Guadalupe-Baez et al v. Police Officers A-Z et al, No. 3:2013cv01529 - Document 29 (D.P.R. 2014)

Court Description: OPINION AND ORDER: Granting 20 Motion to Dismiss. Signed by Judge Gustavo A. Gelpi (MET)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO 3 RAUL GUADALUPE-BÃ EZ, et al., 4 Plaintiffs, 5 v. 6 POLICE OFFICERS A-Z, et al., 7 Defendants. CIVIL NO. 13-1529 (GAG) 8 OPINION AND ORDER 9 10 Once again this court reviews a pleading standard challenge in a police brutality case. RaÃºl 11 Guadalupe-BÃ¡ez ( Plaintiff or Guadalupe ), Ivelissa BÃ¡ez ( BÃ¡ez ), and Antonia HernÃ¡ndez 12 ( HernÃ¡ndez ) (collectively Plaintiffs ) bring this action seeking compensatory money damages 13 against named and unnamed defendants for the violation of their constitutional rights stemming from 14 the shooting of Plaintiff by members of the Puerto Rico Police Department ( PRPD ) and the San 15 Lorenzo Municipal Police (collectively Defendants ). (Docket No. 18.) This action was brought 16 pursuant to 42 U.S.C. §§ 1983 and 1985 for alleged violations of Guadalupe s rights under the 17 Fourth and Fourteenth Amendments to the United States Constitution. Id. Plaintiffs further invoke 18 the supplemental jurisdiction of the court to hear and decide claims arising under the laws of Puerto 19 Rico under Articles 1802 and 1803 of the Civil Code of Puerto Rico. P.R. LAWS ANN. tit. 31, §§ 20 5141, 5142. 21 Plaintiffs brought this action against Unnamed Police Officers A-Z, claiming they were 22 reckless and grossly negligent during their intervention with Guadalupe, when they used excessive 23 force in violation of the Fourth Amendment to the United States Constitution. Id. Furthermore, they 24 claim Hector Pesquera ( Pesquera ), Superintendent of the PRPD at the time of the events; JosÃ© 25 RomÃ¡n-Abreu ( RomÃ¡n ), Mayor of the Municipality of San Lorenzo; Guillermo Somoza- 26 Colombani ( Somoza ), Secretary of Justice at the time of the events; Luis SÃ¡nchez-Betances 27 ( SÃ¡nchez ), Secretary of Justice at the time of filing the complaint, (collectively Supervisor 28 Defendants ) are responsible for the negligent training, negligent entrustment, and negligent CIVIL NO. 13-1529 (GAG) 1 supervision of Police Officers A-Z, which amounts to deliberate indifference and reckless disregard 2 of Plaintiffs constitutional rights. Id. Moreover, Plaintiffs claim HÃ©ctor Orozco ( Orozco ) from 3 the Criminal Investigation Center in Caguas and Special Investigations Bureau Officer Carlos Rosa 4 ( Rosa ) obstructed justice and conspired to deprive Plaintiffs of the right to seek judicial redress 5 for the shooting of Guadalupe by Unnamed Police Officers A-Z. (Docket No. 18 ¶¶ 32; 100-102.)1 6 Co-Defendants Orozco, Rosa, Pesquera, Somoza and SÃ¡nchez move to dismiss the Plaintiffs 7 complaint pursuant to FED. R. CIV. P. 12 (B)(6). (Docket No. 20.)2 Namely, these Defendants aim 8 to dismiss Plaintiffs allegations grounded in supervisory liability, conspiracy, and the Puerto Rico 9 general tort statute. (Docket No. 20.) Defendants further contend that Plaintiffs BÃ¡ez and 10 11 12 HernÃ¡ndez lack standing. Id. at 13. Plaintiffs timely opposed. (Docket No. 21.) After reviewing the parties submissions and pertinent law, the court GRANTS Defendants motion to dismiss at Docket No. 20. 13 I. Standard of Review 14 The general rules of pleading require a short and plain statement of the claim showing that 15 the pleader is entitled to relief. Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st 16 Cir. 2009) (citations omitted) (internal quotation marks omitted). This short and plain statement 17 need only give the defendant fair notice of what the . . . claim is and the grounds upon which it 18 rests. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 19 Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to 20 state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). To survive a Rule 21 12(b)(6) motion, a complaint must contain sufficient factual matter to state a claim to relief that 22 23 24 25 26 1 Plaintiffs subsequently amended their complaint after the court advised that the allegations in their original complaint would likely fail to surpass the pleading standard. See Docket Nos. 4 &17. 