Cruz-Acevedo et al v. Toledo-Davila et al, No. 3:2007cv02104 - Document 112 (D.P.R. 2009)

Court Description: OPINION AND ORDER GRANTING IN PART 89 MOTION for Summary Judgment filed by Jose R. Dennis-Tavarez, Edwin Rosado-Morales, William Orozco-Sanchez, William Ruiz-Borras, Pedro Toledo-Davila, Jorge Gonzalez-Perez. We DISMISS, sua sponte, Plaintiffs' ; § 1983 claims under the First, Fifth, and Tenth Amendments, all claims against unknown defendants, and all claims by Cruz-Perocier WITH PREJUDICE (Docket No. 70 ). We DISMISS all federal claims against Toledo, Rosado, Orozco, Dennis, and Ruiz WITH PREJUDICE (id.). We ORDER Cruz-Acevedo to SHOW CAUSE, on or before July 31, 2009, as to why we should not also grant summary judgment, sua sponte, in favor of Gonzalez. Show Cause Response due by 7/31/2009. Signed by Chief Judge Jose A Fuste on 7/15/09.(mrj)

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1 2 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 3 4 5 6 7 LUIS F. CRUZ-ACEVEDO, et al., 8 9 10 PEDRO TOLEDO-Dà VILA, et al., Plaintiffs, Civil No. 07-2104 (JAF) v. Defendants. OPINION AND ORDER 11 12 Plaintiffs, Luis F. Cruz-Acevedo and Manuela V. Cruz-Perocier, 13 bring this action under 42 U.S.C. § 1983 and Puerto Rico law against 14 Defendants, 15 ( Dennis ), William Orozco-Sánchez ( Orozco ), William Ruiz-Borrás 16 ( Ruiz ), 17 ( González ), à ngel Pérez-Rodríguez ( Pérez ), Miguel Arocho-Irizarry 18 ( Arocho ), Rubén 19 ( Nieves ), and 20 Plaintiffs accuse Defendants of obtaining a fraudulent search warrant 21 and arresting Cruz-Acevedo without probable cause in violation of the 22 Fourth Amendment, extortion in violation of the Fourteenth Amendment, 23 and violations of Puerto Rico law. (Id.) Toledo, Rosado, Orozco, 24 Dennis, Ruiz, and González ( Movants ) move for summary judgment 25 under Federal Rule of Civil Procedure 56(c) (Docket No. 89) and 26 Plaintiffs oppose (Docket No. 100). Pedro Edwin Toledo-Dávila Rosado-Morales ( Toledo ), ( Rosado ), Colón-Pérez three unknown José Jorge Dennis-Tavarez González-Pérez ( Colón ), José Nieves-Soler defendants. (Docket No. 70.) Civil No. 07-2104 (JAF) -2- 1 I. 2 Factual and Procedural Synopsis 3 We derive the following facts from the parties motions, 4 statements of uncontested material facts, and exhibits.1 (Docket 5 Nos. 88, 89, 98, 99, 100, 105.) 6 Cruz-Acevedo is a schoolteacher who has worked for the Puerto 7 Rico Department of Education for eleven or twelve years. (Docket 8 Nos. 99-2, 105-2.) Cruz-Perocier is his daughter. (Id.) 9 Toledo is the superintendent of the Puerto Rico Police 10 Department ( PRPD ). Dennis has been the auxiliary superintendent of 11 the PRPD Drugs, Narcotics, Vice Control, and Illegal Firearms Bureau 12 ( PRPD Narcotics, Vice, and Firearms ) since January 20, 2007. 13 (Docket Nos. 88-8, 98-8.) Orozco has been the director of PRPD 14 Narcotics, 15 Nos. 88-5, 98-5.) Ruiz is the director of the PRPD Illegal Firearms 16 Bureau. Rosado has been the PRPD commandant of the Aguadilla region 17 since August 1, 2007. (Docket Nos. 88-4, 98-4.) González is the 18 director of the PRPD Aguadilla Illegal Firearms Division; Pérez, 19 Arocho, Colón, and Nieves are his subordinates. 20 21 Vice, and Firearms since January 20, 2007. (Docket On November 21, 2006, Plaintiff Cruz-Acevedo was at home when Arocho, 1 Colón, and Nieves appeared at his house in Aguadilla. To the extent that each party has failed to address the other s proffered facts, we regard these facts as admitted. See L.Cv.R. 56(e). Civil No. 07-2104 (JAF) -3- 1 (Docket Nos. 99-2, 105-2.) These PRPD officers had a search warrant 2 that authorized them to search Cruz-Acevedo s premises. (Id.) 3 A magistrate had issued the search warrant upon the sworn 4 affidavit testimony of Nieves on November 16, 2006. (Docket Nos. 88- 5 2, 98-2.) In the affidavit, Nieves asserted that an informant had 6 accused a man around the age of fifty, residing at Cruz-Acevedo s 7 house, of weapons possession and drug sales to youths in Aguadilla. 