Cabrera, et al v. Pedrogo, et al

Filing 43

MEMORANDUM AND ORDER re 37 Motion to Dismiss for Failure to State a Claim. The Court DENIES defendants' motion to dismiss. Signed by Judge Francisco A. Besosa on 05/27/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSE JAVIER CABRERA-BERRIOS,
BETSY BERRIOS, JOSE CABRERA,
Plaintiffs,
Civil No. 13-1270 (FAB)

v.
PEDRITO
PEDROGO;
JUAN
J.
HERNANDEZ; AGENT PAGAN; HECTOR
PESQUERA; EMILIO DIAZ-COLON;
JOHN DOES #1-13, MUNICIPALITY OF
SAN JUAN,
Defendants.

MEMORANDUM AND ORDER1
BESOSA, District Judge.
Before the Court is the motion to dismiss pursuant to Federal
Rule of Civil Procedure Rule 12(b)(6) (“Rule 12(b)(6)”) filed by
co-defendants Hector M. Pesquera (“Pesquera”), Emilio Diaz-Colon
(“Diaz-Colon”), and Pedrito Pedrogo Flores (“Pedrogo”).
No. 37.)

(Docket

For the reasons discussed below, the Court DENIES

defendants’ motion.
I.

BACKGROUND
A.

Procedural History
On April 16, 2013, plaintiffs Jose Javier Cabrera-Berrios

(“Jose Javier”), Betsy Berrios, and Jose Cabrera filed a civil
rights complaint pursuant to the United States Constitution, the
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. 13-1270 (FAB)
laws

and

Constitution

2
of

Puerto

Rico,

and

42

U.S.C.

§

1983

(“section 1983”) against Pedrogo, Pesquera, Diaz-Colon, Juan J.
Hernandez (“Hernandez”), Michelle Pagan (“Pagan”), John Does #1-13,
and the Municipality of San Juan (“the Municipality”).
No. 9 at p. 1.)

(Docket

Plaintiffs allege violations of section 1983 as

well as general constitutional violations of their Fourth, Eighth,
and Fourteenth Amendment rights through defendants’ actions of
unreasonably searching plaintiffs’ house; illegally seizing Jose
Javier and using excessive force and illegally detaining him; and
inadequately recruiting, training, supervising, and disciplining
field officers.

Id.

On November 13, 2013, defendants Pesquera, Diaz-Colon,
and Pedrogo filed a motion to dismiss.

Pesquera and Diaz-Colon

allege that plaintiffs’ complaint fails to state a claim against
them for which relief can be granted pursuant to section 1983.
Pedrogo makes a general allegation that plaintiffs’ complaint fails
to state a claim for which relief can be granted, but does not
address with any specificity the constitutional violations alleged
in plaintiffs’ complaint.

(Docket No. 37 at pp. 12-14.)

On

December 6, 2013, plaintiffs filed an opposition to defendants’
motion.
B.

(Docket No. 42.)
Factual Background
As required by the standard Rule 12(b)(6) analysis, the

Court

treats

as

true

the

following

non-conclusory

factual

Civil No. 13-1270 (FAB)

3

allegations from the plaintiffs’ complaint, see Ocasio-Hernandez v.
Fortuño-Burset, 640 F.3d 1, 10 (1st Cir. 2011):
Plaintiffs

are

residents of Puerto Rico.

citizens

of

the

United

(Docket No. 9 at p. 2.)

States

and

Betsy Berrios

is the mother of Jose Javier, and Jose Cabrera is his father.
Defendants

Pedrogo,

Hernandez,

and

Pagan,

Id.

badge

numbers 32537, 35502 and 32140, respectively, are citizens and
residents

of the

Commonwealth of

Puerto Rico

and

are

officers of the Puerto Rico Police Department (“PRPD”).
No. 9 at pp. 2-3.)

police
(Docket

Defendant Pesquera was the Superintendent of

the PRPD at the time of the incident and had occupied the position
since March 2012.

Id. at p. 3.

Defendant Diaz-Colon was, at the

time of the events in question, a resident of the Commonwealth of
Puerto Rico and the Chief or Superintendent of the PRPD.

Id.

Defendants John Does #1-13 are agents of the PRPD and/or the
Municipality and are believed to be residents of the Commonwealth
of Puerto Rico.

Id.

On April 5, 2012, at approximately 3:00 - 3:30 a.m.,
plaintiff Jose Javier was in the kitchen of his parents’ house,
plaintiffs Jose Cabrera and Besty Berrios, located on Street 3,
#1038, in Villa Nevarez, Rio Piedras, Puerto Rico.
at p. 4.)

