Camilo-Robles v. Zapata

• Decision Date: 01 March 1999
• Docket Number: No. 98-1590,CAMILO-ROBLE,P,98-1590
• Citation: 1999 WL 223051,175 F.3d 41
• Parties: Grancidlaintiff, Appellee, v. Jose R. ZAPATA, a/k/a Jose R. Zapata-Rivera, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 41

175 F.3d 41

Grancid CAMILO-ROBLES, Plaintiff, Appellee, v. Jose R. ZAPATA, a/k/a Jose R. Zapata-Rivera, Defendant, Appellant.

No. 98-1590.

United States Court of Appeals First Circuit.

Heard March 1, 1999.

Decided April 20, 1999.

John M. Garca with whom Orlando Fernandez and Garca & Fernandez were on brief, for appellant.

Judith Berkan, with whom Peter Berkowitz was on brief, for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellee Grancid Camilo-Robles seeks damages under 42 U.S.C. § 1983 for indignities that he suffered at the hands of a rogue officer of the Puerto Rico Police Department, Miguel Daz-Martnez. See Camilo-Robles v. Hoyos, 151 F.3d 1, 4 (1st Cir.1998) (Camilo-Robles I ) (describing incident), cert. denied, --- U.S. ----, 119 S.Ct. 872, 142 L.Ed.2d 773 (1999). He contends, among other things, that various officials in the police hierarchy were deliberately indifferent to, and failed properly to supervise, their notorious subordinate. In an earlier opinion, we upheld the district court's pretrial order denying qualified immunity to a number of defendants in this action, including three high-ranking police officials. See id. at 9-15.

The case returns today for the same purpose, but at the behest of a different defendant: Jose R. Zapata-Rivera (Zapata), who served as the police department's Assistant Superintendent for Administrative Investigations for roughly five months immediately preceding Daz-Martnez's assault on Camilo-Robles. The duties of that post include the investigation of complaints about the conduct of police officers and, when appropriate, the taking of corrective action (which might include anything from a simple reprimand to requiring retraining to recommending suspension or expulsion, depending on the circumstances). Camilo-Robles claims that, given Daz-Martnez's widespread reputation as a bashi-bazouk, Zapata manifested deliberate indifference to citizens' rights in leaving him, armed and unregenerate, in a position in which he could perpetrate further acts of brutality.

Zapata denies any responsibility for the May 1994 encounter of which Camilo-Robles complains. He maintains that he performed his official duties in a proper and lawful manner; that none of his acts or omissions violated Camilo-Robles's federally protected rights; that the record evidence does not bespeak deliberate indifference; and that, in all events, no causal connection exists between his conduct and the incident in question. Zapata incorporated these arguments in a motion for summary judgment asking, inter alia, that the district court declare him qualifiedly immune from suit. The court denied the motion in a decurtate order, writing only "that there are issues of material fact which preclude summary judgment." This interlocutory appeal ensued.

Our analysis begins with bedrock. Section 1983 provides a private right of action against state actors--that is, public officials acting under color of state law--who deprive individuals of rights confirmed by federal constitutional or statutory law. Liability under that rubric is not strict or absolute. The qualified immunity doctrine constitutes one escape hatch. In practice, it holds harmless state actors whose behavior has violated plaintiffs' rights as long as those rights were not at the time clearly established under the Constitution or laws of the United States. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Daz v. Daz Martnez, 112 F.3d 1, 3 (1st Cir.1997).

The classic question that a qualified immunity defense poses is whether the allegedly violated federal right was established with sufficient clarity that a reasonable government functionary should have conformed his conduct accordingly. See, e.g., Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (reiterating that qualified immunity is meant to shield public officials "from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated"). In answering this question, a court must undertake an objective inquiry into the totality of the circumstances, with a view toward ascertaining whether the right allegedly infringed, articulated at an appropriate level of generality, was settled at the time of the public official's actions, and if so, whether the official's conduct was obviously inconsistent with that right. See id. at 638-40, 107 S.Ct. 3034. In the last analysis, then, qualified immunity purposes to protect government functionaries who could not reasonably have predicted that their actions would abridge the rights of others, even though, at the end of the day, those officials may have engaged in rights-violating conduct. See id. at 639-41, 107 S.Ct. 3034; see also Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (explaining that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law").

