Miranda-Rivera v. Toledo-Davila

United States Court of Appeals
For the First Circuit
No. 14-1535
NORMA IRIS MIRANDA-RIVERA; THE ESTATE OF CHRISTOPHER ROJAS
MIRANDA; NANCY I. TRINIDAD-TORRES, on behalf of her minor child
C.Y.R.T.,
Plaintiffs, Appellants,
GABRIEL ROJAS-PIRIS,
Plaintiff,
v.
PEDRO TOLEDO-DÁVILA, Superintendent, Police of Puerto Rico;
MIGUEL RODRÍGUEZ-CRESPI, Sergeant; WILLIAM PÉREZ-SOTO, Police
Officer,
Defendants, Appellees,
ANIBAL ACEVEDO-VILA, Governor for the Commonwealth of Puerto
Rico; ROBERTO SÁNCHEZ-RAMOS, Secretary of Justice, Commonwealth
of Puerto Rico; ORLANDO RIVERA-LUGARDO; JUAN JOSÉ TOLEDO-
BAYOUTH; JOSÉ TOLEDO-BAYOUTH; FERNANDO TOLEDO-BAYOUTH; PEDRO J.
TOLEDO-BAYOUTH; JOHN DOE, Police Officer, Toa Baja; INSURANCE
COMPANY ABC, INC.; RICHARD ROE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel E. Domínguez, U.S. District Judge]
Before
Barron, Hawkins,* and Lipez,
Circuit Judges.
Pedro R. Vázquez, III, with whom José F. Quetglas Jordan was
on brief for appellant.
Susana I. Peñagarícano Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, was
on brief for appellees.
February 12, 2016
* Of the Ninth Circuit, sitting by designation.
HAWKINS, Circuit Judge. Christopher Rojas Miranda
("Rojas") was arrested by Puerto Rico Police Department ("PRPD")
officers for driving under the influence. Shortly after they
brought him to the police station, he died in a holding cell. His
family members and estate brought suit under 42 U.S.C. § 1983,
alleging that the arresting officers used excessive force against
Rojas and denied him needed medical care. The district court
granted summary judgment on these claims on insufficient evidence
and qualified immunity grounds. We affirm in part and reverse and
remand in part.
I. Background
A. Facts
At around 8:20 p.m. on April 10, 2007, PRPD officers
William Pérez Ortiz ("Pérez") and Orlando Rivera Lugardo
("Rivera") observed Rojas driving at a high speed, running
stoplights, and swerving. They chased him in their patrol car
until he stopped at the side of the road. At their direction,
Rojas exited his car and put his hands on the trunk of the car.
Pérez asked Rojas if he was all right and began explaining why
they stopped him. At first, Rojas did not respond, but then,
keeping his hands on the trunk and looking everywhere, he began
screaming that a car was following him and that someone was trying
to kill him. As Rojas continued to scream and began using foul
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language, Pérez reached for his handcuffs. Rojas turned around
abruptly and knocked Rivera's portable radio out of his hands.
There was then a brief scuffle between Pérez, Rivera,
and Rojas. All three fell to the ground. Rojas hit the ground
with his chest or stomach. Pérez cuffed Rojas's hands behind his
back as Rojas was prone on the ground. He then let Rojas sit up
and Rojas sat calmly for a little while as Rivera radioed for
assistance. As other officers came on the scene, Rojas again
began screaming in foul language that someone wanted to kill him.
Pérez, Rivera, and a third officer then put Rojas into Pérez's
patrol car. Rojas tried to put his legs up against the doorframe
so that they could not get him in the car, so they picked up his
legs to get him into the car, secured his seatbelt, and closed the
door. While inside the car, Rojas continued to scream the same
things.
During this encounter, according to Officers Pérez and
Rivera and a bystander named José Candelaria, Rojas looked nervous,
sweaty, pale, wild-eyed, had veins bulging at his temple, a
purplish tint to his forehead, temples, and cheeks, and blackish
lips. He did not appear injured except that, according to
Candelaria, he had a small cut on his lips.