(Docket No. 9

Dressed only in shorts, Jose Javier looked out from the

kitchen towards the living room window and saw lights and heard a
loud noise from a helicopter flying over the house.

Id. at pp. 4-

Civil No. 13-1270 (FAB)
5.

4

He also heard knocking on the entrance gate or door to the

residence.

Upon opening the garage door, Jose Javier saw several

police cars and more than 10 police officers. Id. at p. 5.

When

Jose Javier asked the police officers why they were at the house,
defendant John Doe 1 approached and grabbed him by the arm while
defendant John Doe 2 placed himself directly in front of Jose
Javier and asked three questions:

“Who are you?”; “Do you live

here?”; and “Who else is here in the house?”
not attempt to flee the premises.

Id. Jose Javier did

Id. at p. 6. Rather, he provided

his name and informed the officers that the house belonged to his
parents, who were sleeping inside.

Id. at p. 5.

When Jose Javier

asked again about why the officers were at his parents’ residence,
defendant John Doe 2 told him that they wanted to enter the house
to search it.

Id.

Jose Javier asked if the officers had a warrant

to search the premises, but his question went unanswered.

Id.

Defendant John Doe 1, still holding Jose Javier’s arm, further
restrained him while defendants John Does 3 and 4 surrounded him.
Id. at pp. 5-6.

Defendant John Doe 3 then threw himself on top of

Jose Javier, knocking him to the ground. Id. at p. 6.
John Doe

3

proceeded

to

handcuff

Javier’s hand in the process.

Jose

Javier,

Defendant

injuring Jose

Id.

With Jose Javier handcuffed and on the ground, defendants
John Does 5, 6, and 7 entered the plaintiffs’ residence and began
conducting a search of the premises, including Jose Javier’s

Civil No. 13-1270 (FAB)
bedroom.

5

(Docket No. 9 at p. 6.)

The noises created by the police

officers awakened plaintiffs Betsy Berrios and Jose Cabrera, who
were sleeping in their bedroom.

Id.

Jose Cabrera exited his

bedroom at which time he saw defendant John Doe 5 in his kitchen.
Id. at p. 7.

After asking John Doe 5 what was going on, Jose

Cabrera proceeded outside, where he saw his son on the ground,
handcuffed and only partially dressed. Id. Betsy Berrios, dressed
in a nightgown, was confronted at her bedroom door by John Doe 6,
who told her to get dressed and to leave the house.

Id.

While

walking toward the front of her house, Betsy Berrios saw three
police officers, John Does 5, 6, and 7, inside her home.

Id.

John

Doe 7 was conducting a search inside her son’s bedroom, while John
Doe 5 conducted a search in the dining room.

Id.

As she moved

towards the carport, Betsy Berrios saw her son on the ground,
handcuffed, and surrounded by a group of approximately 30 police
officers from both the PRPD and the Municipality.

Id. at pp. 7-8.

She also witnessed a helicopter flying above and shining a light on
the house. At no point during this event was Betsy Berrios shown a
warrant to search her house.

Id. at p. 8.

Outside the residence, Jose Cabrera asked Pedrogo to
explain what was going on.

(Docket No. 9 at p. 8.)

Pedrogo

responded that the PRPD had received an anonymous call telling them
that the caller had seen the passenger of an SUV shooting out of
the passenger side of the vehicle while driving down Muñoz Rivera

Civil No. 13-1270 (FAB)
Avenue. Id.

6

The eyewitness had apparently followed the SUV to the

plaintiffs’ residence and directed the police to the home.

Id.

Jose Cabrera told the officers that there must have been a mistake
because his son had been alone in the car and there had been no one
in the passenger side of the vehicle.

Id. at pp. 8-9.

When

Pedrogo and John Does 5-8 asked Jose Cabrera and Betsy Berrios for
consent to search the Toyota Highlander that was parked in the
carport of the plaintiffs’ residence, they did not immediately
consent.

Id. at p. 8.
At that time, John Doe 9 told Betsy Berrios that the

officers were going to take her son to the police station as a
“preventative” [sic] measure.
Does

1-4

pushed

Jose

(Docket No. 9 at p. 9.)

Javier,

still

minimally

dressed

John
and

handcuffed, into a PRPD patrol car, and John Does 10 and 11 then
brought him to the Rio Piedras police station.

Id.

During the

ride to the station, Jose Javier asked the officers what was
happening, but was told that he would find out what he needed to
know whenever they decided to inform him.

Id.

At the station,

John Does 10 and 11 placed Jose Javier in a cell without any shirt
or shoes.

Id.

The toilet in the cell was in disrepair and there

was a pile of feces surrounding it.

