Rolon-Merced et al v. Pesquera et al

Filing 23

OPINION AND ORDER granting in part and denying in part 19 Motion to Dismiss for Failure to State a Claim. Parties are hereby ordered to report on the status of service of process by 5/2/2016. Signed by Judge Daniel R. Dominguez on 3/30/2016. (JM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JILMARIE ROLON-MERCED, et al.,
Plaintiffs,
v.
Civil No. 14-1757(DRD)

HECTOR PESQUERA, et al.,
Defendants.

OPINION AND ORDER
Plaintiffs

filed

the

instant

Complaint

on

October

8,

2014

against Defendants in their individual capacities under Section
1983

of

the

Civil

Rights

violations of the Fourth

Act,

42

and Fifth

U.S.C.

§

1983,

alleging

Amendments of the United

States Constitution and Puerto Rico’s Tort statute, Article 1802
of the Puerto Rico Civil Code.
Pending before the Court are Defendants’ Motion to Dismiss
(Docket No. 19) and Plaintiffs’ Opposition to Motion to Dismiss
(Docket No. 22). For the reasons elucidated below, the Court
hereby GRANTS in part and DENIES in part Defendants’ Motion to
Dismiss.
I.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs’ suit arises from facts alleged to have occurred
on October 13, 2013. Specifically, Plaintiffs allege that George
1

Michael Diaz-Ortiz (“Diaz-Ortiz”) was talking with a group of
friends when PRPD officers intervened with the group. Diaz-Ortiz
appears to have fled from the officers. Plaintiffs allege DiazOrtiz was shot in the back by Officer Cruz in his attempt to
flee.
The officers on the scene, Officer Cruz and the unknown
defendants, allegedly failed to provide emergency medical care
to Diaz-Ortiz after he was shot. As a result, Diaz-Ortiz bled to
death on the pavement. Plaintiffs alleged that Diaz-Ortiz would
not

have

died

had

he

been

provided

the

necessary

emergency

medical care. See Docket No. 1.
On

October

10,

2014,

Plaintiffs

Jilmarie

Rolon-Merced,

Joleydaliz Diaz-Rolon, Micaela I. Diaz-Rolon, Brenda I. OrtizCosme, Jose Diaz-Ortiz, Bryan Diaz-Ortiz, Franyael Diaz-Ortiz
and Luis Yomar Diaz-Ortiz filed suit against Defendants Hector
Pesquera (“Pesquera”), PRPD Officer Cruz (“Cruz”) and several
unknown defendants (Docket No. 1).
Plaintiffs are seeking redress for the damages suffered as
a result of the wrongful death of George Michael Diaz-Ortiz
during

the

intervention

argue

that

as

a

by

officers

consequence

of

of

the

PRPD.

Defendants’

Plaintiffs
deliberate

indifference and negligence, Diaz Ortiz faced his death, as he
was

shot

in

the

back

and

then

left

out

to

bleed

without

receiving any medical attention in spite of being merely steps
2

away

from

a

hospital.

Plaintiffs

allege

that

Superintendent

Pesquera failed to implement proper policies in order to prevent
events of police misconduct such as the one that caused the
death of Diaz-Ortiz.
On August 6, 2015, Defendants filed a Motion to Dismiss
(Docket No. 19) alleging Plaintiffs’ claims should be dismissed
as a matter of law for four specific reasons. First, Defendants
aver

that

Plaintiff’s

complaint

standard.

Secondly,

plausibility

failed

meet

the

added

they

to

Iqbal

that

Plaintiffs

Pereira and CJRL lack standing to sue pursuant Section 1983.
Third, Defendants aver that claims against known and unknown
defendants must be dismissed with prejudice for failure to serve
process within the time allowed by the Federal Rules of Civil
Procedure.
claims

must

Lastly,
be

Defendants

dismissed

allege

without

that

pendent

prejudice

State

against

Law

appearing

codefendants because they have no federal cause of action
On September 23, 2015, Plaintiffs filed an Opposition to
Motion to Dismiss (Docket No. 22). Therein, Plaintiffs argued
that the necessary allegations are all in the Complaint and that
they

adequately

provide

notice

of

their

claims

for

relief.

