Parrilla-Burgos v. Hernandez-Rivera

• Decision Date: 06 November 1996
• Docket Number: PARRILLA-BURGOS,HERNANDEZ-RIVERA,No. 96-1136,96-1136
• Citation: 1997 WL 114511,108 F.3d 445
• Parties: Amarilis, et al., Plaintiffs--Appellants, v. Felix, et al., Defendants--Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 445

108 F.3d 445

Amarilis PARRILLA-BURGOS, et al., Plaintiffs--Appellants, v. Felix HERNANDEZ-RIVERA, et al., Defendants--Appellees.

No. 96-1136.

United States Court of Appeals First Circuit.

Heard Nov. 6, 1996.

Decided March 19, 1997.

Joan S. Peters, San Juan, PR, with whom Andres Guillemard-Noble and Nachman, Santiago & Guillemard, were on brief, for appellants.

John F. Nevares, San Juan, PR, with whom Lizzie M. Portela, Guaynabo, PR, and Smith & Nevares, Santurce, PR, were on brief, for appellee Carlos J. Lpez-Feliciano.

Roxanna Badillo-Rodrguez, Assistant Solicitor General, San Juan, PR, with whom Carlos Lugo-Fiol, Solicitor General, and Edda Serrano-Blasini, Deputy Solicitor General, were on brief, for appellees Fernando Vazquez-Gely, Felipe Aponte-Ortiz, Angel L. Daz, Angel L. Hernandez-Coln and Luis E. Lpez-Lebrn.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and DiCLERICO, Jr., ^* District Judge.

DiCLERICO, District Judge.

The plaintiffs, relatives of the decedent, Lionel Galletti Roque ("Galletti"), brought this action under 42 U.S.C. § 1983 against the defendants, members of the Puerto Rico Police Department, seeking damages allegedly suffered when one of the defendants, Felix Hernandez Rivera ("Hernandez"), shot and killed Galletti during a fight at a bar. The district court granted summary judgment in favor of the defendants, finding that Hernandez, who was on medical leave at the time of the shooting, was not acting under color of state law. The district court initially denied the defendants' motion for summary judgment, but reconsidered that ruling in light of our decision in Martnez v. Coln, 54 F.3d 980 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 515, 133 L.Ed.2d 423 (1995). In this appeal, the plaintiffs challenge the district court's grant of summary judgment. For the reasons expressed below, we affirm the district court's decision.

Factual and Procedural Background ¹

On January 2, 1989, at around 10:00 p.m., plaintiffs' decedent, Galletti, was drinking at a bar in Trujillo Alto, Puerto Rico, known as Carlos' Place. Galletti was accompanied by Angel Ramrez Fonseca, Ilarin Rosado, and two individuals identified only as Algarn and Ity. At that time, codefendant Hernandez, an officer of the Puerto Rico Police Department, arrived with an unidentified group of his friends. Hernandez, who was on medical leave due to gastroenteritis, was not in uniform but was carrying his police identification and service revolver. Police department policy states that Puerto Rico police officers are on duty twenty-four hours a day and therefore each officer is required to carry identification and a service revolver at all times.

Inside Carlos' Place, Hernandez approached Galletti's group and words and threatening glances were exchanged. Galletti challenged Hernandez' hostile attitude, stating that he had done nothing to provoke it. Hernandez responded, "I'll look at you whichever way I please, because I'm a cop."

The situation escalated. Hernandez slapped Galletti's friend Ity. Galletti told Hernandez, "Well, you don't have to give me dirty looks. You look at me really bad and I have done nothing to you." Hernandez replied, "I look at anybody I want, because I'm a cop. Anybody I decide I want to look at dirty, I look at them dirty." At this point the owner of the bar, apparently concerned by the interchange, told Hernandez, "Just because you are the law, you don't need to intimidate people," and asked him to leave. Hernandez told the bar owner not to meddle and to leave the combatants alone because it was none of his business.

By this time the conflict had attracted the attention of patrons outside the bar, who entered the bar to better view the confrontation. According to the plaintiffs, Hernandez identified himself to the crowd as a police officer, saying that he "was supposed to be there to establish the peace and order" and showed them his police identification, apparently to prevent them from interfering in the conflict. This stopped the fracas for about five minutes.