Id. at p. 13.

left to urinate on the floor next to the toilet.

Jose Javier was
Id.

When he

asked nearby police officers if he could call his parents or his

Civil No. 13-1270 (FAB)

7

lawyer, they responded by laughing and one of them said, “Look, who
does this guy think he is?”

Id.

Back at the plaintiffs’ residence, Jose Cabrera and Betsy
Berrios continued to ask the remaining police officers, John Does
5, 6 and 7 and Pedrogo what was going on.
10.)

(Docket No. 9 at pp. 9-

This time, John Doe 5 responded to Betsy Berrios that the

PRPD had received a telephone call from an anonymous person who had
supposedly seen someone shoot twice into the air out of the
driver’s window of an SUV while driving on Muñoz Rivera Avenue.2
Id. at p. 10.

John Does 5, 6, 7, and Pedrogo also offered a third

version of events to Jose Cabrera, suggesting that an anonymous
caller had reported seeing sparks or explosions coming from a
Toyota SUV.

Id. at p. 11.

When Jose Cabrera asked the officers

for further details on the anonymous caller, his request was
rebuffed.

Id.
At that time, John Pablo Rivera, a friend of Jose Javier,

arrived at the house in order to retrieve his car that he had
parked on the street.
police

officers

and

(Docket No. 9 at p. 11.)
police

vehicles

outside

Upon seeing the
the

plaintiffs’

residence, John Pablo Rivera called his father, attorney Luis
Rivera, and asked him to come to the house.

2

Id. When John Doe 8

This version of events differed from the one related earlier
to Jose Cabrera, who had been told that an anonymous caller had
reported seeing someone shoot out of the passenger’s side of the
vehicle.

Civil No. 13-1270 (FAB)

8

and/or Pedrogo asked Jose Cabrera for permission to search the
Toyota SUV parked in the carport, Jose Cabrera responded that he
would not consent to the search until attorney Luis Rivera was
present.

Id. at pp. 11-12.

Once attorney Rivera arrived, Jose

Cabrera authorized Pedrogo to search the Toyota SUV.

Id. at 12.

Upon searching the vehicle, Pedrogo and other police officers found
nothing to corroborate the anonymous caller’s story.

Id.

After

completing the search, Pedrogo signed a statement that read:
“4/5/12

To

Whom

it

May

Concern:

Agent

Pedrogo,

32537,

is

authorized to search the vehicle Toyota Highlander 2002, license
plate number FAT-265, and its interior.
Lic. 996847.”

Id.

Signed Jose Cabrera,

The statement included an additional notation,

which read: “Nothing illegal was found in the vehicle. Everything
was in order.

Signed by Agent Pedrogo.”

Id.

Upon completing this

statement, Pedrogo and the remaining officers left the premises.
Id.
At approximately 7:30 a.m. on April 5, 2012, John Does 12
and 13 released Jose Javier from custody and told him that there
was an ongoing investigation.

(Docket No. 9 at p. 13.)

He was

also given a citation to appear at the Rio Piedras police station
on May 4, 2012.

Id.

When Jose Javier complied with the terms of

this citation on May 4, 2012, however, Pedrogo was not present at
the station and no other police officer attended him.

Id.

He was

Civil No. 13-1270 (FAB)

9

told that the case had not been “seen” and that the investigation
was still ongoing.

Id.

Plaintiff Jose Javier claims that, as a result of the
incident, he lost all sensation in part of his hand, sustained
injuries to his wrist, knees, and hands, and continues to suffer
pain in his right hand and wrist.

(Docket No. 9 at p. 14.)

He

further claims that the incident has caused him to experience
anxiety, loss of sleep, appetite, and enjoyment of life, and to
become hyper-alert and anxious in the presence of police.

Id.

As

a result of the incident, plaintiffs Jose Cabrera and Betsy Berrios
claim that they suffer from anxiety, loss of sleep, appetite and
enjoyment of life, and from recurring memories of the incident.
Id.

They also claim to become hyper-alert and anxious in the

presence of police, and to fear for the safety of their son.
II.

Id.

Discussion
A.

Motion to Dismiss Standard of Review
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), a court is “obligated to view the facts
of the complaint in the light most favorable to the plaintiffs, and
to resolve any ambiguities in their favor.”
F.3d at 17.

Ocasio–Hernandez, 640

While detailed factual allegations are not necessary

to survive a motion to dismiss, “[a] plaintiff is not entitled to

Civil No. 13-1270 (FAB)

10

‘proceed perforce’ by virtue of allegations that merely parrot the
elements of the cause of action.”

Id. at 12 (quoting Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1950 (2009)). Any “[n]on-conclusory factual
allegations [sic] in the complaint[, however,] must . . . be
treated as true, even if seemingly incredible.”