2 27 Defendant RomÃ¡n joined the Supervisor Defendants motion to dismiss, incorporating the totality of their pleadings. (Docket No. 22.) Plaintiffs opposed RomÃ¡n s joinder. (Docket No. 24.) 28 2 CIVIL NO. 13-1529 (GAG) 1 is plausible on its face. Twombly, 550 U.S. at 570. The court must decide whether the complaint 2 alleges enough facts to raise a right to relief above the speculative level. Id. at 555. In so doing, 3 the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's 4 favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008). However, the tenet that a court must 5 accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. 6 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). Threadbare recitals of the elements 7 of a cause of action, supported by mere conclusory statements, do not suffice. Id. (citing Twombly, 8 550 U.S. at 555). [W]here the well-pleaded facts do not permit the court to infer more than the 9 mere possibility of misconduct, the complaint has alleged-but it has not show[n] - that the pleader 10 is entitled to relief. Iqbal, 556 U.S. 662, 129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)). 11 II. Relevant Factual and Procedural Background 12 Sometime between the late hours of July 8, 2012 and early hours of the following day, 13 Guadalupe, of legal age and a resident of Caguas, Puerto Rico, was driving his four-track Honda 14 ATV Model TRX around the Municipality of San Lorenzo. (Docket No. 18 ¶¶ 41- 42.) As he 15 decided to return home, Guadalupe noticed several PRPD police vehicles approaching. Id. ¶ 43. 16 He left the area and, as he was driving on Road 183, a police car began to follow him. Id. ¶ 44. 17 The police car sped towards his vehicle, approaching him very closely. Id. At that time, no other 18 vehicles were in the area. Id. ¶ 45. Guadalupe was not armed. Id. ¶ 46. Fearful of an impact, 19 Guadalupe tried to turn at the next intersection. Id. ¶ 47. While making a turn at the intersection 20 by the San Lorenzo Municipal Police Station, Guadalupe heard a gunshot. Id. Just then, he felt a 21 strong pain in the right side of his abdomen, the side that was facing the police car. Id. 22 Police Officer A shot Guadalupe. Id. ¶¶ 48; 53. As a result, Guadalupe s vehicle stopped 23 and he fell to the ground. Id. ¶ 54. The Police Officers held Guadalupe under arrest, they seized 24 and searched him but found no evidence of criminal activity. Id. ¶¶ 55-56. Guadalupe was taken 25 in an ambulance to the Medical Center in RÃo Piedras. Id. ¶¶ 57-56. As result of the gunshot, 26 Guadalupe suffered multiple bowel perforations and underwent surgery. Id. ¶¶ 59-60. Guadalupe 27 28 3 CIVIL NO. 13-1529 (GAG) 1 was never charged criminally for the events that took place the night of the shooting. (Docket No. 2 18 ¶ 61.) His vehicle was seized and never returned. Id. ¶ 62. 3 Police Officer Howard Delgado ( Delgado ) was among the first officers that helped 4 Guadalupe as he was lying on the ground. Id. ¶ 63. Delgado denies having shot Guadalupe, 5 claiming that the bullet used in the shooting was .40 Caliber, and therefore not from his weapon. 6 Id. ¶ 64. However, Delgado acknowledged that excessive force was used in Guadalupe s arrest but 7 did not identify the author of the shooting. Id. ¶¶ 66-67. 8 The PRPD initiated an investigation. Id. ¶ 71. Orozco from the Criminal Investigation 9 Center ( CIC ) in Caguas was in charge of the investigation. Id. Orozco failed to identify the 10 author of the shooting and, ultimately terminated the investigation, without filing any charges. Id. 11 ¶ 72. Orozco contacted BÃ¡ez, Guadalupe s mother, to inform her that three (3) individuals were 12 involved in the shooting of her son but failed to disclose the identity of the individuals. Id. ¶ 73-74. 