Viruet et al v. Viruet-Mojica et al

Filing 53

OPINION & ORDER granting in part and denying in part 23 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 37 Motion to Dismiss; granting in part and denying in part 41 Motion to Dismiss for Failure to State a Claim.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
VICTOR VIRUET, et al.,
Plaintiffs

CIVIL NO. 12-1502 (JAG)

v.
MIGUEL A. VIRUET-MOJICA, et al.,
Defendants

OPINION AND ORDER
GARCIA-GREGORY, D.J.
Before the Court are three motions to dismiss, advanced by
co-defendants Miguel Viruet-Mojica (“Viruet-Mojica”), Betiana De
Jesus (“De Jesús”), Eliezer Vazquez (“Vazquez”), Wilbert SaezRivera (“Saez”), Nelson Salgado-Calderon (“Salgado”), and Jesús
M. Ramos-Rodriguez (“Ramos”). (Docket Nos. 23, 37, and 41). For
the reasons set forth, the Court GRANTS IN PART and DENIES IN
PART the three motions.

FACTUAL AND PROCEDURAL BACKGROUND
The

Court

draws

the

following

facts

from

Plaintiffs’

Complaint and takes them as true for purposes of resolving the
motions to dismiss.
On July 1, 2011, Plaintiff Victor Viruet (“Plaintiff”) was
walking

home

when

Viruet-Mojica

and

De

Jesus

pepper

sprayed

CIVIL NO. 12-1502 (JAG)

2

Plaintiff for no reason. As Plaintiff attempted to run to his
grandmother’s

house,

(“Morales-Sanchez”),
confrontation

a

neighbor,

attacked

ensued

between

Miguel

Plaintiff

A.

with

Plaintiff,

Morales
a

his

Sanchez

machete

and

a

grandmother,

a

passerby, and Moralez-Sanchez.
Moralez-Sanchez’s daughter called the police, telling them
Plaintiff had killed her father. The police subdued Plaintiff,
but stopped restraining him after realizing Moralez-Sanchez was
unharmed. Plaintiff started walking towards his grandmother’s
house when Viruet-Mojica pulled his gun out.

Meanwhile, (1)

Vazquez nonchalantly told Viruet-Mojica to shoot Plaintiff; (2)
another officer screamed “don’t do it”1; (3) Saez was standing
nearby talking on the phone; and (4) De Jesus was standing and
watching. Viruet-Mojica then shot Plaintiff twice in the stomach
with four or five seconds between shots.
Plaintiff’s

brother,

(“CVG”),

came

running

to

help

Plaintiff but Salgado told him not to touch Plaintiff. None of
the officers attempted to help. As a result of the injuries,
Plaintiff

suffered

severe

physical,

emotional

and

mental

damages. Plaintiffs Carmen Ocasio (Plaintiff’s grandmother), CVG
(Plaintiff’s brother), and Carlos Viruet (Plaintiff’s father)
also suffered severe emotional and mental damages from seeing
Plaintiff’s suffering.
1

The complaint states that the officer that yelled “don’t do it” abandoned
the scene, and was, thus, never identified. (Docket No. 1, p. 9).

CIVIL NO. 12-1502 (JAG)
Ramos

was

at

3

all

relevant

times

the

Toa

Alta

Police

Department Commissioner and was responsible for the training and
discipline
incident.

of

the
had

He

Toa

Alta

police

previously

officers

received

involved

the

about

complaints

in

the

conduct of the officers involved in this incident. The Toa Alta
Police

Department

had

also

received

a

number

of

complaints

concerning the use of excessive force by police, which were not
properly investigated and addressed.

STANDARD OF REVIEW
Under Fed. R. Civ. P. 12(b)(6), a Defendant may move to
dismiss an action for failure to state a claim upon which relief
can

be

granted.

complaint

must

To

plead

overcome

a

sufficient

Rule

facts

relief that is plausible on its face.”

12(b)(6)
“to

motion,

state

a

claim

the
to

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662 (2009).
In Ocasio-Hernández v. Fortuño Burset, 640 F.3d 1 (1st Cir.
2011), the First Circuit distilled from Twombly and Iqbal a twopronged test designed to measure the sufficiency of a complaint.
First,

the

reviewing

court

must

identify

and

disregard

“statements in the complaint that merely offer legal conclusions
couched as fact, or threadbare recitals of the elements of a
cause of action.”

