Diaz-Morales v. Cruz-Velez et al

Filing 145

OPINION AND ORDER granting in part and denying in part 89 motion for summary judgment. Plaintiff's Section 1983 conspiracy claims and the claims against the unknown defendants are hereby DISMISSED. Signed by Judge Juan M. Perez-Gimenez on 3/21/2016. (PMA)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
ROBERT ANEL DIAZ-MORALES,
Plaintiff,
v.

CIV. NO. 13-1360(PG)

SERGIO RUBIO-PAREDES, ET ALS.,
Defendants.

OPINION AND ORDER
Before

the

court

is

co-defendants

Limaris

Cruz-Velez,

Sergio

Rubio-Paredes and Emilio Arill-Garcia’s motion for summary judgment (Docket
No. 89). For the reasons set forth below, the court GRANTS IN PART AND DENIES
IN PART the co-defendants’ motion.
I. BACKGROUND
On

May

8,

2013,

plaintiff

Robert

Anel

Diaz-Morales

(hereinafter

“Plaintiff” or “Diaz-Morales”) filed the instant action seeking compensatory
damages against co-defendants police officer Limaris Cruz-Velez (“CruzVelez”),

prosecutor

Sergio

Rubio-Paredes

(“Rubio-Paredes”),

supervising

district attorney Emilio Arill-Garcia (“Arill-Garcia”), and other unknown
defendants.1 As explained in this court’s Opinion and Order of September 30,
2014 (Docket No. 53), the facts of this case stem from the assault and murder
of Kenia Rosario Viera (“Rosario”) during the early dawn hours of October 23rd,
2001. The Plaintiff was eventually charged and found guilty of these crimes
by a jury on November 13, 2003, but, the Supreme Court of Puerto Rico vacated
this verdict eight and a half years later, on May 9th, 2012.2

1

All defendants are sued in their individual capacity. See Docket No. 1.

2
In our previous opinion and order, the court took judicial notice of the Supreme
Court of Puerto Rico's sentence, namely, Pueblo v. Robert Anel Diaz Morales, CC-2006-532
(PRSC May 9, 2012). See Docket No. 53 at page 2. In their reply, the defendants now argue
that the court should not take judicial notice of the facts as stated in the PRSC sentence,
which the Plaintiff inappropriately relied on to oppose defendants’ proposed statements of
uncontested facts. See Docket No. 137. The Federal Rules of Evidence provide that courts may
only take judicial notice of adjudicative facts that are “not subject to reasonable dispute”
because such facts are (1) generally known within the territorial jurisdiction, or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned. Fed. R. Evid. 201(a)-(b). “Absent unusual circumstances, a court
may not take judicial notice of the findings of fact contained in another court’s order … .”
MVM Inc. v. Rodriguez, 568 F. Supp. 2d 158, 164 (D.P.R. 2008) (citing Nadherny v. Roseland

CIV. NO. 13-1360(PG)

Page 2

The Plaintiff brought the present claim pursuant to 42 U.S.C. § 1983 for
what he claims were violations to his constitutional rights under the Fourth,
Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
These constitutional violations, he claims, stem from the investigation and
prosecution of the assault of Rosario that resulted in her death. See Docket
No. 1. Plaintiff also invoked the court’s supplemental jurisdiction over the
claims arising from the alleged violations of his constitutional rights under
the Commonwealth’s Constitution and for damages under the Commonwealth’s tort
statute, to wit, Article 1802 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit.
31, § 5141. Id.
On

September

30,

2014,

the

court

dismissed

several

claims

upon

defendants’ request and only the claims for malicious prosecution under the
Fourth Amendment, the conspiracy claims, and the related supplemental state
law claims remain. See Docket No. 153.
The defendants now seek summary dismissal of all pending claims (Docket
No. 89), which the Plaintiff opposes (Docket No. 128). Also before the court
is defendants’ reply (Docket No. 137).
II. STANDARD OF REVIEW
A motion for summary judgment is governed by Rule 56 of the
Federal Rules of Civil Procedure, which entitles a party to judgment if
“the movant shows that there is no genuine dispute as to any material fact