13 Orozco told BÃ¡ez he would contact her shortly with more information but never contacted her again. 14 Id. ¶ 75. The Special Investigations Bureau also initiated an investigation. Id. ¶ 76. Said 15 investigation was led by Rosa. Id. Rosa also failed to identify the author of Guadalupe s shooting. 16 Id. ¶ 77. At some point, Rosa terminated the investigation. Id. Rosa notified BÃ¡ez that the driver 17 of the patrol car that chased Guadalupe had been interviewed but did not disclose his identity. Id. 18 ¶ 78. 19 Plaintiffs sustain that, as a result of Defendants acts and/or omissions, they have suffered 20 damages. Id. ¶ 81. Because of the shooting, Guadalupe suffered severe abdominal injuries, 21 emotional trauma, and fear of imminent death. Id. Therefrom, he has suffered physical handicaps 22 due to the pain and loss of physical endurance. Id. Guadalupe s injuries are of permanent and 23 continuing nature. Id. Plaintiffs BÃ¡ez and HernÃ¡ndez have suffered intense emotional damages as 24 a result of the near death of their son/grandson, seeing him in such critical condition, as well as their 25 anguish upon seeing him severely impaired in his physical condition. Id. Plaintiffs have further 26 suffered by Defendants inaction regarding the shooting, as well as the conspiracy to cover up the 27 28 4 CIVIL NO. 13-1529 (GAG) 1 shooting, obstruction to their day in court and enforcement of their legal rights in court. Id. 2 III. 3 As a threshold matter, the court addresses the standing issue raised by Defendants in their 4 motion to dismiss. (Docket No. 20.) This issue was unopposed by Plaintiffs. (Docket No. 21.) 5 Defendants argue that BÃ¡ez and HernÃ¡ndez lack standing to sue in their individual capacities under 6 Section 1983. Only persons who have been subject to constitutional deprivations may bring 7 actions under § 1983. NuÃ±ez GonzÃ¡lez v. VÃ¡zquez Garced, 389 F.Supp. 2d 214, 208 (D.P.R. 8 2005); see also Robles VÃ¡zquez v. Tirado GarcÃa, 110 F.3d 204, 206 n.4 (1st Cir. 1997) 9 ( [S]urviving family members cannot recover in an action brought under § 1983 for deprivation of 10 rights secured by the federal constitution for their own damages from the victim s death unless the 11 unconstitutional action was aimed at the familial relationship. ). Here, BÃ¡ez and HernÃ¡ndez claim 12 personal damages for the violation of Guadalupe s civil rights. Consequently, Plaintiffs BÃ¡ez and 13 HernÃ¡ndez s claims under Section 1983 do not proceed as a matter of law. Thus, their claims under 14 Section 1983 are DISMISSED. 15 16 17 Discussion Now, the court turns to the substantive arguments raised by Defendants in their motion to dismiss at Docket No. 20. A. Supervisor Liability 18 Time and again courts have discussed the steep threshold that a plaintiff has to cross to 19 adequately plead a claim for supervisor liability. Needless to say, the established precedent imposes 20 a hefty burden. See generally Maldonado-Denis v. Castillo RodrÃguez, 23 F.3d 576 (1st Cir. 1994); 21 Febus RodrÃguez v. Betancourt-LebrÃ³n, 14 F.3d 87 (1st Cir. 1994); Gutierrez RodrÃguez v. 22 Cartagena, 882 F.2d 553 (1st Cir. 1989); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st 23 Cir. 1988). In light of the complaint presently before the court, the undersigned deems it necessary 24 to review the applicable case law, once again. 25 In the present case, Defendants argue that Plaintiffs amended complaint does not meet the 26 pleading standard required for Section 1983 causes of action for failure to supervise and failure to 27 train claims. (Docket 20 at 8.) Defendants are correct. The allegations set forth by Plaintiffs are 28 5 CIVIL NO. 13-1529 (GAG) 1 conclusory and completely devoid of facts, hence, they do not meet the well-established standard. 