Marrero-Rosado et al v. Cartagena et al, No. 3:2005cv02063 - Document 153 (D.P.R. 2009)

Court Description: OPINION AND ORDER DENYING 138 MOTION to Strike; GRANTING IN PART 121 MOTION for Summary Judgment. Plaintiff's Section 1983 claims against all Defendants in their official capacities are DISMISSED pursuant to the court's prior Opinion, O rder, and Partial Judgment. Defendants' Motion on Plaintiff's Section 1983 claims against Defendants Santiago, Cartagena, Pereira, Diaz, and Armendariz in their personal capacities is GRANTED. Having summarily disposed of Plaintiff's S ection 1983 claims against Defendants Santiago, Cartagena, Pereira, Diaz, and Armendariz, Plaintiff's supplemental claims brought pursuant to 28 U.S.C. § 1367(a) against the same Defendants are DISMISSED with prejudice. 28 U.S.C. § 136 7(c)(3). The issue remaining to be adjudicated in this case is Plaintiff's Section 1983 claim against Defendant Roman for an alleged Fourth Amendment violation. Signed by Chief Judge Jose A Fuste on 3/27/09.(mrj)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO MARTA MARRERO-ROSADO, on behalf of her minor son JLSM, Civil No. 05-2063 (SEC/JAF) Plaintiff, v. AGUSTÃ N CARTAGENA, et al., Defendants. OPINION AND ORDER 10 11 Plaintiff Marta Marrero-Rosado ( Rosado ), on behalf of her son 12 Jorge Luis Santos Marrero ( JLSM ), brings this action against 13 Defendants AgustÃn 14 ( RomÃ¡n ), Nelson 15 Pereira ( Pereira ), RamÃ³n DÃaz-Correa ( DÃaz ), Dra. Ana Rius- 16 ArmendÃ¡riz (ArmendÃ¡riz), Agents A, B, and C, Correctional Officers D, 17 E, and F, Doctors G, H, and I, Lady Jane J, K, L, M, N, O, and 18 Insurance Companies X, W, Z. Docket No. 1 and 51. Before the court 19 are Defendants Motion for Summary Judgment and Memorandum of Law 20 ( Defendants Motion ) and Defendants Motion to Strike Plaintiff s 21 Response thereto. Docket Nos. 121 and 138. Defendants Motion to 22 Strike is DENIED. Defendants Motion has been considered and is 23 GRANTED in part. Cartagena F. ( Cartagena ), Maldonado-Santiago Juan R. ( Santiago), DÃaz-RomÃ¡n Miguel A. Civil No. 05-2063 (SEC/JAF) -2- 1 I. 2 Introduction 3 This case is an action for money damages brought pursuant to 28 4 U.S.C. §§ 1331, 5 representatives of the Puerto Rico Police Department, Puerto Rico 6 Department 7 (AdministraciÃ³n 8 alleges that his father, Maldonado, suffered and died due to the 9 actions or omissions of Defendants. Docket No. 51, ¶4.18. Claims are 10 brought by Rosado on behalf of her son, JLSM. Docket No. 51, at 2, 11 II. of 1343, and Corrections, de Servicos 1367 and and the MÃ©dicos 42 U.S.C. Puerto de § Rico Puerto 1983 Medical Rico). against Center Plaintiff 12 Plaintiff s Section 1983 claims are brought against Defendants 13 in their official and personal capacities for the alleged violation 14 of the Fourth, Fifth, Eighth, and Fourteenth Amendments of the U.S. 15 Constitution. Docket No. 137, at 22. Supplemental claims are brought 16 under Sections 3018 17 obligation), 3019 (Liability arising from fraud), 3024 (Losses and 18 damages for which debtor liable), and 5141 (Obligation when damage 19 caused by fault or negligence) in Title 31 of the Laws of Puerto 20 Rico. (Fraud, negligence, or delay in fulfilling 21 With the exception of Section 1983 claims brought against 22 Defendant RomÃ¡n, the only defendant to have any direct interaction 23 with Maldonado, Plaintiff s Section 1983 claims are premised on a 24 theory of supervisory liability. Plaintiff s claims against Defendant Civil No. 05-2063 (SEC/JAF) -3- 1 RomÃ¡n, a Puerto Rico police officer in the Vega Baja Precinct, are 2 based on allegations that RomÃ¡n physically struck Maldonado on two 3 occasions and filed a false incident report. Docket No. 51, ¶ 3.2. 4 Defendant Santiago was a supervisor of Officer RomÃ¡n during the 5 relevant time period. Plaintiff s claims against Santiago are based, 6 in part, on an allegation that Santiago approved RomÃ¡n s allegedly 7 false incident report. Docket No. 51, ¶ 3.4. Santiago had no direct 8 interaction 9 Defendant Cartagena was the Superintendent of the Puerto Rico Police 10 at the time of the alleged beating and false report, but Cartagena 11 had no direct interaction with Maldonado or involvement with his 12 case. Docket No. 51, ¶ 3.1. Plaintiff s claims against Santiago and 13 Cartagena are also based upon their alleged failure to supervise 14 operations of the Vega Baja Precinct and adequately institute a 15 protocol for police officers on how to handle street people with drug 16 addictions. Docket No. 51, ¶ 4.19. with Maldonado during the relevant time period. 17 Defendant Pereira was the Secretary of Corrections at the time 18 Maldonado was incarcerated, but had no direct interaction with 19 Maldonado or involvement in his case. Docket No. 51, at ¶ 3.4. 20 Defendant DÃaz was the Superintendent of the BayamÃ³n Correctional 21 Complex at the time of Maldonado s incarceration but had no direct 22 interaction with Maldonado or involvement in his case. Docket No. 51, 23 ¶ 3.5. Plantiff s claims against Defendants Pereira and DÃaz are 24 based on their alleged failure to supervise and maintain adequate Civil No. 05-2063 (SEC/JAF) -4- 1 detox facilities and failure to institute or train employees on a 2 protocol for the handling of street people with drug addictions. 3 Docket No. 51, ¶¶ 3.4, 3.5, and 4.15. 