Case 3:19-cv-01397-SCC Document 41 Filed 05/12/21 Page 1 of 16

IN THE UNITED STATES COURT

FOR THE DISTRICT OF PUERTO RICO

JONATHAN HERNÁNDEZ-ZORRILLA,

Plaintiff,

v.
CIV. NO.: 19-1397 (SCC)
RICARDO ROSSELLÓ-NEVARES, ET AL.,

Defendants.

OPINION AND ORDER

Plaintiff Jonathan Hernández-Zorrilla filed this action

against the Commonwealth of Puerto Rico (“the

Commonwealth”); the then-governor of Puerto Rico, Ricardo

Roselló-Nevares; the then-Secretary of the Public Safety

Department of Puerto Rico, Héctor M. Pesquera; and various

members of the Puerto Rico Police Department (“PRPD”) 1 in

their official and personal capacities under 42 U.S.C. § 1983

for violations of his First, Fifth and Fourteenth Amendment

rights, as well as for certain state law violations. See Docket

No. 1. 2 Pending before the Court is Co-Defendants Rosselló

and Pesquera’s Motion to Dismiss pursuant to Federal Rules

of Civil Procedure 12(b)(1) and 12(b)(6). See Docket No. 39.

1 In the Amended Complaint, Plaintiff refers to the PRPD as the Puerto

Rico Police Bureau (“PRPB”). For purposes of this Opinion and Order, the
Court uses the more common title, “PRPD.”
2 On April 29, 2019, Plaintiff filed an Amended Complaint. See Docket No.

5.
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Co-Defendants Rosselló and Pesquera argue that the Court

lacks subject matter jurisdiction over this case, that Plaintiff

has failed to adequately allege supervisory liability and that

they are protected from Plaintiff’s § 1983 claims by Eleventh

Amendment sovereign immunity and qualified immunity.

See id. Plaintiff opposed. See Docket No. 40. For the reasons

stated herein, Co-Defendants Rosselló and Pesquera’s Motion

to Dismiss is granted in part and denied in part.

I. Factual and Procedural History

Plaintiff Jonathan Hernández-Zorrilla alleges that on May

1, 2018, during the Puerto Rico National March against the

Oversight, Management and economic Stability Act

(“PROMESA”) and the Stability Board (also known as La

Junta), he arrived at Hato Rey, San Juan, Puerto Rico to sell

water and refreshments to the protestors that were

participating in the event. Docket No. 5 at pg. 10. Upon

witnessing a confrontation between PRPD officers and

protestors, which resulted in the officers throwing tear gas

into the crowd, Plaintiff ran from the scene with his partner,

Katiria Fontanéz. See id. at pg. 11. Plaintiff was hit by the tear

gas, causing respiratory issues and irritated skin and eyes. See

id. A passer-by assisted him by pouring a liquid substance

over his face and gave him cash to distribute water to others

around him who were also suffering from the effects of the

tear gas. See id. The passer-by also helped Plaintiff move out
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of the fray to a corner in front of the Liberty Cable of Puerto

Rico building. See id. at pg. 12.

Plaintiff alleges that while sitting on that corner, a masked

police officer in a green uniform ordered him to move, but

because he could not see or breath well due to the tear gas,

Plaintiff was unable to follow the order. See id. According to

Plaintiff, several officers also dressed in green uniforms then

brutally attacked him, shooting him rubber bullets or pellets

at close range. See id. While Plaintiff was unable to discern the

identities of the officers, he alleges that the green uniforms

they wore were consistent with those worn by the “Tactical

Operations Unit” or “Swat Team” of the PRPD. See id. He

alleges he received the first shot between his stomach and

chest, while yelling to the officers that he had done nothing

wrong and that he was only trying to sell water and

refreshments. See id. He was then shot in the head, causing

him to turn around to protect himself, at which time he was

shot in the back and buttocks. Plaintiff did not resist the

officers, and, after the alleged attack, he was left bleeding and

laying in pain on the corner of the street. See id. at pg. 13.

After several minutes, Ms. Fontanéz found Plaintiff and he

was eventually treated for his wounds at Doctors’ Center

Hospital in San Juan. See id. While at the hospital, Plaintiff

alleges that he was interviewed by a group of PRPD officers,

who noted that his wounds were consistent with those

produced by rubber pellets, which they claimed are not

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employed by the PRPD. See id. at pg. 14. However, Plaintiff

alleges that the ACLU found rubber pellet casings at the scene

of the protests and that the doctor that treated him

commented that the wounds appeared to be “caused by the

police.” Id. While none of the projectiles penetrated his body,

Plaintiff was prescribed an antibiotic for his wounds and sent

home. Id. at pg. 15.

