
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1136                          AMARILIS PARRILLA-BURGOS, ET AL.,                               Plaintiffs - Appellants,                                          v.                           FELIX HERNANDEZ-RIVERA, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                         and DiClerico, Jr.,* District Judge.                                              ______________                                _____________________               Joan  S.  Peters,  with  whom  Andr s  Guillemard-Noble  and               ________________               ________________________          Nachman, Santiago & Guillemard were on brief for appellants.          ______________________________               John F. Nevares,  with whom  Lizzie M. Portela  and Smith  &               _______________              _________________      ________          Nevares were on brief for appellee Carlos J. L pez-Feliciano.          _______               Roxanna Badillo-Rodr guez, Assistant Solicitor General, with               _________________________          whom  Carlos  Lugo-Fiol,  Solicitor  General,  and  Edda Serrano-                _________________                             _____________          Blasini, Deputy  Solicitor General,  were on brief  for appellees          _______          Fernando V zquez-Gely, Felipe Aponte-Ortiz, Angel  L. D az, Angel          L. Hern ndez-Col n and Luis E. L pez-Lebr n.                                 ____________________                                    March 19, 1997                                 ____________________                                        ____________________              Of the District of New Hampshire, sitting by designation.                    DiClerico, District  Judge.  The  plaintiffs, relatives                    DiClerico, District  Judge.                               _______________          of the decedent, Lionel Galletti Roque ( Galletti ), brought this          action under 42  U.S.C.   1983 against the defendants, members of          the  Puerto  Rico Police  Department,  seeking  damages allegedly          suffered  when  one  of the  defendants,  F lix  Hern ndez Rivera          ( Hern ndez ), shot and killed Galletti  during a fight at a bar.          The district  court  granted summary  judgment  in favor  of  the          defendants, finding that  Hern ndez, who was on  medical leave at          the time  of the shooting,  was not acting  under color of  state          law.  The district court  initially denied the defendants  motion          for summary  judgment, but reconsidered  that ruling in  light of          our decision  in Mart nez v. Col n, 54 F.3d 980 (1st Cir.), cert.                           ________    _____                          _____          denied, 116  S. Ct. 515 (1995).   In this appeal,  the plaintiffs          ______          challenge the  district court s grant  of summary judgment.   For          the  reasons  expressed  below, we  affirm  the  district court s          decision.                          Factual and Procedural Background1                          Factual and Procedural Background                          _________________________________                    On January 2,  1989, at around 10:00  p.m., plaintiffs           decedent,  Galletti, was  drinking  at a  bar  in Trujillo  Alto,          Puerto Rico, known as Carlos  Place.  Galletti was accompanied by          Angel  Ram rez  Fonseca,  Ilari n  Rosado,  and  two  individuals          identified only  as Algar n and  Ity.  At that  time, codefendant          Hern ndez,  an  officer  of the  Puerto  Rico  Police Department,                                        ____________________            In reviewing the decision on the defendants  motion for summary          judgment, we recount and consider only those facts that have been          alleged by the plaintiff or are not in dispute.                                         -2-                                         -2-          arrived with  an unidentified group  of his friends.   Hern ndez,          who  was on  medical leave  due  to gastroenteritis,  was not  in          uniform  but was carrying  his police identification  and service          revolver.    Police  department policy  states  that  Puerto Rico          police officers are on duty twenty-four hours a day and therefore          each officer is  required to carry  identification and a  service          revolver at all times.                    Inside Carlos   Place, Hern ndez  approached Galletti s          group and words and threatening glances were exchanged.  Galletti          challenged  Hern ndez  hostile attitude, stating that he had done          nothing to  provoke it.   Hern ndez responded,  I ll look  at you          whichever way I please, because I m a cop.                     The situation escalated.   Hern ndez slapped Galletti s          friend Ity.   Galletti told  Hern ndez,  Well, you don t  have to          give me  dirty looks.  You look at me  really bad and I have done          nothing to you.    Hern ndez replied,  I look at anybody  I want,          because I m a cop.   Anybody I decide I want to  look at dirty, I          look  at  them dirty.     At this  point  the owner  of  the bar,          apparently  concerned by the  interchange, told  Hern ndez,  Just          because you  are the law,  you don t need to  intimidate people,           and asked him  to leave.   Hern ndez  told the bar  owner not  to          meddle  and to leave the combatants  alone because it was none of          his business.                    By this time  the conflict had attracted  the attention          of patrons outside  the bar, who  entered the bar to  better view          the  confrontation.    According  to  the  plaintiffs,  Hern ndez                                         -3-                                         -3-          identified himself to the crowd  as a police officer, saying that          he  was  supposed to be there  to establish the peace  and order           and  showed them his police identification, apparently to prevent          them from interfering  in the conflict.  