Diaz-Nieves v. United States

United States Court of Appeals
For the First Circuit

No. 16-1107

JOEL DÍAZ-NIEVES; GIOVANNY DÍAZ-NIEVES;
AIDA NIEVES-PÉREZ; SAÚL DÍAZ-RODRÍGUEZ,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

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

[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]

Before

Howard, Chief Judge,
Torruella and Barron, Circuit Judges.

Raúl S. Mariani-Franco, for appellants.
Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.

June 5, 2017
 TORRUELLA, Circuit Judge. Plaintiff Joel Díaz-Nieves

("Joel") appeals from the district court's grant of partial summary

judgment in favor of defendant-appellee the United States,

dismissing his false arrest, false imprisonment, and malicious

prosecution claims. Co-plaintiffs, Joel's parents, Saúl Díaz-

Rodríguez and Aida Nieves-Pérez, and Joel's brother,

Giovanny Díaz-Nieves,1 (collectively hereinafter his "family" or

"relatives") also appeal, challenging the district court's

dismissal of their derivative and independent tort claims under

Fed. R. Civ. P. 12(c). After careful consideration, we affirm.

I. Background

A. Factual Background

This case originates under the Federal Tort Claims Act

("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680, concerning an arrest

made during "Operation Guard Shack," a reverse sting operation

launched by the Federal Bureau of Investigation ("FBI") with the

goal of identifying corrupt police and corrections officers in

Puerto Rico.2 In July 2010, a corrections officer falsely claiming

1 Because Joel Díaz-Nieves and Giovanny Díaz-Nieves are brothers
with the same last name, and their parents have similar last names,
we refer to plaintiffs-appellants by their first names in order to
distinguish them. We mean no disrespect in doing so.
2 "Operation Guard Shack" has been described in detail in other
cases arising out of the same operation. See United States v.
Díaz–Castro, 752 F.3d 101 (1st Cir. 2014); United States v.
Delgado–Marrero, 744 F.3d 167 (1st Cir. 2014); United States v.

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to be Joel Díaz-Nieves participated in Deal 105 of Guard Shack (a

controlled buy of fake cocaine). The government verified that a

man by that name did work for the Department of Corrections and

requested his employee file, among other records. On August 5,

2010, the FBI received Joel's employment file, which included his

picture. Joel Díaz-Nieves was indicted and a warrant was issued

for his arrest. Nothing in the record suggests that at the time

they sought the warrant the FBI agents knew that Joel Díaz-Nieves

was not the real name of the corrections officer that had

participated in Deal 105.

On October 6, 2010, the FBI agents executed the arrest

warrant at Joel's home. Joel lived with his parents, Saúl and

Aida, and his brother, Giovanny. Saúl opened the door and, with

a gun pointed at him, was made to stand against an exterior wall.

At some point, his pants fell to the ground and he was left standing

naked in the street. Aida was also ordered to face a wall.

Giovanny observed laser sights on his head and chest upon exiting

to the balcony of his house. Joel, who was a Department of

Corrections officer and had no previous criminal record, located

his work weapon and headed to the front door. There, Joel observed

Díaz–Maldonado, 727 F.3d 130 (1st Cir. 2013).

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laser sights on his body coming from the FBI agents' weapons;

consequently, he surrendered and was arrested.

Joel asked why he had been arrested and was told by FBI

agents that he had been charged with drug trafficking, which he

denied. An agent showed Joel a photograph taken from a video

recording of Deal 105, which showed a man involved in a drug

transaction, but Joel said he was not the man in the photo. Joel

was processed and interviewed by the FBI, and he continued to

assert his innocence. He was detained in the Metropolitan

Detention Center in Guaynabo, Puerto Rico for three days. Joel's

family retained a lawyer and paid fees for appraisals of properties

in anticipation of obtaining bail. On October 9, 2010, Joel was

released from custody. The FBI eventually discovered that the

corrections officer claiming to be Joel Díaz-Nieves was in fact

another corrections officer named José Nieves-Vélez ("Nieves-

Vélez"), who had used Joel's name to shield his identity. Nieves-

Vélez was arrested on October 12, 2010. The following day, the

government moved to dismiss the indictment as to Joel.

