Marrero-Rodriguez v. Municipality of San Juan

United States Court of Appeals
For the First Circuit
No. 11-1195
NORMA MARRERO-RODRÍGUEZ, individually and in representation of
her children C.L.M. and A.L.M.; C.L.M., minor; A.L.M., minor,
Plaintiffs, Appellants,
v.
MUNICIPALITY OF SAN JUAN; HON. JORGE SANTINI-PADILLA, in his
official capacity as the elected mayor of the Municipality of San
Juan; ANGEL A. PACHECO-ORTA, individually and as Lieutenant of
the Municipal Police of San Juan; HILTON CORDERO, individually
and as Commissioner of the Municipal Police of San Juan; ADAM
ADORNO, individually and as the Operational Field Chief of the
Municipal Police of San Juan; FÉLIX VEGA, individually and as
Operational Field Sub-Director of the Municipal Police of San
Juan; HELDER HADOCK, individually and as the Commanding Officer
of Specialized Units of the Municipal Police of San Juan; JANET
MATOS, individually and as the Administrative Director of Police
Training in the Municipality of San Juan; HARRY HERNÁNDEZ-MULERO,
individually and as Captain of the Municipal Police of San Juan;
SHERLY ALEJANDRO, individually and as Officer of the Municipal
Police of San Juan; JULIO A. SANTIAGO-RODRÍGUEZ, individually and
as Officer of the Municipal Police of San Juan; INSURANCE COMPANY
XYZ; JOHN DOE; JANE DOE,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.
William Santiago-Sastre, with whom Alberto de Diego
Collar and Meléndez-Pérez, De Diego & Jiménez were on brief, for
appellants.
Francisco J. Amundaray-Rodríguez for appellees
Municipality of San Juan, Jorge Santini-Padilla, and Hilton
Cordero.
Michael Craig McCall, with whom Ivan M. Castro Ortiz and
Aldarondo & López Bras, P.S.C. were on brief, for appellee Angel A.
Pacheco-Orta.
Angel A. Valencia-Aponte for appellee Julio A. Santiago-
Rodríguez.
Jorge R. Quintana-Lajara and Antonio Montalvo-Nazario on
brief for appellees Adam Adorno, Helder Hadock, Harry Hernández-
Mulero, and Sherly Alejandro.
Miriam González Olivencia on brief for appellees Félix
Vega and Janet Matos.
May 7, 2012
LYNCH, Chief Judge. This civil rights case brought under
42 U.S.C. § 1983 was dismissed for failure to meet the pleading
standards under Ashcroft v. Iqbal, 556 U.S. 662 (2009). As to the
Fourteenth Amendment claims, we affirm the dismissal of the claims
against the Municipality of San Juan and the Mayor, and we reverse
the dismissal of these claims as to the remaining individual
defendants who were directly involved or had responsibility for the
training which resulted in the death of an officer. The Fourth and
Eighth Amendment claims were properly dismissed as to all
defendants.
The basic standards under Iqbal are taken from our recent
opinion in Air Sunshine, Inc. v. Carl, 663 F.3d 27, 33 (1st Cir.
2011):
The complaint "must contain sufficient factual
matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"
[Iqbal, 556 U.S. at 678] (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
"A claim has facial plausibility when the
plaintiff pleads factual content that allows
the court to draw the reasonable inference
that the defendant is liable for the
misconduct alleged." Id. This is not a
"probability requirement," but it does require
"more than a sheer possibility that a
defendant acted unlawfully." Id.All well-pleaded facts are to be taken as true and we
draw all reasonable inferences from the complaint in plaintiffs'
favor. Field v. Napolitano, 663 F.3d 505, 508 (1st Cir. 2011).
The facts pled, and those inferences, are these. Carlos Lozada-
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Vergara, a sergeant in the San Juan Municipal Police force,
underwent training at the police headquarters around 10:00 p.m. on
April 1, 2009. This training simulated the arrest of a suspect who
did not speak Spanish. Sgt. Lozada played the role of the arrested
suspect.
Defendant Lt. Angel A. Pacheco-Orta was a training
supervisor. Defendant Officer Julio A. Santiago-Rodríguez, Lt.
Pacheco's subordinate, was initially in charge of this training.
Neither he nor Lt. Pacheco were certified instructors, nor were any
certified instructors present.
The police facility in San Juan in which the training
took place is a place where all who entered were supposed to
discharge their weapons into a sandbox. This would ensure that all
the weapons were empty before they were carried into the facility.
But this requirement was not enforced. Further, in this facility,
when "firearms" were needed for training, only "dummy guns," not
real firearms, were to be used. This particular training was
supposed to have been conducted without firearms.