4 Defendant ArmendÃ¡riz was the Executive Director of the Puerto 5 Rico Medical Center during the time Maldonado was a patient at that 6 facility, 7 Maldonado s case. Docket No. 51, ¶ 3.6. Plaintiff s claims against 8 ArmendÃ¡riz are based upon ArmendÃ¡riz alleged failure to establish, 9 implement, and/or make sure, that his employees followed a protocol 10 for the care and treatment of street people with drug addictions, 11 and to ensure the ongoing availability of lab services and adequate 12 nursing services. Docket No. 51, ¶¶ 3.6 and 4.16. but had no direct interaction or involvement with 13 II. 14 Factual Background 15 We review the facts supported by the record. On September 27, 16 2004, RomÃ¡n was on patrol with Officer Juan M. PÃ©rez Luciano 17 ( Luciano ) when he observed Maldonado, a deambulante (homeless 18 man), at SÃ¡nchez LÃ³pez Street in Alto Cuba, Vega Baja. Defts SUMF 19 Nos. 3, 5 and 7; Pltf s Exhibit No. 5; Pltf s Reply ¶ 2. RomÃ¡n 20 observed Maldonado walking in a negligent manner, moving from side 21 to side of the street, and lying down in the middle of the street. 22 Defts SUMF No. 6; Pltf s Exhibit No. 5; Pltf s Reply ¶ 2. It is 23 undisputed that Maldonado used illegal drugs. Docket No. 51, at 6. 24 Presumably, RomÃ¡n was aware of Maldonado s habit on September 27, Civil No. 05-2063 (SEC/JAF) -5- 1 2004, because RomÃ¡n had previously counseled Maldonado about his drug 2 addiction. Defts SUMF No. 4. At 12:15 p.m., RomÃ¡n issued a citation 3 to Maldonado for violation of Law 22, Art. 9.02, of the Transit Law. 4 Defts SUMF No. 8. The citation required RomÃ¡n to appear before a 5 Judge on September 28, 2004, at 8:30 a.m. Defts SUMF No. 8, 11, 13, 6 and 14. RomÃ¡n was not incarcerated on September 27, 2004. Defts SUMF 7 No. 10. 8 RomÃ¡n s description of his intervention with Maldonado is 9 corroborated by the written statement of Officer Luciano, provided to 10 the Superintendent of Public Integrity, Police of Puerto Rico, on 11 January 4, 2005. Luciano s statement reads as follows: Juan DÃaz 12 RomÃ¡n proceeded to intervene with the individual that afterwards 13 resulted to be called Jorge Santos Maldonado, for art. 9.02(6) Law 14 22, reading him the legal warnings, then we proceeded to take him 15 before the presence of the Honorable Judge JosÃ© V. MelÃ©ndez that 16 found cause, fixing a bond of $200 dollars, that he did not post, 17 same being carried to BayamÃ³n Jail 705. Pltf s Exhibit No. 5 18 (emphasis supplied); Plaintiff s Reply, ¶ 2. It is not clear from 19 Luciano s 20 Maldonado before the Judge. statement as to exactly when they proceeded to take 21 RomÃ¡n avers that he has never hit Maldonado. Defts SUMF No. 9. 22 But, Plaintiff submits the sworn statement of RamÃ³n Luis MartÃnez 23 VÃ©lez (VÃ©lez), who avers that in August 2004 he witnessed RomÃ¡n hit 24 Maldonado on the neck with his hand and in the lower part of the Civil No. 05-2063 (SEC/JAF) -6- 1 stomach with a black-jack. Pltf s Exhibit No. 1. VÃ©lez also avers 2 that he witnessed RomÃ¡n hit Maldonado, arrest him, and take him away 3 on the morning of September 27 or 28 at approximately the same time 4 RomÃ¡n issued Maldonado the citation. Id. 5 Until RomÃ¡n s intervention with Maldonado, the Superintendent of 6 Public Integrity received no complaints concerning RomÃ¡n since his 7 admission on March 8, 2005. Defts SUMF No. 62. On October 13, 2004, 8 Maldonado s father, NicolÃ¡s Santos Santos ( Santos ), filed the first 9 complaint on record against RomÃ¡n, alleging that RomÃ¡n arrested 10 Maldonando without cause. Defts Exhibit No. 19. In response, the 11 Director of the Division of Public Integrity in the Puerto Rico 12 Police Department completed an investigation and found no cause for 13 or evidence to support Santos complaint. Defts SUMF No. 64; Defts 14 Exhibit 20. As noted by Plaintiff, the Director s report indicates 15 that RomÃ¡n s intervention with Maldonado occurred on September 26, 16 2004, and not September 27, 2004. Id. But, Plaintiff himself alleges 17 that the intervention occurred on September 27, 2004. Pltf s Reply 18 ¶ 2. 19 In September 2004, Defendant Cartagena was Superintendent of the 20 Puerto Rico Police Department. Docket No. 51, at 2, ¶3.1; Defts SUMF 21 No. 57. Cartagena is not now and was not in September 2004 RomÃ¡n s 22 direct supervisor. Defts SUMF No. 60. Cartagena has never met 23 Plaintiff or his father, and did not confer with any police officers Civil No. 05-2063 (SEC/JAF) -7- 1 or others regarding the handling of Maldonado s case. Defts SUMF 2 Nos. 58, 59 and 61. 3 According to the complaint, Maldonado appeared by himself before 4 Judge JosÃ© V. MelÃ©ndez at 9:30 a.m. on September 28, 2004. Defts 5 SUMF No. 14. Finding probable cause, Judge MelÃ©ndez set trial for 6 November 8, 2004. When Maldonado was unable to post bail, Judge 7 MelÃ©ndez 8 Correctional Facility. Defts SUMF Nos. 16 and 17; Docket No. 137, at 9 02-03; Pltfs Exhibit Nos. 2 and 3. As noted by Plaintiff, the date 10 of Judge MelÃ©ndez signature on the complaint originally indicated 11 January 27, 2004, but would appear to have been subsequently changed 12 to January 28, 2004. Pltfs Exhibit Nos. 2 and 3. The Magistrate s 13 secretary, however, wrote on the same complaint that Maldonado 14 appeared in court on September 28, 2004. Id. ordered that Maldonado be remanded to the BayamÃ³n 15 On September 28, 2004, a police officer (not RomÃ¡n) delivered a 16 copy of the complaint to Santos, Maldonado s father. Pltf s Exhibit 17 No. 6; Pltf s Reply ¶4. The complaint provided to Santos was not 18 signed by Judge MelÃ©ndez. Pltf s Reply ¶2; Pltf s Exhibit No. 3. 