8 (Id.) The affidavit stated that Nieves had conducted surveillance of 9 the house and observed Cruz-Acevedo engage in a drug transaction 10 involving marijuana. (Id.) The affidavit requested a search of the 11 premises to seize firearms and marijuana. (Id.) The PRPD Illegal 12 Firearms Division of Aguadilla conducted the search, and González and 13 Pérez 14 authorized the search and certified that the investigative file on 15 Cruz-Acevedo complied with PRPD policy. (Id.) were the supervisors. (Docket Nos. 88-3, 98-3.) Pérez 16 After entering the house, Arocho, Colón, and Nieves informed 17 Cruz-Acevedo that they knew that he had filed an administrative 18 complaint against Víctor Cortés, a PRPD officer from Mayagüez, 19 alleging an earlier illegal search of Cruz-Acevedo s house. (Docket 20 Nos. 99-2, 105-2.) They warned Cruz-Acevedo that Cortés was well 21 connected. (Id.) Pérez entered the house after PRPD officers had 22 served the search warrant on Cruz-Acevedo. (Docket Nos. 99-5, 105-5.) 23 González entered Cruz-Acevedo s house after the search had begun. 24 (Docket Nos. 88-24, 88-25, 98-24, 98-25.) Civil No. 07-2104 (JAF) -4- 1 The PRPD officers searched the house for some time without 2 finding drugs or firearms. (Docket Nos. 99-2, 105-2.) Then, Cruz- 3 Perocier arrived at the house and PRPD officers denied her entry. 4 (Id.) The officers threatened to arrest Cruz-Perocier if she tried to 5 enter but made no physical contact with her. (Id.) Cruz-Acevedo left 6 his bedroom and went to the door to calm his daughter. (Id.) 7 While Cruz-Acevedo was speaking to Cruz-Perocier, Nieves 8 announced that he had found a box containing bullets inside the 9 bedroom. (Id.) Cruz-Acevedo recognized the box as one that formerly 10 contained checkbooks and vehemently denied that the bullets inside 11 were his. (Id.) Arocho then searched the house again and removed a 12 red bag from Cruz-Acevedo s dresser drawer. (Id.) Arocho opened the 13 bag and asserted that it contained marijuana. (Id.) The PRPD officers 14 then placed Cruz-Acevedo under arrest. (Id.) 15 On the way to the police station, Arocho suggested that Cruz- 16 Acevedo give him information on other, wealthier people to accuse of 17 crimes in exchange for ending the investigation. (Docket Nos. 99-2, 18 105-2.) At the station, a technician sampled the contents of the red 19 bag and found no marijuana. (Id.) Arocho again asked Cruz-Acevedo for 20 information on wealthy persons who violate the law. (Id.) 21 After the PRPD released Cruz-Acevedo, Nieves summoned Cruz- 22 Acevedo by telephone and they met near a park. (Id.) Nieves informed 23 Cruz-Acevedo that he, Arocho, and Colón had a reputation in the 24 Aguadilla area for being corrupt. (Id.) Nieves then tried to persuade Civil No. 07-2104 (JAF) -5- 1 Cruz-Acevedo to agree not to file charges against Arocho, Colón, and 2 Nieves, in exchange for information on the person responsible for 3 fabricating the criminal investigation against Cruz-Acevedo. (Id.) 4 After several meetings that day with Arocho, Colón, and Nieves, Cruz- 5 Acevedo signed an agreement. (Id.) 6 On November 20, 2007, Plaintiffs filed this case in federal 7 court. (Docket No. 1.) On December 8, 2008, we dismissed all claims 8 except for Cruz-Acevedo s claim for substantive due process and his 9 claims under Puerto Rico law. (Docket No. 62.) On February 26, 2009, 10 we granted partial reconsideration, reinstating Cruz-Acevedo s Fourth 11 Amendment claim for arrest without probable cause, and granting him 12 leave 13 fraudulently-obtained search warrant. (Docket No. 69.) Plaintiffs 14 filed an amended complaint on March 12, 2009. (Docket No. 70.) 