Ramos-Torres et al v. Municipality of Caguas et al
Filing
102
ORDER granting in part and denying in part 85 motion for summary judgment. Partial Judgment will be entered in a separate docket entry. Signed by Judge Jay A. Garcia-Gregory on 7/5/2016. (ALP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSE LUIS RAMOS-TORRES, et al.,
Plaintiffs,
CIVIL NO. 12-1706 (JAG)
v.
MUNICIPALITY OF CAGUAS, et al.,
Defendants.
OPINION AND ORDER
GARCIA-GREGORY, D.J.
Pending before this Court is Defendants’ Motion for Summary Judgment, Docket No. 85,
and Jose Luis Ramos-Torres (“Ramos-Torres”), Katiushka Lopez-Fabbiani (“Lopez-Fabbiani”),
and All Day Convenience Store, Corp., (“ADCS”) (collectively, “Plaintiffs”) Opposition to
Summary Judgment.1 Docket No. 91. After reviewing the filings and applicable law, Defendants’
Motion for Summary Judgment is GRANTED in part and DENIED in part.
BACKGROUND2
On August 27, 2012, Plaintiffs filed the instant suit alleging violations of their Fourth and
Fourteenth Amendment rights under 42 U.S.C. 1983 (“Section 1983”). Docket No. 1. Plaintiffs also
The Court identifies the Municipality of Caguas (the “Municipality”), the Honorable William MirandaTorres (“Mayor Miranda –Torres”), Vice-Mayor Wilfredo A. Puig-Perez (“Vice-Mayor Puig-Perez”),
Municipal Police Commissioner William Marrero-Ayala (“Commissioner Marrero-Ayala”), agent Abimael
Rodriguez (“Agent Rodriguez”), agent Pablo Vargas (“Agent Vargas”), Lieutenant Pedro Flores (“Lt.
Flores”), and other unnamed parties collectively as “Defendants.” Docket No. 7.
2 For purposes of Defendants’ Motion for Summary Judgment, all facts presented by Plaintiff and supported
by affidavits or other evidence are presumed to be true. Facts are borrowed from Defendant’s Statement of
1
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2
seek pendent jurisdiction for violations of Article 1802, P.R. Laws ann. tit. 31, § 5141; and Article
1803, P.R. Laws Ann. tit. 31, § 5142, of the Puerto Rico Civil Code. Id. Below is a summary of the
undisputed facts followed by the disputed ones.
A. Undisputed Facts3
Fines Issued By Caguas Municipal Police Department
Plaintiff Ramos-Torres bought a convenience store in Caguas, Puerto Rico, in November
of 2010, and managed it until May of 2012. Docket No. 86 at 2. After the sale, Ramos-Torres, who
was at the time the president of ADCS, incorporated All Day Convenience Store, Corp, to operate
the convenience store in Caguas. Id. at 4. Beginning in August 2011, Caguas Municipal Police
Department (“CMPD”), began issuing fines to ADCS for allegedly violating the Municipal Public
Order Code (“MPOC”). Id. at 7. These fines totaled over $3000. Id. Specifically, the fines issued
were for violating: (1) Article 3.02, which prohibits the sale of alcoholic beverages for consumption
in public spaces outside certain businesses; (2) Article 3.05, which prohibits the sale, by certain
businesses, of alcoholic beverages after certain times; and (3) Article 10.07 which involves
complying with municipal permit requirements. Id. at 17. Shortly thereafter, Ramos-Torres met
with Commissioner Marrero-Ayala to discuss why his store was constantly getting fined. Id. at
20-21. In that meeting Ramos-Torres discussed the fines and informed Commissioner MarreroAyala that a municipal police officer had taken the patent from ADCS. Id. at 21. After the meeting,
Uncontested Facts, Docket No. 86, and Plaintiffs Response in Opposition to Defendants’ Statement of
Uncontested Material Facts, Docket No. 91-1.
3 When referring to the Statement of Uncontested Facts, and the replies, the Court also incorporates by
reference all the evidence to the record cited therein.
Civil No. 12-1706 (JAG)
3
Commissioner Marrero-Ayala gave instructions to the CMPD to return the patent to RamosTorres. Id. at 23. However, fines continued to be issued to ADCS. Id. (exhibit W). All the fines
issued during the relevant period were contested and subsequently dismissed by a municipal
administrative judge. Id. at 18-19.