19 Pursuant to Judge MelÃ©ndez order, on September 28, 2004, RomÃ¡n 20 brought Maldonado to the BayamÃ³n Correctional Facility, BayamÃ³n 21 No. 705. Defts SUMF No. 24. At BayamÃ³n No. 705, RomÃ¡n filled out the 22 pre-admission form, indicating that, in his opinion, Maldonado was in 23 good physical shape, was not bleeding, was not in any medical danger, 24 was not unstable, did not show suicidal tendencies, made no attempt Civil No. 05-2063 (SEC/JAF) -8- 1 to escape, and did not need immediate medical attention. Defts SUMF 2 No. 25. RomÃ¡n did not indicate on the pre-admission form that 3 Maldonado was under the influence of any drug or had a history of 4 drug abuse. The pre-admission form does not specifically request this 5 type of information, however. Docket No. 137, at 15. Defendants 6 represent that when Maldonado arrived at BayamÃ³n No. 705, someone 7 asked Maldonado if he was in need of immediate medical attention, 8 had ever received medical attention in BayamÃ³n 705, and in need of 9 certain medicines. Defts SUMF Nos. 26, 27, and 28. Notations in the 10 pre-admission form indicate that these questions were answered in the 11 negative, either by Maldonado or for him. Defts Exhibit No. 16. 12 During September and October 2004, Defendant Pereira was the 13 Secretary of Corrections and Defendant DÃaz was the Regional Director 14 for the Northern Region of the Administration of Corrections, a 15 region which included BayamÃ³n No. 705. Defts SUMF No. 18, 31, and 16 32; 17 Department of Corrections had a protocol for the care and treatment 18 of prisoners who are drug addicts, which included the use of a detox 19 facility. Defts SUMF Nos. 21 and 22; Defts Exhibit Nos. 2 and 3. 20 Neither Defendant DÃaz nor Defendant Pereira have ever met Plaintiff 21 or his father and neither conferred with anyone in any way concerning 22 Maldonado s case. Defts SUMF Nos. 19, 20, 23 and 36. Docket No. 51, ¶¶ 3.4, 3.5. Under Pereira and DÃaz, the 23 The Subdirector of the Administration of Corrections, RamÃ³n Luis 24 DÃaz Correa, who is not a named defendant in this case, avers that he Civil No. 05-2063 (SEC/JAF) -9- 1 received reports from a Superintendent and on-duty Commander, that 2 upon admission, Maldonado was immediately referred to Infirmary 448 3 of BayamÃ³n s 308 Institution. Defts SUMF 29; Defts Exhibit Nos. 4 4 and 17. On September 29, 2008, Infirmary 448 of BayamÃ³n s 308 5 Institution referred Maldonado to the Puerto Rico Medical Center 6 emergency room because he had high blood pressure and tachycardia. 7 Defts SUMF 29; Defts Exhibit Nos. 4 and 17. The Puerto Rico Medical 8 Center admitted Mr. Maldonado at 6:21 p.m. on September 29, 2004. 9 Defts SUMF 37; Defts Exhibit 8(a) and 17; Docket No. 137, at 6. 10 ¶ 4.11. 11 Medical records detail Maldonado s condition and the care he 12 received at the Puerto Rico Medical Center until his death on 13 October 4, 2004. Defts Exhibit No. 8. The majority of Maldonado s 14 medical records submitted by Defendants are illegible and, therefore, 15 offer limited support for Defendants Motion.1 Maldonado s admission 16 record, dated September 29, 2004, indicates that upon admission, 17 Maldonado was in withdrawal from heroin and cocaine. Defts Exhibit 18 No. 8(b). At 7:28 p.m. on September 29, 2004, the Radiology Division 19 completed a Chest PA exam. Defts Exhibit No. 8. The Radiology 20 report indicates that Maldonado was suffering from tachypnea and in 21 drug withdrawal. Defts Exhibit No. 8. Medical records indicate that 1 In the future, the court recommends that the parties reproduce any illegible medical records using a word processing program for submission to the court, with affidavits validating the accuracy of copy. Civil No. 05-2063 (SEC/JAF) -10- 1 attending physicians or nurses made a written record of Maldonado s 2 condition at 8:45 a.m, 11:00 a.m., and 11:45 a.m. on September 30, 3 2004, at 9:45 a.m., 2:00 p.m. and 4:00 p.m. on October 1, 2004, and 4 at 7:00 p.m. and 9:00 p.m. on October 2, 2004. Defts Exhibit No. 5 Pltf s Exhibit No. 11; Pltf s Reply ¶ 8. A physician s note made at 6 9:00 p.m. on October 2, 2004 indicates that labs were unavailable due 7 to a system shutdown. Defts Exhibit No. 8. Certain lab analyses were 8 run, including two for hematology on October 2 and 3, 2004, and one 9 for coagulation on October 3, 2004. A record entitled, death 10 summary, indicates that nurses found Maldonado in cardiorespiratory 11 arrest at 6:30 a.m. on October 3, 2004, and that attempts were made 12 to resuscitate him. Defts Exhibit No. 8. The attending physician 13 declared Maldonado dead at 6:40 a.m. Id. 8; 14 On October 5, 2004, after Santos made repeated inquiries as to 15 his son s whereabouts, the police informed Santos of his son s death. 16 Pltf s Reply ¶5; Pltf s Exhibit No. 6. On October 7, 2004, Santos 17 identified his son s body at a forensic medical laboratory. Pltf s 18 Exhibit No. 7; Pltf s SUMF No. 7; Defts Exhibit No. 9. 19 On February 22, 2005, Dr. RodrÃguez issued a Forensic Medical 20 Report, detailing the autopsy results. Defts Exhibit No. 9. The 21 report indicates that Maldonado died of natural causes, including 22 cardiac arrhythmia associated with intramyocardial pathway of the 23 left coronary artery and chronic drug use. Defts Exhibit No. 9. 24 Maldonado s death certificate, based on Dr. RodrÃguez report, Civil No. 05-2063 (SEC/JAF) -11- 1 indicates the same. Defts Exhibit No. 10. Dr. RodrÃguez report does 2 not indicate that she found any recent marks, bruising or external 3 injury on Maldonado s body. Defts Exhibit No. 9; Defts SUMF No. 51. 