2 In their amended complaint, Plaintiffs contend that the Supervisor Defendants are 3 responsible to the plaintiff for their gross negligence, recklessness, deliberate indifference to 4 constitutional rights, reckless disregard of constitutional rights, as these deprivations are manifested 5 in defendants grossly negligent entrusting, supervising, and investigation of the assault on Mr. 6 Guadalupe. (Docket No. 18 ¶ 34.) They further argue that the Supervisor Defendants have 7 manifested a pattern or behavior that could be characterized as supervisory encouragement, 8 condonation or acquiescence or gross negligence, amounting to deliberate indifference over the 9 plaintiff s rights and guarantees under the law. Id. at ¶ 35. Namely, they state that [t]he pattern 10 and practice of use of excessive force, as found by the USDOJ, caused by the adoption and use of 11 inadequate policies and procedures, insufficient training, inadequate supervision, deficient complaint 12 processes and ineffective disciplining by Pesquera, RomÃ¡n, Somoza, and SÃ¡nchez, constitutes the 13 affirmative link which caused the street-level misconduct at issue in this case, to wit, the use of 14 excessive force against Mr. Guadalupe. Id. at ¶ 36. 15 Turning to the law, a supervisors liability under Section 1983 may not be predicated upon 16 a theory of respondeat superior. Gutierrez-RodrÃguez, 882 F.2d at 562. A supervisor may be 17 found liable only on the basis of her own acts or omissions. Id. (quoting Figueroa v. Aponte 18 Roque, 864 F.2d 947, 953 (1st Cir.1989)). Moreover, a supervisor cannot be liable for merely 19 negligent acts. Rather, a supervisor s acts or omissions must amount to a reckless or callous 20 indifference to the constitutional rights of others. Febus RodrÃguez 14 F.3d at 92. (citing Gutierrez 21 RodrÃguez, 882 F.2d at 562); see also Germany v. Vance, 868 F.2d 9, 17-18 (1st Cir. 1989). 22 In order for Plaintiffs to hold the supervisory defendant . . . liable under [S]ection 1983, the 23 plaintiff had to show that (1) the conduct complained of was committed by a person acting under 24 color of state law; and (2) [that] this conduct deprived a person of rights, privileges, or immunities 25 secured by the Constitution or laws of the United States. Lipsett, 864 F.2d at 901-02 (quoting 26 Voutour v. Vitale, 761 F.2d 812 (1st Cir. 1985)). The second prong has two components, namely 27 whether there was a deprivation and whether the defendant s conduct caused this deprivation. 28 6 CIVIL NO. 13-1529 (GAG) 1 Lipsett, 864 F.2d at 901-02. It is well established that a plaintiff may prove causation by showing 2 a pattern of police violence so striking as to allow an inference of supervisory encouragement, 3 condonation, or even acquiescence, or by showing gross negligence [of the defendant] amounting 4 to deliberate indifference . . . . Id. 5 In most cases, like the one we review today, the causation element constitutes the biggest 6 challenge for plaintiff. Often, plaintiffs fail to show a plausible connection between the supervisor 7 and plaintiff s constitutional violation, properly supported by facts. The First Circuit recently 8 embarked on this issue and stated: After Iqbal, as before, we have stressed the importance of 9 showing a strong causal connection between the supervisor s conduct and the constitutional 10 violation. See RamÃrez-Lluveras v. Rivera Merced, Nos. 11- 2339 & 13-1169, 2014 WL 3398427 11 at * 8 (1st Cir. 2014) (quoting Feliciano HernÃ¡ndez v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 12 2011) ( [A] supervisor may not be held liable for the constitutional violations committed by his or 13 her subordinates, unless there is an affirmative link between the behavior of a subordinate and the 14 action or inaction of the supervisor . . . such that the supervisor s conduct led inexorably to the 15 constitutional violation. )) (internal quotations omitted). This affirmative link, i.e., the causation, 16 must be strong enough to show that it contemplates proof that the supervisor s conduct led 17 inexorably to the constitutional violation. RamÃrez-Lluveras, 2014 WL 3398427 at * 8. In other 18 words, to meet this burden, a plaintiff must plead sufficient facts that, if taken as true, connect the 19 dots between the supervisor s conduct and plaintiff s constitutional violation. 