Ocasio-Hernández, 640 F.3d at 12 (internal

CIVIL NO. 12-1502 (JAG)
punctuation

omitted).

4
In

this

analysis,

the

remaining

non-

conclusory factual allegations must be taken as true, even if
they are “seemingly incredible,” or “actual proof of those facts
is improbable.”

Id.

facts

a

taken

as

Finally, the Court assesses whether the

whole

“state

conceivable, case for relief.”
In

conducting

this

test,

a

plausible,

not

a

merely

Id.
a

court

must

not

attempt

to

forecast the likelihood of success even if recovery is remote
and unlikely.

See Ocasio-Hernández, 640 F.3d at 12.

Thus,

“[t]he relevant inquiry focuses on the reasonableness of the
inference of liability that the Plaintiff is asking the Court to
draw from the facts alleged in the complaint.”

Id. at 13.

DISCUSSION
Motion to dismiss as to Defendants Viruet-Mojica, De Jesus and
Vazquez
I.

Plaintiff’s Claims under 42 U.S.C. § 1983
The constitutional standard that governs a claim alleging

excessive

force

is

the

Fourth

Amendment’s

“objective

reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388
(1989). Therefore, Plaintiff’s § 1983 claim will be analyzed
under the Fourth Amendment, and any Fourteenth Amendment claim
is dismissed.

CIVIL NO. 12-1502 (JAG)
The

Fourth

5

Amendment

requires

the

force

used

during

a

seizure to be “reasonable” at all times. Graham v. Connor, 490
U.S. 386, 396 (1989). Courts must look at the totality of the
circumstances in evaluating the reasonableness of an officer’s
use of force. Id. In particular, courts should evaluate 1) the
severity of the crime at issue, 2) whether the suspect poses an
immediate threat to the safety of officers or others, and 3)
whether the suspect is actively resisting arrest or attempting
to

evade

arrest.

Id.

For

the

use

of

deadly

force

to

be

reasonable against a suspect fleeing by foot, an officer must
have probable cause that the suspect poses a threat of physical
harm.

See

Tennessee

v.

Garner,

471

U.S.

1,

11—12

(1985).

Finally, the reasonableness of an officer’s use of force is
“judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight”. Graham,
490 U.S. 386, 396 (1989).
Viruet-Mojica, De Jesus and Vazquez argue that Plaintiff
has failed to make the necessary factual allegations against
them to support a § 1983 claim for excessive force. (Docket No.
41, p. 4). The Court disagrees. There are two main instances
where excessive force is alleged: 1) when Plaintiff was pepper
sprayed without reason, and 2) when Plaintiff was shot twice and
denied any assistance.

CIVIL NO. 12-1502 (JAG)

6

In the first instance, the complaint states that ViruetMojica and De Jesus sprayed Plaintiff with pepper spray without
reason when Plaintiff was peacefully walking home. (Docket No. 1
p.

6).

At

this

time,

1)

there

was

no

crime

at

issue,

and

Plaintiff 2) did not pose a safety threat 3) nor was he evading
arrest. (Docket No. 1). Therefore, based on these allegations,
it is reasonable to infer that Viruet-Mojica and De Jesus used
unreasonable force. With regards to the shooting, the complaint
states

that

Viruet-Mojica

shot

Plaintiff

twice

after

Vazquez

told him to shoot, and as Defendant De Jesus stood and watched.
(Id.) At this point, 1) Plaintiff was not suspected of a serious
crime2, 2) he did not pose a threat to the safety of the officers
or bystanders, and 3) he was not resisting arrest. (Id.). It is
thus

reasonable

to

infer

that

Viruet-Mojica,

Vazquez

and

De

Jesus’s actions pertaining to Plaintiff’s shooting constituted
excessive force.3 Plaintiff’s § 1983 claims remain.
II.

Carmen

Ocasio,

Carlos

Viruet

and

CVG’s

Claims

under

42

U.S.C. § 1983
Viruet-Mojica, De Jesus and Vazquez argue that Plaintiffs
Carmen Ocasio, Carlos Viruet and CVG have no standing to sue
2

While police were told that Plaintiff had killed Morales-Sanchez (by
Morales-Sanchez’s daughter), the police found Morales-Sanchez unharmed, and,
thus, had no reason to suspect Plaintiff had committed any violent crime.
(Docket No. 1, p. 8).
3
De Jesus is liable for excessive force because, even though he was simply
present during the shooting, he had a “realistic opportunity” to stop the use
of excessive force. See Martinez v. Colon, 54 F.3d 980, 985 (1st Cir. 1995).
The Court’s reasoning is fully developed in the analysis of Saez and
Salgado’s motion to dismiss.

