Cruz v. Department of Justice

Full title: JOSE G. CRUZ, Plaintiff, v. DEPARTMENT OF JUSTICE, COMMONWEALTH OF PUERTO…

Court: United States District Court, D. Puerto Rico

Date published: Jun 4, 2007

CIVIL NO. 05-2258 (FAB) (D.P.R. Jun. 4, 2007)

Opinion

CIVIL NO. 05-2258 (FAB).

June 4, 2007

REPORT AND RECOMMENDATION

CAMILLE VELEZ-RIVE, Magistrate Judge

INTRODUCTION

Plaintiff José G. Cruz (hereinafter "Cruz") filed this action seeking damages against above-captioned co-defendants and in particular co-defendants the Commonwealth of Puerto Rico, Department of Justice, Hon. Roberto Sánchez Ramos ("Sánchez Ramos"), as Secretary of Justice of the Commonwealth of Puerto Rico in his personal and official capacity, and Cándida Gutiérrez Pagán ("Gutiérrez Pagán"), as Assistant District Attorney for the Department of Justice of the Commonwealth of Puerto Rico, in her personal and official capacity. Plaintiff Cruz seeks declaratory judgment and damages pursuant to Title 42, United States Code, Section 1983 to obtain redress for alleged defendants' violations of plaintiff's civil and constitutional rights under color of state law by depriving him of his liberty and due process of law. Complaint ¶ 1.

Co-defendants the Commonwealth of Puerto Rico, Sánchez Ramos and Gutiérrez Pagán filed a Motion for Judgment on the Pleadings. (Docket No. 19). Plaintiff Cruz filed a response opposing same (Docket No. 24).

These motions were referred to this Magistrate Judge for report and recommendation. (Docket Nos. 25, 26).¹

1 This Magistrate Judge has ruled, by separate report and recommendation, as to the Office of Court Administration of the Commonwealth of Puerto Rico's Motion to Dismiss (Docket No. 10).

BACKGROUND

On December 5, 2005, plaintiff Cruz filed a Complaint against all defendants requesting compensatory and injunctive relief for violations of his constitutional rights under the Civil Rights Act, Section 1983, the First and Fourteenth Amendments of the Constitution of the United States. Plaintiff Cruz claims defendants participated in the issuance and execution of an unlawful warrant of arrest and incarcerated him despite having been previously served with a notice of appeal which would have automatically stayed any procedure to execute a sentence he had received for payment of a $2,000.00 penalty for a conviction of having violated the Governmental Code of Ethics of Puerto Rico. The sentence was entered on December 6, 2004, in a criminal case by the People of Puerto Rico against herein plaintiff Cruz, therein defendant, Case No. KLE 2002G00685, in the Superior Court of Puerto Rico.

This federal claim submits co-defendants Sánchez Ramos, Gutiérrez Pagán and the Commonwealth of Puerto Rico, acting under color of state law, and upon no serious and comprehensive investigation conducted, illegally arrested and detained plaintiff Cruz in violation of his constitutional rights. Complaint ¶¶ 1-21.

Co-defendants Sánchez Ramos and Gutiérrez Pagán, without submitting to the jurisdiction of this court, filed a motion for judgment on the pleadings under Rule 12(c) of the Fed.R.Civ.P. claiming the allegations of the complaint as to the Commonwealth of Puerto Rico and as to co-defendants Sánchez Ramos and Gutiérrez Pagán, in their official capacity, are barred by Eleventh Amendment immunity. Additionally, co-defendants Sánchez Ramos and Gutiérrez Pagán aver that any action under Section 1983 should be dismissed because plaintiff Cruz has failed to raise a prima facie cause of action for which a relief may be granted.

STANDARD FOR MOTION FOR JUDGMENT ON THE PLEADINGS

When deciding a Motion for Judgment on the Pleadings, the standard appears under Federal Rule of Civil Procedure 12(c). The Court must accept as true all well-pleaded factual claims and indulge all reasonable inferences in plaintiffs' favor. Federal Rule 12(c) allows a party to move for judgment on the pleadings at any time "[a]fter the pleadings are closed but within such time as not to delay the trial." Id. Because such motion in the majority calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the non-movant and draw all reasonable inferences therefrom to the non-movant's behoof.Rivera-Gómez v. de Castro, 843 F.2d 631, 635 (1^st Cir. 1988); 5C Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1368 (3d ed. 2004). The court may supplement the facts contained in the pleadings by considering documents fairly incorporated therein and facts susceptible to judicial notice. There is no resolution of contested facts in connection with a Rule 12(c) motion: a court may enter judgment on the pleadings only if the properly considered facts conclusively establish the movant's point.Rivera-Gómez, 843 F.2d at 635. See R.G. Financial Corp. v. Vergara-Núñez, 446 F.3d 178, 182 (1^st Cir. 2006).

