, Defendant’s motion to dismiss is hereby GRANTED IN
PART AND DENIED IN PART.
I.
FACTUAL ALLEGATIONS
Plaintiffs in this case are one family, composed of Juan C.
Gautier-Solorzano (“Gautier”), Annabelle Lipsett (“Lipsett”), Minor
J.C.G.L., Carlos Gautier-Lipsett
(“Gautier-Lipsett”), Juan Carlos
Vilaro-Lipsett (“Vilaro-Lipsett”) and Minor E.C.G.L. Defendants are
CIVIL NO. 10-1777 (JP)
-2-
Velez, Nestor Cortes-Feliciano (“Cortes”), Edwin Bracero-Valentin
(“Bracero”), Jose Morales-Figueroa (“Morales”), Carlos Aviles-Lopez
(“Aviles”), Carlos Rivera-Lopez (“Rivera”), Jesus Ramos (“Ramos”),
and Ismael Camacho-Irizarry (“Camacho”).
On or about August 14, 2009, Plaintiffs allege that they were
at the Aguadilla courthouse attending a hearing. During a brief
recess ordered by the court, Plaintiffs Gautier and Lipsett stepped
out of the courtroom to confer with their respective attorneys in a
private meeting room.
Several of the Defendants, who are members of the corps of the
Puerto
Rico
“Marshals”),
Marshals
allegedly
(hereinafter
entered
collectively
into
the
room
referred
and
to
ordered
as
said
Plaintiffs to lower their voices. Defendants were informed of the
delicate
matters
and
the
heightened
emotional
situation
being
experienced by Plaintiffs and were told that there was no need for
concern. Defendants, however, allegedly became belligerent with
Plaintiffs.
Minor J.C.G.L., Plaintiffs Lipsett and Gautier’s son, while in
the hallway, saw Defendants enter into the meeting room. This
allegedly caused him to become concerned and he attempted to enter
into said room. J.C.G.L. was barred from entering the room by
Defendants. Cortes allegedly then began berating J.C.G.L. by saying
“shut up you lowlife piece of shit!” J.C.G.L. objected to the
needless abusive treatment and called Defendants “bullies.”
CIVIL NO. 10-1777 (JP)
-3-
Plaintiffs allege that Camacho ordered the “little punk” to be
arrested. Bracero then pushed Plaintiff Gautier who slammed against
a wall. Cortes, Camacho and Bracero allegedly then began beating
J.C.G.L. Aviles, Ramos, and Rivera arrived at the melee allegedly
caused by the other Defendants and joined Cortes, Camacho and Bracero
in beating the child. Ramos allegedly tasered J.C.G.L. multiple
times.
Plaintiffs allege that, while on the floor, Defendants continued
to beat J.C.G.L. until they were exhausted. The child was then
handcuffed. During said process, Lipsett and Gautier begged, pleaded
and cried for the beating of their child to stop. Plaintiffs allege
that the response was just the opposite. Defendant tasered the
restrained child at least five more times.
J.C.G.L. cried for his parents help. When Gautier attempted to
aid his child by separating the Marshals from his son, Defendants
allegedly tasered Gautier. Gautier was then slammed against the
floor. While on the floor, Defendants continued beating him.
Upon arriving at the scene, Gautier-Lipsett, J.C.G.L.’s older
brother, attempted to help his brother. As a result, Plaintiffs
allege that Gautier-Lipsett was physically assaulted and arrested.
Gautier, Lipsett, Gautier-Lipsett and J.C.G.L. were all placed under
arrest and detained in holding cells in the courthouse for several
hours.
CIVIL NO. 10-1777 (JP)
-4-
On the same day, Plaintiffs allege that Defendants Cortes,
Camacho, Bracero, Morales, Aviles, Rivera, Ramos and Velez conspired
with each other to fabricate charges and maliciously prosecute
Gautier and Lipsett for felonies. Thereafter, Gautier-Lipsett was
released. No charges were presented against him. Gautier and Lipsett
were transported, under custody, for the filing of felony criminal
charges, to the Mayaguez courthouse. During the hearing held at the
Mayaguez
courthouse,
Camacho
and
Bracero
allegedly
gave
false
testimony to a Commonwealth magistrate, which was necessary for a
finding of probable cause. On the basis of these false statements,
Plaintiffs allege that the Commonwealth magistrate found probable
cause
against
Gautier
and
Lipsett
for
several
felony
charges,
consisting each of an assault on a public officer. During the
preliminary hearing, Camacho and Bracero once again provided false
testimony to a Commonwealth judge to support the criminal charges
against Gautier and Lipsett.
Plaintiffs allege that J.C.G.L. was placed under the custody of
the Solicitor of Juvenile Affairs. Subsequently, the juvenile court
sent
J.C.G.L.
to
a
special
program
for
minors
that
included
evaluations by a psychiatrist and two social workers, and that
required him to maintain good grades at school. J.C.G.L. complied
with the requirements imposed upon him and was released from the
program after a six-month period.
CIVIL NO. 10-1777 (JP)
-5-
Lipsett was acquitted of all charges. On the other hand, Gautier
underwent a full-fledged jury trial. Plaintiffs allege that, during
trial,
Camacho,
knowingly
and
Bracero,
Cortes,
intentionally,
Aviles,
provided
Morales,
false
and
Velez,
testimony
to
a
Commonwealth judge to support the criminal charges against Gautier.
Gautier was eventually acquitted of all charges.
Plaintiffs allege that Velez and other unidentified individuals,
as commanding or supervisory officials, encouraged, authorized,
approved,
allowed
and/or
knowingly
went
along
with
the
unconstitutional conduct employed by the subordinate Marshals, and/or
failed to comply with their supervisory and disciplinary duties with
regard to such subordinate Defendants. They also allegedly failed to
adequately
train,
instruct
and
otherwise
direct
the
Marshals
concerning the use of force necessary to subdue individuals, thereby
causing such Marshals to engage in the unlawful conduct described
above. Velez and the unidentified individuals ratified all of the
misconduct of the subordinate Defendants by failing to provide any
discipline for such misconduct.
II.
LEGAL STANDARD FOR A MOTION TO DISMISS
According to the Supreme Court, “once a claim has been stated
adequately,
it
may
be
supported
by
showing
any
consistent with the allegations in the complaint.”
v. Twombly, 127 S. Ct. 1955, 1969 (2007).
set
of
facts
Bell Atl. Corp.
As such, in order to
CIVIL NO. 10-1777 (JP)
-6-
survive a motion to dismiss, a complaint must state a claim to relief
that is plausible on its face, not merely conceivable. Id. at 1974.
The Court of Appeal for the First Circuit has interpreted Twombly as
sounding the death knell for the oft-quoted language of Conley v.
Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Rodríguez-Ortiz v. Margo Caribe,
Inc., 490 F.3d 92, 94-95 (1st Cir. 2007) (quoting Twombly, 127 S. Ct.
at 1969).
Still, a court must draw all reasonable inferences in
favor of the non moving party and accept all well-pleaded facts in
the complaint as true. Sanchez v. Pereira-Castillo, 590 F.3d 31, 36
(1st Cir. 2009).
III.
ANALYSIS
Defendant Velez moves to dismiss Plaintiffs’ complaint against
her arguing that Plaintiffs have failed to allege sufficient facts
to support their Section 1983 and Puerto Rico law claims. Plaintiffs
oppose the arguments. The Court will now consider the parties’
arguments.
A.
Section 1983
To have a cognizable claim under Section 1983, Plaintiffs must
plead and prove that: (1) Defendants acted under color of state law;
CIVIL NO. 10-1777 (JP)
(2)
Plaintiffs
were
-7deprived
of
a
federally
protected
right,
privilege or immunity; and (3) Defendants’ alleged conduct was
causally
connected
to
Plaintiffs’
deprivation.
See
Gutiérrez-Rodríguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989).
Here, Defendant Velez argues that Plaintiffs failed to state a
cause of action for their Section 1983 claims against Defendant based
on supervisory liability, malicious prosecution, and conspiracy.
1.
Supervisory Liability
Under Section 1983, supervisory liability cannot be based on a
respondeat superior theory, but instead it can only be based on the
supervisor’s own acts or omissions.
Aponte-Matos v. Toledo-Dávila,
135 F.3d 182, 192 (1st Cir. 1998) (citing Seekamp v. Michaud,
109 F.3d 802, 808 (1st Cir. 1997)).
Supervisory liability requires
that: (1) there is a finding of subordinate liability; and (2) the
supervisor’s own “action or inaction was ‘affirmatively linked’ to
the constitutional violation caused by the subordinate.”
affirmative
link
condonation
or
must
amount
acquiescence,
deliberate indifference.’”
or
to
‘supervisory
gross
negligence
Id.
“That
encouragement,
amounting
to
Id. (quoting Lipsett v. University of
Puerto Rico, 864 F.2d 881, 902 (1st Cir. 1988)).
Defendant Velez first argues that the claims against her should
be dismissed because it was the Marshals who allegedly violated
Plaintiffs’ rights by unreasonably seizing them, using excessive
force and by using a perverted legal process to deprive them of their
CIVIL NO. 10-1777 (JP)
liberty.
-8-
Defendant’s argument fails. As alleged in Plaintiffs’
complaint, Velez herself was involved in the allegedly unlawful
conduct when she provided false testimony against Plaintiffs. Taking
said allegations as true, the Court finds that Plaintiffs have
alleged sufficient facts to support a finding that Velez was directly
involved with the alleged violations of Plaintiffs’ rights when
Defendants used a perverted legal process to deprive Plaintiffs of
their liberty. Also, the allegations that Velez falsely testified are
sufficient to support a finding that she condoned the alleged conduct
of the Marshals in unreasonably seizing and using excessive force
against Plaintiffs.
Lastly, Defendant argues that Plaintiffs have failed to plead
sufficient facts to support their failure to train and/or supervise
claims. After considering the allegations, the Court finds that
Plaintiffs have failed to plead sufficient facts to support their
failure to train and/or supervise claims against Velez. In their
complaint, Plaintiffs have only presented boilerplate allegations
regarding Defendant Velez’s alleged failure to train and supervise
the
Marshals.
Said
allegations
are
insufficient
to
support
Plaintiffs’ claims. Rossi-Cortes v. Toledo-Rivera, 540 F. Supp. 2d
318, 324 (D.P.R. 2008)(citing Esteras v. Diaz, 266 F. Supp. 2d 270
(D.P.R. 2003)).
Accordingly, the Court will dismiss Plaintiffs’ failure to train
and supervise claims against Defendant Velez.
CIVIL NO. 10-1777 (JP)
2.
-9-
Malicious Prosecution
In her motion, Defendant Velez states that Plaintiffs’ malicious
prosecution claim against her should be dismissed because malicious
prosecution is not actionable under the Fourteenth Amendment. Roche
v. John Hancock Mutual Life Ins. Co., 81 F.3d 249, 256 (1st Cir.
1996) (citing Albright v. Oliver, 510 U.S. 266 (1994)); Torres v.
Superintendent of Police of Puerto Rico, 893 F.2d 404, 410-11 (1st
Cir. 1990). While it is true that a malicious prosecution claim
cannot be asserted under the Fourteenth Amendment, it is also true
that, as clarified in Plaintiffs’ opposition, Plaintiffs are also
raising a malicious prosecution claim under the Fourth Amendment (No.
30, p. 10). Even though the issue has not been squarely decided by
either the U.S. Supreme Court or the First Circuit Court of Appeals,
the First Circuit has assumed without deciding that a malicious
prosecution by state actors may violate the Fourth Amendment. E.g.,
Harrington v. City of Nashua, 610 F.3d 24, 30 (1st Cir. 2010);
Britton v. Maloney, 196 F.3d 24, 28 n.3 (1st Cir. 1999). Based on
said case law, the Court finds that Plaintiffs should be allowed to
pursue their malicious prosecution claim under the Fourth Amendment.
Accordingly, the Court denies Defendant’s request to dismiss the
malicious prosecution claims against her.
3.
Conspiracy Claims
A civil rights conspiracy is “a combination of two or more
persons acting in concert to commit an unlawful act, or to commit a
CIVIL NO. 10-1777 (JP)
-10-
lawful act by unlawful means, the principal element of which is an
agreement between the parties to inflict a wrong against or injury
upon another, and an overt act that results in damages.”
Estate of
Bennett v. Wainwright, 548 F.3d 155, 178 (1st Cir. 2008) (quoting
Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988)).
Plaintiffs assert Section 1983 conspiracy claims in their
complaint against Velez. Defendant argues that Plaintiffs failed to
state a cause of action for their conspiracy claim against her
because they failed to allege an overt act on the part of Velez in
furtherance of the alleged conspiracy. Said argument fails. In the
complaint, Plaintiffs clearly pleaded that Defendant Velez and the
other
Defendants
conspired
to
maliciously
prosecute
Plaintiff.
Plaintiffs also pleaded that, in furtherance of the conspiracy, Velez
provided false testimony. Based on said allegations, the Court finds
that Plaintiffs have pleaded sufficient facts to establish a cause
of action for conspiracy against Velez.
B.
Puerto Rico Law Claims
Plaintiffs also bring claims arising under Puerto Rico law.
Defendant requests that the Court decline to exercise jurisdiction
over the Puerto Rico law claims if the Court dismissed the federal
law claims against her. Since the Court has not dismissed all of the
federal law claims against Velez, the Court will not dismiss the
state law claims against her.
CIVIL NO. 10-1777 (JP)
-11IV.
CONCLUSION
Thus, the Court hereby GRANTS IN PART AND DENIES IN PART
Defendant’s motion to dismiss. A separate judgment will be entered
accordingly dismissing the failure train and supervise claims against
Defendant Velez.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 2nd day of November, 2011.
S/JOSE ANTONIO FUSTE
JOSÉ ANTONIO FUSTÉ
UNITED STATES DISTRICT JUDGE
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