4 During September and October 2004, ArmendÃ¡riz was the Executive 5 Director 6 (AdministraciÃ³n de Servicios MÃ©dicos de Puerto Rico). Docket No. 51, 7 at 2, ¶3.6; Defts Exhibit No. 5. ArmendÃ¡riz does not know Plaintiff 8 or his father. Defts SUMF No. 54 and 55. No person directly 9 responsible for the care and treatment of Maldonado from the time of 10 his admission on January 29, 2004, until his death on October 4, 11 2004, 12 treatment. Defts SUMF No. 38. 13 of the conferred On Puerto with November 15, Rico Medical ArmendÃ¡riz 2006, the Services regarding Puerto Administration Maldonado s Rico Medical care or Services 14 Administration s Office of Legal Advice and Labor Relations issued an 15 investigative report detailing events leading up to the death of 16 Maldonado. Like the Forensic Medical Report, the investigative report 17 lists the cause of Maldonado s death to be cardiac arrhythmia and 18 chronic narcotism ( narcotismo crÃ³nico ). Pltf s Exhibit No. 9; 19 Pltf s Reply ¶11. 20 At the time of his death, Maldonado was in the custody of Manuel 21 VÃ©lez Medina ( Medina ), an Officer of the Department of Corrections. 22 Pltf s Exhibit No. 8; Pltf s Reply ¶8. Plaintiff submitted a logbook 23 entry, that would appear to have been written and signed by one 24 Officer Medina. Plft s Exhibit No. 8; Docket No. 145. According to Civil No. 05-2063 (SEC/JAF) -12- 1 the log, Medina made an entry in the logbook after returning to 2 BayamÃ³n 705 from the Puerto Rico Medical Center at approximately 3 9:50 a.m. The log indicates that Medina witnessed the medical team2 4 perform 5 Maldonado after finding him in physical distress the morning of 6 October 3 2004. According to the logbook, Medina inquired with two 7 different 8 Maldonado s emergency room physician, Carlos Tejeda, informed Officer 9 Medina that Maldonado died because he suffered some secretions which what they themselves physicians some kind of as to called the asphyxia, Respiratory cause but of did Therapies Maldonado s not mention on death. 10 provoked cardiac 11 arrhythmia. Doctor Lesliane Castro Santana of Internal Medicine, who 12 certified Maldonado s death, informed Medina that the cause of death 13 was cardiac infarction produced by cocaine and pneumonia. Pltf s 14 Reply ¶8; Pltf s Exhibit No. 8. 15 III. 16 Procedural Background 17 To clarify claims pending upon the filing of Defendants Motion, 18 we review the court s prior partial judgment. On June 19, 2006, the 19 court entered partial judgment on three motions to dismiss, or 20 alternatively, for a more definite statement pursuant to the court s 2 According to the logbook entry, the medical team consisted of Dr. Carlos Tejeda, an emergency room physician, Dr. Lesliane Castro Santana, of Internal Medicine, who certified Maldonado s death, and the following five nurses: Doris DÃ¡vila Cirino, JesÃºs Navarro, Araseli Matos, Francisca Castro, and Ana Figueroa. Civil No. 05-2063 (SEC/JAF) -13- 1 Opinion and Order of the same date. Docket Nos. 7, 15 and 31. The 2 court s entry of partial judgment dismissed with prejudice: (1) all 3 § 1983 claims brought by then Plaintiff Santos and JLSM, in their 4 personal 5 Plaintiffs claims against Defendant Puerto Rico Medical Center and 6 Defendants DÃaz, ArmendÃ¡riz, Pereira, Cartagena, and Santiago in 7 their official capacities; and (4) granted moving Defendants request 8 for a more definite statement. Docket Nos. 39 and 41. The court 9 ordered Plaintiff to file an amended complaint pursuant to deadlines 10 established in the court s forthcoming Case Management and Scheduling 11 Orders. Such amended complaint was to (1) include an averment as to 12 the capacity in which [Plaintiff] is suing and (2) specify what 13 constitutional rights of decedent they allege were violated and, as 14 to each violation, which Defendant or Defendants they allege is 15 responsible. Id. capacity; (2) all Plaintiffs § 1985 claims; (3) all 16 On July 7, 2006, Plaintiff untimely filed Plaintiff s Amended 17 Complaint.3 Docket Nos. 51. Plaintiff s Amended Complaint wholly 18 disregards the court s order, failing to specify the constitutional 19 rights . . . they allege were violated and . . . 20 Defendants 21 Plaintiff s Amended Complaint without objection, however. Docket 22 No. 53. 3 they allege is responsible. which Defendant or Defendants answered Subsequent to the filing of Plaintiff s Amended Complaint, Plaintiff successfully petitioned for leave to amend. Docket No. 61. Civil No. 05-2063 (SEC/JAF) 1 -14- On October 7, 2009, Defendants filed the pending Motion for 2 Summary Judgment 3 exhibits. Docket Nos. 121 and 125. In their Motion, Defendants argue 4 for the first time on record that Plaintiff failed to comply with the 5 court s order to amend. Docket No. 121, at. The court granted 6 Plaintiff two extensions of time to file his response to Defendants 7 Motion. Docket Nos. 127 and 135. Despite the court s leniency, on 8 December 5, 2008, Plaintiff filed his response two days late. Docket 9 No. 137. Even more troublesome, Plaintiff s response fails to clearly 10 admit, deny or qualify Defendants statement of material facts. Id. 11 As required, we considered all facts not clearly denied, to be 12 admitted. Fontanez-NuÃ±ez v. Janssen Ortho LLC, 447 F.3d 50 (1st Cir. 13 2006). 