Fernandez-Salicrup v. Figueroa-Sancha , 790 F.3d 312 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1513
BRIAN FERNÁNDEZ-SALICRUP, individually and in
representation of his minor children; MARÍA RAMOS-SANTIAGO,
individually and in representation of her minor children;
V.F.-R., minor; J.F.-R., minor; CONJUGAL PARTNERSHIP
FERNÁNDEZ-RAMOS,
Plaintiffs, Appellants,
v.
JOSÉ FIGUEROA-SANCHA, Superintendent of the Police Department;
JOSÉ L. CALDERO-LÓPEZ, Colonel, Director of the Carolina
Police Region; JOSÉ LUIS DÍAZ-PORTALATÍN, Captain;
GINNETTE ROSADO, Police Officer,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Eduardo Vera Ramírez, with whom Landrón Vera, LLC, Eileen
Landrón Guardiola, and Luis Rodríguez Muñoz, were on brief, for
appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, and
Zarel Soto-Acabá, Assistant Solicitor General, were on brief, for
appellees Figueroa-Sancha, Caldero-López, Díaz-Portalatín, and
Rosado.
Zarel Soto-Acabá, Assistant Solicitor General, with whom
Margarita L. Mercado-Echegaray, Solicitor General, and Susana I.
Peñagarícano-Brown, Assistant Solicitor General, were on brief, for
appellee Figueroa-Sancha.
June 25, 2015
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TORRUELLA, Circuit Judge. On October 8, 2010, Plaintiffs
Brian Fernández-Salicrup, María Ramos-Santiago, and the Conjugal
Partnership formed between them -- on their own behalf and on
behalf of their minor children Valerie Fernández-Ramos
("Fernández") and Jesús Fernández-Ramos -- filed suit against
Puerto Rico Police Department ("PRPD") Superintendent José
Figueroa-Sancha ("Figueroa"), PRPD Carolina Regional Director José
Caldero-López ("Caldero"), PRPD Canóvanas District Commander Luis
Díaz-Portalatín ("Díaz") (collectively, the "Supervisory
Defendants"), and PRPD officer Jeanette Rosado (together with the
Supervisory Defendants, the "Defendants"). Plaintiffs alleged,
under 42 U.S.C. § 1983 and analogous provisions of the Puerto Rico
Civil Code's torts statute, that Fernández's Fourth, Fifth, Ninth,
and Fourteenth Amendment rights were violated when she was
unconstitutionally arrested and subjected to excessive force during
an incident at the Luis Hernaiz-Veronne High School (the "School").
Following discovery, the district court struck Plaintiffs' expert
report and granted summary judgment in favor of the Supervisory
Defendants; shortly thereafter, it dismissed with prejudice the
claims against Rosado as well. Plaintiffs now appeal. For the
reasons that follow, we affirm the exclusion of the expert report,
the grant of summary judgment in favor of the Supervisory
Defendants, and the dismissal with prejudice of Plaintiffs' Fourth
Amendment excessive force claim against Rosado. As to Plaintiffs'
-3-
Fourth Amendment unconstitutional arrest claim against Rosado,
however, we reverse the dismissal and remand for trial.
I. Background
A. Factual Background1
On October 9, 2009, then-Puerto Rico Governor Luis
Fortuño attended an event at the Jesús T. Piñero Public Housing
Project, located across the street from the School. A number of
students at the School objected to Fortuño's presence, so, as a
form of protest, they threw objects such as eggs, rocks, and tree
branches at the PRPD officers guarding the event and at cars
passing through the street. In response, Díaz, the commanding
officer at the scene, instructed a number of police officers --
including Rosado -– to enter the School in order to quiet the
situation and arrest those responsible for throwing objects.
Once the officers entered the School's premises, however,
the situation turned chaotic. The students, whether they were
throwing objects or not, all ran towards the School building. One
of those students was Fernández. Though Fernández never threw
anything, she ran away from the PRPD, entered a hallway, closed the
gate behind her, and remained nearby. PRPD officers, including
1
We recite the facts in the light most favorable to Plaintiffs,
the party opposing summary judgment, and draw all inferences in
their favor. See, e.g., Perry v. Roy, 782 F.3d 73, 77 (1st Cir.
2015).
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Rosado, soon arrived at the gate and ordered Fernández to open it;
she immediately complied.
Upon opening the gate, Rosado spoke to Fernández "in a
rough manner" and pushed her aside. Fernández, not happy with how
she was being spoken to, told Rosado not to speak to her like that,
to which Rosado answered that she could speak to Fernández however
she liked. Fernández once again expressed her displeasure with
Rosado's tone, at which point Rosado "shoved" Fernández face-first
against a wall and placed a handcuff on her left wrist.2 But
before Rosado could finish handcuffing her, Fernández slipped
through the gate in an attempt to escape. As this was occurring,
a number of students grabbed Fernández's right arm and tried to
help her by pulling her away from Rosado. This led to a small tug-
of-war between Rosado and the students, hurting Fernández in the
process. Ultimately, this escape attempt failed, and Fernández was
escorted to the School Director's office.
Fernández was later transported to a nearby police
station, and then to the Carolina police headquarters where she was
given a citation to appear in court. She, along with nine other
2
Rosado, meanwhile, tells a different story preceding the arrest.
According to Rosado, once Fernández opened the gate and Rosado
walked by it, Fernández grabbed Rosado's firearm and attempted to
pull it from the holster. Rosado also testified that Fernández
informed Rosado that Rosado "could not go in" to the School.