When Sergeant Miguel Rodríguez Crespi ("Rodríguez")
arrived on the scene, Rojas was already in the squad car, still
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screaming. After Pérez and Rivera explained the situation to him,
Rodríguez said they should take him to a medical facility. Rivera
suggested that they take him to the police station instead, since
Rojas might injure people at the medical facility. Rodríguez
agreed, so Pérez and Rivera took Rojas to the police station in
their patrol car. Rojas continued to shout incoherently during
the drive, which lasted a few minutes. Rodríguez drove
separately.
Upon arrival at the police station, Rodríguez observed
Pérez and Rivera getting Rojas into the holding cell. Rojas tried
to put his legs against the doorframe again, and he also started
kicking, although he did not land a kick on either officer. Once
they managed to get him in the cell, Pérez and Rivera decided to
place him face down on the ground, still cuffed at the wrists
behind his back. They put tie wraps on his ankles so he could not
open his legs. While they were restraining him, Pérez did not
observe any injuries or bruises on Rojas's body. Desk officer
Noelia Quiñones observed that, when he arrived at the police
station, Rojas's face and lips were purple, but he did not appear
to have suffered any blows. While Rojas was in the cell, Quiñones
did not hear a struggle between him or anyone else.
As Rojas continued to scream, Pérez and Rivera left him
in the cell and closed the cell door. Pérez instructed Quiñones
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to call the paramedics, which she did at 9:38 p.m. After a few
minutes, Rojas continued to speak incoherently, but at a lower
volume. Pérez could see through the cell window that Rojas stayed
on his stomach on the floor the entire time and that Rojas's
forehead and temple became more and more purple. Eventually,
Rojas stopped speaking altogether. Pérez instructed Quiñones to
call again. When the paramedics arrived at 9:48 p.m., Pérez
hurried out to meet them because he thought Rojas was dead or
dying. At 9:50 p.m., the paramedics declared that Rojas had no
vital signs.
Rojas's body was found with blood coming from his mouth;
multiple lacerations, contusions, and abrasions throughout his
body, including on his face, chin, shoulders, wrists, and legs;
subarachnoid hemorrhage in his brain; and other injuries. The
autopsy report lists the cause of death as bodily trauma and
cocaine intoxication; the manner of death, "accident."
B. Procedural History
Plaintiffs filed the operative complaint, the second
amended complaint, on April 9, 2012.1 Plaintiffs alleged that
1 The plaintiffs are Nancy I. Trinidad Torres, on behalf of her
and Rojas's minor son C.Y.R.T., who appears on his own behalf and
on behalf of Rojas's estate; and Rojas's mother Norma Miranda on
her own behalf and on behalf of her minor son, Rojas's brother
J.L.M.
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Defendants, Officer Pérez, Sgt. Rodríguez, and then-PRPD
Superintendent Pedro Toledo-Dávila ("Toledo"),2 violated Rojas's
Fourth and Fourteenth Amendment rights against unreasonable search
and seizure, excessive use of force, and denial of urgent medical
care. Plaintiffs also alleged a number of Puerto Rican law claims.
The district court granted summary judgment on
Plaintiffs' various Fourth and Fourteenth Amendment claims. It
held that any claims against Defendants in their official capacity
for monetary damages were barred by the Eleventh Amendment. On
the merits, it held that Defendants had probable cause to stop
Rojas's car and that no reasonable jury could find that Defendants
used excessive force in transporting and detaining Rojas at the
police station.3 Regarding denial of medical care, it held that
there was insufficient evidence that Defendants were deliberately
indifferent to a serious medical need. The court also held that
there was insufficient evidence to support any supervisory
liability claims against Sgt. Rodríguez or Superintendent Toledo
and that Defendants were entitled to qualified immunity on the
2 Default judgment was entered against Officer Rivera earlier in
the litigation.
3 Plaintiffs concede that there was no excessive force in the
initial arrest, but contend that Defendants used excessive force
in putting Rojas into the patrol car and restraining him in the
holding cell.
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excessive force and medical care claims. After dismissing the
federal claims, the district court declined to exercise
supplemental jurisdiction over the remaining Puerto Rican law
claims and dismissed them without prejudice.
On appeal, Plaintiffs challenge only the district
court's decisions on the excessive force and denial of medical
care claims and supervisory liability.