In the supervisory liability context, the qualified immunity inquiry at times presents peculiar problems. Under prevailing jurisprudence, neither a finding of "no liability" nor a finding of qualified immunity follows invariably upon a showing that the defendant-supervisor's conduct, in and of itself, failed directly to violate federally protected rights. Thus, in a subset of supervisory liability cases, courts facing the need to conduct a qualified immunity analysis have been compelled to go beyond the paradigmatic Harlow inquiry. This, in turn, has given rise to vexing questions of appellate jurisdiction. We explain briefly.

Although the Supreme Court has yet to speak explicitly on the matter, it is common ground among the lower federal courts that, for purposes of section 1983, supervisors sometimes may be held accountable for their subordinates' misdeeds. See Camilo-Robles I, 151 F.3d at 6-7. Since respondeat superior cannot serve as a basis for such liability, see Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (collecting cases), courts traditionally have required a showing that the superior either was a primary actor involved in, or a prime mover behind the underlying violation. The case law speaks of the necessity of showing an affirmative link, whether through direct participation or through conduct that amounts to condonation or tacit authorization. See Aponte Matos v. Toledo Davila, 135 F.3d 182, 192 (1st Cir.1998); Braddy v. Florida Dep't of Labor & Emp. Sec., 133 F.3d 797, 802 (11th Cir.1998); Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir.1997); Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 550-51 (5th Cir.1997).

When a plaintiff premises his section 1983 claim on allegations that the defendant-supervisor was a primary violator or direct participant in the rights-violating incident, the qualified immunity framework envisioned by Harlow and its progeny works quite well. In contrast, the framework engenders some confusion when applied to cases in which the defendant-supervisor is sued as a secondary or indirect violator.

In such cases, liability attaches if a responsible official supervises, trains, or hires a subordinate with deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation. See, e.g., Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th Cir.1994); Greason v. Kemp, 891 F.2d 829, 836-37 (11th Cir.1990); Sample v. Diecks, 885 F.2d 1099, 1116-17 (3d Cir.1989); cf. City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (explicating deliberate indifference standard in a municipal liability setting). Under such a theory, a supervisor may be brought to book even though his actions have not directly abridged someone's rights; it is enough that he has created or overlooked a clear risk of future unlawful action by a lower-echelon actor over whom he had some degree of control.

In these "neglect-of-risk" cases, confusion arises when qualified immunity is factored into the mix because we accept by hypothesis that the supervisor's actions have not, in themselves, infringed on any federally protected right. This means that, unlike the typical section 1983 case, we cannot concentrate the Harlow inquiry on the underlying right; if we did, the supervisor's qualified immunity would depend entirely on the reasonableness of the subordinate's actions, and such an approach would contravene the axiom that the actions of persons sued in their individual capacities under section 1983 must be assessed on their own terms. See Malley, 475 U.S. at 341, 106 S.Ct. 1092; Harlow, 457 U.S. at 818-19, 102 S.Ct. 2727. Such an approach also would frame the relevant inquiry in terms disquietingly close to those involved in the forbidden doctrine of respondeat superior.

To resolve this enigma, courts consigned to struggle with neglect-of-risk cases generally have incorporated a review of the merits of derivative tort liability into the qualified immunity calculus. The ensuing analysis customarily centers around whether the supervisor's actions displayed deliberate indifference toward the rights of third parties and had some causal connection to the subsequent tort. See, e.g., Camilo-Robles I, 151 F.3d at 7-8; Braddy, 133 F.3d at 802; Otey, 121 F.3d at 1155; Southard, 114 F.3d at 554. To the extent that this methodology heightens the imbrication between merits and immunity inquiries, it is imperfect. See Mitchell v. Forsyth, 472 U.S. 511, 527-29, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (discussing the separateness of the two inquiries); Camilo-Robles I, 151 F.3d at 7 (stating that "courts are well-advised to separate 'qualified immunity' analysis from 'merits' analysis whenever practicable"). Nonetheless, we use the...