March 9, 2012 Intervention
On March 9, 2012, CMPD and Puerto Rico Police Department (“PRPD”) officers as well as
Department of Treasury agents, Puerto Rico Electric Power Authority employees, and firemen,
entered and searched ADCS. Id. Thereafter, Ramos-Torres arrived at ADCS and started talking on
the phone with his lawyer. Docket No. 97 at 98. When Agent Vargas saw Ramos-Torres on the
phone he proceeded to pull him from behind the counter to the back. Docket No. 86 at 31. At all
times Agent Rodriguez was inside the store, but behind the check-out counter when the alleged
altercation between Agent Vargas and Ramos-Torres occurred. Docket No 85. While the
altercation was happening, Lt. Flores, one of the officers present at the scene, was outside or just
coming into the store. Id.
B. Contested Facts
Plaintiffs allege that the Municipality of Caguas mistakenly issued the 2011 use permit to
ADCS with an incorrect name. Docket No. 91-1 at 2. Ramos-Torres also claims that he met with
Vice-Mayor Puig and with Mayor Miranda-Torres at a Christmas party in 2011. Id. at 2, 12, 20.
Ramos-Torres also argues that in the altercation between Agent Vargas and Ramos-Torres-Agent
Vargas elbowed him in the face, took his phone, and pushed him to the back. Id. at 22.
Civil No. 12-1706 (JAG)
4
Defendants deny Plaintiffs recitation of the contested facts. Docket No. 97. Defendants
argue that Mayor Miranda-Torres does not recall having a meeting with Ramos-Torres. Id. at 810, 55. Defendants also claim that Agent Vargas did not use excessive force against Ramos-Torres,
or at least did not twist or bend his arms or elbowed him in the face. Id. at 67.
With those facts in mind, and disputes between them, the Court now turns to the Motion
at hand.
STANDARD OF REVIEW
A motion for summary judgment will be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is in genuine dispute if it could be resolved in favor of either party, and
it is material if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice, 355
F.3d 6, 19 (1st Cir. 2004).
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Once the moving
party has properly supported [its] motion for summary judgment, the burden shifts to the
nonmoving party . . . .” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(citing DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). The nonmovant must demonstrate
“through submissions of evidentiary quality[] that a trial worthy issue persists.” Iverson v. City of
Boston, 452 F.3d 94, 98 (1st Cir. 2006) (internal citations omitted). In evaluating a motion for
summary judgment, the court “must view the entire record in the light most hospitable to the
Civil No. 12-1706 (JAG)
5
party opposing summary judgment, indulging in all reasonable inferences in that party's favor.”
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). The court may safely ignore “conclusory
allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). It is important to note that, throughout this process,
courts cannot make credibility determinations or weigh the evidence, as these are jury functions
and not those of a judge. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
ANALYSIS
Defendants claim that Plaintiffs lack standing to pursue any action against them. Docket
No. 85. Defendants further claim that there is not enough evidence in the record to support Fourth
and Fourteenth Amendment violations under Section 1983. Id. Finally, Defendants argue that even
if there were constitutional violations they are entitled to qualified immunity. Id. The Court
addresses each argument in turn.
I.
Standing4
The Court in an Opinion and Order dated September, 30, 2015, resolved the standing
question as to who had standing to bring a claim in this case. Docket No. 74. The Court dismissed
Defendants argue that the standing question should be resolved in their favor because Plaintiffs did not
address Defendants’ standing argument in their Opposition for Summary Judgment brief. Docket No. 96
at 3. Although the Plaintiffs did not brief this issue, because standing involves the federal court’s subject
matter jurisdiction, the Court may on its own assess whether a plaintiff lacks standing to sue. See New
Hampshire Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 12 (1st Cir. 1996) (Standing is a “threshold
question in every federal case, determining the power of the court to entertain the suit.”); see also United
States v. Cotton, 535 U.S. 625, 630 (2002) (stating that when a requirement goes to subject-matter
jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not
presented).
4
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6
Lopez-Fabbiani and Ramos-Torres’s Section 1983 claims because as officers of the corporation
they lacked standing to enforce ADCS’s claims.5 Id. Defendants now want to revive the issue
arguing that ADCS does not have standing to sue because for the time frame of alleged unjust fines
ADCS did not have a valid use permit.6 Docket No. 85. The gist of Defendants’ argument is that
since a business needs a use permit to operate in Caguas, and the Municipality issued a use permit
to “All Day Convenience Stores, Inc.,” (an alleged third-party), and not “All Day Convenience
Stores, Corp.” (Plaintiff in this case), then ADCS cannot sue Defendants as it would lack standing
to assert “All Day Convenience Stores, Inc.’s” rights. (emphasis ours). The Court disagrees.
