654 F.3d 153 (1st Cir. 2011), 10-1619, Soto-Torres v. Fraticelli

Docket Nº:10-1619.
Citation:654 F.3d 153
Opinion Judge:LYNCH, Chief Judge.
Party Name:German A. SOTO-TORRES, Plaintiff, Appellee, v. Luis FRATICELLI, Special Agent in Charge, Defendant, Appellant, Robert Mueller, Director of the Federal Bureau of Investigation; Conjugal Partnership Mueller-Doe; Conjugal Partnership Fraticelli-Doe; Ten Unknown Agents of the Federal Bureau of Investigation, Defendants.
Attorney:H. Thomas Byron III, Appellate Staff, Civil Division, with whom Tony West, Assistant Attorney General, Rose E. Rodriguez-Velez, United States Attorney, and Barbara L. Herwig, Appellate Staff, Civil Division, were on brief, for appellant. Francisco M. L
Judge Panel:Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
Case Date:August 19, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 153

654 F.3d 153 (1st Cir. 2011)

German A. SOTO-TORRES, Plaintiff, Appellee,

v.

Luis FRATICELLI, Special Agent in Charge, Defendant, Appellant,

Robert Mueller, Director of the Federal Bureau of Investigation; Conjugal Partnership Mueller-Doe; Conjugal Partnership Fraticelli-Doe; Ten Unknown Agents of the Federal Bureau of Investigation, Defendants.

No. 10-1619.

United States Court of Appeals, First Circuit.

August 19, 2011

Heard March 9, 2011.

Page 154

[Copyrighted Material Omitted]

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H. Thomas Byron III, Appellate Staff, Civil Division, with whom Tony West, Assistant Attorney General, Rose E. Rodriguez-Velez, United States Attorney, and Barbara L. Herwig, Appellate Staff, Civil Division, were on brief, for appellant.

Francisco M. López-Romo, with whom Edgar R. Vega-Pabón was on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

The question before us is whether the Special Agent in Charge (SAC) of the FBI's Puerto Rico operations, Luis Fraticelli, who is sued in his individual capacity, is entitled to qualified immunity on the grounds that German A. Soto-Torres's second amended complaint failed to meet the requirements of Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Soto-Torres brought suit asserting claims of unlawful detention and excessive force under a Bivens theory. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Soto-Torres complains of actions during the September 23, 2005, execution of a search warrant by FBI or other federal agents on the residence of Filiberto Ojeda Rios, a notorious fugitive and convicted felon who was thought to be dangerous and hiding in a house in Hormigueros, Puerto Rico. That house was near the property of Soto-Torres's parents. The complaint alleges that, in the course of these operations, unnamed FBI agents assaulted Soto-Torres, pushed him to the ground and handcuffed him, and detained him in handcuffs for approximately four hours without explaining the basis of his detention. Although SAC Fraticelli was in charge of the operation, he was not present during the operation and had no personal contact with Soto-Torres.

The complaint originally named as defendants Fraticelli and ten unknown FBI agents, in their official and individual capacities, as well as FBI Director Mueller in his official capacity. Only the Bivens claim against Fraticelli remains 1 and is before us. The complaint was filed about one year after the event; Soto-Torres filed his first amended complaint about two years later. His second amended complaint was filed in October 2009, after the decision in Iqbal.

Defendants originally moved for summary judgment on grounds of qualified immunity, which the district court denied. The Supreme Court then decided Iqbal, after which defendants filed a Rule 12(c) motion requesting judgment on the pleadings on Soto-Torres's personal capacity claims against Fraticelli; defendants also moved to dismiss the official capacity claims against Mueller, Fraticelli, and the unnamed agents pursuant to Rule 12(b)(1) on grounds of sovereign immunity. The district court allowed Soto-Torres to amend his complaint in light of Iqbal and denied defendants' 12(b)(1) motion without prejudice so that it could be re-filed after the complaint was amended. After Soto-

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Torres filed his second amended complaint, defendants renewed their motion. The district court granted the motion to dismiss the official capacity claims against Mueller, Fraticelli, and the unnamed agents, but it denied the motion as to the personal capacity claims, including those against Fraticelli. Fraticelli filed this interlocutory appeal from that denial.

We hold that plaintiff's pleadings are insufficient under Iqbal, reverse, and direct entry of judgment for Fraticelli.

I.

In an interlocutory appeal from the denial of qualified immunity on a motion to dismiss on the pleadings, we accept the well-pleaded facts of the plaintiff's claim as alleged in the complaint. Iqbal, 129 S.Ct. at 1950. We do not accept the complaint's legal conclusions or " ‘ naked assertion[s]’ devoid of ‘ further factual enhancement.’ " Id. at 1949 (alteration in original) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009).

We provide some undisputed background facts, agreed upon by the parties. Soto-Torres's claims arise out of an FBI operation to apprehend Filiberto Ojeda Rios, a Puerto Rico fugitive and leader of the Macheteros group. The Macheteros have claimed responsibility for acts of violence in Puerto Rico, including the murders of a police officer in 1978 and U.S. Navy sailors in 1979 and 1982. In 1983, Macheteros operatives robbed a Wells Fargo facility in West Hartford, Connecticut. Two years later, when FBI agents acted to arrest Ojeda and other Macheteros members in connection with the robbery, Ojeda shot and wounded an agent. He was acquitted of the shooting charge in a 1989 trial in which he represented himself.

In 1990, while released on bond pending his trial for the armed robbery charges, Ojeda severed his electronic monitoring device and fled; the next day the U.S. District Court for the District of Connecticut issued a warrant for his arrest. In 1992, Ojeda was tried in absentia for the armed robbery, convicted on fourteen counts, and sentenced to fifty-five years in prison.

In early September 2005, the San Juan FBI determined that Ojeda was living in a house in Hormigueros on the west side of Puerto Rico. At this time there were warrants for Ojeda's arrest both for his 1990 flight and for his 1992 conviction. Consistent with the hazards of the operation, on September 22, 2005, " a team of FBI sniper-observers initiated surveillance of the Ojeda residence." Their surveillance " continue[d] until September 23, 2005."

The parents of Soto-Torres lived within " hundreds of feet" of this Ojeda target residence. The two properties did not adjoin, and from Soto-Torres's parents' home " there was no visibility toward...

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