McLeod-Lopez v. Rosa-Algarin et al, No. 3:2008cv01315 - Document 25 (D.P.R. 2009)

Court Description: OPINION AND ORDER. GRANTED in part and DENIED in part 6 MOTION to dismiss Under Fed. Rule Civ. Proc. 12(b)(6) as to Juan Rosa-Algarin, Pedro A. Toledo-Davila. Signed by Judge Salvador E Casellas on 3/23/2009.(LB)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 MATTHEW CRIS MCLEOD-LOPEZ 5 Plaintiff 6 7 v. Civil No. 08-1315 (SEC) JUAN ROSA ALGARIN, ET AL 8 Defendants 9 OPINION and ORDER 10 11 Pending before this Court is Co-Defendants Pedro Toledo Dávila ( Toledo ) and Juan 12 A. Rosa Algarín s ("Rosa") (collectively Defendants ) motion to dismiss (Docket # 6), and 13 Plaintiff Matthew Cris McLeod-López s ( Plaintiff ) opposition thereto (Docket # 11). After 14 reviewing the filings, and the applicable law, Defendants' motion to dismiss is GRANTED in 15 part and DENIED in part. 16 Factual Background 17 On March 14, 2008, Plaintiff filed the instant complaint under Sections 1983, 1986 and 18 1988 of the Civil Rights Act of 1964, 42 U.S.C. §§ 1983, 1986 & 1988, the Fourth, Fifth, 19 Eighth, Ninth and Fourteenth Amendments of the U.S. Constitution, Article II of the 20 Commonwealth's Constitution, and Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. 21 tit. 31 § 5141, against Toledo, Rosa, various police officers, and other unnamed defendants, 22 individually and in their personal capacity. Docket # 1.1 Plaintiff seeks relief for the damages 23 he suffered as a result of the alleged assault undertaken by members of the Puerto Rico Police 24 Department during his arrest. Id. 25 26 1 On December 31, 2008, Plaintiff filed an amended complaint, adding several defendants. Docket # 14. 1 CIVIL NO. 08- 1315 (SEC) Page 2 2 Pursuant to the complaint, the facts are as follows. On March 19, 2007, while Plaintiff 3 was with his common law wife, his son, nephew, and niece in his residence, located at Palmas 4 de Cerro Gordo Housing Development, approximately fifteen police officers, including Rosa, 5 arrived to serve a warrant for arrest for contempt charges. When Plaintiff opened the door, one 6 of the police officers inquired as to McLeod-López s whereabouts, whereupon another police 7 officer identified Plaintiff as McLeod-López. Plaintiff did not resist arrest. However, Rosa, 8 and other officers, attacked and hit Plaintiff, while arresting him. The police officers hit and 9 punched Plaintiff in the genital area, moved him out of his residence, and continued to beat him 10 while he was handcuffed and lying on the floor. Subsequently, the officers entered, with 11 Plaintiff, into his residence, and forced him to open a safe deposit box from which the officers 12 allegedly took an estimated $3,000. During the arrest, Plaintiff was never informed about nor 13 read his constitutional rights. 14 Plaintiff was then transported to the Criminal Investigation Center ( CIC ) in Vega Baja. 15 The police officers kept hitting and punching Plaintiff, until they arrived at said location. 16 Plaintiff complained about severe pain in his genital area, abdomen, and back to the officers. 17 Plaintiff remained in the CIC for approximately an hour, after which he was transported to the 18 Hato Rey Police Headquarters, where he was put in a solitary cell, and left handcuffed. Plaintiff 19 continued to complain about pain in his genital area. At around 4:00 am on March 20, 2007, a 20 paramedic examined Plaintiff, and stated that he was well. Docket # 14 at ¶ 23. At around 21 10:30 am, Plaintiff was transferred to the Diagnostic Treatment Center in Rio Piedras, where 22 they ordered he be taken to the emergency room at the Rio Piedras Medical Center. At the 23 Medical Center, Plaintiff underwent surgery to remove one of his testicles. 24 On March 21, 2007, Plaintiff was taken to the Bayamon Judicial Center, and charged 25 with drug and weapons possession. The court found probable cause for said violations, and he 26 1 CIVIL NO. 08- 1315 (SEC) Page 3 2 was incarcerated at the Bayamon Correctional Facility. The charges were later dismissed due 3 to lack of evidence. 4 On June 5, 2008, Defendants filed a motion requesting the dismissal of the case under 5 F ED. R. C IV. P. 12(b)(6). According to Defendants, all claims against them should be dismissed 6 because: (1) they are entitled to Eleventh Amendment Immunity in their official capacity, (2) 7 Toledo, in his personal capacity, is entitled to qualified immunity, (3) the respondeat superior 8 doctrine does not apply to Toledo as a supervisor, (4) Plaintiff does not state a claim of 9 supervisory liability under Section 1983, (5) the complaint does not state a claim of malicious 10 prosecution, false arrest, and illegal seizure under the Fourth and Fourteenth Amendments, and 11 (6) Plaintiff failed to state Fifth and Ninth Amendment claims. As a result of the foregoing, 12 Defendants also move for the dismissal of all pendent state law claims. 