Ramirez–Lluveras v. Pagan–Cruz

• Decision Date: 03 October 2011
• Docket Number: Civil No. 08–1486 (FAB).
• Citation: 833 F.Supp.2d 151
• Parties: Evelyn RAMIREZ–LLUVERAS, et al., Plaintiff, v. Javier PAGAN–CRUZ, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

833 F.Supp.2d 151

Evelyn RAMIREZ–LLUVERAS, et al., Plaintiff,

v.Javier PAGAN–CRUZ, et al., Defendants.

Civil No. 08–1486 (FAB).

United States District Court, D. Puerto Rico.

Oct. 3, 2011.

Judith Berkan, Mary Jo Mendez–Vilella, Berkan & Mendez, San Juan, PR, for Plaintiff.

Michael S. Corona–Munoz, Eliezer Alberto Aldarondo–Lopez, Michael C. McCall, Aldarondo & Lopez Bras, PSC, Damaris Delgado–Vega, Guaynabo, PR, Pedro J. Landrau–Lopez, Carlos E. Cardona–Fernandez, San Juan, PR, for Defendants.

OPINION AND ORDER

BESOSA, District Judge.

This is a civil-rights action brought under 42 U.S.C. § 1983 (“section 1983”) arising from the highly publicized death of Miguel A. Caceres–Cruz (“Caceres”). Caceres' wife, Evelyn Ramirez–Lluveras, and their three children, Jenitza Caceres, MC and MAC (collectively, “plaintiffs”), commenced this action on behalf of themselves and Caceres against several field officers in the Puerto Rico Police Department (“PRPD”), Javier Pagan–Cruz (“Pagan”), Carlos Sustache–Sustache (“Sustache”), Zulma Diaz (“Diaz”) (collectively the “Field Officers”), and several supervisory officers in the PRPD, Juan Colon–Baez (“Colon”), Rafael Figueroa–Solis (“Figueroa”), Victor Cruz–Sanchez (“Cruz”), Edwin Rivera–Merced (“Rivera”) and Pedro Toledo–Davila (“Toledo”) (collectively, the “Supervisory Defendants”). (Docket No. 64.) Plaintiffs allege that their rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments of the Constitution of the United States were violated when Caceres was forced to the ground by the Field Officers and was eventually shot and killed by Pagan in Humacao, Puerto Rico. They also claim damages pursuant to article 1802 of the Civil Code.

Currently before the Court is the Supervisory Defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) (Rule 12(b)(6)) and for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (Rule 12(c)). (Docket No. 113.) For the reasons set forth below, the Court GRANTS in part and DENIES in part the motion to dismiss and the motion for judgment on the pleadings.

FACTS

The facts taken from the complaint, which are assumed to be true, are as follows:

On August 11, 2007, Caceres was on a street in Humacao, Puerto Rico. (Docket No. 64 at ¶ 4.1.) The Field Officers, without justification, forced Caceres to the ground and threatened to arrest him. Id. With Sustache and Diaz's encouragement and instigation, Pagan shot at Caceres. Id. at ¶ 4.2. After shooting Caceres several times, Pagan delivered the fatal blow and shot Caceres in the head. Id. at ¶ 4.2–4.3. After the shooting, the Field Officers abandoned the scene without aiding Caceres. Id. at ¶ 4.5. Although Diaz reported the incident through the police communication system, she omitted that Pagan shot and killed Caceres. Id. at 4.6.

As of the date of the shooting, the Supervisory Defendants held high-ranking positions within the PRPD: Colon was the highest level supervisor in the Humacao Area Tactical Operations Division (the “TOD”), Figueroa was the interim director of the TOD, Cruz was the Commander of the Humacao District of the PRPD, Rivera was the Humacao Area Commander, and Toledo was the PRPD Superintendent. Id. at 3.9–3.13. Plaintiffs contend that the Supervisory Defendants proximately caused Caceres' death when they were deliberately indifferent to plaintiffs' rights, failed to supervise, evaluate, assign and monitor the Field Officers adequately, and fostered an environment within the PRPD such that the Field Officers felt that they could act illegally with impunity and without consequence. Id. at 3.13.

Specifically, plaintiffs plead that a year prior to the shooting, Pagan was facing expulsion from the PRPD because of his “proven misconduct and violence towards citizens.” Id. at ¶ 4.19. Nevertheless, Toledo reduced Pagan's penalty to a 60–day suspension. Id. Subsequently, Rivera placed Pagan in an “impact unit” despite Pagan's suspension and several complaints of aggression and insubordination. Id. at ¶ 4.20–4.31. Cruz and Figueroa made pro forma high evaluations of Pagan and Sustache despite their known danger. Id. at ¶ 4.9. In fact, in January 2007, Cruz gave Pagan a glowing evaluation despite the fact that Pagan was disciplined and had other complaints pending against him. Id. at ¶ 4.13.

PROCEDURAL BACKGROUND

On April 20, 2010, the Supervisory Defendants moved to dismiss the amended complaint pursuant to Rule 12(b)(6) and for judgment on the pleadings under Rule 12(c). (Docket No. 113.) Plaintiffs submitted an opposition on December 20, 2010. (Docket No. 232.) The Supervisory Defendants replied on February 15, 2011. (Docket No. 246.) On September 23, 2011, plaintiffs filed an informative motion regarding new case law on section 1983 liability. (Docket No. 324.) In compliance with an order issued by the Court (Docket No. 325.), defendants submitted a motion to present their analysis of the new case law. (Docket No. 325.)

