Colon-Andino v. Toledo-Davila, Civil No. 08-1234 (FAB).

• Citation: 634 F.Supp.2d 220
• Decision Date: 13 July 2009
• Docket Number: Civil No. 08-1234 (FAB).
• Parties: Wilfredo COLON-ANDINO, et al., Plaintiffs, v. Pedro TOLEDO-DAVILA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

634 F.Supp.2d 220

Wilfredo COLON-ANDINO, et al., Plaintiffs, v. Pedro TOLEDO-DAVILA, et al., Defendants.

Civil No. 08-1234 (FAB).

United States District Court, D. Puerto Rico.

July 13, 2009.

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Harry Anduze-Montano, Jose A. Morales-Boscio, Harry Anduze Montano Law Office, San Juan, PR, for Plaintiffs.

Eileen J. Quintana-Guerrero, Department of Justice, San Juan, PR, for Defendants.

OPINION AND ORDER

BESOSA, District Judge.

On February 22, 2008 Wilfredo Colon-Andino, along with his wife, Carmen Nieves-Baez, and their conjugal partnership, his father, Wilfredo Colon-Velez, and his mother, Margarita Andino-Moreno (collectively referred to as "plaintiffs"), filed a complaint against defendants both in their personal and official capacities (the latter for injunctive relief only), as members of the Puerto Rico Police Department ("PRPD").¹ (Docket No. 1) Pursuant to 42 United States Code § 1983, the plaintiffs contend that defendants subjected them to violations of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. Plaintiffs also claim violations pursuant to local law and the Constitution of Puerto Rico.

On May 7, 2008, defendants Toledo-Davila and Donate moved to dismiss the complaint for, among other things, failure to state a claim pursuant to Rule 12(b)(6). (Docket No. 8) On June 4, 2008, plaintiffs opposed the motion to dismiss. (Docket No. 17) On July 14, 2008, defendants Gonzalez-Nieves, Ojeda, Rivera-Miranda, Bermudez-Ortiz, and Velazquez-Gonzalez moved to join the motion to dismiss (Docket No. 31) which this Court granted on July 15, 2008. (Docket No. 32)² For the reasons discussed below, the Court GRANTS in part and DENIES in part defendants' motion to dismiss.

FACTUAL BACKGROUND

The Court draws the following facts from the plaintiffs' complaint (Docket No. 1) and takes them as true for the purpose of resolving defendants' motion.

Plaintiff Wilfredo Colon-Andino ("Colon-Andino") owned a barber shop and tattoo parlor called "Ink and Pleasure"³ in Levittown, Puerto Rico. Next door to "Ink and Pleasure" is another business, "La Cava de los Dominicos," which is owned by Gilberto Ramirez-Rosado ("Ramirez-Rosado"). The two business owners apparently enjoyed an amicable relationship until they disagreed about the use of parking spaces, presumably near both places of business.

Problems between Colon-Andino and Ramirez-Rosado escalated to such a point that Ramirez-Rosado threatened to kill Colon-Andino, warned Colon-Andino that he had influence with high-ranking police officials in the PRPD, and initiated a "smear campaign" against Colon-Andino within the community alleging that Colon-Andino was involved in illegal actions. As a result of Ramirez-Rosado's smear campaign Colon-Andino filed a criminal complaint against Ramirez-Rosado on February 26, 2007.⁴

On May 1, 2007, police officer Jose M. Donate ("Donate") issued a citation to Colon-Andino requiring Colon-Andino's appearance on May 7, 2007 at the Criminal Investigations Bureau ("CIC" for the Spanish language acronym). At the CIC on May 7, 2007, Donate informed Colon-Andino of an anonymous phone call received by the PRPD stating that a white individual with a golden Pathfinder vehicle was threatening people by alleging he was a police officer. Donate told Colon-Andino that the alleged complaint "came from upstairs," which Colon-Andino took to mean that the order for his citation came from higher ranking officers within the police department. Colon-Andino told Donate that he could not be the individual mentioned in the complaint because he (Colon-Andino) is not white and does not own a golden Pathfinder. Donate never showed Colon-Andino the complaint allegedly filed against him, yet he nevertheless questioned Colon-Andino regarding personal information such as his address, description of his car, and place of business. After obtaining that information from Colon-Andino, Donate informed Colon-Andino that the complaint against Colon-Andino was closed.

On May 8, 2007, Wilfredo Colon-Velez ("Colon-Velez"), also a plaintiff in this case and the father of Wilfredo Colon-Andino,⁵ called Donate to discuss what he viewed as the inappropriate and illegal meeting between Donate and Colon-Andino on May 7th at the CIC. Colon-Velez requested a copy of the alleged complaint against his son, and warned Donate that he would file an administrative complaint against Donate for illegal questioning. Donate refused to provide a copy of the alleged complaint against Colon-Andino and then abruptly hung up the phone.