Though we have described and adopted the facts in the light most
favorable to Plaintiffs, we note this discrepancy here due to its
relevance in the discussion below.
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students, was charged with violating Article 208 (causing
aggravated damages), Article 251 (causing violence against the
public authority), and Article 258 (rioting) of the Puerto Rico
Penal Code. The charges were eventually dismissed.
B. Procedural Background
Plaintiffs filed suit in the district court on October 8,
2010. Following the onset of discovery, a protracted dispute arose
regarding documents in the possession of the PRPD. Because the
intricacies of this dispute are relevant to Plaintiffs' claim that
the district court erred in excluding their expert's report, we
describe the chronology of this dispute in some detail.
C March 29, 2011. Plaintiffs filed a motion to
compel documents from non-parties the Internal
Investigation Bureau and the Human Resources
Office of the PRPD (collectively, the "Non-
Parties"). These documents, Plaintiffs claimed,
contained critical information to aid their
expert witness, Dr. William Gaut, in refuting
Rosado's allegation that Fernández had reached
for Rosado's weapon. Defendants moved to quash
the requests the same day, alleging that
Defendants had never received a copy of the
subpoena served on the Non-Parties and that in
any event the requested personnel files were
confidential. On April 5, 2011, the district
court issued a show cause order requiring the
Non-Parties to explain why the motion to compel
should not be granted. On April 22, 2011, the
Non-Parties responded, explaining that the
documents were confidential, that the request was
overly costly and burdensome, and that Plaintiffs
refused to examine the files in order to identify
the relevant documents to be produced. The
district court chose not to immediately resolve
the issue, opting instead to leave the motions
pending.
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C April 20, 2011. Plaintiffs filed a new motion to
compel, this time seeking initial disclosures
from Defendants. This motion was denied without
prejudice on April 23, 2011, because Plaintiffs
failed to show that the parties complied with the
court's meet and confer requirements.
C April 25, 2011. Plaintiffs re-filed their April
20 motion to compel initial disclosures. This
motion provided proof of compliance with the
court's meet and confer requirements. The
district court chose not to immediately resolve
the issue, opting instead to leave the motion
pending.
C June 23, 2011. Plaintiffs filed a request for a
court order seeking the release of confidential
personnel files held by the PRPD. This motion
was in response to an April 25, 2011, informative
motion by the Non-Parties in which the Non-
Parties confirmed their belief that the personnel
files being sought by Plaintiffs were
confidential and thus could not be released
absent a court order. The district court chose
not to immediately resolve the issue, opting
instead to leave the motion pending.
C August 8, 2011. The district court entered a
case management order setting August 30, 2011, as
the deadline to serve initial disclosures and
December 31, 2011, as the deadline for all
discovery. In light of this order, it denied as
moot Plaintiffs' April 25, 2011, motion to compel
initial disclosures.
C October 24, 2011. Plaintiffs served non-party
PRPD with a subpoena to produce documents,
information, or objects, or to permit the
inspection of premises by November 8, 2011. Both
PRPD and Defendants filed motions to quash on
November 7, 2011, alleging a lack of proper
notice to Defendants and a failure to give PRPD a
reasonable time to comply. On November 14, 2011,
Plaintiffs filed a motion to compel and for
sanctions, arguing that the motions to quash were
not justified and that sanctions were in order
since the PRPD did not comply with the subpoena
by November 8. The motions were referred to a
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magistrate judge on November 17. The following
day, the magistrate judge denied the motions to
quash and granted in part and denied in part
Plaintiffs' motion. The judge ordered PRPD to
produce the documents, information, or objects
requested by Plaintiffs by December 2 (later
extended until December 16 and then to December
27), but the judge declined to impose sanctions
for failure to comply with the subpoena.
C December 1, 2011. The parties attended a status
conference with the magistrate judge. At the
conference, Plaintiffs complained that while they
had retained a police procedure/practice expert,
the expert could not complete his report until he
received the documents sought in Plaintiffs'
motions to compel. Defendants responded that
many of the requested documents had already been
produced, that some did not exist, and that
others -- such as videos and photographs -- were
being located and would be produced. The parties
indicated that they would be meeting on December
9 to discuss the PRPD's production in an effort
to narrow the remaining issues.
C December 7, 2011. The parties jointly moved for
an extension of the discovery deadline to March
31. The district court granted the extension on
December 22, 2011, but noted that "[n]o further
extensions will be granted" and that the
"[f]ailure to abide by the present deadlines will
result in preclusion."
C December 8, 2011. The district court ordered
Plaintiffs to inform the court within one week
whether their pending March 29, April 25, and
June 23 discovery motions were still outstanding
and in need of resolution. Plaintiffs failed to
respond, so on December 23, 2011, the district
court issued an order requiring Plaintiffs to
show cause as to why it should not deny all three
motions as a sanction for Plaintiffs' failure to
reply. This spurred Plaintiffs into action, and
they responded the same day. According to
Plaintiffs, "the parties [were] attempting to
solve these issues amicably," noting that some of
the documents had been produced and that the
parties were scheduling a meeting for early
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January regarding the remaining production.
Plaintiffs anticipated they would be better able
to answer the district court's inquiry following
this meeting, and thus asked the district court
to hold the motions in abeyance until then. On
January 4, 2012, the district court rejected this
proposal, ruling that "[s]ince the discovery
issues raised [in the Order to Show Cause] were
in essence discussed with Magistrate Judge Vélez,
the discovery motions pending . . . are hereby
Denied Without Prejudice."