20 In the instant case, Plaintiffs assert Defendant Pesquera s supervisor liability as follows: 21 Defendant Pesquera is a person who negligently confided and entrusted defendant Police Officers 22 A, B and C-Z with the authority to discharge their apparent duties. (Docket No. 18 ¶ 26.) 23 Moreover, they state: 24 25 26 Defendant Pesquera is responsible to the plaintiff for his own actions and omissions, negligent entrustment and negligent supervision of defendant Police Officer A, Police Officer B, Police Officers C-Z, and police personnel in general, a behavior in the sense that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence, amounting to deliberate 27 28 7 CIVIL NO. 13-1529 (GAG) 2 indifference and reckless disregard of the plaintiff s rights and guarantees under the law, and improperly training / supervising his subordinates. 3 Id. The same allegations are also levied against RomÃ¡n, Somoza and SÃ¡nchez. (Docket No. 18 ¶¶ 4 28-30.) Likewise, these same legal conclusions are rehashed later on in the complaint, without any 5 additional factual allegations, to attest the Supervisory Defendants negligent behavior, amounting 6 to deliberate indifference and reckless disregard of Plaintiffs constitutional rights. (Docket No. 18 7 ¶¶ 93-99.) 1 8 Here, Plaintiffs allegations are insufficient to connect the dots, i.e., show causation, 9 because their allegations are nothing more than legal conclusions, completely devoid of supporting 10 facts. As previously noted, [t]hreadbare recitals of the elements of a cause of action, supported 11 by mere conclusory statements, do not suffice. Iqbal, 129 S.Ct. at 1949. Plaintiffs attempt to hold 12 the Supervisor Defendants liable for their own actions, insofar that by their negligent behavior while 13 supervising Police Officers A-Z, they encouraged, condoned or acquiesced the violation of 14 Guadalupe s rights. However, Plaintiffs do not identify the actual underpinnings of the Supervisor 15 Defendants alleged failure to train. See RodrÃguez-VÃ¡zquez v. CintrÃ³n RodrÃguez, 160 F. Supp. 16 2d 204, 212 (D.P.R. 2001) (failure to allege prior wrongdoings or supervisor s knowledge of such 17 is fatal to claim of supervisory liability under § 1983). The sole inquiry under Rule 12(b)(6) is 18 whether, construing the well-pleaded facts of the complaint in the light most favorable to the 19 plaintiffs, the complaint states a claim for which relief can be granted. Ocasio HernÃ¡ndez v. 20 FortuÃ±o-Burset, 640 F.3d 1, 8 (1st Cir. 2011); see Rossi-CortÃ©s v. Toledo Rivera, 540 F. Supp. 2d. 21 318, 324 (D.P.R. 2008) (recognizing that [b]iolerplate [sic] language regarding a defendant s 22 failure to train his subordinates is insufficient to sustain a Section 1983 claim ). Plaintiffs 23 Amended Complaint is a repetition of legal jargon ad nauseam, that merely lists the elements of a 24 Section 1983 cause of action without any supporting factual allegations. It is evident that these 25 allegations do not suffice. The court previously had warned Plaintiffs that mere labels do not reach 26 the plausibility standard. (Docket No. 17.) Today, it is clear that Plaintiffs ignored the court s 27 warning. 28 8 CIVIL NO. 13-1529 (GAG) 1 Plaintiffs justify their deficient pleading arguing that due to Defendants failure to disclose 2 information about the investigation, they are precluded from pleading factual allegations sufficient 3 to meet the Iqbal/Twombly standard. (Docket No. 18 ¶ 9.) For that reason, in support of their 4 pattern and practice allegations, Plaintiffs rely on the Investigation Report of the Investigation of 5 the Puerto Rico Police Department by the Civil Rights Division of the United States Department 6 Justice of September 5, 2011 ( U.S. DOJ Report ).3 7 Nevertheless, as this court previously warned