Parrilla-Burgos v. Hernandez-Rivera

                  UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                           

No. 96-1136
                AMARILIS PARRILLA-BURGOS, ET AL.,
                     Plaintiffs - Appellants,

                                v.
                 FELIX HERNANDEZ-RIVERA, ET AL.,
                     Defendants - Appellees.

                                           
           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Salvador E. Casellas, U.S. District Judge]
                                                                  
                                           

                              Before
                     Torruella, Chief Judge,
                                                     

                 Campbell, Senior Circuit Judge,
                                                         

               and DiClerico, Jr.,* District Judge.
                                                            
                                           

     Joan  S.  Peters,  with  whom  Andr s  Guillemard-Noble  and
                                                                      
Nachman, Santiago & Guillemard were on brief for appellants.
                                        
               John F. Nevares,  with whom  Lizzie M. Portela  and Smith  &
                                                                           
Nevares were on brief for appellee Carlos J. L pez-Feliciano.
                 
     Roxanna Badillo-Rodr guez, Assistant Solicitor General, with
                                        
whom  Carlos  Lugo-Fiol,  Solicitor  General,  and  Edda Serrano-
                                                                           
Blasini, Deputy  Solicitor General,  were on brief  for appellees
                 
          Fernando V zquez-Gely, Felipe Aponte-Ortiz, Angel  L. D az, Angel
L. Hern ndez-Col n and Luis E. L pez-Lebr n.

                                           
                          March 19, 1997
                                           

                    
                              

    Of the District of New Hampshire, sitting by designation.


          DiClerico, District  Judge.  The  plaintiffs, relatives
                    DiClerico, District  Judge.
                                              

of the decedent, Lionel Galletti Roque ( Galletti ), brought this

action under 42  U.S.C.   1983 against the defendants, members of

the  Puerto  Rico Police  Department,  seeking  damages allegedly

suffered  when  one  of the  defendants,  F lix  Hern ndez Rivera

( Hern ndez ), shot and killed Galletti  during a fight at a bar.

The district  court  granted summary  judgment  in favor  of  the

defendants, finding that  Hern ndez, who was on  medical leave at

the time  of the shooting,  was not acting  under color of  state

law.  The district court  initially denied the defendants  motion

for summary  judgment, but reconsidered  that ruling in  light of

our decision  in Mart nez v. Col n, 54 F.3d 980 (1st Cir.), cert.
                                                                           

denied, 116  S. Ct. 515 (1995).   In this appeal,  the plaintiffs
                

challenge the  district court s grant  of summary judgment.   For

the  reasons  expressed  below, we  affirm  the  district court s

decision.

                Factual and Procedural Background1
                          Factual and Procedural Background
                                                           

          On January 2,  1989, at around 10:00  p.m., plaintiffs 

decedent,  Galletti, was  drinking  at a  bar  in Trujillo  Alto,

Puerto Rico, known as Carlos  Place.  Galletti was accompanied by

Angel  Ram rez  Fonseca,  Ilari n  Rosado,  and  two  individuals

identified only  as Algar n and  Ity.  At that  time, codefendant

Hern ndez,  an  officer  of the  Puerto  Rico  Police Department,
                    
                              

  In reviewing the decision on the defendants  motion for summary
judgment, we recount and consider only those facts that have been
alleged by the plaintiff or are not in dispute.

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                                         -2-


arrived with  an unidentified group  of his friends.   Hern ndez,

who  was on  medical leave  due  to gastroenteritis,  was not  in

uniform  but was carrying  his police identification  and service

revolver.    Police  department policy  states  that  Puerto Rico

police officers are on duty twenty-four hours a day and therefore

each officer is  required to carry  identification and a  service

revolver at all times.

          Inside Carlos   Place, Hern ndez  approached Galletti s

group and words and threatening glances were exchanged.  Galletti

challenged  Hern ndez  hostile attitude, stating that he had done

nothing to  provoke it.   Hern ndez responded,  I ll look  at you

whichever way I please, because I m a cop. 