II. Standard of Review
A district court's grant of summary judgment is
reviewed de novo. United States ex rel. Jones v. Brigham & Women's
Hosp., 678 F.3d 72, 83 (1st Cir. 2012). Summary judgment is
properly granted if the movant can demonstrate that "there is no
genuine dispute as to any material fact and that the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
A "genuine" dispute exists when a jury can reasonably interpret
the evidence in the non-movant's favor. A "material" fact is "one
that might affect the outcome of the suit under the governing law."
Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145, 150 (1st Cir. 2006)
(quoting Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746,
748 (1st Cir. 1994)).
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III. Discussion
A. Excessive Force Claim Against Officer Pérez
The district court granted summary judgment in favor of
Officer Pérez on Plaintiffs' excessive force claim on insufficient
evidence and qualified immunity grounds. We reverse and remand
for trial because there appears sufficient evidence for Plaintiffs
to survive summary judgment and because, regardless of whether the
Fourth and Fourteenth Amendment standard applied, a reasonable
officer would have known that it was unconstitutional to apply
force in the way that the officers here appear to have done in
transporting and incarcerating an arrestee, where the arrestee was
already physically restrained and did not pose a great physical
threat to the officers.
1. Legal Standard for Excessive Force Claims
Brought by Arrestees
As a preliminary matter, we note that the district court
correctly applied an objective reasonableness standard to
Plaintiffs' excessive force claim. The Supreme Court has
historically reserved the question of whether the Fourth Amendment
standard of objective reasonableness or a Fourteenth Amendment
substantive due process standard requiring a defendant to have a
"sufficiently culpable state of mind," Cottrell v. Caldwell, 85
F.3d 1480, 1491 (11th Cir. 1996), applies to persons who have been
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arrested but who are not yet "pretrial detainees" because they
have not yet gone before a magistrate judge for a probable cause
hearing. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989); Bell
v. Wolfish, 441 U.S. 520, 536 (1979) (defining a pretrial detainee
as someone who has had a "judicial determination of probable cause
as a prerequisite to [the] extended restraint of [his] liberty
following arrest" (alterations in original)). At the time of the
district court's decision, other circuits were split over this
question. Compare Currie v. Chhabra, 728 F.3d 626, 629 (7th Cir.
2013), Aldini v. Johnson, 609 F.3d 858, 867 (6th Cir. 2010), Wilson
v. Spain, 209 F.3d 713, 715 (8th Cir. 2000), United States v.
Johnstone, 107 F.3d 200, 206 (3d Cir. 1997), Pierce v. Multnomah
Cty., 76 F.3d 1032, 1042-43 (9th Cir. 1996), Austin v. Hamilton,
945 F.2d 1155, 1160 (10th Cir. 1991), abrogated on other grounds,
Johnson v. Jones, 515 U.S. 304 (1995), and Powell v. Gardner, 891
F.2d 1039, 1043-44 (2d Cir. 1989), with Riley v. Dorton, 115 F.3d
1159, 1162-64, 1166 (4th Cir. 1997), abrogated on other grounds,
Wilkins v. Gaddy, 559 U.S. 34 (2010), Cottrell, 85 F.3d at 1490,
and Brothers v. Klevenhagen, 28 F.3d 452, 455-57 (5th Cir. 1994).
The First Circuit has not yet answered the question, although some
district courts within the First Circuit have applied the majority
rule. Moreau v. Gerardi, No. CIV.A. 08-40117-FDS, 2010 WL
4961676, at *11 (D. Mass. Nov. 24, 2010); see also Rivera-García
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v. Román-Carrero, 938 F. Supp. 2d 189, 198-99 (D.P.R. 2013)
(rejecting argument that the Fourteenth Amendment applied from the
moment a suspect was "neutralized" by being handcuffed).
Since then, the Supreme Court has held that the
appropriate standard for a pretrial detainee's Fourteenth
Amendment excessive force claim is simply objective
reasonableness. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-
74 (2015) (holding that a pre-trial detainee need not necessarily
prove the officer's intent to harm or punish, only that, from an
objective viewpoint, the officer's action was "not rationally
related to a legitimate governmental objective or that it [was]
excessive in relation to that purpose."). Since Kingsley has
extended the objective reasonableness standard for use of force
from the arrest stage through the probable cause hearing, whether
the Fourth or Fourteenth Amendment standard applies presents less
of a problem in cases like this one than before.