14 Plaintiff s Opposition. Docket No. 149. On and January Memorandum 26, 2009, of Law followed Defendants 15 supporting their Reply to IV. 16 filed by Analysis 17 A. Standard of Review 18 The standard for summary judgment is straightforward and well- 19 established. A district court should grant a motion for summary 20 judgment 21 interrogatories, 22 affidavits, if any, show that there is no genuine issue as to any 23 material fact and the moving party is entitled to a judgment as a 24 matter of law. FED . R. CIV . P. 56(c). A factual dispute is genuine if the pleadings, and depositions, admissions on file, and answers together to the with the Civil No. 05-2063 (SEC/JAF) -15- 1 if it could be resolved in favor of either party, and material if 2 it potentially affects the outcome of the case. Torres-Martinez v. 3 Puerto Rico Dept. of Corrections, 485 F.3d 19, 22 4 2007)(citing Calero-Cerezo v. U.S. Dep t of Justice, 355 F.3d 6, 19 5 (1st Cir. 2004)). (1st Cir. 6 The moving party carries the burden of establishing that there 7 is no genuine issue as to any material fact; however, the burden may 8 be discharged by showing that there is an absence of evidence to 9 support the nonmoving party s case. See Celotex Corp. v. Catrett, 10 477 U.S. 317, 325 (1986). The burden has two components: (1) an 11 initial burden of production, which shifts to the non-moving party if 12 satisfied 13 persuasion, which always remains on the moving party. See Freadman v. 14 Metropolitan Property and Cas. Ins. Co., 484 F.3d 91, 99-100 (1st 15 Cir. 2007). by the moving party; and (2) an ultimate burden of 16 The non-moving party may not rest upon the mere allegations or 17 denials of the adverse party s pleadings, but . . . must set forth 18 specific facts showing that there is a genuine issue for trial. FED . 19 R. CIV. P. 56(e). Summary judgment cannot be defeated by relying on 20 improbable inferences, conclusory allegations, or rank speculation. 21 Ingram v. Brink s, 414 F.3d 222, 228-29 (1st Cir.2005). Summary 22 judgment exists to pierce the boilerplate of the pleadings and 23 assess 24 Euromodas, Inc. v. Zanella, 368 F.3d 11, 16-17 (1st Cir. 2004)(citing the proof in order to determine the need for trial. Civil No. 05-2063 (SEC/JAF) -16- 1 Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 2 1992)). 3 4 5 6 7 B. 8 against Defendants Pereira, Cartagena, ArmendÃ¡riz, DÃaz-Correa, and 9 DÃaz-RomÃ¡n in their official capacity on the ground that such claims 10 were previously dismissed by the court with prejudice. Indeed, we 11 dismissed Plaintiff s Section 1983 official-capacity claims in our 12 prior Opinion, Order, and Partial Judgment, holding that Defendants 13 are entitled to Eleventh Amendment immunity. Docket No. 39 and 40 14 (June 19, 2006). Plaintiff nevertheless attacks the court s prior 15 partial judgment, arguing that Defendants do not qualify for any 16 immunity. Docket No. 137, at 22. Plaintiff s Section 1983 claims against Defendants Pereira, Santiago, Cartagena, ArmendÃ¡riz, DÃaz and RomÃ¡n, in their official capacities. Defendants argue for dismissal of Plaintiff s Section 1983 claims 17 In support of his argument, Plaintiff relies solely on an excerpt 18 from the United States Supreme Court s opinion in Padilla RomÃ¡n v. 19 HernÃ¡ndez PÃ©rez, 381 F.Supp. 2d 17 ( Third, a citizen may seek 20 monetary damages against a state officer for acts done while the 21 officer 22 Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 23 (1985)). Plaintiff s reliance on Padilla and Kentucky is misplaced. 24 In Padilla, this court relied on Kentucky for the proposition that a 25 citizen may seek monetary damages against a state officer for acts 26 done while the officer was acting in his or her official capacity. was acting in his or her official capacity. ) (citing Civil No. 05-2063 (SEC/JAF) -17- 1 But, the above language from Padilla refers to Section 1983 suits 2 brought against state officers in their personal capacity, not their 3 official capacity. This is evident on review of the Supreme Court s 4 opinion in Kentucky.4 Kentucky reiterates the difference between 5 official-capacity and personal-capacity suits brought pursuant to 6 Section 1983, namely, that citizens may seek monetary damages against 7 state officers in their personal capacity for acts done while acting 8 in their official capacity. Kentucky, 473 U.S. at 166, 105 S.Ct. at 9 3105, 87 L.Ed.2d 114 (1985) ( On the merits, to establish personal 10 liability in a section 1983 action, it is enough to show that the 11 official, acting under color of state law, caused the deprivation of 12 a federal right. ) (citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 13 473, 5L.Ed.2d 492 (1961)). 14 It is well-established that an award of damages in federal court 15 against state officers sued in their official capacity under Section 16 1983 is barred by the Eleventh Amendment. See Docket No. 39, at 14- 17 16. The court s prior Partial Judgment stands as the law of the case. 18 Gener-Villar v. Adcom Group, Inc., 530 F.Supp.2d 392, 403, fn 7 19 (D.P.R. 2007) ( the law of the case . . . is invoked to require a 20 court to follow its own rulings in a case ). Accordingly, Plaintiff s 21 Section 1983 claims brought against Defendants in their official 4 In Kentucky, the Supreme Court held that a prevailing plaintiff cannot recover attorney s fees from a governmental entity pursuant to 42 U.S.C. § 1988 when they sue governmental employees in their personal capacities and prevail. Civil No. 05-2063 (SEC/JAF) -18- 1 capacity are DISMISSED pursuant to the court s prior Opinion, Order 2 and Partial Judgment. Docket Nos. 39 and 40. 3 4 5 6 7 C. 8 on 9 Defendants contend that Plaintiff s Amended Complaint fails to state 10 a Section 1983 personal-capacity claim against Defendants because 11 Plaintiff s claims are based on conduct carried out under color of 12 state 13 untenable. Clearly, Plaintiff s Amended Complaint refers to the 14 conduct of Defendants acting under color of state law, but this 15 allegation is necessary, not detrimental, to Plaintiff s Section 1983 16 personal-capacity claims. Personal liability in a Section 1983 action 17 is predicated on a [state] official, acting under color state law, 18 causing the deprivation of a federal right. Hafer v. Melo, 502 U.S. 19 21, 20 supplied). 