          The situation escalated.   Hern ndez slapped Galletti s

friend Ity.   Galletti told  Hern ndez,  Well, you don t  have to

give me  dirty looks.  You look at me  really bad and I have done

nothing to you.    Hern ndez replied,  I look at anybody  I want,

because I m a cop.   Anybody I decide I want to  look at dirty, I

look  at  them dirty.     At this  point  the owner  of  the bar,

apparently  concerned by the  interchange, told  Hern ndez,  Just

because you  are the law,  you don t need to  intimidate people, 

and asked him  to leave.   Hern ndez  told the bar  owner not  to

meddle  and to leave the combatants  alone because it was none of

his business.

          By this time  the conflict had attracted  the attention

of patrons outside  the bar, who  entered the bar to  better view

the  confrontation.    According  to  the  plaintiffs,  Hern ndez

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identified himself to the crowd  as a police officer, saying that

he  was  supposed to be there  to establish the peace  and order 

and  showed them his police identification, apparently to prevent

them from interfering  in the conflict.  This  stopped the fracas

for about five minutes.

          However, as Hern ndez was  leaving the bar, one  of his

friends  and one of  Galletti s friends resumed  hostilities.  At

this point,  Galletti told Hern ndez,   Well, you leave  the gun,

and  me and you will have it out, outside.   Hern ndez responded,

 I  don t need  a gun  to  fight you.   Come  on,  step outside. 

Hern ndez,  despite his  statement  to  the  contrary,  took  his

service revolver  with him as  both parties went outside.   While

Galletti took off his sweater, Hern ndez threw a beer can at him.

Galletti responded by pushing Hern ndez.  Hern ndez then took out

his service revolver  and fired six shots at Galletti.  The first

shot missed Galletti  and hit a bystander  but the next five  hit

Galletti, killing him.

          On December 27, 1989, Galletti s survivors brought this

  1983  action against Hern ndez2  and other supervising officers

(the  supervisory defendants ).3  On August 30, 1991, supervisory

defendant  Carlos  L pez  Feliciano filed  a  motion  for summary

                    
                              

  Hern ndez  never answered the complaint, and the district court
entered a  default against him on August 31,  1990.  He played no
further role in the case or the subsequent appeal.

  The  other officers  named  as  defendants  are:  Carlos  L pez
Feliciano,  Luis L pez  Lebr n, Angel  Hern ndez,  Luis Carrillo,
Angel  D az, Fernando V zquez-Gely,  F lix Aponte-Ortiz, and Jos 
Lucena.

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                                         -4-


judgment, which the  other supervisory defendants joined,  on the

ground that  Hern ndez was  not acting under  color of  state law

when he shot Galletti.

          On  November  1,  1991,  Judge Carmen  Consuelo  Cerezo

denied  the motion  for summary  judgment.   On  March 31,  1992,

supervisory  defendant   L pez  Feliciano  filed   a  motion  for

reconsideration  of  that decision.    At  this  time, the  other

supervisory  defendants filed a motion to dismiss, asserting that

the  plaintiffs  had  not alleged  facts  necessary  to establish

supervisory  liability.  Judge  Raymond L. Acosta  referred these

motions  to  Magistrate  Judge Jes s  Antonio  Castellanos  for a

report and recommendation.

          On April  29, 1994, Magistrate  Castellanos recommended

that: (1)  the motion  for reconsideration  filed by  supervisory

defendant L pez Feliciano  be denied; (2)  the motion to  dismiss

filed  by   supervisory  defendants  Luis  L pez   Lebr n,  Angel

Hern ndez, Angel  D az, Fernando V zquez-Gely, and  F lix Aponte-

Ortiz  be  denied;  and  (3)  the  motion  to  dismiss  filed  by

supervisory  defendants Luis Carrillo and Jos  Lucena be granted.

