Raul Alberto GUADALUPE-BAEZ et al., Plaintiffs, Appellants, v. Hector PESQUERA et al., Defendants, Appellees.
No. 14-2304
United States Court of Appeals, First Circuit.
April 20, 2016.
819 F.3d 509
We affirm.
Amendment rights, Werra, 638 F.3d at 330, and thus Hamilton must bear the brunt of that uncertainty.
Susana I. Peñagaricano-Brown, Assistant Solicitor General, with whom Margarita L. Mercado-Echegaray, Solicitor General, was on brief, for appellees Héctor Pesquera, Héctor Orozco, Carlos Rosa, Guillermo Somoza-Colombani, and Luis Sánchez-Betances.
Juan J. Casillas-Ayala, Luis F. Llach-Zúñiga, Natalia E. Del Nido-Rodríguez, and Casillas Santiago Torres LLC on brief for appellee José R. Román-Abreu.
Before HOWARD, Chief Judge, TORRUELLA and SELYA, Circuit Judges.
SELYA, Circuit Judge.
This case requires us to revisit the
I. BACKGROUND
We begin with the Puerto Rico Police Department (PRPD). The PRPD has a tarnished history of civil rights violations. In 2008, the United States Department of Justice (DOJ) commenced an investigation into whether the PRPD had demonstrated a pattern and practice of conduct that deprived citizens of their constitutional rights. See
In December of 2012, the DOJ—with the goal of reaching an agreement for the PRPD‘s reform—filed a section 14141 suit against the PRPD in the United States District Court for the District of Puerto Rico. Roughly seven months thereafter, the DOJ and the PRPD reached a settle-
Against this backdrop, we turn to the case at hand. In July of 2012, plaintiff-appellant Raúl Alberto Guadalupe-Báez (Guadalupe) was shot and badly wounded in the vicinity of San Lorenzo, Puerto Rico, after one of several police vehicles closely approached him.1 Based on the proximity of the police vehicles, Guadalupe plausibly alleged that he had been shot by a police officer. But the police seem to have stonewalled, and Guadalupe was un-able to ascertain either the identity of the shooter or other critical information about the circumstances surrounding the incident. For aught that appears, the shooting was entirely without justification.
Puerto Rico officials did launch a pair of investigations into the incident, one led by Héctor Orozco (Orozco) of the PRPD‘s Criminal Investigation Center in Caguas and the other led by Carlos Rosa (Rosa) of the Special Investigations Bureau (SIB) of the Puerto Rico Department of Justice. Neither investigation resulted in Guadalupe‘s learning the identity of his shooter, and the probes were terminated without any charges being filed.
In July of 2013—ten days before the DOJ and the PRPD reached their settlement—Guadalupe filed suit. When motions to dismiss were served, the district court ordered Guadalupe either to amend his complaint or to show cause why his suit should not be jettisoned. In response, Guadalupe filed an amended complaint seeking damages against named and unnamed members of the PRPD, the San Lorenzo municipal police, and the Puerto Rico Department of Justice.2 See
- “Unnamed Police Officers A-Z” (the “John Doe” defendants), for various acts, including excessive force against Guadalupe in violation of the Fourth Amendment;
- Héctor Pesquera (Pesquera), Superintendent of the PRPD at the time of the shooting; José Román-Abreu (Román), the Mayor of the Municipality of San Lorenzo and commander-in-chief of the San Lorenzo municipal police at the time of the shooting; Guillermo A. Somoza-Colombani (Somoza), Secretary of Justice and commander-in-chief of the SIB at the time of the shooting; and Luis Sánchez-Betances (Sánchez), Somoza‘s successor as Secretary of Justice (collectively, the supervisory defendants), for negligent training, entrustment, and supervision of the unnamed police officers;
- Howard Delgado (Delgado), a PRPD officer, Orozco, and Rosa, for obstructing justice and conspiring to deprive Guadalupe of the right to seek legal redress.
Guadalupe‘s amended complaint relied on the Report to show, among other things, a “pattern and practice of use of excessive force... caused by the adoption and use
The defendants renewed their motions to dismiss. While these motions were pending, the PRPD, in August of 2014, disclosed more documents to Guadalupe. These belatedly produced documents indicated—for the first time—the identity of the shooter. Approximately one month later (and without Guadalupe having made any further submission to the district court), the court granted the defendants’ motions to dismiss. See Guadalupe-Báez, 2014 WL 4656663, at *8. Pertinently, the court concluded that Guadalupe‘s supervisory liability and conspiracy claims failed to satisfy the minimum requirements of
Guadalupe moved for reconsideration, see
Guadalupe now appeals both the dismissal of his complaint and the denial of his motion for reconsideration.
II. ANALYSIS
We review de novo a district court‘s order granting a motion to dismiss under
It is axiomatic that a complaint must contain only “a short and plain state-ment of the claim showing that the pleader is entitled to relief.”
We have choreographed a two-step pavane for assessing the sufficiency of a complaint. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.2011). At the start, “an inquiring court first must separate wheat from chaff; that is, the court must separate the complaint‘s factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).” Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.2012). Then, the court must determine whether the well-pleaded facts, taken in their entirety, permit “the reason-able inference that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal, 556 U.S. at 678). It is with this progression in mind that we turn to Guadalupe‘s asseverational array.
A. Supervisory Liability.
Guadalupe‘s most loudly bruited claims sound in supervisory liability under
Supervisory liability is sui generis. Thus, a supervisor may not be held liable under section 1983 on the tort theory of respondeat superior, nor can a supervisor‘s section 1983 liability rest solely on his position of authority. See Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19 (1st Cir.2014). This does not mean, however, that for section 1983 liability to attach, a supervisor must directly engage in a subordinate‘s unconstitutional behavior. See Camilo-Robles v. Hoyos, 151 F.3d 1, 6-7 (1st Cir.1998). Even so, the supervisor‘s liability must be premised on his own acts or omissions. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.1989); Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir.1989). Mere negligence will not suffice: the supervisor‘s conduct must evince “reckless or callous indifference to the constitutional rights of others.” Febus-Rodríguez v. Betancourt-Lebrón, 14 F.3d 87, 92 (1st Cir.1994).
If a plaintiff relies on a theory of deliberate indifference, a three-part inquiry must be undertaken. See Ramírez-Lluveras, 759 F.3d at 20. In the course of that inquiry, the plaintiff must show “(1) ‘that the officials had knowledge of facts,’ from which (2) ‘the official[s] can draw the inference’ (3) ‘that a substantial risk of serious harm exists.‘” Id. (alteration in original) (quoting Ruiz-Rosa v. Rullán, 485 F.3d 150, 157 (1st Cir.2007)).
“[D]eliberate indifference alone does not equate with supervisory liability.” Figueroa-Torres v. Toledo-Dávila, 232 F.3d 270, 279 (1st Cir.2000) (alteration in original) (quoting Camilo-Robles, 151 F.3d at 7). Causation remains an essential element, and the causal link between a supervisor‘s conduct and the constitutional violation must be solid. See Ramírez-Lluveras, 759 F.3d at 19. This causation requirement “contemplates proof that the supervisor‘s conduct led inexorably to the constitutional violation.” Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir.1995). That is a difficult standard to meet but far from an impossible one: a plaintiff may, for example, prove causation by showing inaction in the face of a “known history of widespread abuse sufficient to alert a supervisor to ongoing violations.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.1994). “[I]solated instances of unconstitutional activity” will not suffice. Id.
In addition, a supervisor must be on notice of the violation. See Ramírez-Lluveras, 759 F.3d at 20. Such notice may be either actual or constructive. See Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir.2011).
Before us, Guadalupe argues that the district court erred in dismissing his supervisory liability claims both because it failed to give proper evidentiary weight to the Report and because it imposed too demanding a pleading standard. We agree in part.
The amended complaint alleges that each of the supervisory defendants “negli-gently confided and entrusted” the un-named police officers “with the authority to discharge their apparent duties.” And as to each, the amended complaint also alleges that:
[He] is responsible to [Guadalupe] for his own actions and omissions, negligent
entrustment and negligent supervision ... a behavior ... that ... could be characterized as supervisory encourage-ment, condonation or acquiescence or gross negligence, amounting to deliber-ate indifference and reckless disregard of [Guadalupe‘s] rights and guarantees under the law, and improperly train-ing/supervising his subordinates.
The complaint then alleges that every one of the supervisory defendants failed to take necessary investigatory or remedial action after the shooting.
Certain other allegations, relevant only to Pesquera, Somoza, and Sánchez, like-wise bear on these supervisory liability claims. As to this group of defendants, the amended complaint further alleges that each member of the group adopted policies that preserved “the pattern and practice of use of excessive force.”
Given this series of averments, Guadalupe‘s best case is against Pesquera (who became Superintendent of the PRPD after the Report became public and held that office at the time of the shooting). The district court nonetheless dismissed the supervisory liability claim against Pes-quera, concluding that Guadalupe‘s allega-tions were insufficient to “connect the dots” and demonstrate that Pesquera‘s conduct was affirmatively linked to the harm that eventuated. Guadalupe-Báez, 2014 WL 4656663, at *6. We think that the court set the bar too high: viewed as part of the tableau constructed by the Report, Guadalupe has stated a supervisory liabili-ty claim against Pesquera that is plausible on its face.
As Superintendent, Pesquera bore the ultimate responsibility for overseeing and directing all administrative, operational, training, and disciplinary aspects of the PRPD. An appreciable amount of time elapsed between the issuance of the Re-port and the shooting. Guadalupe alleges, though, that Pesquera continued—or at least failed to ameliorate—“policies which cause the pattern and practice of use of excessive force.” When this allegation is evaluated in conjunction with the rampant constitutional violations limned in the Re-port and the parade of horribles allegedly visited upon Guadalupe, a plausible infer-ence exists that Pesquera either condoned or at least acquiesced in the offending conduct—conduct that is affirmatively linked to the harm Guadalupe suffered. Thus, Pesquera may be subject to section 1983 liability as a supervisor for that harm.
Any claim by Pesquera that he was un-aware of the substantial risk of the serious harm that befell Guadalupe would consti-tute deliberate indifference to the reality of the dysfunction that Pesquera inherited when he took over as Superintendent of the PRPD. See, e.g., Ramírez-Lluveras, 759 F.3d at 20; Maldonado-Denis, 23 F.3d at 582. The short of it is that Guada-lupe‘s supervisory liability claim against Pesquera crosses the plausibility threshold because the DOJ has given him a leg up. Indeed, it is through such reasoning that district courts in Puerto Rico have consis-tently given weight to the Report and de-clined to dismiss analogous claims during the pleading phase. See, e.g., Cabrera-Berrios v. Pedrogo, 21 F.Supp.3d 147, 153 (D.P.R.2014); Molina v. Vidal-Olivo, 961 F.Supp.2d 382, 384-86 (D.P.R.2013); Jorge v. Police Dep‘t of P.R., No. 11-2268, 2013 WL 792827, at *3 (D.P.R. Mar. 1, 2013).
We add that plausibility determinations cannot be made in the abstract. Here, all that Guadalupe could reasonably know (or be expected to ascertain) at the time he filed suit was that an unidentified police officer had shot him for no apparent rea-son. But when combined with the Report, that is enough to get Guadalupe across the plausibility threshold: such random and anonymous violence appears to be a pre-
Nor is there anything unfair about this result. The existence of the Report put Pesquera on luminously clear notice that he might become liable, in his supervisory capacity, should his acts and omissions contribute to the continuation of the pa-thologies described in the Report. See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.2011) (holding that a series of investi-gative reports documenting systemic defi-ciencies in a jail put the defendant-supervi-sor on notice of the risk of the harm that befell the plaintiff); see also Turkmen v. Hasty, 789 F.3d 218, 226 (2d Cir.2015) (explaining that a report incorporated into a complaint may “provide invaluable con-text” and “help orient [a court‘s] analysis of the [c]omplaint“).