21 Plaintiffs Section 1983 claims against Defendants Pereira, Santiago, Cartagena, ArmendÃ¡riz, DÃaz and RomÃ¡n in their personal capacities. Defendants present two arguments in support of summary judgment Plaintiff s law. 25, Docket 112 Second, Section S.Ct. No. 358, Defendants claims 1983 121, 362, personal-capacity at 05-06. 116 contend should be Defendants L.Ed.2d that claims. 301 summarily argument (1991) Plaintiff s First, is (emphasis Section dismissed 1983 22 personal-capacity because 23 Plaintiff fails to establish a causal connection between the conduct 24 of Defendants and the alleged deprivation of rights, privileges or 25 immunities secured by the Constitution. Defendants second argument 26 is well-taken. Civil No. 05-2063 (SEC/JAF) -19- 1 The essential elements of a section 1983 claim are that (1) the 2 defendants acted under color of state law and (2) the defendants 3 conduct worked a denial of rights secured by the Constitution or by 4 federal law. Rodriguez-Cirillo v. Garcia, 115 F.3d 50, 52 (1st 5 Cir.1997) (citing Martinez v. ColÃ³n, 54 F.3d 980, 984 (1st Cir.1995)). 6 To 7 defendants 8 deprivation. Rodriguez, 115 F.3d at 52 (citing Gutierrez-Rodriguez 9 v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989)) (emphasis supplied). 10 Supervisory liability under 42 U.S.C. 1983, cannot be predicated 11 on a respondeat superior theory . . . but only on the basis of [the 12 supervisor s] own acts or omissions. Seekamp v. Michaud, 109 F.3d 13 802, 808 (1st Cir.1997) (citing Sanchez v. Alvarado, 101 F.3d 223, 227 14 (1st Cir.1996)). 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 satisfy the second conduct element, was the plaintiffs cause in must fact of show the [A] supervisor: can be held liable . . . if (1) the behavior of [his] subordinates results in a constitutional violation, and (2) the [supervisor] s action or inaction was affirmative[ly] link[ed] to that behavior in that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence amounting to deliberate indifference. Moreover, the indifference required to support supervisory liability under section 1983 must be deliberate, reckless or callous. Thus, the affirmative link required between the action or inaction of a supervisor and the behavior of subordinates contemplates proof that the supervisor s conduct led inexorably to the constitutional violation. that the alleged Civil No. 05-2063 (SEC/JAF) -20- 1 Id. (citations omitted). In determining supervisory liability under 2 Section 1983 for a constitutional violation, an important factor to 3 consider is whether the official was put on some kind of notice of 4 the alleged violations. Lipsett v. Univ. of Puerto Rico, 864 F.2d 5 881, 902 (1st Cir.1988). 6 7 8 9 10 11 12 13 14 [O]ne cannot make a deliberate or conscious choice to act or not to act unless confronted with a problem that requires the taking of affirmative steps. Once an official is so notified, either actually or constructively, it is reasonable to infer that the failure to take such steps, as well as the actual taking of them constitutes a choice from among various alternatives. 15 Id. (citations omitted). It is critical to remember when considering 16 the liability of a supervisor for an alleged constitutional violation 17 that a constitutional violation by a subordinate is a predicate to 18 a supervisor s liability. Mendez v. Toledo, 968 F.Supp. 27, 36 19 (D.P.R. 1997). A supervisor cannot be held accountable if his or her 20 subordinate did not violate a constitutional right. Id. 21 Having thoroughly combed the record, the court now considers 22 Defendants alleged conduct against the above authority. Docket 23 No. 137, at 22. 24 25 26 27 1. Plaintiff s Section 1983 claims against Defendant RomÃ¡n in his personal capacity. Plaintiff generally contends that RomÃ¡n s actions violated 28 Maldonado s right to life, physical integrity, freedom from bodily 29 harm, and due process of law in violation of the Fourth, Fifth, Civil No. 05-2063 (SEC/JAF) -21- 1 Eighth, and Fourteenth Amendments. Docket No. 137, at 22. The Eighth 2 Amendment is not applicable here because there was never a formal 3 adjudication of guilt through the criminal prosecution of Maldonado. 4 McLeod-Lopez v. Algarin, 2009 WL 736118, *5; Martinez-Rivera v. 5 Sanchez-Ramos, 498 F.3d 3, 8 (1st Cir.2007)( because there had been 6 no formal adjudication of guilt against [Plaintiffs] at the time of 7 the alleged constitutional deprivation, the Eighth Amendment is 8 inapplicable and any claim brought on that theory was properly 9 dismissed. ). Furthermore, excessive force claims like Plaintiff s 10 are not actionable under the Fifth and Fourteenth Amendments. Graham 11 v. Connor, 490 U.S. 386, 395 (1989) ( all claims that law enforcement 12 officers have used excessive force-deadly or not-in the course of 13 . . . [the] seizure of a free citizen should be analyzed under the 14 Fourth Amendment and its reasonableness standard, rather than under 15 a substantive due process approach. ); Terry v. Ohio, 392 U.S. 1, 16 16 (1968)(writing that the Fourth Amendment applies whenever a 17 police officer accosts an individual and restrains his freedom to 18 walk away. ). We, therefore, limit our analysis to RomÃ¡n s liability 19 for an alleged unreasonable seizure in violation of the Fourth 20 Amendment. 