Pineda v. Toomey

United States Court of Appeals
For the First Circuit

No. 07-2462

CARLOS PINEDA AND ALEXANDRA PEREZ,

Plaintiffs, Appellants,

v.

JOSEPH TOOMEY AND JOSEPH WATTS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Howard, Circuit Judge,
Selya, Senior Circuit Judge,
and Stafford,* Senior District Judge.

Stephen B. Hrones, with whom Michael Tumposky and Hrones,
Garrity & Hedges were on brief, for appellants.
Helen G. Litsas, Special Assistant Corporation Counsel, with
whom Susan M. Weise, First Assistant Corporation Counsel, City of
Boston Law Department, was on brief for appellees.

July 16, 2008

*
Of the Northern District of Florida, sitting by designation.
 Stafford, Senior District Judge. Plaintiffs/appellants,

Carlos Pineda ("Pineda") and Alexandra Perez ("Perez"), appeal from

the district court's entry of summary judgment in favor of the

defendants/appellees, Joseph Toomey ("Toomey") and Joseph Watts

("Watts"), in this action for false arrest, unlawful search, and

excessive force. We affirm.

I.

On April 28, 2003, a person was shot and killed at a

Mobil gas station in Boston. Suspects were seen leaving the scene

in a white minivan. Hearing a report of the incident over their

patrol car radio, District 4 ("D-4") Boston Police Officers William

J. Gallagher ("Gallagher") and Patrick Foley ("Foley") headed to

the gas station. While on their way, the officers were stopped by

a motorist who asked if they were looking for a white minivan. The

motorist reported that the white van was with a white Honda down on

Cass Boulevard. When, minutes later, the officers saw a white

Honda traveling on Cass Boulevard, they began following the Honda.

There was no white minivan with the Honda. Foley could see and was

able to identify the driver of the Honda as Norberto Serrano

("Serrano").

After Serrano turned from Cass Boulevard onto a street in

police District 2 ("B-2"), he parked the Honda in a curbside

parking place and exited the vehicle. The officers then activated

their overhead lights, stopped their cruiser, and approached

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Serrano on foot. Seeing the officers, Serrano jumped back in the

Honda and sped away. The officers immediately initiated a chase.

While Foley was driving, Gallagher informed the dispatcher that

they were chasing a car that may have been involved in the D-4

homicide at the Mobil gas station. The officers were soon after

joined in the chase by units from the state police and from various

Boston Police districts C-11, B-2, B-3, C-6, and D-4.

Serrano ultimately turned into the Franklin Hill housing

project, which was in the B-3 police district, and stopped.

Immediately behind the Honda and leading the procession of police

cars was a cruiser driven by B-2 Boston Police Officer James Coyne

("Coyne"). Coyne saw two females exit the Honda; Coyne apprehended

one and the other fled. Coyne also saw a black man run from the

Honda into one of the apartments, specifically unit #81. Coyne

described the man's attire as black boots, gray pants, and a gray

long-sleeved shirt with a design on the front.

B-2 Boston Police Officer Andrew Fay ("Fay") pulled into

the housing project soon after Coyne. Hearing from Coyne that two

suspects had fled, Fay and a number of other officers spread out to

search the outdoor premises. Other officers knocked on the door of

apartment #81. Within minutes, Fay joined the four to six officers

who were already in the apartment. As Fay entered, he noticed that

some officers were talking with a man clad only in boxer shorts

standing in the doorway. Directed to the back of the apartment,

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Fay rushed past the boxer-clad man to a back bedroom, where he

found a black man dressed in underwear hiding in a closet. The man

was sweating profusely and was trying to hide his clothing. Foley,

who was also present in the apartment, identified the man as

Serrano, the driver of the Honda. Fay handcuffed Serrano, took him

out of the apartment, and placed him in the back of a police car.

According to Fay, Serrano was placed in custody not only because he

was a possible suspect in a homicide case but also because he had

violated the law by fleeing from the police, driving erratically,

running red lights, and operating a vehicle in a dangerous manner.

Fay estimated that two to four minutes elapsed, at most, between

the time he entered the apartment and the time he escorted Serrano

out of the apartment. Serrano's clothing, which matched the

description given by Coyne, was retrieved from the closet and

placed in evidence bags.

Before Fay left the apartment with Serrano in tow, he

talked with one of the three B-2 supervisors present at the scene.

Sergeants from other districts, some in uniform and some in plain

clothes, were also present. During those minutes when he was

securing Serrano, Fay was unsure whether any particular officers

were "in charge," although typically B-3 sergeants would be "in

charge" at a B-3 site. Fay said that where, as here, there were

multiple sergeants from multiple districts, he would take orders

from all of the sergeants but would "probably seek some kind of

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clarification" if the sergeants' orders were contradictory.

By the time Fay exited the apartment with Serrano, the

man who was earlier standing in the doorway had been handcuffed and

removed from the apartment. That man, Pineda, was sleeping in the

apartment with his wife, Perez, and two children when officers

knocked on his door and announced themselves as Boston Police

officers. After Fay rushed into a back room, an unidentified

Boston Police officer grabbed Pineda, twice pushed him up against

a wall, and handcuffed him. Pineda was then taken outside in his

underwear, where he was filmed by television cameras as he was

placed in the back of a Boston Police cruiser. Pineda estimates

that 45 to 70 seconds may have elapsed between the time when he

opened the door and the time when he was handcuffed and removed

from the apartment. Pineda was taken to B-3 headquarters,

fingerprinted, placed in a cell for a few hours, interviewed by D-4

homicide officers, and then returned to his home. Pineda cannot

identify the officer(s) who threw him against a wall, handcuffed

him, and took him to B-3 headquarters, except to say that he saw a

Boston Police Department badge or patch and he was placed in a

Boston Police cruiser.

As events were unfolding at the Franklin Hill housing

project, Detective Dennis Harris ("Harris"), a homicide

investigator, was told to go to the housing project to see if there

was any link between the people arrested there and the D-4 homicide

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that occurred earlier in the evening. When he arrived at the

project, Harris learned that two individuals had been taken to B-3

headquarters for questioning. Harris proceeded to B-3, where he

interviewed first Serrano and then Pineda. Harris quickly

determined that Pineda had nothing to do with either the homicide

or the high-speed chase. Indeed, Harris determined that neither

Pineda nor Serrano was involved in the homicide.

When he was finished with the interviews, Harris drove

Pineda back to his apartment. Two D-4 officers, Gallagher and

Foley, were still in the apartment. They had been ordered by a

superior officer to keep the apartment secure until they were

otherwise notified. According to Pineda, his apartment had been

turned upside down while he was gone. Perez explained that, after

Pineda and Serrano were taken out of the apartment, the many

officers who remained in the apartment asked Perez where the gun

was. When she denied knowing anything about a gun, the officers

began looking in closets, opening drawers, flipping mattresses,

emptying boxes, removing cushions from the furniture, and looking

in the hamper. Perez admitted that she told the officers: "Go

ahead. Do what you want. There's no gun here." She did not

remember at what point she made those statements to the officers.

Watts and Toomey, both B-3 supervising sergeants, were on

duty when the D-4 homicide was reported. After they heard over the

radio that a white Honda was being chased, possibly into their B-3

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district, Watts and Toomey took a marked cruiser and joined the

chase, becoming the last car in a line of police vehicles. As they

pulled into the housing project and exited their vehicle, Watts and

Toomey saw "a lot of police officers running," most of whom they

did not know or could not name. When Watts and Toomey ultimately

went into apartment #81, there were numerous police officers

present as well as a non-English-speaking Hispanic man (Perez's

father) and a woman (Perez). Serrano and Pineda had already been

removed from the apartment. Neither Watts nor Toomey witnessed

anyone being placed in handcuffs, removed from the apartment, or

placed in a patrol car. Watts and Toomey left the apartment after

just a few minutes, concluding that the situation was under the

control of another supervisor, perhaps the D-4 supervisor who

monitored the earlier chase. Toomey remembers hearing the

supervisor say: "We're freezing the apartment. Everyone out of

here." Before leaving himself, Toomey helped two B-2 sergeants

clear the apartment of all but two officers, the two D-4 officers

who were left to secure the place.

Watts and Toomey were ultimately disciplined for failing

to supervise the events that occurred in and outside Pineda's

apartment on the evening of April 28, 2003. Although they learned,

as a result of an Internal Affairs investigation, that they were

the "officers in charge" on the night in question, Watts and Toomey

believed at the time that they were merely "assisting other

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supervisors from other districts because it . . . didn't happen in

[B-3] district."

Pineda and Perez filed a civil rights complaint against

Watts and Toomey on February 3, 2005, alleging that Watts and

Toomey failed to supervise adequately the events of April 28, 2003,

resulting in the arrest of Pineda without probable cause, an

illegal warrantless search of Pineda's and Perez's apartment, and

the use of excessive force against Pineda during his arrest. The

district court entered summary judgment in favor of Watts and

Toomey, stating that Pineda and Perez had failed to present facts

that established an "affirmative link" between the defendants'

supervisory conduct and the subordinate police officers' alleged

constitutional violations. In the district court's words:

The uncontroverted record shows that
Defendants Toomey and Watts did not order,
participate in, or even see the arrest of
Plaintiff Pineda. Nor did Defendants Toomey
or Watts order or participate in the search of
his apartment.

This timely appeal followed.

II.

We review a district court's grant of summary judgment de

novo, looking at the record in the light most favorable to the non-

moving parties and drawing all reasonable inferences in their

favor. Rodriguez v. SmithKline Beecham, 224 F.3d 1, 5 (1st Cir.

2000). The non-moving parties may not rely on conclusory

allegations, improbable inferences, or unsupported speculation but

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must, instead, "set forth specific facts showing that there is a

genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256 (1986).

Under 42 U.S.C. § 1983, a supervisory official may be

held liable for the behavior of his subordinates only if "(1) the

behavior of [his] subordinates results in a constitutional

violation, and (2) the [supervisor]'s action or inaction was

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

could be characterized as supervisory encouragement, condonation or

acquiescence or gross negligence amounting to deliberate

indifference." Lipsett v. University of Puerto Rico, 864 F.2d 881,

902 (1st Cir. 1988) (internal citations and quotation marks

omitted). The requirement of an "affirmative link" between the

behavior of a subordinate and the action or inaction of his

supervisor "contemplates proof that the supervisor's conduct led

inexorably to the constitutional violation." Hegarty v. Somerset

County, 53 F.3d 1367, 1380 (1st Cir. 1995). Deliberate

indifference, moreover, "will be found only if it would be manifest

to any reasonable official that his conduct was very likely to

violate an individual's constitutional rights." Id. (internal

citation and quotation marks omitted).

In this case, the district court determined that summary

judgment in the defendants' favor was appropriate because the

record failed to suggest, much less establish, that the actions of

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Watts and Toomey amounted to "supervisory encouragement,

condonation or acquiescence or gross negligence amounting to

deliberate indifference." We agree with the district court's

assessment of the record.

The evidence establishes that Watts and Toomey were among

the last of many officers from multiple districts who converged at

the Franklin Hill housing project on the night of April 28, 2003.

Before stopping at the housing project in the B-3 district, the

officers had been chasing a vehicle whose occupants were suspected

of being involved in a D-4 homicide. The chase took the officers

through multiple districts, including B-2 and B-3. Several

sergeants from different districts were among the many officers who

responded to reports of the homicide and the high-speed chase.

Rightly or wrongly, Watts and Toomey assumed that they were present

at the housing project to assist other supervisors and patrol

officers regarding a crime that occurred not in their B-3 district

but in a different district.

The record reveals that neither Watts nor Toomey was in

the apartment when Pineda was slammed against the wall, placed in

handcuffs, and escorted from the building. Indeed, throughout

their stay at the housing project, Watts and Toomey were unaware of

Pineda's existence. Moreover, in the absence of Watts and Toomey,

it is unlikely that the unidentified officer who nabbed Pineda

acted in response to anything Watts and Toomey did or did not do.

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It cannot be said, in other words, that Watts and/or Toomey

encouraged, condoned, or acquiesced in the actions of the officer

who nabbed Pineda; nor can it be said that it should have been

manifest to Watts and Toomey that their actions or inactions were

very likely to violate Pineda's right to be free from unlawful

arrest and/or excessive force.

The record also reveals that Watts and Toomey stayed in

apartment #81 for mere minutes. When they entered the premises,

they saw many other officers — most of whom were from districts

other than B-3 — already taking direction from a supervisor whose

identity is unclear. Mistakenly or not, Watts and Toomey assumed

that they were not in charge. They accordingly bowed out of the

apartment, believing the situation to be under the control of

another supervisor. Neither Watts nor Toomey authorized or

witnessed a search during their brief stay in the apartment. Under

the circumstances, we cannot say that the conduct of Watts and/or

Toomey led "inexorably" to an unconstitutional search of the

apartment—a search to which Perez may in all events have consented

when she said: "Go ahead. Do what you want. There's no gun here."

III.

To trigger liability on the part of Watts and Toomey in

this case, Pineda and Perez must establish not only that their

constitutional rights were violated, but also that Watts and Toomey

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were affirmatively linked to the violations. As explained above,

it is the second prong of this test that Pineda and Perez failed to

meet. Because the district court correctly determined that Pineda

and Perez failed to present evidence establishing that the actions

of Watts and Toomey amounted to "supervisory encouragement,

condonation or acquiescence or gross negligence amounting to

deliberate indifference," we AFFIRM.

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