Barreto-Rivera v. Medina-Vargas

• Citation: 168 F.3d 42
• Decision Date: 08 October 1998
• Docket Number: No. 98-1222,BARRETO-RIVERA,MEDINA-VARGAS,98-1222
• Parties: Amelia, et al., Plaintiffs, Appellants, v. Luis R., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 42

168 F.3d 42

Amelia BARRETO-RIVERA, et al., Plaintiffs, Appellants, v. Luis R. MEDINA-VARGAS, et al., Defendants, Appellees.

No. 98-1222.

United States Court of Appeals First Circuit.

Heard Oct. 8, 1998.

Decided Feb. 18, 1999.

Raul S. Mariani Franco with whom Carlos M. Hernandez Lopez, Juan C. Cancio Reichard, and Cancio & Cancio Reichard were on brief for appellants.

John F. Nevares with whom Lizzie M. Portela and Smith & Nevares were on brief for appellees.

Before STAHL, LIPEZ, Circuit Judges, and REAVLEY, ^* Senior Circuit Judge.

LIPEZ, Circuit Judge.

Plaintiffs, relatives of decedent Arstides Ortega-Barreto ("Ortega-Barreto"), brought suit under 42 U.S.C. § 1983 against defendants Luis Medina-Vargas ("Officer Medina-Vargas"), a police officer of the Commonwealth of Puerto Rico, and his supervisor at the Puerto Rico Police Department, Superintendent Pedro Toledo-Davila ("Toledo-Davila"). Plaintiffs alleged that Officer Medina-Vargas, acting under color of state law, used excessive force to shoot and kill Ortega-Barreto. The district court disagreed and granted summary judgment in favor of defendants, concluding that the fight between the two men that led to Ortega-Barreto's death was personal in nature and thus Officer Medina-Vargas was not acting under color of state law when he shot Ortega-Barreto. After a careful review of the record, we conclude that there are genuine issues of material fact that preclude the entry of summary judgment. Accordingly, we vacate the judgment and remand for further proceedings.

I. Background

We recite the facts in a light most favorable to the nonmoving party, making all reasonable inferences in that party's favor. See Martinez v. Colon, 54 F.3d 980, 980 (1st Cir.1995). On April 28, 1995, Ortega-Barreto left his house and went to a local store to purchase cigarettes and beverages. As Ortega-Barreto drove home from the store, Officer Medina-Vargas followed Ortega-Barreto in his police cruiser and attempted to force Ortega-Barreto to pull his car over to the side of the road. Ortega-Barreto refused to stop his vehicle and Officer Medina-Vargas chased Ortega-Barreto back to his house. Officer Medina-Vargas parked behind Ortega-Barreto and said, "Come here, I want to talk to you." He then demanded Ortega-Barreto's driver's license and vehicle registration. Ortega-Barreto told him that he had the vehicle registration, but he did not have a license. An argument ensued and the men shouted profanities at each other. Ortega-Barreto told Officer Medina-Vargas, "You got fresh or made a pass at my wife," to which Officer Medina-Vargas responded, "You are fresher because you have abused many old folks around here." The two men began to throw punches at each other and Officer Medina-Vargas repeatedly hit Ortega-Barreto with his night stick. The men were separated and Ortega-Barreto retreated into his house.

At that point, Ortega-Barreto's uncle and mother approached Officer Medina-Vargas. Officer Medina-Vargas pushed Ortega-Barreto's uncle to the ground and shoved his mother. Upon seeing his family assaulted, Ortega-Barreto left his house, went into his yard and picked up a piece of plastic tube. He started toward Officer Medina-Vargas with the tube in his hand. Although several witnesses were able to take the tube from him, Ortega-Barreto continued to approach Officer Medina-Vargas. As Ortega-Barreto approached, Officer Medina-Vargas radioed for back up stating: "10-50, I have been attacked. Hurry up, this guy is acting tough and I am going to have to shoot him." Police Lieutenant Jose Francisco Cruz-Feliciano told Officer Medina-Vargas to calm down and that help was on the way. Ortega-Barreto, standing approximately six to eight feet from Officer Medina-Vargas, told Officer Medina-Vargas to drop his gun and to fight with his fists. Officer Medina-Vargas instructed Ortega-Barreto not to come any closer or he would shoot. Ortega-Barreto continued to approach, empty handed, and Officer Medina-Vargas shot him in the stomach. Ortega-Barreto fell to the ground. Bystanders yelled at Officer Medina-Vargas that he had killed Ortega-Barreto. Officer Medina-Vargas responded that if Ortega-Barreto got up, he would shoot him again. Ortega-Barreto was pronounced dead at the hospital.