Santiago initially was the highest-ranked officer
involved and gave the order that bulletproof jackets not be worn
during the exercise. Lt. Pacheco was not present when the
exercises involving Lozada started, but he came in while the
training was going on and took over. Lt. Pacheco entered the
training facility with a weapon but without discharging the bullets
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in his firearm into the sandbox. Santiago permitted Lt. Pacheco to
enter the training area with a gun and a loaded gun at that.
Higher level police training officials who should have
been present that day were not. Nor did any of them take any steps
to prevent shootings from happening during such exercises, either
in writing or orally, through protocols, training, or appropriate
cautionary measures.
Lozada, who continued to play the role of a suspect, had
been subdued; in fact, he was flat on the ground, face down, while
another officer held him down by his back. Lt. Pacheco, having
just arrived, said the training was not being done "properly." The
other officer holding down Lozada got up and Lt. Pacheco positioned
himself on Lozada's back to do the training "properly." Lt.
Pacheco had Lozada completely under control, on the ground face
down; Lozada was motionless and obedient.
Without any form of warning and as part of "proper"
training, Lt. Pacheco pulled out his weapon, put the barrel to
Lozada's back, and pulled the trigger. The weapon was not empty.
The bullet pierced Lozada's back and came out through his chest.
Lozada was taken to a hospital where he died five days later from
his bullet wound.
Lozada left his wife, Norma Marrero-Rodríguez, and two
young sons, who are the plaintiffs. They make claims under the
Fourth Amendment, the Eighth Amendment, and the Fourteenth
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Amendment's Due Process Clause, as well as under Puerto Rico law.
Lt. Pacheco and Santiago, who were directly involved, of course,
are the first group of defendants. The complaint names a second
group, supervisory police officials who had some form of
responsibility for the training. There is a third group, the Mayor
and the Municipality.
Plaintiffs do not assert that Lt. Pacheco murdered
Lozada. They do claim that the actions and inactions of the police
around this exercise and the use of a loaded firearm in these
circumstances shock the conscience, and that the defendants were
callously and recklessly deficient in the lack of any care for the
safety of Lozada. These claims meet the pleading standards as to
certain claims against certain defendants.
Plaintiff's purported Fourth Amendment claim fails to
meet the pleading standards of Iqbal. It was not even pled as a
claim, but only mentioned on the first page of the complaint. See
Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533-34 (1st
Cir. 2011). As to the Eighth Amendment claim, we agree with the
district court that the elements of such a claim are not present
here; this case does not involve a formal adjudication of guilt or
a criminal prosecution against Lozada. See City of Revere v. Mass.
Gen. Hosp., 463 U.S. 239, 244 (1983).
However, many of the elements of a § 1983 claim alleging
Fourteenth Amendment violations are unquestionably present as to
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some defendants. There is no doubt that the defendants were acting
under color of Puerto Rico law or authority. See 42 U.S.C. § 1983.
There is also no doubt that the life of Lozada is one of the
interests protected by the Fourteenth Amendment's Due Process
Clause. See U.S. Const. amend. XIV, § 1.
The individual defendants who held the positions of
Lieutenant of the Municipal Police, Commissioner of the Municipal
Police, Operational Field Chief, Operation Field Sub-Director,
Commanding Officer of Specialized Units, Administrative Director of
Police Training, Captain of the Municipal Police, and/or
Instructors are all, on the pleadings, charged with responsibility
for police training and the training that day. By contrast, the
Municipality is pled to be liable merely because it employs the
individual defendants and because it did not have sufficient
training regulations in place, and the Mayor is said to be liable
because he is Mayor.
As to the Fourteenth Amendment claim, we have recognized
there may be substantive due process theories of recovery which
"turn on whether the alleged misconduct 'shocks the conscience.'"
Maldonado v. Fontanes, 568 F.3d 263, 272 (1st Cir. 2009); see also
Espinoza v. Sabol, 558 F.3d 83, 87 (1st Cir. 2009) ("The
substantive component of the Due Process Clause is violated by
executive action 'when it can properly be characterized as
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arbitrary, or conscience shocking, in a constitutional sense.'"
(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998))).
While it is true that "negligent conduct is
'categorically beneath the threshold of constitutional due
process,'" it is also true that "'behavior at the other end of the
culpability spectrum,' i.e., 'conduct intended to injure in some
way unjustifiable by any government interest,' is most likely to
support a substantive due process claim. When the culpability
resulting in injury falls somewhere between these extremes, it is
'a matter for closer calls,' and whether conduct is actionable as
a due process violation will depend upon the context in which it
occurs." Cummings v. McIntire, 271 F.3d 341, 344 (1st Cir. 2001)
(quoting Lewis, 523 U.S. at 849) (citations omitted).
