Febus-Rodriguez v. Betancourt-Lebron

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1499

JULIO FEBUS-RODRIGUEZ AND
CATALINA RODRIGUEZ-PAGAN, ET AL.,

Plaintiffs, Appellees,

v.

ISMAEL BETANCOURT-LEBRON, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos Antonio Fust , U.S. District Judge]

Before

Breyer, Chief Judge,

Torruella and Boudin, Circuit Judges.

Reina Col n-de Rodr guez, Acting Deputy Solicitor General,

Department of Justice, with whom Carlos Lugo-Fiol, Acting

Solicitor General, Edna C. Rosario-Mu oz, Department of Justice,

Federal Litigation Division, Lou A. Delgado, Department of

Justice, Federal Litigation Division, Angel L. Tapia-Flores, and

Law Firm Tapia & Avil s, were on brief for appellants.

Iv n A. Ramos, with whom Julio Morales-S nchez, Katarina

Stipec-Rubio, and Ramos, Morales-S nchez & Ramos C mara, were on

brief for appellees.

January 18, 1994

TORRUELLA, Circuit Judge. The appellants in this case

appeal the district court's order denying their motions for

summary judgment based on the doctrine of qualified immunity.

Plaintiffs Julio Febus-Rodr guez ("Febus") and his mother,

Catalina Rodr guez-Pag n, filed suit pursuant to 42 U.S.C.

1983, claiming that during Febus' arrest on April 14, 1990, he

was assaulted by the arresting police officers and then denied

necessary medical treatment, in violation of the Fourth, Sixth,

and Fourteenth Amendments to the Constitution. Defendants1

Ismael Betancourt-Lebr n, the Superintendent of the Puerto Rico

Police Department ("Betancourt"), and Daniel Oquendo-Figueroa,

Mayor of the Municipality of Cayey ("Oquendo") moved for summary

judgment, based in part, on the grounds that the doctrine of

qualified immunity barred the suit. The district court denied

their motion. We reverse.

I. STATEMENT OF THE CASE

When a defendant moves for summary judgment based on

the doctrine of qualified immunity, the court must review the

facts in the light most favorable to the plaintiff. See Rogers

v. Fair, 902 F.2d 140, 143 (1st Cir. 1990). The facts appearing

from the summary judgment materials are as follows.

On April l4, l990, Febus, who is mentally retarded, was

1 Police officers Miguel Rodr guez-Rodr guez, H ctor Rivera-
Santiago, Jos Rivera-Ortiz, the conjugal partnerships
constituted between the defendants and their wives, and the
Municipality of Cayey, Puerto Rico, are also defendants in this
action. These defendants are not, however, parties to this
appeal.

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performing indecent gestures and breaching the peace on a public

street in Cayey, Puerto Rico. After the Puerto Rico Police

Department received a complaint about Febus' actions, police

officers H ctor Rivera-Santiago ("H ctor Rivera") and Miguel

Rodr guez-Rodr guez ("Rodr guez") arrived at the scene. A short

time later, a Cayey Municipal Guard, Jos Rivera-Ortiz ("Jos

Rivera") arrived to assist them. The three officers attempted to

speak to Febus. Febus allegedly resisted their attempts to calm

him down, and a struggle ensued. The officers then placed Febus

under arrest.

After Febus' arrest, the officers transported Febus to

the Cayey police station. From there, Officer Rodr guez and

Officer Jos Rivera took Febus to the Guayama Court, where he was

charged with breaching the peace and resisting arrest. The

officers then brought Febus back to the Cayey police station and

then released him.

Febus was severely beaten by the police officers during

his arrest and he was denied medical treatment for the injuries

he suffered.2 Febus was hospitalized from April l4, l990 to

April 24, l990. As a result of the events of April 14, 1990,

Febus is now allegedly a quadriplegic, suffering from post-

traumatic epilepsy, and aphasia.

Febus, and his mother, Catalina Rodr guez-Pag n,

2 Defendants Betancourt and Oquendo have conceded that these
events occurred for the purposes of this summary judgment motion
only. It should be noted, however, that all of the defendants
deny that Febus was beaten, or denied medical treatment on April
19, 1990, or that they in any way caused Febus' alleged injuries.

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originally filed their complaint in this matter on April l5,

1991, against police officers Rodr guez, H ctor Rivera and Jos

Rivera, Superintendent Betancourt, and Mayor Oquendo, as well as

other defendants whose claims are not relevant to this appeal.

