Professional Documents
Culture Documents
United States Court of Appeals: For The First Circuit
United States Court of Appeals: For The First Circuit
Before
Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.
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prevailed at trial against the defendants Pagn and the two other
on-scene officers, Carlos Sustache-Sustache and Zulma Daz.
The
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appeal from the earlier partial denial of the Rule 12(c) motion as
to these same defendants.
I.
We briefly describe the procedural history before turning
to the facts of the case.
suit under 1983 against Pagn and his two on-scene colleagues,
Officers Carlos Sustache-Sustache and Zulma Daz (collectively, the
line officers), and against Col. Edwin Rivera-Merced, the Puerto
Rico Police Department (PRPD) Area Commander for Humacao, as their
supervisor.
none
of
the
claims
against
any
of
the
supervisory
in
part
on
September
30,
2011.
Specifically,
the
court
finding
individual
that
claims
the
plaintiffs
because
there
lacked
was
no
It did so based on
standing
allegation
to
assert
that
the
The
in
the
plaintiffs'
representative
capacities.
It
to
proceed,
declining
dismissal
of
these
claims
in
to
resolve
their
qualified
plaintiffs'
individual
grant
of
defendants.4
summary
judgment
in
favor
of
the
supervisory
On the evening of
August 11, 2007, around 6:10 p.m., roughly eleven members of the
obstructed,
so
Cceres
helped
direct
cars
around
the
parked
scooters.
One of the cars caught in the traffic was a PRPD Ford
Explorer in which officers Pagn, Sustache, and Daz were riding.
The officers were not assigned to a patrol in this area, Punta
Santiago, but instead were passing through on their way to a
different area, Naguabo, to which they were assigned to combat drug
trafficking.
There is a dispute
over whether the club members actually began moving their scooters.
The parties agree that Pagn and Cceres began exchanging insults
and that at some point in the exchange, Daz told Cceres that he
was under arrest. A video of the incident shows the three officers
separating Cceres from his fellow club members.
out.
A fight broke
they agree that, at some point, Cceres resisted, hitting both Daz
and Pagn.
Cceres had
Pagn
the ground, Pagn drew his gun and shot Cceres multiple times in
the back.
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Cceres.
There are later events which the plaintiffs discuss at
length
as
evidence
of
an
alleged
cover-up
of
the
shooting.
We do not discuss
2008.
B.
plaintiffs'
theories
of
liability
against
the
of
an
arrestee
as
an
armed
officer,
and
that
the
The
plaintiffs
and
then
assert
theories
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that
various
policies
had
before
been
the
the
August
subject
11,
of
2007
seven
shooting.
disciplinary
The
first
hearing
in
which
Pagn
denied
the
allegations,
the
from
employment
without
pay.
Pagn
served
that
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Finally, in 2004,
Sammy
Torres,"
which
upset
her;
and
(3)
later,
the
girlfriend added the claim that at some earlier time in 1998, Pagn
had stored in her home an arrestee's firearm for three days before
removing it and taking it to the Firearms Division, and that he
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kill the arrestee, nor did he take any steps toward doing so.)
The
PRPD
promptly
investigated
the
girlfriend's
complaint. On the same day the complaint was filed, the supervisor
on duty interviewed the complainant, went to the District Attorney,
who decided there was no basis to file criminal charges against
Pagn, and notified the PRPD Juncos District Commander of the
administrative complaint. Two days later, a memo was sent from the
Juncos District Commander to the Humacao Area Commander submitting
the domestic violence complaint for consideration.
It described
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evidence
that
the
psychological
evaluation
There is
produced
any
of
August
2000,
the
PRPD
conducted
formal
memo
to
administrative
the
Assistant
Superintendent
investigations.
The
memo
responsible
for
characterized
the
arrestee
whose
gun
had
been
kept
temporarily
at
the
Velzquez
also said that while with Pagn and the complainant, Velzquez had
once "playfully" taken Pagn's gun and pointed it him, "also
playfully," so that he "would learn" what his girlfriend felt when
he had threatened her.
The report stated that "Pagn was interviewed and stated
that what was being said was not true."