Federal courts are constitutionally limited to only hear actual cases and controversies. Katz
v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012) (citing U.S. Const. art. III, § 2, cl. 1.). A case and
controversy exists when a party demonstrated “such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends.” Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
The standing analysis is bifurcated into two areas: constitutional requirements and
prudential concerns. Pagán v. Calderón, 448 F.3d 16, 27 (1st Cir.2006) (citations omitted). On the
constitutional side, a party must satisfy three requirements to have Article III standing on a claim:
(1) actual or threatened injury; (2) the injury is fairly traceable to the defendant’s conduct; and (3)
it must be likely that the injury would be redress by a favorable decision on the merits. Lujan v.
Although it is possible for a shareholder of a company to bring a derivative action on a corporation’s
behalf, Plaintiffs in their briefs did not assert their status as shareholders.
6 A use permit allows the establishment owner to operate inside the Municipality of Caguas. Docket No.
86-5.
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Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). “The party invoking federal jurisdiction bears the
burden of establishing these elements.” Id. at 561.
Applying these principles, the Court finds that ADCS has standing. First, there is enough
evidence on the record to support that ADCS suffered an injury and that that injury was caused
by Defendants. See Docket No. 7. In its complaint, ADCS alleges that it suffered a Fourteenth
Amendment violation because officers of the Municipality of Caguas selectively issued improper
fines to ADCS.7 Id. Thus, the first and second prongs are met. Donahue v. City of Boston, 304 F.3d 110,
115 (1st Cir. 2002) ([S]tanding is gauged by the specific common-law, statutory or constitutional
claims that a party presents. (quotations omitted)). Second, ADCS alleges Fourteenth
Amendment violations against Defendants and seeks monetary compensation for these violations.
Id. If Plaintiffs obtain a favorable decision, the monetary award would, in theory, redress their
injury. Thus, the third and final constitutional prong is met. The standing inquiry, however, does
not end here.
Adding to these constitutional requirements, prudential concerns require “a plaintiff to
show that his claim is premised on his own legal rights (as opposed to those of a third party), that
his claim is not merely a generalized grievance, and that it falls within the zone of interests
protected by the law invoked.” Pagan, 448 F.3d at 27 (citations omitted). Defendants here are
concerned that ADCS is asserting “All Day Convenience Store, Inc.’s” (an unknown third party
Defendants do not assert that Plaintiffs lack standing on the Fourth Amendment excessive force claim.
Docket No 85. Thus, the Court only address standing regarding the alleged Fourteenth Amendment
violation based on the selective fines issued to ADCS.
7
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that does not exist) rights and not its own, as ADCS’s exact and full name is not in the 2011 use
permit. Docket No. 85.
Contrary to Defendants’ assertion, in this case prudential considerations do not prevent
litigation of ADCS’s claims. Although a business may in fact need a use permit to operate in
Caguas, the use permit prerequisite to sue in federal court is an arbitrary requirement that
Defendants want to adamantly impose on the Plaintiffs. This argument thus fails for various
reasons. First, Defendants do no cite, and we could not find, any case law stating that not having
a valid use permit would oust a plaintiff from federal court when pursuing a Section 1983 action
against a municipality.
Second, as the record stands and by Defendants’ own evidentiary findings, the Court notes
that the permit in question was supposed to be issued to ADCS, Corp. Defendants state that two
use permits were issued in this case, the 2011 use permit, Docket No. 86-6, and the 2012 use permit,
Docket No. 86-5. The standing claim in this case revolves around the former. Defendants claim
that ADCS did not have a valid use permit for 2011 as it had “All Day Convenience Store, Inc.,”
instead of “All Day Convenience Store Corp,” displayed in the permit. Docket No. 85. However,
after examining the 2011 permit request form, it is clear that Plaintiffs had correctly filled “All Day
Convenience Store, Corp.” in the “company name” line. Docket No. 86-6 at 2. It seems that it was
the Municipality that mixed up the names, not Plaintiffs, and as matter of equity ADCS’s case
should not be dismissed for the Municipality’s mistake. Congregation Etz Chaim v. City of Los Angeles,
371 F.3d 1122, 1125 (9th Cir. 2005) (holding that a municipality was equitably estopped from
revoking a permit to construct based on the city’s mistake in issuing the permit when the city had
full knowledge of the plans to build and size of the building).
Civil No. 12-1706 (JAG)
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Thus, ADCS has standing to sue.8
II.
Section 1983 Claims
It is well established that in order to have a valid Section 1983 claim a plaintiff must allege
that (1) he was deprived of a federal right; and (2) that the person who deprived him of that right
acted under color of state law. Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011). Under Section
1983, a defendant has acted under color of state law if he has abused his power “possessed by virtue
of state law and made possible only because the wrongdoer is clothed with the authority of state
law.” United States v. Classic, 313 U.S. 299, 326 (1941).
For the sake of clarity the Court will first take on the alleged Fourth Amendment violation
based on the March 9, 2012 intervention at ADCS. The Court will then discuss the Fourteenth
Amendment violation based on the alleged illegal fines given to ADCS.
A. The Fourth Amendment
The Fourth Amendment protects arrestees and other “seized individuals” from
unreasonable seizures. See U.S. Const. amend. IV. The Fourth Amendment springs into action
when an officer exceeds the bounds of reasonable force in executing an arrest or investigatory
stop. Graham v. Connor, 490 U.S. 386, 394-95 (1989). “The justification needed for these two types
8 Notwithstanding the inconsistent name, the 2011 use permit had the address of the convenience store and
a request number which would have given anyone the impression and notice that it was a valid use permit
issued to ADCS and to be used by Plaintiffs. Docket No. 86-6 at 2. Additionally, in Defendants’ own
Statements of Uncontested Facts they admit that the use permit issued after the one in question (2012 use
permit) cancelled the use permit issued in 2011 (the invalid permit in question). Docket No. 86 at 10. This
supports the inference that the Municipality knew it had issued a permit for ADCS to operate in Caguas,
but had just made a clerical mistake and inscribed the wrong name, when issuing the 2011 permit.
Civil No. 12-1706 (JAG)
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of seizures is qualitatively different: an arrest must be grounded on a showing of probable cause,
whereas a[n] [investigatory stop] may be grounded on a lesser showing equivalent to reasonable
suspicion.” Morelli v. Webster, 552 F.3d 12, 19 (1st Cir. 2009) (internal citations omitted).
1. Qualified Immunity
The qualified immunity inquiry has two requirements, taking the facts in the light most
favorable to plaintiffs, the Court must first ask if “(1) whether the facts alleged or shown by the
plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was clearly
established at the time of the defendant’s alleged violation.” Glik v. Cunniffe, 655 F.3d 78, 81 (1st Cir.
2011) (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). If these two questions are
answered in the affirmative then an inquiring court must then ask whether an objectively
reasonable officer, performing discretionary functions, would have understood his or her conduct
violated that clearly established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818–19
(1982); see also Crawford–El v. Britton, 523 U.S. 574, 591 (1998).
Agent Vargas
Agent Vargas argues that he is entitled to qualified immunity and cannot be held liable to
Ramos-Torres for a Fourth Amendment violation. Docket No. 85 at 27. The Court disagrees.
As to the first prong, it is clear that Ramos-Torres established a valid Fourth Amendment
claim. Courts analyze Fourth Amendment excessive force claims under an objective reasonable
lens, not considering an officer’s subjective “intent or motivation.” Id. at 397; see also Saucier v. Katz,
533 U.S. 194, 202 (2001), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Rather,
courts determine whether a “defendant officer employed force that was unreasonable under the
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circumstances.” Graham, 490 U.S. at 397. This determination requires courts to balance
contravening interests, weighing in three equally heavy factors (1) “the severity of the crime at
issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,”
and (3) “whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.”
Id. at 396; see also Raiche v. Pietroski, 623 F.3d 30, 36 (1st Cir. 2010).
In this case all the factors tip the scales in favor of Ramos-Torres. There was no cognizable
crime taking place when the intervention at ADCS started, or when Ramos-Torres was talking
on the phone. Docket No. 91-1 at 22. In fact, it is alleged that the highest ranking officer at the
store gave Ramos-Torres permission to call his lawyer. Id. Moreover, Ramos-Torres posed little if
no threat to the police as he was only talking on his cellular phone behind a counter. Id. Finally,
there was no evidence that Ramos-Torres would have resisted or attempted to evade arrest by
flight to excuse Agent Vargas’ force employed, namely twisting his arm, taking his cell away from
his person, elbowing him in the face and pushing him to the back of the store. Id. Thus, taking all
the facts in the light most favorable to Ramos-Torres, a jury could infer that Agent Vargas
intentionally used more force than objectively reasonable.9 Accordingly, the Court concludes that
for purposes of determining the first prong of qualified immunity, Agent Vargas used force that
was unreasonable under the circumstances in violation of the Fourth Amendment.
The second prong of the qualified immunity test is also satisfied here. A court must first
ask if there was clearly established right at the time of the events. A right is “clearly established”
The Court notes that it is disputed whether Agent Vargas twisted Ramos-Torres’s arm, elbowed him in
the face and took away his cell phone.
9
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if “the state of the law at the time of the alleged violation gave the defendant fair warning that his
particular conduct was unconstitutional.” Maldonado, 568 F.3d at 269. The First Circuit has given
clear guidance and extensively elaborated on the right to be free from excessive force. Morelli, 552
F.3d at 23. Given this well-established jurisprudence there is no doubt that this right was clearly
established. The last question that the Court must answer is whether a reasonable officer in Agent
Vargas’ position “should have understood that his actions infringed that right.” Id. This inquiry is
a complicated one as “reasonable people sometimes make mistaken judgments, and a reasonable
officer sometimes may use unreasonable force.” Id. at 24. In this case, however, according to the
facts presented by Ramos-Torres, Agent Vargas’ use of force was not justified and cannot be
claimed to be an excusable mistake. Id. (“qualified immunity gives an officer the benefit of a margin
of error”). Not even taking the facts as stated by Defendants can we find that this was a protected
mistake as there was no cause why Agent Vargas had to detain Ramos-Torres in the first place.
Accordingly the Court finds that Ramos-Torres has made a sufficient showing to defeat Agent
Vargas’ qualified immunity defense.
Agent Rodriguez
Defendants also argue that Agent Rodriguez cannot be held liable for failure to intervene
in the alleged unconstitutional violation of Ramos-Torres because he is entitled to qualified
immunity. Docket No. 85 at 29. Defendants do not delve into the qualified immunity analysis
regarding the failure to intervene claim against Agent Rodriguez. Id. Instead, they only argue that
that because the state of the law did not make Agent Vargas’ actions a constitutional violation
then Agent Rodriguez did not have any duty to intervene. Id. The Court disagrees.
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Addressing the first prong, and taking as true Ramos-Torres account of facts, he
established a cognizable failure to intervene violation under the Fourth Amendment. As stated
above, the Fourth Amendment protects from unreasonable excessive force by a police officer. As
a corollary to this rule, the First Circuit has consistently held that law enforcement officers,
supervisory and non-supervisory, who have a realistic opportunity to prevent another officer from
violating a person’s constitutional rights may be liable for failing to do so. See Gaudreault v.
Municipality of Salem, Mass., 923 F.2d 203, 207 n.3 (1st Cir. 1990). Courts have reasoned that “one
who is given the badge of authority of a police officer may not ignore the duty imposed by his
office and fail to stop other officers who summarily punish a third person in his presence or
otherwise within his knowledge.” Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972). Here, it is clear, and
uncontested from the record that Agent Rodriguez was physically present and watching when
the alleged constitutional violation against Ramos-Torres was taking place. Docket No. 86 at 3031. As explained above, a reasonable jury could conclude that Agent Vargas used excessive force
against Ramos-Torres. As a result, Agent Rodriguez had a duty to stop Agent Vargas’ excessive
use of force either by ordering him to stop, or by trying to physically stop the altercation. By failing
to intervene in this situation, a rational jury could find that Agent Rodriguez failed to intervene
to protect Ramos-Torres’s Fourth Amendment rights.
The second prong is satisfied as well. The First Circuit has held in at least two cases that
an officer has an affirmative duty to stop another officer from violating a third party’s
constitutional rights. See Gaudreault, 923 F.2d at 207 n.3 (agreeing with other decisions holding
that officers present at the scene who fail to take reasonable steps to protect the victim from
another officer’s excessive force can be held liable under Section 1983); see also Davis v. Rennie, 264
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F.3d 86, 114 (1st Cir. 2001) (stating that “[a] police officer has a duty to intervene in cases in which
a fellow officer uses excessive force because his office carries with it an affirmative duty to act”).
Thus, Agent Rodriguez was on notice that he had to protect Ramos-Torres from any
constitutional violation being administered by Agent Vargas. Likewise, a reasonable officer in
Agent Rodriguez position would have known that his actions, or inaction in this case, would have
infringed upon Ramos-Torres’s rights. The fact that Agent Rodriguez was behind a counter does
not excuse his action of standing idle and not ordering Agent Vargas to stop. Accordingly, the
Court finds that Ramos-Torres has put forth enough evidence to defeat Agent Rodriguez’s
qualified immunity defense.