Ocasio–Hernandez,

640 F.3d at 12 (citing Iqbal, 129 S.Ct. at 1951).

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).

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

Overall,

the

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.”
Ocasio–Hernandez, 640 F.3d at 13.
B.

Supervisor Liability Pursuant to Section 1983
Plaintiffs accuse defendants Pesquera and Diaz-Colon of

violating section 1983 because they allegedly caused a breach of

Civil No. 13-1270 (FAB)

11

plaintiffs’ constitutional rights through inadequate supervision,
training, recruitment and discipline of the defendant PRPD police
officers involved in the incident of April 5, 2012.

In their

opposition to defendants’ motion, plaintiffs seek to substantiate
that claim by citing allegations contained in a complaint filed by
the United States against the Commonwealth of Puerto Rico on
December 21, 2012.

Those allegations were based on a study

performed by the DOJ and target “unconstitutional and unlawful
activity” engaged in by the PRPD and produced through “pervasive
and longstanding institutional failures.”
p.

11.)

Plaintiffs

also

cite

language

(Docket No. 42 at
from

the

settlement

agreement entered into by the parties of that case as further
support for plaintiffs’ supervisor liability claim against Pesquera
and Diaz-Colon.
The moving defendants argue that plaintiffs’ supervisor
liability claim must be dismissed because the allegations in the
complaint do not adequately demonstrate defendant Pesquera’s or
Diaz-Colon’s personal involvement in the alleged violation of
plaintiffs’ rights.
1.

Supervisory Liability Legal Standard
A supervisor who does not directly engage in his or

her subordinate’s unconstitutional behavior nevertheless may be
liable under section 1983. Camilo–Robles v. Hoyos, 151 F.3d 1, 6–7
(1st Cir. 1998) (citing City of Okla. City v. Tuttle, 471 U.S. 808,

Civil No. 13-1270 (FAB)
823-24 (1985)).

12

A supervisor is not liable, however, under the

theory of respondeat superior. Id.; Iqbal, 556 U.S. 662; Whitfield
v.

Melendez–Rivera,

431

F.3d

1,

14

(1st

Cir.

2005)

(citing

Barreto–Rivera v. Medina–Vargas, 168 F.3d 42, 48 (1st Cir. 1999)).
Rather, “[s]upervisors may only be held liable under [section 1983]
on the basis of their own acts or omissions.”
at

14.

Accordingly,

to

establish

Whitfield, 431 F.3d

section

1983

supervisory

liability, two prongs must be satisfied: (a) the supervisor’s
subordinate

must

have

violated the

plaintiff’s

constitutional

rights; and (b) the supervisor’s “action or inaction” must be
“‘affirmative[ly] link[ed] . . . ’ to that behavior in the sense
that it could be characterized as ‘supervisory encouragement,
condonation, or acquiescence’ or ‘gross negligence amounting to
deliberate indifference.’”

Pineda v. Toomey, 533 F.3d 50, 54 (1st

Cir. 2008); Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996);
Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (citing
Bohen v. City of E. Chicago, 799 F.2d 1180, 1189 (7th Cir. 1986));
Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 582 (1st Cir.
1994) (internal citations omitted).
To establish that the supervisory defendants acted
with deliberate indifference, plaintiffs must show (1) a grave risk
of harm; (2) the supervisory defendants’ actual or constructive
knowledge of that risk; (3) that the supervisory defendants failed
to take easily available measures to address the risk; and (4) an

Civil No. 13-1270 (FAB)

13

“affirmative link” between the supervisory defendants’ deliberate
indifference

and

subordinates.

the

resulting

violation

committed

by

their

Figueroa–Torres v. Toledo–Davila, 232 F.3d 270, 279

(1st Cir. 2000); Camilo–Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir.
1998) (citing Manarite v. City of Springfield, 957 F.2d 953, 956
(1st Cir. 1992)); Maldonado v. Fontanes, 568 F.3d 263, 275 (1st
Cir. 2009) (internal citations omitted).
Case law reveals two overarching theories sufficient
to

impose

liability:

where

the

supervisor

knows

of,

but

disregards, a subordinate’s risk of constitutional violations, and
where a supervisor “formulat[es] a policy or engage[s] in a custom
. . . that leads to the challenged occurrence.”

See McIntyre v.

United States, 336 F. Supp. 2d 87, 127 (D. Mass. 2004) (describing
many of the scenarios in which the First Circuit Court of Appeals
found

that

supervisors

acted

with

deliberate

indifference);

Barreto–Rivera, 168 F.3d at 49; Maldonado–Denis, 23 F.3d at 582.
2.