A motion for judgment on the pleadings and a motion to dismiss are ordinarily accorded much the same treatment. See Collier v. City of Chicopee, 158 F.3d 601, 602 (1^st Cir. 1998); Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 470 n. 2 (7^th Cir. 1997). One must view the facts contained in the pleadings in the light most flattering to the non-movants (herein the defendants) and draw all reasonable inferences therefrom in their favor. Like Rule 12(b)(6), Rule 12(c) does not allow for any resolution of contested facts; rather, a court may enter judgment on the pleadings only if the uncontested and properly considered facts conclusively establish the movant's entitlement to a favorable judgment. Rivera-Gómez, 843 F.2d at 635. There is, of course, a modest difference between Rule 12(c) and Rule 12(b)(6) motions. A Rule 12(c) motion, unlike a Rule 12(b)(6) motion, implicates the pleadings as a whole. See Aponte-Torres v. University Of Puerto Rico, 445 F.3d 50, 54-55 (1^st Cir. 2006).

ANALYSIS

A. Eleventh Amendment Immunity.

Co-defendants the Commonwealth of Puerto Rico, Sánchez Ramos and Gutiérrez Pagán submit they are entitled to dismissal of plaintiff Cruz' claims in their official capacities, for being barred by the Eleventh Amendment.

The Eleventh Amendment proscribes that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." 1 U.S.C. Const. Amend. XI.

The Eleventh Amendment bars suits from being brought in federal courts for monetary damages against states, unless the state being sued waives its immunity or consents to being sued. The Eleventh Amendment has also been interpreted to bar suits for monetary relief against the agencies or instrumentalities of a state and against its officers in their official capacities.Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099 (1985);Culebras Enterprises Corp. v. Rivera Ríos, 813 F. 2d 506, 516 (1^st Cir. 1987).

Eleventh Amendment immunity does not solely protect the State. Rather, since a State only exists through its instrumentalities, Eleventh Amendment immunity also extends to arms or "alter egos" of the State. Ainsworth Aristocrat Int'l Pty. Ltd. v. Tourism Co. of Puerto Rico, 818 F.2d 1034, 1036 (1^st Cir. 1987); see Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568 (1977); Sánchez-López v. Fuentes Pujols, 247 F. Supp. 2d 37 (D. Puerto Rico 2002).

Notwithstanding the above discussed, Congress amended the Civil Rights Act of 1964 in 1972 to include public employees, allowing for the prosecution of private rights of action against States that practiced discrimination, but limited to equitable remedies. Congress added relief for compensatory damages in 1991. See Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1072 (1991) (codified in 42 U.S.C. § 1981a(a)(1). Thus, in a similar vein it has been found that Congress has expressly waived the immunity of the State insofar as cases under Title VII where a state government is sued for certain actions of employment discrimination. Espinal Domínguez v. Commonwealth of Puerto Rico, 352 F.3d 490 (1^st Cir. 2003). See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666 (1976) ( concluding that Title VII's authorization of federal-court jurisdiction to award money damages against a state government to individuals subjected to employment discrimination does not violate the Eleventh Amendment since Congress was exercising its § 5 remedial powers). It then follows that the substantive provisions of the Fourteenth Amendment themselves offer a powerful reason to provide a federal forum. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 279, 117 S.Ct. 2028, 2039 (1997).²

2 See Espinal Domínguez, 352 F.3d at 490 (discussing aspects of Title VII and the Eleventh Amendment as to the Commonwealth of Puerto Rico).

1. Commonwealth of Puerto Rico's Sovereign Immunity.

The Commonwealth of Puerto Rico is considered a state for purposes of the Eleventh Amendment. Metcalf Eddy, Inc. v. Puerto Rico Aqueduct Sewer Authority, 991 F. 2d 935, 939 n. 3 (1^st Cir. 1993); De León López v. Corporación Insular de Seguros, 931 F. 2d 116, 121 (1^st Cir. 1991); Puerto Rico Ports Auth. v. M/V Manhattan Prince, 897 F.2d 1, 9 (1^st Cir. 1990).