13 Standard of Review 14 Fed. R. Civ. P. 12(b)(6) 15 To survive a Rule 12(b)(6) motion, Plaintiffs well-pleaded facts must possess enough 16 heft to show that [they are] entitled to relief. Clark v. Boscher, 514 F. 3d 107, 112 (1 st Cir. 17 2008). In evaluating whether Plaintiffs are entitled to relief, the court must accept as true all of 18 their well-pleaded facts [and indulge] all reasonable inferences therefrom in the plaintiff s 19 favor. Id. Moreover, a court must determine whether the complaint, so read, limns facts 20 sufficient to justify recovery on any cognizable theory. LaChapelle v. Berkshire Life Ins. Co., 21 142 F.3d 507, 508 (1st Cir. 1998) (citations omitted). The Supreme Court has held that a 22 complaint should not be dismissed for failure to state a claim unless it appears beyond doubt 23 that the plaintiff can prove no set of facts in support of his claim which would entitle him to 24 relief. Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 654 (1999) (citing Conley v. Gibson, 25 355 U.S. 41, 45-46 (1957)). 26 1 CIVIL NO. 08- 1315 (SEC) Page 4 2 However, [a]lthough this standard is diaphanous, it is not a virtual mirage. Berner v. 3 Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 4 (1st Cir. 1988)). Plaintiffs must rely in more than unsupported conclusions or interpretations of 5 law, as these will be rejected. Id. That is, factual allegations must be enough to raise a right to 6 relief above the speculative level, on the assumption that all allegations in the complaint are 7 true. Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008). Therefore, dismissal for failure to state 8 a claim is appropriate if the complaint fails to set forth factual allegations, either direct or 9 inferential, respecting each material element necessary to sustain recovery under some 10 actionable legal theory. Gagliardi v. Sullivan, 513 F. 3d 301, 305(1 st Cir. 2008). The Court 11 may augment the facts in the complaint by reference to documents annexed to the complaint 12 or fairly incorporated into it, and matters susceptible to judicial notice. Id. at 305-306. As such, 13 in judging the sufficiency of a complaint, courts must differentiate between well-pleaded facts, 14 on the one hand, and bald assertions, unsupportable conclusions, periphrastic circumlocution, 15 and the like, on the other hand; the former must be credited, but the latter can safely be 16 ignored. LaChapelle, 142 F.3d at 508 (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1 st 17 Cir.1996)); see also Rogan v. Menino, 175 F.3d 75, 77 (1 st Cir. 1999). 18 To survive a motion to dismiss at this stage, it is enough for a plaintiff to sketch an 19 actionable claim by means of a generalized statement of facts from which the defendant will be 20 able to frame a responsive pleading. Langadinos v. American Airlines, Inc., 199 F.3d 68, 73 21 (1st Cir. 2000) (citing Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1 st Cir. 22 1992) (internal citations omitted))). In so doing, a plaintiff can make allegations either on the 23 basis of personal knowledge or on information and belief. Id. 24 Applicable Law and Analysis 25 Plaintiff s Section 1983 Claims 26 1 CIVIL NO. 08- 1315 (SEC) Page 5 2 Defendants argue that Plaintiff failed to state a Section 1983 claim, and that the Section 3 1983 claims against those Defendants who are supervisors should be dismissed because there 4 is no respondeat superior liability under said statute. Plaintiffs oppose dismissal on both fronts, 5 arguing that they have included averments within their complaint sufficient to survive dismissal 6 at this stage. This Court begins its discussion by addressing the familiar Section 1983 standard. 7 A claim under Section 1983 is established by demonstrating that a government official, 8 acting under the color of state law, has caused the depravation of a federal right. Burke v. Town 9 of Walpole, 405 F.3d 66, 76 (1st Cir. 2005)(citing Kentucky v. Graham, 473 U.S. 159, 166 10 (1985)). Furthermore, a Plaintiff in a civil rights action must allege an injury to a cognizable 11 interest, and that this injury is ...causally related to the challenged conduct, and can be 12 redressed through the litigation in question. See Pagan v. Calderon, 448 F.3d 16, 27 (1st Cir. 13 P.R. 2006). The conduct alleged to have caused the violation must also be intentional or 14 recklessly indifferent to the plaintiff s federal statutory or constitutional right. Del 15 Villar-Rosario v. P.R. DOJ, No. 06-2089, 2008 U.S. Dist. LEXIS 36059,*5 (D.P.R. Mar. 3, 16 2008); see also Gutierrez Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989); Simmons 17 v. Dickhaut, 804 F.2d 182, 185 (1st Cir. 1986). 