Prop. Co., 390 F.3d 44, 51-52 (1st Cir.2004) (citing Int’l Star Class Yacht Racing Ass’n,
146 F.3d 66, 70-71 (2d Cir.1998))). Nevertheless, the court is not prohibited from taking
“judicial notice of the fact that another proceeding took place, or of certain other
undisputable aspects of those proceedings. Thus, courts may take judicial notice of another
court’s order for the limited purpose of recognizing the judicial act or the subject matter
of the litigation.” MVM Inc., 568 F. Supp. 2d at 164 (citing United States v. Jones, 29 F.3d
1549, 1553 (11th Cir.1994)). Applying this caselaw to the present evidentiary controversy,
the court finds that it may take judicial notice of the fact that the Supreme Court of
Puerto Rico acquitted Diaz-Morales and found that reasonable doubt existed as to DiazMorales’ guilt deeming that the credibility of the Commonwealth’s main witness was
questionable, that no physical evidence linked Diaz-Morales to the crime scene and that
several omissions and gaps existed in the police’s investigation. See Certified Translation
of Pueblo v. Robert Anel Diaz Morales, CC-2006-532 (PRSC May 9, 2012), Docket No. 114.
Having so ruled, the court differs from the defendants’ assertion that the Plaintiff
failed to properly oppose their statements of fact and submit statements of his own because
it inadequately relied on findings of fact from another court, to wit, the Supreme Court of
Puerto Rico. Rule 56(c)(2) of the Federal Rules of Civil Procedure states that “[a] party
may object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.” Fed. R. Civ. P. 56. Although the court does not
take judicial notice of the PRSC’s findings of fact in its sentence acquitting the
Plaintiff, the defendants cannot plausibly argue that the testimonies and documentary
evidence that supported those very findings cannot be made admissible in the proceedings of
the above-captioned case. The court thus finds that the Plaintiff’s objections to
defendants’ facts and his own proposed statements of fact were submitted in accordance with
the tenets of the Rule, as amended.

CIV. NO. 13-1360(PG)

Page 3

and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). To be successful in its attempt, the moving party must demonstrate the
absence of a genuine issue as to any outcome-determinative fact in the record,
see DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997), through definite
and competent evidence. See Maldonado-Denis v. Castillo Rodriguez, 23 F.3d
576, 581 (1st Cir.1994). Once the movant has averred that there is an absence
of evidence to support the non-moving party’s case, the burden shifts to the
non-movant to establish the existence of at least one fact in issue that is
both genuine and material. See Garside v. Osco Drug, Inc., 895 F.2d 46, 48
(1st Cir.1990) (citations omitted). “A dispute is genuine if the evidence
about the fact is such that a reasonable jury could resolve the point in favor
of the non-moving party.” Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008)
(citing Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986); Calero-Cerezo
v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (stating that an
issue is genuine if it can be resolved in favor of either party). In order for
a disputed fact to be considered material it must have the potential “to
affect the outcome of the suit under the governing law.” Sands v. Ridefilm
Corp., 212 F.3d 657, 660-61 (1st Cir. 2000) (citing Liberty Lobby, Inc., 477
U.S. at 247-248); Prescott, 538 F.3d at 40 (citing Maymi v. P.R. Ports Auth.,
515 F.3d 20, 25 (1st Cir. 2008)).
If the non-movant generates uncertainty as to the true state of any
material fact, the movant’s efforts should be deemed unavailing. See Suarez
v. Pueblo Int’l, 229 F.3d 49, 53 (1st Cir.2000). Nonetheless, the mere
existence of “some alleged factual dispute between the parties will not affect
an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). However, “summary judgment
may be appropriate if the nonmoving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation.” Medina-Muñoz
v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).
At the summary judgment juncture, the court must examine the facts in the
light most favorable to the non-movant, indulging that party with all possible
inferences to be derived from the facts. See Rochester Ford Sales, Inc. v.
Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). The court must review the
record “taken as a whole,” and “may not make credibility determinations or
weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 135 (2000). This is so, because credibility determinations, the weighing