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upon
this
report,
then-Superintendent
Agustn
issue.
Pagn requested a hearing, which was held on October 8,
2005.
Serious
Offense
#1:
"Show
a
patent
inability,
incompetence, carelessness, partiality or negligence in
the performance of his or her duties, functions and
responsibilities."
Serious Offense #3: "Leave police-issued firearms or any
other firearm carried or possessed under a permit at the
reach of other persons who are not authorized to use them
or allow others to use them, or failing to take the
corresponding measures in relation to them."
Serious Offense #2: "Threaten with, or use, a firearm
against any person, except when defending oneself or
others.["]
Serious Offense #27: "Acting in a damaging, immoral or
disorderly manner to the detriment of the Police
Department."
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In consequence I suspend
you from employment and pay for the term of sixty (60) days
effective on the date of notification for this communication"
(emphasis added).
Pagn apparently did not appeal that decision.
Pagn
served the suspension without pay between August and October 2006.
This was eight years after the underlying domestic abuse events had
occurred.
There were no
other domestic violence charges aside from those arising out of the
events in 1998.
On November 4, 2004, Pagn was reassigned by the Humacao
Area Commander to the Special Response Team of the Tactical
Operations Division (TOD), an "elite unit" trained "to deal with
sensitive situations."
C.
Toledo-Dvila,
Lt.
Vctor
Cruz-Snchez,
Sgt.
Rafael
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In that temporary
Superintendent Toledo-Dvila
Toledo-Dvila,
now
deceased,
was
the
Police
involvement
with
Pagn,
As to personal
Toledo-Dvila
was
the
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any
direct
involvement
with,
or
even
direct
supervisory
Col. Rivera-Merced
In
Col.
The
Rivera-Merced
failed
to
an
adequate
number
of
3.
Lt. Cruz-Snchez
months after his return from the suspension and "gave him glowing
ratings."
he
gave
of
his
subordinates
high
ratings
and
pro
forma
evaluations.
The plaintiffs allege Lt. Cruz-Snchez was directly
responsible for selecting line officer Daz for the TOD and did so
without reviewing her personnel file.
had he reviewed the file, Lt. Cruz-Snchez would have had reason to
believe Officer Daz would pose a substantial risk to civilians;
moreover, Daz was not the shooter.
direct knowledge of Pagn's suspension but did not know its cause;
he later testified that he thought Pagn had been suspended for
mishandling
an
investigation.
There
is
no
claim
that
Lt.
Sgt. Figueroa-Solis
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supervisors
Director.
in
the
TOD
while
Sgt.
Figueroa-Solis
was
Acting
2007 and was out of town on the date of the shooting; during that
time, Sgt. Coln-Bez served as Acting Director.
The plaintiffs
of
his
subordinates
--
arguably
against
department
Sgt. Figueroa-Solis
was the individual who notified Pagn about his proposed expulsion
in 2004, but he was not familiar with the complaint underlying the
proposal.
choosing Sustache and Pagn for the Impact Unit within the TOD.
Because he was on vacation on August 11, 2007, Sgt. Figueroa-Solis
was not directly supervising Pagn at the time of the shooting.
5.
Sgt. Coln-Bez
He remained Lt.
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for placing Sustache and Pagn on the Impact Unit. Sgt. Coln-Bez
was the person who actually served Pagn with his suspension notice
in 2006.
11, 2007.
III.
We begin with the plaintiffs' appeal of the grant of
summary judgment in favor of the supervisory defendants. We review
the district court's grant of summary judgment de novo, reading the
facts and drawing all inferences in the light most favorable to the
plaintiffs. See Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir. 2008).
Summary judgment is proper if there is no genuine dispute of
material fact and the defendants are entitled to judgment as a
matter of law.
A.
We see no
The
Cir. 2008); Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996).
Here, there is a jury verdict establishing Pagn's and the other
two officers' violation of constitutional rights.
Additionally, the tort theory of respondeat superior does
not allow imposition of supervisory liability under 1983.
See,
e.g., Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir.
2012).