CIVIL NO. 12-1502 (JAG)

7

under 42 U.S.C. § 1983. (Docket No. 23). This is correct. “One
person may not sue . . . for the deprivation of another person’s
civil rights.” Quiles ex rel. Project Head Start, Municipality
of Utuado v. Hernandez Colon, 682 F.Supp. 127, 129 (D.P.R. 1988)
(citing Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982)). Since
Carmen Ocasio, Carlos Viruet and CVG’s civil rights were not
violated, their § 1983 claims are dismissed.
III.

Plaintiffs’ Supplemental Jurisdiction Claims
Viruet-Mojica, De Jesus and Vazquez argue that Plaintiffs’

Puerto Rico law claims should be dismissed because Plaintiffs
have failed to state a federal cause of action. (Docket No. 23).
However, since the Court will not dismiss Plaintiff’s § 1983
claim, the premise of their argument falls.
With regard to plaintiffs Carmen Ocasio, Carlos Viruet and
CVG’s state law claims, 28 U.S.C. §1367 expressly provides that
“supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties,” as long as they
form

part

of

the

same

“case

or

controversy.”

Since

Carmen

Ocasio, Carlos Viruet and CVG’s Puerto Rico claims arise out of
the same controversy as Plaintiff’s § 1983 claim, the Court can
exercise supplemental jurisdiction over them. Plaintiffs’ Puerto
Rico law claims remain.

CIVIL NO. 12-1502 (JAG)
IV.

8

Claim Under Article 1803 of the Puerto Rico Civil Code
Defendants move to dismiss the claims under Article 1803 of

the Puerto Rico Civil Code. Plaintiffs, on the other hand, do
not refute this in their opposition to the motion to dismiss.
Since issues are deemed waived if they are not sufficiently
argued,
1990),

United
the

States

Court

v.

adopts

Zannino,

895

Defendants’

F.2d

1,

argument

17

(1st

and

Cir.

dismisses

Plaintiffs’ Article 1803 claims against Viruet-Mojica, De Jesus
and Vazquez.

Motion to dismiss as to Defendants Saez and Salgado
An officer who is present and does not protect a victim
from another officer’s excessive force can be held liable under
42 U.S.C. § 1983 if he had a “realistic opportunity” to prevent
the excessive force. See Martinez v. Colon, 54 F.3d 980, 985
(1st Cir. 1995). Saez and Salgado argue that this “failure to
intervene” claim should be analyzed under the Due Process Clause
of

the

Fourteenth

Amendment,

rather

than

the

objectively

reasonable standard of the Fourth Amendment. However, the First
Circuit

has

held

the

exact

opposite.

See

Torres-Rivera

v.

O’Neill-Cancel, 406 F.3d 43, 51 (1st Cir. 2005) (holding that a
claim against an officer for failing to intervene against the
use of excessive force is a straightforward Fourth Amendment
excessive

force

claim).

Therefore,

the

Court

will

proceed

CIVIL NO. 12-1502 (JAG)

9

analyzing the § 1983 claims against these defendants under the
Fourth Amendment.
The key question concerning the claims against Saez and
Salgado is whether they had a “realistic opportunity” to prevent
the excessive force. See Martinez, 54 F.3d 980, 985 (1st Cir.
1995). Plaintiffs allege that while the shooting officer had his
gun out, one officer told him to shoot and another yelled “Don’t
do it.” (Docket No. 1, p. 8-9). It is reasonable to infer that
there was a long enough time lapse for Saez and Salgado, present
at

the

scene,

to

make

an

effort

to

prevent

the

shooting.