On April 26, 1996, plaintiffs filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the District of Puerto Rico alleging that Officer Medina-Vargas's conduct violated Ortega-Barreto's civil and constitutional rights. The complaint further alleged that Superintendent Toledo-Davila was liable for Officer Medina-Vargas's conduct because he failed to control, supervise and discipline Officer Medina-Vargas despite Toledo-Davila's knowledge of Officer Medina-Vargas's disciplinary problems. Officer Medina-Vargas failed to answer the complaint and a default judgment was entered against him on January 14, 1997. The case then proceeded against Superintendent Toledo-Davila on the claim of supervisory liability. Toledo-Davila filed a motion for summary judgment, arguing that Officer Medina-Vargas's actions were not under color of state law and thus no supervisory liability could be attributed to Toledo-Davila under 42 U.S.C. § 1983. The motion was granted by the court on November 24, 1997, and plaintiffs' complaint was dismissed. This appeal followed.

As noted above, there was a default judgment entered against Officer Medina-Vargas. Nevertheless, to determine whether Superintendent Toledo-Davila could be liable under a theory of supervisory liability, we must first determine if there are genuine issues of material fact relating to whether Officer Medina-Vargas was acting under color of law when he shot and killed Ortega-Barreto. Only then do we reach the issue of whether there are also genuine issues of material fact relating to Toledo-Davila's responsibility for Officer Medina-Vargas's conduct.

II. Discussion

Federal Rule of Civil Procedure 56(c) permits a court to enter summary judgment when "the pleadings, depositions, 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). Our review is de novo and we evaluate the record in a light most favorable to the nonmoving party, "indulging all reasonable inferences in that party's favor." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). Although we will not credit unsupported speculation, "the nonmoving party is entitled 'to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, [and] all internal conflicts in [the evidence] resolved favorably to him....' " Greenburg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 935 (1st Cir.1987)(quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979)). Put another way, in evaluating a motion for summary judgment, we must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A. Liability under 42 U.S.C. § 1983

To state a claim under section 1983, a plaintiff must allege two elements: 1) that the conduct complained of has been committed under color of state law, and 2) that this conduct worked a denial of rights secured by the Constitution or laws of the United States. See Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.1995). ¹ In analyzing the first element in this case--namely, whether the conduct of the police officer involved private violence or violence attributable to state action--we have warned that courts must avoid simplistic solutions. See id. at 986. No single, easily determinable factor will control whether a police officer was acting under color of state law. See id. While certain factors will clearly be relevant--for example, a police officer's garb, an officer's duty status, the officer's use of a service revolver, and the location of the incident--these factors must not be assessed mechanically. See id. at 986-87; Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir.1997).

In Martinez, we explained that "whether a police officer is acting under color of state law turns on the nature and circumstances of the officer's conduct and the relationship of that conduct to the performance of his official duties." Martinez, 54 F.3d at 986. Such an evaluation requires an assessment of the totality of the surrounding circumstances, see id. at 987, and "[t]he key determinant is whether the actor, at the time in question, purposes to act in an official capacity or to exercise official responsibilities pursuant to state law," id. at 986. In applying these principles to the facts at issue in Martinez, we concluded that an on-shift officer who shot and maimed a fellow officer was engaged in a "personal frolic" and not acting under color of state law. Id. at 987. The on-shift officer relentlessly harassed Martinez over a period of time, verbally abusing him, pointing his gun first at Martinez's stomach and then later at his groin, taunting him and asking Martinez if he was scared. Throughout these encounters, the officer never asserted his authority as a police officer. We concluded that he "was bent on a singularly personal frolic: tormenting an acquaintance." Id. In the case of an officer against officer dispute, the limited indicia of state action, i.e., use of his police weapon, his on-shift status and his uniform, were not enough to establish that the officer "exercise[d], or purport[ed] to exercise, any power (real or pretended) possessed by virtue of state law.... Though on duty and in uniform, [the officer's] status as a police officer simply did not enter into his benighted harassment of...