However, as Hernandez was leaving the bar, one of his friends and one of Galletti's friends resumed hostilities. At this point, Galletti told Hernandez, "Well, you leave the gun, and me and you will have it out, outside." Hernandez responded, "I don't need a gun to fight you. Come on, step outside." Hernandez, despite his statement to the contrary, took his service revolver with him as both parties went outside. While Galletti took off his sweater, Hernandez threw a beer can at him. Galletti responded by pushing Hernandez. Hernandez then took out his service revolver and fired six shots at Galletti. The first shot missed Galletti and hit a bystander but the next five hit Galletti, killing him.

On December 27, 1989, Galletti's survivors brought this § 1983 action against Hernandez ² and other supervising officers (the "supervisory defendants"). ³ On August 30, 1991, supervisory defendant Carlos Lpez Feliciano filed a motion for summary judgment, which the other supervisory defendants joined, on the ground that Hernandez was not acting under color of state law when he shot Galletti.

On November 1, 1991, Judge Carmen Consuelo Cerezo denied the motion for summary judgment. On March 31, 1992, supervisory defendant Lpez Feliciano filed a motion for reconsideration of that decision. At this time, the other supervisory defendants filed a motion to dismiss, asserting that the plaintiffs had not alleged facts necessary to establish supervisory liability. Judge Raymond L. Acosta referred these motions to Magistrate Judge Jess Antonio Castellanos for a report and recommendation.

On April 29, 1994, Magistrate Castellanos recommended that: (1) the motion for reconsideration filed by supervisory defendant Lpez Feliciano be denied; (2) the motion to dismiss filed by supervisory defendants Luis Lpez Lebrn, Angel Hernandez, Angel Daz, Fernando Vazquez-Gely, and Felix Aponte-Ortiz be denied; and (3) the motion to dismiss filed by supervisory defendants Luis Carrillo and Jose Lucena be granted. On March 16, 1995, Judge Salvador E. Casellas issued an order adopting the magistrate's report and recommendation. ⁴ On May 31, 1995, we issued our decision in Martnez v. Coln, 54 F.3d 980 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 515, 133 L.Ed.2d 423 (1995). On June 6, 1995, supervisory defendant Lpez Feliciano filed a motion, joined in by the remaining supervisory defendants, requesting the district court to reconsider its decision on the summary judgment motion in light of Martnez. On November 29, 1995, Judge Casellas vacated the court's order of November 1, 1991, and dismissed the case on the ground that defendant Hernandez was not acting "under color of law" for the purposes of § 1983 when he killed Galletti. The plaintiffs appealed this decision.

Discussion

The plaintiffs assert that the district court erred in determining as a matter of law that Hernandez' acts were not taken under color of state law. ⁵ Specifically, they challenge the district court's application of Martnez to this case. ⁶

1. Summary Judgment Standard

A district court may grant summary judgment only "if 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). In this case,

summary judgment will lie if the record, even when taken in the aspect most favorable to the nonmovant fails to yield a trialworthy issue as to some material fact. In applying this principle, it is important to bear in mind that not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.

Martnez, 54 F.3d at 983-84 (citation omitted). For the purposes of this appeal, we exercise de novo review and adopt the plaintiffs' version of all controverted facts. See id.

2. Applying Martnez

The plaintiffs assert that the district court improperly applied Martnez to this case. In Martnez, an on-shift ⁷ police officer accidentally shot and maimed a fellow off-shift officer while harassing that officer in the station house. See 54 F.3d at 982, 987. The harassing officer never expressly asserted his authority as a police officer, but he was in uniform and armed with his service revolver. See id. at 987. The defendants were other police officers, at least one of whom was a supervisor, who observed the incident but did not intervene. See id. at 983. We reviewed the district court's award of summary judgment in favor of the defendants and held that, under the totality of the circumstances, it was clear that the officer was not acting under color of state law because he was engaged in the personal pursuit of private violence, making the grant of summary judgment against the plaintiff appropriate. See id. at 988.

Martnez articulates the standard to be applied in this case to determine whether Hernandez was acting under color of state law when he shot and killed Galletti. As we said in that case, "[p]rivate violence--even private violence engaged in by one who happens to work for the state--has different legal ramifications than violence attributable to state action." Martnez, 54 F.3d at 985; see also Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945). "Thus, 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." Martnez, 54 F.3d at 986. "The 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.

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