Regarding the claims brought by the decedent’s relatives under
Section

1983,

the

Plaintiffs

responded

that

the

Plaintiff’s

children are his heirs and as for the wife, mother and siblings,
they have not brought suit under section 1983, but under the
3

Court’s supplemental jurisdiction under Puerto Rico Civil Code
Articles 1802, et. seq. Furthermore, the Plaintiffs stated that
the pendent state law claims must not be dismissed due to the
fact that they stem from the same nucleus of operative facts.
Lastly, the Plaintiffs claimed that the unknown defendants must
not be dismissed, considering the fact that the PRPD did not
supply them with the correct information as to properly identify
said officer who has not been yet identified. As a result, the
Plaintiffs seek to conduct discovery in order to identify said
officers.
II. STANDARD OF REVIEW FOR MOTIONS TO DISMISS
Federal Rule of Civil Procedure 8(a) requires plaintiffs to
provide “a short and plain statement of the claim showing that
the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), a
plaintiff must “provide the grounds of his entitlement [with]
more

than

labels

and

conclusions.”

See

Ocasio-Hernandez

v.

Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (“in order to
‘show’ an entitlement to relief a complaint must contain enough
factual

material

‘to

raise

a

right

to

relief

above

the

speculative level on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).’)(quoting
Twombly,

550

U.S.

at

555)

(citation

omitted).

Thus,

a

plaintiff must, and is now required to, present allegations that
4

“nudge

[his]

claims

across

the

line

from

conceivable

to

plausible” in order to comply with the requirements of Rule
8(a).

Id. at 570; see e.g. Ashcroft v. Iqbal, 556 U.S. 662

(2009).
When considering a motion to dismiss, the Court’s inquiry
occurs in a two-step process under the current context-based
“plausibility” standard established by Twombly, 550 U.S. 544,
and Iqbal, 556 U.S. 662. “Context based” means that a Plaintiff
must allege sufficient facts that comply with the basic elements
of

the

cause

(concluding

of

action.

that

See

Iqbal,

plaintiff’s

556

U.S.

complaint

at

was

677-679

factually

insufficient to substantiate the required elements of a Bivens
claim, leaving the complaint with only conclusory statements).
First, the Court must “accept as true all of the allegations
contained

in

a

complaint[,]”

discarding

legal

conclusions,

conclusory statements and factually threadbare recitals of the
elements of a cause of action.

Iqbal, 556 U.S. at 678. “Yet we

need not accept as true legal conclusions from the complaint or
‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Maldonado

v.

Fontanes,

568

F.3d

263,

(quoting Iqbal, 556 U.S. 678) (quoting

268

(1st

Cir.

2009)

Twombly, 550 U.S. at

557).
Under
determine

the

second

whether,

step

based

of

upon

the
all

5

inquiry,
assertions

the

Court

that

were

must
not

discarded under the first step of the inquiry, the complaint
“states a plausible claim for relief.”

Iqbal, 556 U.S. 679.

This second step is “context-specific” and requires that the
Court draw from its own “judicial experience and common sense”
to decide whether a plaintiff has stated a claim upon which
relief may be granted, or, conversely, whether dismissal under
Rule 12(b)(6) is appropriate.
Thus,

“[i]n

order

to

Id.
survive

a

motion

to

dismiss,

[a]

plaintiff must allege sufficient facts to show that he has a
plausible entitlement to relief.”

Sanchez v. Pereira-Castillo,

590 F.3d 31, 41 (1st Cir. 2009).
facts

do

not

permit

the

court

to

“[W]here the well-pleaded
infer

more

than

the

mere

possibility of misconduct, the complaint has alleged - but it
has not ‘show[n]’ ‘that the pleader is entitled to relief.’”
Iqbal,

556

U.S.

at

679

(quoting

Fed.

R.

Civ.

P.

8(a)(2)).

Furthermore, such inferences must be at least as plausible as
any “obvious alternative explanation.”
Twombly, 550 U.S. at 567).