18 The First Circuit has held that [i]n an action brought under §1983, supervisors are not 19 automatically liable for the misconduct of those under their command. Carmona v. Toledo, 20 215 F.3d 124, 132 (1st Cir. 2000). However, a supervisor s liability can be grounded on either 21 the supervisor s direct participation in the unconstitutional conduct, or through conduct that 22 amounts to condonation or tacit authorization. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 14 23 (1st Cir. 2005) (citing Camilo Robles v. Zapata, 175 F.3d 41, 44 (1 st Cir. 1999)). Unless the 24 supervisor directly participated in the deprivation of the plaintiff s constitutional rights, he may 25 only be held liable if: (1) the behavior of his subordinates results in a constitutional violation 26 1 CIVIL NO. 08- 1315 (SEC) Page 6 2 and (2) the supervisor s action or inaction was affirmatively linked to the behavior in the sense 3 that it could be characterized as supervisory encouragement, condonation or acquiescence or 4 gross negligence amounting to deliberate indifference. Id. (quoting Hegarty v. Somerset 5 County, 53 F.3d 1367, 1379-1380 (1 st Cir. 1995)).2 6 Toledo avers that there are no allegations linking him to any of the facts set forth in the 7 complaint. He further contends that he was brought into this suit exclusively because he is the 8 Police Department s Superintendent. Upon reviewing the complaint, this Court notes that 9 Toledo did not directly participate in the events which led to this suit, therefore, he can only be 10 found liable if Plaintiff has first shown that his subordinates behavior results in a constitutional 11 violation. Taking as true all well-pleaded facts in the complaint, this Court finds that there could 12 be several constitutional violations on the part of the police officers. As such, for purposes of 13 this analysis, the answer to this first factor is in the affirmative. 14 Next, this Court must consider whether Toledo's actions or inactions were affirmatively 15 linked to the police officer's behavior. Although the allegations against Toledo may be less 16 specific than those regarding the arresting officers, they still pass muster under Rule 12(b)(6). 17 Specifically, Plaintiff alleges that Toledo was responsible for Rosa s, and the other arresting 18 officers supervision, recruitment, the evaluation of their performance, and assuring that their 19 20 2 21 22 23 24 25 26 Failure to train claims may, in appropriate circumstances, lead to an imposition of liability on a supervisor or a municipality. See Calvi v. Knox County, 470 F.3d 422, 429 (1st Cir. 2006) (liability will attach if the municipality fails to provide adequate training notwithstanding an obvious likelihood that inadequate training will result in the violation of constitutional rights ) (citing Whitfield, 431 F.3d at 10). However, an assertion that a supervisor failed to train his subordinates and that he should be held liable for such failure, without identifying the factual underpinnings of such failure, nor identifying the causal nexus between the failed training and the street-level misconduct, is not enough. See Rodríguez-Vázquez v. Cintrón-Rodríguez, 160 F. Supp. 2d 204 (D.P.R. 2001) (dismissing claims against Police Superintendent; broad and general allegations of inadequate training and supervision of the police force that are not linked to the particular defendants joined in the action insufficient to state a claim against the superintendent); Rodríguez-Esteras, 266 F. Supp. 2d 270 (dismissing failure to train claim against police superintendent for failure to plead minimum facts in support of such a claim). 1 CIVIL NO. 08- 1315 (SEC) Page 7 2 training was adequate. Moreover, Plaintiff avers Toledo knew or should have known and 3 identified the dangerous tendencies of said police officers and the threat that they represented... 4 Docket # 14 at ¶ 30. As such, he posits that Toledo had actual or, at least, constructive 5 knowledge of the arresting officers violent tendencies. Id. at ¶ 34. According to Plaintiff, 6 Toledo s failure to train, supervise, evaluate, and discipline the arresting police officers, 7 together with his failure to identify their violent nature during the implementation of the 8 department s training and disciplinary system, shows a callous and reckless disregard, and 9 deliberate indifference to Plaintiff s and all Puerto Rico citizens rights. Id. A review of these, 10 and the remaining averments within the complaint regarding Defendants, persuades this Court 11 that Plaintiff has sufficiently pled a viable Section 1983 claim against them to survive a motion 12 to dismiss. 13 Since Plaintiffs have pled the necessary elements for a Section 1983 claim against each 14 of the Defendants, their motion to dismiss for failure to state a claim, and lack of supervisory 15 liability, is DENIED. 