CIV. NO. 13-1360(PG)

Page 4

of the evidence, and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge. Id.
III. DISCUSSION
A. Section 1983
Section 1983 “provides a remedy for deprivations of rights secured by the
Constitution and laws of the United States when that deprivation takes place
under color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924
(1982) (internal quotation marks omitted). To prevail in a Section 1983 claim,
a plaintiff “must allege facts sufficient to support a determination (i) that
the conduct complained of has been committed under color of state law, and
(ii) that [the alleged] conduct worked a denial of rights secured by the
Constitution or laws of the United States.” Cepero-Rivera v. Fagundo, 414 F.3d
124, 129 (1st Cir.2005) (quoting Romero–Barceló v. Hernández– Agosto, 75 F.3d
23, 32 (1st Cir.1996)). For Section 1983 liability purposes, “a state employee
generally acts under color of state law when, while performing in his official
capacity or exercising his official responsibilities, he abuses the position
given to him by the State.” West v. Atkins, 487 U.S. 42, 49 (1988).
Section 1983 claims require that a plaintiff establish three elements for
liability to ensue: deprivation of a right, a causal connection between the
actor and the deprivation, and state action. See Sanchez v. Pereira–Castillo,
590 F.3d 31 (1st Cir.2009); see also 42 U.S.C. § 1983. The causation element
requires that the plaintiff establish (1) that the actions of the defendant
deprived the plaintiff of a protected right, and (2) “that the defendant’s
conduct was intentional, grossly negligent, or amounted to a reckless or
callous indifference to the plaintiff’s constitutional rights.” Concepción v.
Municipality of Gurabo, 558 F.Supp.2d 149, 162 (D.P.R.2007). Moreover, a
plaintiff must link each particular defendant to the alleged violation of
federal rights. See González–Piña v. Rodríguez, 407 F.3d 425, 432 (1st
Cir.2005). A plaintiff may do so by indicating any “personal action or
inaction [by the defendants] within the scope of [their] responsibilities that
would make [them] personally answerable in damages under Section 1983.” Pinto
v. Nettleship, 737 F.2d 130, 133 (1st Cir.1984).
The Plaintiff raises claims of malicious prosecution and conspiracy to
deprive him of his constitutional rights. In their motion, the defendants seek
to dismiss all of Plaintiff’s remaining Section 1983 claims pursuant to
several grounds that will be discussed herein.

CIV. NO. 13-1360(PG)

Page 5

1. Malicious Prosecution
a. Probable Cause
In order to bring a Section 1983 malicious prosecution claim under the
Fourth Amendment, a plaintiff shall establish that “the defendant (1) caused
(2) a seizure of the plaintiff pursuant to legal process unsupported by
probable cause, and (3) criminal proceedings terminated in plaintiff’s favor.”
Hernandez–Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir.2013) (citation and
quotation marks omitted). In Hernandez–Cuevas, the First Circuit held that “it
is ‘self-evident’ that ‘those charged with upholding the law are prohibited
from deliberately fabricating evidence and framing individuals for crimes they
did not commit.’” Id. at 100 (citing Limone v. Condon, 372 F.3d 39, 44–45 (1st
Cir.2004) (concluding that “the right not to be framed by law enforcement
agents was clearly established in 1967”)).
The

defendants

seek

the

dismissal

of

the

Plaintiff’s

malicious

prosecution claims against them because they acted upon probable cause. In
fact, the defendants assert that “the instant action hinges over the existence
of probable cause,” Docket No. 89 at page 8, that is, the second element of
the malicious prosecution claim. In support of this contention, the defendants
list the series of events that led to the crime, which stemmed from their
investigation. See id. at 10-15. The defendants offer these findings as
statements of uncontested fact, most of which are based on the testimony of
Jose Luis Delgado (“Delgado”), a co-author of the crime and an admitted heroin
user. Id. The defendants also argue that the Commonwealth court’s finding of
probable cause to arrest and charge the Plaintiff and the jury’s guilty
verdict validates their assessment. See id. at page 16.
In his opposition, the Plaintiff disputes the accuracy and reliability
of all of the defendants’ purported facts. In particular, he claims that
Delgado was an unreliable witness to begin with insofar as he was a drug
addict with a third grade special education level; gave different accounts of
events that included several discrepancies; was under the influence of heroin
during the commission of the crime, as well as during the course of his
multiple interviews with police officer Cruz; and, physically identified the
Plaintiff as a co-author of the crime only after his [the Plaintiff’s] arrest.
See Docket No. 128 at pages 10-13. In addition, the Plaintiff identifies
several reckless omissions in the investigation. Firstly, the Plaintiff points
our attention to the investigating officers’ failure to verify the identity
of another individual that shared the Plaintiff’s nickname, which Delgado used