Over the last two decades, the First Circuit consistently has held that Puerto Rico is considered a "State" for Eleventh Amendment purposes, and therefore Eleventh Amendment applies with full force to the Commonwealth of Puerto Rico. See, e.g., Negrón Gaztambide v. Hernández Torres, 145 F.3d 410 (1^st Cir. 1998);Metcalf, 991 F.2d 935, 939 n. 3 (1^st Cir. 1993); Aviles-Martínez v. Monroig, 963 F.2d 2, 8 (1^st Cir. 1992); De León López, 931 F.2d 116, 121 (1^st Cir. 1991); Culebras, 813 F.2d at 516;Ainsworth Aristocrat Int'l Pty., Ltd. v. Tourism Co. of P.R., 818 F.2d 1034 (1^st Cir. 1987); Fernández v. Chardón, 681 F.2d 42, 59 n. 13 (1^st Cir. 1982) (Puerto Rico enjoys the full benefits of the Eleventh Amendment); Ezratty v. Com. of Puerto Rico, 648 F.2d 770, 776 n. 7 (1^st Cir. 1981) ("The principles of the Eleventh Amendment, which protect a state from suit without its consent, are fully applicable to the Commonwealth of Puerto Rico.");Litton Indus., Inc. v. Colón, 587 F.2d 70 (1^st Cir. 1978) (action against Puerto Rico barred by Eleventh Amendment, unless immunity is expressly abrogated by Congress acting under the Fourteenth Amendment).

Additionally, insofar as civil rights claims, regardless of whether Puerto Rico's sovereign immunity is constitutional or common-law in nature, Congress did not abrogate that immunity when it granted federal district court sitting in Puerto Rico jurisdiction to enforce provisions of § 1983 on basis equal to that conferred on district courts in the states.

Furthermore, the Department of Justice of the Commonwealth of Puerto Rico, as an executive department of the government of Puerto Rico lacking an independent juridical personality, is generally sheltered by Puerto Rico's immunity from federal suit. See Maysonet-Robles v. Cabrero, 323 F.3d 43 (1^st Cir. 2003).

Thus, the Commonwealth of Puerto Rico and the Department of Justice of the Commonwealth of Puerto Rico, included as co-defendants in this federal claim and absent any possible controversy, would be entitled to sovereign immunity, which has not been waived. As such, judgment on the pleadings is to be GRANTED as to the Commonwealth of Puerto Rico and the Department of Justice of the Commonwealth of Puerto Rico.

2. Co-defendants Sánchez Ramos' and Gutiérrez Pagán's Immunity.

The Eleventh Amendment bars suits against the Commonwealth of Puerto Rico, its instrumentalities and agencies, and against state officials acting in an official capacity. Codefendants Sánchez Ramos and Gutiérrez Pagán have requested immunity in their official capacity as state agents. Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873 (1985).

There is no heightened pleading standard in civil rights cases. See Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66-67 (1^st Cir. 2004). A district court considering a Rule 12(b)(6) motion must view the plaintiff's complaint through the prism of Fed.R.Civ.P. 8(a)(2)'s notice pleading requirements.Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 5 (1^st Cir. 2005). "A complaint satisfies that standard if it contains 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and 'give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id., see alsoConley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99 (1957).

Regarding co-defendant Sánchez Ramos, under the rational of notice pleading requirements, same may be considered minimal — but "minimal requirements are not tantamount to nonexistent requirements." Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1^st Cir. 1988). Even within the generous confines of notice pleading, courts must continue to "eschew . . . reliance on bald assertions [and] unsupportable conclusions." Chongris v. Bd. of Appeals, 811 F.2d 36, 37 (1^st Cir. 1987).

Bearing this in mind, there seems no need to delve further as to entitlement to immunity as to co-defendant Sánchez Ramos since, as will be discussed herein below, there is no cause of action and no prima facie civil rights violation attributable to this co-defendant in his personal nor his official capacity. Accordingly, claims against Sánchez Ramos in his personal and official capacity should be subject of judgment on the pleadings.