Id. at 679-80 (citing

“A plaintiff is not entitled to

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

Ocasio-Hernandez, 640

F.3d at 12, (citing Iqbal, 556 U.S. 679).
The

First

plausibility
merits,

with

affirming

Circuit
an

has

cautioned

analysis

that

of

the

the

likely

plausibility
6

against
success

standard

equating
on

the

assumes

“pleaded facts to be true and read in a plaintiff’s favor” “even
if seemingly incredible.” Sepúlveda-Villarini v. Dep’t of Educ.
of P.R., 628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly, 550
U.S. at 556); Ocasio-Hernandez, 640 F.3d at 12 (citing Iqbal,
556 U.S. 679); see Twombly, 550 U.S. at 556 (“[A] well-pleaded
complaint may proceed even if it appears that a recovery is very
remote and unlikely.”)(internal quotation marks omitted);

see

Ocasio-Hernandez, 640 F.3d at 12 (citing Twombly, 550 U.S. at
556)(“[T]he

court

may

not

disregard

properly

pled

factual

allegations, ‘even if it strikes a savvy judge that actual proof
of those facts is improbable.’”).

Instead, the First Circuit

has emphasized that “[t]he make-or-break standard . . . is that
the combined allegations, taken as true, must state a plausible,
[but] not a merely conceivable, case for relief.”

Sepúlveda-

Villarini, 628 F.3d at 29.
However,

a

complaint

that

rests

on

“bald

assertions,

unsupportable conclusions, periphrastic circumlocutions, and the
like” will likely not survive a motion to dismiss.
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).

Aulson v.

Similarly, unadorned

factual assertions as to the elements of the cause of action are
inadequate as well.
592 (1st Cir. 2011).

Penalbert-Rosa v. Fortuno-Burset, 631 F.3d
“Specific information, even if not in the

form of admissible evidence, would likely be enough at [the
motion to dismiss] stage; pure speculation is not.”
7

Id. at 596;

see Iqbal, 556 U.S. at 681(“To be clear, we do not reject []
bald allegations on the ground that they are unrealistic or
nonsensical.

.

.

.

It

is

the

conclusory

nature

of

[the]

allegations, rather than their extravagantly fanciful nature,
that disentitles them to the presumption of truth.”); see Mendez
Internet Mgmt. Servs. v. Banco Santander de P.R., 621 F.3d 10,
14 (1st Cir. 2010) (The
District

Courts

to

Twombly

“screen[]

and

out

Iqbal

standards require

rhetoric

masquerading

as

litigation.”). However, merely parroting the elements of a cause
of

action

is

insufficient.

Ocasio-Hernandez,

640

F.3d

at

12

(citing Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.
2009)).
The First Circuit recently outlined two considerations for
district courts to note when analyzing a motion to dismiss.
García-Catalán v. United States, 734 F.3d 100, 104 (1st Cir.
2013). First, a complaint modeled on Form 11 of the Appendix of
the Federal Rules of Civil Procedure which contains sufficient
facts

to

make

the

claim

plausible

is

ordinarily

enough

to

surpass the standard prescribed under Twombly-Iqbal. Id. at 104.
Second, district courts should accord “some latitude” in cases
where “[a] material part of the information needed is likely to
be

within

the

defendant’s

control.”

Id.

(more

latitude

is

appropriate in cases where “it cannot reasonably be expected
that the [plaintiff], without the benefit of discovery, would
8

have any information about” the event that gave rise to the
alleged injury.)(internal citations and quotations omitted).
III. LEGAL ANALYSIS
A. Section 1983
Section

1983

does

not

create

any

independent

substantive

rights; instead, Section 1983 is only a procedural vehicle to
vindicate constitutional and other federal statutory violations
brought about by state actors. See Baker v. McCollan, 443 U.S.
137, 145, n.3 (1979)(“Section 1983 . . . is not itself a source
of

substantive

vindicating

rights,

federal

but

rights

[merely
elsewhere

provides]
conferred

a

method
.

.

.

for
.”);

Albright v. Oliver, 210 U.S. 266 (1994); Lockhart-Bembery v.
Sauro, 498 F.3d 69, 74 (1st Cir. 2007); Cruz-Erazo v. RiveraMontañez, 212 F.3d 617 (1st Cir. 2000).
mechanism

to

remedy

for

deprivations

federally enshrined elsewhere.