On March  16, 1995,  Judge Salvador E.  Casellas issued  an order

adopting the magistrate s report and recommendation.4  On May 31,

1995, we  issued our decision  in Mart nez v. Col n,  54 F.3d 980
                                                             

(1st  Cir.), cert.  denied, 116 S.  Ct. 515  (1995).  On  June 6,
                                    

1995,  supervisory  defendant  L pez Feliciano  filed  a  motion,

                    
                              

  This order  ended  the involvement  of  supervisory  defendants
Carrillo and Lucena in the action.

                               -5-
                                         -5-


joined in by the remaining supervisory defendants, requesting the

district court to reconsider its decision on the summary judgment

motion  in  light of  Mart nez.    On  November 29,  1995,  Judge
                                        

Casellas vacated  the  court s order  of  November 1,  1991,  and

dismissed the case on the ground that defendant Hern ndez was not

acting  under color of  law  for the  purposes of   1983 when  he

killed Galletti.  The plaintiffs appealed this decision.

                            Discussion
                                      Discussion
                                                

          The  plaintiffs assert that the district court erred in

determining  as a  matter of  law that  Hern ndez  acts  were not

taken under color  of state law.5   Specifically, they  challenge

the district court s application of Mart nez to this case.6
                                                      
                    
                              

  Section 1983 provides, in pertinent part:

          Every person  who,  under color  of  any  statute,
     ordinance, regulation,  custom, or usage, of  any State
     or  Territory or the District of Columbia, subjects, or
     causes  to  be  subjected, any  citizen  of  the United
     States  or other person within the jurisdiction thereof
     to  the  deprivation  of  any  rights,  privileges,  or
     immunities secured  by the Constitution and laws, shall
     be liable  to the  party injured in  an action  at law,
     suit in equity, or other proper proceeding for redress.

42 U.S.C.A.   1983 (West 1994).   We discuss this issue in  terms
of  color of state law  despite the  fact that Puerto Rico is not
a state because  Puerto Rico  enjoys the functional equivalent of
statehood in regard to section 1983 and, thus, state law includes
Puerto Rico law.   Mart nez, 54 F.3d at 984.
                                     

  The plaintiffs also  contend that in granting  summary judgment
for  the defendants  Judge  Casellas  abused  his  discretion  by
vacating both  the prior order  of Judge  Cerezo denying  summary
judgment and his own order adopting the report and recommendation
of  Magistrate  Castellanos.   The  plaintiffs  assert  that this
action was improper due to the law of the case established by the
prior decisions.    We disagree.   Under  the circumstances,  our

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                  1.  Summary Judgment Standard
                            1.  Summary Judgment Standard

          A  district court may  grant summary judgment  only  if

the  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).  In this case,

          summary judgment will lie if the record, even
          when  taken in the  aspect most  favorable to
          the nonmovant  fails to  yield a  trialworthy
          issue  as to some material fact.  In applying
          this principle,  it is  important to  bear in
          mind that not every  genuine factual conflict
          necessitates  a trial.   It  is  only when  a
          disputed fact has the potential to change the
          outcome  of the suit  under the governing law
          if found favorably to  the nonmovant that the
          materiality hurdle is cleared.

Mart nez, 54 F.3d at 983-84 (citation omitted).  For the purposes
                  

of  this  appeal,  we  exercise  de novo  review  and  adopt  the
                                                  

plaintiffs  version of all controverted facts.  See id.
                                                                 

                      2.  Applying Mart nez
                                2.  Applying Mart nez
                                                     

          The   plaintiffs  assert   that   the  district   court

improperly applied  Mart nez to this  case.  In Mart nez,  an on-
                                                                  

                    
                              

decision  in  Mart nez  provided  ample  justification   for  the
                                
district court to  revisit its prior decisions  concerning action
under  color  of  state law,  and  the  court did  not  abuse its
discretion by  so doing.  See  United States v. Lachman,  48 F.3d
                                                                 
586, 590  (1st Cir. 1995)  (district court judge has  latitude to
revisit own earlier  rulings); United States v.  Rivera-Mart nez,
                                                                          
931 F.2d 148, 150-51 (1st  Cir. 1991) (district court has ability
to reopen  issues  when controlling  authority  makes  subsequent
contrary decision of law).