15 Movants moved for summary judgment on May 15, 2009 (Docket No. 89) 16 and Plaintiffs opposed on June 15, 2009 (Docket No. 100). to amend his complaint as to a potential 17 for a II. 18 claim Summary Judgment under Rule 56(c) 19 We grant a motion for summary judgment if the pleadings, the 20 discovery and disclosure materials on file, and any affidavits show 21 that there is no genuine issue as to any material fact and the movant 22 is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 23 A factual dispute is genuine if it could be resolved in favor of 24 either party, and material if it potentially affects the outcome of Civil No. 07-2104 (JAF) -6- 1 the case. Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19 (1st 2 Cir. 2004). 3 The movant carries the burden of establishing that there is no 4 genuine issue as to any material fact; however, the burden may be 5 discharged by showing that there is an absence of evidence to support 6 the non-movant s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 7 331 (1986). The burden has two components: (1) an initial burden of 8 production, which shifts to the non-movant if satisfied by the 9 movant; and (2) an ultimate burden of persuasion, which always 10 remains on the movant. Id. at 331. 11 In evaluating a motion for summary judgment, we view the record 12 in the light most favorable to the non-movant. Adickes v. S.H. Kress 13 & Co., 398 U.S. 144, 157 (1970). However, the non-movant may not 14 rely merely on allegations or denials in its own pleading; rather, 15 its response must . . . set out specific facts showing a genuine 16 issue for trial. 17 summary judgment sua sponte, provided that discovery has sufficiently 18 progressed for the court to determine relevant facts and the target 19 has at least ten days notice to contest the impending judgment. 20 Stella v. Town of Tewksbury, 4 F.3d 53, 55-56 (1st Cir. 1993). Fed. R. Civ. P. 56(e)(2). Sometimes, we may grant 21 III. 22 Analysis 23 Movants argue for summary judgment on the basis of Plaintiffs 24 failure to state claims under the First, Fourth, Fifth, Tenth, and Civil No. 07-2104 (JAF) -7- 1 Fourteenth Amendments and inability to establish supervisory 2 liability. (Docket No. 89.) We address, in turn, our prior dismissal 3 of baseless claims, supervisory liability as to Toledo, Orozco, Ruiz, 4 Dennis, and Rosado ( the Supervisors ), and claims against González. 5 A. 6 First, Fifth, and Tenth Amendments and Cruz-Perocier We previously dismissed as baseless Plaintiffs claims under the 7 First, 8 defendants, and claims asserted by Plaintiff Cruz-Perocier. (See 9 Docket No. 62.) With the exception of averments relating to the 10 allegedly-fraudulent search warrant affidavit, Plaintiffs amended 11 complaint essentially reiterates their original complaint without new 12 factual allegations. (See Docket No. 1; Docket No. 70 at ¶¶ 3.11- 13 .16.) We see no reason to rehash this dismissal of claims other than 14 those 15 Nos. 62, 69.) We granted Plaintiffs leave to amend their complaint to 16 better explicate their causes of action under the Fourth Amendment in 17 good faith, not to resurrect other baseless claims. (See Docket 18 No. 69.) As Plaintiffs amended complaint supplies no new averments 19 to support these previously-dismissed claims, we apply our previous 20 reasoning to dismiss them once again, sua sponte. (See id.) 21 Fifth, under We next and the Tenth Fourth consider and Amendments, Fourteenth Cruz-Acevedo s claims against Amendments. remaining unknown (See Fourth Docket Amendment 22 claims for execution of a fraudulently-obtained search warrant and 23 arrest without probable cause on the basis of planted evidence, and 24 his claim for substantive due process. (See Docket No. 70.) Civil No. 07-2104 (JAF) 1 B. -8- Supervisory Liability 2 Plaintiffs amended complaint charges the Supervisors under 3 three separate theories of supervisory liability for their alleged 4 failure to control González, Pérez, Nieves, Arocho, and Colón. 