16 Plaintiff s Fifth Amendment Claims 17 Because there are no federal actors in this case, Defendants argue that the Court should 18 dismiss Plaintiff s Fifth Amendment claim. The Fifth Amendment provides that [n]o person 19 shall... be deprived of life, liberty, or property, without due process of law... U.S. Const. 20 amend. V; see also Gerena v. Puerto Rico Legal Services, 697 F. 2d 447, 449 (1 st Cir. 1983). 21 This amendment applies to actions of the federal government, not those of private individuals, 22 or of state, local or municipal governments. Id. at 449; see also Martínez-Rivera v. Sánchez23 Ramos, 498 F. 3d 3, 8 (1st Cir. 2007) (affirming dismissal of Plaintiffs claims under the Fifth 24 Amendment because the police officers where state actors and not federal actors). Because 25 Plaintiff s complaint does not allege that any of the Defendants are federal actors; instead they 26 1 CIVIL NO. 08- 1315 (SEC) Page 8 2 aver that they are state officials acting under color of state law (see, Docket # 12 ¶15 ), his 3 claims pursuant to the Fifth Amendment are hereby DISMISSED with prejudice. 4 Plaintiff s Eighth Amendment Claims 5 The United States Supreme Court has stated that this amendment, applicable to the states 6 through the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishments 7 on those convicted of crimes. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991)(emphasis added); 8 see also Martínez-Rivera, 498 F. 3d at 8. That is, the Eight Amendment only comes into play 9 after there has been a formal adjudication of guilt, through a criminal prosecution, in accordance 10 with due process of law. Martínez-Rivera, 498 F. 3d at 8 (stating that because there had been 11 no formal adjudication of guilt against [Plaintiffs] at the time of the alleged constitutional 12 deprivation, the Eighth Amendment is inapplicable and any claim brought on that theory was 13 properly dismissed. ) The amendment also covers deprivations that were not specifically part 14 of the sentence but were suffered during imprisonment. Id. at 297. Furthermore, only the 15 unnecessary and wanton infliction of pain implicates the Eight Amendment. Id. 16 Plaintiff has not alleged that he was convicted and imprisoned, after a formal process of 17 adjudication, and subjected to unnecessary and wanton infliction of pain as punishment. On the 18 contrary, he states that all charges against him were dismissed for lack of evidence. Moreover, 19 as this Court will discuss shortly, the Supreme Court has held that claims that law enforcement 20 officers have used excessive force in the course of an arrest should be analyzed under the Fourth 21 Amendment and its reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989); 22 see also Tavarez-Guerrero v. Toledo-Davila, 573 F. Supp. 2d 507, 512 (D.P.R. 2008). Thus, the 23 Eighth Amendment is inapplicable to the instant case. Therefore, Plaintiff s claims under the 24 Eight Amendment are hereby DISMISSED with prejudice. 25 26 1 CIVIL NO. 08- 1315 (SEC) Page 9 2 Plaintiffs Ninth Amendment Claims 3 In the complaint, Plaintiffs contend that Defendants also violated his Ninth Amendment 4 rights. In turn, Defendants argue that the Ninth Amendment does not create a constitutional 5 right or a private cause of action and, as a result, the before mentioned claims should be 6 dismissed. The Ninth Amendment provides that the enumeration in the Constitution of certain 7 rights, shall not be construed to deny or disparage others retained by the people. U.S. Const. 8 amend. IX. The First Circuit Court has previously stated that the Ninth Amendment does not 9 create substantive rights beyond those conferred by governing law. Vega-Rodríguez v. Puerto 10 Rico Tel. Co., 110 F.3d 174, 182 (1st Cir.1997); see also Gibson v. Matthews, 926 F.2d 532, 537 11 (6th Cir.1991). It refers only to unenumerated rights, while claims under §1983 must be 12 premised on specific constitutional guarantees. Bussey v. Phillips, 419 F. Supp.2d 569 13 (S.D.N.Y.2006); see also Khalid v. Reda, 2003 WL 42145, at p.6 (S.D.N.Y. 14 2003)(unpublished); Gibson, 926 F.2d at 537 (dismissing Plaintiffs Ninth Amendment claim 15 on the ground that the ninth amendment does not confer substantive rights in addition to those 16 conferred by other portions of our governing law. ); DeLeón v. Little, 981 F. Supp. 728, 734 17 (D. Conn.1997) (holding that the [Ninth Amendment] does not guarantee any constitutional 18 right sufficient to support a claim under 42 U.S.C. §1983. ). Because Plaintiffs claim arise 19 under Section 1983, that is, a section that requires a specific constitutional right violation, 20 Plaintiff s Ninth Amendment claims are DISMISSED with prejudice. 