Diaz-Nieves et al v. United States of America

Filing 35

MEMORANDUM AND ORDER re 27 Motion to Dismiss. Defendant's motion to dismiss is GRANTED IN PART and DENIED IN PART. The Court GRANTS defendant's motion with regard to plaintiffs' claim of negligent investigation, but DENIES defendant's motion with respect to plaintiffs' claim of false arrest and false imprisonment. Signed by Judge Francisco A. Besosa on 07/09/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOEL DIAZ-NIEVES; GIOVANNY DIAZNIEVES; AIDA NIEVES-PEREZ AND
SAUL DIAZ-RODRIGUEZ,
Plaintiffs,
Civil No. 13-1219 (FAB)

v.
THE UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM AND ORDER1
BESOSA, District Judge.
Before the Court is the United States (“US”)’s motion to
dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6)
(“Rule 12(b)(6)”).

(Docket No. 27.)

Joel Diaz-Nieves (“Joel

Diaz”), Giovanny Diaz-Nieves (“Giovanny Diaz”), Aida Nieves-Perez
(“Aida Nieves”), and Saul Diaz-Rodriguez (“Saul Diaz” and, together
with Joel Diaz, Giovanny Diaz, and Aida Nieves, “plaintiffs”)
opposed US’s motion on December 27, 2013.

(Docket No. 30.)

For

the reasons discussed below, the Court GRANTS IN PART and DENIES IN
PART US’s motion.
I.

BACKGROUND
As required by the standard Rule 12(b)(6) analysis, the Court

treats as true the following non-conclusory factual allegations

1

Matthew D’Auria, a second-year law student at the University
of Virginia School of Law, assisted in the preparation of this
Memorandum and Order.

Civil No. 13-1219 (FAB)

2

from plaintiffs’ complaint, see Ocasio-Hernandez v. Fortuño-Burset,
640 F.3d 1, 17 (1st Cir. 2011):
Plaintiffs are residents of the same community located in
Moca, Puerto Rico.
a.m.

on

October

(Docket No. 5 at p. 1.)
6,

2010,

plaintiffs

At approximately 4:00

were

sleeping

in

their

respective houses when a group of agents from the Federal Bureau of
Investigation (“FBI”), acting pursuant to a valid arrest warrant,
surrounded the house occupied by Joel Diaz, his father Saul Diaz,
and his mother Aida Nieves.

Id. at p. 2.

Mr. Saul Diaz was the

first person to react to the intervention and, upon opening the
door of the house, was removed from the home and made, at gun
point, to stand against a wall.

Id.

At some point during his

removal from the house, Mr. Saul Diaz’s pants fell to the ground.
Because the agents did not allow him to readjust his clothing,
Mr. Saul Diaz was left standing naked in the street.

Id. at p. 3.

The agents also removed Ms. Aida Nieves from the home and forced
her, at gunpoint, to face a wall beside the kitchen.

Id. at p. 4.

Upon hearing shouting from outside, Mr. Joel Diaz, an employee of
the Puerto Rico Corrections Department, quickly located his work
weapon and made his way to the front door, where he observed dozens
of laser target guides from multiple positions illuminating his
body.

Id. at p. 3.

At that time, Mr. Joel Diaz dropped to the

floor in surrender and was arrested by the agents.

Id.

Civil No. 13-1219 (FAB)

3

Without informing him of the reasons for his arrest, the
agents escorted Joel Diaz to a green Toyota Yaris.
at p. 3.)

(Docket No. 5

At some point during the ensuing trip, Joel Diaz asked

the driver to stop so that he could relieve himself on the side of
the road.

Id.

When the driver eventually stopped, Joel Diaz asked

the FBI agents the reason for his detention, and was told that he
had been charged with drug trafficking.

Id.

When Joel Diaz denied

this charge, one of the agents showed him a photograph that
purportedly depicted him as the person involved in drug violations.
Id.

Joel Diaz immediately informed the agent that he was not the

individual shown in the photo, and that the FBI agents had mistaken
him for another person.

Id.