5 (Docket No. 70.) Plaintiffs accuse the Supervisors of failure to 6 adequately train these subordinates, wilful blindness towards a 7 pattern of misconduct by their offending subordinates, and failure to 8 discipline these subordinates for misconduct prior to the search in 9 this case. (Id.) Movants contend that Plaintiffs cannot establish 10 supervisory liability because (1) several Movants had not been 11 appointed to their positions at the time of the allegedly illegal 12 search, (2) Movants had promulgated policies relating to proper 13 police conduct in searches and seizures, and (3) the subordinate 14 officers had no record of civil rights abuses. (Docket No. 89.) 15 To establish supervisory liability under § 1983, a plaintiff 16 must demonstrate the 17 omissions. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 14 (1st Cir. 18 2005). 19 supervisor s direct participation in a constitutional violation, or 20 (2) 21 authorization 22 Zapata, 175 F.3d 41, 44 (1st Cir. 1999)). Under the latter approach, 23 a plaintiff must show that (a) the conduct of the supervisor s 24 subordinate Accordingly, conduct a supervisor s plaintiff by the of illegal caused must supervisor a fault conduct. that Id. constitutional for his establish is own either tantamount (citing acts (1) to and (b) the tacit Camilo-Robles violation, or v. the Civil No. 07-2104 (JAF) -9- 1 supervisor s acts or omissions were affirmatively linked to the 2 subordinate s conduct such that the supervisor s conduct constituted 3 supervisory encouragement, condonation or acquiescence, or gross 4 negligence 5 Hegarty v. Somerset County, 53 F.3d 1367, 1379-80 (1st Cir. 1995)) 6 (ellipsis omitted). amounting to deliberate indifference. Id. (quoting 7 A supervisor s failure to adequately train or to discipline 8 errant subordinates can be grounds for supervisory liability. See id. 9 at 9-10, 13, 14. The supervisor s omission must amount[] to 10 deliberate indifference to the rights of persons with whom the police 11 come into contact. Id. at 10 (quoting City of Canton v. Harris, 489 12 U.S. 13 particular officers who committed the violation had been deprived of 14 adequate training, and that this specific failure in training was at 15 least a partial cause of the ultimate injury. Id. (citing Young v. 16 City of Providence, 404 F.3d 4, 26 (1st Cir. 2005). A supervisor s 17 promulgation of policy relating to proper police procedure precludes 18 his liability for inadequate training. Id. at 10-11. 378, 388 (1989)). The plaintiff must establish that the 19 In a case for failure to discipline, the omission must be so 20 well settled and widespread that the [defendants] can be said to have 21 either actual or constructive knowledge of it yet did nothing to end 22 the practice. Id. at 13 (quoting Bordanaro v. McLeod, 871 F.2d 23 1151, 1156 (1st Cir. 1989)). This pattern of neglect must have been Civil No. 07-2104 (JAF) cause of and the -10- 1 the moving force behind the constitutional 2 violation. Id. (quoting Bordanaro, 871 F.2d at 1157). 3 As an initial matter, the facts preclude all claims against 4 Dennis, Orozco, or Rosado. These officials were all appointed to 5 their respective positions months after the alleged violations in 6 this case. (See Docket Nos. 88-4, 88-5, 88-8, 98-4, 98-5, 98-8.) They 7 cannot be liable as supervisors. See Whitfield, 431 F.3d at 14. 