The Supervisory Defendants contend that plaintiffs' amended complaint must be dismissed because: (1) plaintiffs do not have standing to bring a section 1983 action; (2) plaintiffs insufficiently plead a cause of action under the Fourth, Fifth, Eighth and Fourteenth Amendments; and (3) the Supervisory Defendants are shielded from liability under the doctrine of qualified immunity. (Docket No. 113 at 14–45.) Each argument will be discussed in turn.

DISCUSSION

I. Standard Under Rule 12(b)(6) and Rule 12(c)

A defendant may move to dismiss an action for failure to state a cause of action pursuant to Rule 12(b)(6) and for judgment on the pleadings pursuant to Rule 12(c). A motion for judgment on the pleadings is governed by the same standards as a motion to dismiss. Perez–Acevedo v. Rivero–Cubano, 520 F.3d 26, 29 (1st Cir.2008) (citing Curran v. Cousins, 509 F.3d 36, 43–44 (1st Cir.2007)).

When analyzing a motion to dismiss, the facts contained in the pleadings are viewed in the light most favorable to the non-moving party and all reasonable inferences are drawn from those facts. R.G. Fin. Corp. v. Vergara–Nuñez, 446 F.3d 178, 182 (1st Cir.2006), Yet, “[A] plaintiff is not entitled to ‘proceed perforce’ by virtue of allegations that merely parrot the elements of the cause of action.” Ocasio–Hernandez v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir.2011). Accordingly, the Court proceeds in two steps. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). First, the Court separates legal conclusions “couched as fact” and “threadbare recitals of the elements of a cause of action” from non-conclusory factual allegations. Ashcroft, 129 S.Ct. at 1949–50. The latter are treated as true, whereas the former are disregarded. Id.;Ocasio–Hernandez, 640 F.3d at 11–13. Second, the Court determines whether the non-conclusory factual allegations are “plausible” rather than merely “conceivable.” Id.

II. Standing

Standing concerns the threshold issue of whether the plaintiff is the appropriate person to bring the matter to the court. Benjamin v. Aroostook Med. Ctr., 57 F.3d 101, 104 (1st Cir.1995) (quoting Erwin Chemerinsky, Federal Jurisdiction § 2.3, at 48 (1989)). To have standing, plaintiffs have the burden to plead the plausibility that (1) plaintiffs suffered or will imminently suffer an injury (2) that is traceable to the Supervisory Defendants' conduct, such that (3) a favorable decision is likely to redress the injury. Nat'l. Org. for Marriage v. McKee, 649 F.3d 34, 46–47 (1st Cir.2011) (internal citations omitted); Vargas v. Carrion, No. 10–1153, 2011 WL 92030, at *1 (D.P.R. Jan. 3, 2011). Plaintiffs allege that they have standing to bring both a claim on their own behalf and a survival claim on Caceres' behalf. (Docket No. 232 at 13.)

A. Plaintiffs' Claim as Caceres' Representative

As a general rule, a plaintiff does not have standing to assert claims for partieswho are not before the court. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (“Article III of the United States Constitution limits standing in federal court to persons who have themselves been injured.”). As an exception to the general rule, an heir has standing to bring a section 1983 action on behalf of a deceased person if the law of the state embracing the federal district court where the action is commenced permits recovery. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978);Gonzalez Rodriguez v. Alvarado, 134 F.Supp.2d 451, 452–54 (D.P.R.2001).

Under Puerto Rico law, a decedent's heirs may recover for the decedent's pain and suffering prior to death. Gonzalez Rodriguez, 134 F.Supp.2d at 454 (citing Vda. de Delgado v. Boston Insurance, 101 D.P.R. 598 (1973)). Thus, “Puerto Rican law permits an heir to bring a § 1983 action in his representative capacity only when there is a showing that the deceased has suffered prior to his death.” Id.;Lopez–Jimenez v. Pereira, No. 09–1156, 2010 WL 500407, at *2 (D.P.R. Feb. 3, 2010).

The amended complaint states that the Field Officers forced Caceres to the ground and threatened to arrest him. (Docket No. 64 at ¶ 4.1.) Pagan shot Caceres several times and eventually delivered the fatal blow by shooting Caceres in the head. Id. at ¶ 4.3. The Field Officers did not aid Pagan. Id. at ¶ 4.5. The shooting caused Caceres to suffer “excruciating pain, fear, desperation and other emotion [sic] and physical suffering, and survived in that condition for a period of time ...” Id. at ¶ 4.39. Accordingly, plaintiffs have standing to assert a section 1983 claim on Caceres' behalf. Lopez–Jimenez, 2010 WL 500407 at *2 (finding standing to bring a section 1983 claim in a representative capacity where the complaint alleged that the decedent “suffered extreme physical and mental pain while he was suffering a health condition that required emergency medical care.”).

B. Plaintiffs' Individual Claims

“First Circuit case...