In the Amended Complaint, Plaintiff also provides

important context for the aforementioned events: in July 2008,

the United States Department of Justice (“DOJ”) commenced

an investigation into the practices of the PRPD. See Docket

No. 5 at pg. 22. The result of the investigation was a report

(the “DOJ Report”) that found that the PRPD has regularly

deprived the citizens of Puerto Rico of their constitutional

rights and will continue to do so if not addressed. Id. In

addition, on June 17, 2013, the DOJ and the government of

Puerto Rico entered into a judicial settlement agreement (the

“Agreement”) known as the “Agreement for the Sustainable

Reform of the Puerto Rico Police Department” in the U.S.

District Court for the District of Puerto Rico. Id. at pgs. 16-17.

The Agreement mandates that the PRPD shall ensure that

supervisors provide close and effective supervision to each

officer under their command, as well as direction and

guidance to improve constitutional practice. Id. Moreover,

supervisory personnel are to closely review and report events

of use of force and other police activity. Id. The Agreement

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also requires the filing of administrative complaints in the

event of unlawful use of force as well as trainings on police

constitutional practices for PRPD officers. Id.

Plaintiff brought this action under 42 U.S.C. § 1983, the

Constitution of Puerto Rico and the Puerto Rico Civil Code

against a number of state and PRPD officials, several

unidentified police officers and the Commonwealth of Puerto

Rico seeking declaratory and injunctive relief, as well as

damages. The Commonwealth has since been dismissed on

Eleventh Amendment sovereign immunity grounds. See

Docket No. 27. Defendants Reinaldo Bermúdez, Juan Cáceres-

Méndez, Luis Colón, Henry Escalera and Luis Hernández, all

members of the PRPD, moved to dismiss the claims against

them, arguing that Plaintiff had failed to sufficiently plead

supervisory liability for the § 1983 claims and that they were

immune to suit pursuant to the Eleventh Amendment and

qualified immunity. See Docket No. 26. The Court granted the

motion as to Plaintiff’s § 1983 claims in Defendants’ official

capacity but denied the motion as to the § 1983 claims in their

personal capacity. See Docket No. 27. The Court also

dismissed Plaintiff’s Fourteenth Amendment claims as well

as his claims for injunctive and declaratory relief. See id.

II. Standard of Review

Co-Defendants Rosselló and Pesquera move to dismiss

Plaintiff’s claims under Fed. R. Civ. P. 12(b)(1) for lack of

subject matter jurisdiction and under Fed. R. Civ. P. 12(b)(6)

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for failure to state a claim upon which relief can be granted.

Because dismissal under these two rules takes into

consideration “the same basic principles,” we need only

articulate those principles once, under the well-established

Rule 12(b)(6) standard. Lyman v. Baker, 954 F.3d 351, 359-60

(1st Cir. 2020).

The First Circuit has devised a two-step analysis for

considering a Rule 12(b)(6) motion to dismiss under the

context-based “plausibility” standard established by the

Supreme Court. See Ocasio-Hernández v. Fortuño-Burset, 640

F.3d 1, 12 (1st Cir. 2011) (discussing Ashcroft v. Iqbal, 556 U.S.

662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).

First, the court must “isolate and ignore statements in the

complaint that simply offer legal labels and conclusions or

merely rehash cause-of-action elements.” Schatz c. Republican

State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). While a

complaint need not give detailed factual allegations,

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678-79.

Second, the court must then “take the complaint’s well-

[pleaded] (i.e., non-conclusory, non-speculative) facts as true,

drawing all reasonable inferences in the pleader’s favor, and

see if they plausibly narrate a claim for relief.” Schatz, 669 F.3d

at 55. Plausible means something more than merely possible,

an assessment the court makes by drawing on its judicial

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experience and common sense. Id. (citing Iqbal, 556 U.S. at 678-

79). To survive a Rule 12(b)(6) motion, a plaintiff must allege

more than a mere “formulaic recitation of the elements of a

cause of action.” Twombly, 550 U.S. at 555. However, the

Supreme Court has clarified that it does “not require

heightened fact pleading of specifics, but only enough facts to

state a claim to relief that is plausible on its face.” Id. at 570.

III. Analysis

Plaintiff alleges that Defendants violated his rights under

the First, Fourth and Fourteenth Amendments 3 and seeks

relief under 42 U.S.C. § 1983. Section 1983 “is not itself a

source of substantive rights, but a method for vindicating

federal rights elsewhere conferred by those parts of the

United States Constitution and federal statutes that it

describes.” Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979); see

Lockhart-Bembery v. Sauro, 498 F.3d 69, 74 (1st Cir. 2007). To

state a valid § 1983 claim a plaintiff must allege that (1) he was

deprived of a federal right; and (2) the person who deprived

him of that right acted under color of state law. Santiago v.

Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011). A defendant has

acts under color of state law if he has abused his power

“possessed by virtue of state law and made possible only

3The Court has already dismissed Plaintiff’s claims under the Fourteenth
Amendment, as that Amendment is inapplicable where a plaintiff alleges
excessive force. See Docket No. 27, pg. 8.
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because the wrongdoer is clothed with the authority of state

law.” United States v. Classic, 313 U.S. 299, 326 (1941).

The Court will first analyze which claims are barred by

state sovereign immunity as guaranteed by the Eleventh

Amendment. Next, as to those claims not precluded, the

Court will assess whether Plaintiff has sufficiently alleged

supervisory liability as to Co-Defendants Rosselló and

Pesquera. The Court will then address the remaining state-

law claims.

A. Eleventh Amendment Sovereign Immunity

The Eleventh Amendment provides that private

individuals may not sue states in federal court. U.S. Const.

amend. XI. See Toledo v. Sánchez, 454 F.3d 24, 31 (1st Cir. 2006).

It is well-settled law that this state sovereign immunity under

the Eleventh Amendment also extends to “alter egos” or

instrumentalities” of the State. Fresenius Med. Care Cardio

Vascular Res., Inc. v. Puerto Rico and Caribbean and

Cardiovascular Center Corp., 322 F.3d 56 (1st Cir. 2003).

Specifically, this Court has repeatedly held that the PRPD is

an “alter ego” of the State and thus, immune from monetary

liability in federal court. See Nieves Cruz v. Com. of Puerto Rico,

425 F. Supp. 2d 188, 192 (D.P.R. 2006); Sánchez Ramos v. Puerto

Rico Police Dep’t, 392 F. Supp. 2d 167, 177 (D.P.R. 2005); Cestero

v. Rosa 996 F. Supp. 133, 142-43 (D.P.R. 1998); see also Reyes v.

Supervisor of Drug Enf’t Admin., 834 F.2d 1093, 1097-98 (1st Cir.
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1987) (noting that damages against the PRPD are precluded

by the Eleventh Amendment).

Likewise, state officials in their official capacities are

considered instrumentalities of the State, as a suit against a

state official in his or her official capacity is a suit against the

State. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Pagán-

García v. Rodríguez, No. 14-1385 DRD, 2015 WL 5084640, at *6

(D.P.R. Aug. 27, 2015). In the instant case, Plaintiff is seeking

monetary damages and injunctive and declaratory relief from

Co-Defendants Rosselló and Pesquera, who were both state

officers at the time of the relevant events, in both their official

and personal capacities. Applying the above principles,

Eleventh Amendment Immunity bars Plaintiff’s § 1983 claims

seeking monetary damages against the Co-Defendants

Rosselló and Pesquera in their official capacity. Accordingly,

Plaintiff’s § 1983 claims against those two defendants in their

official capacity are dismissed with prejudice.

B. Supervisory Liability

In contrast to the standard for liability in their official

capacity, government officials can be liable for § 1983 claims

in their personal capacity. See Hafer v. Melo, 502 U.S. 21, 25

(1991). However, Co-Defendants Rosselló and Pesquera

argue that dismissal of Plaintiff’s § 1983 claims is warranted

because Plaintiff does not allege that they themselves took

actions to purposely violate Plaintiff’s constitutional rights.

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Conversely, Plaintiff argues that the Co-Defendants Rosselló

and Pesquera can be held liable under a theory of supervisory

liability.

For a claim of supervisory liability under 42 U.S.C. § 1983,

a plaintiff must show that (1) “one of the supervisor’s

subordinates abridged the plaintiff’s constitutional rights”;

and (2) “the supervisor’s action was affirmatively linked to

that behavior in the sense that it could be characterized as

supervisory encouragement, condonation, or acquiescence or

gross negligence amounting to deliberate indifference.”

Guadalupe-Baez v. Pesquera, 819 F.3d 509, 515 (1st Cir. 2016).

A supervisor may not be held liable under § 1983 on the

theory of respondeat superior, nor can his liability rest solely on

his position of authority. Ocasio-Hernández v. Fortuño, 640 F.3d

1, 16 (1st Cir. 2011). The supervisor’s liability must be

premised on his own acts or omissions, but he need not

directly engage in a subordinate’s unconstitutional behavior.

See Guadalupe-Baez, 819 F. 3d at 515; Febus-Rodríguez v.

Betancourt-Lebrón, 14 F.3d 87, 91-92 (1st Cir. 1994). To establish

a claim of supervisory liability, a plaintiff must show that the

“official supervise[d], train[ed], or hire[d] a subordinate with

deliberate indifference toward the possibility that deficient

performance of the task eventually may contribute to a civil

rights deprivation.” Camilo-Robles v. Zapata, 175 F.3d 41, 44

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(1st Cir. 1999). Deliberate indifference 4 is shown where (1)

there exists “a grave risk of harm”; (2) the official has “actual

or constructive knowledge of the risk”; and (3) the official fails

to take “easily available measures to address that risk.”

Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998). It requires

a showing that “it would be manifest to any reasonable

official that his conduct was very likely to violate an

individual’s constitutional rights.” Germany v. Vance, 868 F.2d

9, 18 (1st Cir 1989); see also Febus-Rodríguez, 14 F.3d at 92.

Actual notice of wrongful conduct is not required because a

supervisor “may be liable for the foreseeable consequences of

such conduct if he would have known of it but for his

deliberate indifference or willful blindness.” Maldonado-Denis

v. Castillo-Rodríguez, 23 F.3d 576, 582 (1st Cir. 1994); see also

Feliciano-Hernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st

Cir. 2011) (noting that notice may be actual or constructive).

Furthermore, a supervisor may be held liable for the

constitutional violations of his subordinates where “an

affirmative link between the behavior of a subordinate and

the action or inaction of his supervisor exists such that the

supervisor’s conduct led inexorably to the constitutional

violation.” Maldonado v. Fontanes, 568 F.3d 263, 275 (1st Cir.

4Co-Defendants Rosselló and Pesquera parrot the argument of their other

Co-Defendants that the Supreme Court departed from the “deliberate
indifference” standard as part of the analysis of supervisory liability
claims under § 1983 in Ashcroft. Docket No. 26, pg. 8; see Ashcroft, 556 U.S.
662 (2009). We have already explained why we find this argument to be
unfounded. See Docket No. 27, pg. 13 n.10.
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2009) (internal quotation marks omitted); see Guadalupe-Baez,

819 F.3d at 515 (“Causation remains an essential element, and

the causal link between a supervisor’s conduct and the

constitutional violation must be solid.”). This affirmative link

can be shown through “a known history of widespread abuse

sufficient to alert a supervisor to ongoing violations.”

Maldonado-Denis, 23 F.3d at 582. But it must truly show a

“widespread abuse”; “isolated instances of unconstitutional

activity are ordinarily insufficient to show deliberate

indifference.” Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10,

20 (1st Cir. 2014).

The First Circuit has found that the DOJ Report is

sufficient evidence of a “widespread abuse” so as to put the

supervisors of the PRPD on notice of ongoing violations.

Guadalupe-Baez, 819 F.3d at 512, 516-17. Similarly, in Rolón-

Merced v. Pesquera, the court found that plaintiff’s allegations

that the PRPD’s supervisors had failed to implement

“nationally accepted policies,” along with the officer’s alleged

actions of various constitutional violations, was enough to

meet the affirmative link test to survive the motion to dismiss.

No. 14-1757, 2017 WL 888219, at *7-8 (1st Cir. Mar 6, 2017).

Because the PRPD held pertinent information as to the

training programs and disciplinary actions against the

officers, the plaintiff was not required to provide specific

details as to each of the supervisory defendant’s roles in

implementing the policies and rules. Id. at *21.

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In this case, it is not contested by the parties that Plaintiff

has alleged that unnamed PRPD officers used excessive force

against Plaintiff as he sold water at the National March in

violation of his Fourth and First Amendment rights. Thus, the

first prong of supervisory liability, requiring that one of the

supervisor’s subordinates abridged the Plaintiff’s

constitutional rights, is met. See Guadalupe-Baez, 819 F.3d at

515. The only issue remaining is whether the supervisors’ –

here, Rosselló and Pesquera’s – actions or inactions were

affirmatively linked to the harm suffered by Plaintiff. Id.

Like the plaintiffs in Guadalupe-Baez and Rolón-Merced,

Plaintiff has sufficiently plead facts to establish an affirmative

link between the constitutional violation committed by the

subordinate officers that allegedly used excessive force on

Plaintiff and Co-Defendants Rosselló and Pesquera at this

stage. The DOJ Report and subsequent Agreement, cited by

Plaintiff in the Amended Complaint, were sufficient to put the

Co-Defendants Rosselló and Pesquera on notice of the

widespread constitutional violations being committed by

PRPD officers and the risk of harm to Plaintiff, just as the

Report in Guadalupe-Baez was sufficient to put the PRPD

superintendent on notice of the widespread issue of police

brutality and of his potential liability as supervisor. In the

Amended Complaint, Plaintiff alleges that Co-Defendants

Rosselló and Pesquera were responsible for implementing

and overseeing the PRPD’s policies and practices for

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engaging with demonstrators, as well as for the discipline,

training and supervision of all employees and officers of the

PRPD during the relevant time period. See Docket No. 5, pgs.

3, 7. More specifically, Plaintiff alleges that Pesquera,

pursuant to Rosselló’s instructions, gave unlawful orders to

his subordinates to organize the “ambush” that led to the

alleged violations of Plaintiff’s constitutional and statutory

rights. See id. at pgs. 18-19. Plaintiff also alleges that Rosselló

made the decision to remove the line of policeman at the

Liberty Cable building that allowed protestors to pass

through, resulting in the events alleged in the Amended

Complaint. See id. at 20. Therefore, especially in light of the

DOJ Report and the Agreement, Plaintiff has plead sufficient

facts at this preliminary stage to state a claim of supervisory

liability against the Co-Defendants Rosselló and Pesquera in

their personal capacity.

Co-Defendants Rosselló and Pesquera argue that they are

protected from Plaintiff’s claims against them in their

personal capacities by the doctrine of qualified immunity.

Officials are entitled to qualified immunity unless (1) “the

facts that a plaintiff has alleged or shown make out a violation

of a constitutional right” and (2) “the right at issue was

‘clearly established’ at the time of [their] alleged conduct.”

Pearson v. Callahan, 555 U.S. 223, 232 (2009). Thus, the qualified

immunity inquiry is highly fact dependent. Accordingly, we

find that further development of the facts is necessary in order

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to evaluate the merits of the qualified immunity defense here,

and therefore that defense does not bar Plaintiff’s claims

against Co-Defendants Rosselló and Pesquera at this

preliminary stage. See Giragosian v. Bettencourt, 614 F.3d 25, 29

(1st Cir. 2010) (“It is not always possible to determine before

any discovery has occurred whether a defendant is entitled to

qualified immunity, and courts often evaluate qualified

immunity defenses at the summary judgment stage.”); El Día

v. Governor Rosselló, 165 F.3d 106, 110-11 (1st Cir. 1999)

(explaining that the qualified immunity defense may be

raised at subsequent stages in the same case, even where it

has been previously rejected).

After analyzing the Amended Complaint in the light most

favorable to the nonmoving party, the Court finds that

Plaintiff has plead sufficient facts to “raise the right to relief”

under his § 1983 supervisory liability claim “above the

speculative level.” Twombly, 550 U.S. at 544. Thus, Plaintiff’s §

1983 monetary claims survive as to Co-Defendants Rosselló

and Pesquera in their personal capacity.

C. Pendent State-Law Claims

Having addressed all of Plaintiff’s federal-law claims, all

that remains are his claims under the Puerto Rico Constitution

and Puerto Rico tort law. The Court has supplemental

jurisdiction to hear state-law claims when, and if, the federal

court has original jurisdiction in the action and the claims

“form part of the same case or controversy.” 28 U.S.C. §

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1367(a). Because the Court does not dismiss all of Plaintiff’s

federal claims, Plaintiff’s state-law claims survive

Defendants’ Motions to Dismiss.

IV. Conclusion

Having carefully examined the arguments raised by the

parties, Co-Defendants Rosselló and Pesquera’s Motion to

Dismiss at Docket Number 39 is GRANTED as to Plaintiff’s §

1983 claims against those Defendants in their official capacity

and DENIED as to Plaintiff’s § 1983 claims against those

Defendants in their personal capacity and as to Plaintiff’s

pendent state-law claims. Plaintiff’s § 1983 claims against Co-

Defendants Rosselló and Pesquera in their official capacity are

therefore DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

In San Juan, Puerto Rico, this 12th day of May 2021.

S/ SILVIA CARREÑO-COLL
UNITED STATES DISTRICT COURT JUDGE