Llanos-Morales et al v. Municipality of Carolina et al
Filing
69
OPINION AND ORDER granting 46 Motion for Summary Judgment.The trial set for 7/9/2014 is VACATED. Plaintiffs must file a motion in compliance with the attached Order by 7/11/2014. Signed by US Magistrate Judge Silvia Carreno-Coll on 6/30/2014. (NBB)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
ALBERTO LLANOS-MORALES,
ET AL.,
Plaintiff,
v.
CIV. NO.: 12-1847(SCC)
MUNICIPALITY OF CAROLINA,
ET AL.,
Defendant.
MEMORANDUM AND ORDER
Before the Court is the municipal and supervisory defendants’ motion for summary judgment. Docket No. 46. After
reviewing the parties’ filings, and for the reasons explained
below, we grant the motion.
On October 10, 2011, Plaintiffs Alberto and Jennifer Llanos
were traveling in Jennifer’s Toyota Corolla. Docket No. 59,
LLANOS-MORALES v. CAROLINA
Page 2
¶ II.A.1 Alberto was driving, and Jennifer was in the passenger
seat. Id. At approximately 3:00 p.m. that afternoon, Jennifer
and Alberto were involved in a minor traffic accident that also
involved the personal vehicle of Defendant Pedro J. AgostoJiménez, an apparently off-duty2 Carolina Municipal Police
(“CMP”) officer. Id.; see also Docket No. 54-9, at 3. After the
vehicles stopped, Agosto got out of his car and began yelling
profanities at Plaintiffs. Docket No. 59, ¶ II.C. While Jennifer
stayed in the car, Alberto got out to talk to Agosto. Id. ¶ II.D.
1.
Defendants have not denied any of the uncontested facts proposed by
Plaintiffs, which are therefore treated as admitted except as noted
below.
2.
Oddly, Defendants have failed to offer this as a proposed fact, but both
parties seem to operate under the assumption that Agosto was off duty.
At the least, the record reveals that he was driving a personal vehicle
and did not identify himself as a police officer. If he had been wearing
a uniform at the time of the incident, this concession would be much
less forceful; we are thus convinced that he was off duty and not
wearing a uniform at the time of the incident. See Llanos-Morales v.
Municipality of Carolina, 967 F. Supp. 2d 507, 510 n.2 (D.P.R. 2013)
(noting that Plaintiffs had conceded that Agosto was driving his
personal vehicle); see also Docket No. 19, at 8 (conceding that it is
“unquestionable that Agosto was not wearing his uniform, was offduty and [was] driving his personal car.”). That said, the parties would
be well-served by actually proposing all relevant and necessary facts
for the relief that they seek as part of their summary judgment filings.
LLANOS-MORALES v. CAROLINA
Page 3
Eventually, they agreed to exchange information so that the
matter could be handled under Puerto Rico’s compulsory
insurance scheme. Id. ¶ II.E. Alberto then returned to his car
and left, id. ¶ II.F., but Agosto followed him at high speed,
eventually blocking Alberto’s car with his own, id. ¶ II.G.
When Agosto got out of his car this time, he was armed. Id. He
approached the passenger side, where Jennifer was seated, and
insulted her, yelling that they were “trying to get away.”
Docket No. 54-9, at 4.3 Alberto then got out of the car and told
Agosto to put down his gun and to not point it at Jennifer,
since he was the one who had been driving. Docket No. 59,
¶ II.I. Alberto was neither armed nor threatening. Id. But
Agosto again cursed and accused Alberto of “trying to get
away,” and then he shot Alberto and left him bleeding on the
ground. Id. ¶ II.J.
Agosto became a CMP officer in 1994. Id. ¶ II.Q. It is
undisputed that Agosto graduated from the Police Academy
3.
Plaintiffs characterize Agosto’s statements as saying “that Alberto and
Jennifer” were trying to flee the scene of the accident.” See Docket No.
59, ¶ II.H. As we explain below, it makes sense for Plaintiffs to
characterize Agosto’s comments this way—it might help overcome a
serious problem with their case—but the contention is belied by
Jennifer’s own statements. See Docket No. 54-9, at 4.
LLANOS-MORALES v. CAROLINA
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of Puerto Rico, and it is further undisputed that he received
training in civil rights and violence prevention. Docket No. 547. What is disputed is whether Defendants have presented
sufficient evidence to support their contention that Agosto was
trained in the use of force, including specifically the use of
firearms. The summary judgment record further reveals that
during his tenure as an officer, Agosto was the subject of two
substantiated disciplinary complaints. First, in 1998, he was
reprimanded for his use of rude language during a traffic stop.
Docket No. 46-1, ¶ 10. And second, in 2010, he was given
another reprimand for an unjustified absence. Id. ¶ 11. In 2005,
moreover, Agosto was referred for an occupational health
evaluation after making complaints of asthma and dizzy spells.
Docket No. 59, ¶ II.K. Dr. Leonel Shub, the examining phsyician, afterward wrote a report recommending that Agosto’s
mental condition be examined by a psychiatrist. Id. ¶ II.M.
Though the CMP adopted Dr. Shub’s recommendations
regarding Agosto’s physical limitations, reassigning Agosto to
a desk job, it never referred him for a psychiatric evaluation. Id.