21 Under the Fourth Amendment, all persons are entitled to be 22 secure in their persons . . . against unreasonable searches and 23 seizures. In a traditional sense, a seizure occurs [o]nly when 24 the officer, by means of physical force or show of authority, has in Civil No. 05-2063 (SEC/JAF) -22- 1 some way restrained the liberty of a citizen. Terry, 392 U.S. at 19, 2 n.16. 3 acquisition of physical control and a governmental termination of 4 freedom of movement through means intentionally applied. Brower v. 5 County of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 6 (1989). To prevail on a claim for violation of the Fourth Amendment 7 based on the use of excessive force, a plaintiff must show that the 8 defendant officer employed an unreasonable amount of force under the 9 circumstances. Mcleod-Lopez v. Algarin, 2009 WL 736118, *7 (D.P.R. 10 2009); Jennings v. Jones, 499 F.3d 2, 11 (1st Cir.2008). A Fourth 11 Amendment 12 determined in light of the facts and circumstances confronting [the 13 officer], without regard to their underlying intent or motivation. 14 Graham, 490 U.S. at 397. Facts of particular relevance include the 15 severity 16 immediate threat to the safety of the officers or others, and whether 17 he is actively resisting arrest or attempting to evade arrest by 18 flight. Id. at 396. More recent jurisprudence reasonableness of the crime inquiry at issue, would is require an an objective whether the intentional test, suspect to poses be an 19 A Fourth Amendment violation may also occur when persons acting 20 under color of state law maliciously prosecute baseless criminal 21 charges, provided that such prosecution occasions a deprivation of 22 liberty 23 McSweeney, 241 F.3d 46, 54 (1st Cir.2001); Britton v. Maloney, 196 24 F.3d 24, 28 (1st Cir.1999). Notably, it is the deprivation of liberty consistent with the concept of a seizure. Nieves v. Civil No. 05-2063 (SEC/JAF) -23- 1 resulting from the prosecution, not the prosecution itself, that 2 triggers a Fourth Amendment claim under Section 1983. What suffices 3 for a seizure arising from prosecution of unfounded charges varies 4 among the circuits. We need not review these cases in depth here for 5 the reasons provided below. See, e.g., Gallo v. City of Philadelphia, 6 161 F.3d 217, 222 (3rd Cir.1998) (concluding that conditions imposed 7 on pretrial release, including the payment of a bond and restrictions 8 on travel, effected a seizure). 9 We now turn to whether the evidence submitted by Plaintiffs in 10 support of their allegations is sufficient to sustain a claim against 11 RomÃ¡n for violation of the Fourth Amendment under either of the 12 aforementioned theories. Plaintiff s Section 1983 claims against 13 RomÃ¡n 14 violation of the Fourth Amendment are based, in part, on allegations 15 that RomÃ¡n filed an untrue report and complaint, acts which led to 16 Maldonado s incarceration pending trial for the alleged violation of 17 Law 22, Art. 9.02G of the Transit Law. Docket No. 51, ¶¶ 3.2, 4.1, 18 4.3, 19 constitute 20 Amendment if RomÃ¡n in fact issued the citation for violation of 21 Traffic Law 22 without cause. The evidence simply does not support 22 such a conclusion, however. Plaintiff offers no evidence to counter 23 the sworn statement of Defendant RomÃ¡n that he found Maldonado 24 walking in a negligent manner, moving from side to side of the for 4.4, the alleged 4.8, an and unreasonable 4.13. unreasonable The seizure incarceration seizure in of of violation Maldonado Maldonado of the in may Fourth Civil No. 05-2063 (SEC/JAF) and lying down in -24- 1 street, the middle of the street, Officer 2 Luciano s corroborating testimony, and a finding of probable cause by 3 Judge MelÃ©ndez. Defts Exhibit No. 6. Accordingly, we find that the 4 incarceration of Maldonado pending trial did not constitute an 5 unreasonable seizure in violation of the Fourth Amendment. 6 Regarding the alleged use of excessive force by RomÃ¡n against 7 Maldonado, the evidence is not so heavily weighted. Plaintiff submits 8 the eyewitness testimony of VÃ©lez, who avers that in mid-August, he 9 saw RomÃ¡n hit Maldonado in the back of the neck with his hand and in 10 the lower stomach with a black-jack. VÃ©lez further avers that he 11 witnessed 12 Defendants counter VÃ©lez version of the events with the sworn 13 statement of RomÃ¡n and a statement provided by Officer Luciano in an 14 investigative interview. Luciano was with RomÃ¡n when he intervened 15 with Maldonado on September 27, 2004, but apparently not in August 16 2004. Luciano s statement as to what occurred on September 27, 2004, 17 makes no reference at all to physical abuse. But, Luciano s statement 18 does not expressly state that such abuse did not occur. RomÃ¡n hit Maldonado again on September, 27, 2004. 19 In consideration of the above submissions, we find an issue of 20 material fact to exist regarding Plaintiff s Section 1983 claim 21 against RomÃ¡n for the alleged violation of Maldonado s right to be 22 free from unreasonable seizure. Under the record presently before the 23 court, summary disposition of Plaintiff s Fourth Amendment claim 24 against RomÃ¡n would, therefore, be inappropriate. Accordingly, Civil No. 05-2063 (SEC/JAF) 1 Defendants 2 Defendant RomÃ¡n in his personal capacity for violation of the Fourth 3 Amendment is hereby DENIED. 