Section 1983 provides a
of

rights

that

are

Oklahoma City v. Tuttle, 471

U.S. 808 (1985).
Section 1983 provides:
“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
redress.”42 U.S.C. § 1983.

9

When assessing the imposition of liability under Section
1983, we must first ask “(1) whether the conduct complained of
was committed by a person acting under the color of state law;
and

(2)

whether

this

conduct

deprived

a

person

of

rights,

privileges, or immunities secured by the Constitution or laws of
the United States.”

Gutierrez-Rodriguez v. Cartagena, 882 F.2d

553, 558 (1st Cir. 1989)(citing Parratt v. Taylor, 451 U.S. 527,
535 (1981)). Acting under color of state law requires that a
“defendant in § 1983 action have exercised power possessed by
virtue of state law and made possible only because wrongdoer is
clothed with authority of state law.”

West v. Atkins, 487 U.S.

42, 49 (1988).
Although Section 1983 provides an avenue to remedy many
deprivations of civil liberties in federal court, it “does not
provide a federal forum for litigants who seek a remedy against
a State for alleged deprivations of civil liberties.” Will v.
Michigan Dep't of State Police, 491 U.S. 58, 66 (1989). The
Eleventh Amendment bars lawsuits for monetary damages against a
State

in

immunity

federal
or

court,

unless

unless

Congress

has

said

State

expressly

has

waived

overridden

its
that

immunity. See CONST. Amend. XI; Will, 491 U.S. at 66 (citing
Welch v. Texas Dept. of Highways and Public Transportation, 483
U.S. 468, 472-473 (1987) (plurality opinion)); O’Neill v. Baker,
210

F.3d

41

(1st

Cir.

2000).
10

Furthermore,

“neither

a

state

agency nor a state official acting in his official capacity may
be

sued

for

damages

in

a

section

1983

action.”

Rodriguez, 943 F.2d 104, 108 (1st Cir. 1991).

Johnson

v.

The reasoning

follows that a suit against an official actor is a suit against
his office, and by default a suit against the state. See Will,
491 U.S. at 71; Brandon v. Holt, 469 U.S. 464, 471 (1985);
Kentucky v. Graham, 473 U.S. 159, 165-166 (1985).
Puerto Rico has long been considered a state for Eleventh
Amendment purposes. See Irizarry–Mora v. Univ. of Puerto Rico,
647 F.3d 9 (1st Cir.2011); Metcalf & Eddy, Inc. v. P.R. Aqueduct
&

Sewer

Auth.,

Amendment

bars

991
the

F.2d

935

recovery

(1st
of

Cir.1993).

damages

in

a

“The

Eleventh

federal

court

against the Commonwealth of Puerto Rico, and, by the same token,
it

bars

the

recovery

of

damages

in

official

capacity

suits

brought against Puerto Rico officials where recovery will come
from

the

public

fisc.”

Culebras

Enterprises

Corp.

v.

Rivera

Rios, 813 F.2d 506, 516 (1st Cir.1987) (citing Ramirez v. P.R.
Fire Service, 715 F.2d 694, 697 (1st Cir.1983) and Kentucky v.
Graham,

473

U.S.

Maysonet–Robles
Plaintiffs
capacity;

have

159

v.

Cabrero,

sued

therefore,

(1985))

(emphasis

323

Defendants

the

Court

Amendment analysis.

11

F.3d
only

need

not

in
43

in

the

original);

(1st

Cir.2003).

their

individual

conduct

an

Eleventh

In the instant matter, all of the facts alleged by Plaintiffs
transpired

under

the

umbrella

of

the

Puerto

Rico

Police

Department, an executive agency of the Commonwealth of Puerto
Rico. At all relevant times, Defendants were employed by the
Commonwealth

of

Puerto

Rico

and

acted

in

their

official

capacities. Furthermore, the alleged conduct occurred within the
scope

of

injurious

Defendants’
acts

owned

employment,
while

as

conducting

Defendants’
a

police

alleged

intervention

pursuant to official duties. Further, the individual Defendants
were acting under color of state law when the purported conduct
transpired,

as

the

alleged

discrimination

was

committed

by

employees of the Commonwealth of Puerto Rico during the course
of their employment with the PRPD. Therefore, Section 1983 is an
appropriate avenue to remedy Plaintiffs’ claims.
B. Plausibility of Plaintiffs’ 1983 Claims
Excessive Force
The