At that time, Joel Diaz also informed

the agent that his name did not match the name of the alleged
suspect whose arrest the agents were authorized to execute.

Id.2

The agent, after comparing Mr. Joel Diaz with the individual in the
picture, expressed doubt about their similarity. Id. Nevertheless,
the agent insisted that there was nothing he could do and that Joel
Diaz should explain the situation to the supervising agents.

Id.

Agents took Joel Diaz to a parking lot and transferred him to a
minivan.

2

Id. at pp. 3-4.

He reaffirmed to the FBI agents that

The Court notes that the indictment, which plaintiffs
attached to their complaint, names co-plaintiff “Joel Diaz-Nieves”
as a defendant. (Docket No. 1-4.) Plaintiffs, however, did not
attach the arrest warrant to the complaint. Given the name in the
indictment, the Court has no basis from which to reasonably infer
that the arrest warrant subsequently issued named someone else —
Jose Velez-Nieves.

Civil No. 13-1219 (FAB)

4

they had arrested the wrong individual, and was again told that
there was nothing that could be done, but that, if he was right, he
should “sue the agency for all it was worth.”

Id. at p. 4.

Later that day, agents transported Joel Diaz to FBI facilities
where he was processed, fingerprinted, and interviewed by federal
agents.

(Docket No. 5 at p. 4.)

During this time, he continually

insisted that he was innocent, but the agents ignored his claims
and declined to compare his identity with that of the alleged
suspect, Jose M. Velez-Nieves.
Diaz

was

imprisoned

in

Guaynabo for three days.

the
Id.

Id.

After being processed, Joel

Metropolitan

Detention

Center

in

In the meantime, Mr. Saul Diaz,

Ms. Aida Nieves and Mr. Giovanny Diaz, confused by the arrest of
Joel Diaz and concerned about how the incident would impact their
family’s reputation in the small Moca community, retained a lawyer,
Mr. Fernando Irizarry, and paid him $13,000.00 for his services.
Id. at p. 5.

They also paid fees for the appraisal of several

properties that would have been needed to secure bail for Joel
Diaz.

Id. at pp. 5-6.

On October 9, 2010, however, three days

after the arrest, the government confirmed that the FBI agents had
in fact arrested the wrong individual, and released Joel Diaz. Id.
at p. 6.

On October 14, 2010, the Court dismissed the indictment

against Joel Diaz.

(Docket No. 5-2 at p. 3.)

Plaintiffs filed this complaint on March 14, 2013, alleging
that defendant’s negligent investigation, which resulted in the

Civil No. 13-1219 (FAB)

5

false arrest and false imprisonment of Joel Diaz, constituted
tortious conduct pursuant to Puerto Rico law and the Federal Tort
Claims Act (“FTCA”).3
II.

Discussion
A.

Motion to Dismiss Standard
Rule 12(b)(6) allows the Court to dismiss a complaint

when the pleading fails to state a claim upon which relief can be
granted.

Fed. R. Civ. P. 12(b)(6).

When considering a motion

pursuant to Rule 12(b)(6), the Court is “obligated to view the
facts

of

the

plaintiffs,

complaint

and

Ocasio–Hernandez,

to

in

the

light

resolve

any

ambiguities

640

F.3d

at

17.

most

While

favorable

to

the

in

their

favor.”

detailed

factual

allegations are not necessary to survive a motion to dismiss, “[a]
plaintiff is not entitled to ‘proceed perforce’ by virtue of
allegations
action.”
(2009)).

3

that

merely

parrot

the

elements

of the

cause of

Id. at 12 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 680
Any

“[n]on-conclusory

factual

allegations

in

the

Though the complaint alleges violations of plaintiffs’ civil
and constitutional rights pursuant to the Fourth, Fifth, and
Fourteenth Amendments to the United States Constitution (see Docket
No. 5 at ¶¶ 4.2-4.3), neither party subsequently mentions these
claims.
Furthermore, in order to bring a Bivens action for
constitutional violations successfully, a plaintiff must sue the
federal officials in their individual capacities. See Santoni v.
Potter, 369 F.3d 594, 598 (1st Cir. 2004). Because plaintiffs only
sued the United States, and their allegations support tort claims,
rather than constitutional violations, the Court reads the
complaint only to allege violations sounding in tort against the
United States pursuant to the FTCA.