CIV. NO. 13-1360(PG)

Page 6

to identify the co-author of the crime against Rosario. Instead, the Plaintiff
contends Cruz obstinately and irresponsibly focused on him as the suspect.
Second, the Plaintiff asserts the police failed to investigate the origin and
the pattern of the phone calls made from Rosario’s mobile phone, which was
found in the Plaintiff’s possession. However, Diaz-Morales repeatedly claimed
he bought it from someone off the street days after Rosario’s assault, a
version that was verifiable from first-hand sources. Finally, Diaz-Morales
sustains that during an interview in the presence of both Rubio and Arill,
Cruz threatened to “make him pay” for being unable to identify the person who
sold him Rosario’s mobile phone. Id. at page 17.
Regarding the finding of probable cause in the context of a malicious
prosecution claim under the Fourth Amendment, the First Circuit has held that
“[p]robable cause exists if the facts and circumstances within the relevant
actors’ knowledge and of which they had reasonably reliable information would
suffice to warrant a prudent person in believing that a person has committed
or is about to commit a crime.” Burke v. Town Of Walpole, 405 F.3d 66, 80 (1st
Cir. 2005) (quotation marks omitted) (citing Roche v. John Hancock Mutual Life
Ins. Co., 81 F.3d 249, 254 (1st Cir.1996)). “In determining whether the
officer

had

probable

cause,

we

must

view

the

circumstances

from

the

perspective of a reasonable person in the position of the officer.” Holder v.
Town Of Sandown, 585 F.3d 500, 504 (1st Cir. 2009) (citing Roche, 81 F.3d at
255). “The test for probable cause does not require the officers’ conclusion
to be ironclad, or even highly probable. Their conclusion that probable cause
exists need only be reasonable.”•Town Of Sandown, 585 F.3d at 504 (citing
Acosta v. Ames Dep’t Stores, 386 F.3d 5, 11 (1st Cir.2004)).
“If reasonable grounds to arrest exist, probable cause is established and
there is no constitutional duty to continue to investigate further.” Afreedi
v. Bennett, 517 F. Supp. 2d 521, 533 (D. Mass. 2007) (citing Franco-de Jerez
v. Burgos, 876 F.2d 1038, 1042 (1st Cir.1989)). In fact, the First Circuit has
“disclaimed any unflagging duty on the part of law enforcement officers to
investigate fully before making a probable cause determination.” Acosta v.
Ames Dep’t Stores, Inc., 386 F.3d 5, 11 (1st Cir. 2004). Nevertheless, while
the First Circuit has “recognized that such a duty may arise in highly
idiosyncratic circumstances, see, e.g., B.C.R. Transport, 727 F.2d at 10-11,
[the First Circuit] [has] made it clear that an officer normally may terminate
her investigation when she accumulates facts that demonstrate sufficient
probable cause.” Acosta, 386 F.3d at 11. See also Town Of Sandown, 585 F.3d

CIV. NO. 13-1360(PG)

Page 7

at 505 (“[We] have made it clear that an officer normally may terminate [his]
investigation when [he] accumulates facts that demonstrate sufficient probable
cause.”).
Notwithstanding the foregoing, in B.C.R. Transport Co. v. Fontaine, 727
F.2d 7 (1st Cir.1984), over thirty years ago the First Circuit rejected the
broad proposition that probable cause necessarily existed because a warrant
had been obtained based upon information supplied by an alleged victim. See
id.; Acosta, 386 F.3d at 8. Instead, the Court determined that the probable
cause inquiry “invariably depends on the particular facts and circumstances
of that case … .” B.C.R., 727 F.2d at 10. The Court thus concluded that
sufficient evidence existed to find that the arresting officers acted without
probable cause because they relied on the testimony of an alleged victim that
was a drifter, incoherent and sounded as if he was on drugs, coupled with the
fact that the officer failed to exhaust first-hand sources of information
readily available to him. Id. at 10-11. As a matter of fact, “subsequent First
Circuit decisions have read B.C.R. to stand for the proposition that an
officer may have a duty to investigate further before making an arrest on the
basis of an ‘incoherent’ or ‘raving’ individual’s allegations … .” Cullen v.
Janvrin, No. 14-CV-110-PB, 2015 WL 7312886, at *7 (D.N.H. Nov. 19, 2015)
(citing Holder, 585 F.3d at 506; Acosta, 386 F.3d at 8).
In the case at hand, the facts known - and that should have been known to co-defendant Cruz, and any other investigating officer, at the time of the
arrest are in dispute. “The only relevant facts are those known to the
officer. When these facts are in reasonable dispute, the fact-finder must
resolve the dispute.” Town Of Sandown, 585 F.3d at 504 (citing Bolton v.
Taylor, 367 F.3d 5, 7 (1st Cir.2004)). To that effect, the plaintiff and the
defendants offer differing versions. But examining the purported facts in the
light most favorable to the Plaintiff pursuant to the applicable standard, we
find he has set forth a credible claim that the investigating officers in
Rosario’s assault and murder case lacked probable cause to believe that DiazMorales committed the crimes in question. “The questions that remain are
fact-sensitive, and the answers are not so apparent that we can decide them
without the benefit of additional factfinding.” United States v. Tanguay, 787
F.3d 44, 54 (1st Cir. 2015). Therefore, the factual disputes surrounding the
circumstances of Diaz-Morales’ arrest prevent this court from summarily
dismissing his Fourth Amendment malicious prosecution claim. Accordingly, the
defendants’ request that these claims be dismissed is hereby DENIED.