As to co-defendant Gutiérrez Pagán, who is alleged to have acted under state law pursuant to the authority and power of her position as a state district attorney, the Eleventh Amendment would not shield a civil rights claim that entails personal liability. Still, no injunctive relief has been claimed or available as to this defendant, ³ for which any claim in her official capacity would become a monetary claim against the Commonwealth of Puerto Rico and is sanctioned by Eleventh Amendment or when drawn with a more fine painted brush, a determination that Section 1983 claims are only against "persons acting under color of state law". See, e.g., Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S.Ct. 900 (1984). See also Nereida-González v. Tirado-Delgado, 990 F.2d 701, 705 (1^st Cir. 1993) ("An official capacity suit is, in reality, a suit against the governmental entity, not against the governmental actor.").⁴

3 Eleventh Amendment immunity does not bar prospective injunctive relief against official-capacity defendants. Redondo-Borges v. U.S. Dept. of Housing, 421 F.3d 1 (1^st Cir. 2005).

4 Defendants may be correct that money damages are unavailable against the Commonwealth in this action (and, therefore, against the individual defendants in their official capacities), but not necessarily for Eleventh Amendment reasons. The shortest, most direct route to that result evolves out of the fact that neither a State nor its officers in their representative capacities are "persons" within the meaning of 42 U.S.C. § 1983 with respect to actions for damages. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, (1989); Johnson v. Rodriguez, 943 F.2d 104, 108 (1^st Cir. 1991); see also Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219 (1^st Cir. 2003).

Considering the above discussion, claims against co-defendant Gutiérrez Pagán in her official capacity should be subject of judgment on the pleadings as requested.

B. Failure to Present a Prima Facie Civil Rights Claim.

Co-defendants Sánchez Ramos and Gutiérrez Pagán also submit dismissal is warranted for plaintiff Cruz has failed to present sufficient facts to support a cause of action for civil rights violations as to these co-defendants and the existence of a causal connection between the acts alleged to have been committed by these co-defendants and the damages claimed by plaintiff.

The complaint submits plaintiff Cruz was arrested upon orders of Hon. Bárbara M. Sanfiorenzo when co-defendant Gutiérrez Pagán failed to notify the state judge plaintiff Cruz had filed an appeal to his conviction and sentence which resulted in a stay all proceedings to execute the $2,000.00 penalty imposed by the state sentence. However, the state judge was already aware of plaintiff Cruz' appeal, for which it has been argued that notice of the filing of an appeal would have made no difference.

1. Co-defendant Sánchez Ramos.

Plaintiff has not raised in the complaint any direct participation in the events by codefendant Sánchez Ramos. No personal involvement is claimed as to co-defendant Sánchez Ramos. Complaint ¶¶ 5-7. He is being sued in his personal and official capacity as the Secretary of Justice of the Commonwealth of Puerto Rico.

In cases where plaintiff alleges that a supervisor's conduct caused a constitutional deprivation, the Supreme Court has firmly rejected respondeat superior as a basis for § 1983 liability of supervisory officials. Voutour v. Vitale, 761 F.2d 812, 819 (1^st Cir. 1985); Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018 (1978). It has been established that § 1983 "should not be constructed to include vicarious liability, which is based on considerations of public policy, rather than fault or causation." Id.

Thus, it is firmly settled law that liability under section 1983 cannot be predicated upon a theory of respondeat superior. See Gutiérrez-Rodríguez v. Cartagena, 882 F.2d 553, 562 (1^st Cir. 1989). The requirement of direct participation is essential to a claim under § 1983.

As such, a supervisor must be found liable for his/her own acts of omissions. Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 582 (1^st Cir. 1994); Gutiérrez-Rodríguez, 882 F.2d at 562;Figueroa v. Aponte-Roque, 864 F.2d 947 953 (1^st Cir. 1989). Liability is imposed if there is a showing that the "supervisor's conduct or inaction amounted to a reckless or callous indifference to the constitutional rights of others."Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (1^st Cir. 1999) ( quoting Gutierrez-Rodríguez, 882 F.2d at 562). Actual knowledge of the offending behavior is not required, only that the supervisor "would have known of it but for his deliberate indifference or willful blindness." Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1^st Cir. 1998) ( quoting Maldonado-Denis, 23 F.3d at 582). If such showing is made, then the supervisor is responsible for the foreseeable consequences of such conduct if he had the power and authority to alleviate it. Id. The conduct or inaction of the supervisor must constitute a reckless or callous indifference to the constitutional rights of others.Barreto-Rivera, 168 F.3d at 48. If the supervisor's behavior demonstrates deliberate indifference to conduct that is itself violative of a plaintiff's constitutional rights, he or she may be held liable for what he or she does or fails to do.Maldonado-Denis, 23 F.3d at 582; Santiago Irizarry v. Maldonado Aponte, 296 F.Supp.2d 146, 151 (D. Puerto Rico 2003).