Civil No. 13-1219 (FAB)

6

complaint[, however,] must . . . be treated as true, even if
seemingly incredible.”

Ocasio–Hernandez, 640 F.3d at 12 (citing

Iqbal, 556 U.S. at 681).

An adequate complaint “must contain

sufficient factual matter to state a claim to relief that is
plausible on its face.” Grajales v. P.R. Ports Auth., 682 F.3d 40,
44 (1st Cir. 2012) (internal quotation marks and citation omitted).
The complaint need not plead facts sufficient to establish a prima
facie case, but “the elements of a prima facie case may be used as
a

prism

to

shed

light

upon

the

plausibility

of

the

claim.”

Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir.
2013).

A

court,

however,

may

not

“attempt

to

forecast

a

plaintiff’s likelihood of success on the merits; ‘a well-pleaded
complaint may proceed even if . . . a recovery is very remote and
unlikely.’”

Ocasio-Hernandez, 640 F.3d at 13 (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

Overall, “[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.”
B.

Id. at 13.

Negligent Investigation
Plaintiffs’ complaint asserts that the US is liable for

the “negligent investigation into the identity and whereabouts of
Jose M. Velez Nieves A/K/A Pito prior to executing the arrest
warrant for him.”

(Docket No. 5 at p. 6.)

The US argues that

plaintiffs’ negligent investigation claim must be dismissed because

Civil No. 13-1219 (FAB)

7

investigative activity is protected by the discretionary function
exception to the FTCA, codified at 28 U.S.C. § 2680(a).

(Docket

No. 27 at p. 5.)
1.

Discretionary Function Exception
When it enacted the FTCA, the United States waived

its sovereign immunity for:
injury or loss of property . . . caused by the negligent
or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States,
if a private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.
28 U.S.C. § 1346(b)(1).

The liability of the United States

government under the FTCA, however, is subject to the various
carve-outs

contained

in

28

U.S.C.

“discretionary function” exception.

§

2680,

including

the

That exception provides, in

pertinent part, that the federal government’s waiver of sovereign
immunity through the FTCA shall not extend to “[a]ny claim . . .
based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the
discretion

involved

be

abused.”

28

U.S.C.

§

2680(a).

The

exception’s essential purpose is to reduce the amount of secondguessing that government employees experience, and to allow them to
carry

out

their

responsibilities

spawning litigation.

without

a

constant

fear

of

See United States v. S.A. Empresa de Viacao

Civil No. 13-1219 (FAB)

8

Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808–14 (1984);
Nogueras-Cartagena v. United States, 172 F. Supp. 2d 296, 317
(D.P.R. 2001) (Dominguez, J.). When a given claim falls within the
discretionary function exception, it must be dismissed for lack of
subject matter jurisdiction.

Abreu v. United States, 468 F.3d 20,

25 (1st Cir. 2006) (internal citation omitted); Kelly v. United
States, 924 F.2d 355, 359-360 (1st Cir. 1991).
Courts employ a two-part test to determine whether
the

discretionary

function

exception

to

the

FTCA

covers

the

challenged conduct. United States v. Gaubert, 499 U.S. 315, 322-23
(1991); Kelly, 924 F.2d at 360 (internal citations omitted).
First, a court must determine if the behavior at issue is in fact
discretionary in nature.

Kelly, 924 F.2d at 360.

This factor

generally requires an analysis of whether the government employee’s
duties obligate him or her to make independent decisions. Berkovitz
by Berkovitz v. United States, 486 U.S. 531, 536 (1988); Kelly, 924
F.2d at 360; K.W Thompson Tool Co. v. United States, 836 F.2d 721,
725 (1st Cir. 1988). Second, because the exception “protects only
governmental actions and decisions based on considerations of
public policy,” Berkovitz, 486 U.S. at 537, courts must determine
whether “some plausible policy justification could have undergirded
the challenged conduct.” Shansky v. United States, 164 F.3d 688,
692 (1st Cir. 1999).

