Lozano-Benitez v. Rivera-Ruiz et al, No. 3:2008cv01766 - Document 34 (D.P.R. 2009)

Court Description: OPINION AND ORDER granting in part and denying in part 22 MOTION to Dismiss/Lack of Jurisdiction. Signed by Judge Salvador E Casellas on 7/6/2009.(THD)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 5 OSCAR L. LOZANO BENITEZ (PRO SE), Plaintiff 6 v. 7 HERMENEGILDO RIVERA RUIZ, et als. 8 Civil No. 08-1766(SEC) Defendants 9 10 OPINION AND ORDER 11 Pending before the Court are Co-defendants Geralda Vázquez Quiñones ( Vázquez ), 12 José E. Rodríguez Cora ( Rodríguez ), and Hermenegildo Rivera Ruiz s ( Rivera ) motion to 13 dismiss (Docket # 22), and Plaintiff Oscar L. Lozano Benítez s ( Lozano ) opposition thereto 14 (Docket # 23). After reviewing the filings, and the applicable law, Co-defendants motion to 15 dismiss is GRANTED in part and DENIED in part. 16 Factual and Procedural Background 17 Plaintiff filed a Complaint and an Amendment to Complaint (Docket ## 1 & 19) against 18 Defendants seeking redress for the privation of rights suffered by him resulting from alleged 19 mistreatment by Puerto Rico Police Department officers Vázquez, Rodríguez, and Rivera. He 20 also prays for the nullification of three Commonwealth courts judgments in criminal cases 21 against him. Plaintiff alleges that these decisions were based on fabricated evidence and 22 unlawful procedures followed on [sic] the abuse of authority given to the Defendants by reason 23 of their employment as public officers. See Docket # 1, p. 3. Lozano premised his complaint 24 on 42 U.S.C. §§ 1983 and 1985, and 18 U.S.C. §§ 241 and 242, arguing that his civil rights 25 were deprived due to a conspiration wielded against him by state officials. 26 1 2 CIVIL NO. 08-1766 (SEC) Page 2 After several procedural incidents, Defendants filed the present motion (Docket # 22) to 3 dismiss the complaint on the following grounds: (1) Plaintiff s numerous claims are a matter of 4 state law; (2) federal courts lack jurisdiction to review final judgments of state courts, according 5 to the Rooker-Feldman doctrine 1 ; and (3) this Court cannot entertain Plaintiff s allegations under 6 the collateral estoppel and/or res judicata doctrines. See Docket 22, ¶ 7. 7 Because the pending motion is a motion to dismiss, this Court takes as true all well 8 pleaded facts contained in the complaint, and draws all reasonable inferences in Plaintiff s favor. 9 According to the complaint, on the night of July 12, 2007, after being instructed by police 10 to pull over, Lozano stopped his car at a shopping center parking lot in Guayama. The 11 intervening officer, Rodríguez, asked Lozano for his documents, while his partners, officers 12 Vázquez and Rivera, remained close by. In order to reach for his wallet, Lozano stepped out 13 of the car and, once outside, asked Rodríguez about the reason for the intervention. Rodríguez 14 stated that Lozano failed to lower his high intensity lights, and to follow orders from a police 15 officer while driving. A discussion between the two regarding the correct enforcement of the 16 Puerto Rico Transit and Vehicle Act, P.R. L AWS A NN. tit XI, § 5002 et seq. (commonly referred 17 to as Law 22,) ensued, and ended with Rodríguez threatening Lozano with arrest. Rodríguez 18 then allegedly yelled to officer Vázquez requesting reinforcement, stating that he was not going 19 to arrest this one alone. See Docket # 19, ¶ 6. Lozano, while showing to Rodríguez his 20 documents, asked him for his full name and badge number, to which the officer responded, I ll 21 give it to you in the police station once I arrest you. Id. When Lozano tried to get Vázquez s 22 name and badge number, he was allegedly assaulted from behind by members of the Tactical 23 Force Division. He claims that they hit him in the face, arms, ears, and feet, and tried to throw 24 him down against the pavement. Lozano also recounts that he experienced asphyxia when 25 1 26 This doctrine was created from two United States Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). 1 CIVIL NO. 08-1766 (SEC) Page 3 2 Tactical Division officers forcefully grabbed him by the neck. During the alleged attack, Lozano 3 pled twice to the officers that he would voluntarily go to the police station in order to stop the 4 violence against him. Notwithstanding, the officers did not stop. In Lozano s account of the 5 events, when he was finally arrested, the group of officers pushed him against another car, 6 Rodríguez twisted his right arm, tightened the handcuffs, lifted him by the arms, and let him fall 7 to the pavement face down. Once in this position, another officer placed a boot on his face so 8 he could not see, while one sat on his back, and yet another tightened even more the handcuffs 9 to the point that Lozano could not feel his fingers. 10 Already sitting inside a police patrol, Rivera took Lozano s car keys and drove his car to 11 the Salinas police station. Lozano alleges that he was confined in a cell until the early evening 12 of the next day, without ever receiving medical attention or a reading of the Miranda rights. 13 Officers also denied Lozano a telephone call to speak with his family. The only person that was 14 alerted of Lozano s whereabouts was his grandfather, Sergio Benítez Viera, when an officer who 15 identified himself as Rodríguez called him using Plaintiff s cell phone. 16 At the police station, Lozano alleges that he saw how the officers that intervened with him 17 and claimed to be injured by him waited for more than two (2) hours before leaving to a nearby 18 hospital to have their wounds checked. During this time, Plaintiff states that Rodríguez 19 conducted a search and seizure of his car and personal belongings, filed the transit infraction 20 tickets and finally went back to Guayama to Hospital Episcopal Cristo Redentor[,] were he 21 arrived alone to reencounter with officer Vázquez who arrived minutes earlier. See Docket # 22 19, ¶ 11. 23 Plaintiff also claims that on October 4, 2007, at around 6:15 a.m., Rodríguez and a 24 partner presented themselves at Lozano s workplace inspecting all the cars that were entering. 25 See Docket # 19, ¶14. This incident happened after a hearing in which said Co[-] defendant 26 gave incorrect information about his automobile. Id. 1 2 CIVIL NO. 08-1766 (SEC) Page 4 A last episode unfolded on January 27, 2009, when Rodríguez allegedly attempted to 3 falsely accuse Lozano again. However, the intervention was stopped due to the mediation of 4 Rodríguez s immediate supervisor who responsibly made an effort to understand the situation 5 and did not give merit to the accusations. See Docket # 23, ¶ 17(b)(i). Afterwards, Lozano filed 6 a new complaint (Complaint No. 2009-09-27-012) with the Police. Id. 7 Standard of Review 8 Fed. R. Civ. P. 12(b)(6) 9 To survive a Rule 12(b)(6) motion, Plaintiff s well-pleaded facts must possess enough 10 heft to show that [they are] entitled to relief. Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 11 2008).2 In evaluating whether Plaintiff is entitled to relief, the court must accept as true all of 12 his well-pleaded facts [and indulge] all reasonable inferences therefrom in the Plaintiff s 13 favor. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). The First Circuit has held 14 that dismissal for failure to state a claim is appropriate if the complaint fails to set forth factual 15 allegations, either direct or inferential, respecting each material element necessary to sustain 16 recovery under some actionable legal theory. Gagliardi v. Sullivan, 513 F.3d 301, 305(1st Cir. 17 2008). Courts may augment the facts in the complaint by reference to documents annexed to 18 the complaint or fairly incorporated into it, and matters susceptible to judicial notice. Id. at 30519 306. However, in judging the sufficiency of a complaint, courts must differentiate between 20 well-pleaded facts, on the one hand, and bald assertions, unsupportable conclusions, 21 periphrastic circumlocution, and the like, on the other hand; the former must be credited, but 22 the latter can safely be ignored. LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (citing 23 Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)); Buck v. American Airlines, Inc., 476 F. 3d 24 25 26 2 FED . R. CIV . P. 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to allow the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). 1 CIVIL NO. 08-1766 (SEC) Page 5 2 29, 33 (1st Cir. 2007); see also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). Thus, Plaintiff 3 must rely in more than unsupported conclusions or interpretations of law, as these will be 4 rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1 st Cir. 1997) (citing Gooley v. Mobil Oil Corp., 5 851 F.2d 513, 515 (1st Cir. 1988)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-1950 6 (2009) (stating that the doctrine that a court must be compelled to accept as true all of the 7 allegation contained in a complaint is inapplicable to legal conclusions ). 8 Therefore, even under the liberal pleading standards of Federal Rule of Civil Procedure 9 8, the Supreme Court has recently held that to survive a motion to dismiss, a complaint must 10 allege a plausible entitlement to relief. Rodríguez-Ortíz v. Margo Caribe, Inc., 490 F.3d 92 11 (1st Cir. 2007) (citing Twombly, 127 S. Ct. at 1965). Although complaints do not need detailed 12 factual allegations, the plausibility standard is not akin to a probability requirement, but it asks 13 for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 127 S. Ct. 14 at 1965; see also Iqbal, 129 S. Ct. at 1949 (2009). A plaintiff s obligation to provide the 15 grounds of his entitle[ment] to relief requires more than labels and conclusions, and a 16 formulaic recitation of the elements of a cause of action will not do. Twombly, 127 S. Ct. at 17 1965. That is, factual allegations must be enough to raise a right to relief above the speculative 18 level, on the assumption that all allegations in the complaint are true. Parker v. Hurley, 514 F. 19 3d 87, 95 (1st Cir. 2008). As the following analysis will show, Plaintiff has set forth a complaint 20 upon which relief can be granted. 21 Applicable Law and Analysis 22 In light of the above mentioned facts, and the applicable standard of review, this Court 23 examines the claims brought up by Plaintiff on the following grounds: (1) if Co-defendants 24 possess immunity against § 1983 claims; (2) whether there was a state-sponsored conspiration; 25 and (3) if the Commonwealth s decisions can be nullified. 26 1 2 CIVIL NO. 08-1766 (SEC) Page 6 This Court also underscores the particularity of the present case in which Plaintiff comes 3 forth pro se. Therefore, it takes into account the liberal pleading standards applicable to 4 complaints filed by pro se plaintiffs. Watson v. Caton, 984 F.2d 537, 539 (1st Cir. 1993) 5 (citing Denton v. Hernandez, 504 U.S. 25, (1992)). Of course, the above statement does not 6 allow this Court to conjure up all conceivable unpled allegations to save a legally baseless 7 complaint. See McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979). 8 Plaintiff s § 1983 claims 9 Contrary to Defendants Motion to Dismiss (Docket # 22, ¶ 6), the claims made by 10 Lozano fall under this Court s jurisdiction. Section 1983 in itself does not confer substantive 11 rights, but provides a venue for vindicating federal rights elsewhere conferred. See Graham v. 12 Connor, 490 U.S. 386, 393-394 (1989). In order to establish liability under § 1983, a plaintiff 13 must first show that the conduct complained of was committed by a person acting under color 14 of state law. Gutiérrez Rodríguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989); Saugus v. 15 Voutour, 474 U.S. 1100 (1986); Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985). 16 Second, a plaintiff must show that the defendant s conduct deprived him of his rights, 17 privileges or immunities secured by the Constitution or laws of the United States. See Gutiérrez 18 Rodríguez, 882 F.2d at 559. This second prong has two aspects: (1) an actual deprivation of the 19 plaintiff s federally protected rights, and (2) a causal connection between the defendant s 20 conduct and the deprivation of the plaintiff s federal rights. See Gutiérrez Rodríguez, 882 F.2d 21 at 559; Voutour, 761 F.2d at 819. In turn, this second element of causal connection requires that 22 the plaintiff establish for each defendant: 1) that the defendant s own actions deprived the 23 plaintiff of his/her protected rights3 , and 2) that the defendant s conduct was intentional, 24 Simmons v. Dickhaut, 804 F.2d 182, 185 (1st Cir. 1986), grossly negligent, or amounted to a 25 3 26 See Monell v. Department of Social Services, 436 U.S. 658, 694 n. 58 (1978); Gutiérrez Rodríguez, 882 F.2d at 562; and Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir. 1989). 1 CIVIL NO. 08-1766 (SEC) Page 7 2 reckless or callous indifference to the plaintiff s constitutional rights. See Gutiérrez Rodríguez, 3 882 F.2d at 562. 4 Plaintiff avers that Defendants are liable under §1983 because they, as police officers, 5 participated in, and witnessed Lozano s arrest. In the particular case of Rodríguez, he used 6 excessive force (i.e. violently twisting his arm and causing him to fall on the road) against 7 Lozano, and permitted the aggression unleashed on Lozano by the Tactical Force Division. 8 During these instances, Rivera and Vázquez did nothing to stop this conduct. Given these facts, 9 it is clear that the holding of Graham, 490 U.S. 386, applies to the issue at hand. In this case, 10 the U.S. Supreme Court stated that: 11 12 13 all claims [in which] law enforcement officers have used excessive force -deadly or not- in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard, rather than under a substantive due process approach. 14 Graham,490 U.S. at 395. 15 Therefore, we must examine Lozano s claim under § 1983 in the light of the Fourth Amendment. 16 The U.S. Constitution s Fourth Amendment reads: 17 The right of the people to be secure in their persons [...] and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 18 19 20 U.S. C ONST. amend. IV. 21 As stated by Plaintiff, his claims arise from the alleged use of excessive force undertaken 22 by the police officers who supposedly stopped, arrested, and detained Lozano without reading 23 him his Miranda rights, or providing any type of medical assistance, and unlawfully searched 24 his car. The Fourth Amendment provides an explicit textual source of constitutional protection 25 against this sort of physically intrusive governmental conduct [and] must be the guide for 26 analyzing these claims. Graham, 490 U.S. at 395 (1989). 1 2 CIVIL NO. 08-1766 (SEC) Page 8 In order to establish a Fourth Amendment violation based on excessive force, a plaintiff 3 must show that the defendant officer employed force that was unreasonable under the 4 circumstances. Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2008); see also Graham, 490 U.S. at 5 397. Whether the force used was fair or unfair must be judged from the perspective of a 6 reasonable officer on the scene. Graham, 490 U.S. at 396; see also Tavárez-Guerrero v. 7 Toledo-Dávila, 573 F. Supp.2d 507, 514 (D.P.R. 2008). The unreasonableness inquiry is 8 objective, and should be determined in light of the facts and circumstances confronting [the 9 officer], without regard to their underlying intent or motivation. Graham 490 U.S. at 397. 10 Moreover, the facts and circumstances of each particular case, including the severity of the 11 crime at issue, whether the suspect poses an immediate threat to safety of the officers or others, 12 and whether the suspect poses an immediate threat to the safety of the officers or others, and 13 whether he is actively resisting arrest or attempting to evade arrest by flight, are of specific 14 relevance. Id. at 396. Furthermore, this District has held that [t]he use of excessive force or 15 restraints that cause unnecessary pain [...] are unreasonable actions. Tavárez-Guerrero 573 F. 16 Supp.2d at 514. See also Arizona v. Gant, 129 S. Ct. 1710, 1723 (2009) (holding that police 17 incurs in an unreasonable search of a vehicle when there are no plausible links to believe that 18 the vehicle contains evidence of the offense of arrest). 19 Plaintiffs claims under § 1983 are tightly grounded. Lozano alleges that he was stopped 20 without probable cause despite following the officer s orders, suffered an unwarranted physical 21 aggression, and was denied medical attention, and the appropriate reading of his rights. 22 Therefore, this Court concludes that Plaintiff pled a plausible entitlement to relief against 23 Defendants under § 1983, and the Fourth Amendment. As such, Defendants motion to dismiss 24 on these grounds is DENIED. 25 26 1 CIVIL NO. 08-1766 (SEC) Page 9 2 Plaintiff s § 1985 claim 3 Lozano also raises a civil conspiracy claim under 42 U.S.C. § 1985 against Defendants 4 who allegedly violated his civil rights during the unlawful arrest and detention, and conspired 5 against him by fabricating accusations. It is difficult to discern which subsection of § 1985 6 supports Lozano s claim due to the fact that he does not address it in the complaint, however, 7 after examining both, the section and his allegations, this Court contends that the only applicable 8 subsections are (2) and (3).4 9 Section 1985 dates back to the enactment by Congress of the Thirteenth Amendment to 10 the U.S. Constitution, as an enforcement vehicle in order to provide black citizens equal 11 protection of the laws, and to rectify preexisting moral and physical inhumanities. Jones v. 12 Alfred H. Mayer Co., 392 U.S. 409 (1968); see also Heyn v. Board of Sup rs of Louisiana State 13 University, 417 S. Supp. 603 (E.D.La. 1976). This original purpose explains why § 1985 was 14 not intended to apply to all tortious interferences with rights of others, but only to those which 15 are founded upon some class-based or racial invidiously discriminatory intent. Maida v. Andros, 16 710 F. Supp. 524 (D.N.J.1988); see also Puentes v. Sullivan, 425 F. Supp. 249 (W.D.Tex.1977); 17 Brainerd v. Potratz, 421 F. Supp.836 (N.D.Ill.1976); Western Telecasters, Inc. v. California 18 Federation of Labor, AFL-CIO, 415 F. Supp. 30 (S.D.Cal.1976). 19 Under § 1985 (2), the act to obstruct justice with the intent to deny equal protection of the 20 laws is prohibited. 42 U.S.C. § 1985 (2). A claim under this subsection must include allegations 21 that the conspiracy involved racial, or [...] otherwise class-based, invidiously discriminatory 22 23 24 25 26 4 The remaining two categories, however, encompass underlying activity that is not institutionally linked to federal interests and that is usually of primary state concern. The second part of § 1985(2) applies to conspiracies to obstruct the course of justice in state courts, and the first part of § 1985(3) provides a cause of action against two or more persons who conspire or go in disguise on the highway or on the premises of another. (footnote omitted). Each of these portions of the statute contains language requiring that the conspirators' actions be motivated by an intent to deprive their victims of the equal protection of the laws. Kush v. Rutledge, 460 U.S. 719, 725 (1983). 1 CIVIL NO. 08-1766 (SEC) Page 10 2 animus. Davis v. Township of Hillside, 190 F.3d 167, 171 (3d Cir.1999) (quoting Kush, 460 3 U.S. at 725.). Lozano, in his account of the events, has not shown a racial discriminatory 4 animus directed against him. 5 To state a cause of action under § 1985 (3), plaintiff must show: (1) a conspiracy, (2) a 6 set purpose for, either directly or indirectly, depriving any person or class of persons the equal 7 protection of the laws, or of equal privileges and immunities under the laws, (3) an act in 8 furtherance of said conspiracy, and (4) a resulting individual either injured in his person or 9 property or deprived of any right of privilege of citizenship. Griffin v. Breckenridge, 403 U.S. 10 88, 102-103 (1971); see also United Broth. of Carpenters and Joiners of America, Local 610, 11 AFL-CIO v. Scott, 463 U.S. 825, 829 (1983); Cruz Velázquez v. Rodríguez Quiñones, 550 F. 12 Supp.2d 243, 251 (D.P.R. 2007) (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)). The 13 facts set forth by Lozano in his complaint (Docket ## 1 & 19) do not state, nor even suggest, any 14 of these four (4) elements. 15 This Court does not deny pro se litigants the opportunity to state a civil rights claim 16 because of technicalities. Kauffman v. Moss, 420 F.2d 1270, 1276 (3rd Cir. 1970). However, 17 the law on this point is clear when it states that in order to uphold a conspiracy plead under these 18 subsections, the plaintiff must be specific in the facts presented in the allegation. Rossi-Cortés 19 v. Toledo-Rivera, 540 F. Supp.2d 318, 328 (D.P.R. 2008) (citing Rolón v. Rafael Rosario & 20 Assocs., 450 F. Supp.2d 153, 159 (D.P.R. 2006)); see also Soto v. Schembri, 960 F. Supp. 751 21 (S.D.N.Y.1997). Accordingly, a plaintiff must: (1) expressly claim that an agreement was 22 formed between conspirators, or (2) make averments of communication, consultation, 23 cooperation, or command from which such an agreement can be inferred. Rossi-Cortés, 540 24 F.Supp.2d at 328 (citing Rolón, 450 F. Supp.2d at 159-160). 25 Lozano fails to relate specific facts and allegations that this Court could consider to 26 examine whether the police officers actions were taken or staged as part of a conspiration to 1 CIVIL NO. 08-1766 (SEC) Page 11 2 violate his civil rights. If a complaint fails to elaborate or substantiate bald claims that the 3 defendants conspired with one another, dismissal of the §1985 claims is warranted. Rossi4 Cortés, 540 F. Supp.2d at 328 (quoting Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir.1980)). 5 Consequently, as the legal conclusions presented by Lozano on this count are insufficient to 6 allege a conspiracy for purposes of this subsection, his claims are hereby DISMISSED with 7 prejudice. 8 Eleventh Amendment Immunity of officers Rodríguez, Vázquez, and Ruiz 9 Plaintiff s claims arise from alleged violations committed by Defendants in their official 10 capacity as officers of the Police Department, an arm of the Commonwealth of Puerto Rico. 11 This situation posits an unavoidable question of immunity under the Eleventh Amendent to the 12 United States Constitution, which states: 13 14 [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. 15 U.S. C ONST. amend. XI.5 16 Although the Eleventh Amendment seems to apply only to suits against a State by citizens 17 of another State, the Supreme Court has consistently extended the scope of this Amendment to 18 suits by citizens against their own State. See Board of Trustees of the Univ. of Ala. v. Garrett, 19 531 U.S. 356, 362 (2001); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000); 20 Hans v. Louisiana, 134 U.S. 1, 15 (1890). The Commonwealth of Puerto Rico is not a state, but 21 it enjoys the protection of the Eleventh Amendment. See Jusino-Mercado v. Commonwealth 22 of Puerto Rico, 214 F.3d 34, 37 (1st Cir. 2000); Ortiz Feliciano v. Toledo-Dávila, 175 F.3d 37, 23 24 5 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. 08-1766 (SEC) Page 12 2 39 (1st Cir. 1999); Futura Development v. Estado Libre Asociado, 144 F.3d 7,12-13 (1st Cir. 3 1998); Ramírez v. Puerto Rico Fire Servs., 715 F.2d 694, 697 (1st Cir. 1984). 4 The Eleventh Amendment bar extends to governmental instrumentalities which are an 5 arm or alter ego of the State. See Ainsworth Aristocrat Int l Pty. Ltd. v. Tourism Co. of P.R., 6 818 F.2d. 1034, 1036 (1st Cir. 1987); Ochoa Realty Corp. v. Faría, 618 F. Supp. 434, 435 7 (D.P.R. 1985); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Mt. Healthy 8 City Sch. Dist. v. Doyle, 429 U.S. 274, 280-281 (1977); Ursulich v. P.R. Nat l Guard, 384 F. 9 Supp. 736, 737-38 (D.P.R. 1974). It also protects state officials in their official capacity. The 10 rationale behind this extension of the Eleventh Amendment protection is that a claim against a 11 state official in his or her official capacity for monetary relief is an action for the recovery of 12 money from the State. Ford Motor v. Dept. of Treasury, 323 U.S. 459 (1945); Will v. 13 MichiganDept. of State Police, 491 U.S. 58, 71 (1989). Hence, a claim against a state official 14 in her official capacity for monetary relief is, in essence, a claim against the State. 15 However, Eleventh Amendment immunity is not absolute and may be waived by the state 16 or stripped away by Congress. Metcalf & Eddy v. P.R.A.S.A., 991 F.2d 935, 938 (1st Cir. 17 1993). There are four (4) circumstances into which Eleventh Amendment protection unravels: 18 (1) when a state consents to be sued in a federal forum; (2) when a state waives its own 19 immunity by statute or the like; (3) when Congress abrogates state immunity ( so long as it 20 speaks clearly and acts in furtherance of particular powers ); and (4) when, provided that 21 circumstances allow, other constitutional imperatives take precedence over the Eleventh 22 Amendment s protection. Id. at 938 (citations omitted). Despite number two above, the First 23 Circuit has held that the fact that a state has waived its immunity to be sued does not 24 automatically mean that it waived its immunity in federal court. See Díaz-Fonseca 25 v.Commonwealth of Puerto Rico, 451 F. 3d 13, 33 (1st Cir. 2006) (holding that although the 26 1 CIVIL NO. 08-1766 (SEC) Page 13 2 Commonwealth waived its immunity to be sued in certain circumstances in its own courts, it did 3 not waive its immunity to be sued in federal court). 4 That the Puerto Rico Police Department is an arm or alter ego of Puerto Rico has been 5 established by this district on numerous occasions.6 See, e.g., Nieves-Cruz v. Comm. of P.R., 6 425 F. Supp. 2d 188, 192 (D. P. R. 2006); López-Rosario v. Police Dept., 126 F. Supp. 2d 167, 7 170-171 (D.P.R. 2000); Aguilar v. Comm. of P.R., 2006 WL 3000765 at *1; Suárez-Cestero 8 v.Pagán-Rosa, 996 F. Supp. 133, 142-43 (D.P. R. 1998). Therefore, this Court need not dwell 9 on this point. As such, Plaintiff s claims against Defendants in their official capacity are 10 DISMISSED with prejudice. 11 Qualified Immunity of officers Rodríguez, Vázquez, and Ruiz 12 Qualified immunity is an affirmative defense against personal liability which may be 13 raised by state officials. Whitfield v. Meléndez-Rivera, 431 F. 3d 1, 6 (1stCir. 2005). It 14 provides a safe harbor for public officials acting under the color of state law who would 15 otherwise be liable under 42 U.S.C. §1983 for infringing the constitutional rights of private 16 parties. Id.; see also Anderson v. Creighton, 483 U.S. 635, 638 (1987). In determining whether 17 a defendant is entitled to qualified immunity, courts shall apply a three-part test: (1) whether 18 the plaintiff has alleged a constitutional violation; (2) whether the law clearly established that 19 defendant s action violated a constitutional right of the plaintiff; and (3) whether a reasonable 20 official would have understood that his actions violated a constitutional right. Rivera-Jiménez 21 v. Pierluisi, 362 F. 3d 87, 93 (1st Cir. 2004); Jennings, 499 F.3d at 11. 22 23 6 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 2 CIVIL NO. 08-1766 (SEC) Page 14 At this stage, this Court has concluded that Lozano pled a viable § 1983 cause of action 3 against Defendants. Therefore, this Court cannot conclude that Lozano has failed to allege that 4 Defendants violated his constitutional rights. Moreover, according to the facts of the complaint, 5 Rodríguez, Vázquez, and Rivera should have understood that their actions or omissions 6 constituted a violation of Plaintiff s constitutional rights. This Court finds that a reasonable 7 official would not have believed that the acts allegedly committed by this trio of police officers 8 were lawful, in light of clearly established law. Moreover, any reasonable police officer is aware 9 that it is unlawful to use violence and excessive force when stopping and arresting an individual, 10 especially when, as Lozano alleges, he did not show a suspicious behavior, and only questioned 11 officer Rodríguez about the infraction for which he was detained. See Docket # 19, ¶ 6. At this 12 point, this Court cannot conclude, without making factual determinations, that Rodríguez, 13 Vázquez, and Rivera acted reasonably under the circumstances, and are entitled to qualified 14 immunity. Therefore, their motion to dismiss on this ground is DENIED. 15 Plaintiff s request to nullify State Court decisions 16 Lozano also attempts to nullify three Commonwealth court decisions on the grounds that 17 the accusations, and verdicts served were based on fabricated evidence and unlawful 18 procedures. See Docket #1, p.3. In this respect, the law does not favor the relief he is seeking, 19 since the doctrine denies federal district courts from reviewing final judgments of state courts, 20 a power exclusively conferred to the Supreme Court of the United States. Davison, M.D. v. 21 Government of Puerto Rico-Puerto Rico Firefighters Corps, 471 F.3d 220 (1st Cir. 2006). The 22 proper forum for challenging an unlawful state court ruling is the United States Supreme Court, 23 on appeal from the highest state court s final judgment. Id. at 223. 24 The Supreme Court, in Exxon Mobil Corp. V. Saudi Basic Industries Corp., 544 U.S. 280 25 (2005), held that the lower courts cannot rely on Rooker-Feldman to dismiss a case if the 26 plaintiff alleges a constitutional violation by an adverse party independent of the injury caused 1 CIVIL NO. 08-1766 (SEC) Page 15 2 by the state court judgment. Id. at 284; see also Todd v. Weltman, Weinberg & Reis Co., 434 3 F.3d 432, 437 (6th Cir. 2006) (reiterating that Rooker-Feldman does not apply when the Plaintiff 4 complains of a wrong independent of injuries caused by a related state court judgment). 5 According to Davison, M.D., 471 F.3d at 223, the Rooker-Feldman squarely applies when a 6 plaintiff insists that [the district court] must review and reject a final state court judgment. 7 Additionally, this Court also recognizes that under the well-known doctrines collateral 8 estoppel and res judicata, it cannot entertain Plaintiff s allegations on this matter. Doing so 9 would necessarily mean changing what has already been decided by a court with jurisdiction, and 10 whose judgment is already final and unappealable. As such, Plaintiff s request to nullify state 11 court decisions is hereby DENIED. 12 Conclusion: 13 In light of the above discussion, Co-defendants motion to dismiss (Docket # 22) is 14 GRANTED in part and DENIED in part. Partial judgment will be entered accordingly. 15 IT IS SO ORDERED. 16 In San Juan, Puerto Rico, this 6th day of July, 2009. 17 18 19 20 21 22 23 24 25 26 S/Salvador E. Casellas Salvador E. Casellas U.S. District Judge

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