Martinez-Rivera v. Sanchez Ramos

            United States Court of Appeals
                       For the First Circuit

No. 06-2398

                    CRUZ MARTÍNEZ-RIVERA, ET AL.,

                       Plaintiffs, Appellants,

                                 v.

                   ROBERTO SÁNCHEZ RAMOS, ET AL.,

                       Defendants, Appellees.


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

          [Hon. Jay A. Garcia-Gregory, U.S. District Judge]


                               Before

                         Boudin, Chief Judge,
                        Howard, Circuit Judge,
                     and Saylor,* District Judge.



     Jo-Ann Estades Boyer for appellants.
     Salvador J. Antonnetti-Stutts, Solicitor General, with whom
Mariana Negrón-Vargas, Deputy Solicitor General, Maite D. Oronoz
Rodríguez, Deputy Solicitor General, and Susana I. Peñagarícano-
Brown, Assistant Solicitor General, were on brief, for appellees
Roberto Sánchez Ramos and Pedro Toledo.



                           August 7, 2007




     *
         Of the District of Massachusetts, sitting by designation.
            Saylor, District Judge.        This appeal arises out of the

sua sponte dismissal of a civil rights action.             The complaint

sought damages for the death of Luis Cepeda Martínez, allegedly at

the hands of Puerto Rico police officers, under 42 U.S.C. § 1983

and   various    state   law   theories.      Plaintiffs   sued   multiple

defendants, including Roberto Sánchez Ramos, Secretary of the

Puerto Rico Department of Justice, and Pedro Toledo, Superintendent

of the Puerto Rico Police Department.          Sánchez Ramos and Toledo

moved to dismiss the amended complaint.            With leave of court,

plaintiffs filed a second amended complaint that removed Sánchez

Ramos as a defendant and replaced Toledo with defendant Agustin

Cartagena.      The district court then dismissed the claims against

the remaining defendants sua sponte.         Plaintiffs appealed, and we

now affirm in part and reverse in part.

I.    BACKGROUND

            Because the district court dismissed plaintiffs’ claims

pursuant to Fed. R. Civ. P. 12(b)(6), we assume the truth of the

facts set forth in the second amended complaint.           See Palmer v.

Champion Mortgage, 465 F.3d 24, 27 (1st Cir. 2006).

            On October 28, 2004, Luis Cepeda Martínez was on the

seventh floor of the Torre Sabana Housing Project, where his mother

resides.     Sometime between 5:00 and 6:00 a.m., officers of the

Puerto Rico Police Department conducted a raid on the premises. As

Cepeda Martínez walked toward his mother’s apartment, he ran into


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several plainclothes police officers.     The officers instructed him

to stop.    Then, “without provocation or reason,” and despite the

fact that he was “unarmed and harmless,” he was shot to death.

(Second. Am. Compl. §§ 16, 18). The complaint further alleges that

the officers dragged Cepeda Martínez down the stairs to the first

floor, and then instructed a neighbor to clean the blood off the

floor and stairs so that children would not see it.          Although the

police department reported that Cepeda Martínez had been shooting

at the officers, no weapon was ever recovered.

            The complaint alleges that defendants Sergeant Antonio

Martínez and Officer Enrique Bencebi, along with other unidentified

police officers, were among those who participated in the raid at

Torre Sabana.      It further alleges that Police Superintendent

Agustin    Cartagena,   Sergeant   Martínez,   and   other   unidentified

defendants were in charge of the raid and ultimately responsible

for the instructions given to the police officers conducting the

raid.   The complaint does not, however, identify which officer or

officers actually shot Cepeda Martínez.

            Cepeda Martínez’s parents, siblings, and children (a son

and a daughter, represented by their respective mothers) commenced

a civil action in the United States District Court for the District

of Puerto Rico on October 28, 2005.            The original complaint

asserted claims against various defendants under 42 U.S.C. § 1983,

contending that defendants violated Cepeda Martínez’s rights under


                                   -3-
the Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendments to the

United States Constitution.            Plaintiffs also asserted state-law

claims under the laws and Constitution of the Commonwealth of

Puerto Rico, including Article 1802 of the Civil Code of Puerto

Rico.

            On     January   18,     2006,     plaintiffs     filed   an       amended

complaint against the following defendants:                  (1) Roberto Sánchez

Ramos, in his personal and official capacity as Secretary of the

Puerto    Rico    Department    of    Justice;     (2)   Pedro    Toledo,      in   his

personal and official capacity as Superintendent of the Puerto Rico

Police Department; (3) Sergeant Antonio Martínez, in his personal

and official capacity as an agent of the Carolina Drug Unit of the

Puerto Rico Police; (4) Officer Enrique Bencebi, in his personal

and official capacity as an agent of the Carolina Drug Unit; and

(5) several unidentified officers, listed in the complaint as

Richard Roe, Peter Poe, Jane Doe, and John Doe.

            Defendants Sánchez Ramos and Toledo moved to dismiss the

amended complaint on March 7, 2006, on the grounds that (1) the

Eleventh Amendment barred the claims against defendants in their

official    capacities;      (2)     plaintiffs     failed   to   show     a    causal

connection between their federal rights deprivation and defendants’

actions; and (3) plaintiffs lacked standing to sue under 42 U.S.C.

§ 1983.     On March 27, Sánchez Ramos and Toledo filed a motion

requesting       that   their   motion       to   dismiss    be   adjudicated       as


                                         -4-
unopposed, as plaintiffs had not responded within the ten-day

period   prescribed   by   the   Local    Rules.      On    that   same   date,

plaintiffs   sought   an   extension     of   time   in    which   to   file   an

opposition to the motion.        The district court denied plaintiffs’

request for an extension on March 28.

           Plaintiffs then requested leave to file a second amended

complaint.   On May 4, the district court granted the request.                 At

the same time, however, it entered an opinion and order dismissing

the entire action.     In the opinion, the district court began by

noting that the second amended complaint (1) dismissed all claims

against Sánchez Ramos and replaced Toledo with defendant Agustin

Cartagena;1 (2) dismissed all claims alleging violations of the

Fifth, Eighth, and Ninth Amendments; and (3) dropped all claims

against the police superintendent (now defendant Cartagena) in his

official capacity.2    The court then dismissed the § 1983 claims

against the remaining defendants sua sponte for failure to state a




     1
       At the time of dismissal, defendants Martínez and Cartagena
had not yet been served with the summons and complaint. Defendant
Bencebi was served on November 17, 2005.
     2
       On appeal, plaintiffs did not address the issue of whether
the second amended complaint included claims against the police
superintendent in his official capacity. The issue is therefore
waived. See Sullivan v. Neiman Marcus Group, Inc., 358 F.3d 110,
114 n.1 (1st Cir. 2004).

                                    -5-
claim, and dismissed the claims under Puerto Rico law without

prejudice.3         This appeal ensued.

II.   DISCUSSION

               We review de novo a district court’s dismissal of a

complaint for failure to state a claim under Fed. R. Civ. P.

12(b)(6).          See Palmer, 465 F.3d at 27.

               The     district    court     dismissed    the    claims   against

Cartagena, Bencebi, Martínez, and the unidentified officers sua

sponte. Although the court stated that it was granting defendants’

motion to dismiss, the only moving parties--Sánchez Ramos and

Toledo--had been dropped from the suit.                  No other defendant had

sought dismissal.

               As a general matter, “[s]ua sponte dismissals are strong

medicine, and should be dispensed sparingly.” Chute v. Walker, 281

F.3d 314, 319 (1st Cir. 2002)(quoting Gonzalez-Gonzalez v. United

States, 257 F.3d 31, 33 (1st Cir. 2001)).                  “The general rule is

that ‘in limited circumstances, sua sponte dismissals of complaints

under       Rule    12(b)(6)   .   .   .   are   appropriate,’   but   that   ‘such

dismissals are erroneous unless the parties have been afforded


        3
       In addition to the § 1983 claims of Cepeda Martínez, brought
by his representatives, the district court also dismissed the §
1983 claims brought on plaintiffs’ own behalf for loss of
companionship.    On appeal, any issues as to the dismissal of
plaintiffs’ own § 1983 claims or the supplemental claims under
Puerto Rico law have been waived, as plaintiffs fail to address the
subjects in their brief. See Smilow v. Southwestern Bell Mobile
Sys., Inc., 323 F.3d 32, 43 (1st Cir. 2003)(“Issues raised on
appeal in a perfunctory manner (or not at all) are waived.”).

                                           -6-
notice and an opportunity to amend the complaint or otherwise

respond.’”        Chute, 281 F.3d at 319 (quoting Futura Dev. of P.R.,

Inc. v. Estado Libre Asociado de P.R., 144 F.3d 7, 13-14 (1st Cir.

1998)).

             Even a sua sponte dismissal entered without prior notice

to   the     plaintiff       may   be    proper      in    relatively       egregious

circumstances.       See Gonzalez-Gonzalez, 257 F.3d at 37.                 “If it is

crystal clear that the plaintiff cannot prevail and that amending

the complaint would be futile, then a sua sponte dismissal may

stand.”     Id.    The burden is on the party defending the dismissal to

demonstrate that “the allegations contained in the complaint, taken

in   the   light     most    favorable    to   the      plaintiff,   are     patently

meritless and beyond all hope of redemption.” Id.; see also Chute,

281 F.3d at 319.

             Plaintiffs contend that the district court erred in

dismissing the second amended complaint sua sponte.                        As to the

claims alleging violations of the Fourth and Fourteenth Amendments,

we agree.        To the extent, however, that the complaint purports to

allege violations of the Fifth, Eighth, and Ninth Amendments, the

claims     are    entirely   without     merit    and     the   dismissal    will   be

affirmed.

             A.        Fourth and Fourteenth Amendment Claims

             The second amended complaint alleges that Luis Cepeda

Martínez was shot “without provocation or reason” in the course of


                                         -7-
a police raid, despite the fact that he was “unarmed and harmless.”

(Second Am. Compl. ¶¶ 16, 18).   It further alleges that defendants

Martínez and Bencebi, along with other unnamed officers, “were

among the officer ones [sic] who conducted the raid” and that

“[o]ne of the officers involved in the raid shot one or more of the

bullets that proximately resulted” in the death of Cepeda Martínez.

(Second Am. Compl. ¶ 17).   That shooting is alleged, among other

things, to have deprived Cepeda Martínez of his life without due

process of law in violation of the Fourteenth Amendment and to have

constituted an unreasonable seizure in violation of the Fourth

Amendment.4 The district court dismissed the Fourth and Fourteenth

Amendment claims on the grounds that plaintiffs had failed to

“point to a specific wrongful act by defendants that caused or

contributed to” the alleged violation.   Martinez-Rivera v. Sanchez

Ramos, 430 F. Supp. 2d 47, 54 (D.P.R. 2006).

          There is no question that the shooting of an “unarmed and

harmless” civilian by police officers “without provocation or

reason,” if proved, constitutes a constitutional violation.    The

district court was apparently troubled, however, by the fact that

the plaintiffs cannot, at this stage, identify the specific officer

who shot Cepeda Martínez, or what (if anything) the other officers



     4
       The Fourth Amendment’s prohibition against unreasonable
seizures has been made applicable to the states by the Fourteenth
Amendment. See Mapp v. Ohio, 367 U.S. 643, 655 (1961); Maryland v.
Pringle, 540 U.S. 366, 369 (2003).

                                 -8-
did to contribute to the alleged violation.                 Without further

commenting on the merits of the second amended complaint, we note

that as a general matter a plaintiff may bring suit against a

fictitious or unnamed party where a good-faith investigation has

failed to reveal the identity of the relevant defendant and there

is   a       reasonable   likelihood   that   discovery   will   provide   that

information.        See, e.g., Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971); Maclin v. Paulson, 627 F.2d 83, 87 (7th Cir. 1980)

(“As Bivens . . . recognize[s], when, as here, a party is ignorant

of defendants’ true identity, it is unnecessary to name them until

their identity can be learned through discovery or through the aid

of the trial court.”).5         At the very least, plaintiffs here should

have the opportunity to explain to the district court why the

complaint states a claim, or to request further leave to amend if

appropriate.         We therefore conclude that plaintiffs’ Fourth and

Fourteenth Amendment claims are not “patently meritless and beyond

all hope of redemption,” and that the district court’s sua sponte

dismissal of these claims without notice to the plaintiffs was in

error.        Gonzalez-Gonzalez, 257 F.3d at 37.