21 Plaintiffs Fourteenth Amendment Claims 22 Defendants argue that when a constitutional violation is covered by a particular statute, 23 that specific provision must be applied, instead of the Fourteenth Amendment. Insofar as 24 Plaintiff s claims are premised on Section 1983, they aver that Plaintiff cannot establish a 25 substantive due process claim. In response, Plaintiff contends that, during his arrest, Defendants 26 1 CIVIL NO. 08- 1315 (SEC) Page 10 2 used violence and excessive force, and invaded his privacy, in violation of the Fourth and 3 Fourteenth Amendments. 4 Under the Fourteenth Amendment, no State shall deprive any person of life, liberty, or 5 property, without due process of law. U.S. Const. amend. XIV, §1. In order to establish a 6 procedural due process claim under Section 1983, a plaintiff must first prove that he has a 7 property interest as defined by state law and, second, that Defendants, acting under color of state 8 law, deprived him of that property interest without a constitutionally adequate process. Logan 9 v. Zimmerman Brush Co., 455 U.S. 422,428 (1982); PFZ Properties, Inc. v. Rodríguez, 928 10 F.2d 28, 30 (1st Cir. 1991). As previously stated, that test has been met here by Plaintiff. 11 However, to meet the burden on a substantive due process cause of action, Plaintiff must 12 present a well-pleaded claim that a state actor deprived it of a recognized life, liberty, or 13 property interest, and that he did so through conscience-shocking behavior. Estate of Bennett 14 v. Wainwright, 548 F.3d 155, 162 (1st Cir. 2008) (citing Clark, 514 F.3d at 112; see also 15 Ramos-Pinero v Puerto Rico, 453 F.3d 48, 53 (1st Cir. 2006) (stating that the shock the 16 conscience standard implicates behavior so egregious, so outrageous, that it may fairly be said 17 to shock the contemporary conscience ) (citing County of Sacramento v. Lewis, 523 U.S. 833, 18 848 n.8, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998))). Only [b]ehavior intended to injure in 19 some way unjustifiable by any government interest - is the sort of official action most likely 20 to shock the conscience. Ramos-Pinero, 453 F.3d at 53 (citations omitted). Plaintiff argues 21 that he has shown that the defendants engaged in conscience-shocking behavior by beating him 22 and stealing $3,000 from his safe deposit box, and as such, violated his substantive due process 23 rights. 24 Plaintiff s substantive due process claim, premised on the deprivation of his liberty fails 25 insofar as his claim is really an excessive force claim that should be, and is, brought under the 26 1 CIVIL NO. 08- 1315 (SEC) Page 11 2 Fourth Amendment. Wainwright, 548 F.3d at 163; see also Graham, 490 U.S. at 395. The 3 Supreme Court has held that all claims that law enforcement officers have used excessive force 4 -- deadly or not -- in the course of ... [the] seizure of a free citizen should be analyzed under 5 the Fourth Amendment and its reasonableness standard, rather than under a substantive due 6 process approach. Graham, 490 U.S. at 395; see also Wainwright, 548 F.3d at 163. A 7 seizure which entitles Plaintiff to the Fourth Amendment's protections occurs only when 8 government actors have, by means of physical force or show of authority, . . . in some way 9 restrained the liberty of a citizen... Graham, 490 U.S. at 395, n. 10 (citing Terry v. Ohio, 392 10 U.S. 1, 19, n. 16 (1968)). The Court further stated that [b]ecause the Fourth Amendment 11 provides an explicit textual source of constitutional protection against this sort of physically 12 intrusive governmental conduct, that Amendment, not the more generalized notion of 13 substantive due process, must be the guide for analyzing these claims. Id.; see also Albright 14 v. Oliver, 510 U.S. 266, 273 (1994). Since an alternative constitutional claim is available in this 15 case, Plaintiff s substantive due process claims on this front cannot prevail. See Wainwright, 16 548 F.3d at 163. 17 However, Plaintiff also alleges that the arresting police officers entered his home, 18 without a search warrant, and took an estimated $3,000 from his safe deposit box. Docket # 14 19 at ¶ 19. The Supreme Court has held that the due process guarantee does not entail a body of 20 constitutional law imposing liability whenever someone cloaked with state authority causes 21 harm. County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). As such, the Court has 22 rejected imposing tort liability under the Fourteenth Amendment, and has held that the 23 Constitution does not guarantee due care on the part of state officials. Id. According to the 24 Court, conduct intended to injure in some way unjustifiable by any government interest is the 25 sort of official action most likely to rise to the conscience-shocking level. Id. at 849. Although 26 1 CIVIL NO. 08- 1315 (SEC) Page 12 2 deliberate indifference may also be sufficient to satisfy a due process claim, it must be equally 3 shocking to conscience. Insofar as conduct that shocks in one environment may not be so 4 patently egregious in another, (the need to preserve) the constitutional proportions of substantive 5 due process demands an exact analysis of circumstances before any abuse of power is 6 condemned as conscience-shocking. Id. at 850. 