Having disposed of the qualified immunity defenses, the Court now turns to the merits of
the Summary Judgment Motion.
2. Excessive Force
The Court finds that summary judgment as to Ramos-Torres’s Fourth Amendment claim
against Agent Vargas must be DENIED. In this case, it is clear that there are several issues that
preclude summary judgment. First, Ramos-Torres and Agent Vargas’ versions of what occurred
at the convenience store on March 9, 2012, differ in many ways. While both sides admit that there
was some kind of contact between Agent Vargas and Ramos-Torres, according to Ramos-Torres
side of the story Agent Vargas detained him and proceeded to twist his arm, take his phone, elbow
him in the face and push him to the back of the store. Docket No. 91-1 at 22. Agent Vargas’s denies
Ramos-Torres’s version of events, Docket No. 97 at 99, but admits that Ramos-Torres was pulled
back from behind the counter towards the back by Agent Vargas, Docket No. 86. Thus, a
reasonable jury presented with Ramos-Torres’s account of the events could conclude that Agent
Civil No. 12-1706 (JAG)
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Vargas did in fact use excessive force. Accordingly, given the conflicting facts and evidence
presented by Ramos-Torres, there is an genuine dispute of fact, and his Fourth Amendment claim
against Agent Vargas must move forward to trial.10 Scott v. Harris, 550 U.S. 372, 380 (2007) (stating
that “[a]t the summary judgment stage, facts must be viewed in the light most favorable to the
nonmoving party only if there is a ‘genuine’ dispute as to those facts.” (quoting Fed. R. Civ. P.
56(c)).
3.
Failure to Intervene
In the same vein, summary judgment must be DENIED on Ramos-Torres’s Fourth
Amendment claim against Agent Rodriguez, but GRANTED in favor of Lt. Flores. Plaintiffs allege
that Lt. Flores and Agent Rodriguez failed to intervene while Agent Vargas was using excessive
force to detain Ramos-Torres. Docket No. 7. According to Defendants, Lt. Flores was either
outside or coming in when the alleged excessive force was being applied. Docket No. 86 at 30.
Defendants also state that Agent Rodriguez was on the other side of the counter while the alleged
constitutional violation was happening and would not have had a realistic opportunity to stop
the alleged unconstitutional violation. Id. The Court agrees in part and disagrees in part.
Lt. Flores
Ramos-Torres submitted an unsworn statement under penalty of perjury to support that Agent Vargas
subjected him to excessive force. Docket No. 91-4. Generally, facts submitted by the party opposing the
summary judgment motion if supported by affidavits or other evidentiary materials are regarded as true.
Hunt v. Cromartie, 526 U.S. 541, 552 (1999); see also 10A CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE & PROCEDURE § 2727 (3d ed. 2016). Thus, the Court deems Ramos-Torres unsworn
statement as true for purposes of disputing the facts on this motion. Id.
10
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Based on the evidence, the Court finds that Lt. Flores is not liable for failing to intervene
when Agent Vargas was using excessive force against Ramos-Torres. It is well settled that Lt.
Flores has the affirmative duty to stop a constitutional violation even if it comes from a fellow
officer. Gaudreault, 923 F.2d at 207 n.3. However, that liability cannot attach if he did not have a
“realistic opportunity” to stop the alleged constitutional violation. Id. Defendants state, and
Plaintiffs admit, that Lt. Flores was either outside or just coming in when the alleged
constitutional violation happened. Docket No. 86 at 30 (Defendants’ Statement of Uncontested
Facts); see also Docket No. 91-1 at 10 (Plaintiffs’ Statement of Uncontested Facts). Because Lt.
Flores cannot be in two places at once, and at best he was entering the store when the alleged
constitutional violation was happening, then as a matter of law he cannot be held liable for failing
to intervene on Ramos-Torres behalf. See Turner v. Scott, 119 F.3d 425 (6th Cir. 1997) (not finding
liability for failure to intervene because the entire encounter happened behind the officer’s
accused of failing to intervene back); see also Thompson v. Boggs, 33 F.3d 847, 857 (7th Cir. 1994), cert.
denied, 514 U.S. 1063 (1995) (finding that the officer accused of failing to intervene was not liable
because he did not have a realistic opportunity to prevent the use of excessive force as he was just
getting out of his squad car when the constitutional violation was taking place). Thus, RamosTorres’s Fourth Amendment claim against Lt. Flores for failing to intervene is DISMISSED.