C March 19, 2012. Defendants and non-party PRPD
each filed a motion to quash a March 5 subpoena
seeking the disciplinary and/or administrative
files of twenty-eight police officers. With the
exception of the files of co-defendants Díaz and
Rosado, which were produced, the motions alleged
that the other twenty-six files were not relevant
and could not reasonably lead to the discovery of
admissible evidence. PRPD also argued that the
subpoena failed to allow a reasonable time for
PRPD to comply. In response, on March 27,
Plaintiffs once again filed a motion to compel
and for sanctions. The district court chose not
to immediately address the motion, opting instead
to leave it pending.
C March 30, 2012. The parties filed a joint motion
for a one-month extension of the discovery
deadline. The district court chose not to
immediately address the motion, opting instead to
leave it pending.
C April 24, 2012. A status conference was held
before the magistrate judge. During the
conference, the magistrate judge noted that the
March 19 motions involving the March 5 subpoena
were still pending, as was the joint motion for
an extension of the discovery deadline. It also
commented that Plaintiffs had yet to produce Dr.
Gaut's expert report.
C April 30, 2012. Defendants filed their motion
for summary judgment along with a corresponding
statement of uncontested material facts.
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C May 10, 2012. The district court denied as moot
the parties joint motion for an extension of the
discovery deadline until April 30, 2012.
C May 11, 2012. The district court granted the
March 19, 2012, motions to quash the March 5
subpoena and denied Plaintiffs' March 27, 2012,
motion to compel and for sanctions.
C May 21, 2012. Plaintiffs disclosed Dr. Gaut's
expert report.
C June 4, 2012. Plaintiffs filed their opposition
to summary judgment, their additional uncontested
facts, and opposition to Defendants' statement of
uncontested facts. As part of their opposition
and alternative recitation of the facts,
Plaintiffs relied on the expert report of Dr.
Gaut. Defendants objected to the use of Dr.
Gaut's report, arguing that it was produced well
after the close of discovery and thus should be
stricken from the record.
Over one year later, on September 6, 2013, the district
court ruled on Defendants' motion for summary judgment. As an
initial matter, it agreed with Defendants regarding Dr. Gaut's
expert report, holding that because the case management order's
discovery deadline referred to all discovery -- which the district
court interpreted to mean both fact and expert discovery -- and
Plaintiffs failed to produce the report before this deadline,3 the
3
The district court's opinion incorrectly noted that the deadline
to conclude all discovery was December 31, 2011. While this was
the initial deadline as laid out in the case management order, on
December 7, 2011, the court extended this deadline until March 31,
2012. The parties then jointly requested that the deadline be
extended even further -- until April 30, 2012. The district court
never actually granted this extension, instead dismissing it as
moot on May 10, 2012. Regardless of which date constituted the
actual close of discovery (March 31 or April 30, 2012), Plaintiffs'
disclosure of the report on May 21, 2012, was well beyond the
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court would exclude all statements of material fact that relied on
the report.
It also deemed admitted Paragraph 12 of Defendants'
Statement of Uncontested Facts, which stated that "[w]hen Agent
Jennette Rosado-Parrilla ('Rosado') was going to walk by the gate,
Fernández grabbed her regulation firearm, tried to pull it from the
holster and told Rosado that she could not go in." Though
Plaintiffs denied this statement in their opposition papers, the
court ruled that Plaintiffs' record citation to Fernández's
deposition -- wherein Fernández gave a long narrative description
of the events of October 9 and never mentioned an incident
involving Rosado's gun -- was insufficient to support the denial.
Having dealt with these preliminary evidentiary issues,
the district court moved to the merits. Looking to Fernández's
arrest, the court explained that there was no constitutional
violation because "the facts and circumstances within Rosado's
knowledge would have led a prudent person into believing that
Fernández committed a crime." Indeed, the district court found
that two separate crimes were committed. First, "Fernández grabbed
and tried to pull Rosado's firearm out of its holster," which,
according to the court, "[u]ndoubtably" provides probable cause for
arrest. Second, it held that because Fernández ran towards the
School hallway and closed the hallway gate, Rosado could have
deadline.
-11-
concluded that Fernández was "obstructing police activity by
restricting access to a school in which students were throwing
objects at passing vehicles."
Turning next to Plaintiffs' excessive force claim, the
district court held that it was "not unreasonable for Rosado to
place Fernández face first toward a wall to effectuate the arrest"
and there was "no evidence on the record that Rosado's technique
did not comport with standard police practice or was more forceful
than the norm." It added that "it was objectively reasonable for
Rosado to prevent Fernández from escaping by pulling her away from
other students." As a result, the court concluded that Fernández's
constitutional rights were not violated, and thus the Supervisory
Defendants were entitled to summary judgment.4
4
The district court also granted summary judgment on Plaintiffs'
Fifth, Ninth, and Fourteenth Amendment claims. Plaintiffs do not
appeal the Ninth and Fourteenth Amendment claims, so we need not
discuss them. As to the Fifth Amendment claim, it is unclear from
Plaintiffs' brief whether or not they are appealing the issue.