United

States

Supreme

Court

has

held

that

the

appropriate standard regarding Plaintiffs’ claims of excessive
force

by

police

officers

against

a

potential

arrestee

is

objective reasonableness. See Kingsley v. Hendrickson, 135 S.
Ct. 2466, 2473-74 (2015)(holding that a pre-trial detainee need
not necessarily prove the officer’s intent to harm or punish,
only that, from an objective viewpoint, the officer’s action was
“not rationally related to a legitimate governmental purpose.”);
12

see also Miranda-Rivera v. Toledo Davila, 813 F.3d 64 (1st Cir.
2016)(holding that the Fourth Amendment objective reasonableness
standard

applies

from

the

arrest

stage

through

the

probable

cause hearing); and Rivera Garcia v. Roman Carrera, 938 F.Supp.
2d 189, 198-199 (D.P.R. 2013)(rejecting argument that Fourteenth
Amendment applies from the moment a person is “neutralized” by
police). Therefore, under Kingsley, the Court need only find
that the officers in the instant case’s actions may have not
been “rationally related to legitimate government objectives or
that

[they]

were

excessive

in

relation

to

that

purpose.”

Kingsley at 2473.
At this stage of the proceedings, the Court must take all
of the Plaintiff’s allegations as true. The Court notes that the
reason

for

the

intervention

by

the

officials

has

not

been

alleged. At this point, however, the Defendants’ actions suggest
that there could have been other alternatives that would have
been

less

ill-advised

or

more

practical

in

intervening

with

Diaz-Ortiz.
Based on Plaintiffs’ pleadings, the decedent had not yet
been

arrested

allegedly

shot

nor

otherwise

Diaz-Ortiz.

detained

at

the

time

officials

After a careful analysis of the

pleadings, the Court finds Plaintiffs’ claims tend to suggest
“more

than

a

sheer

possibility”

that

the

officers

acted

unreasonably. Specifically, the pleadings suggest that there was
13

no

cognizable

reason

for

Officer

Cruz

to

shoot

Diaz-Ortiz.

Furthermore, aside from Officer Cruz, the unnamed officers may
also be held liable for failing to intervene. See Wilson v. Town
of Mendon, 294 F. 3d 1, 6 (1st Cir. 2002). (“An officer may be
held liable not only for his personal use of excessive force,
but

also

for

his

failure

to

intervene

in

appropriate

circumstances to protect an arrestee from the excessive use of
force

by

his

fellow

officers.”);

but

see

Gaudreault

v.

Municipality of Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990)
(rejecting

failure-to-intervene

liability

where

the

attack

lasted only a few seconds and the other officers at the scene
had no realistic opportunity to stop the officer-assailant).
Based
nonsensical

on

the

and

facts

fail

to

as

pled,

meet

the

the

officers

objective

actions

seem

reasonableness

standard. Accordingly, the Court finds Plaintiffs have made a
plausible allegation of excessive force on the part of PRPD
officers.
Failure to Provide Medical Attention
Fourteenth
police

officers

Amendment
to

substantive

provide

medical

due

process

attention

to

requires
arrestees

injured during a police intervention. City of Revere v. Mass.
Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605
(1983). In Miranda-Rivera v. Toledo-Davila, the First Circuit
has expressly articulated the standard under which a court shall
14