CIV. NO. 13-1360(PG)

Page 8

b. Co-defendant Arill
In their motion for summary judgment, the defendants request that the
claims for malicious prosecution against co-defendant Arill be dismissed
because he did not participate in the investigation of the charges against the
Plaintiff, only the prosecution. See Docket No. 89 at page 9. By the same
token, Arill also claims that Plaintiff has failed to come forth with evidence
of any constitutional violation on his part that would give rise to a claim
of supervisor liability. Id. at pages 31-35.
In response, the Plaintiff contends Arill was present during the
interview wherein Cruz and Rubio threatened him with pursuing charges against
him just for being unable to identify the individual who sold him Rosario’s
mobile phone. Plaintiff also notes Arill’s admission in his statement of
uncontested facts that Rubio kept him informed of the progress of the
investigation regarding Rosario’s assault and murder, of which he was
eventually accused of. See Docket No. 128 at page 19; Defendants’ Statement
of Uncontested Facts, Docket No. 87, ¶ 352.
“[S]upervisory liability under section 1983 cannot arise solely on the
basis of respondeat superior.” Grajales v. Puerto Rico Ports Authority, 682
F.3d 40, 47 (1st Cir.2012) (citing Leavitt v. Corr. Med. Servs., Inc., 645
F.3d

484,

502

(1st

Cir.2011)).

“Section

1983

does

not

impose

purely

supervisory liability; it aims at persons who have actually abused their
positions of authority, and hence only persons who were directly involved in
the wrongdoing may be held liable.” Cordero-Suarez v. Rodriguez, 689 F.3d 77,
82 (1st Cir.2012) (internal citations and quotation marks omitted).
Therefore, in the context of Section 1983 actions, supervisory liability
may attach in one of two ways: “either the supervisor may be a primary
violator or direct participant in the rights-violating incident, or … if a
responsible

official

supervises,

trains,

or

hires

a

subordinate

with

deliberate indifference toward the possibility that deficient performance of
the task eventually may contribute to a civil rights deprivation.” Sanchez v.
Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.2009) (internal citations and
quotation marks omitted). “[T]he plaintiff in a Section 1983 action must show
an affirmative link, whether through direct participation or through conduct
that amounts to condonation or tacit authorization, … between the actor and
the underlying violation.” Id. at 49 (internal citations and quotation marks
omitted).

CIV. NO. 13-1360(PG)

Page 9

“After Iqbal, … [the First Circuit] [has] stressed the importance of
showing a strong causal connection between the supervisor’s conduct and the
constitutional violation.” Ramirez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19
(1st Cir.2014) (citations omitted)). In addition, “the plaintiff must show
that the official had actual or constructive notice of the constitutional
violation.” Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 533 (1st
Cir.2011) (citations and quotation marks omitted).
Arill denies having partaken in the investigation of the crimes against
Rosario. However, the court finds that Arill’s actual involvement and
participation in the investigation - or lack thereof - is a matter of
credibility the court cannot make at this stage. In addition, it cannot be
ascertained at this point whether Arill displayed deliberate indifference in
the supervision of Rubio and/or whether he was on notice of the claimed
constitutional violations against the Plaintiff. Some purported facts on
record, such as his knowledge of the progress of the investigation and his
alleged presence during one of Plaintiff’s interviews, throw shade onto
Arill’s purported version. Answering these questions call for “‘[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts’ - all tasks for the jury, not the judge.”
Garcia-Gonzalez v. Puig-Morales, 761 F.3d at 99 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Rodriguez v. Municipality of San Juan,
659 F.3d 168, 175 (1st Cir.2011)).
Pursuant to the foregoing, the court hereby DENIES co-defendant Arill’s
request that the malicious prosecution claim be dismissed against him.
B. Absolute and Qualified Immunity
1. Prosecutorial Immunity (Absolute Immunity)
The defendants move to dismiss the claims against prosecutors Rubio and
Arill arguing that any claim against them that arises from the judicial
proceedings is barred by absolute immunity. Rubio and Arill also add that the
complaint is silent as to the performance of their duties as attorneys of the
State during the criminal proceedings against Diaz-Morales. See Docket No. 89
at pages 17-20. In response, the Plaintiff opposes the dismissal of the claims
against these two. Diaz-Morales posits that these defendants, despite being
prosecutors, cannot be deemed immune for the investigative conduct they
engaged in, the performance of which gives rise to his claims. See Docket
No. 128 at pages 21-26.