8 9 With respect promulgated to General claims Order against 98-16 on Toledo October and 16, Ruiz, 1998, Toledo which 10 specifically addressed the appropriate procedures for obtaining a 11 search warrant.2 (Docket Nos. 88-28, 98-28.) Ruiz conducted a meeting 12 on August 16, 2006, in which he discussed compliance with General 13 Order 98-16, and which González and others attended. (Docket Nos. 88- 14 10, 88-11, 98-10, 98-11.) As Toledo disseminated policy on correct 15 police procedure, and Ruiz conducted a seminar to instruct his 16 subordinates on the policy, Toledo and Ruiz did not deliberately fail 17 to train the offending officers. See Whitfield, 431 F.3d at 10. 18 Furthermore, the administrative record for Pérez, Nieves, Arocho, and 19 Colón 20 testimony, or false arrest at the time of the search against Cruz- 21 Acevedo. (See Docket Nos. 88-29, 88-30, 88-31, 88-32, 98-29, 98-30, 22 98-31, 98-32.) There was a single charge of false arrest lodged does 2 not show a pattern of corruption, falsification of We are perplexed as to how Plaintiffs counsel could erroneously argue that General Order 98-16, issued in 1998, postdated the alleged misconduct in 2006 by two years. (See Docket Nos. 99, 100.) Civil No. 07-2104 (JAF) -11- 1 against Arocho in 2005. (Docket Nos. 88-31, 98-31.) Although Nieves 2 informed Cruz-Acevedo that he, Arocho, and Colón had a reputation for 3 corruption in Aguadilla (Docket Nos. 99-2, 105-2), Toledo and Ruiz 4 operated at the most general level of supervision on an island-wide 5 basis and could not have overseen personnel matters on a local level 6 in 7 knowledge of Pérez , Nieves , Arocho s, and Colón s records, they 8 also cannot be responsible for disciplining these officers for any 9 prior instances of corruption or false arrest. Therefore, Toledo and 10 Ruiz were not deliberately blind to misconduct at the level of the 11 PRPD regional command for Aguadilla. See Whitfield, 431 F.3d at 14. 12 As noted below, we find no basis for the allegation that 13 González participated in the fraudulent procurement of a search 14 warrant. See infra part III-C. Similarly, we find no basis to hold 15 González liable as a supervisor for the search and arrest, see infra 16 part III-C, and hence Toledo and Ruiz cannot be held responsible for 17 González participation in the alleged abuses. See Rodríguez v. Doral 18 Mortgage Corp., 57 F.3d 1168, 1171-72 (1st Cir. 1995). Even if 19 Plaintiffs can show that González facilitated the fraud on the 20 magistrate, or that he failed to supervise the culpable officers, 21 Plaintiffs have adduced no evidence that Toledo and Ruiz assisted or 22 were deliberately blind to such abuses. Therefore, Toledo and Ruiz 23 did not fail to supervise González as a matter of law. See Whitfield, 24 431 F.3d at 14. Aguadilla. If Toledo and Ruiz could not have had personal Civil No. 07-2104 (JAF) 1 C. -12- Defendant González 2 In their amended complaint, Plaintiffs sole allegation against 3 González is that he unlawfully cooperat[ed] in Nieves fraudulent 4 procurement of a search warrant (Docket No. 70 at ¶ 3.17). The record 5 is devoid of evidence that González participated in this Fourth 6 Amendment 7 affidavit signed by Nieves. (Docket Nos. 88-2, 98-2.) Pérez, not 8 González, authorized the search. (Docket Nos. 88-3, 98-3.) 9 violation. Although His González name was does present not appear during the on the search warrant of Cruz- 10 Acevedo s house (Docket Nos. 88-24, 88-25, 98-24, 98-25), the amended 11 complaint does not charge him with involvement in the search, arrest, 12 and extortion, or with failure to supervise. (See Docket Nos. 70, 13 100.) Instead, Plaintiffs accuse González of supervisory liability in 14 the warrantless arrest of Cruz-Acevedo for the first time in their 15 opposition to summary judgment. (See Docket No. 100.) 