The plaintiffs alleged claims under 42 U.S.C. 1983 claiming

that the three police officers severely beat Febus during his

arrest, and then denied him necessary medical treatment, thus

violating Febus' rights under the Fourth, Sixth and Fourteenth

Amendments of the Constitution. The plaintiffs' claims against

Betancourt and Oquendo were based on Betancourt's position as

supervisor of Officer Rodr guez and Officer H ctor Rivera, and

Oquendo's position as supervisor of Officer Jos Rivera. The

plaintiffs claimed that Betancourt and Oquendo were grossly

negligent in their recruiting, training, and supervision of the

police officers who were involved in this incident.

To support their allegations against Betancourt and

Oquendo, the plaintiffs have proffered the expert affidavit of

Dr. Pedro Vales-Hern ndez ("Dr. Vales"), a clinical psychologist

and criminologist. After reviewing the officers' personnel

histories and the facts surrounding the events on April 14, 1990,

Dr. Vales concluded:

[I]t is evident that Policemen and
Municipal Guards are not adequately
trained within a professional orientation
where physical intervention is deemed
unnecessary. There is not a single
course in their curriculum related to
crisis intervention, recognition and
treatment of mentally [i]nsane people,
treatment of non[-]visible traumas,
[invasion] of psychological perimeters

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while approaching a person or even how to
makea [non-violent]intervention orarrest.
Furthermore, it is our contention that
Police (or Municipal Guard) recruitment
practice[s] [are] extremely lax. People
with [deficient] academic records, poor
attitudes, and personal pathologies can
be recruited due to the lack of
rigorosity [sic] [in] the process.

Psychological assessment[s] of applicants
are limited to an interview and the
administration of a single test that will
not measure a variety of personality
traits not compatible with healthy
standards.

On May 14, 1992, Betancourt and Oquendo filed a Motion

to Dismiss and/or for Summary Judgment, basing their motion, in

part, on the doctrine of qualified immunity. On April 7, 1993,

the district court denied their motion without explanation.

Betancourt and Oquendo then filed this interlocutory appeal.

II. ANALYSIS

A. Jurisdiction

"[A] district court's denial of a claim of qualified

immunity, to the extent that it turns on an issue of law, is an

appealable 'final decision' within the meaning of 28 U.S.C.

1291 . . ." Fonte v. Collins, 898 F.2d 284, 285 (1st Cir. 1990)

(quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). Because

a defendant's entitlement to qualified immunity is a question of

law in this context, appellate review is plenary. Hoffman v.

Reali, 973 F.2d 980, 985 (1st Cir. 1992). Therefore, we must

review the record and examine the discovered facts regarding the

conduct of Betancourt and Oquendo, and determine whether a

genuine issue does or does not exist concerning qualified

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immunity. Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir. 1988).

B. The Summary Judgment Standard

A motion for summary judgment must be granted if:

[T]he pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a
matter of law.

Fed. R. Civ. P. 56(c). "To succeed, the moving party must show

that there is an absence of evidence to support the nonmoving

party's position." Rogers, 902 F.2d at 143. If this is

accomplished, the burden then "shifts to the nonmoving party to

establish the existence of an issue of fact that could affect the

outcome of the litigation and from which a reasonable jury could

find for the [nonmoving party]." Id. (citations omitted). The

nonmovant cannot simply rest upon mere allegations. Id.

Instead, the nonmoving party must adduce specific, provable facts

which establish that there is a triable issue. Id. "There must

be 'sufficient evidence favoring the nonmoving party for a jury

to return a verdict for that party. If the evidence is merely

colorable or is not significantly probative, summary judgment may

be granted.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986)). We now proceed to examine the substantive

legal principles that guide our 1983 analysis.

C. Qualified Immunity

Qualified immunity shields government officials

performing discretionary functions from civil damages "insofar as

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their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Hoffman,

973 F.2d at 985. On a motion for summary judgment, "the relevant

question is whether a reasonable official could have believed his

actions were lawful in light of clearly established law and the

information the official possessed at the time of his allegedly

unlawful conduct." McBride v. Taylor, 924 F.2d 386, 389 (1st

Cir. 1991); see Anderson v. Creighton, 483 U.S. 635, 639 (1987).

As a predicate to this inquiry, however, a plaintiff must

establish that a particular defendant violated the plaintiff's

federally protected rights. See Boyle v. Burke, 925 F.2d 497,

503 (1st Cir. 1991); Rogers, 902 F.2d at 142-43; Sullivan v.

Carrick, 888 F.2d 1, 3 (1st Cir. 1989). Thus, in the context of

the present summary judgment motion, we must determine whether

the plaintiffs have introduced sufficient evidence to create a

genuine issue of material fact that Betancourt and Oquendo

violated Febus' constitutional rights, and if so, whether

Betancourt andOquendo areotherwise entitledto qualifiedimmunity.3

3 This appeal deals only with the claims asserted against
defendants Betancourt and Oquendo in their individual capacities.
The plaintiffs originally sued both Betancourt and Oquendo in
their individual capacities as well as their official capacities.
The district court previously dismissed the plaintiffs' claims
against Betancourt in his official capacity as violative of the
Eleventh Amendment. The district court, however, denied
Oquendo's motion to dismiss the action against him in his
official capacity.

Betancourt and Oquendo then moved for summary judgment, in
part, on the basis of qualified immunity. The sole issue
presently before us is the district court's refusal to grant

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D. Supervisory Liability

The plaintiffs do not contend that Betancourt or

Oquendo was personally involved in the incidents which occurred

on April 14, 1990. Rather, the plaintiffs' claims are premised

on supervisory liability. The plaintiffs contend that Betancourt

and Oquendo were grossly negligent in recruiting, training, and

supervising the police officers that intervened on April 14,

1990, and that this gross negligence rose to the level of

deliberate indifference to the constitutional rights of Febus.

Supervisory liability may not be predicated upon a

theory of respondeat superior. Guti rrez-Rodr guez v. Cartagena,

882 F.2d 553, 562 (1st Cir. 1989). A supervisor may be found

liable only on the basis of his own acts or omissions. Bowen v.

City of Manchester, 966 F.2d 13, 20 (1st Cir. 1992); Guti rrez-

Rodr guez, 882 F.2d at 562 (citing Figueroa v. Aponte-Roque, 864

F.2d 947, 953 (1st Cir. 1989)). Moreover, a supervisor cannot be

liable for merely negligent acts. Rather, a supervisor's acts or

omissions must amount to a reckless or callous indifference to

the constitutional rights of others. Guti rrez-Rodr guez, 882

Betancourt and Oquendo qualified immunity. Qualified immunity
"confers immunity only from individual-capacity suits, such as
suits for money damages, that have been brought against
government actors." Carmen Nereida Gonz lez v. Tirado-Delgado,

990 F.2d 701, 705 (1st Cir. 1993). Qualified immunity does not,
however, provide immunity to a governmental actor sued in his
official capacity, because an "official capacity suit is, in
reality, a suit against the governmental entity, [and] not
against the governmental actor." Id.; see generally Kentucky v.

Graham, 473 U.S. 159, 165-67 (1985). Thus, this appeal does not

affect plaintiffs' claims against Oquendo in his official
capacity, although that claim, in essence, is simply a claim
against the Municipality of Cayey.

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F.2d at 562; see Bordanaro v. McLeod, 871 F.2d 1151, 1163 (1st

Cir.), cert. denied, 493 U.S. 820 (1989).4

An official displays such reckless or
callous indifference when it would be
manifest to any reasonable official that
his conduct was very likely to violate an
individual's constitutional rights.

Germany v. Vance, 868 F.2d 9, 18 (1st Cir. 1989). Moreover,

there must be an "affirmative link" between the supervisory

official's acts or omissions and his subordinate's violation of

the plaintiff's constitutional rights. Guti rrez-Rodr guez, 882

F.2d at 562; Lipsett v. University of Puerto Rico, 864 F.2d 881,

902 (1st Cir. 1988).