CIV. NO. 13-1360(PG)

Page 10

“Absolute immunity applies to a narrow swath of public officials,
including … ‘prosecutors performing acts intimately associated with the
judicial phase of the criminal process,’ … . ” Goldstein v. Galvin, 719 F.3d
16, 24 (1st Cir.2013) (citations omitted). For example, “[p]rosecutors … are
absolutely immune for actions, taken as advocates for the State, which are
closely associated with the judicial process such as initiating and pursuing
a criminal prosecution.” Knowlton v. Shaw, 704 F.3d 1, 5 (1st Cir.2013)
(citing Imbler v. Pachtman, 424 U.S. 409, 430–31 & n. 33 (1976); Burns v.
Reed, 500 U.S. 478, 479 (1991)). “The protection afforded by an absolute
immunity endures even if the official acted maliciously and corruptly in
exercising his judicial or prosecutorial functions.” Goldstein, 719 F.3d at
24 (internal citations and quotation marks omitted).
“In determining whether an official qualifies for absolute immunity, an
inquiring court must examine the particular functions that the official
performs.” Goldstein, 719 F.3d at 24 (citing Buckley v. Fitzsimmons, 509 U.S.
259, 269 (1993)). That is, in considering whether absolute immunity attaches
to an official’s conduct, we look

to the nature of the function performed,

not the identity of the actor who performed it. See Knowlton, 704 F.3d at 5
(citations omitted). However, “[d]eciding where to draw the line between such
immunized prosecutorial advocacy and conduct that is, for example, exclusively
investigative

or

administrative

is

not

always

easy.”

Diaz-Colon

v.

Fuentes-Agostini, 786 F.3d 144, 150 (1st Cir. 2015). The burden of proving
their actions warrant that protection falls on the officials claiming the
immunity. See id.
The Plaintiff here concedes that the claims against the prosecutor
defendants stem from their participation in the investigation of the criminal
charges filed against him and their administrative duties during such
investigation.

For

these,

only

qualified

immunity

would

be

available.

“Prosecutors acting as advocates of the state are provided with absolute
immunity, while actions taken as an investigator are only protected through
qualified immunity.” Diaz-Colon v. Toledo-Davila, 922 F.Supp.2d 189, 207
(D.P.R. 2013) (citing Buckley, 509 U.S. at 273). See also Buckley v.
Fitzsimmons, 509 U.S. 259, 274 (1993) (no immunity for fabricating evidence
before probable cause established); Burns v. Reed, 500 U.S. 478, 496 (1991)
(no immunity for giving advice to police during investigation). Because the
Plaintiff does not seek damages for actions taken in the performance of their
prosecutorial

duties,

co-defendants

Rubio

and

Arill’s

request

for

the

CIV. NO. 13-1360(PG)

Page 11

dismissal of the claims against them on absolute immunity grounds must be
DENIED.
2. Qualified Immunity
The defendants also assert the claims against them are barred by
qualified immunity. See Docket No. 89 at pages 20-31. The main grounds in
support of their argument is that they acted reasonably in relying on the
results

of

their

investigation

and

in

believing

Delgado’s

testimony

implicating the Plaintiff. See id. at page 30. In response, the Plaintiff
opposes the defendants’ immunity defense. Diaz-Morales points to the dispute
surrounding the facts the defendants relied on to pursue the charges against
him, especially the inconsistencies in Delgado’s multiple versions of what
transpired on the night of Rosario’s assault. See Docket No. 128 at pages 2629.
“Long-standing principles of constitutional litigation entitle public
officials to qualified immunity from personal liability arising out of actions
taken in the exercise of discretionary functions.” Glik v. Cunniffe, 655 F.3d
78, 81 (1st Cir. 2011). “In assessing qualified immunity, … [f]irst, we must
decide whether the facts alleged or shown by the plaintiff make out a
violation of a constitutional right. … Second, assuming a constitutional
violation exists, we determine whether the right was clearly established at
the

time

of

the

defendant’s

alleged

violation.”