Still, "it is also true that the Supreme Court has been
firm in its reluctance to expand the doctrine of substantive due
process." Maldonado, 568 F.3d at 273 (citing Chavez v. Martinez,
538 U.S. 760, 775 (2003)). As a result, "the official conduct
'most likely to rise to the conscience-shocking level' is 'conduct
intended to injure in some way unjustifiable by any government
interest.'" Id. (quoting Chavez, 538 U.S. at 775).
From these facts a number of inferences may be drawn in
favor of plaintiffs' Fourteenth Amendment claim. The conduct of
shooting in the back a participant in a training exercise was
certainly likely to injure. It is plausible that no reasonable
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government interest in this training exercise justified a police
officer taking out a firearm and placing it to the unprotected back
of a prone officer, who was face down, motionless, under control,
and unarmed. Further, it is plausibly shocking that Santiago, the
co-supervisor of the training, did nothing to intervene when Lt.
Pacheco placed the gun to Lozada's back.
Moreover, this was done by the highest-ranking supervisor
present, as part of a training program. Lt. Pacheco, that
supervisor, did not discharge his weapon before entering the
facility and did not go through the required checkpoint, in
violation of several training protocols. Moreover, Lt. Pacheco
said that it was not proper training to merely subdue and control
a suspect. Rather, he illustrated "proper" training by using what
was obviously lethal force, entirely disproportionate to any
reasonable need, in conducting the lesson. The inference can be
drawn that the instruction given by Lt. Pacheco as "proper" in this
type of situation was shockingly indifferent to the rights of the
subdued "suspects." These factual allegations may not prove to be
true; but at this stage, all inferences are drawn in the
plaintiffs' favor. In short, as to the defendant officers directly
involved, Lt. Pacheco and Santiago, the facts are sufficiently
pled.
As to the police defendants not present that day, but
with direct responsibility for training, the question is closer.
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The complaint can, if read generously, be read to say they are not
being sued merely because they are supervisors who engaged in no
misconduct themselves, but because they each had direct
responsibility for the conduct of training exercises and had some
active involvement in the structuring of the lethal training
exercise that day, and that at least some should have been there
that day. Other inferences may also be drawn -- their failure to
implement policies, protocols, or correct training about use of
live firearms and preventing deaths in such exercises from the
police defendants was itself so lacking in justification as to be
shocking to the conscience.
This is slightly more than was pled in Soto-Torres v.
Fraticelli, 654 F.3d 153 (1st Cir. 2011), and Peñalbert-Rosa v.
Fortuño-Burset, 631 F.3d 592 (1st Cir. 2011), where we found the
pleadings insufficient. At this early stage we are reluctant to
dismiss. The role of these defendants can be made clearer in
discovery and nothing precludes later efforts to end the case
against them should discovery not substantiate these inferences.
It takes more than this, though, to assert a § 1983 claim
against those who have no personal involvement of any sort in the
events, such as the Mayor, and more to assert a claim against the
Municipality. The Mayor is not amenable to suit, as pled in the
complaint, merely because he is Mayor. Nor may the Municipality be
sued under § 1983, as pled, on a respondeat superior theory that it
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is liable because it employs the individual defendants. See Bd. of
Cnty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997); Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 691-95 (1978). Moreover, to state a
claim for municipal liability, a plaintiff must plead more than
mere insufficiency of a municipality's training program. "[A]
training program must be quite deficient in order for the
deliberate indifference standard to be met: the fact that training
is imperfect or not in the precise form a plaintiff would prefer is
insufficient to make such a showing." Young v. City of Providence
ex rel. Napolitano, 404 F.3d 4, 27 (1st Cir. 2005).
In this case, although the complaint alleges that there
were insufficient regulations in place to govern the training
exercise, it also describes several safety procedures that were
intended to prevent exactly this type of accident. In particular,
it states that: (1) before entering the training area, officers
were to discharge their weapons in a sandbox; (2) in the training
facility, officers were only to use only "dummy guns"; and (3) at
this particular training, no firearms were to be used. As a
result, no plausible claim of municipal liability based on lack of
any safety procedures is stated.
The facts as alleged may turn out not to be so. It may
be that this shooting was a horrid accident brought about by the
inexplicable actions of one man, Lt. Pacheco. But we think the
Fourteenth Amendment pleadings, as inartful as they are, point to
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sufficiently plausible theories of violation to survive dismissal
at this stage, save as to the Mayor and the Municipality.
The dismissal of the Fourteenth Amendment claims against
the Mayor and the Municipality is affirmed; dismissal of the
Fourteenth Amendment claims as to the remaining defendants is
reversed. We affirm dismissal of the Fourth and Eighth Amendment
claims as to all defendants. On remand, the district court may
wish to reconsider its dismissal without prejudice of the
plaintiffs' claims arising under Puerto Rico law against the
remaining federal defendants. No costs are awarded.
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