1. Police Superintendent Betancourt

The plaintiffs contend that Betancourt's actions or

omissions constituted reckless or callous indifference in two

respects. First, the plaintiffs claim that Betancourt maintained

deficient recruiting and training practices. As evidence of this

deficiency, the plaintiffs rely on Dr. Vales' statements in his

affidavit that 1) Betancourt hired Officer Rodr guez, who had a

poor academic record in high school (demonstrating that hiring

procedures were lax); 2) Betancourt failed to administer

psychological testing to police officers he hired; 3) Betancourt

improperly trained his officers because the police academy

4 In Guti rrez-Rodr guez, 882 F.2d at 562, this Court stated

that there is "no difference of moment" between cases which use
the "gross negligence amounting to deliberate indifference"
standard and cases that use the reckless and callous indifference
standards. "[I]ndifference that rises to the level of being
deliberate, reckless, or callous suffices to establish
[supervisory] liability under 1983." Id.

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curriculum contained only one course in human relations and only

one course in civil rights, and there were no classes that taught

crisis intervention, how to make nonviolent arrests, or how to

deal with mentally handicapped persons;5 and 4) Officer

Rodr guez did not receive additional training after leaving the

police academy.

With respect to claims of lack of proper police

training, when implementing and maintaining a training program,

in order to be found liable, a supervisor must demonstrate

reckless or callous indifference to the rights of citizens. See

Voutour v. Vitale, 761 F.2d 812, 820-21 (1st Cir. 1985), cert.

denied, 474 U.S. 1100 (1986); see generally Guti rrez-Rodr guez,

882 F.2d at 562. The plaintiffs have failed to show that

Betancourt demonstrated the requisite reckless or callous

indifference. There is no evidence that Betancourt actually knew

that there were any problems with his recruitment practices or

his training program. The plaintiffs have also failed to offer

any evidence that Betancourt should have known that there were

recruitment and training problems, and that he was indifferent to

such problems. Betancourt's recruiting practices and his

training program, on their face, do not reflect a conscious

policy to hire incompetent officers and train them inadequately.

See, e.g., Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir. 1989).

5 In their depositions, Officer Rodr guez and Officer H ctor
Rivera admit that, beyond standard First Aid classes, they did
not receive formal training at the police academy with respect to
how to deal with mentally handicapped persons.

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The plaintiffs did not proffer any evidence that these specific

practices violated a legally mandated standard. See, e.g.,

Voutour, 761 F.2d at 821. Nor did plaintiffs show that these

specific practices were inferior by the standards of the

profession. See, e.g., Santiago, 891 F.2d at 382. The

plaintiffs have also failed to introduce any evidence that there

were previously any problems with officers other than Rodr guez

being improperly recruited or inadequately trained. Moreover,

plaintiffs' own expert, Dr. Vales, does not opine that the

implementation or maintenance of these recruiting or training

practices constituted callous or reckless indifference. Rather,

Dr. Vales states that the recruitment practices were "extremely

lax" and officers were not "adequately trained." Perhaps the

implementation of some of these policies was negligent, but even

when we look at all of the asserted weaknesses taken together, we

fail to see how a jury could conclude that Betancourt's

implementation and maintenance of these recruitment and training

policies reflected callous or reckless indifference to the

constitutional rights of citizens. See, e.g., Bowen, 966 F.2d at

21; Manarite v. City of Springfield, 957 F.2d 953, 957-58 (1st

Cir.), cert. denied, 113 S. Ct. 113 (1992); Santiago, 891 F.2d at

381-82.6

6 We are somewhat troubled by Betancourt's failure to provide
officers with training about how to deal with mentally
handicapped persons. Still, we do not find that the need to
extensively train officers about how to identify and deal with
mentally handicapped persons is so obvious, that failure to give
this training supports a finding of reckless or callous
indifference to constitutional rights. Even assuming, arguendo,

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The second act of reckless or callous indifference

alleged by the plaintiffs is that Betancourt was grossly

negligent in his supervision of Officer Rodr guez. As evidence

of this, the plaintiffs point to five complaints filed against

Officer Rodr guez during his career as a police officer.7 The

that Betancourt's failure to give such training was callously or
recklessly indifferent, the record is bereft of evidence that
this failure was affirmatively linked to the assault by Officers
Rodr guez and H ctor Rivera on Febus, and to their failure to
provide him with necessary medical care. For instance, there is
no evidence that Officers Rodr guez and H ctor Rivera improperly
approached Febus, who was mentally handicapped, improperly
attempted to calm him down, or that their assault of him stemmed
from the fact that they did not know how to deal with a mentally
handicapped person.