Civil No. 13-1219 (FAB)
The

9

First

Circuit

Court

of

Appeals

has

never

directly addressed whether a claim of negligent investigation would
be barred by the discretionary function exception under the twoprong test outlined above. Nevertheless, it has clearly indicated
that, “[s]ince decisions to investigate, or not, are at the core of
the law enforcement activity,” investigative activity involves the
type of “policy-rooted decisionmaking that section 2680(a) was
designed to safeguard.” Kelly, 924 F.2d at 362. Consequently, this
Court

has

found

that

“allegations

of

negligent

investigation

against the United States fall within the discretionary function
exception of the FTCA and are barred for lack of subject matter
jurisdiction.” Nogueras-Cartagena, 172 F. Supp. 2d at 319. See also
Torres-Dueño v. United States, 165 F. Supp. 2d 71, 74 (D.P.R. 2001)
(Laffitte, J.).
2.

Application
Plaintiffs argue that the arrest of Joel Diaz was

entirely “due to the negligence of the FBI agents who failed to
carry out the agency’s rules and regulations regarding the proper
determination

of

a

suspect’s

(Docket No. 5 at p. 7.)

identity

and

his

whereabouts.”

In accordance with the relevant precedent,

however, the Court holds that plaintiffs’ specific allegations of
negligent

investigation

are

jurisdictionally

discretionary function exception to the FTCA.

barred

by

the

Accordingly, the

Civil No. 13-1219 (FAB)
Court

GRANTS

US’s

10

motion

to

dismiss

plaintiffs’

negligent

investigation claim.
C.

False Arrest and False Imprisonment
Plaintiffs’ complaint also asserts a cause of action for

the “wrongful arrest and incarceration” of Joel Diaz, which was
“proximately caused by the failure of the investigating FBI agents
of properly following up with the cooperating sources regarding the
true identity of the individual to be arrested.”
p. 6.)

(Docket No. 5 at

The US argues that this claim must be dismissed because the

conduct of the arresting FBI agents was conditionally privileged
pursuant to Puerto Rico law.

Specifically, the US asserts that

Joel Diaz was sufficiently named in a valid arrest warrant and the
FBI agents had no reason to doubt his identity at the time of his
arrest and detention.
1.

Basis for False Arrest and
Claims Pursuant to the FTCA

False

Imprisonment

Although the FTCA exempts so-called “intentional
torts” from the federal government’s general waiver of sovereign
immunity, it expressly permits actions against the United States
for claims of “assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution” that arise from the
“acts or omissions of investigative or law enforcement officers of
the United States Government.”

28 U.S.C. § 2680(h).

See also

Solis-Alarcon v. United States, 662 F.3d 577, 583 (1st Cir. 2011);
Abreu-Guzman

v.

Ford,

241

F.3d

69,

75

(1st

Cir.

2001).

Civil No. 13-1219 (FAB)

11

Additionally, to the extent that the FTCA proviso waiving sovereign
immunity for the claims specified above overlaps or conflicts with
the FTCA’s discretionary function exception, the Court holds that
the proviso governs. See Paret-Ruiz v. United States, 943 F. Supp.
2d 285, 290-291 (D.P.R. 2013) (Gelpi, J.) (adopting the position of
the

Fifth

and

discretionary

Eleventh

function

Circuit

exception

Courts
does

of

not,

Appeals).
therefore,

The
bar

a

person’s claims for false arrest or false imprisonment because the
FTCA’s explicit waiver of immunity for those claims trumps the
discretionary function exception.

Id.

Thus, in this case, the

United States is liable, “in the same manner and to the same
extent,” for the false arrest and false imprisonment of Joel Diaz,
as a private individual would be in like circumstances under the
relevant state law.

Rodriguez v. United States, 54 F.3d 41, 44

(1st Cir. 1995) (quoting 28 U.S.C. § 2674).
The FTCA further provides that the “law of the
place” where the act or omission occurred shall govern actions for
damages against the federal government.

28 U.S.C. § 1346(b)(1).

Because the material acts and omissions alleged in the complaint
took place in Puerto Rico, the Court applies Puerto Rico law to
plaintiffs’

tort

claims

Abreu-Guzman, 241 F.3d
at 312.

against

the

United

States.

See

at 75; Nogueras-Cartagena, 172 F. Supp. 2d

Civil No. 13-1219 (FAB)

12

A claim of false arrest and false imprisonment
accrues under Puerto Rico law when “[a] person, whether or not a
law enforcement officer, . . . by himself or through another one
unlawfully detain[s] or cause[s] the unlawful detention of another
person.”
1012,

Ayala v. San Juan Racing Corp., 12 P.R. Offic. Trans.

1021.

Additionally,

because

false

arrest

and

false

imprisonment claims pursuant to Puerto Rico law share identical
elements and therefore raise no relevant distinction in this case,
the

Court

treats

Abreu-Guzman,

241

them
F.3d

as
at

identical
75

causes

(internal

of

action.

citation

See

omitted);

Rodriguez, 54 F.3d at 44.
2.

Legal Standard in Cases of False Arrest Through
Misidentification
This case involves a false arrest claim based on the

execution of a valid arrest warrant against the wrong individual.
Defendant argues, citing the First Circuit Court of Appeals’
opinion in
immunity

Rodriguez, that Puerto Rico law recognizes a qualified
defense

for

misidentification cases.

federal

officers

involved

in

these

In Rodriguez, the First Circuit Court of

Appeals held that federal agents were protected by the doctrine of
“conditional privilege” as long as “the arrestee was (a) . . . a
person sufficiently named or otherwise described in the warrant and
[was] reasonably believed by the [officer] to be, the person
intended, or (b) although not such person, . . . knowingly caused
the actor[s] to believe [her] to be so.”

Rodriguez, 54 F.3d at 46

Civil No. 13-1219 (FAB)

13

(emphasis in original).

This decision, however, was not based on

any concrete, established provisions of Puerto Rico law.

Noting a

lack of Puerto Rico Supreme Court decisions addressing false arrest
claims based on misidentification, the First Circuit Court of
Appeals looked to common law principles to fill in the gaps of
Puerto Rico’s false arrest jurisprudence.

Id. at 45.

Conditional

privilege, a principle endorsed by the Restatement of Torts,
consequently became a default provision of Puerto Rico law.

See

id.4
Since Rodriguez, the Puerto Rico Supreme Court has
directly addressed the issue of misidentification and articulated
a different legal standard for cases involving a false arrest made
pursuant to a valid warrant.
(2002) (official translation).

See Valle v. E.L.A., 2002 TSPR 64
Emphasizing the importance of “the

constitutionally protected right to liberty enjoyed by our fellow
citizens,” the Puerto Rico Supreme Court has affirmed that it
“cannot consent to the deprivation of a person’s liberty merely
because said person has ‘some resemblance’ to someone responsible

4

Section 122 of the Restatement provides that: “subject to
the rules stated in §§ 127-132, the actor is privileged to arrest
another under a warrant if such warrant is either valid or fair on
its face.”
Restatement (Second) of Torts § 122 (1965).
Section 125 of the Restatement further establishes that:
“An
arrest under a warrant is not privileged unless the person arrested
(a) is a person sufficiently named or otherwise described in the
warrant and is, or is reasonably believed by the actor to be, the
person intended, or (b) although not such person, has knowingly
caused the actor to believe him to be so.” Id. at § 125.

Civil No. 13-1219 (FAB)
for a criminal act.”

14
Id. (emphasis in original).

Accordingly,

that court has found it necessary in false arrest cases to engage
in a “balance of the interests,” to “strike a fair and appropriate
balance between the right of the State to act vigorously in the
investigation and prosecution of criminal causes [sic] and the
right to liberty of our fellow citizens, a right that enjoys the
highest constitutional rank in our jurisdiction.” Id. (emphasis in
original).
3.