The following day, May 9, 2007, police officers Karina Ojeda ("Ojeda") and Braulio Gonzalez-Nieves ("Gonzalez-Nieves"), both defendants in this case, along with several other unknown officers, executed an illegal search warrant and proceeded to search Colon-Andino's place of business, "Ink and Pleasure." Although the officers possessed a search warrant, the warrant contained false information referring to alleged illegal transactions occurring in front of "Ink and Pleasure" involving an individual that had exited "Ink and Pleasure." The warrant was based on the sworn testimony of defendant police officer Gonzalez-Nieves who allegedly saw movement in "Ink and Pleasure" on dates when the business was closed because Colon-Andino was out of the country. Furthermore, Gonzalez-Nieves also gave testimony identifying a car involved in the illegal transaction. That car is not owned by Colon-Andino; it is owned by a former employee of "Ink and Pleasure" who, on the date the car was identified, did not go into or drive by the "Ink and Pleasure" business. That ex-employee had also experienced problems with the owner of the neighboring business, Ramirez-Rosado, related to the use of certain parking spaces. The plaintiffs contend that all of this information was fabricated in order to execute the search warrant used to gain entry into Colon-Andino's place of business.

Following the execution of the illegal search warrant based on false information, officer Ojeda and another unidentified police officer entered "Ink and Pleasure." While Ojeda interacted with a customer, the unknown officer twice entered the bathroom facilities and planted marijuana there, after which that officer left the premises and another officer entered⁶ with a drug-detecting canine which subsequently marked the existence of a controlled substance, marijuana, in the bathroom where it had been planted. No other controlled substance was found. Immediately thereafter, Colon-Andino was arrested.

During the search of "Ink and Pleasure" and Colon-Andino's subsequent arrest, police officers used excessive and unnecessary force: five officers inside the business, approximately five patrol cars outside, and the demonstration of many "long guns." The excessively dramatic scene at the time of the search and arrest negatively affected Colon-Andino's reputation.⁷ Plaintiffs believe that the execution of the search warrant was "irregular," because after Colon-Andino was arrested, handcuffed, taken out of the business, and ordered to close the business, he was then ordered to open the business, his handcuffs were removed, and he was "forced to pose for a photograph holding the search warrant inside the business." Plaintiffs also say that there were several objects not listed in the search warrant that were illegally seized,⁸ including Colon-Andino's camera, computer and jump drive. During the drive from "Ink and Pleasure" to the police station, officer Gonzalez-Nieves asked Colon-Andino if the security cameras at "Ink and Pleasure" were working, and asked that Colon-Andino remember that he, officer Gonzalez-Nieves, was always with Colon-Andino and did not do anything during the event.⁹

At the police station following his arrest, Colon-Andino requested and was denied a phone call either to his father or to an attorney. The officers proceeded to interrogate Colon-Andino without reading him his rights, requesting information about his wife's place of employment and his children's school. In addition, numerous officers photographed Colon-Andino with their personal cameras. After several hours in the interrogation room, Colon-Andino was taken to a cell and detained for several more hours. Officer Gonzalez-Nieves told Colon-Andino and his father, Colon-Velez, that the entire matter could end ("esto se puede quedar aqui"—meaning, this all could be ended here) which plaintiffs believe insinuated that the entire situation was fabricated.

Following his detention at the police station, officers Ojeda and Gonzalez-Nieves took Colon-Andino to his residence and asked him to surrender his gun and his permit to possess it. The officers told Colon-Andino that he would be able to collect his gun at the Arms Deposit at the PRPD's General Headquarters following the judicial proceedings against him.

Colon-Andino was charged with possession of a controlled substance. At a preliminary hearing on July 10, 2007, the charges were dropped. Officer Gonzalez-Nieves failed to come to the courtroom where the preliminary hearing was held despite being at the courthouse that day.¹⁰

On September 25, 2007, Colon-Andino went to collect his gun and permit from the Weapons Deposit. Once there, he was told his gun and permit were never deposited and therefore could not be returned to him. Colon-Andino had not received either his gun or his permit at the time plaintiffs filed their complaint in this case.

Police officers harassed the plaintiffs until almost the time their complaint was filed: an unmarked police car (a white RAV-4 that plaintiffs say was the same car driven by officer Ojeda on the day of Colon-Andino's arrest) has driven by the plaintiffs' house numerous times; and the plaintiffs have received several phone calls allegedly made from Police Headquarters in Levittown¹¹ during which a caller asked authoritatively to speak with ...