7 In the instant case, to equate the taking of $3,000 from Plaintiff s safe to such brutal 8 conduct as a rape, a nearly two-month unlawful imprisonment, a shooting, a student blinded in 9 one eye when a coach intentionally struck him in the head with a metal weight, a teacher's 10 fabrication of sexual abuse charges against a father, resulting in loss of contact with his child 11 for three years, a 57-day unlawful detention in the face of repeated requests for release, and 12 police officers aiding a third-party in shooting the plaintiff, would be to lower the very high 13 threshold for constitutional wrongdoing. See Cummings v. McIntire, 271 F.3d 341, 346 (1 st Cir. 14 2001) (citations omitted). More so, when Plaintiff s claim of an unlawful search may be duly 15 addressed under the Fourth Amendment. As such, Plaintiff s claims under the Fourteenth 16 Amendment claims are DISMISSED with prejudice.ss 17 Plaintiff s Fourth Amendment Claims 18 In requesting the dismissal of Plaintiff s Fourth Amendment claims, Defendants aver that 19 Plaintiff failed to establish a case of malicious prosecution, false arrest, and illegal seizure under 20 the Fourth Amendment.3 However, as previously stated, Plaintiff s claims stem from the 21 22 3 23 24 25 26 Defendants also correctly assert that there is no substantive due process right under the Fourteenth Amendment to be free of malicious prosecution. Cruz-Erazo v. Rivera-Montañez, 212 F.3d 617, 621 (1st Cir. 2000). Furthermore, they argue that a claim for malicious prosecution is properly addressed under state law. Notwithstanding, this Court notes that in order to establish a claim for malicious prosecution, a plaintiff must show that criminal proceedings were initiated against him without probable cause and for an improper purpose and were terminated in his favor. Meehan v. Town of Plymouth, 167 F.3d 85, 88-89 (1st Cir. 1999) (citing Landrigan v. City of Warwick, 628 F.2d 736, 745 n.6 (1st Cir. 1980). Under Section 1983, a claim for malicious prosecution action, based upon a deprivation of Fourth Amendment rights, requires a showing of the absence 1 CIVIL NO. 08- 1315 (SEC) Page 13 2 alleged beating undertaken by the arresting police officers, and the alleged taking of his monies 3 from the safe deposit box, both of which are appropriately addressed under the Fourth 4 Amendment. 5 The Fourth Amendment provides that citizens have a right to be secure in their persons, 6 houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 7 and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and 8 particularly describing the place to be searched, and the persons or things to be seized. U.S. 9 Const. amend. IV. To establish a Fourth Amendment violation based on excessive force, a 10 plaintiff must show that the defendant officer employed force that was unreasonable under the 11 circumstances. Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2008); see Graham, 490 U.S. at 397. 12 Whether the force used is reasonable must be judged from the perspective of a reasonable 13 officer on the scene. Graham, 490 U.S. at 396; see also Tavarez-Guerrero, 573 F. Supp.2d at 14 514. The reasonableness inquiry is objective, to be determined in light of the facts and 15 circumstances confronting [the officer], without regard to their underlying intent or motivation. 16 Graham, 490 U.S. at 397. Moreover, the facts and circumstances of each particular case, 17 including the severity of the crime at issue, whether the suspect poses an immediate threat to 18 the safety of the officers or others, and whether he is actively resisting arrest or attempting to 19 evade arrest by flight, are of specific relevance. Id. at 396. This district has held that [t]he use 20 of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and 21 unnecessary period of time are certainly unreasonable actions. Tavarez-Guerrero, 573 F. 22 Supp.2d at 514. 23 24 25 26 of probable cause to initiate the proceedings. Id. However, Plaintiff does not allege that he was arrested without probable case. As such, a claim for malicious prosecution lacks merit. 1 CIVIL NO. 08- 1315 (SEC) Page 14 2 In the complaint, Plaintiff specifies how the arrest, beating, and seizure were made. He 3 doesn t deny there was a valid warrant for his arrest. However, Plaintiff alleges that the 4 arresting police officers used violence and excessive force, despite the fact that he did not resist 5 arrest, and that they took his money without a valid search warrant. Taking Plaintiffs 6 allegations as true, this Court concludes that he has pled a plausible entitlement to relief under 7 the Fourth Amendment against Defendants. As such, Defendants motion to dismiss the Fourth 8 Amendment claim is hereby DENIED. 