Opinion
CIVIL NO. 99-1613 (JAG)
April 22, 2002
OPINION AND ORDER
On March 28, 2002 the Court adopted Magistrate-Judge Aida Delgado's Report and Recommendation (Docket 74). The Court further held that the parties failed to timely submit written objections to any portion of the report and recommendation. On April 5, 2002 co-defendants Angel Burgos ("Agent Burgos"), Maria Judith Cubano ("Agent Cubano")and Fleming Castillo ("District Attorney Castillo") requested the Court to reconsider its order adopting certain portions of the Magistrate Judge's report and recommendation (Docket 75). Upon review of the record the Court extended the deadline to file objections to the Magistrate Judge's report and recommendation until April 16, 2002. (Docket No. 76). Up to April 16, 2002, the record revealed that only co defendants District Attorney Castillo, Agent Burgos and Agent Cubano had filed written objections to the Magistrate Judge's report and recommendation.
The Magistrate Judge recommended:
A. That the motion for summary judgment for those § 1983 claims brought against the Puerto Rico Police, the Special Investigation Bureau and the individually named defendants in their official capacities for compensatory damages and Injunctive relief be GRANTED and said claims DISMISSED as barred by the Eleventh Amendment;
B. That the motion for summary judgment for those § 1983 claims brought against the individually named defendants in their individual capacity for compensatory damages and injunctive relief on the basis of Eleventh Amendment immunity be DENIED;
C. That the motion for summary judgment for those § 1983 claims on the basis of lack of personal involvement be GRANTED as to defendants Justice Secretary Fuentes. Superintendent Toledo, Corrections Sub-Secretary Heredia, District Attorney Vazquez and Corrections Secretary Laboy;
D. That the motion for summary judgment as to the Issue District Attorney Castillo's absolute immunity for his prosecutorial functions be GRANTED and for actions taken during the investigation be DENIED;
E. That the motion for summary judgment on the basis of qualified Immunity as to District Attorney Castillo, Agent Burgos and Agent Cubano be DENIED; and
F. That defendants motion for summary judgment on the issue of recovery by family members for § 1983 claims be GRANTED.
Upon review of co defendants' objections the Court re-adopts those parts of the Magistrate Judge's report and recQmmendation to which no specific objection has been raised. See 28 U.S.C. § 636 (b)(1) (1994); Fed.R.Civ.P. 72(b). Thus, the Court shall only consider co defendants' objection to the Magistrate Judge's determination that plaintiffs carried out their burden of establishing a federal constitutional claim of malicious prosecution under 42 U.S.C. § 1983 and that District Attorney Castillo, Agent Burgos and Agent Cubano were not entitled to qualified immunity.
FACTUAL BACKGROUND
The factual background is taken from the magistrate judge report and recommendation.
Plaintiffs Felix Rodriguez-Mateo ("Rodriguez-Mateo"), Octavio Fernandez-Reyes ("Fernandez"), Alexander Rodriguez-Madera ("Rodriguez-Madera"), Heriberto Castro ("Castro"), Angel Morales-Colon ("Morales"), Pedro Montes ("Montes") and Winston SerranoFebus ("Serrano") were employees of the Corrections Department of Puerto Rico (Docket No. 1). Rodriguez-Mateo and Fernandez occupied the positions of Prison Superintendents (Docket No. 39). Morales and Castro were correction administration officers. (Id.); Docket No. 1. Serrano was an Executive Officer I in the Corrections Administration. (Id.) Also named as plaintiffs are the spouses of the plaintiff-employees and their conjugal partnerships.
Defendants Agent Burgos and Agent Cubano were part of a "NIE-Correccion" Task Force (Task Force) (Docket No. 35). Defendant District Attorney Castillo was a prosecuting attorney for the Commonwealth of Puerto Rico (Docket No. 41, Ex. IV).
Agents Burgos and Cubano were part of a Task Force in charge of an investigation regarding various officers of the Puerto Rico Correctional System for violations to Articles 166, 168, 201, and 262 of the Penal Code of Puerto Rico (Docket No. 35). These articles include aggravated unlawful appropriation; receiving and transporting goods illegally appropriated; use of public work or services by an officer; and, conspiracy (Docket No. 23). The alleged illegal activity consisted primarily of the unlawful appropriation of automobile parts by Puerto Rico correctional officers, said parts being the property of the Commonwealth of Puerto Rico. (Id.) Allegedly the correctional officers then proceeded to sell the parts outside the penitentiary (or penal system) or obtain the parts for their personal use. (Id.)
The Task Force was composed of two agencies and supervised by the Department of Justice (Docket No. 43, Laboy Dep.). Agent Burgos was an employee of the Corrections Administration and was appointed as an agent in the Task Force, joining the same at its inception (Docket No. 41, Ex. VI). Agent Cubano belonged to the Special Investigations Bureau and was member of the Task Force (Docket No. 41, Ex. VII). The investigation was conducted by the Special Investigations Bureau which assigns agents, has its own chain of command and has its agents prepare the operational plan (Docket No. 41, Ex. XIX). In these particular cases, the Special Investigation Bureau acted on its own until it had the case ready and then the case would be submitted to District Attorney Castillo for him to evaluate and to determine whether to initiate prosecution. (Id.)