7 An examination of Officer Rodr guez' personnel history
reflects that these five complaints stemmed from the following
events:

1) On September 23, l989, Officer Rodr guez
intervened in a traffic accident, where the
driver was taken to the hospital, and while
at the hospital, the driver collapsed and
died. An autopsy revealed the driver died
because of abdominal trauma. (The personnel
history does not state what the nature of the
complaint against Officer Rodr guez was).

2) On February 10, 1987, Officer Rodr guez
went to the Caguas Court wearing a sweater,
and consequently he was inadequately dressed;

3) A citizen complained that Officer
Rodr guez made an inadequate investigation of
a hit and run that occurred on July 28, 1989;

4) On November 18, 1989, Officer Rodr guez
was driving an official vehicle at a high
speed, lost control of the vehicle, and ran
into a tree;

5) Officer Rodr guez had a child out of
wedlock.

A sixth complaint was also levied against Officer Rodr guez

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plaintiffs also note that according to his personnel record,

Officer Rodr guez had not been re-evaluated by his supervisors.

The plaintiffs contend that Betancourt was responsible for

disciplining Officer Rodr guez, and because Betancourt failed to

do so in each of these five instances, Officer Rodr guez believed

that he was authorized to do as he pleased.

An important factor in determining whether a supervisor

is liable to the extent he has encouraged, condoned, acquiesced,

or been deliberately indifferent to the behavior of a

subordinate, is whether the official was put on notice of

behavior which was likely to result in the violation of the

constitutional rights of citizens. Lipsett, 864 F.2d at 902.

[O]ne cannot make a "deliberate" or
"conscious" choice . . . to act or not to
act unless confronted with a problem that
requires taking affirmative steps. Once
an official is so notified, either
actually or constructively, it is
reasonable to infer that the failure to

take such steps as well as the actual
taking of them constitutes a choice "from

among various alternatives." . . . One
obvious "alternative" is to do something
to make the violations stop.

Id. (citations omitted). Despite the plaintiffs' contentions to

the contrary, we do not find that the five complaints levied

against Officer Rodr guez provided Betancourt with the requisite

notice. The five previous complaints stemmed from incidents

completely unrelated to the present one: Officer Rodr guez had

been called to the scene of an automobile accident where the

with respect to the incident in this action involving Febus.

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driver of the car later collapsed in the hospital and died;8 he

once wore a sweater to court; he had a child out of wedlock; he

had an accident in an official vehicle; and he allegedly

conducted a negligent investigation of a hit and run. These

complaints could not have alerted Betancourt to the fact that

Officer Rodr guez had a propensity to assault citizens, that

Officer Rodr guez denied detainees necessary medical treatment,

or that Officer Rodr guez was unable to deal appropriately with

mentally handicapped persons. Betancourt therefore did not know

that he needed to supervise Officer Rodr guez more closely, or

discipline him, in order to prevent constitutional violations in

the future. Cf. Guti rrez-Rodr guez, 882 F.2d at 563-64.

(finding superintendent liable for 1983 violation because he

had knowledge of 13 citizen complaints and prior incidents that

made him aware of the policeman's frequently brutal behavior, the

superintendent took no action concerning those complaints, and he

administered a grossly deficient complaint procedure).

Betancourt's failure to sanction Officer Rodr guez with

respect to these complaints, in and of itself, did not show that

Betancourt maintained a grossly deficient complaint procedure

that inhibited proper police discipline.9 Moreover, Dr. Vales'

8 There was no indication in Officer Rodr guez' personnel
history that he should have known of the driver's need for
medical treatment, or that he denied the driver medical
treatment.

9 It is unclear from the proffered evidence that any or all of
these complaints required Betancourt to sanction Officer
Rodr guez. The plaintiffs claim that Superintendent Betancourt
violated 25 P.R. Laws Ann. tit. 25, 1014 (1979) by failing to

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affidavit only states that there was "negligent and ineffective

supervision" of Officer Rodr guez by Betancourt. In light of

Dr. Vales' statements and the nature of the complaints against

Officer Rodr guez, any alleged failure to sanction by Betancourt

may have constituted negligence, but we cannot see how this

failure amounted to reckless or callous indifference.