In this case, the district court "identif[ied] the
specific constitutional right allegedly infringed by the
challenged application of force," Graham, 490 U.S. at 394, as the
Fourth Amendment's protection against unreasonable seizures. The
parties do not challenge that holding, and we have no reason to do
so as the alleged use of excessive force here occurred while
Officers Pérez and Rivera were transporting Rojas to the police
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station and then to a jail cell. Given these facts, and given the
authority favoring the application of the Fourth Amendment to
similar factual scenarios, we apply the Fourth Amendment standard
to Rojas's excessive force claim. See Wilson, 209 F.3d at 715-16(applying the Fourth Amendment to a claim based on force used
against an arrestee just moments after he was first placed in a
holding cell); Johnstone, 107 F.3d at 206-07 (applying the Fourth
Amendment where an officer had allegedly assaulted an arrestee "in
the police station garage, after he had been transported from the
scene" of his initial encounter with the officer); Moreau, 2010 WL
4961676, at *11 (applying the Fourth Amendment where the alleged
excessive force took place after the plaintiff "had just completed
the booking process," "a few hours" after the plaintiff's arrest
began).
2. Evidence of Excessive Force
Defendants admit that Pérez and Rivera used physical
force to get Rojas into the patrol car and into the holding cell.
Defendants claim that they only used the level of force necessary
to get Rojas to comply, since Rojas resisted getting into the car
and holding cell. This version of events is supported by
deposition testimony from Officer Pérez, who used force against
Rojas, and deposition testimony from Sgt. Rodríguez and a
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declaration from Officer Quiñones, who observed Pérez and Rivera
putting Rojas in the holding cell.
Plaintiffs present no evidence to contradict Defendants'
account of how Rojas was behaving on the way to the holding cell.
Given the undisputed description of Rojas's behavior, Pérez was
justified in using some level of force to compel Rojas to get into
the patrol car and holding cell. It is reasonable to expect that
Rojas would have some injuries. The question is whether the
injuries he actually suffered can support a factual finding that
Pérez used an unreasonable level of force on him.
Evidence of excessive force includes (1) photos of
Rojas's body, (2) the autopsy report's descriptions of his internal
injuries, (3) Dr. Shaker's expert opinion that Rojas's injuries
are consistent with severe bodily trauma to the head and chest,
and (4) the opinion of Lou Reiter, an expert witness on police
practices, that Rojas's injuries resulted from "a use of force
contrary to generally accepted police practices and excessive for
the circumstances described by the arresting officers."
Plaintiffs also emphasize that no one saw any injuries on Rojas's
face at the arrest site (except a small cut to his lip) and yet,
at the time of his death, Rojas had blood coming from his mouth,
multiple abrasions, contusions, and lacerations throughout his
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body, including his face, chin, shoulders, wrists, and legs, and
subarachnoid hemorrhage in his brain.
Defendants respond with a declaration from the author of
the autopsy report, Dr. Edda L. Rodríguez Morales, who opines that
the injuries on the face were consistent with a fall, not a fist
to the face, and that the subarachnoid hemorrhage in the brain is
associated with cocaine use, not external trauma to the head. She
clarified that even though she listed both bodily trauma and
cocaine intoxication as causes of death on the autopsy report, she
meant that the cause of death was "corporal trauma as a result of
the cocaine intoxication."
This record shows a genuine dispute as to whether Officer
Pérez used excessive force when transporting Rojas to the holding
cell. In their summary judgment briefing and on appeal, the
parties engaged in a battle of the experts regarding whether the
cause of Rojas's death was cocaine-induced stroke or bodily trauma,
but the specific causation is not necessary to determine whether
there was a constitutional violation. Certainly, if a savage
beating was the sole or primary cause of death, that would be
strong evidence of excessive force. However, Pérez could still
be liable for using excessive force even if Rojas had not died or
if his death was caused only by cocaine intoxication. Cf. Wilkins,
559 U.S. at 37 (holding in the Eighth Amendment context that proof
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of a significant injury is probative, but not required to succeed
on a convicted prisoner's excessive force claim).