The investigation began as a result of a Rio Piedras State Penitentiary inmate's observations of irregularities taking place in the automobile repair shop at the correctional institution (Docket No. 35). The investigation began in August of 1997 (Docket No. 41, Ex. IV). It was centered on an inmate informant named Evangelisto Martimez-peralta ("Evangelisto"). (Id.; Ex. V.) The investigation also relied upon the testimony of certain undercover agents (Docket No. 41, Ex. VII).
The agent in charge of the investigation was Cubano (Docket No. 41, Adrover Dep.). Although Agent Cubano was in charge of the investigation, she was not the original agent who interviewed Evangelisto (Docket No. 43. Cubano Dep.). Evangelisto, under custody at the time, was a citizen of the Dominican Republic known in the penal institution as "Dominiqui" (Docket No. 41, Dx. V). Agent Burgos was the direct investigator who would contact Evangelisto (Docket No. 43, Montalvo Dep.). Evangelisto would call Agent Burgos, and tell him that a crime had been committed in his presence. (Id.) Evangelisto would then be picked up, taken to the Department of Justice and interviewed by the agents and the prosecutor. (Id.)
Among the prosecutors working jointly with the Special Bureau of Investigation, was District Attorney Castillo (Docket No. 43, Cubano Dep.) District Attorney Castillo was consulted for advice while Agent Cubano was working with Evangelisto (Docket No. 43, Cubano Dep.). Agent Cubano consulted with District Attorney Castillo about any doubts she had and he was consulted by others whenever there was "a doubt." (Id.) Once the investigation was finished, Agent Cubano consulted with District Attorney Castillo to have him review the documents compiled. (Id.) District Attorney Castillo prosecuted the criminal cases of Castro, Morales, Serrano and Pedro Rodriguez-Montes (Docket No. 41. Ex. I).
DISCUSSION
The Magistrate-Judge considered that the allegations contained in the complaint support a federal constitutional claim of malicious prosecution under 42 U.S.C. § 1983 in as much as the complaint specifically alleges that the information acquired by Agent Burgos, Agent Cubano and District Attorney Castillo from Evangelisto during plaintiffs' investigation was not corroborated and no effort was made to determine the reliability of the information provided by Evangelisto prior to seeking arrest warrants. The Magistrate-Judge determined that genuine issues of material facts existed with respect to a) what information was presented to obtain the arrest warrants, and b) whether the information received from the confidential informant was corroborated in any fashion prior to seeking an arrest warrant. Inasmuch as these questions remained unanswered, the MagistrateJudge recommended that the motion for summary judgment on the basis of qualified immunity as to District Attorney Castillo, Agent Burgos and Agent Cubano be DENIED.
Co-defendants objected the Magistrate-Judge's determination and argue that the allegations contained in the complaint were insufficient to support a § 1983 constitutional claim of malicious prosecution inasmuch as a state magistrate-judge independently reviewed the reliability of the information proffered by the informant and found it to be statutorily ufficient to determine probable cause for the arrest of every plaintiff. Probable cause to indict was also independently found in the cases of co-plaintiffs Castro, Morales, Serrano, Montes, and other individuals not parties to this lawsuit. Defendants conclude that they are entitled to qualified immunity.
Qualified immunity shields government officials from civil damages for performing discretionary functions "insofar as their conduct does not violate clearly established rights of which a reasonable person would have known." See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Harlow involved an action for violations of constitutional rights against federal agents under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The analysis of a qualified immunity defense, however, is identical in actions brought under 42 U.S.C. § 1983 and Bivens. See Abreu-Guzman v. Ford, 241 F .3d 69, 73 (1st Cir. 2001).
The first inquiry is whether the constitutional right asserted by plaintiffs was clearly established at the time of the alleged violation. In Torres v. Superintendent of Police, 893 F.2d 404, 409 (1st Cir. 1990), the Court explicitly recognized the existence of a specific constitutional tort for malicious prosecution. Thus, the constitutional right asserted by plaintiffs was clearly established at the time of the alleged violation.