Plaintiffs, simply citing the agreement 8 between the government of the United States and the Commonwealth of Puerto Rico for the Reform 9 of the Puerto Rico Police Department does not per se generate any plausibility. See Docket No. 10 17; Molina v. Vidal Olivo, 961 F. Supp. 2d 382 (D.P.R. 2013). Under the Iqbal/Twombly standard, 11 the U.S. DOJ Report, by itself, is not enough to establish plausible causation. Moreover, the US. 12 DOJ Report may be used as a stepping stone to pave the way to plausibility, however, it must be 13 supplemented with factual allegations relating to the specific facts of the case, tracing the story 14 between the supervisor s conduct and plaintiff s alleged constitutional violation, in accordance with 15 the supervisory liability standard. 16 Thus, Plaintiffs supervisor liability claims are DISMISSED. B. 17 18 Conspiracy Plaintiffs also claim Supervisor and Investigatory Defendants conspired to violate 19 20 3 21 22 23 24 25 26 The U.S. DOJ Report is the result of an extensive investigation of the PRPD carried out by the United States Department of Justice. Ultimately, said investigation led to the filing of a Section 14141 suit by the Attorney General of the United States against the Commonwealth of Puerto Rico for the ongoing civil rights violations by the PRPD. See Civil Case No. 12-2039 (GAG). The U.S. DOJ Report evinces the rampant violations of civilian rights, mostly for the use of excessive force, by PRPD officers across the island. Defendants argue that, pursuant to the Rules of Evidence, the U.S. DOJ Report is immaterial to Plaintiffs claims, and therefore, it is not relevant. The court disagrees. Rule 401 of the Federal Rules of Evidence states that: Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. FED. R. EVID. 401. Considering the investigation s multiple findings of Fourth Amendment violations by members of the PRPD, the U.S. DOJ Report is relevant to Plaintiffs claims. 27 28 9 CIVIL NO. 13-1529 (GAG) 1 [Guadalupe s] statutory civil rights in violation of 42 U.S.C. §§ 1983 & 1985. (Docket No. 18 ¶ 2 101.) According to Plaintiffs, Orozco and Rosa, together with the Supervisor Defendants, conspired 3 to obstruct Plaintiffs right to seek judicial redress for the violation of Guadalupe s constitutional 4 rights by failing to investigate and prosecute Police Officer A and failing to disclose information 5 regarding the identities of the authors of the shooting. Id. Again, Plaintiffs arguments ring hollow 6 as they fail to set forth any factual allegations in support of their claims. 7 To adequately state a claim under section 1985(3), a plaintiff must prove: (1) the existence 8 of a conspiracy; (2) a conspiratorial purpose to deprive a person or class of persons, directly or 9 indirectly, of the equal protection of the laws or of equal privileges and immunities under the laws; 10 (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, 11 or (b) a deprivation of a constitutionally protected right or privilege. See Aulson v. Blanchard, 83 12 F.3d 1, 3 (1st Cir. 1996). The Supreme Court has construed the statute s references to equal 13 protection and equal privileges and immunities under the laws to signify that a plaintiff may recover 14 thereunder only when the conspiratorial conduct of which he complains is propelled by some racial, 15 or perhaps otherwise class-based, invidiously discriminatory animus. Aulson, 83 F.3d at 3 (citing 16 Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). 17 Similarly, under Section 1983, [a] civil rights conspiracy . . . is a combination of two or 18 more persons acting in concert to commit an unlawful act, . . . the principal element of which is an 19 agreement between the parties to inflict a wrong against or injury upon another, and an overt act that 20 results in damages. Estate of Bennet v. Wainwright, 548 F.3d 155 (1st Cir. 2008) (internal 21 quotations omitted); see also Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977) (noting that a 22 complaint alleging a conspiracy to deprive plaintiff of his civil rights cannot survive motion to 23 dismiss based on conclusory allegations of conspiracy which are not supported by references to 24 material facts). 