Proof
that
the
supervisors
were
negligent
is
also
insufficient. See, e.g., Ramos v. Patnaude, 640 F.3d 485, 490 (1st
Cir. 2011); Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 92
(1st Cir. 1994) ("[A] supervisor cannot be held liable for merely
negligent acts."). Further, 1983 liability cannot rest solely on
a defendant's position of authority.
Ocasio-Hernndez v. Fortuo-
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See Feliciano-Hernndez
by
his
or
her
subordinates,
unless
there
is
an
or
inaction
supervisor's
conduct
of
the
led
supervisor
inexorably
.
to
the
such
that
the
constitutional
v.
Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)) (internal quotation
marks omitted)). The showing of causation must be a strong one, as
that requirement "contemplates proof that the supervisor's conduct
led inexorably to the constitutional violation."
Hegarty v.
Feliciano-
Hernndez, 663 F.3d at 533 ("[T]he plaintiff must show that the
official had actual or constructive notice of the constitutional
violation." (quoting Rodrguez-Garca v. Miranda-Marn, 610 F.3d
756, 768 (1st Cir. 2010)) (internal quotation marks omitted)); id.
at 535 ("Actual or constructive knowledge of a rights violation is
a prerequisite for stating any claim.").
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Maldonado-Denis v. Castillo-Rodriguez, 23
show
"widespread"
abuse;
"isolated
instances
of
from
Id.
causation
indifferent,
we
have
to
what
it
typically
means
to
formulated
be
the
Ruiz-Rosa v.
Rulln, 485 F.3d 150, 157 (1st Cir. 2007) (alteration in original)
(quoting Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 65 (1st
Cir. 2002)) (internal quotation marks omitted); see also Bowen v.
City of Manchester, 966 F.2d 13, 17 (1st Cir. 1992).
B.
Application
of
Supervisory
Liability
Standards
action, other than what they did do, to prevent such harm.
The
causation
--
that
is,
if
it
was
not
sufficient
to
put
the
to
others
--
then
these
allegations
about
inadequate
But, as the
Claimed Deliberate
Disciplinary Record
Indifference
to
Pagn's
Toledo-Dvila, 232 F.3d 270, 279 (1st Cir. 2000); Bowen, 966 F.2d
at 17; accord Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir.
1998).
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seriously by the PRPD. The PRPD investigation found that Pagn had
made verbal threats and made threats using his weapon, but did not
find he had acted on those threats or inflicted physical harm on
others, much less used his weapon to shoot anyone.
Further, Pagn
was promptly sent for evaluation by the Domestic Violence unit, his
firearm was taken away, and he was suspended.
complaint, the PRPD Superintendent did not conclude that the events
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does not show that this complaint was substantiated in any way, nor
does it give any information about the contents of the complaint.
These instances simply do not rise to the level of a
"substantial" or "unusually serious" risk of shooting a civilian
that the case law demands.
In
contrast
the
to
the
disciplinary
grave
record
risk
here
presented
showed
no
in
prior
10
lower-level
supervisors
to
meaningfully
review
their
subordinates' records.12
11
duty.
It
is
true
that
policy
change
instituted
by
argument,
which
the
plaintiffs
have
not
substantially
The plaintiffs
risk
of
subordinate
officers'
violating
the
Pagn's
past
disciplinary
violations
amounted
to
for past problems led Pagn to believe that he could get away with
more bad acts -- literally, murder.
Under Febus-Rodriguez v.
Insufficient
Procedures
Officer-Involved Shootings
for
Reviewing
if more had been done about another shooting, which they argue
Pagn
witnessed,
Cceres.
that
would
have
deterred
him
from
shooting
This theory
district
court's
denial
of
their
earlier
motion
to
dismiss
So ordered.
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Though a close
Cir. 2004).
where there exists no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law." Id.
A. Pagn's record and appointment to the TOD and the IU
13
Prior
to
fatally
shooting
Cceres,
Pagn
had
seven
These included a
He brandished
the gun and swore he would kill the arrestee whom the weapon
belonged to.
PRPD's
investigation
of
the
domestic
violence
sanction,
however,
until
August
2004,
when
then
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Division ("TOD").
papers.
