Peña–Peña v. Figueroa–Sancha

• Decision Date: 11 June 2012
• Docket Number: Civil No. 11–1624 (SEC).
• Citation: 866 F.Supp.2d 81
• Parties: Betty PEÑA–PEÑA, et al., Plaintiffs, v. Jose FIGUEROA–SANCHA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

866 F.Supp.2d 81

Betty PEÑA–PEÑA, et al., Plaintiffs,

v.Jose FIGUEROA–SANCHA, et al., Defendants.

Civil No. 11–1624 (SEC).

United States District Court, D. Puerto Rico.

June 11, 2012.

Harry Anduze–Montano, Jose A. Morales–Boscio, Harry Anduze Montano Law Office, Josue Gonzalez–Ortiz, American Civil Liberties Union of PR, San Juan, PR, for Plaintiff.

Carlos E. Cardona–Fernandez, Carolina, PR, David R. Rodriguez–Burns, Aldarondo & Lopez Bras, PSC, Guaynabo, PR, for Defendant.

OPINION AND ORDER

SALVADOR E. CASELLAS, Senior District Judge.

Before the Court are co-defendants' motion to dismiss (Docket # 26), plaintiffs' opposition thereto (Docket # 39), and the respective reply memoranda (Dockets # 49 and 57). After reviewing the filings and the applicable law, co-defendants' motion is GRANTED in part and DENIED in part.

Factual and Procedural Background

Early on June 30, 2010, students from the University of Puerto Rico, community leaders, members of labor organizations, and the general public began to gather in front of the Capitol building in San Juan. They were there to protest several legislative measures pending for approval on the Senate floor. Also there was a large contingency of police officers. The Senate President had ordered the closing of the public galleries, so the police had been summoned to keep the general public from entering the building.

By the evening hours the crowd had grown larger. And the police had lined up shoulder-to-shoulder along the entrance of the Capitol, batons and other anti-riot devices ready on hand. Violence erupted soon thereafter. Media outlets around the world disseminated the unfortunate events. Video footage showed the officers firing tear gas and fiercely wielding batons against whomever dared to cross their path.

This federal question suit arises from the events of that day. Docket # 46. ¹ Plaintiffs are Betty Peña–Peña, and her then seventeen-year old daughter, E.R.P (collectively, “Plaintiffs”). Id.² Peña–Peña, a public school teacher, and E.R.P., a freshman to be at the University of Puerto Rico, had arrived at the grounds of the Capitol in the afternoon and remained there in peaceful protest when the police charged the crowd. Id. According to the complaint, the police battered both Plaintiffs. They allege being struck with anti-riot batons; indiscriminately sprayed with highly toxic tear gas and mace; hit and kicked while on the ground; and brutally dragged around by their feet. Id. The complaint is legally predicated on the First, Fourth, Fifth, Ninth, and Tenth Amendments to the U.S. Constitution, as well as on the Constitution and laws of the Commonwealth of Puerto Rico. Id.

Defendants are (1) the former Superintendent of the Puerto Rico Police Department, Jose Figueroa–Sancha; ³ (2) the Auxiliary Superintendent, Jose Rosa–Carrasquillo; (3) the Auxiliary Superintendent of Field Operations, Leovigildo Vazquez; (4) the Commanding Officer of the Tactical Operations Unit, Hector M. Figueroa–Torres; (5) the Regional Director of San Juan, Miguel Mejias–Cruz (together with all prior defendants, the “Supervisors”); and (6) Police Officer, Angel Sanchez–Mendez (“Officer Sanchez”).⁴ Defendants were present at the Capitol when the events underlying the complaint unfolded and each is sued in his personal and official capacity. A recount of the factual allegations against them follows.

The gradual congregation of people outside the Capitol building came at no surprise to the police. Acting on Figueroa–Sancha's direct instructions, a large number of police officers—including the Supervisors and both the Tactical Operations Unit and the Special Tactical Unit—waited inside the Capitol well before people began to arrive. As the crowd grew larger, observers from the Puerto Rico Bar Association offered to mediate between the police and the people, but the police ignored them. At approximately 6:45 p.m., the police addressed the crowd through a megaphone, ordering people to move elsewhere. Seconds later, the Supervisors ordered a highly toxic form of tear gas known as “CN Tear Gas” to be fired against the crowd, and the Tactical Operations Unit went in charging.

Officer Sanchez raised his 36? riot baton above his helmet and then struck E.R.P. close to her right temple. Peña–Peña, who at the time stood by her daughter, suffered the same luck at the hands of another officer. Now lying on the ground, Plaintiffs inhaled tear gas and became suffocated. The blows kept on coming regardless.