4 5 6 2. Motion on -25- Plaintiff s Section 1983 claims against Plaintiff s Section 1983 claims against Defendants Santiago and Cartagena in their personal capacities. There is no evidence in the record to affirmatively link the 7 conduct of Defendant Santiago, 8 Defendant Cartagena, the Superintendant of Puerto Rico Police, to the 9 allegedly unconstitutional intervention by RomÃ¡n. Plaintiff does not 10 deny that Defendants Cartagena and Santiago had no direct involvement 11 with Maldonado s case. There is no evidence in the record to suggest 12 that RomÃ¡n conferred with Cartagena or Santiago regarding events that 13 occurred on September 27, 2004, when Roman intervened with Maldonado. 14 Although Santiago 15 evidence before 16 understanding the report to be false. There is simply no connection 17 between the conduct of Cartagena and Santiago and the allegedly 18 unconstitutional conduct of RomÃ¡n. Accordingly, Defendants Motion on 19 Plaintiff s Section 1983 claims against Defendants Santiago and 20 Cartagena in their personal capacities is GRANTED. signed the Officer RomÃ¡n s court to RomÃ¡n s incident suggest supervisor, report, that there Santiago and is no did so 21 22 3. Plaintiff s Section 1983 claims against Defendants Pereira and DÃaz in their personal capacities. 23 There is no evidence in the record to affirmatively link the 24 conduct of Defendant Pereira, the Secretary of Corrections, or 25 Defendant DÃaz, the Superintendent of BayamÃ³n Correctional Complex, Civil No. 05-2063 (SEC/JAF) -26- 1 to the incarceration and treatment of Maldonado in Infirmary 448. 2 More 3 violation by subordinate employees, a prerequisite to supervisory 4 liability. importantly, there is no clear, underlying constitutional 5 Contrary to Plaintiff s assertions, at the time of Maldonado s 6 incarceration in Infirmary 448 of BayamÃ³n s 308 Institution, the 7 Correctional Health Services Program had an established protocol for 8 the 9 Noticeably absent from the record, however, is any evidence that 10 employees of the Department of Corrections deviated from the guide s 11 prescriptions or that Defendants encouraged, condoned or acquiesced 12 in such behavior. There is not a scintilla of evidence to support 13 Plaintiff s Section 1983 personal-capacity claims against Defendants 14 Perira and DÃaz. Accordingly, Defendants Motion on Plaintiff s 15 Section 1983 claims against Defendants Pereira and DÃaz is GRANTED. caring of inmates with drug addictions. Docket No. 133. 16 17 4. Plaintiff s Section 1983 claims against Defendant ArmendÃ¡riz in his personal capacity. 18 There is no evidence in the record to affirmatively link the 19 conduct of Defendant ArmendÃ¡riz, the Executive Director of the Puerto 20 Rico Medical Center, to the care and treatment of Maldonado while he 21 was a patient at the Puerto Rico Medical Center. It is undisputed 22 that Defendant ArmendÃ¡riz never met Maldonado and did not confer with 23 attending 24 Maldonando s physicians, care and nurses, or treatment. other employees Plaintiff appears regarding to base Civil No. 05-2063 (SEC/JAF) 1 ArmendÃ¡riz 2 establish, implement, and/or make sure, that his employees followed 3 a protocol for the care and treatment of street people with drug 4 addictions. 5 assertion that such a protocol did not exist. But, the court finds 6 the 7 inconsequential. It is the primary mission of the Puerto Rico Medical 8 Center to provide medical care to people who are ill. An established 9 protocol for the treatment of each type of illness would hardly seem 10 liability Defendant existence or solely -27on ArmedÃ¡riz nonexistence ArmedÃ¡riz does of not such alleged dispute a failure to Plaintiff s protocol to be necessary. 11 That said, Plaintiff s submissions do raise some interesting 12 issues. With the support of medical expert testimony, Maldonado s 13 medical records may create an issue of fact as to whether Maldonado 14 received adequate attention after 9:00 p.m. on October 2, 2009. 15 Defts Exhibit No. 8. A medical expert s opinion on reports provided 16 by doctors to Officer Medina may bring into question whether the 17 forensic medical report accurately documented Maldonado s cause of 18 death. But again, there is no evidence in the record before this 19 court that Defendant ArmendÃ¡riz encouraged, condoned or acquiesced in 20 the delivery of substandard care to Maldonado or a misdiagnosis as to 21 his cause of death. Accordingly, Defendants Motion on Plaintiff s 22 Section 1983 claims against Defendant ArmendÃ¡riz in his official 23 capacity is GRANTED. Civil No. 05-2063 (SEC/JAF) -28- 1 V. 2 Conclusion 3 For the reasons stated above, Defendants Motion for Summary 4 Judgment is GRANTED in part. Plaintiff s Section 1983 claims against 5 all Defendants in their official capacities are DISMISSED pursuant to 6 the court s prior Opinion, Order, and Partial Judgment. Docket 7 Document Nos. 39 and 40. Defendants Motion on Plaintiff s Section 8 1983 claims against Defendants Santiago, Cartagena, Pereira, DÃaz, 9 and ArmendÃ¡riz in their personal capacities is GRANTED. Having 10 summarily disposed of 11 Defendants 12 Plaintiff s 13 § 1367(a) against the same Defendants are DISMISSED with prejudice. 14 28 U.S.C. § 1367(c)(3). Santiago, Plaintiff s Cartagena, supplemental claims Section Pereira, brought 1983 DÃaz, claims and pursuant against ArmendÃ¡riz, to 28 U.S.C. 15 Following disposition of Defendants Motion, the issue remaining 16 to be adjudicated in this case is Plaintiff s Section 1983 claim 17 against Defendant RomÃ¡n for an alleged Fourth Amendment violation. 18 IT IS SO ORDERED. 19 San Juan, Puerto Rico, this 27th day of March, 2009. 20 21 22 S/JosÃ© Antonio FustÃ© JOSE ANTONIO FUSTE Chief U. S. District Judge

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