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
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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
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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).
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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.”).
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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
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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).
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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.
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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
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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).
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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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