Officer Sanchez kicked E.R.P. while other officers hit her with batons. Peña–Peña threw herself on top of her daughter to appease the attackers, but Officer Sanchez and fellow officers continued unabated. Officer Sanchez next pepper sprayed E.R.P. and dragged her away by the feet. Peña–Peña attempted to reach her daughter, but Officer Sanchez grabbed her by the throat, threatened her with his baton, and pepper sprayed her directly into the eyes.

With the help of bystanders, mother and daughter eventually reunited in a nearby lawn. They were crying, visibly shaken, beaten, and injured. Both received first aid services from an onsite paramedic. And the next day both visited a physician, who treated them for head and body traumas, severe irritation from nose to lungs, and chest palpitations. Codefendant Figueroa–Sancha,meanwhile, appeared on the local news media and publicly owned up to the events at the Capitol building: he admitted being there from the very beginning and directly and expressly authorizing all actions the police had taken against the crowd.⁵

This suit ensued almost a year later. As stated previously, Plaintiffs claim several constitutional violations, all actionable under 42 U.S.C. § 1983. Among other things, the complaint avers that Plaintiffs' injuries were caused by the Supervisors' “failure to act properly and failure to train, supervise and control police officers, procedures and operations.” Docket # 46, ¶ 3.24. It also states that the Supervisors failed to establish protocols on the use of force, on the use of chemical agents, and on riot police and crowd control policies. Furthermore, Plaintiffs contend that “the complaint process adopted by Jose Figueroa–Sancha ... have led to a culture of impunity within the police force that ultimately encourages and stimulates police abuse and violence, such as the incident [underlying] this complain.” Docket # 46, ¶ 3.21.

After preliminary procedural nuances the Supervisors moved to dismiss under Fed.R.Civ.P. 12(b)(6). They rely on both the Eleventh Amendment and qualified immunity as one line of defense. The Supervisors also argue that the complaint falters under Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), because it fails to link them directly to the events at issue. Similarly, they challenge the legal sufficiency of Plaintiffs' constitutional claims. In response, Plaintiffs concede some of their claims (that is, the Ninth and Tenth Amendment claims as well as the official capacity claims), but vehemently oppose all arguments against the imposition of personal liability on the Supervisors.⁶

Standard of Review

To survive a Rule 12(b)(6) motion to dismiss, Plaintiffs' “well-pleaded facts must possess enough heft to show that [they are] entitled to relief.” Clark v. Boscher, 514 F.3d 107, 112 (1st Cir.2008). In evaluating whether Plaintiffs are entitled to relief, the court must accept as true all well-pleaded facts and indulge all reasonable inferences in plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The First Circuit has held that “dismissal for failure to state a claim is appropriate if the complaint fails to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.2008). Courts “may augment the facts in the complaint by reference to documents annexed to the complaint or fairly incorporated into it, and matters susceptible to judicial notice.” Id. at 305–306.

Nevertheless, in judging the sufficiency of a complaint, courts must “differentiate between well-pleaded facts, on the one hand, and ‘bald assertions, unsupportable conclusions, periphrastic circumlocution, and the like,’ on the other hand; the formermust be credited, but the latter can safely be ignored.” LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (1st Cir.1998) (quoting Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)); see also Buck v. American Airlines, Inc., 476 F.3d 29, 33 (1st Cir.2007); Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999). Thus, Plaintiffs must rely on more than unsupported conclusions or interpretations of law, as these will be rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997) (citing Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988)).

Moreover, “even under the liberal pleading standards of Fed R. Civ. P. 8, the Supreme Court has recently held that to survive a motion to dismiss, a complaint must allege ‘a plausible entitlement to relief.’ ” Twombly, 550 U.S. at 559, 127 S.Ct. 1955 (cited in Rodriguez–Ortíz v. Margo Caribe, Inc., 490 F.3d 92 (1st Cir.2007)). Although complaints do not need detailed factual allegations, the plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 557, 127 S.Ct. 1955.

In Iqbal, the Supreme Court reaffirmed Twombly and clarified that two underlying principles must guide a court's assessment of the adequacy of pleadings when evaluating whether a complaint can survive a Rule 12(b)(6) motion. 556 U.S. at 662, 129 S.Ct. 1937. First, the court must identify any conclusory allegations in the complaint as such allegations are not entitled to an assumption of truth. Id., 677–79, 129 S.Ct. 1937. Specifically, the court is not...