16 Generally, courts cannot entertain claims on summary judgment 17 which never appeared in the complaint. Ruíz-Rivera v. Pfizer Pharms., 18 LLC, 521 F.3d 76, 84 (1st Cir. 2008). The fundamental purpose of our 19 pleadings rules is to protect a defendant s inalienable right to 20 know in advance the nature of the cause of action being asserted 21 against him. Id. (quoting Doral, 57 F.3d at 1171) (affirming 22 summary judgment where claim was not sufficiently pleaded in amended 23 complaint). Even under the notice pleading standard, plaintiffs may 24 not leave defendants to forage in forests of facts, searching at Civil No. 07-2104 (JAF) -13- 1 their peril for every legal theory that a court may some day find 2 lurking in the penumbra of the record. Doral, 57 F.3d at 1172. 3 However, litigants may constructively amend pleadings by implied 4 consent under Federal Rule of Civil Procedure 15(b) in either of two 5 ways. Id. First, a new claim may be actually introduced outside the 6 complaint . . . and then treated by the opposing party as having been 7 pleaded, either through his effective engagement of the claim or 8 through 9 conventionally, consent to the trial of an issue may be implied if, 10 during the trial, a party acquiesces in the introduction of evidence 11 which is relevant only to that issue. Id. (quoting DCPB, Inc. v. 12 City of Lebanon, 957 F.2d 913, 917 (1st Cir. 1992)). However, if it 13 would 14 complaint, we need not consider his proffered amendment for the 15 purpose of summary judgment. Hatch v. Dep t for Children, Youth & 16 Their Families, 274 F.3d 12, 19 (1st Cir. 2001). 17 his be silent futile acquiescence. for a plaintiff Id. to Alternatively, constructively and amend more his In the case at bar, we granted Plaintiffs leave to amend their 18 complaint 19 Plaintiffs, thus, had ample opportunity to include any new claims 20 against González but failed to do so.3 (Compare Docket Nos. 1, 70.) 3 after the close of discovery. (Docket Nos. 61, 69.) As we have repeatedly warned Plaintiffs counsel, the generous pleading standard of Federal Rule of Civil Procedure 8 does not relieve him of the duty to represent his clients with competence and diligence. (Docket No. 62 nn.1 & 3; Docket No. 69 n.3.) Counsel s neglect is particularly egregious in light of our leave for Plaintiffs to amend their complaint. (See Docket No. 69.) Civil No. 07-2104 (JAF) 1 Nevertheless, 2 supervisory defendant in their motion for summary judgment. (See 3 Docket No. 89.) In opposition, Plaintiffs traverse the issue by 4 asserting their new claim against González for his alleged role as a 5 supervisor at the search of Cruz-Acevedo s house. (Docket No. 100.) 6 Therefore, 7 González s supervisory role at the search and arrest, creating 8 colorable grounds to constructively reform the pleadings to reflect 9 this 10 Movants -14- Movants new claim. have have Cf. erroneously unwittingly Doral, 57 treated introduced F.3d at González the 1172-73 as question (finding a of no constructive amendment and vacating judgment). 11 In their opposition brief, Plaintiffs allege that González was 12 also present during the preparation meeting prior to executing the 13 search and seizure, and González was inside the house when Nieves 14 and Arocho found the evidence. (Docket No. 100.) From these facts, 15 Plaintiffs insist that González acquiesced to plaintiff s violation 16 [sic] of constitutional rights. (Id.) By referring to González 17 acquiescence rather than active involvement, Plaintiffs attempt to 18 state 19 authorization, rather than direct participation. 