Here, a jury could look at the photos of Rojas's body,
the autopsy report, eyewitness accounts of Rojas's lack of visible
injuries before the police transported him, Reiter's opinion, and
the autopsy report's listing of bodily trauma as a cause of death
(even though Dr. Rodríguez has seemingly backed away from that
conclusion and even though the autopsy report said the manner of
death was "accident"), and reasonably conclude that the bodily
trauma was the result of Pérez using excessive force against Rojas
while transporting him to the holding cell.4 The evidence could
also easily support the opposite conclusion -- that there was some
other cause for the bodily trauma or that the level of force used
was not excessive. However, when the evidence supports a
reasonable inference in the non-movant's favor, there exists a
genuine issue of material fact that precludes summary judgment.
The district court erred in holding otherwise.
4 Dr. Shaker's opinion that Rojas was beaten after he was shackled
at the wrists and ankles and that his death was caused by bodily
trauma is helpful to Plaintiffs' case, but not necessary for
Plaintiffs' claim to survive summary judgment. Thus, we do not
opine on the correctness of the district court's treatment of Dr.
Shaker's report.
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3. Qualified Immunity
Determining whether a defendant is entitled to qualified
immunity involves two questions: (1) "whether the facts that a
plaintiff has alleged . . . or shown . . . make out a violation of
a constitutional right," Pearson v. Callahan, 555 U.S. 223, 232
(2009) (citations omitted); and (2) "whether the right at issue
was 'clearly established' at the time of defendant's alleged
misconduct," id. (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)).
Since there is sufficient evidence to make out an
excessive force claim, Pérez is not entitled to qualified immunity
on the first ground.
Nor is Officer Pérez entitled to qualified immunity on
the "clearly established" ground. The district court stated in a
footnote that Defendants may be entitled to qualified immunity
because it was unclear in 2007 which constitutional standard
governed arrestees' excessive force claims in the First Circuit.
We are not persuaded. The main difference between the Fourth and
Fourteenth Amendment excessive force standards prior to Kingsley
was whether, in retrospect, we inquire into an officer's subjective
mindset. However, at their core, both the Fourth and Fourteenth
Amendments are concerned with whether an officer's actions depart
from what a reasonable officer would do, and whether those actions
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serve some legitimate governmental purpose. See Kingsley, 135 S.
Ct. at 2473-74; Graham, 490 U.S. at 397.
A reasonable officer faced with the question of what to
do with Rojas would have known that using more force than necessary
violated both of those standards and therefore a clearly
established constitutional rule to use force in the way that the
officers here appear to have done. Here, during the entire time
period in which the officers are alleged to have applied excessive
force to Rojas (i.e., from Rojas's arrest to his death in the
holding cell), Rojas was handcuffed and did not pose a great
physical threat to the officers. The record suggests that Rojas
initially appeared paranoid, screaming incoherently, and that,
while handcuffed, he attempted to resist being transported to the
police station and being incarcerated. There is sufficient
evidence for a reasonable jury to conclude that the officers used
force that resulted in disproportionately severe injuries to Rojas
-- e.g., multiple lacerations, contusions, and abrasions
throughout his body -- and ultimately in his death. We therefore
conclude that, regardless of whether the Fourth or Fourteenth
Amendment applied after his arrest, a reasonable officer would
have known that using force in the way that the officers here
appear to have done in the particular factual circumstances that
they encountered violated Rojas's constitutional rights. See
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Estate of Booker v. Gomez, 745 F.3d 405, 428-29 (10th Cir. 2014);
Harris v. City of Circleville, 583 F.3d 356, 367 (6th Cir. 2009).
Accordingly, Pérez is not entitled to qualified immunity on the
excessive force claim.
4. Conclusion
In sum, the district court erred in granting summary
judgment on the excessive force claim against Officer Pérez, and
we reverse and remand.
B. Excessive Force Claim Against Sgt. Rodríguez
Defendants argue that there is insufficient evidence to
show that Sgt. Rodríguez used excessive force against Rojas. We
agree that there is no evidence that Sgt. Rodríguez ever touched
Rojas. However, we agree with Plaintiffs that Sgt. Rodríguez can
nevertheless potentially be held liable for his failure to stop
Pérez and Rivera from using excessive force.