There must also be an "'affirmative link' between the street-level misconduct and the action, or inaction, of any supervisory officials." Gutiérrez-Rodríguez, 882 F.2d at 562 ( quoting Woodley v. Town of Nantucket, 645 F.Supp. 1365, 1372 (D.Mass. 1986)) ( quoting Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598 (1976)). González Pérez v. Gómez Aguila, 312 F.Supp.2d 161, 166 (D. Puerto Rico 2004).

This causation requirement can be satisfied even if the supervisor did not participate directly in the conduct that violated a citizen's rights; for example, a sufficient causal nexus may be found if the supervisor knew of, overtly or tacitly approved of, or purposely disregarded the conduct. Consequently, deliberate indifference to violations of constitutional rights can forge the necessary linkage between the acts or omissions of supervisory personnel and the misconduct of their subordinates. Maldonado-Denis, 23 F.3d at 582.

Under Section 1983, absent participation in the challenged conduct, a supervisor can be held liable only if (1) the behavior of his subordinates results in a constitutional violation and (2) the supervisor's action or inaction was affirmatively linked to the behavior in the sense that it could be characterized as supervisory encouragement, condonation or acquiescence or gross negligence of the supervisor amounting to deliberate indifference. See Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16 (1^st Cir. 2006); Whitfield v. Melendez-Rivera, 431 F.3d 1 (1^st Cir. 2005).

Plaintiff Cruz claims co-defendant Sánchez Ramos, being the Secretary of Justice of the Commonwealth of Puerto Rico, allowed and participated in the execution of the unlawful warrant to arrest and incarcerate him despite the Department of Justice having been served with the notice of appeal which would automatically stay any procedure to execute the sentence imposed upon him and withheld from the state judge having received copy of plaintiff's appeal. Complaint ¶¶ 7, 11. However, at the time of plaintiff's arrest, pursuant to a warrant of arrest issued by state judge Bárbara Sanfiorenzo, the agents were in contact solely with the state prosecutor Gutiérrez Pagán. Id. ¶¶ 13, 15-16. Plaintiff Cruz states no action or inaction by the Secretary of Justice, in either his official or personal capacity, ⁵ to establish a causal link between the events which caused his arrest and detention, notwithstanding the appeal, and the damages claimed and co-defendant Sánchez Ramos.⁶

5 Plaintiff's response to defendants' motion for judgment on the pleadings acknowledges that as to the Attorney General (meaning the Secretary of Justice co-defendant Sánchez Ramos) the complaint does not aver specific knowledge and/or direct action by him in the course of the events that led to the plaintiff's unlawful incarceration and thus his constitutional violations. Response ¶ 21.

6 An affirmative link requirement contemplates proof that supervisor's conduct led inexorably to constitutional violation.Hegarty v. Somerset County, 53 F.3d 1367 (1^st 1995).

In light of the above discussed, the complaint fails to present a prima facie cause of action as to co-defendant Sánchez Ramos, for which it is recommended that judgment on the pleadings be GRANTED as to co-defendant Sánchez-Ramos in his personal and official capacity.

2. Co-defendant Gutiérrez Pagán.

a) Gutiérrez Pagán's Personal Capacity.