¶ II.N. Nonetheless, CMP regulations required Agosto to carry
his service weapon at all times, apart from certain exceptions
LLANOS-MORALES v. CAROLINA
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not applicable to this case.4 Id. ¶ II.P.
These facts reveal a fatal flaw in Plaintiffs’ § 1983 case
against the supervisory and municipal defendants: there is no
evidence that Agosto acted under the color of state law. See
Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008) (explaining
that a § 1983 defendant must have acted under color of state
law). Agosto was off duty, out of uniform, and in a private
vehicle; he never identified himself as a police officer; and he
was involved in an accident with another private party. The
only real evidence Plaintiffs have in their favor is the fact that
Agosto used his service weapon. See Zambrana-Marrero v.
Suarez-Cruz, 172 F.3d 122, 126 (1st Cir. 1999) (finding the use of
a service weapon to be relevant to the inquiry). However,
there is no evidence that Plaintiffs knew of the weapon’s
character. See id. (holding that the victim’s “subjective reac-
4.
Plaintiffs suggest that the CMP lacks any procedure “pertaining to the
use of force, much less the use of deadly force.” Docket No. 59, ¶ II.O.
To substantiate this proposed fact, Plaintiffs offer an index of CMP
regulations. See Docket No. 62-4. However, that index shows that CMP
does have regulations regarding the use of firearms and the club, as well
as regulations ensuring that these regulations are read and understood.
See id. Plaintiffs offer nothing about the content of these regulations,
which on their face would seem to deal with the use of force. As such,
Plaintiffs’ proposed fact is rejected.
LLANOS-MORALES v. CAROLINA
Page 6
tions” have some relevance). More importantly, the use of the
weapon alone gives little indication that Agosto was
“purpos[ing] to act in an official capacity or exercise official
responsibilities pursuant to state law.” Martinez v. Colon, 54
F.3d 980, 986 (1st Cir. 1995). To the contrary, he never identified himself as a police officer, nor did he take any other steps
to cloak himself in official authority. Necessarily, then, he was
not acting under color of state law. Id. at 986–87 (“[A] policeman’s private conduct, outside the line of duty and unaided by
any indicia of actual or ostensible state authority, is not
conduct occurring under color of state law.”). Furthermore, the
fact that Agosto said that Plaintiffs were trying to get away is
of no moment. The language that Agosto actually used,
according to Plaintiffs, did not invoke state authority, and it
did not even hint at Agosto’s status as a police officer; to the
contrary, it is the type of statement one might expect to be
made by an out-of-control aggressor in a traffic dispute.5
5.
The question would be somewhat closer had Agosto said—as Plaintiffs
suggest in their filings—that he was trying to stop Plaintiffs from
fleeing the scene. This could perhaps be seen both as “cop talk” and as
a show of authority, if a marginal one. Nonetheless, it would probably
still not suffice to show that Agosto was acting under color of state law.
Cf. Parilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 450 (1st Cir. 1997)
LLANOS-MORALES v. CAROLINA
Page 7
Agosto was not acting under color of state law, and the motion
for summary judgment must therefore be granted.
Furthermore, even if Agosto had been acting under color of
state law, we would nonetheless grant summary judgment in
the movants’ favor because Plaintiffs have presented no
evidence of either deliberate indifference or a failure to train.
As to deliberate indifference, Agosto had no recorded history
of violence, much less one of which his supervisors or the
municipality should have been aware. Similarly, while it had
been suggested that Agosto have a psychiatric evaluation, the
referral does not suggest that Agosto might tend towards
violence. As such, the movants had no reason to suspect that
Agosto might “violate the constitutional rights of citizens in the
manner alleged.” Sanchez v. Figueroa, 996 F. Supp. 143, 148–49
(D.P.R. 1998); see also Ramirez-Lluveras v. Pagan-Cruz, 833 F.
Supp. 2d 165, 176 (D.P.R. 2011). And as to training, Agosto was
trained at the Police of Puerto Rico’s police academy, which
“provide[s] guidance concerning the use of deadly force.”
(holding that an officer was not acting under color of state law where
he injured the victim in a private and personal altercation, despite the
fact that the officer had identified himself as a police officer and was
there to keep the peace).
LLANOS-MORALES v. CAROLINA
Page 8
Whitfield v. Melendez-Rivera, 431 F.3d 1, 10–11 (1st Cir. 2005).
Furthermore, the CMP do appear to have had specific regulations on the use of firearms. As such, there is no evidence in the
record that could support municipal or supervisory liability,
even if Agosto had been acting under the color of state law. As
such, summary judgment would be warranted on these
grounds as well.
For the reasons stated above, the supervisory and municipal defendants’ motion for summary judgment is GRANTED.
Partial judgment will be entered dismissing those defendants,
and only Agosto himself will remain as a defendant in this
case. We note, however, that while a summons as to Agosto
was apparently issued, service does not appear to have been
completed; certainly, no executed summons appears in the
record. Thus, within ten days of this Order, Plaintiffs must
explain whether they intend to continue pursuing their claims
against Agosto, and they must further explain any failure to
serve him; otherwise, the case will be dismissed as to Agosto
as well.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of June, 2014.
S/ SILVIA CARREÑO-COLL
LLANOS-MORALES v. CAROLINA
UNITED STATES MAGISTRATE JUDGE
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