"An officer may be held liable not only for his personal
use of excessive force, but also for his failure to intervene in
appropriate circumstances to protect an arrestee from the
excessive use of force by his fellow officers." Wilson v. Town
of Mendon, 294 F.3d 1, 6 (1st Cir. 2002). Here, Sgt. Rodríguez
cannot be held liable for any force used against Rojas at the
arrest site because he arrived too late to prevent it, as Rojas
was already in the patrol car. Gaudreault v. Municipality of
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Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990) (rejecting failure-
to-intervene liability where the attack lasted only a few seconds
and the other officers at the scene had no realistic opportunity
to stop the officer-assailant). However, he can potentially be
liable for any excessive force he observed Pérez and Rivera using
against Rojas after he arrived at the police station. Since there
is a genuine issue of material fact as to whether Pérez and Rivera
used excessive force at the police station, there is also a genuine
issue of material fact as to whether Rodríguez -- who admittedly
watched Pérez and Rivera use force to get Rojas inside the prison
cell -- failed to intervene. Accordingly, we reverse and remand.5
C. Denial of Medical Care Claims Against Pérez and
Rodríguez
The district court granted summary judgment on
Plaintiffs' denial of medical care claim because there was
5 We acknowledge Defendants' argument that the complaint does not
allege facts supporting a failure-to-intervene theory and that
this Circuit has previously held that pleading excessive force
does not give a defendant fair notice of a failure-to-intervene
claim. See Calvi v. Knox Cty., 470 F.3d 422, 431 (1st Cir. 2006).
However, in this particular case, Defendants are not prejudiced by
the discrepancy between the allegations in the complaint and what
the evidence showed at the end of discovery, because the universe
of facts surrounding Sgt. Rodríguez's failure to intervene is the
same as the universe of facts surrounding Officer Pérez’s use of
force. We are further persuaded by the fact that complaints can
be amended as late as trial to conform to the evidence, Fed. R.
Civ. P. 15(b)(1), and there would have been good cause to do so
here.
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insufficient evidence of Defendants' deliberate indifference to a
serious medical need. The district court held that Defendants
were entitled to qualified immunity on this claim for the same
reason. We disagree and reverse and remand.
1. Legal Standard
Fourteenth Amendment substantive due process requires
the government to provide medical care to persons who are injured
while being apprehended by the police. City of Revere v. Mass.
Gen. Hosp., 463 U.S. 239, 244 (1983). "The boundaries of this
duty have not been plotted exactly; however, it is clear that they
extend at least as far as the protection that the Eighth Amendment
gives to a convicted prisoner." Gaudreault, 923 F.2d at 208.
Government officials violate the Eighth Amendment if they display
"deliberate indifference" to a prisoner's "serious medical needs."
Id. A "serious medical need" "is one that has been diagnosed by
a physician as mandating treatment, or one that is so obvious that
even a lay person would easily recognize the necessity for a
doctor's attention." Id. Deliberate indifference requires
(1) that "the official . . . be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists," and (2) that he draw that inference. Farmer v. Brennan,
511 U.S. 825, 837 (1994). A factfinder can conclude that a
government official was aware of a substantial risk of serious
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harm based on the fact that the risk was obvious. Id. at 842.
However, there is no deliberate indifference if an official
responds reasonably to the risk. Id. at 844-45; see also Coscia
v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) (deliberate
indifference can consist of "a conscious failure to provide medical
services where they would be reasonably appropriate"). Where it
is shown that an officer was deliberately indifferent to a serious
medical need of a pretrial detainee, no further mens rea of the
officer -- whether intent or motivation -- is necessary to state
a substantive due process claim. See Cty. of Sacramento v. Lewis,
523 U.S. 833, 849 (1998) (observing that deliberate indifference
is "egregious enough" to satisfy the "conscience shocking" element
required of substantive due process claims, where the officer
exhibits deliberate indifference to the medical needs of a pretrial
detainee) (citing City of Revere, 463 U.S. at 244).