Agent Rodriguez
On the other hand, Agent Rodriguez was present when the alleged constitutional violation
against Ramos-Torres was happening. Docket No. 86 at 30-31. Plaintiffs claim that Agent
Rodriguez was the highest ranking officer from the Treasury Department at the scene. Docket No.
86 at 31. As the highest-ranking officer, he could have tried to physically stop, or at the very least
Civil No. 12-1706 (JAG)
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order Agent Vargas to stop the alleged constitutional violation against Ramos-Torres.11 See Durham
v. Nunam, 97 F.3d 862 (6th Cir. 1996), cert. denied, 520 U.S. 1157 (1997) (finding that the nurse in a
mental hospital was liable for failing to intervene when a mental patient was being attacked by
security officers and she could have helped by directing the security officers to stop or by calling
security from the main building). Defendants’ argument that Agent Vargas’ did not use excessive
force and thus Agent Rodriguez did not fail to intervene is unavailing. First, Defendants’ assertion
that Agent Vargas did not use excessive force is conclusory as the question of whether Agent
Vargas used excessive force against Ramos-Torres is a highly disputed one and as such, must go
to the jury. See Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124 F.3d 47, 50 (1st Cir. 1997) (stating,
with respect to summary judgment, “the nonmovant must identify properly substantiated facts
sufficient to establish a trialworthy issue”). Second, the jury being the proper vehicle to determine
if Agent Vargas used excessive force, it is also the proper one to determine if Agent Rodriguez
could have stopped it. Thus, a rational jury could determine that it was within Agent Rodriguez’s
control to stop Agent Vargas’ alleged constitutional violation.
As a result, Plaintiffs’ Fourth Amendment claim for failing to intervene against Agent
Rodriquez survives summary judgment and must be heard at trial.
11 Agent Rodriguez and Agent Vargas are from different law enforcement agencies and it can be argued that
one agency cannot control the other even if the officer from the other agency outranks the other officer. See
Docket No. 7. However, other courts have held liability still attaches irrespective that the officer who failed
to intervene belonged to a different government agency. Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995). We
agree.
Civil No. 12-1706 (JAG)
18
B. Fourteenth Amendment Claim
Plaintiffs allege that Defendants targeted ADCS and selectively and arbitrarily fined the
convenience store in violation of the Equal Protection clause of the Fourteenth Amendment.
Docket No. 7. Defendants argue that the Municipal supervisors were not deliberately indifferent
to alleged constitutional violations, and that the Municipality did not have a policy or custom of
infringing federal rights. Docket No. 18 at 16-18. The Court DISMISSES the equal protection claim
for different reasons.
1. Equal Protection and Due Process
The equal protection clause of the Fourteenth Amendment requires government actors to
treat like persons alike, creating a selective treatment cause of action. Rivera-Corraliza v. Morales,
794 F.3d 208, 225 (1st Cir. 2015) (citing Aponte-Ramos v. Álvarez–Rubio, 783 F.3d 905, 908 (1st Cir.
2015)). In order to a survive summary judgment motion in a selective treatment claim, plaintiffs
must show that “(1) the person, compared with others similarly situated, was selectively treated;
and (2) that such selective treatment was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith
intent to injure a person.” Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995) (quoting Yerardi’s
Moody St. Restaurant & Lounge, Inc. v. Bd. of Selectmen, 878 F.2d 16, 21 (1st Cir. 1989)).
Plaintiffs claim no membership to protected class. Instead, they argue that they were
singled out by the CMPD and given arbitrary fines in bad faith with the intent to injure them.
Docket No. 91 at 11. Thus, by alleging selective treatment of the laws to one entity a “class of one”
is created. To prevail in a “class of one” equal protection claim, however, Plaintiffs must show that
Civil No. 12-1706 (JAG)
19
they were similarly situated, but differently treated. See Cordi–Allen v. Conlon, 494 F.3d 245, 250 (1st
Cir.2007). At a minimum plaintiffs must put forth “sufficient proof on the relevant aspects of the
comparison to warrant a reasonable inference of substantial similarity.” Cordi–Allen v. Conlon, 494
F.3d 245, 251 (1st Cir. 2007) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)). In
other words Plaintiffs have to show that the CMPD treated ADCS differently than other stores.
