Ramirez–Lluveras v. Pagan–Cruz

833 F.Supp.2d 165

Evelyn RAMIREZ–LLUVERAS, et al., Plaintiffs,

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

Civil No. 08–1486 (FAB).

United States District Court, D. Puerto Rico.

Dec. 22, 2011.

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

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

OPINION AND ORDER

FRANCISCO A. BESOSA, District Judge.

This is a civil rights action brought pursuant to 42 U.S.C. § 1984 (“section 1983”) and Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141 (“article 1802”) arising from the highly publicized death of Miguel A. Caceres–Cruz (“Caceres”). Before the Court is Juan Colon–Baez (“Colon”), Rafael Figueroa–Solis (“Figueroa”), Victor Cruz–Sanchez (“Cruz”), Edwin Rivera–Merced (“Rivera”) and Pedro Toledo–Davila's (“Toledo”) (collectively, the “supervisory defendants”) motion for summary judgment pursuant to Fed.R.Civ.P. 56 (“Rule 56”). (Docket No. 249.) For the reasons set forth below, the Court GRANTS the supervisory defendants' motion for summary judgment of the plaintiffs' claims against them brought pursuant to section 1983 and article 1802.

I. FACTUAL BACKGROUNDA. Procedural Background

Caceres' wife, Evelyn Ramirez–Lluveras, and their three children, Jenitza Caceres, MC and MAC (collectively, the “plaintiffs”) filed an amended complaint on behalf of themselves and Caceres against several field officers in the Puerto Rico Police Department (“PRPD”), Javier Pagan–Cruz (“Pagan”), Carlos Sustache–Sustache (“Sustache”), Zulma Diaz (“Diaz”) (collectively, the “field officers”) ¹ and the supervisory defendants. (Docket No. 64.) Plaintiffs allege that their rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments of the Constitution were violated when Caceres was forced to the ground by the field officers and was eventually shot and killed by then Officer Pagan in the Punta Santiago sector of Humacao, Puerto Rico. Id. They also seek damages pursuant to article 1802.

In an opinion and order dated October 3, 2011, the Court dismissed all claims against the supervisory defendants except for plaintiffs' Fourth Amendment claim in their representative capacities, pursuant to section 1983 and article 1802. (Docket No. 332.) On February 18, 2011, the supervisory defendants filed their motion for summary judgment pursuant to Rule 56. (Docket No. 249.) Plaintiffs opposed on March 15, 2011. (Docket No. 262.) On March 25, 2011, plaintiffs filed a motion to supplement their opposition to add a reference to a case decided by the Ninth Circuit Court of Appeals. (Docket No. 274.) The supervisory defendants replied to plaintiffs' opposition on May 17, 2011. (Docket No. 297.) On May 25, 2011, plaintiffs submitted a sur-reply. (Docket No. 311.)

B. Factual Background

1. Preliminary Evidentiary Issues

The supervisory defendants argue that plaintiffs' Statement of Material Facts (Docket No. 262) is defective because many of the documents on which they relied are not authenticated by and attached to an authenticating affidavit, and that plaintiffs' exhibits Z, AA, BB, CC, DD, EE, which detail Pagan's disciplinary history, constitute inadmissible hearsay. (Docket No. 296 at ¶ ¶ 5.3–5.13; Docket No. 297 at 4–5.)

Documents must be authenticated by and attached to an affidavit to be admissible to be considered to decide a motion for summary judgment. Fed.R.Civ.P. 56(e); Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir.2000) (quoting Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir.1993)). Plaintiffs did not provide an authenticating affidavit for many of the exhibits they rely upon in their Statement of Material Facts. ( See, e.g., Docket No. 262 at ¶¶ 5.1–5.4.) “The Court has discretion to allow a party to cure deficiencies in supporting documentation.” Goguen ex rel. Estate of Goguen v. Textron, Inc., 234 F.R.D. 13, 17 (D.Mass.2006) (citing McMahon v. Digital Equipment Corp., 162 F.3d 28, 34 (1st Cir.1998)). Plaintiffs attempted to cure this defect by submitting a sworn statement by Judith Berkan, one of plaintiffs' attorneys, declaring that the documents in question were produced during discovery. (Docket No. 311 at ¶¶ 9–10, Ex. D.) Documents produced in discovery are deemed authenticated.²See Catala v. Dep't. of Veterans Affairs, No. 08–1822, 2010 WL 1664884, at *2 (D.P.R. Apr. 21, 2010); Vachon v. R.M. Davis, Inc., No. 03–234, 2004 WL 1146630, at *1–3 (D.Me. Apr. 13, 2004) (internal citations omitted); Estes Exp. Lines, Inc. v. Macy's Corp. Serv., No. 08–3582, 2010 WL 398749 at *5 (D.N.J.2010). Accordingly, plaintiffs cured the defect and the court will consider the exhibits.

The supervisory defendants' argument that plaintiffs' exhibits Z, AA, BB, CC, DD, and EE, which detail Pagan's disciplinary history, constitute inadmissible hearsay is also unavailing. (Docket No. 296 at 5.3–5.13.) Under Federal Rule of Evidence 801(c), hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here, the statements contained in the exhibits are not hearsay because they are not being used to prove that Pagan actually behaved in the manner described in the exhibits. See Gutierrez–Rodriguez v. Cartagena, 882 F.2d 553, 575 (1st Cir.1989). Rather, the exhibits are offered to establish whether or not the supervisory defendants acted with deliberate indifference in light of Pagan's disciplinary records. Id. (holding that an officers' disciplinary files were not hearsay because they were used to show the supervisors' responses to complaints against an officer.) Accordingly, the Court will consider plaintiffs' exhibits Z, AA, BB, CC, DD, and EE for that limited purpose.

2. Miguel Caceres' Death

On August 11, 2007 the field officers were in the Punta Santiago sector of Humacao, Puerto Rico as part of the Impact Unit. (Docket No. 262 at 1.8, 2.38.) Defendant Rivera, the Humacao Area Commander from 2006 to 2007, had made the decision to create an Impact Unit to help fight crime in the area. Id. at ¶ 2.13; Docket No. 250 at ¶ 9. Defendant Cruz, the Director of the Humacao Tactical Operations Division (the “T.O.D.”), selected Diaz to be a part of the Impact Service. ( Id. at ¶ 2.5.) Defendant Colon, the Assistant Director of the Humacao T.O.D. from March 2006 to February 2007 and again from July 2007 to August 2007, selected Pagan and Sustache for the Impact Unit. Id. at ¶¶ 1.4, 2.5.

The Punta Santiago Scooter Club (the “Club”) was also present at Punta Santiago on August 11, 2007. The Club was there to provide an escort for a girl celebrating her fifteenth birthday (her “quinceañero”). Id. at ¶¶ 2.24–2.25. Roughly eleven club members, dressed in yellow T-shirts, parked their scooters in front of the girl's grandmother's house. Id. at ¶¶ 2.25, 2.33. The scooters blocked a quarter of a road's lane closest to the grandmother's house. Id. at ¶ 2.34. Caceres, a member of the Club, assisted in directing traffic, letting one side of the traffic pass through at a time. Id. at ¶¶ 2.35–2.36, 2.37.

The field officers arrived in a PRPD Ford Explorer to the spot where Caceres was directing traffic. Id. at ¶ 2.38. After the Explorer was stopped for “a while,” Caceres instructed it to move forward. Id. at ¶ 2.39. Pagan told Caceres that they alone have the authority to tell someone to “move on” and informed Caceres that the club members must move their scooters off the road within five minutes. Id. at ¶¶ 2.40–2.42. After Caceres responded, Pagan said the scooters must be moved immediately. Id. at ¶ 2.42. The parties dispute what happened next. Id. at ¶ 2.46; Docket No. 296 at ¶ 2.46. According to Fermin Torres–Lopez, the President of the Club, the club members moved their scooters to the sidewalk. Id. at ¶ 2.46. But according to Hector M. Huertas–Marrero, the club members did not comply with the order. (Docket No. 296 at ¶ 2.46.)

In any event, after the exchange between Caceres and Pagan, the field officers then left their vehicle and moved towards Caceres. (Docket No. 262 at ¶ 2.47; Docket No. 250 at ¶ 93.) Pagan pointed at Caceres and said, “[y]ou are a charlatan.” ( Id. at ¶ 2.49.) Caceres retorted that “[i]f I am a charlatan, you are too.” Id. Officer Diaz then informed Caceres that he was under arrest. Id. at ¶ 2.51. Caceres moved backwards and said that he did not do anything to justify his arrest. Id. at ¶ 2.52. According to Hector M. Huertas–Mercado, Caceres attempted to evade Officer Diaz and hit her, causing her to fall into a puddle. (Docket No. 295 at ¶ 2.52; Docket No. 322 at Ex. 26.)

After Pagan tried to grab Caceres' shirt, Caceres pushed him. (Docket No. 262 at ¶ 2.54.) Officers Pagan and Diaz enclosed Caceres between a chain and the road. Caceres fell down. Id. at ¶ 2.55. While Caceres was on the ground, Pagan punched Caceres in the face. Id. at ¶ 2.56. Then, Caceres grabbed onto Pagan's leg, touching his gun holster as he was trying to get up. Id. at ¶ 2.61. Pagan placed his hand on top of Caceres' hand and a struggle ensued. Id. at ¶¶ 2.61, 2.63. While Pagan's gun was still in its holster, he shot himself in the leg. Id. at ¶ 2.67. Pagan then pulled the gun out of the holster and shot Caceres several times in the back and head. Id. at ¶¶ 2.73–2.75. Caceres died. See Id. at ¶¶ 2.22, 3.6.

Following the shooting, the field officers retreated to the Explorer and left the scene. Id. at ¶ 2.78. Lieutenant Rodriguez communicated with Officer Diaz twice through the PRPD radio. Id. at ¶ 3.2. Officer Diaz informed Lieutenant Rodriguez that Pagan was bleeding profusely but did not mention Caceres having been shot. Id. at ¶¶ 3.2–3.4.

3. Pagan's Disciplinary History

Pagan's “Personal History” record shows that,...