Fernandez-Salicrup

v.

Figueroa-Sancha, 790 F.3d 312, 325 (1st Cir. 2015) (internal citations and
quotation marks omitted). Two inquiries follow the second element of the
analysis:
(a) whether the legal contours of the right in question
were sufficiently clear that a reasonable officer would
have understood that what he [or she] was doing
violated the right, and (b) whether in the particular
factual context of the case, a reasonable officer would
have understood that his [or her] conduct violated the
right.
Fernandez-Salicrup, 790 F.3d at 325-26 (citing Mlodzinski v. Lewis, 648 F.3d
24, 32-33 (1st Cir.2011)). If all questions are answered in the affirmative,
then qualified immunity is not available. See Mihos v. Swift, 358 F.3d 91, 110
(1st Cir.2004).
As discussed above, the court found that the Plaintiff set forth a
sufficiently credible claim that the investigating officers lacked probable
cause to believe that he committed the assault that resulted in Rosario’s
death. Thus, there is a genuine issue of material fact over whether the

CIV. NO. 13-1360(PG)

Page 12

defendants’ actions violated Diaz-Morales’ constitutional right under the
Fourth Amendment.
Moving on to the second prong of the analysis, the defendants concede
that it is clearly established that arrests be based on probable cause, Docket
No. 89 at page 21, and that investigating officers cannot fabricate evidence
in order to procure an arrest warrant against an individual, id. page 22. The
defendants also agree that “[i]t is also beyond peradventure that arrests
procured on the basis of material false statements or testimony given in
reckless disregard for the truth violates the Fourth Amendment.” Id. at pages
21-22.
Therefore, in view of the arguments the defendants raise in their motion
for summary judgment, the analysis here turns on the objective reasonableness
of the defendants’ actions. “The objective reasonableness inquiry is highly
fact specific, …• and often requires [an] examination of the information
possessed by the defendant officials.” Diaz-Garcia v. Surillo-Ruiz, No. CIV.
13-1473 FAB, 2015 WL 3866686, at *27 (D.P.R. June 23, 2015) (internal
quotation marks omitted) (citing Swain v. Spinney, 117 F.3d 1, 9-10 (1st
Cir.1997); Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009); Kelley v.
LaForce, 288 F.3d 1, 7 (1st Cir.2002)). “However, whether or not a reasonable
officer, similarly situated, would have understood that [his/her] actions
violated this right is a fact-intensive question.” Fernandez-Salicrup, 790
F.3d at 326. As previously stated, the facts known, or that should have been
known to the investigating officers at the time of the Plaintiff’s arrest are
in dispute. “These are questions for a factfinder, and until they are
answered,

we

are

unable

to

determine,

as

a

matter

of

law,

whether

[defendants’] conduct was deficient that no reasonable officer could have made
the same choice under the circumstances.” Id. at 326 (citing Estate of Bennett
v. Wainwright, 548 F.3d 155, 168 (1st Cir.2008))(internal quotation marks
omitted).
The factual dispute surrounding the investigation of Rosario’s assault
prevent

this

court

from

evaluating

the

qualified

immunity

question.

Accordingly, the defendants’ request for dismissal of the claims against them
on grounds of qualified immunity is hereby DENIED.
C. Conspiracy
Regarding the Plaintiff’s claim that the defendants conspired to deprive
him of his constitutional rights in violation of Section 1983, the defendants
argue that dismissal is appropriate insofar as the Plaintiff failed to put

CIV. NO. 13-1360(PG)

Page 13

forth any evidence to sustain this particular claim. See Docket No. 89 at
pages 35-36. In response, the Plaintiff concisely spells out the elements of
a Section 1983 conspiracy claim and simply states that “the facts further
warrant this question be also presented to the jury for adjudication.” Docket
No. 128 at page 121.
A civil rights conspiracy under Section 1983 is “a combination of two or
more persons acting in concert to commit an unlawful act, or to commit a
lawful act by unlawful means, the principal element of which is an agreement
between the parties to inflict a wrong against or injury upon another, and an
overt act that results in damages.” Estate of Bennett v. Wainwright, 548 F.3d
155, 178 (1st Cir.2008) (citing Earle v. Benoit, 850 F.2d 836, 844 (1st
Cir.1988)). “In order to make out an actionable conspiracy under section 1983,
a plaintiff has to prove not only a conspiratorial agreement but also an
actual abridgment of some federally-secured right.” Nieves, 241 F.3d at 53
(citations omitted).

