Hiskes et al v. Figueroa-Sancha et al
Filing
100
ORDER granting in part and denying in part 9 Motion to Dismiss. Signed by Judge Jay A Garcia-Gregory on 3/30/2012. (ASJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
RACHEL HISKES, et. al.,
CIVIL NO. 10-2246 (JAG)
Plaintiffs
v.
JOSE FIGUEROA SANCHA, et al.,
Defendants
OPINION AND ORDER
GARCIA-GREGORY, D.J.
Before the Court stands Jose E. Figueroa Sancha (“Figueroa
Sancha”),
Hector
Jose
Figueroa
A.
Rosa
Torres
Carrasquillo
(“Figueroa
(“Rosa
Torres”),
Carrasquillo”),
Miguel
A.
Mejias
Cruz (“Mejias Cruz”), and Jose A. Rohena Sosa’s (“Rohena Sosa”)
(collectively, “Defendants”) Partial Motion to Dismiss pursuant
to Fed.R.Civ.P. 12(b)(6). (Docket No. 9). For the reasons set
forth below, the motion is hereby GRANTED IN PART AND DENIED IN
PART.
Civil No. 10-2246 (JAG)
2
PROCEDURAL BACKGROUND
On December 20, 2010, Rachel Hiskes (“Hiskes”) and Omar
Silva Melendez (“Silva Melendez”) (collectively, “Plaintiffs”),
filed a Complaint against several officials of the Puerto Rico
Police Department (“PRPD”) alleging they suffered physical and
emotional
damages
as
a
consequence
of
Defendants’
behavior
during the events that took place both inside and around the
Puerto Rico Capitol building on June 30, 2010. Specifically, the
Complaint
was
filed
against
Figueroa
Sancha,
former
Superintendent of the PRPD, Rosa Carrasquillo, former Associate
Superintendent of the PRPD, Mejias Cruz, Commander of the San
Juan Area of the PRPD, Figueroa Torres, Director of the San Juan
Tactical Operations Unit of the PRPD, Rohena Sosa, an employee
of
or
contractor
with
the
Legislature
of
Puerto
Rico,
and
against several unknown agents. (Docket No. 1). All of the above
named
Defendants
were
sued
in
their
personal
capacity.
The
following facts, as alleged in the Complaint, are taken as true
for purposes of the Motion to Dismiss.
At the time of the events, Hiskes was a graduate student
in social work at the University of Puerto Rico and worked as a
journalist for Rumbo Alternativo, a digital periodical. Silva
Melendez is a musician and member of the musical group Cultura
Profetica.
Civil No. 10-2246 (JAG)
3
Plaintiffs
state
that
that
the
Tactical
Operation
Unit
(“TOU”) of the PRPD has engaged in proven violations of civil
rights
since
its
creation
in
1974.
They
proceed
to
recount
several incidents, including several recent events that involved
TOU agents. After becoming Superintendent of the PRPD, FigueroaSancha
created
a
tactical
group
dubbed
“Grupo
de
Cien”
or
Special Tactical Unit (“STU”) consisting of multidisciplinary
teams of officers.
According to the Complaint, Defendants are aware of the
history of violence against citizens and of specific incidents
in which citizens were killed or injured. Plaintiffs aver that
in September 2007, the former Governor created an Evaluative
Committee
to
investigate
the
PRPD.
This
Evaluative
Committee
concluded that there is a pattern of violation of civil rights
and made several recommendations towards improving the PRPD’s
disciplinary system.
The Complaint alleges that on May 20, 2010, a protest took
place at a hotel where the Governor was conducting a fundraiser.
According to the Complaint, a group of police officers struck
protesters indiscriminately and sprayed them with pepper spray.
The Complaint states that one university student was forced to
the floor by several officers and was shocked several times with
a taser. The Complaint further states that Rosa Carrasquillo
Civil No. 10-2246 (JAG)
4
proceeded to kick the student in the genitals. According to
Plaintiffs,
Figueroa
Sancha
called
the
officers
who
were
involved in that incident “heroes,” thereby encouraging violence
against purported peacefully protesting citizens.