                               -7-
                                         -7-


shift7 police officer accidentally shot  and maimed a fellow off-

shift officer while harassing that officer in the  station house.

See 54  F.3d at 982, 987.   The harassing officer never expressly
             

asserted his authority as a police officer, but he was in uniform

and armed  with  his service  revolver.   See id.  at  987.   The
                                                           

defendants were other police officers, at least one of whom was a

supervisor, who observed the incident but did not intervene.  See
                                                                           

id.  at 983.   We reviewed the district  court s award of summary
             

judgment  in favor  of the  defendants and  held that,  under the

totality of the circumstances, it  was clear that the officer was

not acting under color of state law because he was engaged in the

personal pursuit of private violence, making the grant of summary

judgment against the plaintiff appropriate.  See id. at 988.
                                                              

          Mart nez articulates the standard to be applied in this
                            

case to determine  whether Hern ndez  was acting  under color  of

state  law when he shot and killed Galletti.   As we said in that

case,  [p]rivate violence -- even  private violence engaged in by

one who  happens to  work for  the state  -- has different  legal

ramifications  than  violence   attributable  to  state  action. 

Mart nez, 54 F.3d at  985; see also Screws v.  United States, 325
                                                                      

U.S. 91, 111  (1945).   Thus, whether a police  officer is acting

under color of state law turns on the nature and circumstances of

the officer s conduct and the relationship of that conduct to the

performance of his  official duties.   Mart nez, 54  F.3d at 986.
                                                         
                    
                              

  We  use  the term   on-shift   rather than  the  term  on-duty 
because,   as  noted  supra,  Puerto  Rico  police  officers  are
                                     
considered to be on-duty twenty-four hours a day.

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                                         -8-


 The  key  determinant is  whether  the  actor,  at the  time  in

question, purposes to act in  an official capacity or to exercise

official responsibilities pursuant to state law.   Id.  
                                                                

          One  relevant  facet  of this  inquiry  is  whether the

defendant has purported  to act under color  of state law or,  in

other words, has acted  under  pretense of  law.   See Screws  v.
                                                                       

United States, 325 U.S. 91, 111 (1945); Mart nez, 54 F.3d at 987.
                                                          

Action occurs  under pretense  of law  when an  individual imbued

with  official authority purports to exercise that authority when

actually acting wholly  outside of it.  See Mart nez,  54 F.3d at
                                                              

986-87.  However, as we have stated,

          [e]ven  though   acting under  color  of law 
          includes  acting  under pretense of  law  for
          purposes  of a  state action  analysis, there
          can be no pretense  if the challenged conduct
          is  not related in some meaningful way either
          to  the officer s  governmental status  or to
          the performance of his duties.

Id. at 987.  Therefore, it is not enough for an individual merely
             

to purport to exercise official  power in order to trigger   1983

liability, but rather the individual must actually be engaged  in

the abuse of official power  granted by the government.  See West
                                                                           

v. Atkins, 487 U.S. 42, 49 (1988); Mart nez, 54 F.3d at 986.
                                                     

          The  pivotal issue to  be determined, then,  is whether

Hern ndez    was  engaged   in  purely   personal   pursuits  or,

conversely, whether he was acting under color of state law.   Id.
                                                                           

at 987.   In conducting  this inquiry, we must  assess Hern ndez 

 conduct  in light of the totality of surrounding circumstances. 