While Plaintiffs do mention Rosado's failure to provide Miranda
warnings, the brief mention seems to be raised in the context of
providing support for their Fourth Amendment claim and not in an
attempt to appeal the Fifth Amendment claim. To the extent this
was an attempt to appeal the issue, however, the appeal fails for
two reasons. First, Plaintiffs fail to provide any legal argument
or citations to support their argument, and thus it is deemed
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). Second, the mere failure to provide Miranda warnings does
not subject an officer to a § 1983 claim. See McConkie v. Nichols,
446 F.3d 258, 261 (1st Cir. 2006) ("Even where an officer questions
a suspect in an unlawful manner, this does not necessarily mean
that the questioning entitles the plaintiff to damages under
section 1983; the Supreme Court has recognized that it would be
inappropriate to impose tort liability every time an officer
obtains an involuntary self-incriminating statement or the police
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With all of the federal claims against the Supervisory
Defendants disposed of, the district court next addressed the
remaining claims under Puerto Rico law. The court explained that
it was declining to exercise its supplemental jurisdiction, and
thus dismissed the claims without prejudice.
As for Rosado, the district court required Plaintiffs to
show cause by September 16, 2013, as to why, given its holdings
that there were no constitutional violations, summary judgment
should not be granted in Rosado's favor as well. At Plaintiffs'
request, the district court allowed compliance through a motion for
reconsideration. Plaintiffs filed this motion for reconsideration
on October 7, 2013, and the district court denied it on March 31,
2014. After reaffirming the conclusions in its September 6, 2013,
order, the district court held that Plaintiffs failed to show how
Rosado violated Fernández's constitutional rights, and thus it
dismissed all claims against Rosado with prejudice. This timely
appeal followed.
II. Discussion
A. The Exclusion of Dr. Gaut's Expert Report
Plaintiffs first argue that the district court erred in
excluding Dr. Gaut's expert report -- a report they claim was
necessary in order to rebut Defendants' allegation that Fernández
reached for Rosado's firearm -- because there was no firm discovery
fail to honor Miranda v. Arizona, 384 U.S. 436 (1966).").
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deadline, and, even if there was, their failure to timely disclose
the report was excusable due to Defendants' dilatory tactics. We
disagree.
"A district court has wide discretion in choosing
sanctions for discovery violations." Samaan v. St. Joseph Hosp.,
670 F.3d 21, 36 (1st Cir. 2012). When the violation includes
belated identification of experts or the disclosure of their
opinions, "one customary remedy is preclusion." Genereux v.
Raytheon Co., 754 F.3d 51, 59 (1st Cir. 2014). In determining
whether such a remedy is appropriate, we apply a deferential abuse
of discretion standard, granting the district court "considerable
leeway." Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003); see
also Genereux, 754 F.3d at 59-60; R.W. Int'l Corp. v. Welch Foods,
Inc., 937 F.2d 11, 14 (1st Cir. 1991) ("In the ordinary course of
civil litigation, '[t]he choice of sanctions for failing to comply
with a court order lies with the district court, and we may not
lightly disturb a decision to dismiss.'" (alteration in original)
(quoting Velázquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072,
1075 (1st Cir. 1990))). In conducting this appellee-friendly
review, we consider the totality of the circumstances. Genereux,
754 F.3d at 60.
Here, contrary to Plaintiffs' contention, there was a
firm discovery deadline. On August 8, 2011, the court entered a
case management order setting December 31, 2011 -- later extended
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to March 31, 2012 -- as the deadline for all discovery. The
district court interpreted the use of "all" to be broad enough to
encompass both fact and expert discovery, and in the absence of any
further delineation of discovery deadlines, we agree with this
interpretation. Plaintiffs appear to have interpreted the case
management order the same way, as their expert disclosures and
related discovery were topics of conversation throughout the entire
discovery period. For example, at the December 1, 2011, status
conference, Plaintiffs informed the magistrate judge and Defendants
that they had retained Dr. Gaut as their police procedure/practice
expert but that he was still waiting to review documents being
sought in Plaintiffs' motions to compel.
Nevertheless, Plaintiffs failed to comply with the
district court's deadline. First, despite the court explicitly
stating that the extended March 31, 2012, deadline was final and
that "[n]o further extensions will be granted," the parties ignored
this mandate and filed a joint motion seeking to extend the
deadline until April 30. Even assuming this extension was
implicitly allowed, Plaintiffs ignored this new self-imposed
deadline as well, failing to disclose the report until May 21.
Given that the district court had already warned that a party's
failure to abide by the March 31 deadline "will result in
preclusion," and that we have previously held that a litigants's
failure to comply with their own self-imposed deadlines weigh
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heavily against them, we are hard-pressed to find an abuse of
discretion in the district court's decision to exclude the report.5
See Cintrón-Lorenzo v. Departamento de Asuntos del Consumidor, 312
F.3d 522, 526 (1st Cir. 2002) ("[Plaintiff's] failure to achieve
the time line that she herself had suggested weighs heavily against
her."); Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 45-
46 (1st Cir. 2002) ("[A] litigant who ignores case-management
deadlines does so at his peril." (internal quotation marks
omitted)).
Plaintiffs counter that even if the disclosure of Dr.
Gaut's report was tardy, the failure was excusable due to
Defendants' dilatory tactics. But Plaintiffs are unable to back up
this contention. First, we note that the subpoenas and document
requests were directed at the PRPD -- a non-party -- and not at
Defendants. Plaintiffs point to no evidence that Defendants were
controlling the PRPD's actions or were to blame for the PRPD's
refusal to disclose documents.