The second inquiry is whether a reasonable officer in the same situation would have understood that the challenged conduct violated that established right. See Aponte Matos v. Toledo Davila, 135 F.3d 182, 186 (1st Cir. 1998). The second inquiry calls into question whether a violation of the right occurred. Accordingly, we review the record to determine whether plaintiffs have made out a § 1983 constitutional claim of malicious prosecution. Morales v. Ramirez, 906 F.2d 784, 787 (1st Cir. 1990). It is well established that a malicious prosecution brought against an individual does not necessarily truncate that person's constitutional rights. Morales, 906 F.2d 787; Torres, 893 F.2d at 409; cf. Baker v. McCollan, 443 U.S. 137, 145 (1979) ("The Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted — ndeed, for every suspect released."). To assert a malicious prosecution constitutional claim plaintiffs, have the burden of showing "that the [defendants'] malicious conduct was so egregious that it violated substantive or procedural due process rights. . . ." Torres, 893 F.2d at 409. "It follows that to invoke the Due Process Clause, the complainant[sI must do more than prove in common-law terms that [they] [were] harassed and prosecuted in bad faith and without probable cause by government officials acting under color of their authority. The `more' comprises an ability to show that conduct was "so egregious as to subject the individual to a deprivation of constitutional dimension.' Torres, 893 F.2d at 409; accord Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir. 1987). In other words, the challenged behavior, before becoming constitutionally actionable, must, substantively, `shock the conscience,' Barnier v. Szentmiklosi, 810 F.2d 594, 599 (6th Cir. 1987), or, Procedurally, `deprive plaintiff[s] of liberty by distortion and corruption of the processes of law,' Torres, 893 F.2d at 410." Morales, 906 F.2d at 787.
Here plaintiffs argue that the information acquired by Agent Burgos, Agent Cubano and District Attorney Castillo from a confidential informant during plaintiffs' criminal investigation was not corroborated and no effort was made to determine the reliability of the confidential informant prior to seeking arrest warrants against plaintiffs. While there may be cases in which the instigation of a criminal prosecution based on the information provided by an uncorroborated informant might constitute a deprivation of constitutional rights, there is no evidence in the instant case to justify a due process concern. (Constitutional claim for malicious prosecution was not stated, where the very worst that could be said was that defendants, or some of them, instigated criminal prosecution manipulatively, based on a slanted investigation and without probable cause.) Morales, 906 F.2d at 790.
Here, the record shows that plaintiffs were "indicted in absentia" (Docket No. 1). It appears, however, that arrest and search warrants were issued subsequent to a finding of probable cause by a magistrate judge (Docket No. 41, Exs. II, III); See P.R. Rule Crim. P. 6. Thus, a magistrate judge, after reviewing the work product of the investigation and the information provided by Evangelisto, found probable cause to issue arrest warrants against all plaintiffs. (Id.) Plaintiffs and other individuals not parties to this lawsuit were then arrested and placed under custody (Docket No. 35).
A preliminary hearing for a finding of probable cause to indict was held. At the preliminary hearing, the magistratejudge found that the evidence on the counts was sufficient to send the case to trial as to plaintiffs Castro, Morales, Serrano, Montes, and other individuals not parties to this lawsuit (Docket No. 35). No probable cause, however, was found against Rodriguez-Mateo, Fernandez and Rodriguez-Madera. (Id.)
Under Puerto Rico law, an accused has the right to call witnesses and cross-examine witnesses produced by the State, during a preliminary hearing. Hence during this adversary proceeding coplaintiffs Castro, Morales, Serrano and Montes were afforded the opportunity to contest the reliability of the information provided by the Evangelisto, yet the magistrate judge found that the evidence was sufficient to instigate a criminal prosecution.
As a result of the preliminary hearing, District Attorney Castillo prosecuted thirteen criminal cases (Docket No. 41, Ex. XI). Nine convictions resulted from those cases, all of which were the result of guilty pleas. (Id.) Serrano, Morales and Castro were, however, acquitted and the case against Pedro Montes was dismissed for speedy trial violations. (Docket No. 43, Castillo Dep.).
On this record, even if plaintiffs were to convince a jury that District Attorney Castillo, Agent Burgos and Agent Cubano, initiated the criminal prosecutions, based on the uncorroborated investigation of an informant, the proper avenue of relief would be a tort action under Puerto Rican law, see, e.g., P.R. Laws Ann. tit. 31, § 5141; and not a section 1983 claim, inasmuch as the acts and omissions complained of were neither "conscience-shocking" nor "so egregious as to violate due process". Morales v. Ramirez, 906 F.2d 784, 790 (1st Cir. 1990).
Accordingly, inasmuch as plaintiffs failed to carry their burden of establishing a federal constitutional claim of malicious prosecution, "it necessarily follows that [they] could not carry the still greater burden of blunting [defendants] qualified immunity defense." (Id.) Hence, we do not adopt the Magistrate-Judge's Recommendation to DENY summary judgment on the basis of qualified immunity as to District Attorney Castillo, Agent Burgos and Agent Cubano. Accordingly, we GRANT District Attorney Castillo's, Agent Burgos' and Agent Cubano's motion for summary judgment based on qualified immunity and adopt the remaining recommendations of the Magistrate Judge's Report and Recommendation.
CONCLUSION
For the foregoing reasons, the Court GRANTS District Attorney Castillo's, Agent Burgos' and Agent Cubano's motion for summary judgment based on qualified immunity and ADOPTS the remaining recommendations of the Magistrate Judge's Report and Recommendation. The Court dismisses plaintiffs' state law claims without prejudice, pursuant to 28 U.S.C. § 1367. Judgment will enter accordingly.