9 Eleventh Amendment Immunity 10 Defendants posit that the claims against them in their official capacities should be 11 dismissed because the Police Department, as a Commonwealth agency, is entitled to Eleventh 12 Amendment immunity. The Eleventh Amendment to the United States Constitution provides: 13 15 [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const. Am. XI.4 16 Although the Eleventh Amendment literally seems to apply only to suits against a State by 17 citizens of another State, the Supreme Court has consistently extended the scope of this 18 Amendment to suits by citizens against their own State. See Board of Trustees of the Univ. of 19 Ala. v. Garrett, 531 U.S. 356, 362 (2001); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 20 72-73 (2000); Hans v. Louisiana, 134 U.S. 1, 15 (1890). Although the Commonwealth of 21 Puerto Rico is not a state, it enjoys the protection of the Eleventh Amendment. See Jusino- 22 Mercado v. Commonwealth of Puerto Rico, 214 F.3d 34, 37 (1 st Cir. 2000); Ortiz Feliciano v. 14 23 24 4 25 26 The Supreme Court has established that the Eleventh Amendment protection primarily furthers two goals: the protection of a state s treasury and the protection of its dignitary interest of not being haled into federal court. Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir. 2003) (citing Fed. Mar. Comm n v. S.C. State Ports Auth., 535 U.S. 743 (2002)). 1 CIVIL NO. 08- 1315 (SEC) Page 15 2 Toledo Dávila, 175 F.3d 37, 39 (1st Cir. 1999); Futura Development v. Estado Libre Asociado. 3 144 F.3d 7,12-13 (1st Cir. 1998); Culebras Enters. Corp. v. Rivera Ríos. 838 F.2d 506, 516 (1 st 4 Cir. 1987); Ramírez v. Puerto Rico Fire Servs., 715 F.2d 694, 697 (1 st Cir. 1984). 5 However, the Eleventh Amendment immunity is not absolute and may be waived by the 6 state or stripped away by Congress. Metcalf & Eddy v. P.R.A.S.A., 991 F.2d 935, 938 (1 st Cir. 7 1993). There are four (4) circumstances in which the Eleventh Amendment protection unravels: 8 (1) when a state consents to be sued in a federal forum; (2) when a state waives its own 9 immunity by statute or the like; (3) when Congress abrogates state immunity ( so long as it 10 speaks clearly and acts in furtherance of particular powers ); and (4) when, provided that 11 circumstances allow, other constitutional imperatives take precedence over the Eleventh 12 Amendment s protection. Id. at 938 (citations omitted). Despite number two above, the First 13 Circuit has held that the fact that a state has waived its immunity to be sued does not 14 automatically means that it waived its immunity in federal court. See Díaz-Fonseca v. 15 Commonwealth of Puerto Rico, 451 F. 3d 13, 33 (1st Cir. 2006)(holding that although the 16 Commonwealth waived its immunity to be sued in certain circumstances in its own courts, it did 17 not waive its immunity to be sued in federal court). 18 The Eleventh Amendment bar extends to governmental instrumentalities which are an 19 arm or alter ego of the State. See Ainsworth Aristocrat Int l Pty. Ltd. v. Tourism Co. of P.R., 20 818 F.2d. 1034, 1036 (1st Cir. 1987); Ochoa Realty Corp. v. Faría, 618 F. Supp. 434, 435 21 (D.P.R. 1985); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Mt. Healthy 22 City Sch. Dist. v. Doyle, 429 U.S. 274, 280-281 (1977); Ursulich v. P.R. Nat l Guard, 384 F. 23 Supp. 736, 737-38 (D.P.R. 1974). It also protects state officials in their official capacity. The 24 rationale behind this extension of the Eleventh Amendment protection is that a claim against 25 a state official in his or her official capacity for monetary relief is an action for the recovery of 26 1 CIVIL NO. 08- 1315 (SEC) Page 16 2 money from the State. Ford Motor v. Dept. of Treasury, 323 U.S. 459 (1945); Will v. Michigan 3 Dept. of State Police, 491 U.S. 58, 71 (1989). Hence, a claim against a state official in her 4 official capacity for monetary relief is, in essence, a claim against the State. 5 That the Puerto Rico Police Department is an arm or alter ego of Puerto Rico has been 6 established by this district on numerous occasions.5 See Nieves-Cruz v. Comm. of P.R., 425 F. 7 Supp. 2d 188, 192 (D. P. R. 2006); López-Rosario v. Police Dept., 126 F. Supp. 2d 167, 1708 171 (D. P.R. 2000); Aguilar v. Comm. of P.R., 2006 WL 3000765 at *1; Suárez-Cestero v. 9 Pagán-Rosa, 996 F. Supp. 133, 142-43 (D.P. R. 1998). As such, this Court need not dwell on 10 this point. 11 Notwithstanding the above, herein Defendants were sued in their personal and individual 12 capacities as well, and not just in their official capacities. As such, Defendants request for 13 dismissal on this ground is DENIED. 