Furthermore, Plaintiffs allege that there were 4 or 5 seconds
between the first and second shot, (Docket No. 1, p. 9); again,
giving Saez and Salgado time to intervene and prevent the second
shot. Plaintiffs further allege that none of the officers tried
to

help

Plaintiff

after

he

was

shot,

and

that

Salgado

even

prevented Plaintiff’s brother from helping him. (Docket No. 1,
p. 9-10). Taking these factual allegations as true, we find it
reasonable

to

infer

that

Saez

and

Salgado

had

a

“realistic

opportunity” to stop the excessive force. Plaintiff’s § 1983
claims against Saez and Salgado remain. Pursuant to the same
analysis set forth as to Viruet-Mojica, De Jesus and Vazquez’s
motion to dismiss, any § 1983 claims asserted by Carmen Ocasio,
Carlos

Viruet

and

CVG

are

dismissed;

supplemental state law claims remain.

and

Plaintiffs’

CIVIL NO. 12-1502 (JAG)

10

Motion to dismiss as to Defendant Ramos
I.

Plaintiff’s Claims under 42 U.S.C. § 1983
As previously discussed, the constitutional standard that

governs

an

excessive

force

claim

is

the

Fourth

Amendment’s

“objective reasonableness” standard. Graham v. Connor, 490 U.S.
386, 388 (1989). Therefore, this claim will be analyzed under
the Fourth Amendment.
Government

officials

may

not

be

held

liable

for

the

unconstitutional conduct of their subordinates under a theory of
respondeat superior, but may be liable on the basis of their own
acts and omissions. Sanchez v. Pereira-Castillo, 590 F.3d 31, 49
(1st Cir. 2009) (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009); Aponte Matos v. Toledo Dávila, 135 F.3d 182, 192 (1st
Cir. 1998). Supervisory liability can arise under § 1983 “if a
responsible official supervises, trains, or hires a subordinate
with

deliberate

indifference

toward

the

possibility

that

deficient performance of the task eventually may contribute to a
civil rights deprivation.” Camilo-Robles v. Zapata, 175 F.3d 41,
44 (1st Cir. 1999). In addition, the plaintiff must show “an
affirmative
through

link,

conduct

whether
that

through

amounts

to

direct

participation

condonation

or

or

tacit

authorization, between the actor and the underlying violation.”
Id. This affirmative link can be shown through “a known history

CIVIL NO. 12-1502 (JAG)

11

of widespread abuse sufficient to alert a supervisor to ongoing
violations.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
582 (1st Cir. 1994).
Plaintiffs allege that Ramos had received prior complaints
about the officers involved in the incident that gave birth to
this complaint. (Docket No. 1, p. 20). Plaintiffs also state
that the Toa Alta Police Department had received past complaints
concerning the use of excessive force, which were not properly
addressed. (Docket No. 1, p. 20-21). Given these allegations it
is reasonable to infer that Ramos knew or should have known the
officers

he

supervised

had

a

propensity

for

using

excessive

force; coupled with an alleged known history of widespread abuse
in the Toa Alta Police department, the Court finds that the
complaint

establishes

improper

an

supervision

affirmative

and

the

link

between

officers’

Ramos’s

constitutional

violations. At the very least, the doors to discovery should be
opened,

for

it

may

shed

light

on

the

role

Ramos

played.

Plaintiff’s 42 U.S.C. § 1983 claim against Ramos remains.
II.

Carmen

Ocasio,

Carlos

Viruet

and

CVG’s

Claims

under

42

U.S.C. § 1983
The

Court

dismisses

these

claims

pursuant

to

the

same

analysis set forth as to Viruet-Mojica, De Jesus and Vazquez’s
motion to dismiss.

CIVIL NO. 12-1502 (JAG)
III.

12

Plaintiffs’ Supplemental Jurisdiction Claims
The

supplemental

Puerto

Rico

law

claims

against

Ramos

remain pursuant to the same analysis set forth as to ViruetMojica, De Jesus and Vazquez’s motion to dismiss.
IV.

Claim Under Article 1803 of the Puerto Rico Civil Code
Plaintiffs’ claims under Article 1803 of the Puerto Rico

Civil Code are dismissed pursuant to the same analysis set forth
as to Viruet-Mojica, De Jesus and Vazquez’s motion to dismiss.

CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and
DENIES
Mojica,
Carmen

IN
De

PART

Jesus

Ocasio,

dismissed;

the

motions

and

to

Vazquez;

dismiss
Saez

put

and

Carlos

Viruet

and

CVG’s

Plaintiffs’

claims

under

forth

Salgado;
§

Article

1983
1803

by

Viruet-

and

Ramos.

claims

are

are

also

dismissed. All other claims remain.

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 24th day of July, 2013.

S/Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge