Guadalupe-Baez v. Police Officers A-Z

United States Court of Appeals
For the First Circuit

No. 14-2304

RAÚL ALBERTO GUADALUPE-BÁEZ ET AL.,

Plaintiffs, Appellants,

v.

HÉCTOR PESQUERA ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Selya, Circuit Judges.

Javier A. Morales Ramos for appellants.
Susana I. Peñagarícano-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.

April 20, 2016
 SELYA, Circuit Judge. This case requires us to revisit

the Rule 12(b)(6) pleading threshold. It involves a plaintiff who

reasonably believes that he was shot by a police officer but who

thereafter was deprived of access to information that would have

enabled him to establish the facts and circumstances surrounding

the incident. The district court determined that the allegations

in the plaintiff's amended complaint lacked the requisite

plausibility and therefore dismissed the action. See Guadalupe-

Báez v. Police Officers A-Z, No. 13-1529, 2014 WL 4656663, at *8

(D.P.R. Sept. 17, 2014). After careful consideration, we reverse

in part.

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 42 U.S.C. § 14141. Some three years later, the DOJ

issued its report (the Report), which concluded that the PRPD was

"broken in a number of critical and fundamental respects" and that

PRPD officers had "engage[d] in a pattern and practice of excessive

force in violation of the Fourth Amendment." The Report went on

to identify many other systemic deficiencies, including inadequate

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officer training, faulty supervision, lax discipline, and chronic

failures to investigate and remediate officer wrongdoing.

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 settlement. The district court continues

to monitor the PRPD's compliance with the settlement agreement.

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 unable 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.

1 Originally, Guadalupe's mother and aunt appeared as
additional plaintiffs. The district court dismissed the section
1983 claims of these additional plaintiffs because "[o]nly persons
who have been subject to constitutional deprivations may bring
actions under § 1983." Guadalupe-Báez, 2014 WL 4656663, at *3
(quoting Núñez González v. Vázquez Garced, 389 F. Supp. 2d 214,
218 (D.P.R. 2005)). Guadalupe has not challenged this ruling on
appeal, so we treat him as the sole plaintiff and appellant.

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 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 42 U.S.C. §§ 1983, 1985. The following parties were

named as defendants:

 "Unnamed Police Officers A-Z" (the "John Doe" defendants),

for various acts, including excessive force against Guadalupe

in violation of the Fourth Amendment;

2
The amended complaint also included supplemental claims under
Puerto Rico law. These claims, along with Guadalupe's Fourth
Amendment claims, were eventually dismissed without prejudice, and
it would serve no useful purpose to describe them in detail.

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  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 of inadequate policies and

procedures, insufficient training, inadequate supervision,

deficient complaint processes and ineffective disciplining."

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

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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 Rule 12(b)(6). See id. at *4-7.

Guadalupe moved for reconsideration, see Fed. R. Civ. P.

59(e), citing the new information belatedly disclosed by the PRPD.

The district court summarily denied the motion, stating that

Guadalupe had failed to present this information to the court in

a timely manner.

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 Rule 12(b)(6). See Medina-Velázquez v.

Hernández-Gregorat, 767 F.3d 103, 108 (1st Cir. 2014); SEC v.

Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (en banc). "In

conducting this review, we accept the truth of all well-pleaded

facts and draw all reasonable inferences therefrom in the pleader's

favor." Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir.

2012). We may supplement such "facts and inferences with data

points gleaned from documents incorporated by reference into the

complaint, matters of public record, and facts susceptible to

judicial notice." Haley v. City of Boston, 657 F.3d 39, 46 (1st

Cir. 2011).

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 It is axiomatic that a complaint must contain only "a

short and plain statement of the claim showing that the pleader is

entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion

to dismiss for failure to state a claim, "a complaint must contain

sufficient factual matter . . . to 'state a claim to relief that

is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)); see Grajales, 682 F.3d at 44.

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

reasonable 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 42 U.S.C. § 1983. Such a claim has

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two elements: first, the plaintiff must show that one of the

supervisor's subordinates abridged the plaintiff's constitutional

rights. See Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir. 2008).

Second, the plaintiff must show that "the [supervisor]'s action or

inaction was affirmative[ly] link[ed] to that behavior in the sense

that it could be characterized as supervisory encouragement,

condonation, or acquiescence or gross negligence amounting to

deliberate indifference." Id. (alterations in original) (quoting

Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir. 1988)).

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."

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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.

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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 "negligently confided and entrusted" the

unnamed 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 encouragement, condonation
or acquiescence or gross negligence, amounting to
deliberate indifference and reckless disregard of
[Guadalupe's] rights and guarantees under the law, and
improperly training/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.