2. Evidence of Constitutional Violation
Here, there is some evidence that, while he was being
arrested, Rojas was sweaty, nervous, delusional, and yelling
incoherently. The arresting officers observed that Rojas's face
was extremely pale and purplish around the forehead and temple
area, his eyes were bulging, and his lips were black. Based on
these physical symptoms, a jury could reasonably find that Rojas
did not appear to be dangerously drunk or high. On the other
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hand, a rational jury could also conclude that Rojas's need for
medical attention was so obvious that even a layperson would have
easily recognized it. The district court erred by relying solely
on eyewitness Candelaria's observation that Rojas's only injury
was a small cut on the lips in finding no genuine issue as to
whether Rojas had a serious medical need.
With regard to the deliberate indifference prong, a
rational jury could conclude based on Rojas's appearance and
symptoms and Sgt. Rodríguez's suggestion that they take Rojas to
a medical facility that a substantial risk of serious harm was
obvious and that the Defendants were aware of and disregarded that
risk. It is true that Sgt. Rodríguez let Officer Rivera persuade
him that they should take Rojas to the police station instead,
which can be interpreted as a good-faith reassessment of the level
of risk. But, a jury could also reasonably infer that, in their
concern for others' safety, the police took an unreasonable gamble
with Rojas's welfare. No matter how good the officers' intentions
may have been, they may still be liable under the deliberate
indifference standard if they recognized a serious risk to Rojas's
health and chose to prioritize others' safety over seeking
immediate medical attention for Rojas. See Cty. of Sacramento,
523 U.S. at 849. Because the evidence supports a reasonable
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conclusion in Plaintiffs' favor, the district court erred in
granting summary judgment.
3. Qualified Immunity
Because there is sufficient evidence to survive summary
judgment, Defendants are not entitled to qualified immunity on the
ground of insufficient evidence of a constitutional violation.
Nor are they entitled to qualified immunity based on the "clearly
established" prong either because the law on denial of medical
care has long been clear in the First Circuit. See Gaudreault,
923 F.2d at 208; see also City of Revere, 436 U.S. at 244. Thus,
Defendants are not entitled to qualified immunity on the denial of
medical care claim.
4. Conclusion
In sum, the district court erred in granting summary
judgment on the denial of medical care claims against Pérez and
Rodríguez.
D. Claims Against Superintendent Toledo
The district court granted summary judgment on any
supervisory liability claims against Superintendent Toledo
because, not only did Plaintiffs fail to adequately plead facts
about Toledo's conduct, but they also failed to bring forth
evidence supporting the barebones allegations that he acted with
"reckless or callous" indifference to Rojas's rights.
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We agree with the district court that Plaintiffs did not
adequately plead facts going to Superintendent Toledo's liability.
The only facts alleged in the complaint describe "Defendants"
arresting and beating Rojas. It alleges no facts describing
Toledo's conduct besides the conclusory allegation that he and
other supervisors "ratified" their subordinates' actions with
"reckless or callous indifference" to Rojas's rights. The
complaint fails to allege any facts about PRPD's training, citizen
complaint investigation, use of force tracking, or disciplinary
practices.
Plaintiffs may not "raise new and unadvertised theories
of liability for the first time in opposition to a motion for
summary judgment," Calvi v. Knox Cty., 470 F.3d 422, 431 (1st Cir.
2006). Allowing a plaintiff to proceed on new, unpled theories
after the close of discovery would prejudice defendants, who would
have focused their discovery efforts on the theories actually pled.
Martinez v. Petrenko, 792 F.3d 173, 179-80 (1st Cir. 2015). Thus,
Plaintiffs' attempt to argue for the first time in opposition to
Defendants' motion for summary judgment that Toledo failed to train
and supervise his officers was properly rejected by the district
court, and we affirm.
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IV. Conclusion
For the above reasons, we reverse and remand for trial
Plaintiffs' claims against Pérez and Rodríguez, but affirm the
district court's grant of summary judgment on Plaintiffs' claims
against Toledo. In addition, we instruct the district court to
reinstate the Puerto Rican law claims that it dismissed in its
summary judgment order. See Fernández-Salicrup v. Figueroa-
Sancha, 790 F.3d 312, 328 (1st Cir. 2015) ("If the dismissal of
the linchpin federal claim proves to have been improvident . . .
the state-law claims routinely are reinstated." (internal
quotation marks and citations omitted)).
AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Each
party shall bear its own costs on appeal.
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