5
This is especially true when one considers that this was not the
first time Plaintiffs had ignored the district court's orders
regarding discovery. Remember, in April 2011, the district court
denied Plaintiffs' motion to compel initial disclosures because
Plaintiffs failed to comply with the court's meet and confer
requirements. And then, in December 2011, Plaintiffs failed to
respond to the district court's inquiry into the status of three
pending discovery motions. Indeed, it was not until the district
court issued a show cause order threatening to deny all three
motions and to sanction Plaintiffs that Plaintiffs decided to
respond.
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Second, Plaintiffs informed the district court on
December 23, 2011, that some of the requested documents had been
produced and that the parties were working towards the rest of the
production. The record contains no signs of a continued discovery
dispute between the parties for almost three months, despite the
district court informing Plaintiffs that they could re-file their
motions to compel if necessary. And while Plaintiffs did file a
motion to compel on March 27, 2012, that motion dealt with
disciplinary and/or administrative files of police officers who
were not parties to the action; there was no renewed motion to
compel the documents allegedly necessary for Dr. Gaut's report.6
Accordingly, even if Defendants were intentionally delaying the
disclosure of necessary documents, there is nothing in the record
suggesting that Plaintiffs timely brought the issue before the
district court in an attempt to remedy the problem. See Colón-
Millín v. Sears Roebuck de P.R., Inc., 455 F.3d 30, 39 (1st Cir.
2006) ("We do not minimize the significance of the defendants'
discovery violation. Yet the failure . . . does not excuse the
plaintiff from her failure to bring this discovery violation to the
attention of the district court . . . .").
6
Indeed, shortly after the March 27, 2012, motion to compel was
denied (and the corresponding motions to quash were granted),
Plaintiffs disclosed Dr. Gaut's expert report. That Dr. Gaut was
able to complete and produce his report without the sought after
documents suggests that even if the documents may have been
helpful, they were far from necessary for its completion.
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Third, Plaintiffs never sought to justify the delayed
disclosure. When they filed their opposition to summary judgment,
Plaintiffs simply referred to the report as if there was no
timeliness issue. Even after Defendants lodged an objection to the
report in their reply to Plaintiffs' opposition to summary
judgment, Plaintiffs remained silent. This silence lasted over a
year -- from the time Defendants filed their reply on June 29,
2012, until Plaintiffs filed their motion for reconsideration of
the district court's order granting summary judgment on October 7,
2013. If Defendants truly were to blame, one would have expected
a quick and forceful response by Plaintiffs.
In light of these circumstances, we find no abuse of
discretion by the district court in excluding Dr. Gaut's expert
report. If the report was really as important and necessary as
Plaintiffs claim, and Defendants really were at fault, Plaintiffs
would have complied with the discovery deadline, or promptly
brought any issues to the district court if they could not. The
district court was well within its discretion in concluding that
simply ignoring the deadline and hoping nobody would notice was not
an acceptable approach. See Young, 330 F.3d at 82-83 (holding that
"a time-specific order was not cured by subsequent compliance at
[the party's] leisure"); Tower Ventures, 296 F.3d at 45-46 ("[A]
litigant who ignores case-management deadlines does so at his
peril." (internal quotation marks omitted)).
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B. The Grant of Summary Judgment
Plaintiffs next contend that the district court erred in
granting Defendants' motion for summary judgment on Plaintiffs'
Fourth Amendment claims. We review this grant de novo, drawing all
inferences in the light most favorable to Plaintiffs, the non-
moving party. Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19
(1st Cir. 2014). In conducting this review, we review the record
to determine whether there is any genuine dispute of material fact,
and if there is not, whether Defendants are entitled to judgment as
a matter of law. Id.; see also Fed. R. Civ. P. 56(a). Because the
analysis is different for the two classes of Defendants -- Officer
Rosado on the one hand and the Supervisory Defendants on the other
-- and for the two alleged Fourth Amendment violations --
Fernández's unconstitutional arrest and Rosado's use of excessive
force -- we address each separately.
1. Officer Rosado
i. The Arrest
The district court concluded that there was no Fourth
Amendment violation because "the facts and circumstances within
Rosado's knowledge would have led a prudent person into believing
that Fernández committed a crime." In coming to this conclusion,
the district court determined there was probable cause to arrest
Fernández for two independent crimes: (1) grabbing Rosado's firearm
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and attempting to pull it out of its holster; and (2) obstructing
police activity by restricting access to the School.
Regarding the first -- grabbing and attempting to remove
Rosado's firearm -- we agree with the district court that such an
act would constitute probable cause to arrest Fernández. However,
we cannot accept the district court's determination that this
material fact was not in dispute. To help streamline the summary
judgment process and create a simplified and easy way to navigate
the record, the district court's local rules require a motion for
summary judgment to "be supported by a separate, short, and concise
statement of material facts, set forth in numbered paragraphs, as
to which the moving party contends there is no genuine issue of
material fact to be tried." D.P.R. R. 56(b). The party opposing
summary judgment, meanwhile, must "submit with its opposition a
separate, short, and concise statement of material facts" which
"shall admit, deny or qualify the facts supporting the motion for
summary judgment" and "support each denial or qualification by a
record citation." D.P.R. R. 56(c). Here, Paragraph 12 of
Defendants' statement of uncontested material facts stated that
"[w]hen Agent Jennette Rosado-Parrilla ("Rosado") was going to walk
by the gate, Fernández grabbed her regulation firearm, tried to
pull it from the holster and told Rosado that she could not go in."
Plaintiffs emphatically denied this fact in their counter-
statement, stating as follows:
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It is plaintiff Valerie Fernández' testimony
that this never happened. According to
Valerie, defendant Jeanette Rosado spoke to
her in a rough manner ("as if she was
annoyed") and pushed her aside, Valerie told
Rosado not to speak to her in such a rough
tone, Rosado answered that she (Rosado) could
speak to her (Valerie) in whatever way she
felt, Valerie complained again about the rough
manner in which Rosado was adressing [sic] her
and it was then that Rosado shoved Valerie
against a wall and placed a handcuff on her
left wrist. Thus, according to Valerie
Fernández, she was an innocent bystander who
never touched defendant Rosado nor attempted
to grab her gun, and that it was Rosado who
exercised excessive force and subsequently
arrested her without having any reason to do
so.
As support, Plaintiffs cited to the specific pages of Fernández's
deposition where her account of the encounter could be found.
Unlike the district court, we believe this citation was
adequate to deny the alleged "uncontested" fact as required by
Local Rule 56. Fernández was asked in her deposition to describe
the events, and Fernández described what happened from her point of
view. She never mentioned reaching for Rosado's gun, and nowhere
did Defendants' counsel ask Fernández if she did. Given
Fernández's complete silence on the issue, it is possible to read
the deposition testimony as describing a version of events in which
Fernández never reached for the gun. Indeed, because Plaintiffs
are the ones opposing summary judgment, and all inferences must be
drawn in their favor, that is exactly how the district court should
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have interpreted it.7 See, e.g., Asociación de Periodistas de P.R.
v. Mueller, 529 F.3d 52, 59 (1st Cir. 2008) (explaining that the
appropriate standard is "whether plaintiff's [Fourth Amendment]
claim survives in light of all the uncontested facts and any
contested facts looked at in the plaintiff's favor" (alteration and
emphasis in original) (internal quotation marks omitted)); Calvi v.
Knox Cnty., 470 F.3d 422, 426 (1st Cir. 2006) ("The court must draw
all reasonable inferences from the assembled facts in the light
most hospitable to the nonmovant."). We conclude, therefore, that
Paragraph 12 was adequately denied, thus creating a genuine dispute
of material fact. In light of this dispute, any probable cause
finding cannot, at this stage of the litigation, be based on
Fernández reaching for Rosado's gun.
As to the district court's second basis for granting
summary judgment -- that probable cause existed to believe that
Fernández was obstructing police activity by restricting access to
the school -- we disagree with the district court that the record
contains the undisputed facts necessary to support a probable cause
determination. An officer has probable cause to arrest an
individual "if, at the moment of the arrest, the facts and
7
To be sure, a better practice would have been for Plaintiffs to
submit along with their opposition to summary judgment a sworn
statement from Fernández explicitly denying ever reaching for
Rosado's gun. That a different approach probably should have been
taken, however, does not mean that the approach actually taken was
insufficient.
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circumstances within the relevant actors' knowledge and of which
they had reasonably reliable information were adequate to warrant
a prudent person in believing that the object of his suspicions had
perpetrated or was poised to perpetrate an offense." Roche v. John
Hancock Mut. Life Ins. Co., 81 F.3d 249, 254 (1st Cir. 1996)
(emphasis added); see also Devenpeck v. Alford, 543 U.S. 146, 152
(2004) ("Whether probable cause exists depends upon the reasonable
conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest.").
Here, taking into account the admitted portions of
Defendants' statement of uncontested material facts, the record
citations provided in support of them, and making all inferences in
Plaintiffs' favor, Rosado was aware of the following facts at the
time of Fernández's arrest: (1) a number of unidentified students
were throwing objects from the School into the street separating
the School from the housing project; (2) when the PRPD entered the
School, all students -- both those who were throwing objects and
those who were not -- began running; (3) Rosado came upon Fernández
standing behind a closed gate blocking entry into the School's
hallway; (4) Fernández opened the gate upon Rosado instructing her
to do so. These facts, with nothing more, do not support any
crime, let alone the alleged crime of restricting police activity
by restricting access to the School, and thus probable cause for an
arrest would be lacking.
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The district court and Defendants emphasize, however,
that there was more. They point out that Fernández admitted
closing the gate, and by closing the gate, Fernández was
obstructing the investigation, thus creating probable cause for her
arrest. This would no doubt be true if Rosado knew that Fernández
was the one who closed the gate. But while we now know that
Fernández closed the gate, the record is silent as to whether or
not Rosado knew that fact at the time she arrested Fernández. See
Roche, 81 F.3d at 254 (holding that probable cause exists where "at
the moment of the arrest, the facts and circumstances within the
relevant actors' knowledge . . . were adequate to warrant a prudent
person in believing that the object of his suspicions had
perpetrated or was poised to perpetrate an offense" (emphasis
added)). The only evidence cited by Defendants to establish that
Fernández closed the gate is Fernández's own testimony. This
after-the-fact admission, however, does nothing to support the
probable cause determination because it does not prove Rosado's
contemporaneous knowledge of that fact.8 See id. (explaining that
8
At oral argument, Defendants repeatedly directed us to Rosado's
interrogatory responses, specifically her answer to Interrogatory
3, where Rosado stated that she "had been following two other
officers and one of them told a female student to open a gate that
she was trying to close in order to block the access." Had this
fact and corresponding citation been included in Defendants'
statement of uncontested material facts, the outcome today may very
well have been different, since this fact could suggest that Rosado
learned from the other officers that Fernández closed the gate.
