Natal-Feliciano et al v. Nevarez-Maldonado et al

Filing 21

OPINION AND ORDER granted in part and denied in part 12 Motion to Dismiss. Signed by Judge Carmen C. Cerezo on 3/22/2016. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
BETZHAIDA NATAL-FELICIANO and
EVELYN ESTEVES-NATAL, on their
own behalf and on behalf of the Estate
of their deceased husband and father,
respectively, ALFREDO
ESTEVES-RODRIGUEZ
Plaintiffs
vs
MELVIN NEVAREZ-MALDONADO,
RODOLFO
OLAVARRIA-FULLERTON, RUBEN
LAMBERTY-ALDEA and SERGEANT
JOSE JAVIER RIVERA-QUIÑONES,
officers of the Puerto Rico Police
Department, in their individual and
official capacities
Defendants

CIVIL 14-1844CCC

OPINION AND ORDER
This is a 42 U.S.C. § 1983 action founded on the alleged violations to the
Fourth and Fourteenth Amendments rights of a citizen undergoing a mental
health crisis. Supplemental claims under the laws of the Commonwealth have
also been asserted. Before the Court now is the Motion to Dismiss Pursuant
to Federal Rule of Civil Procedure 12(b)(6) filed by three of the four defendants
on April 6, 2015 (D.E. 12), later joined by the fourth defendant on April 20,
2015 (D.E. 15), and which plaintiffs opposed on May 1, 2015 (D.E. 16).
Plaintiffs Betzhaida Natal-Feliciano (Natal) and Evelyn Esteves-Natal are
the wife and daughter of the affected citizen, Alfredo Esteves-Rodríguez
(Esteves), who eventually died of injuries suffered during the August 6, 2012
incident that generates their complaint. Defendants are four Puerto Rico Police

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2

Officers from the Toa Baja Police District who intervened with Esteves on
August 6, 2012.1
The salient facts, taken from the complaint, follow. On August 6, 2012,
at around 9:00 PM, Natal called 911 requesting emergency medical assistance
for her husband, Esteves, who was then suffering an emotional crisis. He had
stated that he wanted to harm himself, had been going around inside the house
with a kitchen and salad knife, and had cut himself superficially on the skin
several times. He did not threaten anyone else with bodily harm, however. In
her 911 call, Natal stated repeatedly that her husband was not threatening
anyone, but needed medical attention and an ambulance due to his emotional
crisis.
At around 9:20-9:30 PM, the four defendants arrived to Esteves’ house
in patrol cars. Once in front of the residence, they drew their weapons and
started shouting aggressively at Esteves and Natal, ordering them to step out
of the residence. Upon seeing the defendants’ aggressive behavior, both
Esteves and Natal became extremely nervous, and were unable to locate the
house keys in order to open their residence and step outside. Natal informed
the police officers that she could not locate the house keys and that what they
needed was an ambulance for her husband. Esteves, in turn, trying to obey
the officers’ orders, tried to get out of the house through a window located next
to the residence’s main entrance.
While Esteves was trying to get out of the house through the window,
defendant officer Melvin Nevárez-Maldonado (Nevárez) took a shot at him
aiming at his upper body. It is further alleged that the supervising officer at the

1

A fifth officer who was at the scene that night has since passed away and was not included
as a defendant in the complaint.

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scene, Sargent José Javier Rivera-Quiñones (Rivera), failed to take
precautionary measures to prevent the use of firearms and excessive force by
Nevárez.

The other two police officers at the scene, Rodolfo

Olavarría-Fullerton (Olavarría) and Rubén Lamberty-Aldea (Lamberty), also
neglected to prevent Nevárez from using his firearm. Esteves was hit in his
lower abdomen, and fell outside his home. He immediately complained of
having been hit and being in great pain. Despite his injury, and though he had
not threatened anybody, defendants placed him under arrest.

As no

ambulance had arrived in response to her first 911 call, Natal made a second
call after the shooting to again request an ambulance. After this second call,
an ambulance finally arrived and Esteves was rushed to the Puerto Rico
Medical Center, where he remained hospitalized over three weeks. After his
transfer to the Medical Center, Esteves was kept under arrest and under
police surveillance without a court order, even though he was in need of
psychiatric assistance. He would require continuous medical treatment and
further hospitalization due to his injury, and eventually died two months later
on October 4, 2012. Due to the location of the bullet, it could not be surgically
removed until the autopsy was performed. It is further alleged that during the
time he remained hospitalized, Esteves experienced serious complications
from his bullet wound that allegedly caused him extreme pain and suffering
while he remained alive.
Plaintiffs aver that the four defendants deprived Esteves of various
constitutional rights under the Fourth and Fourteenth Amendments which
caused all of them damages for which they are entitled to seek compensation
under § 1983. Specifically, they claim that Esteves was a victim of the use of
excessive force, was falsely arrested, and also falsely imprisoned for he was

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unlawfully detained during the period of his initial hospitalization after the
shooting. Supplemental tort claims under Articles 1802 and 1803 of the Civil
Code of Puerto Rico for defendants’ alleged negligent actions were also
asserted. In their dismissal motion, defendants have raised a myriad of
challenges to the complaint, asserting that plaintiffs lack standing to sue under
§ 1983 in their personal capacities, that they have failed to properly plead
claims under the Fourth and Fourteenth Amendment, that there is no factual
foundation for the claim of use of excessive force brought against defendants
Rivera, Olavarría and Lamberty, that no claim under Article 1803 of the Civil
Code lies against any of the defendants for none is vicariously liable for the
acts of their fellow officers and, finally, that all pendent claims should be
dismissed following the elimination of the federal claims. In their opposition
(D.E. 13), plaintiffs have vigorously defended some of their claims while
consenting to the dismissal of others. We now address the parties’ contentions
seriatim.
Plaintiffs’ lack of standing to sue under § 1983:
It is axiomatic that relatives may not assert a § 1983 action seeking
damages for the death of a family member as a result of unconstitutional
conduct unless the challenged action is directed at their family relationship.
Robles-Vázquez v. Tirado-García, 110 F.3d 204, 206 n. 4 (1st Cir. 1997).
See also Soto v. Flores, 103 F.3d 1056, 1062 (1st Cir. 1997). It is also firmly
established that state action impacting the parent-child relationship only
incidentally, as in the case of an unlawful death such as the one alleged in this
case, is not deemed to be aimed at family relationships. Pittsley v. Warish,
927 F.2d 3, 8 (1st Cir. 1991). Thus, were plaintiffs’ § 1983 action seeking to

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recover for their own damages resulting from the alleged constitutional
violations suffered by their relative, they would lack standing to pursue it.
A different question is whether plaintiffs have standing to sue on behalf
of the decedent himself for any damages that Esteves suffered before his
death. The Supreme Court has held that under 42 U.S.C. § 1988, state law
determines the survivorship of a § 1983 action. Robertson v. Wegmann,
436 U.S. 584, 98 S.Ct. 1991 (1978). Hence, following the survivorship rules
established by the Puerto Rico Supreme Court in relation to actions brought
under Article 1802 of the Civil Code, the Commonwealth’s tort statute, it has
been repeatedly held in this Court that an heir has standing to bring a § 1983
claim in a representative capacity only when there is a showing that the
decedent suffered prior to his death.

Rossi-Cortés v. Toledo-Rivera,

540 F.Supp. 2d 318 (D.P.R. 2008); Vargas v. González, 135 F.Supp. 2d 305,
310 (D.P.R. 2001); Gonzalez-Rodriguez v. Alvarado, 134 F.Supp. 2d 451,
454 (D.P.R. 2001). Under Puerto Rico law, Esteves’ immediate heirs are his
daughter and his wife with her usufructuary share. See 31 L.P.R.A. §§ 2641
and 2411.

The complaint alleges that Esteves “experienced serious

complications from his bullet wound, including bedsores, speech impairments
from tracheal intubation, and others, that would cause extreme pain and
suffering during the two months he remained alive.” Complaint (D.E. 1), p. 6,
¶ 40. Accordingly, both plaintiffs have standing to sue under § 1983 as
representatives of Esteves’ estate for any constitutional damages suffered by
Esteves himself before his death.

However, to the extent that they are

asserting a claim under § 1983 for their own damages, those are DISMISSED.

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Plaintiffs’ failure to plead claims under the Fourteenth Amendment:
Defendants have asked for dismissal of the claims brought under the
Fourteenth Amendment averring that it is the Fourth Amendment, and not the
Fourteenth, the one that provides the explicit textual source of constitutional
protection against the illegal conduct imputed to them. In their opposition,
plaintiffs have agreed to the dismissal of the claims under the Fourteenth
Amendment. Accordingly, partial judgment will be entered dismissing said
claims, with prejudice.
Plaintiffs’ failure to plead claims under the Fourth Amendment:
As to Fourth Amendment claims, defendants aver that the factual
scenario outlined in the complaint fails to state a cause of action. The pleading
standard is well-established. Fed. R. Civ. P. 8 does not require “‘detailed
factual

allegations,’

but

it

demands

more

than

an

unadorned,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, -- U.S. --,
129 S.Ct. 1937, 1949 (2009). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). But “the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Maldonado v.
Fontanes, 568 F.3d 263, 268 (1st Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949).
Section 1983 requires three elements for liability: deprivation of a right, a
causal connection between the actor and the deprivation, and state action.
42 U.S.C. § 1983. “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, at 1949.
Having carefully reviewed the allegations of the complaint, we conclude
that plaintiffs have adequately brought the federal claims under the Fourth
Amendment “across the line from conceivable to plausible.” Twombly, at 1955.
The factual scenario depicted is one where Natal calls 911 for medical
assistance due to her husband Esteves’ emotional crisis and, instead of an
ambulance, five police officers were dispatched to respond to the call. Once
outside the residence, without being threatened by Esteves or anyone from the
inside, officers ordered all occupants to leave the premises. This prompted
Esteves to exit through a window since the key to the main door could not be
found. While exiting the residence in compliance with police orders, Esteves
was shot by Nevárez. After being injured, Esteves was placed under arrest
and remained detained without a court order while receiving medical
assistance at the Medical Center. At this initial stage of the proceedings, these
allegations are sufficient to survive dismissal and to allow for discovery to move
forward on the Fourth Amendment claims. Accordingly, defendants’ request
for dismissal of the claims of false arrest and false imprisonment/illegal
detention under the Fourth Amendment is DENIED.
Failure to state a claim for the use of excessive force against defendants
Rivera, Olavarría and Lamberty:
Defendants also argue that the complaint fails to state a claim against
defendants Rivera, Olavarría and Lamberty for the use of excessive force,
noting that the allegations made in this regard are limited to Nevárez. Plaintiffs
concur with this assessment. Therefore, the request for dismissal of the claim

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of use of excessive force is GRANTED as to defendants Rivera, Olavarría and
Lamberty, and remain only against Nevárez.
Failure to state a claim under Article 1803:
Defendants aver that Article 1803, 31 L.P.R.A. § 5142, codifies vicarious
tort liability, and that any such claim would lie only against their employer, the
Puerto Rico Police Department, a non-party. Plaintiffs have not addressed this
argument. Plaintiffs’ Article 1803 claim is solely raised against defendant
Rivera, as supervisor, for negligent supervision of the other three defendants.
Complaint, at ¶ 60. As defendants correctly contend, Article 1803's coverage
is limited to the particular relationships taxatively established therein,2 see
Torres-Pérez v. Medina-Torres, 113 D.P.R. 72, 76 (1982), which do not include

2

Article 1803 provides:
The obligation imposed by § 5141 [Article 1802] of this title is demandable,
not only for personal acts and omissions, but also for those of the persons
for whom they should be responsible.
The father, and, in the event of his death or incapacitation, the mother, is
liable for the damage caused by the minor children living with them.
Guardians are liable for the damages caused by minors or incapacitated
persons who are under their authority and live with them.
Owners or directors of an establishment or enterprise are likewise liable for
any damages caused by their employees in the service of the branches in
which the latter are employed or on account of their duties.
The Commonwealth is liable in this sense under the same circumstances
and conditions as those under which a private citizen would be liable.
Finally, masters or directors of arts and trades are liable for the damages
caused by their pupils or apprentices while they are under their custody.
The liability referred to in this section shall cease when the liable persons
mentioned therein prove that they employed all the diligence of a good father
of a family to preclude the damage.

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supervisor-supervisee. Accordingly, the claim under Article 1803 against
defendant Rivera is ORDERED DISMISSED.
Claims under Article 1802:
Finally, defendants sought the dismissal of all claims under Puerto Rico
law premised on their expected pre-trial termination of all the federal claims.
However, since some of the federal claims have survived at this stage, the
Court retains jurisdiction over plaintiffs’ supplemental claims.
Conclusion:
Accordingly, and for the reasons explained above, defendants’ Motion to
Dismiss (D.E. 12) is GRANTED IN PART AND DENIED IN PART. Partial
judgment shall be entered DISMISSING: (1) all claims asserted by the two
plaintiffs on their own behalf under 42 U.S.C. § 1983, (2) all claims under the
Fourteenth Amendment, (3) all claims under the Fourth Amendment for the use
of excessive force as to defendants Rivera, Olavarría and Lamberty, and
(4) the claim under Article 1803 of the Civil Code of Puerto Rico against
defendant Rivera.
SO ORDERED.
At San Juan, Puerto Rico, on March 22, 2016.

S/CARMEN CONSUELO CEREZO
United States District Judge