Application
Because the “law of the place” where the act or

omission occurred governs actions for damages against the federal
government pursuant to the FTCA, the Court now replaces Rodriguez’s
emphasis on conditional privilege with the balancing standard
subsequently articulated by the Puerto Rico Supreme Court in
Valle.5 Additionally, because the FTCA proviso specifically waives
sovereign immunity for false arrest and false imprisonment claims
against

5

the

United

States,

the

Court

need

not

address

the

Although the First Circuit Court of Appeals has mentioned
Valle, it has never directly addressed whether the false arrest
standard articulated in Rodriguez and its progeny ought to be
replaced by the Supreme Court of Puerto Rico’s balancing test in
Valle.
Solis-Alarcon v. United States, 662 F.3d 577 (1st Cir.
2011). In Solis-Alarcon, the First Circuit Court of Appeals held
that Puerto Rico tort law did not impose personal liability for
mistaken arrests where police officers would be protected in Bivens
claims by qualified immunity. Id. at 583. Because this case does
not involve Bivens claims or a qualified immunity defense, SolisAlarcon does not govern the Court’s analysis.

Civil No. 13-1219 (FAB)

15

application of the FTCA’s discretionary function exception here.
Paret-Ruiz, 943 F. Supp. 2d at 290-91.
To determine the proper balance of the interests at
issue in this case, the Court must engage in a fact-specific
analysis of the circumstances surrounding both the probable cause
determination and the execution of the arrest warrant. Viewing the
allegations contained in the complaint in the light most favorable
to plaintiffs, the Court finds that the complaint sufficiently
states a claim for false arrest and false imprisonment that is
plausible on its face.

The complaint alleges that, in the middle

of the night on October 6, 2010, FBI agents acting pursuant to a
valid arrest warrant seized Mr. Joel Diaz from his home in Moca,
Puerto Rico, terrorizing his family in the process.

Although the

agents admitted to having doubts about Mr. Joel Diaz’s identity
when he declared his innocence, they continued to execute the
arrest, informing Joel Diaz that he should “sue the agency for all
it

was

worth”

if

they

were

in

fact

mistaken.

The

agents

fingerprinted, interviewed, and then incarcerated Mr. Joel Diaz for
three days without taking adequate steps to confirm his identity.
Several weeks after Joel Diaz’s discharge, the FBI indicted and
arrested Jose Velez-Nieves, the individual for which the government
had mistaken Joel Diaz.
Given those allegations, summary judgment would be
a more appropriate vehicle to determine whether plaintiffs, for

Civil No. 13-1219 (FAB)

16

example, had produced genuine issues of fact regarding (1) whether
the grand jury indictment against Mr. Joel Diaz was wrongfully
obtained, see Paret-Ruiz, 943 F. Supp. 2d at 291 (noting that a
grand jury indictment obtained through perjury does not definitely
establish probable cause for an individual’s arrest); or (2)
whether the arrest warrant was executed negligently, see Valle,
2002 TSPR 64 (indicating that the existence of a valid arrest
warrant is not sufficient to insulate agents from liability when
they fail to comply fully with essential identification procedures
prior to, or during, an arrest).

Regardless of the approach

adopted by plaintiffs, the Court’s ultimate task will be to weigh
the evidence presented by each side in order to “strike a fair and
appropriate balance” of the interests in conflict here.

Because

that process cannot be completed at the motion to dismiss stage,
the Court DENIES defendant’s motion to dismiss plaintiffs’ claim of
false arrest and false imprisonment.
III. Conclusion
For the reasons expressed above, the defendant’s motion to
dismiss, (Docket No. 27), is GRANTED IN PART and DENIED IN PART.
The Court GRANTS defendant’s motion with regard to plaintiffs’
claim of negligent investigation, but DENIES defendant’s motion

Civil No. 13-1219 (FAB)
with respect

to

plaintiffs’

17
claim

of

false

arrest

and

false

imprisonment.6
IT IS SO ORDERED.
San Juan, Puerto Rico, July 9, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE

6

Defendant did not move to dismiss any claims brought by coplaintiffs Giovanny Diaz, Aida Nieves, and Saul Diaz. The Court
declines to address those claims sua sponte.