B. Procedural History

On March 14, 2013, Joel and his family (collectively,

the "Plaintiffs") filed a complaint alleging that, as a result of

Joel's arrest, they had suffered damages and injuries compensable

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under the FTCA.3 Specifically, Joel asserted claims of negligent

investigation, false arrest, false imprisonment, and malicious

prosecution. His relatives asserted derivative claims for the

actions against Joel and independent claims of excessive use of

force under Article 1802 of the Puerto Rico Civil Code, P.R. Laws

Ann. tit. 31, § 5141. On November 26, 2013, the United States

filed a motion to dismiss Joel's negligent investigation, false

arrest, and false imprisonment claims. The Plaintiffs opposed the

motion to dismiss. On July 9, 2014, the district court dismissed

the negligent investigation claim because it was "jurisdictionally

barred by the discretionary function exception to the FTCA," but

refused to dismiss at that stage Joel's claims of false arrest and

false imprisonment.4

After discovery was completed, the parties filed cross-

motions for partial summary judgment. In its motion, the United

States requested the dismissal of only Joel's claims. On July 1,

2015, the district court denied Joel's motion for partial summary

judgment and granted the United States' motion for partial summary

3 The complaint was amended on April 11, 2013.
4 The district court stated that because the Plaintiffs had only
sued the United States and their allegations did not support
constitutional violations, it would read "the complaint only to
allege violations sounding in tort against the United States
pursuant to the FTCA."

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judgment, dismissing Joel's only remaining claims of false arrest,

false imprisonment, and malicious prosecution. The district court

denied Joel's subsequent motion for reconsideration.

The case continued as to Joel's relatives. On

September 18, 2015, the government filed a motion to dismiss the

remaining claims. The relatives opposed the motion. On

December 14, 2015, the district court granted the government's

motion, which it treated as one for judgment on the pleadings,

finding that the relatives had failed "to state a[ny] plausible

claim for relief." Accordingly, the district court entered

judgment dismissing the complaint in its entirety. Plaintiffs

timely appealed.

On appeal, Joel challenges the granting of partial

summary judgment dismissing his false arrest, false imprisonment,

and malicious prosecution claims under the FTCA.5 In turn, his

relatives challenge the district court's dismissal of their

independent claims for excessive use of force and their derivative

claims due to Joel's arrest.

5 Joel did not appeal the dismissal of his claim for negligent
investigation.

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 II. Discussion

A. Joel's Claims

This court reviews de novo the grant of a motion for

summary judgment. Sch. Union No. 37 v. United Nat'l Ins. Co., 617

F.3d 554, 558 (1st Cir. 2010). Typically, this court will reverse

a district court's grant of summary judgment "only if, 'after

reviewing the facts and making all inferences in favor of the non-

moving party . . . , the evidence on record is sufficiently open-

ended to permit a rational factfinder to resolve the issue in favor

of either side.'" Thompson v. Coca-Cola Co., 522 F.3d 168, 175

(1st Cir. 2008) (quoting Maymí v. P.R. Ports Auth., 515 F.3d 20,

25 (1st Cir. 2008)). The presence of cross-motions does not alter

this general standard. "Cross motions simply require us to

determine whether either of the parties deserves judgment as a

matter of law on facts that are not disputed." Barnes v. Fleet

Nat'l Bank N.A., 370 F.3d 164, 170 (1st Cir. 2004) (quoting

Wightman v. Springfield Terminal Ry., 100 F.3d 228, 230 (1st Cir.

1996)).

The FTCA provides a limited congressional waiver of the

sovereign immunity of the United States for tortious acts and

omissions committed by federal employees acting within the scope

of their employment. Domínguez v. United States, 799 F.3d 151,

153 (1st Cir. 2015) (citing 28 U.S.C. §§ 1346(b)(1), 2645). Under

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the statute, the United States may be held civilly liable in the

same manner and to the same extent as a private individual under

like circumstances. Solís-Alarcón v. United States, 662 F.3d 577,

582 (1st Cir. 2011) (quoting Abreu-Guzmán v. Ford, 241 F.3d 69, 75

(1st Cir. 2001)). The FTCA is strictly construed in favor of the

federal government. Holloway v. United States, 845 F.3d 487, 489

(1st Cir. 2017).

The FTCA exempts intentional torts from its sovereign

immunity waiver but expressly allows actions against the United

States for claims of "'assault, battery, false imprisonment, false

arrest, abuse of process, or malicious prosecution' arising out of

'acts or omissions of investigative or law enforcement officers of

the United States Government.'" Solís-Alarcón, 662 F.3d at 583

(quoting 28 U.S.C. § 2680(h)). The "law of the place" where the

alleged act or omission occurred governs actions under the FTCA.