To be sure, Guadalupe‘s claim against Pesquera, as pleaded, is not a text-book model. He could have included more particulars about Pesquera‘s role and re-sponsibilities as Superintendent of the PRPD and tied such details to the known circumstances of his shooting. But we have said before, and today reaffirm, that “[a] high degree of factual specificity is not required at the pleading stage.” Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 56 (1st Cir.2013). In our view, there is enough here—though not by much—to permit Guadalupe to proceed to discovery.
There is one loose end. Pesquera ar-gues, in the alternative, that he is at least entitled to qualified immunity because the complaint does not adequately allege that he “was on notice that his actions or inac-tions put the citizens’ lives at risk.” We do not agree.
To determine whether a defen-dant is entitled to qualified immunity at the motion to dismiss stage, we ask “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitu-tional right; and (2) if so, whether the right was clearly established at the time of the defendant‘s alleged violation.” Glik v. Cunniffe, 655 F.3d 78, 81 (1st Cir.2011) (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009)). A right is “clearly established” if “the state of the law at the time of the alleged violation gave the de-fendant fair warning that his particular conduct was unconstitutional.” Maldona-do, 568 F.3d at 269. Because the Report put Pesquera on clear notice of his poten-tial liability, Pesquera plainly cannot satis-fy one of the showings required for quali-fied immunity.
B. Other Supervisory Defendants.
As to the other supervisory defendants (Román, Somoza, and Sánchez), the order of dismissal stands on a different footing. Though Guadalupe‘s allegations against Pesquera are considerably bolstered by the findings contained in the Report, these findings do not help him against the other supervisory defendants. We explain brief-ly.
Román was named in the suit as the head of the San Lorenzo municipal police. Yet, the Report has no visible connection with the structure, training, oversight, or operations of the San Loren-zo municipal police. Equally as important, the amended complaint does not so much as attempt to forge a link between the Report and any wrongdoing on the part of the municipal police. Without the bolster-ing effect of the Report, Guadalupe‘s bare and conclusory allegations against Román lack the requisite specificity to push his claim across the plausibility threshold. See Ocasio-Hernández, 640 F.3d at 12.
To say more on this issue would be supererogatory. “[W]e have repeatedly held that ... broad allegations against high-ranking government officials fail to state a claim.” Feliciano-Hernández, 663 F.3d at 534. Accordingly, the district court did not err in dismissing the supervi-sory liability claims against Román, Somo-za, and Sánchez.
C. Claims Against Other Defendants.
The amended complaint alleges that Orozco and Rosa, who headed the dual investigations into the shooting inci-dent, are liable under
All of these claims are dead on arrival: Guadalupe has utterly neglected to develop any arguments on appeal with respect to them.3 Consequently, we deem these claims to be waived.4 See Vázquez-Rivera v. Figueroa, 759 F.3d 44, 47 & n. 1 (1st Cir.2014); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990).
D. Motion for Reconsideration.
Finally, Guadalupe appeals from the denial of his motion for reconsid-eration.4 We review a district court‘s de-nial of a motion for reconsideration solely for abuse of discretion. See United States v. Allen, 573 F.3d 42, 53 (1st Cir.2009). Such a motion must either establish a clear error of law or point to newly discovered evidence of sufficient consequence to make a difference. See Landrau-Romero v. Banco Popular de P.R., 212 F.3d 607, 612 (1st Cir.2000).
We discern no abuse of discretion in the district court‘s denial of Guadalupe‘s motion for reconsideration. Guadalupe re-ceived documents from the PRPD indicat-ing the putative identity of his shooter on August 18, 2014. A month then elapsed before the district court granted the mo-tions to dismiss on September 17. Yet Guadalupe—despite having been warned by the district court that his amended complaint would likely not satisfy the plau-sibility standard—took no steps in the in-terim either to amend his complaint or otherwise to call the newly revealed infor-mation to the court‘s attention in some other way.
III. CONCLUSION
We need go no further. For the reasons elucidated above, we reverse the judgment of dismissal as to defendant Pesquera, af-firm the judgment in all other respects, and remand for further proceedings con-sistent with this opinion.5 Costs shall be taxed against Pesquera and in favor of Guadalupe.
So Ordered.
SELYA
CIRCUIT JUDGE