20 F.3d at 14. a claim for González supervisory liability by tacit See Whitfield, 431 21 To establish a claim for supervisory liability on the basis of 22 tacit authorization, a plaintiff must show that it would be manifest 23 to any reasonable official that his conduct was very likely to 24 violate an individual s constitutional rights. Maldonado v. Civil No. 07-2104 (JAF) -15- 1 Fontanes, 568 F.3d 263, 275 (1st Cir. 2009) (quoting Pineda v. 2 Toomey, 533 F.3d 50, 54 (1st Cir. 2008)) (internal quotation marks 3 omitted). [M]ere presence at the scene of an alleged violation is 4 insufficient to create the affirmative link necessary for a finding 5 of 6 indifference. 7 insufficient to survive dismissal). supervisory 8 At this liability, Id. late even (holding juncture, under that a theory allegation Plaintiffs sole of of deliberate presence basis for is their 9 proffered new claim is González own version of facts submitted by 10 Movants in support of their motion for summary judgment.4 (See Docket 11 No. 100.) González states that, although he was on Cruz-Acevedo s 12 premises, he did not observe Arocho and Nieves uncover the allegedly 13 planted evidence. (Docket Nos. 88-25, 98-25.) Moreover, González 14 deposition testimony is entirely devoid of admission of knowledge of 15 his subordinates misdeeds. (See Docket Nos. 88-14, 88-15, 88-16, 88- 16 17, 88-20, 88-21, 88-22, 88-23, 88-24, 88-25, 88-26, 98-14, 98-15, 17 98-16, 98-17, 98-20, 98-21, 98-22, 98-23, 98-24, 98-25, 98-26.) 18 Without more evidence than González mere presence at the 19 planning and execution of the search against Cruz-Acevedo, Plaintiffs 20 cannot establish the necessary causal link to prevail on their new 21 claim 22 Consequently, it would be futile for Plaintiffs to constructively against 4 González. See Maldonado, 568 F.3d at 275. Plaintiffs also point to their own sworn statement which they never submitted. (Docket No. 100.) We cannot accept arguments on summary judgment that are unsupported by evidence. See L.Cv.R. 56(e). Civil No. 07-2104 (JAF) -16- 1 amend their complaint to charge González with supervisory liability, 2 and we need not consider this claim for the purpose of summary 3 judgment. See Hatch, 274 F.3d at 19. 4 We, therefore, order Plaintiffs to show cause as to why we 5 should not order summary judgment, sua sponte, in favor of González 6 on all claims. As we treat all federal claims against Movants on 7 other grounds, we need not address their arguments for sovereign or 8 official immunity. (See Docket No. 89.) 9 IV. 10 Conclusion 11 12 Accordingly, we hereby GRANT IN PART Movants motion for summary judgment (Docket No. 89): 13 We DISMISS, sua sponte, Plaintiffs § 1983 claims under the 14 First, Fifth, and Tenth Amendments, all claims against unknown 15 defendants, and all claims by Cruz-Perocier WITH PREJUDICE (Docket 16 No. 70). We DISMISS all federal claims against Toledo, Rosado, 17 Orozco, Dennis, and Ruiz WITH PREJUDICE (id.). We ORDER Cruz-Acevedo 18 to SHOW CAUSE, on or before July 31, 2009, as to why we should not 19 also grant summary judgment, sua sponte, in favor of González. 20 We RETAIN jurisdiction over Cruz-Acevedo s Fourth Amendment 21 claims for execution of a fraudulently-obtained search warrant and 22 arrest without probable cause, and Fourteenth Amendment claim for 23 substantive due process, against Arocho, Colón, Nieves, and Pérez, as Civil No. 07-2104 (JAF) -17- 1 well as his claims under Puerto Rico law against Arocho, Colón, 2 Nieves, Pérez, the Supervisors, and González (id.). 3 IT IS SO ORDERED. 4 San Juan, Puerto Rico, this 15th day of July, 2009. 5 6 7 S/José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge

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