         5
       The practice is particularly common in cases of alleged
police brutality, where a plaintiff may be aware of the nature and
cause of the injury but not the identity of the perpetrators, and
has no realistic means of obtaining the information outside the
discovery process. See, e.g., Bivens, 403 U.S. at 390 n.2. Of
course, once those identities are revealed, the plaintiff should
act promptly to amend the complaint to substitute the correct
parties and to dismiss any baseless claims.

                                        -9-
           B.     Fifth, Eighth, and Ninth Amendment Claims

           Plaintiffs    further   contend   that   the   district   court

erroneously concluded that the second amended complaint did not

include claims alleging violations of the Fifth, Eighth, and Ninth

Amendments. In support of this contention, plaintiffs point to the

jurisdictional allegations, which expressly state that the action

is brought pursuant to 42 U.S.C. § 1983 and the Fourth, Fifth,

Eighth, Ninth and Fourteenth Amendments.       Even assuming that such

claims were properly asserted--a doubtful proposition at best--we

nonetheless hold that the district court properly dismissed the

Fifth, Eighth, and Ninth Amendment claims.

                  1.     Fifth Amendment

           The Due Process Clause of the Fifth Amendment provides

that “[n]o person shall . . . be deprived of life, liberty, or

property, without due process of law . . . .”        U.S. Const. amend.

V.   The Fifth Amendment Due Process Clause, however, applies “only

to actions of the federal government--not to those of state or

local governments.”     Lee v. City of Los Angeles, 250 F.3d 668, 687

(9th Cir. 2001); see also Morin v. Caire, 77 F.3d 116, 120 (5th

Cir. 1996)(“[T]he Fifth Amendment applies only to the actions of

the federal government, and not to the actions of a municipal

government as in the present case.”); cf. Dusenbery v. United

States, 534 U.S. 161, 167 (2002) (“The Due Process Clause of the

Fifth Amendment prohibits the United States, as the Due Process


                                   -10-
Clause of the Fourteenth Amendment prohibits the States, from

depriving any person of property without ‘due process of law.’”).6

As plaintiffs do not allege that any of the defendants are federal

actors, any Fifth Amendment claim was properly dismissed.

                 2.    Eighth Amendment

          The Eighth Amendment prohibits the imposition of “cruel

and unusual punishment.”     U.S. Const. amend. VII.      The Eighth

Amendment, however, applies “only after the State has complied with

the   constitutional   guarantees    traditionally   associated   with

criminal prosecutions.”     City of Revere v. Massachusetts Gen.

Hosp., 463 U.S. 239, 244 (1983)(quoting Ingraham v. Wright, 430

U.S. 651, 671-72 n.40 (1977)).      “[T]he State does not acquire the

power to punish with which the Eighth Amendment is concerned until

after it has secured a formal adjudication of guilt in accordance

with due process of law.”    Id.     Here, because there had been no

formal adjudication of guilt against Cepeda Martínez at the time of

the alleged constitutional deprivation, the Eighth Amendment is

inapplicable and any claim brought on that theory was properly

dismissed.




      6
       Other provisions of the Fifth Amendment, such as the
prohibitions against self-incrimination and double jeopardy, are
applicable to the states through the Fourteenth Amendment. See
Duncan v. State of La., 391 U.S. 145, 148 (1968) (self-
incrimination); Benton v. Maryland, 395 U.S. 784, 794 (1969)
(double jeopardy).

                                 -11-
                    3.     Ninth Amendment

            Finally, plaintiffs contend that defendants violated

Cepeda Martínez’s Ninth Amendment rights.             However, “[t]he Ninth

Amendment–-which      stipulates     that      ‘the   enumeration     in   the

Constitution of certain rights, shall not be construed to deny or

disparage    others      retained   by   the    people’–-does   not    create

substantive rights beyond those conferred by governing law.” Vega-

Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 182 (1st Cir.

1997).   Accordingly, the district court properly dismissed any

Ninth Amendment claim.

III.   CONCLUSION

            The district court’s sua sponte dismissal of claims under

42 U.S.C. § 1983, alleging violations of the Fourth and Fourteenth

Amendment rights of Cepeda Martínez, was in error. To that extent,

dismissal is therefore reversed and the case is remanded for

further proceedings not inconsistent with this opinion.                To the

extent that the dismissal was based on alleged violations of the

Fifth, Eighth, or Ninth Amendments, the dismissal is affirmed.




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