Id.  In Mart nez, we identified several factors that are relevant
                          

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                                         -9-


to, but not necessarily determinative of, the issue, including: a

police  officer s garb; an  officer s duty status,  including the

existence of  a regulation  providing that  officers are on  duty

twenty-four hours a day; the officer s use of a service revolver;

and, the location of the incident.  See id. at 986, 987.
                                                     

          The plaintiffs  have resisted this  formulation of  the

issue.  At oral  argument, the plaintiffs urged  us to find  that

Hern ndez  acted under  color of  state law  because but  for his

official authority,  he could never  have done what  he did.   We

recognize that some language in  Mart nez might appear to support
                                                   

such an  expansive position.   See 54 F.3d  at 986  ( In general,
                                            

section 1983  is not  implicated unless  a state actor s  conduct

occurs in the course of performing  an actual or apparent duty of

his office, or  unless the conduct  is such that the  actor could

not  have  behaved in  that  way  but for  the  authority of  his

office. ).    However,  that  statement  merely  articulates  the

minimum threshold that must be met for action to be considered as

occurring under color  of state  law and does  not set forth  the

specific test to  be applied in determining  whether a challenged

act was committed under color of state law.  In fact, in Mart nez
                                                                           

we rejected such a sweeping  standard for   1983 liability.  See,
                                                                          

e.g., id. at 987 ( [W]e must assess the nature of his  conduct in
                   

light of the totality of surrounding circumstances . . . . ), 988

(  While a  police officer s use  of a state-issue weapon  in the

pursuit  of private activities  will have  furthered   the   1983

violation in a literal sense,   a court needs  additional indicia

                               -10-
                                         -10-


of state authority to conclude that the officer acted under color

of state  law.  ) (citation omitted).   We will not  jettison our

settled case  law to embrace  such a broad standard  of liability

here.

          The plaintiffs  also  asserted at  oral  argument  that

endorsing the result reached by the district court would bring us

into conflict with the decisions  of other circuits.  Contrary to

this  assertion,  the  approach we  articulated  in  Mart nez and
                                                                       

endorse  here  is consistent  with  the approach  taken  by other

circuits that have considered the issue of whether the actions of

police  officers are taken under color  of state law.  See, e.g.,
                                                                          

David v.  City and County of Denver, 101 F.3d 1344, 1351-54 (10th
                                             

Cir. 1996); Barna v. City of Perth Amboy, 42 F.3d 809, 818-19 (3d
                                                  

Cir.  1994); Pitchell  v. Callan,  13 F.3d  545, 547-49  (2d Cir.
                                          

1994); United States  v. Tarpley, 945 F.2d 806,  808-09 (5th Cir.
                                          

Cir. 1991);  Gibson v.  City of Chicago,  910 F.2d  1510, 1516-19
                                                 

(7th 1990); Jones v. Gutschenritter,  909 F.2d 1208, 1211-12 (8th
                                             

Cir. 1990); Revene v. Charles  County Comm rs, 882 F.2d 870, 872-
                                                       

73 (4th Cir. 1989).  While not explicitly  adopting a totality of

the   circumstances  test,   these   courts  have   examined  the

circumstances surrounding a  challenged act to  determine whether

it  was committed under color of  state law.  Given the intensely

fact-specific nature  of such  analysis we  find it  unremarkable

that none of  the cases cited by the plaintiffs  are so factually

similar to this  case as to  persuade us to adopt  the particular

outcome the plaintiffs desire.

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                 3.  Application of the Standard
                           3.  Application of the Standard

          With  these preliminary matters  aside, we now  turn to

the  substance  of this  appeal  -- the  review  de  novo of  the
                                                                   

district court s grant of summary judgment on the color-of-state-

law  issue.   The plaintiffs  point to  the following  factors to

justify    1983 liability: the twenty-four hour a day regulation;

Hern ndez   repeated statements that he was a police officer; his

use of  his service revolver  in the shooting; his  statements to

patrons that he  was there to   keep the peace   and that he  was

 handling  the  situation ;   and  his  display  of   his  police

identification.  These  factors, they argue, raise  a trialworthy

issue as to whether Hern ndez was acting under color of state law

on the night that he killed Galletti.  