See Morelli v. Webster, 552 F.3d 12, 21 (1st Cir. 2009) (explaining
that an officer may "act[] upon apparently trustworthy information"
-24-
the existence of probable cause "is not to be undertaken from the
perspective of hindsight but from the perspective of a hypothetical
'reasonable man' standing in the reporting person's shoes at the
time when that person acted."). Based on the summary judgment
record, therefore, a genuine issue of material fact exists as to
whether or not Rosado knew that Fernández closed the gate, and thus
it was inappropriate for the district court to conclude as a matter
of law that probable cause existed and no constitutional violation
occurred. See Asociación de Periodistas de P.R., 529 F.3d at 56
("Reversal is required if 'there existed any factual issues that
needed to be resolved before the legal issues could be decided.'"
(quoting Sabree v. United Bhd. of Carpenters & Joiners Local No.
33, 921 F.2d 396, 399 (1st Cir. 1990))).
This is not, however, the end of our discussion.
Defendants posit that even if Rosado did violate Fernández's
constitutional rights, summary judgment was still appropriate
because Rosado is entitled to qualified immunity. We disagree.
"Qualified immunity is a doctrine that shields government
officials performing discretionary functions from liability for
civil damages 'insofar as their conduct does not violate clearly
to "conclude that a crime has been or is about to be committed and
that the suspect is implicated in its commission"); Roche, 81 F.3d
at 254. Defendants, however, failed to include either the fact or
the citation, thus preventing Plaintiffs the opportunity to deny or
rebut Rosado's claim of knowledge and to present any contrary
record support.
-25-
established statutory or constitutional rights of which a
reasonable person would have known.'" Estate of Bennett v.
Wainwright, 548 F.3d 155, 167 (1st Cir. 2008) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). In assessing qualified
immunity, we apply a two-prong analysis. Glik v. Cunniffe, 655
F.3d 78, 81 (1st Cir. 2011). First, we must decide "whether the
facts alleged or shown by the plaintiff make out a violation of a
constitutional right." Id. (quoting Maldonado v. Fontanes, 568
F.3d 263, 269 (1st Cir. 2009)) (internal quotation marks omitted).
Second, assuming a constitutional violation exists, we determine
"whether the right was 'clearly established' at the time of the
defendant's alleged violation." Id. (quoting Maldonado, 568 F.3d
at 269) (internal quotation marks omitted). This second step is
further divided into two inquiries:
(a) whether the legal contours of the right in
question were sufficiently clear that a
reasonable officer would have understood that
what he [or she] was doing violated the right,
and (b) whether in the particular factual
context of the case, a reasonable officer
would have understood that his [or her]
conduct violated the right.
Mlodzinski v. Lewis, 648 F.3d 24, 32-33 (1st Cir. 2011). Notably,
due to a somewhat recent change in the law, we may address these
issues in any order. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
As discussed above, there are genuine disputes over
material facts which prevent us from evaluating whether Rosado
-26-
violated Fernández's rights. Those same disputed facts also
prevent us from evaluating the qualified immunity question. Even
assuming probable cause for Fernández's arrest was lacking, thus
satisfying the first requirement for qualified immunity, we would
then look to whether the right was "clearly established" at the
time of the violation. There is little question that it is clearly
established law that an individual cannot be arrested absent
probable cause. See, e.g., Kaupp v. Texas, 538 U.S. 626, 630
(2003) (per curiam); United States v. Mercedes-De La Cruz, ___ F.3d
___, 2015 WL 3378255, at *6 (1st Cir. May 26, 2015). However,
whether or not a reasonable officer, similarly situated, would have
understood that Rosado's actions violated this right is a fact-
intensive question. It involves understanding what Rosado knew as
she approached the gate and exactly what transpired upon Fernández
opening it. These are questions for a factfinder, and until they
are answered, we are unable to determine, as a matter of law,
whether Rosado's "conduct was 'so deficient that no reasonable
officer could have made the same choice[] under the
circumstances.'" Estate of Bennett, 548 F.3d at 168 (quoting
Napier v. Windham, 187 F.3d 177, 183 (1st Cir. 1999)); see also
Maldonado, 568 F.3d at 272.
Accordingly, the district court's entry of judgment
against Rosado on Plaintiffs' Fourth Amendment unconstitutional
arrest claim must be reversed and remanded for trial.
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ii. The Use of Force
Plaintiffs are not as fortunate regarding their excessive
force claim. "Our Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it." Graham v.
Connor, 490 U.S. 386, 396 (1989). Accordingly, to establish a
Fourth Amendment excessive force violation, Plaintiffs must show
not only that Rosado employed force in arresting Fernández, but
also that that level of force was objectively unreasonable under
the circumstances. See Asociación de Periodistas de P.R., 529 F.3d
at 59. In conducting this analysis, there is no "mechanical
application" for us to follow. Graham, 490 U.S. at 396. Instead,
we must pay
careful attention to the facts and
circumstances of each particular case,
including the severity of the crime at issue,
whether the suspect poses an immediate threat
to the safety of the officers or others, and
whether he [or she] is actively resisting
arrest or attempting to evade arrest by
flight.
Id. We judge the "reasonableness" of an officer's actions from the
"perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight." Id.; see also Calvi, 470 F.3d at
428.