Calderón-Ortega v. United States, 753 F.3d 250, 252 (1st Cir. 2014)

(citing 28 U.S.C. § 1346(b)(1)). Here, then, we look to Puerto

Rico tort law.

1. False Arrest / False Imprisonment Claim

Joel alleges the district court erred in granting

summary judgment for the government and dismissing his false arrest

and false imprisonment claims under the theory that an arrest made

pursuant to an arrest warrant issued with probable cause is

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conditionally privileged and forecloses his false arrest and false

imprisonment claims. He argues that in so holding the district

court misapplied Puerto Rico law, specifically the Puerto Rico

Supreme Court's holding in Valle v. Commonwealth of Puerto Rico,

157 P.R. Dec. 1 (2002). According to Joel, applying Puerto Rico

law would have required him to merely prove that the agents acted

negligently, he suffered damages, and his damages were caused by

the agents' negligent actions. Joel argues that he satisfied his

burden of proof under this test. He stresses that the agents'

negligent actions consisted of failing to corroborate whether the

person depicted in Deal 105 was Joel by comparing the photograph

in Joel's employee file obtained in August 2010 with the video

recorded of Nieves-Díaz participating in Deal 105 in July 2010.

This, in turn, improperly caused the return of an indictment and

issuance of an arrest warrant against Joel.

Under Puerto Rico law, false arrest and false

imprisonment claims have identical elements, therefore courts

treat them as identical causes of action. Abreu-Guzmán, 241 F.3d

at 75. Thus, for the sake of simplicity we refer to Joel's claims

for false arrest and false imprisonment as one for false arrest.

A claim for false arrest arises, as defined by the Puerto Rico

Supreme Court, when "[a] person, whether or not a law enforcement

officer, may by himself or through another one unlawfully detain

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or cause the unlawful detention of another person. In both cases,

said person would be liable for damages if said action is tortious

or negligent." Ayala v. San Juan Racing Corp., 12 P.R. Offic.

Trans. 1012, 1021 (1982). For the claim to go forward, it is

essential that the individual performing the arrest lack

reasonable cause for believing that the arrestee committed a

felony. Abreu-Guzmán, 241 F.3d at 75 (noting that false arrest

and false imprisonment claims "focus on whether the arresting

officer 'lacked reasonable cause for believing that [the suspect]

committed a felony'" (alteration in original) (quoting Harrington

v. United States, 748 F. Supp. 919, 933 (D.P.R. 1990))).

In Rodríguez v. United States, 54 F.3d 41 (1st Cir.

1995), this court considered for the first time a false arrest

claim under Puerto Rico law, based on the execution of a valid

arrest warrant against the wrong person. There, a Puerto Rican

woman who had been arrested by federal agents on the mistaken

assumption that she was the person identified in a valid warrant,

sued under the FTCA for false arrest. The plaintiff had the same

name, social security number, birthplace, birthdate, and general

physical features (with some slight discrepancies) as the person

named in the warrant. Id. at 42-43. In addition, both women had

a sister with the same name and their parents were deceased. Id.

In determining the applicable law, this court noted that "careful

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research ha[d] disclosed no reported Puerto Rico Supreme Court

decision addressing [the issue]" and pointed out that "[a]s a

general matter, however, the Puerto Rico Supreme Court has

conformed its limited 'false arrest' jurisprudence to common law

principles." Id. at 45. "Accordingly, consistent with our

longstanding practice in cases where the Puerto Rico court has not

diverged from common law principles, . . . we adopt[ed] the

Restatement (Second) of Torts, §§ 35-45A, 112-36, as the

appropriate framework" for analysis of the false arrest claim at

issue in Rodríguez. Id. (citations omitted). Under that

framework, generally "an arrest conducted pursuant to a valid

warrant is conditionally privileged, and no false arrest liability

lies against the officers responsible." Id. (citing Restatement

(Second) of Torts §§ 118, 122 (1965)).

The "conditional privilege" doctrine protects officers

from liability if the arrestee was:

(a) . . . a person sufficiently named or otherwise
described in the warrant and [was] reasonably believed
by the [officer] to be, the person intended, or

(b) although not such person, . . . knowingly
caused the actor[s] to believe [her] to be so.