14 Qualified Immunity 15 Defendants aver that under the doctrine of qualified immunity, they are immune from suit 16 for money damages in their personal capacity. Specifically, Toledo argues that he did not violate 17 Plaintiff s rights. He further contends that there are no specific factual allegations against him 18 and, as such, this Court should dismiss the claims against him in his personal capacity. 19 Qualified immunity is an affirmative defense against personal liability which may be 20 raised by state officials. Whitfield v. Meléndez-Rivera, 431 F. 3d 1, 6 (1 st Cir. 2005). It 21 provides a safe harbor for public officials acting under the color of state law who would 22 23 5 24 25 26 The Supreme Court requires a two-step analysis in order to determine whether a government institution is an arm or alter ego of the state and thus entitled to immunity under the Eleventh Amendment. Fresenius Med. Care, 322 F.3d at 65 (citing and discussing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994)). First, the court must analyze how the state has structured the government institution and, second, if the structural indicators point in different directions, the risk of the damages being paid from the public treasury should be assessed. Id. at 65-69. 1 CIVIL NO. 08- 1315 (SEC) Page 17 2 otherwise be liable under 42 U.S.C. §1983 for infringing the constitutional rights of private 3 parties. Id.; see also Anderson v. Creighton, 483 U.S. 635, 638 (1987). In determining whether 4 a defendant is entitled to qualified immunity, courts shall apply a three-part test: (1) whether the 5 plaintiff has alleged a constitutional violation; (2) whether the law was clearly established that 6 defendants action violated a constitutional right of the plaintiff; and (3) whether a reasonable 7 official would have understood that his actions violated a constitutional right. Rivera-Jiménez 8 v. Pierluisi, 362 F. 3d 87, 93 (1st Cir. 2004); Jennings, 499 F.3d at 11. 9 At this stage, this Court has concluded that Plaintiff has pled a viable Section 1983 cause 10 of action against Defendants. Therefore, this Court cannot conclude that Plaintiff has failed to 11 allege that Defendants violated his constitutional rights. Moreover, according to the facts of the 12 complaint, Toledo should have understood that his actions or omissions constituted a violation 13 of Plaintiff s constitutional rights. This Court finds that a reasonable official would not have 14 believed that the acts committed by the arresting police officers were lawful in light of clearly 15 established law. Moreover, any reasonable police officer is aware that it is unlawful to use 16 violence and excessive force when arresting an individual, especially when the Plaintiff did not 17 resist arrest. At this point, this Court cannot conclude, without making factual determinations, 18 that Toledo acted reasonably under the circumstances and is entitled to qualified immunity. It 19 remains to be seen whether his acts or omissions violated Plaintiff s constitutional rights. 20 Therefore, at this stage, this Court is unable to conclude that Toledo is entitled to qualified 21 immunity, and his motion to dismiss on this ground is DENIED. 22 Supplemental Law Claims 23 Finally, Defendants request that this Court dismiss the claims brought pursuant to it 24 supplemental jurisdiction because dismissal of said claims is proper once all federal claims have 25 26 1 CIVIL NO. 08- 1315 (SEC) Page 18 2 been disposed of. However, since Plaintiff s federal claims have not been dismissed, their 3 request is DENIED. 4 This Court reminds the parties that all representations to the court, submitted to the court 5 through pleadings, motions, and any other document, are bound by F ED. R. C IV. P. 11(b) s 6 mandate. Therefore, all claims, defenses, and other legal arguments that are unwarranted by 7 existing law, are, in fact, frivolous, and can be sanctioned by the courts. In the instant case, both 8 Plaintiffs and Defendants have set forth unwarranted legal arguments, insofar as the current case 9 law is extremely clear as to the applicable statutes in cases such as this one. The methodic 10 inclusion of numerous allegations and defenses is unjustified, and unnecessarily onerous for the 11 courts. Therefore, the parties shall take the foregoing into consideration when appearing before 12 this Court, or face the imposition of sanctions. 13 Conclusion 14 Based on the foregoing, Defendants motion to dismiss is GRANTED in part and 15 DENIED in part, and Plaintiff s Fifth, Eighth, Ninth and Fourteenth Amendment claims are 16 DISMISSED with prejudice. 17 IT IS SO ORDERED. 18 San Juan, Puerto Rico, this 23rd day of March, 2009. 19 20 21 22 23 24 25 26 S/Salvador E. Casellas Salvador E. Casellas U.S. District Judge

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