As an additional ground for finding this claim

insufficient, the plaintiffs have failed to show how

Betancourt's alleged failure to discipline Officer Rodr guez was

affirmatively linked to Officer Rodr guez' alleged assault on

Febus on April 14, 1990. The inference that because Officer

Rodr guez had not been sanctioned with respect to these five

incidents, he believed he could get away with anything, including

assaulting Febus, is simply too tenuous. Dr. Vales himself

acknowledged this weak link when he stated in his affidavit that

Betancourt's ineffective supervision of Officer Rodr guez

"probably" created a belief he could do as he pleased. Because

the plaintiffs have failed to introduce sufficient evidence to

create a triable issue that the police superintendent violated

Febus' constitutional rights, Betancourt is entitled to qualified

immunity.

2. Mayor Oquendo

Mayor Oquendo is similarly entitled to qualified

either impose a sanction upon Officer Rodr guez or officially
absolve him. The plaintiffs have failed to show, however, that
each of the complaints charged incidents that fell within the
purview of the statute which establishes procedures for dealing
with "serious shortcomings."

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immunity. The plaintiffs have failed to produce sufficient

evidence to create a triable issue that Oquendo was callously or

recklessly indifferent to his obligations to train or supervise

Officer Jos Rivera. The evidence which supports this claim

consists of Officer Jos Rivera's admission that he did not take

courses at the police academy on how to deal with mentally

handicapped persons or how to recognize when an individual is

sick,10 and Dr. Vales' observations that Officer Jos Rivera

was only trained for three months at the police academy, that

Officer Jos Rivera's performance was only evaluated twice prior

to the Febus incident, and that there was no investigatory report

in Rivera's file regarding the complaint filed against him by

Febus. This evidence is of the same general caliber, although

weaker, than that proffered against Betancourt. The plaintiffs

have not proffered any evidence that Oquendo had actual or

10 Although Officer Jos Rivera stated that he did not take a
course at the police academy on how to recognize when a person is
sick, the plaintiffs have not provided any other evidence as to
whether or not the Cayey police academy provided any first aid or
medical training to officers. Assuming that such classes were
not offered at all, the failure to provide such courses may be
negligent. There are, however, no clear constitutional
guideposts as to the precise nature of the obligations that the
Due Process Clause places upon the police to seek medical care
for pretrial detainees who have been injured while being
apprehended by the police. See Canton v. Harris, 489 U.S. 378,

388 n.8 (1988). Therefore, given this lack of guidance as to
what degree of medical care police officers are required to
provide detainees, it is difficult to conclude that the failure
to train officers to recognize the need for medical treatment in
the first instance, in and of itself, reflects callous or
reckless indifference to constitutional rights. Additionally,
the plaintiffs have failed to demonstrate an affirmative link
between Oquendo's failure to provide a course on how to recognize
the need for medical treatment and Officer Jos Rivera's actual
failure to provide Febus with medical attention in this case.

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constructive knowledge of any training or supervisory

deficiencies, or that he was indifferent to such deficiencies.

Even Dr. Vales does not conclude that Oquendo's implementation of

these practices reflected callous or reckless indifference to the

constitutional rights of citizens. We also do not believe that

the evidence is sufficient to support such a conclusion.11

The plaintiffs have failed to proffer sufficient

evidence to create a triable issue as to whether the actions of

Superintendent Betancourt and Mayor Oquendo violated Febus'

constitutional rights. Because plaintiffs have failed to

establish this predicate, Betancourt and Oquendo are entitled to

summary judgment. Therefore, we reverse the decision of the

district court, and remand with instructions to enter summary

judgment for defendants Betancourt and Oquendo.

Reversed and remanded for action consistent with this

opinion.

11 The plaintiffs claim that Oquendo failed to investigate the
complaint filed against Officer Jos Rivera with respect to the
Febus incident. Assuming, arguendo, that this investigation was

deficient, without any other supporting evidence of deficient
investigatory practices, this is insufficient to establish a
civil rights violation. This single poorly performed
investigation may reflect negligence, but we fail to see how it
reflects callous or reckless indifference by Oquendo to the
constitutional rights of citizens. Additionally, the affirmative
link between this alleged investigatory deficiency and Officer
Jos Rivera's violation of Febus' constitutional rights is
insufficient to establish liability. Cf. Kibbe v. Springfield,

777 F.2d 801, 809 (1st Cir. 1985), cert. granted, 475 U.S. 1064

(1986), and cert. dismissed, 480 U.S. 257 (1987) (police

department's apparently sloppy post-shooting investigatory
procedures alone were not linked sufficiently with harm to impose
municipal liability).

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