Id. at 46 (alterations in original) (quoting Restatement (Second)

of Torts § 125). Accordingly, an officer "is privileged to arrest

the person to whom the name [in the warrant] applies with complete

accuracy, although the [officer] may have reason to suspect that

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a mistake has been made, and that the person, though accurately

named, is not the person intended." Id. (alterations in original)

(quoting Restatement (Second) of Torts § 125 cmt. f). Applying

this doctrine, this court concluded in Rodríguez that the officer

had acted reasonably inasmuch as the arrestee had similar or

identical physical and personal characteristics as the person

named in the warrant and, thus, "the United States was entitled to

rely on the privilege which attached to the arresting deputy

marshals as a complete defense to liability for false arrest."

Id. at 46–47.

The facts in this case are similar to those in Rodríguez.

Here, Joel was arrested by federal agents pursuant to a valid

arrest warrant that had his name, on the mistaken assumption that

he was the person who had committed the crime. Joel essentially

concedes that if Rodríguez is still good law, his arrest would

have been conditionally privileged and the government would not be

liable for false arrest. He argues, however, that Rodríguez is

no longer good law after the Puerto Rico Supreme Court case of

Valle, which, according to him, binds us to reach a different

conclusion. The government, on its part, argues that Valle is

clearly distinguishable and does not change the scenario outlined

in Rodríguez.

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 In Valle, an arrest warrant was issued against one "John

Doe I." 157 P.R. Dec. at 6. Law enforcement agents went into

Valle's residence to execute the warrant allegedly issued against

him (which named "John Doe I") for violations of the Puerto Rico

Controlled Substances Act. Id. The news media was present during

the arrest operation, which was broadcast by television networks

in Puerto Rico and the United States, and Valle was identified as

a drug dealer. Id. at 10-11. Valle was arrested and remained

incarcerated for three days until he was able to secure bond. Id.

at 7.6 During the preliminary hearing, an undercover agent stated

that Valle was not the person with whom he had engaged in the drug

transaction underlying the arrest warrant. Id. The judge found

no cause to prosecute Valle and dismissed all charges pending

against him. Id. Valle then filed a false arrest claim against

the Commonwealth of Puerto Rico. Id. At trial, the Commonwealth

introduced as evidence a surveillance report that described "John

Doe I" as approximately 21 years old, weighing approximately 130

pounds, and standing about 5'5" tall. Id. at 8. Valle, however,

was 23 years old, about 6'0" tall, and weighed around 180 pounds.

6 According to Valle, while in jail, he was physically and
sexually assaulted by other inmates. Valle, 157 P.R. Dec. at 11
n.6. He also claimed that people treated him differently after
his arrest, and that he had not been able to obtain a job. Id.
at 11.

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Id. The undercover agent testified at trial that after the drug

transaction took place, he did not personally participate in

Valle's identification process or in the operation that led to his

arrest; thus, he was not at the scene to identify Valle. Id. at

9. The undercover agent tried to justify Valle's arrest on the

fact that he "had a yellow Ford Splash truck that was registered

under his name in the Department of Transportation and Public

Works, and that this vehicle was similar to the one driven by the

person with whom [the undercover agent] actually made the

transaction." Id. Another witness testified that he showed the

undercover agent the picture of Valle that was on file in the

Department of Transportation and Public Works and that the

undercover agent told him he bore some resemblance to the person

he had dealt with. Id.

In Valle the Puerto Rico Supreme Court reiterated the

elements of a tort claim under Puerto Rico law,7 but clarified that

7 To wit, the need "to prove (a) the occurrence of an act or
omission resulting in the illegal or noncontractual act; (b) the
illegal nature of said act or omission; (c) the fault or negligence
of the agent; (d) the occurrence of damage; and (e) a causal
relationship between the act or omission and the damage." Id. at
14 (emphasis omitted). It also clarified that "a cause is not
every condition without which the damage would not have been
produced, but that which ordinarily produces it according to the
general experience." Id. at 19 (citing Toro Aponte v.
Commonwealth of Puerto Rico, 42 P.R. Offic. Trans. __, 142 P.R.
Dec. 464, 474 (1997)).

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it needed to "strike a fair and appropriate balance between the

right of the State to act vigorously in the investigation and

prosecution of criminal causes and the right to liberty of our

fellow citizens." Id. at 22–23 (emphasis omitted). There, the

court distinguished between situations in which a suspect's

identity is clear and the suspect is thus identified by his or her

name, and those situations in which all that is available is a

nickname or physical description of the suspect. Id. at 21–22.

The court clearly stated that in the latter, which was the

situation present in Valle, officers will be found liable for false

arrest if they are negligent by failing to take the necessary steps

to validate the suspect's identity.8 Id. at 24. The court then

concluded that, inasmuch as the identification efforts made in

Valle consisted of writing down a license plate number of a truck,

checking who it belonged to in the Department of Transportation

and Public Works files, and showing a picture of the truck owner

to the undercover agent (without then following up when the agent

8 Such measures may include: having "the agents who supervise the
undercover agents . . . take pictures from a distance of the person
involved in the criminal act; [following] the criminal to his or
her residence or workplace"; having the undercover agent "identify
the criminal from a distance, and, at the very least, if it has
not been possible to fully identify the criminal, on the day of
the arrest -- when there is already no reason to continue
protecting the identity of the undercover agent -- the agent must
be present in order to identify or point at the person to be
arrested." Id. at 22 (emphasis omitted).

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raised a red flag that the man in the picture "had some

resemblance" with the man that participated in the drug

transaction), the agents involved in the operation that led to

Valle's arrest "did not fully comply with the[ir] obligation."

Id. at 23 (emphasis omitted). They "took the 'easiest way out';

in other words, they made an extremely minimum effort, 'as if to

get it over with,' to carry out an identification procedure they

had a duty to follow thoroughly." Id.

Valle is silent, however, as to what circumstances would

lead to a finding of negligence, and thus liability, in cases where

an arrest warrant adequately identifies and names a suspect, such

as in the instant appeal, where the arrest warrant did not rely on

a nickname or description to identify the subject, but rather

explicitly named "Joel Díaz Nieves." Thus, contrary to Joel's

contentions, Valle is not controlling and does not alter our

holding in Rodríguez.

Our post-Valle decision in Solís-Alarcón, 662 F.3d 577,

also supports our conclusion that Rodríguez is still good law. In

Solís-Alarcón, agents of the Drug Enforcement Administration

("DEA") and Puerto Rico police officers went to Solís's residence

to arrest an individual, who they had "ample reason to believe"

had engaged in drug transactions, and a warrant had been issued

for his arrest. 662 F.3d at 579. The agents believed they would

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find the individual at Solís's house, based on events that occurred

earlier in the year. Id. Although the agents had no warrant to

search the house, they searched it looking for the individual and

seized a sport utility vehicle believed to have been used in a

drug crime. Id. at 580. The individual was nowhere to be found.

Id. Solís and his wife sued the government and DEA agents

asserting tort claims against the United States for the agents'

conduct under the FTCA. The district court dismissed their claim.

On appeal, this court applied the common law approach discussed in

Rodríguez and affirmed, finding that the officers were not liable

because they had acted under the reasonable belief that the suspect

was inside the house. Id. at 583-84. We found Rodríguez to be

consistent with Valle, and held that "[although] Puerto Rico

imposes liability for fault or negligence that causes injury, . . .

protecting law enforcement agents for reasonable mistakes is

common." Id. at 583 (citing Unus v. Kane, 565 F.3d 103, 117 (4th

Cir. 2009)). We "assumed that Puerto Rico tort law would not

impose personal liability for mistaken arrests where the officers

would be protected . . . by qualified immunity" inasmuch as an

opposite position might raise "a significant question" of "whether

any local court could impose damage liability on federal officers

where they would be exempt in a federal lawsuit and whether

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Congress under the FTCA would expect the federal government to

shoulder such liability." Id. at 583-84 (citations omitted).

Under Rodríguez and Solís-Alarcón, and consistent with

the statements made in Valle regarding the need to balance the

right to compensation with the interest or duty of investigating

criminal causes, we hold that the arresting officers had reasonable

belief that they were arresting Joel pursuant to a valid arrest

warrant based on probable cause. Thus, his arrest was conditionally

privileged, which forecloses his false arrest claim.

2. Malicious Prosecution Claim

Joel seems to argue that the district court also erred

in dismissing his malicious prosecution claim. According to him,

viewing all the facts and drawing all reasonable inferences in the

light most favorable to him would have required the district court

to deny summary judgment as to this claim. He points out that

since July 2010 the FBI possessed a video recording of Nieves-

Vélez participating in Deal 105 and the FBI also obtained Joel's

photograph in August 2010, when the FBI got his personnel record

from the Puerto Rico Department of Corrections to verify that Joel

was indeed a corrections officer. Thus, Joel argues, the FBI

could have compared the two images prior to September 21, 2010,

when the indictment was issued. By failing to do so, his argument

goes, the FBI was negligent, submitted "false/incorrect evidence"

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to the grand jury, and caused an indictment to be improperly

obtained, which gives rise to a malicious prosecution claim. We

disagree.

Under Puerto Rico law, to prove a malicious prosecution

claim, the moving party must show that officers "acted with malice

and without probable cause, defined as 'a suspicion founded upon

circumstances sufficiently strong to warrant a reasonable man in

the belief that the charge is true.'" Abreu-Guzmán, 241 F.3d at

75 (quoting Lora-Rivera v. Drug Enforcement Admin. Dep't of

Justice, 800 F. Supp. 1049, 1051–52 (D.P.R. 1992)). To succeed

on a malicious prosecution claim, the claimant must prove four

elements: "(1) that a criminal action was initiated or instigated

by the defendants; (2) that the criminal action terminated in favor

of plaintiff; (3) that defendants acted with malice and without

probable cause; and (4) that plaintiff suffered damages." Barros-

Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011)

(quoting González Rucci v. U.S. I.N.S., 405 F.3d 45, 49 (1st Cir.

2005)). "The third element may also be described as two separate

elements because plaintiff must show both that the defendant acted

with malice and that he acted without probable cause." Rivera-

Marcano v. Normeat Royal Dane Quality, 998 F.2d 34, 37 (1st Cir.

1993) (emphasis in the original) (citing Vince v. Posadas de P.R.

S.A., 683 F. Supp. 312, 315 & n.4 (D.P.R. 1998)). "For purposes

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of malicious prosecution, Puerto Rico courts equate malice with

bad faith." Paret-Ruiz v. United States, 827 F.3d 167, 178 (1st

Cir. 2016) (quoting Barros-Villahermosa, 642 F.3d at 59). "[A]

grand jury indictment definitively establishes probable cause"

unless "law enforcement defendants wrongfully obtained the

indictment by knowingly presenting false testimony to the grand

jury." González Rucci, 405 F.3d at 49.

Joel's claim for malicious prosecution falters on the

third element because he has failed to show that officers acted

without probable cause and with malice. To the contrary, the

record shows that Joel was named in the indictment and,

"[g]enerally, a grand jury indictment definitively establishes

probable cause." Id. Although "courts have recognized an

exception if law enforcement defendants wrongfully obtained the

indictment by knowingly presenting false testimony to the grand

jury," id., nothing in the record suggests that the FBI agents

knowingly presented false information to the grand jury. This is

buttressed by Joel's concession that the FBI determined the actual

identity of the impersonator after Joel's arrest, which supports

the government's argument that the agents did not "knowingly

present" false testimony to the grand jury. In addition, although

Joel claims that the agents were negligent by failing to compare

the images prior to providing evidence to the grand jury, mere

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negligence does not equate to malice.9 See Jiménez v. Sánchez, 60

P.R. 406, 409-10 (1942), 1942 WL 6900 (P.R.) ("[T]he element of

malice, so essential in [malicious prosecution] cases, should not

be confused with mere negligence, inasmuch as the characteristic

of negligence is 'inadvertence,' or an absence of an intent to

injure, whereas the characteristic of malice is the improper

purpose to vex, prejudice, damage, [and] injure." (quoting with

approval the lower court's judgment)). Accordingly, the district

court did not err in summarily dismissing Joel's malicious

prosecution claim.

B. The Relatives' Claims

We now turn to consider the district court's entry of

judgment on the pleadings dismissing the claims of Joel's

relatives. This court reviews the grant of judgment on the

pleadings de novo. Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26,

29 (1st Cir. 2008). A motion under Fed. R. Civ. P. 12(c) for

judgment on the pleadings is treated like a Rule 12(b)(6) motion

to dismiss. Curran v. Cousins, 509 F.3d 36, 43–44 (1st Cir. 2007).

Accordingly, "the court must view the facts contained in the

pleadings in the light most favorable to the nonmovant and draw

all reasonable inferences therefrom." Pérez-Acevedo, 520 F.3d at

9 Furthermore, Joel conceded at oral argument that "there is no
allegation of maliciousness" here.

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29. We will affirm a dismissal on the pleadings if it appears

that the nonmovant could prove no set of facts that would entitle

him or her to relief. Mass. Nurses Ass'n v. N. Adams Reg'l Hosp.,

467 F.3d 27, 31 (1st Cir. 2006) (citing Rivera-Gómez v. de Castro,

843 F.2d 631, 635 (1st Cir. 1988)).

Joel's relatives allege that the district court

erroneously dismissed their derivative claims under Article 1802

of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141.

They concede that their derivative claims are tied to the viability

of Joel's FTCA claims and thus will suffer the same fate as Joel's,

but argue that because Joel's claims were improperly dismissed and

thus should be reinstated, their derivative claims should also be

reinstated. In addition, Joel's relatives allege that the

district court also erred by dismissing their independent claims

for damages allegedly suffered due to the agents' "excessive use

of force" during the execution of Joel's arrest warrant. We

address these arguments in turn.

Under Article 1802 of the Puerto Rico Civil Code --

Puerto Rico's General Tort Statute -- "[a] person who by an act or

omission causes damage to another through fault or negligence shall

be obliged to repair the damage so done." Id. The Puerto Rico

Supreme Court has held that individuals who are harmed because a

close relative or loved one is tortiously injured may invoke

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Article 1802 as a vehicle for prosecuting a cause of action against

the tortfeasor. Santini Rivera v. Serv Air, Inc., 137 P.R. Dec. 1,

10 (1994). To prevail on such a claim, "a plaintiff must prove

(1) that he has suffered emotional harm, (2) that this harm was

caused by the tortious conduct of the defendant toward the

plaintiff's relative or loved one, and (3) that the defendant's

conduct was tortious or wrongful." Méndez-Matos v. Municipality

of Guaynabo, 557 F.3d 36, 57 (1st Cir. 2009). This cause of action

is wholly derivative and depends on the viability of the underlying

claim of the relative or loved one. Cabán Hernández v. Philip

Morris USA, Inc., 486 F.3d 1, 12-13 (1st Cir. 2007). Because, as

previously discussed, the district court correctly dismissed

Joel's claims, the derivative claims of his relatives were also

properly dismissed.

Finally, Joel's relatives argue that the following facts

give rise to an independent claim for damages under Article 1802

of the Puerto Rico Civil Code due to the agents' alleged excessive

use of force when executing Joel's arrest warrant: "immediately

upon opening the door of the house[, Saúl] was forcibly taken out

and at gunpoint made to stand against a wall" while his family

watched; at some point his pants fell to the ground and he "was

left naked outside his house in full view of his family and

neighbors"; Aida was also forced (at gunpoint) to face a wall;

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Giovanny "saw how he was targeted by [] dozens of laser sights on

his head and chest upon exiting the balcony of his house"; they

all witnessed how the agents surrounded their house and "feared

for their life, their physical integrity," and those of their loved

ones. These facts fail to state a plausible claim for relief.

Joel's relatives did not cite any authority suggesting

that the manner in which Joel's arrest warrant was executed was

tortious under Puerto Rico law and would result in private

liability. They merely referenced Pueblo v. Alcalá, 9 P.R. Offic.

Trans. 430, 437 (1980), for the proposition that "the conduct of

the intervening officer will be evaluated under the reasonable

person standard based on the circumstances surrounding his/her

intervention." Moreover, the pleadings show that the agents knew

Joel was a corrections officer and carried a weapon. In fact,

upon noticing the presence of third parties in the premises of the

house, Joel grabbed his weapon. Furthermore, Joel's relatives did

not allege that physical contact occurred between them and the

arresting officers. In sum, the actions taken by the arresting

officers were based on their reasonable (and correct) belief that

Joel was armed, Maryland v. Buie, 494 U.S. 325, 334 (1990) (stating

that "arresting officers are permitted [when conducting in-home

arrests] to take reasonable steps to ensure their safety"), and

Joel's relatives reference nothing beyond the general Puerto Rico

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negligence statute to support their claims, Bolduc v. United

States, 402 F.3d 50, 58 (1st Cir. 2005) (noting that a plaintiff

bringing suit under the FTCA must show that "state law would impose

liability on a private person in the same or similar circumstances"

and rejecting the contention that "stating . . . a claim for

negligence . . . automatically mean[s] that liability would attach

under [state] law"). Accordingly, the district court did not err

in dismissing the independent claims asserted by Joel's relatives.

III. Conclusion

For the reasons stated above, the orders of the district

court granting partial summary judgment for the government and

entering judgment on the pleadings are affirmed.

Affirmed.

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