Application
Because the defendants do not challenge the first

prong of the supervisory liability doctrine, the Court assumes, for
the purpose of the motion to dismiss, that the field officers
violated the plaintiffs’ constitutional rights. At issue, then, is
the second prong — whether the supervisory defendants deprived
plaintiffs

of

certain

constitutional

rights

by

acting

with

Civil No. 13-1270 (FAB)

14

deliberate indifference or engaged in a custom that leads to the
challenged occurrence.
In their complaint, plaintiffs allege only that
defendants

Pesquera

administrating

and

and

Diaz-Colon

directing

the

were

police

responsible

department

and

for
for

supervising the administrative, operational, recruitment, training,
supervision and discipline of police officers. (Docket 9 at p. 3.)
Although liability pursuant to section 1983 “cannot rest solely on
a

defendant’s

position

of

authority,”

plaintiffs’

subsequent

reference to the Department of Justice’s 2011 report on the PRPD
shifts the focus of their claims away from the Superintendent
position itself to the potential acts and/or omissions of the
individuals who occupied that position of authority.
Hernandez, 640 F.3d at 16.

Ocasio-

Taken in conjunction with plaintiffs’

allegations in the complaint, the DOJ report helps support a
plausible inference that the defendants Pesquera and Diaz-Colon, as
supervisors charged with implementing proper recruitment, training,
supervision,

and

disciplinary

policies,

are

constitutional violations suffered by plaintiffs.

liable

for

any

Because precise

knowledge of the chain of events leading to a constitutional
violation may often be unavailable to a plaintiff at an early stage
of civil rights litigation, a court is permitted to draw on
judicial experience and common sense to make a contextual judgment
about the sufficiency of the pleadings.

See Iqbal, 129 S.Ct.

Civil No. 13-1270 (FAB)

15

at 1950; Ocasio-Hernandez, 640 F.3d at 12.

The Court recognizes

that, at this stage of litigation, the plaintiffs do not possess
exact knowledge of either Pesquera’s or Diaz-Colon’s activities,
and,

therefore,

supervisory

are

liability

unable
with

to
more

substantiate

their

specific

detailed

and

claim

of

facts.

Accordingly, the Court exercises its common sense and judicial
experience to deny defendants Pesquera’s and Diaz-Colon’s motion to
dismiss in order to permit plaintiffs the opportunity to gather
more information concerning those two defendants’ possible acts or
omissions leading to the constitutional violations.

Granted,

plaintiffs have “a long way to go” in order to substantiate their
supervisory liability claims against Pesquera and Diaz-Colon.

See

Jorge v. Police Dept. of Puerto Rico, 2013 U.S. Lexis 31761 (D.P.R.
2013) (Garcia-Gregory, J.).

Nevertheless, the Court abstains from

estimating the probability that plaintiffs will prevail on those
claims.

Id. (citing Ocasio-Hernandez, 640 F.3d at 12).

In

essence, “[t]he role of these defendants can be made clearer in
discovery and nothing precludes later efforts to end the case
against them should discovery not substantiate these inferences.”
Marrero-Rodriguez v. Municipality of San Juan, 677 F.3d 497, 502
(1st Cir. 2012).

Accordingly, defendants’ motion to dismiss

plaintiffs’ section 1983 claims is DENIED.

Civil No. 13-1270 (FAB)
C.

16

Violations of Constitutional Rights by Defendant Pedrogo
Plaintiffs allege that defendant Pedrogo violated their

constitutional

rights

pursuant

to

the

Fourth,

Eighth,

and

Fourteenth Amendments while acting in his capacity as a PRPD police
officer.
Defendant Pedrogo argues that plaintiffs’ claims must be
dismissed because Pedrogo’s actions, as alleged in the complaint,
“do not amount to any claim of liability that Plaintiff can
proffer.”

Docket 37 at p. 13.

He fails, however, to make any

specific arguments to challenge the distinct claims brought by the
plaintiffs

directly.

Defendant

Pedrogo

instead

relies

categorical denial of all claims brought against him.

on

a

The Court,

however, refuses “to do counsel’s work, create the ossature for the
argument, and put flesh on its bones . . . . Judges are not
expected to be mind-readers.”

U.S. v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). Because defendant Pedrogo advances a sweeping argument
that is conclusory and woefully undeveloped, the Court DENIES his
motion to dismiss.
III. Conclusion
For the reasons expressed above, the Court DENIES defendants’
motion to dismiss, (Docket No. 37).

Civil No. 13-1270 (FAB)

17

IT IS SO ORDERED.
San Juan, Puerto Rico, May 27, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE