Delgado-Sanchez et al v. Toledo-Davila et al, No. 3:2007cv01709 - Document 110 (D.P.R. 2009)

Court Description: OPINION AND ORDER. GRANTED 83 Amended MOTION for Summary Judgment and Memorandum filed by Diego Figueroa; MOOT 91 MOTION to Strike Plaintiffs' Exhibits; MOOT 102 Second MOTION to Strike Plaintiffs' exhibits in opposition to motion for Summary Judgment; MOOT 106 MOTION to Strike. The documents Figueroa sought to exclude were not considered by this Court upon ruling on the motion for summary judgment. As such, all motions on this issue are moot. Signed by Judge Salvador E Casellas.(LB)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 WENDEL DELGADO SANCHEZ, et al Plaintiffs v. 5 Civil No. 07-1709 (SEC) 6 7 PEDRO TOLEDO DAVILA, et al Defendants 8 9 10 11 OPINION AND ORDER Pending before this Court is Defendant Diego Figueroa Torres ( Defendant or Figueroa ) Motion for Summary Judgment (Dockets # 83), and Plaintiff Wendel Delgado 12 Sánchez s ( Plaintiff or Wendel ) opposition thereto (Docket ## 87 and 89). After reviewing 13 the filings, and the applicable law, Figueroa s motion is GRANTED. 14 Factual and Procedural Background 15 On August 9, 2006, Plaintiffs Wendel and his brother, Dwight Delgado Sánchez, were 16 arrested and allegedly assaulted by police, and thereafter confined for over 12 hours, as a result 17 of an investigation on the part of the Police of Puerto Rico regarding an alleged drug kingpin. 18 Wendel was a member of the police force when this incident allegedly took place. During his 19 time as a police officer, he was also a member of Frente Unido de Policías Organizados 20 21 ( FUPO ). In June 2007, FUPO stopped providing legal services to Wendel during his administrative hearing. As a result, on December 26, 2007, Wendel brought this suit against 22 Figueroa, president of FUPO, alleging he acted in retaliation by denying him further legal 23 24 25 26 counsel. Docket # 12. Specifically, Wendel alleges that Figueroa retaliated against him because the administrative proceedings involved other police officers which were allegedly friends of Figueroa. 1 Civil No. 07-1709 (SEC) 2 2 Standard of Review 3 F ED. R. C IV. P. 56 4 The Court may grant a motion for summary judgment when the pleadings, depositions, 5 6 answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment 7 as a matter of law. F ED.R.C IV.P. 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 8 242, 248(1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1st Cir. 2005). 9 In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., 10 Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines 11 the record in the light most favorable to the nonmovant, and indulges all reasonable 12 inferences in that party s favor. Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st 13 Cir. 1994). 14 15 Once the movant has averred that there is an absence of evidence to support the nonmoving party s case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 16 (1st Cir. 1990) (citations omitted). A factual issue is genuine if it may reasonably be 17 resolved in favor of either party and, therefore, requires the finder of fact to make a choice 18 between the parties differing versions of the truth at trial. DePoutout v. Raffaelly, 424 F.3d 19 112, 116 (1st Cir. 2005)(quoting Garside, 895 F.2d at 48 (1st Cir. 1990)); see also SEC v. 20 Ficken, 546 F.3d 45, 51 (1st Cir. 2008). 21 In order to defeat summary judgment, the opposing party may not rest on conclusory 22 allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 23 407 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 24 5, 8 (1st Cir. 1990). Nor will effusive rhetoric and optimistic surmise suffice to establish 25 a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997). Once 26 the party moving for summary judgment has established an absence of material facts in dispute, 1 Civil No. 07-1709 (SEC) 3 2 and that he or she is entitled to judgment as a matter of law, the party opposing summary 3 judgment must present definite, competent evidence to rebut the motion. Méndez-Laboy v. 4 Abbot Lab., 424 F.3d 35, 37 (1st Cir. 2005) (quoting from Maldonado-Denis v. Castillo 5 6 Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994). The non-movant must produce specific facts, in suitable evidentiary form sufficient to limn a trial-worthy issue. . . .Failure to do so allows 7 the summary judgment engine to operate at full throttle. Id.; see also Kelly v. United States, 8 924 F.2d 355, 358 (1st Cir. 1991) (warning that the decision to sit idly by and allow the 9 summary judgment proponent to configure the record is likely to prove fraught with 10 consequence ); Medina-Muñoz, 896 F.2d at 8 (quoting Mack v. Great Atl. & Pac. Tea Co., 871 11 F.2d 179, 181 (1st Cir. 1989)) (holding that [t]he evidence illustrating the factual controversy 12 cannot be conjectural or problematic; it must have substance in the sense that it limns differing 13 versions of the truth which a factfinder must resolve. ). 14 15 Applicable Law and Analysis On May 21, 2009, Figueroa filed this motion for summary judgment. Docket # 83. Because the instant motion is for summary judgment, the moving party must comply with the 16 requirements of Local Rule 56, and file a statement of facts, set forth in numbered paragraphs, 17 and supported by record citations. See Local Rule 56(b). In turn, when confronted with a motion 18 19 for summary judgment, the opposing party must: 22 [s]ubmit with its opposition a separate, short, and concise statement of material facts. The opposition shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party s statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule. The opposing statement may contain in a separate section additional facts, set forth in separate numbered paragraphs and supported by a record citation...Local Rule 56(c). 23 Local Rule 56(e) further provides that [a]n assertion of fact set forth in a statement of material 24 facts shall be followed by a citation to the specific page or paragraph of identified record 25 material supporting the assertion. Moreover, a court may disregard any statement of material 26 fact not supported by a specific record citation to record material properly considered on 20 21 1 Civil No. 07-1709 (SEC) 4 2 summary judgment. Local Rule 56(e). Local Rule 56(e)(2) further states that, if the opposing 3 party does not respond to a motion for summary judgment, summary judgment should, if 4 appropriate, be entered against that party. When a party opposing summary judgment fails to 5 6 act in accordance with the rigors that such a rule imposes, a district court is free, in the exercise of its sound discretion, to accept the moving party s facts as stated. Cabán-Hernández v. Philip 7 Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007). These rules are meant to ease the district 8 court s operose task and to prevent parties from unfairly shifting the burdens of litigation to the 9 court. Id. at 8. The First Circuit has held that when the parties ignore the Local Rule, they do 10 so at their own peril. See Ruiz-Rivera v. Riley, 209 F. 3d 24, 28 (1st Cir. 2000). 11 As per Local Rule 56, Figueroa filed a Motion for Summary Judgment, and an 12 accompanying Statement of Uncontested Material Facts (Defendant s SUMF). Docket # 83. 13 Thereafter Plaintiff filed a memorandum in opposition to Figueroa s motion for summary 14 judgment, and a Statement of Uncontested Material Facts (Plaintiff s SUMF) in support thereof. 15 Dockets ## 87 and 89. However, both parties failed to properly oppose each other s proposed statements of fact. Insofar as both Defendant and Plaintiffs failed to admit, deny, or qualify the 16 opposing party s proposed uncontested facts, this Court will deem as admitted those facts which 17 are supported by the record. 18 19 The relevant uncontested facts are as follows. Coreano was Plaintiff s supervisor. Plaintiff s SUMF ¶ 4; PTO at Docket # 105, p. 56. Figueroa is the President of FUPO, and is 20 not a public official. Plaintiff s SUMF ¶ 3; PTO at Docket # 105, p. 56. FUPO is a private, non- 21 governmental organization. Defendant s SUMF ¶ 5. At some point, Plaintiff was a member of 22 FUPO. Plaintiff s SUMF ¶ 2; PTO at Docket # 105, p. 55. Per his deposition testimony, 23 Plaintiff has no personal knowledge that a meeting between Figueroa and Coreano took place. 24 Defendant s SUMF ¶ 4. Plaintiff did not show that Figueroa and Coreano communicated to 25 26 1 Civil No. 07-1709 (SEC) 5 2 deprive him of his rights. Defendant s SUMF ¶ 11.1 3 Subject Matter Jurisdiction 4 In his motion for summary judgment, Figueroa argues that this Court lacks subject matter 5 6 jurisdiction, therefore, dismissal of the claims against him is warranted. Specifically, Figueroa avers that Plaintiff s claim amounts only to a breach of contract claim, instead of a violation of 7 civil rights under § 1983. In opposition, Plaintiff contends that Coreano s involvement in the 8 alleged retaliatory action, in conjunction with Figueroa, is sufficient to prove the necessary 9 person acting under the color of state law or state action element required under § 1983. 10 Although Figueroa s claim regarding lack of jurisdiction is not extensively argued in his motion, 11 the Supreme Court has held that, in order for the Court to hear a case, subject matter jurisdiction 12 must be established as a threshold matter. Steel Co. v. Citizens for a Better Environment, 523 13 U.S. 83, 94 (1998). Therefore this Court must first address any jurisdictional issue. 14 15 Subject matter jurisdiction is granted to federal courts by either 28 U.S.C. § 1331, which provides for [f]ederal-question jurisdiction, [or] § 1332, which provides for [d]iversity of citizenship jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). As to federal 16 question subject matter jurisdiction, [a] plaintiff properly invokes § 1331 jurisdiction when she 17 pleads a colorable claim arising under the Federal Constitution or laws. Id.; see Bell v. Hood, 18 19 327 U.S. 678, 681-685 (1946). If a federal court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety. Id. at 502. Insofar as Plaintiffs 20 claims arise under 42 U.S.C. § 1983, this Court must first address whether Plaintiff has properly 21 invoked § 1331 federal question subject matter jurisdiction by pleading a valid § 1983 claim. 22 23 24 25 26 1 Upon reviewing the record, this Court finds that ¶¶ 3-5, and 11 (incorrectly numbered as 10) of Defendant s SUMF are properly supported by the record. After examining Plaintiff s SUMF, this Court notes that although ¶¶ 1-4 are not property cited by Plaintiff, the facts set forth therein appear as uncontested facts in the parties Joint Proposed Pretrial Order ( PTO )(Docket # 105), and as such, they will be considered by this Court upon ruling on the instant motion. These are the only relevant facts as to the issue of subject-matter jurisdiction. 1 Civil No. 07-1709 (SEC) 6 2 In order for a plaintiff to have a viable claim under § 1983, he must show (1) that the 3 conduct complained of was committed by a person acting under color of state law; and (2) that 4 this conduct deprived the plaintiff of his rights, privileges, or immunities secured by the 5 6 Constitution or laws of the United States. See Gutiérrez v. Cartagena, 882 F. 2d 553, 559 (1 st Cir. 1989). The First Circuit has held that Section 1983 s requirement of action under color 7 of state law is identical to the state action requirement of the Fourteenth Amendment. 8 Alberto San, Inc. v. Consejo De Titulares Del Condominio San Alberto, 522 F.3d 1, 3, n. 1 (1 st 9 Cir. 2008). The state action requirement has two components: [f]irst, the deprivation must be 10 caused by the exercise of some right or privilege created by the State or by a rule of conduct 11 imposed by the state . . . Second, the party charged with the deprivation must be a person who 12 may fairly be said to be a state actor. Id. at 4. 13 A private party can be fairly characterized as a state actor if the circumstances of the 14 case meet one of three tests: the public function test, the joint action/nexus test, or the state 15 compulsion test. Alberto San, 522 F.3d at 4. The state compulsion test provides that a private party is fairly characterized as a state actor when the state has exercised coercive power or has 16 provided such significant encouragement, either over or covert, that the [challenged conduct] 17 must in law be deemed to be that of the State. Id.; see also Estades-Negroni v. CPC Hosp. San 18 19 Juan Capestrano, 412 F.3d 1, 5 (2005) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). Plaintiff argues that, although Figueroa is a private party, Coreano exercised coercive power and 20 encouragement him to retaliate against Wendel, by removing the legal counsel provided via 21 FUPO. As such, Plaintiffs allege that Figueroa s actions joint actions should be deemed to be 22 those of the State. However, this Court disagrees. After reviewing the record, this Court notes 23 that Plaintiff s knowledge of alleged communications between Figueroa and Coreano is based 24 solely on hearsay. As previously held, Plaintiff fails to provide evidence that such a meeting 25 took place. Instead, he seeks to substantiate said assertion with the fact that a third party told 26 him about it. This is insufficient to evince that the State, acting through Coreano, exercised 1 Civil No. 07-1709 (SEC) 7 2 coercive power, or provided significant encouragement to Figueroa. As a result, Figueroa 3 cannot be fairly characterized as a state actor under the state compulsion test. 4 Plaintiff also argues that Figueroa should be characterized as a state actor under the joint 5 6 action/nexus test because he felt obligated to be loyal to his friend, Coreano. The nexus/joint action test provides that a private party is fairly characterized as a state actor where an 7 examination of the totality of the circumstances reveals that the state has so far insinuated itself 8 into a position of interdependence with the [private party] that it was a joining participant in the 9 [challenged activity]. Estades-Negroni, 412 at 5 (quoting Bass v. Parkwood Hosp., 180 F.3d 10 234, 242 (5th Cir. 1999)); Alberto San, 522 F.3d at 4. As previously noted, Plaintiff has no 11 personal knowledge of an alleged communication between Figueroa and Coreano. As such, the 12 record is devoid of evidence showing that the State has so far insinuated itself into a position 13 of interdependence with the [private party] that it was a joining participant in the [challenged 14 activity]. Bass., 180 F.3d at 242 . Moreover, the simple fact that Coreano was Figueroa s friend 15 is insufficient to conclude that Figueroa actions towards Plaintiffs were based upon his loyalty to Coreano. Furthermore, even if Figueroa acted out of loyalty to Coreano, this does not entail 16 any action, participation, or involvement to the point of interdependence by Coreano. Thus 17 Plaintiff s argument on this front also fails. 18 19 Finally, the public function test provides that a private party is fairly characterized as a state actor if the plaintiff establishes that, in engaging in the challenged conduct, the private 20 party performed a public function that has been traditionally the exclusive prerogative of the 21 State. Estades-Negroni, 412 at 5 (quoting Blum, 457 U.S. at 1005); Alberto San, 522 F.3d at 22 4. Plaintiff argues that Figueroa should be characterized as a state actor because he fails to draw 23 the line between his functions as President of FUPO, and his duties and responsibilities as a 24 police officer. Nevertheless, when Figueroa withdrew Plaintiff s legal representation, he was 25 acting in his capacity as president of FUPO, and not as a police officer. Moreover, Figueroa did 26 not perform a traditional public function in his capacity as the president of FUPO. The conferral 1 Civil No. 07-1709 (SEC) 8 2 or denial of legal representation by FUPO, a non-governmental, private organization, is not a 3 public function that has been traditionally the exclusive prerogative of the State. Blum, 457 4 5 6 7 U.S. at 1005.2 The absence of any joint participation by state officials in a private defendants conduct precludes Section 1983 applicability. See Alberto San, 522 F.3d at 4. Thus Plaintiff s Section 1983 claims against Figueroa are DISMISSED with prejudice. 8 Supplemental State Law Claims 9 Having dismissed Plaintiffs federal law claims against Figueroa, Plaintiffs state law 10 claims against him are also dismissed. See Newman v. Burgin, 930 F.2d 955, 963 (1 st Cir. 1991) 11 (holding that [t]he power of a federal court to hear and to determine sate-law claims in non- 12 diversity cases depends upon the presence of at least one substantial federal claim in the 13 lawsuit. ). 14 15 Conclusion Based on the foregoing, this Court finds that Plaintiff has failed to satisfy the first element of a viable § 1983 claim, that is, that the conduct complained of was committed by a 16 person acting under color of state law. Absent a valid claim arising under the Federal 17 Constitution or laws, this Court lacks subject matter jurisdiction. As stated above, when a 18 19 20 federal court concludes that it lacks subject-matter jurisdiction, the complaint must be dismissed in its entirety. Arbaugh, 546 at 502. Thus dismissal of Plaintiff s claims against Figueroa is warranted, and Figueroa s motion for summary judgement is GRANTED. 21 IT IS SO ORDERED. 22 San Juan, Puerto Rico, this 31st day of August, 2009. 23 24 25 26 2 There are very few actions on the part of a private actor that have been recognized as meeting this standard. They include: the administration of elections, the operation of a company town, eminent domain, peremptory challenges in jury selection, and, in at least limited circumstances, the operation of a municipal park. Perkins v. Londonderry Basketball Club, 196 F.3d 13, 19 (1999)(internal quotation marks omitted). When a plaintiff ventures [beyond this short list of activities], she has an uphill climb. Id. 1 Civil No. 07-1709 (SEC) 9 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 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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