25 In this case, Plaintiffs arguments fail to state sufficient factual allegations to sustain 26 conspiracy claims under either Sections 1983 or 1985. They argue that Defendant Orozco initiated 27 a complaint to investigate Guadalupe s shooting that led to no avail. Likewise, the same is alleged 28 10 CIVIL NO. 13-1529 (GAG) 1 against Defendant Rosa for a separate investigation initiated by the Special Investigations Bureau. 2 Yet, nothing in Plaintiffs complaint points to show a meeting of the minds or Defendants 3 conspiratory animus. According to Plaintiffs, these allegations are sufficient to argue a that 4 Defendants Orozco, Rosa and the Supervisory Defendants conspired to obstruct Plaintiffs right to 5 seek judicial redress. 6 insufficient to state a claim for conspiracy under both sections 1985(3) and 1983. Accordingly, 7 Plaintiffs conspiracy claims are DISMISSED. 8 C. Plaintiffs allegations are unsubstantiated and conclusory, therefore, Fourteenth Amendment 9 The First Circuit has held that excessive force claims are not cognizable under the Fourteenth 10 Amendment. Rather, the claims must be brought under the Fourth Amendment. Estate of Bennett, 11 548 F.3d at 162 3; see Graham v. Connor, 490 U.S. 1865, 1897 (1989) (recognizing that all claims 12 that law enforcement officers have used excessive force deadly or not in the course of an arrest, 13 investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth 14 Amendment and its reasonableness standard, rather than under a substantive due process 15 approach. ). Here, Plaintiff brings suit alleging violations of his substantive due process right to 16 be free from excessive force under the Fourth and Fourteenth Amendment. Therefore, Plaintiffs fail 17 to state a cause of action under the Fourteenth Amendment, thus, this claims is DISMISSED. 18 D. Supplemental State Law Claims 19 Plaintiffs accompany their Section 1983 claims with supplemental state law claims under 20 Articles 1802 and 1803 of the Puerto Rico Civil Code. Tit. 31 §§ 5141, 5142. As a general 21 principle, the unfavorable disposition of a plaintiff s federal claims at the early stages of a suit, well 22 before the commencement of trial, will trigger the dismissal without prejudice of any supplemental 23 state-law claims. RodrÃguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). In cases 24 where the federal claims are dismissed, the balance of factors to be considered under the pendent 25 jurisdiction doctrine judicial economy, convenience, fairness, and comity will point toward 26 declining to exercise jurisdiction over the remaining state-law claims. Id. The use of supplemental 27 jurisdiction in these circumstances is completely discretionary, and is determined on a case-by-case 28 11 CIVIL NO. 13-1529 (GAG) 1 basis. Id. 2 As all of the federal claims by Plaintiffs as to the moving defendants have been dismissed, 3 the court, in its discretion, DISMISSES, without prejudice, all state law claims. This, however, does 4 not entail that Plaintiffs cannot have their day in court and ultimately prevail. However, it will then 5 to be in the Commonwealth Court of First Instance and not this federal forum. 6 IV. 7 For the reasons stated above, Defendants motion to dismiss at Docket No. 20 is 8 GRANTED, therefore Plaintiffs claims against Defendants Orozco, Rosa, Pesquera, RomÃ¡n, 9 SÃ¡nchez and Somoza are DISMISSED with prejudice. Moreover, given the dismissal, Plaintiffs 10 Conclusion claims against unnamed defendants Police Officers A-Z are dismissed without prejudice. 11 SO ORDERED. 12 In San Juan, Puerto Rico this 17th day of September, 2014. S/Gustavo A.GelpÃ GUSTAVO A. GELPI United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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