          We agree that some of these factors weigh in favor of a

finding  of   1983 liability.  In particular, Hern ndez  comments

to patrons that he was there to keep the peace and his display of

his  police identification might, viewed in isolation, support an

inference that  Hern ndez was  acting  under pretense  of law  by

purporting  to  act in  his  official  capacity.   However,  that

conclusion  was  belied  by  the  rest  of  Hern ndez   behavior,

especially  his repeated assertions that  he could do things such

as  look dirty  at Galletti because he was a police officer.

          Mere statements  by individuals that they  are entitled

to a  special privilege because  of their official status  do not

constitute action  under color  or pretense of  state law  if the

asserted  privilege lies  clearly  outside  the  scope  of  their

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                                         -12-


official duties.   Statements  by Hern ndez  that he  could  look

dirty  at  Galletti because  he was a  police officer  so clearly

fell outside his official capacity that they did not constitute a

reasonable pretense that he was acting as a police officer at the

time.  

          Even more significantly, the  final interchange between

Galletti and  Hern ndez  prior to  their  going outside  the  bar

dominates any  characterization of  the events  of that  evening.

Both parties agree that at  a point just before Galletti s death,

he invited  Hern ndez outside  to settle  their differences  in a

fight.  Hern ndez  accepted.  From the time that the two left the

bar  until Hern ndez  shot Galletti,  Hern ndez  made no  further

pretense that he was acting as a police officer.

          Whatever brief pretense  Hern ndez may have made  to be

acting in his official capacity by showing his identification and

stating that he was  keeping the peace ended when the  two agreed

to fight it out.  In Mart nez, we stated:
                                       

          The campaign  of terror  that [the  harassing
          officer]  mounted  was patently  personal  in
          nature,  and   [the  victim]   unquestionably
          realized as  much; indeed, there was  not the
          slightest  indication  that   [the  harassing
          officer s] conduct was undertaken pursuant to
          the  authority of  his office.   Plainly, the
          fact that  [the victim] walked  away numerous
          times shows  that he was not  so intimidated 
          by  [the  harassing  officer s]  status as  a
          policeman  as  to cause  him to  refrain from
          exercising his legal right[s]. 

Mart nez, 54  F.3d at 988  n.6 (quoting Jones  v. Gutschenritter,
                                                                          

909 F.2d 1208, 1212 (8th Cir. 1990)).  Here, any possibility that

Galletti  was intimidated by Hern ndez  claims of official status

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                                         -13-


is belied by the undisputed  fact that Galletti invited Hern ndez

to engage in a private brawl.   Because Hern ndez made no further

pretense of official action, there  is not enough evidence in the

record, even taken in the light most favorable to the plaintiffs,

to support the inference that Hern ndez was acting under color of

state  law  when  he  shot  Galletti.    As  the  district  court

concluded,

             Galletti s   reaction  in   the   face   of
          Hern ndez   openly  hostile  behavior towards
          him serves  to buttress  our conclusion  that
          Hern ndez    actions    constituted   private
          conduct outside  the line  of duty,  and that
          the latter s  status as  an  officer did  not
          enter into his taunting of the decedent.  The
          particular interaction between  Hern ndez and
          Galletti was of a distinctly personal nature,
          and Galletti unquestionably realized as much.
          The fact that Galletti not only initiated the
          confrontation,   but   subsequently   invited
          Hern ndez to  fight  it out  outside  the bar
          shows  that  he  was  not so  intimidated  by
          Hern ndez  status as a policeman  as to cause
          him to  refrain  from  exercising  his  legal
          rights. 

We agree, and this conclusion ends our inquiry.8

                            Conclusion
                                      Conclusion
                                                

          For the reasons stated above, we affirm the judgment of
                                                     affirm
                                                           

the district court.

                    
                              

  The action-under-the-color-of-state-law issue  being decided in
favor  of the defendants, the remainder of the plaintiffs  claims
unravel.  With  no underlying   1983 violation by Hern ndez, none
of the other defendants can be found liable under the supervisory
liability theory forwarded by the plaintiffs.

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