Pagn served his suspension from August 23 to October 22,
2006.
Though PRPD
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the IU, and Coln-Bez hand-picked Pagn for the unit; Pagn was
again promoted.
to
say
that
the
shooting
was
caught
on
video
and
the
Rodrguez
the
officer
in
the
Humacao
incident
to
Cruz-Snchez,
area
that
evening.
Detective
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while the latter lay on the ground, and expressing his view that
the use of deadly force was entirely uncalled for.
Meanwhile, as Detective Rodrguez was investigating the
scene of the crime, Cruz-Snchez joined Pagn at Ryder Hospital.
Coln-Bez, even though he was not on duty that evening, also
joined Cruz-Snchez and Pagn at the hospital.
As Cruz-Snchez spoke to Pagn and the other defendant
line officers for their version of events, other eyewitnesses of
the shooting began to arrive at the hospital and offered their own
account of what had transpired: that Cceres had been shot dead
while lying defenseless on the floor.
officers
and
that
of
an
Hctor
Huertas,
the
only
agents."
few
days
later,
Cruz-Snchez
himself
added
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Huertas and noted that the latter's version coincided in part with
that
of
Pagn.
Cruz-Snchez
noted
that
this
corroboration
to
bystander
who
video-recorded
the
incident,
the
General
Order
87-14
("G.O.
87-14")
requires
According to G.O.
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II. Discussion
A supervisory official may be found liable under 42
U.S.C. 1983 for actions of his own that result in violations of
constitutional rights by a subordinate.
151 F.3d 1, 6-7 (1st Cir. 1998).
Camilo-Robles v. Hoyos,
plaintiff must show (1) a grave risk of harm, (2) the defendant's
actual or constructive knowledge of that risk, and (3) his failure
to take easily available measures to address the risk."
Torres
v.
Toledo-Dvila,
232
F.3d
270,
279
(1st
FigueroaCir.
2000)
have
"had
the
power
and
violation]")).
-38-
authority
to
alleviate
[the
that
responsible
as
supervisor
he
was
for
reviewing
the
This is
consistent with the testimony of defendant Superintendent ToledoDvila, who stated that all supervisors were charged with the
responsibility of reviewing subordinates' personnel files.
Coln-
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Even assuming that he did not know the nature or the extent of the
violations that led to Pagn's pending expulsion order, that G.O.
84-17 required him to review Pagn's file -- a requirement he
admittedly knew of -- should have compelled him to review the file.
It is clearly a question for the jury whether this circumstance is
deemed to put Cruz-Snchez on notice of Pagn's violent character.
Later, Cruz-Snchez again had the opportunity to keep
Pagn from a position where he posed a danger to civilians, but
remained idle.
He
14
And it
may have come in the Summer of 2007 when Cruz-Snchez designed the
plan for the IU, a specialized squad within the TOD, and Coln-Bez
chose its members, and Pagn was allowed to join.
But again, no
these
without
even
decisions
glancing
and
at
afforded
his
Pagn
disciplinary
glowing
record,
reviews,
much
less
ten
violence.
complaints
against
him,
including
some
episodes
of
Snchez.
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The majority contends that there is no evidence of ColnBez's knowledge of Pagn's violent past.
contained
details
sanction.
in
disciplinary
underlying
complaints,
orders
and
by
removing
listing
only
the
the
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or Coln-Bez.
Furthermore, as
history
was
not
enough
to
put
the
supervisory
theory,
our
case
law
requires
that
supervisory
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finding
that
this
officer
was
highly
likely
to
inflict
the
For
case law has actually disavowed the idea -- which would essentially
amount to requiring clairvoyance -- that too much specifics are
required.
reason.
I concede that whether the causal connection here is
sufficient, is a close question, particularly as to Cruz-Snchez.
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Young v.
Though
only months later, he would carry out the murder he had threatened
against at least two other people in the past, and took Pagn's
life.16
15
III. Conclusion
A jury should have the opportunity to determine whether
Cruz-Snchez and Coln-Bez were on notice of the risk of harm
Pagn posed to civilians.
reasons, I dissent.