Estate

A civil rights conspiracy as commonly defined is “a
combination of two or more persons acting in concert to
commit an unlawful act, or to commit a lawful act by
unlawful means, the principal element of which is an
agreement between the parties to inflict a wrong
against or injury upon another, and an overt act that
results in damages.”
of Bennett v. Wainwright, 548 F.3d 155, 178 (1st Cir.

2008)

(quoting•Earle v. Benoit, 850 F.2d 836, 844 (1st Cir.1988)).
As previously stated, material facts are in dispute as to whether or not
the defendants deprived him of a right secured by the Constitution. However,
the court finds that the Plaintiff simply failed to set forth any proof of a
conspiratorial agreement on the part of the defendants, or even adequately
develop an argument in support of his claim. “[I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed waived.” Glob. NAPs, Inc. v. Verizon New England, Inc., 706 F.3d
8, 16 (1st Cir. 2013) (citing•United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)). The court will not do counsel’s work. “[S]ummary judgment may …
be appropriate on a conspiracy claim where the nonmoving party rests merely
on conclusory allegations.” Estate of Bennett, 548 F.3d at 178.
In accordance with the foregoing, the court GRANTS the defendants’
motion for summary judgment with respect to the Section 1983 conspiracy
claims.

CIV. NO. 13-1360(PG)

Page 14

D. Supplemental State Law Claims
The defendants request that the supplemental state law claims be
dismissed because the Plaintiff’s causes of action under federal law fail. See
Docket No. 89 at page 37. However, as held supra, the Plaintiff’s Fourth
Amendment malicious prosecution claim against all defendants has survived
summary judgment. Because Plaintiff’s state-law claims arise out of the same
nucleus of operative facts as his claims under 42 U.S.C. § 1983, it is in the
interest of judicial efficiency that this court retain jurisdiction over the
supplemental state law claims. See Ortiz-Bonilla v. Federacion de Ajedrez de
Puerto Rico, Inc., 734 F.3d 28, 35 (1st Cir.2013) (“A federal court that
exercises federal question jurisdiction over a single claim may also assert
supplemental jurisdiction over all state-law claims that arise from the same
nucleus of operative facts.”). Thus, defendants’ request that the court
summarily dismiss Diaz-Morales’ supplemental state-law claims is necessarily
DENIED.
E. UNKNOWN DEFENDANTS
The defendants also seek the dismissal of the claims against the unknown
defendants pursuant to Rules 4(m) and 12(b)(5) of the Federal Rules of Civil
Procedure because they were never identified and timely served with process.
See Docket No. 89 at page 37. The Plaintiff did not oppose the request.
“Under Fed.R.Civ.P. 4(m), a district court may dismiss a complaint
without prejudice as to a particular defendant if the plaintiff fails to serve
that defendant within 120 days after filing the complaint.” Figueroa v.
Rivera, 147 F.3d 77, 83 (1st Cir. 1998). On the other hand, Federal Rule of
Civil Procedure 12(b)(5) allows a party to assert a defense of insufficient
service of process. Fed.R.Civ.P. 12(b)(5).
The above-captioned claim was filed almost three years ago. The record
discloses no attempt by the Plaintiff to identify or serve any of the
anonymous defendants additionally responsible for his alleged constitutional
violations. “[A] district court otherwise prepared to act on dispositive
motions is not obligated to ‘wait indefinitely for [the plaintiff] to take
steps to identify and serve … unknown defendants.’” Figueroa v. Rivera, 147
F.3d 77, 83 (1st Cir. 1998) (quoting•Glaros v. Perse, 628 F.2d 679, 685 (1st
Cir.1980)).
Plaintiff has had ample time to identify any additional defendant, amend
his complaint and perform the required service of process, but has failed to

CIV. NO. 13-1360(PG)

Page 15

do so or shown good cause for the omission. The court therefore GRANTS the
defendants’ request and dismisses the claims against all unknown defendants.
IV. CONCLUSION
For the reasons stated above, the defendants’ motion for summary judgment
is GRANTED IN PART AND DENIED IN PART, and the Plaintiff’s claims against the
unknown

defendants

and

the

Section

1983

conspiracy

claims

are

DISMISSED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, March 21, 2016.
S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE

hereby