Several days later a photojournalist was expelled from the
Capitol’s legislative chambers. Shortly thereafter the President
of
the
Senate
of
Puerto
Rico
ordered
the
closure
of
the
legislative chambers to the general public and the press. After
several events, he issued a new order allowing media in the
chambers on condition of verification of their credentials.
On June 30, 2010, the last day of the legislative session,
Hiskes arrived at the Capitol along with other journalists from
alternative
media
including
Radio
Huelga,
IndyMedia,
Rumbo
Alterno and Onda Alterna. Plaintiffs allege that at the time
there
was
herself
as
no
a
security
member
of
perimeter
the
and
press.
that
Hiskes
According
to
identified
Plaintiffs,
Hiskes and others were not allowed inside the building because
the legislative and PRPD officials disagreed with their views as
citizens regarding the actions being taken by the government.
They posit that Reverend Juan Angel Guitierrez, a representative
of the watch group Amnesty International, was not allowed inside
either.
Civil No. 10-2246 (JAG)
5
It is at this point that Hiskes and three others sat down
in the hallway in order to demonstrate their repudiation of the
actions
of
rights.
the
The
officers
Complaint
who
violated
that
states
their
officers
STU
First
Amendment
responded
by
striking Hiskes and others. Plaintiffs further aver that one of
the
Defendants
also
sprayed
them
with
noxious
gas.
Hiskes
attempted to get up from the floor but was assaulted by a police
officer. According to the Complaint, Representative Cruz-Soto
attempted to aid Hiskes but was also sprayed with noxious gas
and received various blows from the police. The Complaint states
that Hiskes was assaulted and was pushed outside of the Capitol
building and then thrown down the Capitol steps. The Complaint
does not offer any further details as to what happened to Hiskes
after this point.
The
Complaint
further
states
that
shortly
after
the
incident with Hiskes another group of citizens was attacked by
the
PRPD.
A
proclamation
group
to
the
of
students
legislature
who
were
attempted
hit
by
to
deliver
police
a
batons.
According to Plaintiffs, as the group of students attempted to
go
up
the
Capitol
steps
they
were
met
with
aggression
and
noxious gasses. The Complaint avers that Defendants approved a
protocol pursuant to which the TOU and the STU would advance
against peaceful demonstrators.
Civil No. 10-2246 (JAG)
6
Plaintiff
Silva
Melendez
arrived
in
the
late
afternoon
hours. The Complaint states that he joined the demonstrators and
observed
the
TOU
and/or
the
STU
assaulting
several
female
protesters. Silva Melendez alleges that he tried to assist a
citizen who had been assaulted by police and was hit in the
forehead by a canister thrown by a police officer from the TOU
and/or the STU. He avers that the impact caused him severe pain,
bleeding, and numbness in his legs, impeding him from moving
effectively, as well as skin pain and burning from the gas.
Silva Melendez required stitches as a result of his wound.
Plaintiffs posit that Figueroa Sancha, Rosa Carrasquillo,
Mejias Cruz, and Figueroa Torres employed the TOU and the STU
with full knowledge that these officers would engage in violent
behavior against the protesters. Plaintiffs have advanced claims
pursuant to 42 U.S.C. 1983 and 1988, as well as the First,
Fourth, Fifth, and/or Fourteenth Amendments of the United States
Constitution. Plaintiffs have also advanced claims pursuant to
the Constitution and laws of Puerto Rico.
STANDARD OF REVIEW
In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the
Supreme Court held that to survive a motion to dismiss under
Rule 12(b)(6), a complaint must allege “a plausible entitlement
to relief.” Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92,
Civil No. 10-2246 (JAG)
7
95-96 (1st Cir. 2007) (quoting Twombly, 550 U.S. at 559). While
Twombly does not require heightened fact pleading of specifics,
it does require enough facts to “nudge [plaintiff] claims across
the line from conceivable to plausible.” Twombly, 550 U.S. at
570. Accordingly, in order to avoid dismissal, the plaintiff
must provide the grounds upon which his claim rests through
factual allegations sufficient “to raise a right to relief above
the speculative level.” Id. at 555.
In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme
Court
upheld
Twombly
and
clarified
the
principles
that
must
guide this Court’s assessment of the adequacy of the plaintiff’s
pleadings when evaluating whether a complaint can survive a Rule
12(b)(6) motion. See Iqbal, 129 S.Ct. at 1949-50. The court must
identify any conclusory allegations in the complaint as such
allegations are not entitled to an assumption of truth. Id. at
1949. “[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of
action,
supported
by
mere
conclusory
statements,
do
not
suffice.” Id. (citing Twombly, 550 U.S. at 555). A claim has
facial plausibility when the pleaded facts allow the court to
reasonably infer that the defendant is liable for the specific
misconduct alleged. Id. at 1949, 1952. Such inferences must be
Civil No. 10-2246 (JAG)
8
more than a sheer possibility and at least as plausible as any
obvious alternative explanation. Id. at 1949, 1951. Plausibility
is a context-specific determination that requires the court to
draw on its judicial experience and common sense. Id. at 1950.
In a recent case, Ocasio-Hernández v. Fortuño Burset, 640
F.3d 1 (1st Cir. 2011), the First Circuit analyzed and distilled
several principles from the Supreme Court decisions in Twombly
and Iqbal. It thus boiled down the inquiry a Court must perform
while resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(6)
to a two-pronged approach. The first step involves the process
of identifying and disregarding the threadbare recitals of the
elements
of
a
cause
of
action
and/or
the
legal
conclusions
disguised as fact. Ocasio-Hernández, 640 F.3d at 12. The second
step involves treating the non-conclusory factual allegations as
true, even if seemingly incredible, and determining if those
“combined allegations, taken as true, state a plausible and not
merely a conceivable, case for relief.” Id. (quoting SepúlvedaVillarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 29 (1st Cir.
2010)).
The
First
Circuit
warned
that
even
if
determining
the
plausibility of a claim “requires the reviewing court to draw on
its judicial experience and common sense,” it must not attempt
to forecast the likelihood of success even if recovery is remote
Civil No. 10-2246 (JAG)
9
and unlikely. Id. (quoting Iqbal, 129 S. Ct. at 1950) (other
citations
inquiry
omitted).
focuses
on
It
the
further
stated
reasonableness
that,
of
“[t]he
the
relevant
inference
of
liability that the plaintiff is asking the Court to draw from
the facts alleged in the complaint. Id. at 13.
ANALYSIS
A. Fifth Amendment
Defendants aver that the claims submitted pursuant to the
Fifth Amendment should be dismissed because said Amendment
applies to federal actors. In contrast, Plaintiffs argue that it
remains undetermined whether the Fourteenth or the Fifth
Amendment extend procedural due process rights in Puerto Rico.
See Rodríguez v. PDP, 457 U.S. 1, (1982)(stating that the
Supreme Court has previously held that Puerto Rico is subject to
constitutional guarantees of due process and equal protections
of the law but that the Court has never found it necessary to
resolve whether the guarantee of equal protection is provided
under the Equal Protection Clause of the Fourteenth Amendment or
the Due Process Clause of the Fifth Amendment.); Igartua v.
U.S., 626 F.3d 592, 599 (1st Cir. 2010)(citing Tenoco Oil Co.,
Inc. v. Dep't of Consumer Affairs, 876 F.2d 1013, 1017 n. 9 (1st
Cir. 1989) (noting that Puerto Rico residents are given
procedural due process rights under either or both the Fifth and
Civil No. 10-2246 (JAG)
10
Fourteenth Amendments)). However, the First Circuit has also
stated that the Due Process Clause of the Fifth Amendment
applies to actions of the federal government and not those of
state or local governments. Martinez-Rivera v. Sanchez Ramos,
498 F.3d 3 (1st Cir. 2007)(citing Lee v. City of Los Angeles,
250 F.3d 668, 687 (9th Cir.2001)).
The Court notes Plaintiffs’ careful pleading in light of
the lack of constitutional certainty regarding the source of
procedural due process rights in Puerto Rico. However, because
Plaintiffs do not allege that any of the Defendants are federal
actors, the Court finds that dismissal of the Fifth Amendment
claim is appropriate. See Velez-Gonzalez v. Cordero, 2011 U.S.
Dist. LEXIS 53565 at *4-6 (D.P.R. May 18, 2011). Therefore, the
Court GRANTS the dismissal of the Fifth Amendment claim.
B. Substantive Due Process
Defendants also object to Plaintiffs’ Fourteenth Amendment
claim on the ground that it is preempted by Plaintiffs’ Fourth
Amendment claim. Defendants argue that because Plaintiffs’
Fourteenth Amendment claim is “grounded upon the same events for
which they are claiming redress under the Fourth Amendment for
use of unreasonable excessive force” their claim should be
dismissed. (Docket No. 9).
Civil No. 10-2246 (JAG)
11
To establish a substantive due process claim, a plaintiff
must show that a state actor deprived him or her of a life,
liberty, or property interest, and that he did so through
conscience-shocking behavior. Estate of Bennett v. Wainwright,
548 F.3d 155, 162 (1st Cir.2008) (citing Clark v. Boscher, 514
F.3d 107, 112 (1st Cir. 2008))(citations omitted).
The First Circuit has held that substantive due process
claims that are in essence an excessive force claims should be
brought under the Fourth amendment. Wainwriqht, 548 F.3d at 163.
This First Circuit decision is premised upon the holding in
Graham v. Connor, 490 U.S. 386, 395 (1989). In Graham, the
Supreme Court stated that “[a]ll claims that law enforcement
officers have used excessive force—deadly or not—in the course
of ... [the] ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’ standard,
rather than under a substantive due process standard.” Id. at
387. This standard has also been adopted by this Court, which
has, on more than one occasion, rejected claims alleging a
deprivation of substantive due process based on excessive force
claims. See Cruz-Acevedo v. Toledo-Davila, 660 F.Supp.2d 205,
215 (D.P.R. 2009); Brenes-Laroche v. Toledo Davila, 682
F.Supp.2d 179, 190 (D.P.R. 2010).
Civil No. 10-2246 (JAG)
12
An individual is seized when, “by means of physical force
or a show of authority, an officer restrains the liberty of a
person and such person submits to the restriction feeling that
he or she is not free to leave." Wainright, 548 F.3d at 167 (1st
Cir. 2008) (citing United States v. Holloway, 499 F.3d 114, 117
(1st Cir. 2007)). The First Circuit held that a Fourth Amendment
seizure is one where a police officer via either physical force
or a show of authority restrains the liberty of a citizen in
some way. Holloway, 499 F.3d at 117 (citing United States v.
Sealey, 30 F.3d 7, 9 (1st Cir. 1994). Furthermore, the show of
authority must be one where a reasonable person would believe
that he was not free to leave. United States v. Smith, 423 F.3d
25, 28-29 (1st Cir. 2005). “The test is objective: Would a
reasonable person standing in the shoes of the individual who is
approached have felt free to cease interaction with the officer
and depart?” United States v. Espinoza, 490 F.3d 41, 49 (1st
Cir. 2007) (citing Ornelas v. United States, 517 U.S. 690, 693
(1996); Smith, 423 F.3d at 28). Furthermore, “[t]o constitute a
seizure implicating the Fourth Amendment, there must be an
intentional acquisition of physical control.” Eldredge v. Town
of Falmouth, MA, 662 F.3d 100, 105 (1s Cir. 2011)(citing Brower
v. County of Inyo, 489 U.S. 593, 596 (1989))(internal citations
and quotation marks omitted).
Civil No. 10-2246 (JAG)
13
Plaintiffs vehemently argue that both their Fourth
Amendment and substantive due process claims should be allowed
to proceed. In support of their argument, Plaintiffs cite to
County of Sacramento v. Lewis, 523 U.S. 833 (1998). However,
Lewis is not entirely on point because the Supreme Court
concluded that there had not been a Fourth Amendment seizure in
that case. Plaintiffs further cite to Melendez-Garcia v.
Sanchez, 629 F.3d 25 (1st Cir. 2010), in an effort to further
support their argument. Again, this case does not deal with a
Fourth Amendment claim and is therefore not wholly applicable to
the controversy presently before the Court. Similarly, the other
cases cited by Plaintiffs do not involve cases where Fourth
Amendment seizures were discussed. See J.R. v. Gloria, 593 F.3d
73 (1st Cir. 2010); Ramos-Pinero v. Puerto Rico, 453 F.3d 48
(1st Cir. 2006). Plaintiff’s cite to Maldonado v. Fontanes, 568
F.3d 263 (1st Cir. 2009), in an effort to argue that certain
governmental actions could be sufficiently shocking as to be
beyond the constitutional pale. The Court concluded in Maldonado
that an individual’s interest in his pet cat or dog constituted
a Fourth Amendment seizure. However, the issue in Maldonado was
the Fourth Amendment seizure of pets, not an excessive force
claim under the Fourth Amendment. As a result, the Court finds
that this case is also distinguishable from the issue currently
before it. Lastly, Plaintiff’s cite to Porter v. Osborn, 546
Civil No. 10-2246 (JAG)
14
F.3d 1131 (9th Cir. 2008). The Osborn court allowed the parents
of their deceased son to proceed with their substantive due
process claims against a police officer. The Osborn court
determined that the Fourth Amendment applied in constitutional
claims of excessive force in cases involving claims by or on
behalf of the victim himself. In Osborn, the plaintiffs advanced
a substantive due process claim that hinged on the right to
familial association. Thus, to conclude that this case evidences
that substantive due process claims due to excessive force may
proceed is therefore disingenuous.
In light of the Complaint and the facts alleged therein,
the Court finds that Hiskes was in fact subjected to a Fourth
Amendment seizure. As a result, the Court concludes that Hiskes’
Fourteenth Amendment claim may not proceed. However, the issue
is somewhat murkier as to Silva Melendez. The Complaint alleges
that Silva Melendez was assisting a female protester when he was
struck in the head with a gas canister. The Complaint further
states that Silva Melendez was left confused and with a sense of
helplessness and frustration. He had difficulty breathing,
experienced a choking sensation due to the effects of the gas,
and was bleeding profusely. Lastly, the Complaint states that
Silva Melendez was removed from the scene by other
demonstrators. Upon a close examination of the facts stated in
Civil No. 10-2246 (JAG)
15
the Complaint, the Court finds that Silva Melendez was not
subjected to a seizure on the facts alleged and as a result his
Fourteenth Amendment claim is not preempted.
In light of the foregoing, the Court finds it appropriate
to dismiss Hiskes’ Fourteenth Amendment claim and Silva
Melendez’s Fourth Amendment claim.
CONCLUSION
For the reasons stated above, the Court hereby GRANTS IN
PART
AND
DENIES
IN
Plaintiffs’
Fifth
Furthermore,
Hiskes’
PART
Amendment
Defendants’
claims
substantive
due
Motion
are
to
hereby
process
claim
Dismiss.
dismissed.
is
also
dismissed. In contrast, Silva Melendez’s substantive due process
claim may proceed, but his Fourth Amendment claim is dismissed.
Partial judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 29th day of March, 2012.
S/ Jay A. García-Gregory
JAY A. GARCÍA-GREGORY
United States District Judge
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