Contrary to above discussed as to co-defendant Sánchez Ramos, plaintiff Cruz claims in the federal complaint and attachments thereto that co-defendant Gutiérrez Pagán, the state district attorney, had a personal and direct involvement in the events leading to his arrest and incarceration. Plaintiff submits co-defendant Gutiérrez Pagán was notified on January 4, 2005, with copy of the notice of appeal with the seal of the Appellate Court, by certified mail, return receipt requested. Copy was also served the same day to the Puerto Rico District Attorneys' Office, San Juan, Puerto Rico. Complaint, ¶ 4, Exhibit II. It is also alleged, codefendant Gutiérrez Pagán proactively promoted the unlawful arrest and was informed by the special agents and police officers from the headquarters of the Police Department of the details of plaintiff's arrest on January 21, 2005. Complaint ¶ 12. At the time plaintiff Cruz was arrested, he provided a copy of the sealed appealed order to the arresting officer, who thereafter consulted by telephone with co-defendant Gutiérrez Pagán and indicated having instructions from said co-defendant to arrest plaintiff. Id. ¶ 13. During his detention at the Police Headquarters, the agents were in communication with co-defendant Gutiérrez Pagán and plaintiff Cruz' attorney. Co-defendant Gutiérrez Pagán wanted the agents to take plaintiff directly to jail, while counsel indicated he was to be taken to court since the Judge had already informed she would order the release of plaintiff Cruz. Id. ¶ 15. Upon conversations between co-defendant Gutiérrez Pagán and the arresting officer Roberto Benvenutti, plaintiff Cruz was jailed in the basement of the Superior Court in Hato Rey, Puerto Rico for more than seven hours until he was ordered released. Id. ¶ 16.

A perusal of the documents in record makes, at this stage of proceedings, allegations of damages and constitutional violations sufficient to meet the prima facie burden, as well as the causal connection between same and co-defendant Gutiérrez Pagán's actions. Therefore, it is recommended that judgment on the pleadings as to the cause of action against co-defendant Gutiérrez Pagán, in her personal capacity, be DENIED.

b) Gutiérrez Pagán's Absolute Immunity.

Co-defendant Gutiérrez Pagán has also raised entitlement to absolute immunity for having acted as advocate in the performance of her official duties as state district attorney in handling plaintiff's Cruz case. The absolute immunity attributed to the judiciary and to grand jurors or witnesses is submitted when comparing the prosecutor's quasi-judiciary functions in the instant case.

Notwithstanding co-defendant Gutiérrez Pagán's averment as to absolute immunity, prosecutors are public officials and officers of the court and when giving legal advice to the police, they have only qualified immunity. Burns v. Reed, 500 U.S. 478, 496, 111 S.Ct. 1934 (1991) (emphasis supplied). "[T]he absence of absolute immunity for the act of giving legal advice may cause prosecutors to consider their advice more carefully. . . ." Id. at 495, 111 S.Ct. 1934. The arguments of absolute immunity raised in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984 (1976) and, as submitted by co-defendant Gutiérrez Pagán, entail issues considering the quasi-judicial actions of a prosecutor for unlawful prosecution charges. In Imbler, state prosecuting attorney who acted within the scope of his duties in initiating and pursuing criminal prosecution and in presenting state's case was considered to enjoy absolute immunity from civil suit for damages. Subsequently in Reed, the Highest Court clarified there was no absolute immunity for a state prosecutor in giving advice to the police.⁷

7 In Burns v. Reed the Highest Court found state prosecutor was absolutely immune from liability for damages under § 1983 for participating in probable cause hearing. However, state prosecutor was not entitled to absolute immunity for giving legal advice to police, there being no historical or common-law support for extending absolute immunity in such cases.

From plaintiff Cruz' submission in the complaint, including the accompanying exhibit, there is a discrepancy on whether the filing of the appeal, without the posting of bail on appeal, would stay all proceedings and execution of the sentence imposed by the state court. Complaint, Exhibits 5, 6. This issue may allow co-defendant Gutiérrez García to submit qualified immunity, which cannot be ascertained at this stage of proceedings nor has it been properly argued by defendants. As such, it is recommended that the judgment on the pleadings resting solely on absolute immunity as grounds for dismissal requested as to co-defendant Gutiérrez Pagán be DENIED.

CONCLUSION

In view of the foregoing, it is recommended that the Motion for Judgment on the Pleadings BE GRANTED IN PART AND DENIED IN PART (Docket No. 19), as follows:

1) Judgment on the pleadings be GRANTED as to the Commonwealth of Puerto Rico and the Department of Justice of the Commonwealth of Puerto Rico;

2) Judgment on the pleadings be GRANTED as to co-defendant Hon. Roberto Sánchez Ramos in his personal and official capacity;

3) Judgment on the pleadings be GRANTED as to co-defendant Candida Gutiérrez Pagán in her official capacity;

4) Judgment on the pleadings be DENIED as to co-defendant Candida Gutiérrez Pagán in her personal capacity.

IT IS SO RECOMMENDED.

The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1^st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1^st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").