Camacho Pacheco v. Medina Vargas

Opinion

USCA1 Opinion

July 11, 1994         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                                     
                                 ____________________

        No. 93-2347
                                JUAN CAMACHO-PACHECO,

                                Plaintiff, Appellant,

                                          v.

                            LUIS A. MEDINA-VARGAS, ET AL.,

                                Defendants, Appellees.

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        No. 93-2348
                          ANTONIO RODRIGUEZ-TORRES, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                            LUIS A. MEDINA-VARGAS, ET AL.,

                                Defendants, Appellees.

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APPEALS FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________

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Before

                              Torruella, Cyr and Boudin,

                                   Circuit Judges.
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Roberto Buso-Aloy,  with whom Harry  Anduze Montano was  on brief
             _________________             _____________________
        for appellants Rodriguez, et al.

Francisco  R. Gonzalez,  with  whom Jesus  Hernandez Sanchez  and
             ______________________              ________________________
        Hernandez Sanchez  Law  Firm  were  on brief  for  appellant  Camacho-
        ____________________________
        Pacheco.
             Edgardo Rodriguez-Quilichini, Assistant  Solicitor General,  with
             ____________________________
        whom Pedro  A. Delgado-Hernandez, Solicitor General,  and Carlos Lugo-
             ___________________________                          ____________
        Fiol, Deputy Solicitor General, were on brief for appellees.
        ____

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Per Curiam.    During  the evening of  March 10,  1990,
                    Per Curiam.
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          Officer  Luis Medina Vargas arrived by unmarked patrol car in the

          Caimito Ward of  Yauco, Puerto Rico, accompanied  by his partner,

          Antonio Rodriquez.  Medina, who believed that he had come upon an

          illegal  street-side "dice"  game,  jumped from  the patrol  car,

          announced himself  as a police  officer, and fatally  shot Manuel

          Camacho Rodriquez in the back.  Camacho was unarmed.  

                    In August 1991, Camacho's  family filed suit in federal

          district court  against Medina,  his partner, and  several police

          department  supervisors,  pursuant  to 42  U.S.C.     1983.   The

          complaint alleged,  inter alia, that Medina's  partner had failed
                              _____ ____

          to take reasonable measures at the scene to prevent the shooting,

          and  that  Medina's  supervisors  had  demonstrated  reckless  or

          callous indifference  to Camacho's constitutional  rights by  (i)

          maintaining  deficient police  recruiting procedures  and failing

          adequately  to  train or  supervise  Camacho  for this  "special"

          patrol,  (ii) ignoring previous  administrative complaints lodged

          against  Camacho, and  (iii)  permitting  department-wide use  of

          excessive force.   The district court  ultimately granted summary

          judgment for the partner and the supervisors.

                    A de  novo review of  the summary judgment  record, see
                      __  ____                                          ___

          Fed. R. Civ. P. 56(c); Gaskell v. The Harvard Coop. Soc'y, 3 F.3d
                                 _______    _______________________

          495,  497  (1st Cir.  1993), leads  us  to conclude  that summary

          judgment was proper. 

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First,  the  claim  against  Medina's  partner  falters

          because  all  record evidence  indicates  that  Medina fired  his

          weapon a split second  after jumping from the patrol  car, before

          his partner even had time to shift the vehicle into park.

                    Second, the record  is similarly deficient as  concerns

          appellants' claims against Medina's supervisors:  

                    Supervisor liability [under section 1983] may
                    not be predicated upon a theory of respondeat
                                                       __________
                    superior. . . .   Moreover, a supervisor can-
                    ________
                    not  be liable  for  merely  negligent  acts.
                    Rather, a supervisor's acts or omissions must
                    amount to a reckless or  callous indifference
                    to the constitutional rights  of others.  "An
                    official  displays  such reckless  or callous
                    indifference when it would be manifest to any
                    reasonable official that his conduct was very
                    likely to violate an individual's rights."

          Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91-92 (1st Cir.
          _______________    _________________

          1994) (citations  omitted).   In order  to surmount  the required

          evidentiary threshold, appellants  needed to show  "'an "affirma-

          tive [causal] link"  between the street  level of misconduct  and

          the action  or inaction  of supervisory officials.'"   Gutierrez-
                                                                 __________

          Rodriguez  v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989) (cita-
          _________     _________

          tion omitted).

                    None of the evidence adduced by appellants even remote-

          ly suggests that Medina's supervisors were or should have been on

          notice that  Medina posed a danger  to the public.   There was no

          evidence that  Medina's prior conduct demonstrated an inclination

          or tendency to use  excessive force, nor that the  police depart-

          ment  routinely  used excessive  force.    Absent such  evidence,

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appellants could  not establish  that  the defendant  supervisors

          knowingly instituted or maintained a recruiting system ill-suited

          to rooting out  dangerous recruits.  See  Febus-Rodriguez, 4 F.3d
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          at  92 (noting that summary judgment record must show that super-

          visor knew  of recruiting and training  problems, knowledge which

          reflected a "conscious policy" decision to hire or  retain incom-

          petent officers).  

                    Nor  was  there  evidence  to  substantiate appellants'

          conclusory contentions  that the sort of gambling patrol in which

          Medina was engaged is a policing  task requiring "special" train-

          ing  or constant supervision by superior officers.  Medina gradu-

          ated from the police  academy in 1986, having taken  such courses

          as "basic police  tactical operations" and  "use and handling  of

          firearms."  During  the next four years,  Medina served primarily

          as a traffic officer, earning numerous commendations for exempla-

          ry  police service  (e.g., apprehension  of murder  suspects) and
                               ____

          professional demeanor.  He  was honored as Policeman of  the Year

          in 1989-90.  Official police department files contain no adminis-

          trative complaints against Medina  prior to the Camacho shooting.

          Cf. id.  at  93-94 (summary  judgment  awarded where  five  prior
          ___ ___

          administrative complaints were "unrelated" to the violent activi-

          ty giving rise to plaintiff's suit); but cf. Gutierrez-Rodriguez,
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          882 F.2d  at 564 (finding  supervisor liability based  on several

          prior  complaints  of  brutality).   Appellants  made  conclusory

          allegations in their  complaint that Medina  was "known," on  the
          ___________

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police force and in  the community, for aggressive  behavior, and

          that  his supervisors engaged in a systematic cover-up of citizen

          complaints.  But they offered no competent evidence in support of

          these allegations.  

                    Given the dearth of competent evidence, and the failure

          to request  an extension of  the discovery deadline  as permitted

          under  Fed. R.  Civ. P.  56(f), Resolution  Trust Corp.  v. North
                                          _______________________     _____

          Bridge Assocs., Inc., __ F.3d ___, ___ (1st Cir. 1994) [1994 U.S.
          ____________________

          App. LEXIS 9358, at *10-13 (1st  Cir. May 2, 1994)], the district

          court correctly concluded that appellants failed to demonstrate a

          trialworthy  issue as  to whether  the defendant  supervisors had

          reason  to know  that Medina  possessed a  dangerous or  volatile

          disposition.   Accordingly, the  district court judgment  must be

          affirmed.

                    Affirmed.
                    Affirmed
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