In this case, the evidence submitted by both Plaintiffs and Defendants fails to meet the “similarly
situated” test. Indeed, Plaintiffs in their brief, Docket No. 91, and in their amended complaint,
Docket No. 7, fail to compare themselves with any other store in the Municipality of Caguas or at
least in the territory of Puerto Rico. It would have been enough to ask a similar store in Caguas if
they had been fined in the same manner as ADCS was in this case to satisfy the similarly situated
prong. At any rate, this oversight defeats Plaintiffs equal protection claim and creates a domino
effect dismissing the other claims as the other claims require a constitutional violation and this
was the only constitutional violation they cognizably plead against the Municipality. Docket No.
91.
Accordingly, Plaintiffs’ equal protection claim is DISMISSED.12
Since the analysis required for equal protection and substantive due process are the same, we examine
them together. González–Droz v. González–Colón, 660 F.3d 1, 9 (1st Cir. 2011); Medeiros v. Vincent, 431 F.3d 25,
32-33 (1st Cir. 2005). For both claims, when plaintiffs do not allege that a fundamental right is affected,
they are required to show that the governmental infringement is not rationally related to a legitimate
government purpose. Id. Here, the only fundamental right Plaintiffs allege is being infringed is premised
under an equal protection claim, which fails as stated in the analysis above. Docket No. 91 at 13. Moreover,
Plaintiffs do not allege any infringement on any other fundamental interest protected under the due
process clause. Accordingly, Plaintiffs substantive due process claim must also fail.
12
Civil No. 12-1706 (JAG)
20
2. Supervisory Liability
The First Circuit has held that “[i]n an action brought under § 1983, supervisors are not
automatically liable for the misconduct of those under their command.” Carmona v. Toledo, 215 F.3d
124, 132 (1st Cir.2000). However, a supervisor’s liability “can be grounded on either the
supervisor’s direct participation in the unconstitutional conduct, or through conduct that
amounts to condonation or tacit authorization.” Whitfield v. Melendez–Rivera, 431 F.3d 1, 14 (1st Cir.
2005) (citing Camilo–Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999)). Here, since no
unconstitutional conduct is alleged in violation of the Fourteenth Amendment, then this claim
fails as well. Accordingly, the Fourteenth Amendment supervisory liability claim under Section
1983 must be DISMISSED.
3. Municipal Liability13
The Supreme Court in Monell v. Dept. Social Services held that municipalities could be held
liable for violations of Section 1983, but not on the basis of respondeat superior. Rather, municipal
liability is based upon enforcement of an “official policy or custom” that caused the deprivation of
the plaintiff’s federal right. Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 769 (1st Cir. 2010)
(quoting Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir.2008)).
The Court does not include all Municipal officials in this section since “it suffices to plead and prove
against the municipality that municipal actors committed the tort against the plaintiff and that the tort
resulted from a policy or custom of the municipality.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013)
Thus, bringing claims against the Municipality as well as all of its officials would be redundant. See Wilson
v. Town of Mendon, 294 F.3d 1, 7 (1st Cir. 2002) (noting that nothing “prevent[s] a plaintiff from foregoing the
naming of an individual officer as a defendant and proceeding directly to trial against the municipality.”).
13
Civil No. 12-1706 (JAG)
21
The Supreme Court has held that under certain limited circumstances a municipality may
be “liable under 42 U.S.C. § 1983 for constitutional violations resulting from its failure to train
municipal employees.” Canton v. Harris, 489 U.S. 378, 380 (1989). Section 1983 liability attaches,
however, only when the municipality’s failure to train its officers “amounts to deliberate
indifference to the rights of persons with whom the police come into contact.” Id. at 388. Finally,
municipal liability requires the policy or custom is casually linked to the constitutional harm.
Santiago v. Fenton, 891 F.2d 373, 381 (1st Cir.1989). Municipal liability based on failure to train
requires showing that the failure to train caused a constitutional violation. Since Plaintiffs did not
adequately plead and support a Fourteenth Amendment violation, then municipal liability cannot
attach to Defendants. Accordingly, the failure to train claim must be DISMISSED.
III.
State Law Claims
Defendants did not argue why the pendent state law claims should be dismissed. Docket
No. 85 at 23. Thus, the state law claims shall remain pending.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Fourth Amendment claim against Agent Vargas and
Agent Rodriguez survive summary judgment. Plaintiffs’ Fourth Amendment claim against Lt.
Flores is DISMISSED with prejudice. Plaintiffs’ Fourteenth Amendment claims are DISMISSED
against all the Defendants with prejudice. Plaintiffs’ state law claims also survive the Summary
Judgment Motion.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of July of 2016.
Civil No. 12-1706 (JAG)
22
s/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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