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 Certain other allegations, relevant only to Pesquera,

Somoza, and Sánchez, likewise 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 Pesquera, concluding that

Guadalupe's allegations 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 liability 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

Report and the shooting. Guadalupe alleges, though, that Pesquera

continued — or at least failed to ameliorate — "policies which

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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 Report and the parade of

horribles allegedly visited upon Guadalupe, a plausible inference

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 unaware of the

substantial risk of the serious harm that befell Guadalupe would

constitute 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

Guadalupe'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 consistently given weight to the Report and declined 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).

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 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 reason.

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 predictable culmination of the systemic

problems documented in the Report. In this instance, then, the

Report plays a critical role in bridging the plausibility gap.

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

pathologies described in the Report. See Starr v. Baca, 652 F.3d

1202, 1216 (9th Cir. 2011) (holding that a series of investigative

reports documenting systemic deficiencies in a jail put the

defendant-supervisor 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 context" and "help orient [a court's]

analysis of the [c]omplaint").

To be sure, Guadalupe's claim against Pesquera, as

pleaded, is not a textbook model. He could have included more

particulars about Pesquera's role and responsibilities as

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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 argues, 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 inactions put the citizens' lives at

risk." We do not agree.

To determine whether a defendant 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 constitutional 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 defendant fair

warning that his particular conduct was unconstitutional."

Maldonado, 568 F.3d at 269. Because the Report put Pesquera on

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clear notice of his potential liability, Pesquera plainly cannot

satisfy one of the showings required for qualified 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 briefly.

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 Lorenzo 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 bolstering 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.

The claims against Somoza and Sánchez (both former

Secretaries of Justice) are similarly attenuated. Those claims,

as recited in the amended complaint, contain only the gauziest of

generalities; they fail either to specify the relationship between

the SIB and the PRPD or to indicate what supervisory authority (if

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any) the SIB exercises over the PRPD. In the absence of

allegations placing the SIB and its leaders somewhere in the

relevant chain of command, we cannot impute the pervasive

misconduct by the PRPD described in the Report to the SIB. It

follows that Guadalupe's supervisory liability claims against

Somoza and Sánchez rest solely on their positions of authority.

That is not a permissible basis for a finding of supervisory

liability under section 1983. See Ramírez-Lluveras, 759 F.3d at

19; Ocasio-Hernández, 640 F.3d at 16.

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 supervisory liability claims against

Román, Somoza, and Sánchez.

C. Claims Against Other Defendants.

The amended complaint alleges that Orozco and Rosa, who

headed the dual investigations into the shooting incident, are

liable under sections 1983 and 1985 of Title 42 for obstructing

justice and conspiring to deprive Guadalupe of his right to seek

legal redress. It further alleges that Guadalupe's right to seek

legal redress was impeded by their failure to investigate the

incident properly. Relatedly, the amended complaint alleges,

albeit vaguely, that Delgado somehow shared in these malefactions.

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 All of these claims are dead on arrival: Guadalupe has

utterly neglected to develop any arguments on appeal with respect

to them. Consequently, we deem these claims to be waived.3 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 reconsideration.4 We review a district court's denial 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

received documents from the PRPD indicating the putative identity

of his shooter on August 18, 2014. A month then elapsed before

the district court granted the motions to dismiss on September 17.

Yet Guadalupe — despite having been warned by the district court

3 In point of fact, the only claims developed in Guadalupe's
opening appellate brief — or addressed at all, for that matter —
are his supervisory liability claims.

4 Technically, Guadalupe's motion to reconsider was a motion
to alter or amend the judgment. See Fed. R. Civ. P. 59(e). The
nomenclature makes no meaningful difference.

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that his amended complaint would likely not satisfy the

plausibility standard — took no steps in the interim either to

amend his complaint or otherwise to call the newly revealed

information to the court's attention in some other way.

As this case illustrates, inaction has consequences.

When a party seeks to alter or amend a judgment based on newly

discovered evidence, the party must act with due diligence. Where,

as here, he dallies, he can scarcely be heard to complain if the

court denies the requested relief. See Allen, 573 F.3d at 53;

Emmanuel v. Int'l Bhd. of Teamsters, Local Union No. 25, 426 F.3d

416, 422 (1st Cir. 2005); cf. Vasapolli v. Rostoff, 39 F.3d 27, 36

(1st Cir. 1994) ("Unlike the Emperor Nero, litigants cannot fiddle

as Rome burns. A party who sits in silence [and] withholds

potentially relevant information . . . does so at his peril.").

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we reverse the judgment of dismissal as to defendant Pesquera,

affirm the judgment in all other respects, and remand for further

proceedings consistent with this opinion.5 Costs shall be taxed

against Pesquera and in favor of Guadalupe.

So Ordered.

5
Because Guadalupe's Fourth Amendment claims and his "John
Doe" claims against unnamed police officers were dismissed without
prejudice, we envision no impediment to Guadalupe's filing of a
suit, if he so chooses, against the recently identified shooter.

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