Assuming the encounter occurred as Fernández describes --
as we must in the summary judgment context -- Fernández was
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seemingly arrested for, at best, obstructing a police investigation
and/or disorderly conduct by "disrespecting" Rosado and talking
back to her. Either, obviously, is not a severe crime, and -- at
least based on this version of events -- Fernández never posed an
immediate threat to Rosado or others. As such, only a minimal
level of force by Rosado would be reasonable under the
circumstances. Yet even with this low threshold, Plaintiffs are
unable to establish a constitutional violation. In effectuating
the arrest, Rosado shoved Fernández face-first against a wall and
proceed to handcuff her left wrist.9 There is no evidence in the
record that this technique deviated from standard police practice.
See Calvi, 470 F.3d at 428 ("Standard police practice [in Knox
County, Maine] called for cuffing an arrestee's hands behind her
back and [the officer's] decision not to deviate from this practice
was a judgment call, pure and simple. . . . That is the end of the
story."). And, even if it did, the Supreme Court has recognized
that "[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates the Fourth
Amendment." Graham, 490 U.S. at 396 (quoting Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir. 1973)) (internal quotation marks).
Rosado's shove of Fernández may have been unnecessary, but it was
not unreasonable.
9
Rosado did not handcuff Fernández's right wrist because
Fernández wriggled free and slipped through the gate before Rosado
could do so.
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Similarly, there was no Fourth Amendment violation when
Rosado pulled Fernández's arm, effectively creating a tug-of-war
between Rosado and the other students. Fernández was attempting to
escape arrest, and Rosado had a right to prevent Fernández from
doing so. We see nothing unreasonable with Rosado's refusal to let
go of Fernández or her decision to pull Fernández away from the
other students trying to help her escape. See id. (explaining that
whether an individual is "actively resisting arrest or attempting
to evade arrest" is a relevant consideration in the use-of-force
calculus).
Because Rosado never used excessive force during
Fernández's arrest, there was no constitutional violation.
Accordingly, the district court properly entered judgment for
Rosado on this claim.
2. The Supervisory Defendants
Though Plaintiffs seem to also be appealing the entry of
summary judgment in the Supervisory Defendants' favor, Plaintiffs
offer no argument with respect to them. Rather, Plaintiffs' brief
mentions Díaz only in the context of providing the factual
background, and it is completely silent as to Figueroa and Caldero.
Even when Defendants commented on this shortcoming in their
opposition brief, Plaintiffs failed to address the issue in reply.
We have held time and time again that "Judges are not expected to
be mindreaders" and that "a litigant has an obligation 'to spell
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out its arguments squarely and distinctly,' or else forever hold
its peace." Rivera-Gómez v. de Castro, 843 F.2d 631, 635 (1st Cir.
1988) (quoting Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec.
Co., 840 F.2d 985, 990 (1st Cir. 1988)); see also Zannino, 895 F.2d
at 17. Plaintiffs' failure to make any argument here -- let alone
a developed one -- is fatal to their claim. See Zannino, 895 F.2d
at 17 ("[W]e see no reason to abandon the settled appellate rule
that issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
Accordingly, Plaintiffs appeal as to the Supervisory Defendants is
waived.
C. The Puerto Rico Civil Code Claims
Finally, Plaintiffs object to the district court's
decision to decline supplemental jurisdiction over their claims
under the Puerto Rico Civil Code. When federal jurisdiction is
premised on a federal claim and those federal claims are later
dismissed, a district court has the option of declining to exercise
its supplemental jurisdiction over the remaining state law claims.
28 U.S.C. § 1367(c)(3); see also, e.g., Desjardins v. Willard, 777
F.3d 43, 45 (1st Cir. 2015). If "the dismissal of the linchpin
federal claim proves to have been improvident, [however,] the
state-law claims routinely are reinstated." Van Wagner Bos., LLC
v. Davey, 770 F.3d 33, 42 (1st Cir. 2014); see also Grajales v.
P.R. Ports Auth., 682 F.3d 40, 50 (1st Cir. 2012). We see no
-31-
reason to deviate from that practice here, so we instruct the
district court, on remand, to reinstate Plaintiffs' claims against
Rosado under the Puerto Rico Civil Code.
III. Conclusion
The purpose of summary judgment is to enable a court "to
pierce the boilerplate of the pleadings and assay the parties'
proof in order to determine whether trial is actually required."
Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)
(quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st
Cir. 1992)) (internal quotation marks omitted). In employing this
useful and vital tool, the district court acted well within its
discretion in excluding Dr. Gaut's expert report. It also
correctly concluded that Defendants were entitled to judgment as a
matter of law on Plaintiffs' excessive force claim. With respect
to Plaintiffs' Fourth Amendment unconstitutional arrest claim
against Rosado, however, the district court went too far.
Plaintiffs provided just enough evidence to establish a genuine
dispute over two key material facts -- whether Fernández reached
for Rosado's gun and whether Rosado knew Fernández closed the gate
barring entrance to the School hallway. The resolution of these
disputed facts must be decided by a factfinder at an ensuing trial.
And, because some of Plaintiffs' federal claims are being
reinstated, the state law claims must be resurrected as well.
These further proceedings only apply to Rosado, though, because
-32-
Plaintiffs have waived any appeal of the entry of summary judgment
against the Supervisory Defendants.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART. Each
party shall bear its own costs.
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