analyze

allegations

that

officers

failed

to

provide

attention to a potential arrestee. Specifically::
Government officials violate the Eighth Amendment
if they display “deliberate indifference” to a
prisoner's
“serious
medical
needs.”
Id.
A
“serious medical need” “is one that has been
diagnosed by a physician as mandating treatment,
or one that is so obvious that even a lay person
would easily recognize the necessity for a
doctor's attention.” Id. Deliberate indifference
requires (1) that “the official ... be aware of
facts from which the inference could be drawn
that a substantial risk of serious harm exists,”
and (2) that he draw that inference. Farmer v.
Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994). A factfinder can conclude
that a government official was aware of a
substantial risk of serious harm based on the
fact that the risk was obvious. Id. at 842, 114
S.Ct. 1970. However, there is no deliberate
indifference if an official responds reasonably
to the risk. Id. at 844–45, 114 S.Ct. 1970; see
also Coscia v. Town of Pembroke, 659 F.3d 37, 39
(1st
Cir.2011)
(deliberate
indifference
can
consist of “a conscious failure to provide
medical services where they would be reasonably
appropriate”). Where it is shown that an officer
was deliberately indifferent to a serious medical
need of a pretrial detainee, no further mens rea
of the officer—whether intent or motivation—is
necessary to state a substantive due process
claim. See Cty. of Sacramento v. Lewis, 523 U.S.
833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)
(observing
that
deliberate
indifference
is
“egregious enough” to satisfy the “conscience
shocking” element required of substantive due
process claims, where the officer exhibits
deliberate indifference to the medical needs of a
pretrial detainee) (citing City of Revere, 463
U.S. at 244, 103 S.Ct. 2979).
Miranda-Rivera, 813 F.3d 64, 74 (1st Cir. 2016)

15

medical

In the case at bar, Plaintiffs allege that Diaz-Ortiz fell
to the ground and bled to death after being shot by Defendant
Cruz.

Officers

claims

that

ultimately

allegedly

did

Diaz-Ortiz
died

on

be

the

not

cooperate

taken

to

pavement

a

with

hospital.

without

bystanders’
Diaz-Ortiz

receiving

medical

attention. The Court proceeds to analyze if the actions of the
officers were unconstitutional.
First, Diaz-Ortiz’s injury can most certainly be classified
as a “serious medical need as even a layman would understand
that

a

bullet

wound

is

a

very

serious

injury.

Therefore,

pursuant to the pleadings, the Court may safely conclude that it
was apparent to the officers at the time that Diaz-Ortiz needed
medical attention. However, pursuant to the allegations, DiazOrtiz did not receive any medical attention and died at the
scene. Under the First Circuit standard, these facts support the
Court

finding

deliberately

that

the

officers

indifferent

by

at

the

scene

“[consciously

may

have

failing]to

been

provide

medical services where they would be reasonably appropriate”.
Coscia at 39.
Supervisory Liability
A supervisor may be found liable under section 1983 only on
the

basis

of

his

own

acts

or

omissions

–

liability

for

a

supervisor may not be predicated upon a theory of respondent
superior. Barreto Rivera v. Medina Vargas, 168 F.3d 42, 48 (1st
16

Cir. 1999). To recover against a supervisor, Plaintiff must show
that

there

is

misconduct

an

and

affirmative

the

action

link

or

between

inaction

the

of

street

the

level

supervisory

official. Id. For supervisory liability to attach under section
1983, a plaintiff must demonstrate an affirmative link between
the

subordinate

direct

officer

participation

and

or

the

supervisor,

through

conduct

“whether
that

through

amounts

to

condonation or tacit authorization”. Carmona v. Toledo, 215 F.3d
124,132 (1st Cir. 2000).
In the case at bar, Plaintiffs claim that the Supervisory
Codefendants

had

not

implemented

nationally

accepted

policiesregarding the use of deadly force by police officers.
These nationally accepted policies would understandably serve to
provide the proper training for field officers, primarily on how
to

conduct

Plaintiffs

chases
claim

on

foot

that

the

on

fleeing

Supervisory

suspects.

Furthermore,

Codefendants

had

not

trained or retrained the officers under their supervision on the
use of deadly force, on chases of fleeing suspects, nor on the
provision of emergency medical care to wounded suspects..
Although

the

underdeveloped

Court

notes

this

stage,

at

that
the

these
Court

allegations
must

accord

may

be

“some

latitude” in cases where “[a] material part of the information
needed is likely to be within the defendant’s control.”
(more

latitude

is

appropriate
17

in

cases

where

“it

Id.

cannot

reasonably be expected that the [plaintiff], without the benefit
of discovery, would have any information about” the event that
gave rise to the alleged injury.) Because the information needed
to

further

develop

these

allegations,

namely

the

training

programs these officers were placed in and whether they were
reprimanded for their actions in intervening with Diaz-Ortiz, is
under the dominion and control of the PRPD, the Court may not
dismiss these claims at this time. Accordingly, finding that
Plaintiffs have made plausible allegations of a violation of
Section

1983,

the

Court

hereby

DENIES

Defendants’

Motion

to

Dismiss Plaintiffs’ Section 1983 claims.
C. Standing under 1983
It has been established that as a general rule, a plaintiff
does not have standing to assert claims on behalf of parties who
are not before the court. See Allen v. Wright, 468 U.S. 737,
751,(1984).

In

addition,

Article

III

of

the

Unites

States

Constitution provides that in order for persons to have standing
in federal court, they must themselves be injured (U.S. Const.
art. III).
“First Circuit case law holds that surviving family members
cannot

recover

in

an

action

brought

under

section

1983

for

deprivation of rights secured by the federal constitution for
their

own

damages

unconstitutional

from

conduct

the
was
18

victim’s
aimed

death
at

unless

the

the

familial

relationship.” Robles-Vazquez v. Garcia, 110 F.3d 204, 206 n.
4(1st Circ.1997). When referring to familial relationship cases,
the Circuit Court has divided them into two categories. Under
the first category, substantive due process has been applied to
prevent governmental interference in certain private decisions.
See Valdivieso Ortiz v. Burgos, 807 F.2d 6 (1986). As to the
second category, it is implicated whenever the state directly
seeks to change or affect the parent-child relationship.” This
second

category

looks

to

recognize

a

liberty

interest

in

“preventing governmental interference with the rearing of young
children.” These might include cases of termination of parental
rights

or

paternity

cases.

State

action

that

affects

the

parental relationship merely incidentally will not be sufficient
to establish a violation of an identified interest, even though
the deprivation might be permanent as in the case of an unlawful
death. Santosky v. Kramer, 455 U.S. 745 (1982).
Federal

Law

provides

standing

for

an

heir

to

bring

a

section 1983 action on behalf of a deceased person, if the law
of

the

forum

state

permits.

Robertson

v.

Wegmann,

436

U.S.584.(1994). Under Puerto Rico law, a decedent’s heirs may
recover for the decedent’s pain and suffering prior to death.
Gonzalez Rodriguez, 134 F.Supp.2d at 454 (2004) Specifically,
the Supreme Court of Puerto Rico has ruled that survivorship is
generally encompassed within Article 1802 of the Civil Code,
19

Puerto

Rico’s

damages

for

decedent

general

the

prior

tort

conscious

to

his

provision.

pain

death,

and

as

Under

suffering

opposed

to

Article
of

1802,

plaintiff’s

damages

for

his

immediate death, are recoverable in a wrongful death negligence
cases. See Vda. de Delgado v. Boston Ins. Co., 101 P.R. Dec.
598, 603 (1973). Thus, an heir may bring a section 1983 action
in his representative capacity only when it is evident that the
deceased

had

suffered

damages

and/or

distress

prior

to

his

death. Id.
After

a

careful

analysis,

it

is

plausible

by

the

allegations that the heirs of Diaz-Ortiz have standing to sue
for a section 1983 claim against the Defendants as Plaintiffs
allege that Diaz-Ortiz bled to death, and suffered accordingly,
after being shot by officers. Thus, finding that it is likely
that Diaz-Ortiz suffered prior to his death, Diaz-Ortiz’s heirs
may recover for his pain and suffering.
hereby

DENIES

Defendant’s

Motion

to

Accordingly, the Court

Dismiss

with

respect

to

Plaintiffs’ standing for Jilmarie Colon-Merced, Joleydaliz DiazRolon and Micaela I. Diaz Rolon and GRANTS Defendant’s Motion to
Dismiss with respect to Plaintiffs Brenda I. Ortiz-Cosme, Jose
Diaz-Ortiz, Bryan Diaz-Ortiz, Franyael Diaz-Ortiz and Luis Yomar
Diaz-Ortiz.

20

D. Failure to Serve
Federal Rule of Civil Procedure 4(m) provides, in relevant
part:
“[i]f a defendant is not served within 90
days after a complaint is filed, the courton motion or on its own after notice to the
plaintiff-must dismiss the action without
prejudice against the defendant or order
that service be made within specified time.
But the plaintiff shows good cause for the
failure, the court must extend the time for
service for an approximate period.” Fed. R.
Civ. P. 4(m)
If a a plaintiff does not effectuate service of a summons on a
defendant within 120 days from the filing of the complaint, a
court may either dismiss the action without prejudice or extend
the time period for service. Molinelli-Freytes v. Univ. of PR,
727 F.Supp.2d 60,62 (D.P.R. 2010). However, the court may extend
the time period if the plaintiff shows good cause. A court's
fact-specific

good

diligence

the

of

cause

inquiry

plaintiff

and

must
any

take

into

mitigating

account

the

circumstances

which may exist. United States v. Ayer, 857 F.2d 881, 885 (1st
Cir.1988).
In

previous

decisions,

this

Court

has

recognized

the

complications in locating officers within the PRPD. Now, as it
was

the

case

then,

the

Court

was

aware

of

the

extreme

difficulties that arise from the proper execution of service of
process

upon

members

of

the

PRPD.

21

See

Serrano

v.

Figueroa-

Sancha,

878

Plaintiffs

F.

Supp.

have

2d

301,

allegedly

314-15

requested

(D.P.R.

2012).

Defendants'

Here,

contact

information from the PRPD o numerous in order to locate them for
service of process. Although the Court has provided a reasonable
extended period of time to serve these unidentified officers,
Plaintiffs appear to have been diligently seeking Defendants’
information in order to serve them with process. Because the
Court has been made aware of Plaintiffs’ state court case in
which they are deposing several police officers, the Court will
grant

Plaintiffs

thirty

(30)

days

to

serve

any

necessary

defendants with process based off the results of the depositions
taken

in

the

state

court

case.

Plaintiffs

may

depose

the

Director of Personnel of the Puerto Rico Police Department to
provide the addresses where Defendants may be served at a police
precinct

or,

if

necessary,

at

a

residential

address.

Accordingly, Defendants’ Motion to Dismiss for failure to serve
is hereby

DENIED without prejudice. If Plaintiffs fail to serve

the defendants within the thirty days ordered herein, the Court
may

enter

a

judgment

dismissing

the

instant

case

without

prejudice.
E. Supplemental State Law Claims
Because federal claims still remain in the case at bar, the
Court will refrain from assessing Plaintiffs’ supplemental state

22

law claims at this time. See Rodriguez v. Doral Mortg. Corp., 57
F.3d 1168, 1176-77 (1st Cir. 1995).
IV. CONCLUSION
For the aforementioned reasons, the Court hereby GRANTS IN
PART AND DENIES IN PART Defendants’ Motion to Dismiss (Docket
No. 19):
1. Defendants’ Motion to Dismiss for lack of standing to sue
with respect to Plaintiffs Brenda I. Ortiz-Cosme, Jose
Diaz-Ortiz, Bryan Diaz-Ortiz, Franyael Diaz-Ortiz and Luis
Yomar Diaz-Ortiz is hereby GRANTED;
2. Defendants’ Motion to Dismiss for lack of standing to sue
with
respect
to
Plaintiffs
Jilmarie
Colon-Merced,
Joleydaliz Diaz-Rolon and Micaela I. Diaz Rolon is hereby
DENIED with prejudice;
3. Defendants’ Motion to Dismiss for failure to state a claim
upon which relief can be granted under Federal Rule of
Civil Procedure 12(b)(6) is hereby DENIED; and
4. Defendants’ Motion to Dismiss for failure to serve is
hereby DENIED without prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of March 2016.
s/ Daniel R. Dominguez
DANIEL R. DOMINGUEZ
U.S. DISTRICT JUDGE

23