This  stopped the fracas          for about five minutes.                    However, as Hern ndez was  leaving the bar, one  of his          friends  and one of  Galletti s friends resumed  hostilities.  At          this point,  Galletti told Hern ndez,   Well, you leave  the gun,          and  me and you will have it out, outside.   Hern ndez responded,           I  don t need  a gun  to  fight you.   Come  on,  step outside.           Hern ndez,  despite his  statement  to  the  contrary,  took  his          service revolver  with him as  both parties went outside.   While          Galletti took off his sweater, Hern ndez threw a beer can at him.          Galletti responded by pushing Hern ndez.  Hern ndez then took out          his service revolver  and fired six shots at Galletti.  The first          shot missed Galletti  and hit a bystander  but the next five  hit          Galletti, killing him.                    On December 27, 1989, Galletti s survivors brought this            1983  action against Hern ndez2  and other supervising officers          (the  supervisory defendants ).3  On August 30, 1991, supervisory          defendant  Carlos  L pez  Feliciano filed  a  motion  for summary                                        ____________________            Hern ndez  never answered the complaint, and the district court          entered a  default against him on August 31,  1990.  He played no          further role in the case or the subsequent appeal.            The  other officers  named  as  defendants  are:  Carlos  L pez          Feliciano,  Luis L pez  Lebr n, Angel  Hern ndez,  Luis Carrillo,          Angel  D az, Fernando V zquez-Gely,  F lix Aponte-Ortiz, and Jos           Lucena.                                         -4-                                         -4-          judgment, which the  other supervisory defendants joined,  on the          ground that  Hern ndez was  not acting under  color of  state law          when he shot Galletti.                    On  November  1,  1991,  Judge Carmen  Consuelo  Cerezo          denied  the motion  for summary  judgment.   On  March 31,  1992,          supervisory  defendant   L pez  Feliciano  filed   a  motion  for          reconsideration  of  that decision.    At  this  time, the  other          supervisory  defendants filed a motion to dismiss, asserting that          the  plaintiffs  had  not alleged  facts  necessary  to establish          supervisory  liability.  Judge  Raymond L. Acosta  referred these          motions  to  Magistrate  Judge Jes s  Antonio  Castellanos  for a          report and recommendation.                    On April  29, 1994, Magistrate  Castellanos recommended          that: (1)  the motion  for reconsideration  filed by  supervisory          defendant L pez Feliciano  be denied; (2)  the motion to  dismiss          filed  by   supervisory  defendants  Luis  L pez   Lebr n,  Angel          Hern ndez, Angel  D az, Fernando V zquez-Gely, and  F lix Aponte-          Ortiz  be  denied;  and  (3)  the  motion  to  dismiss  filed  by          supervisory  defendants Luis Carrillo and Jos  Lucena be granted.          On March  16, 1995,  Judge Salvador E.  Casellas issued  an order          adopting the magistrate s report and recommendation.4  On May 31,          1995, we  issued our decision  in Mart nez v. Col n,  54 F.3d 980                                            ________    _____          (1st  Cir.), cert.  denied, 116 S.  Ct. 515  (1995).  On  June 6,                       _____________          1995,  supervisory  defendant  L pez Feliciano  filed  a  motion,                                        ____________________            This order  ended  the involvement  of  supervisory  defendants          Carrillo and Lucena in the action.                                         -5-                                         -5-          joined in by the remaining supervisory defendants, requesting the          district court to reconsider its decision on the summary judgment          motion  in  light of  Mart nez.    On  November 29,  1995,  Judge                                ________          Casellas vacated  the  court s order  of  November 1,  1991,  and          dismissed the case on the ground that defendant Hern ndez was not          acting  under color of  law  for the  purposes of   1983 when  he          killed Galletti.  The plaintiffs appealed this decision.                                      Discussion                                      Discussion                                      __________                    The  plaintiffs assert that the district court erred in          determining  as a  matter of  law that  Hern ndez  acts  were not          taken under color  of state law.5   Specifically, they  challenge          the district court s application of Mart nez to this case.6                                              ________                                        ____________________            Section 1983 provides, in pertinent part:                    Every person  who,  under color  of  any  statute,               ordinance, regulation,  custom, or usage, of  any State               or  Territory or the District of Columbia, subjects, or               causes  to  be  subjected, any  citizen  of  the United               States  or other person within the jurisdiction thereof               to  the  deprivation  of  any  rights,  privileges,  or               immunities secured  by the Constitution and laws, shall               be liable  to the  party injured in  an action  at law,               suit in equity, or other proper proceeding for redress.          42 U.S.C.A.   1983 (West 1994).   We discuss this issue in  terms          of  color of state law  despite the  fact that Puerto Rico is not          a state because  Puerto Rico  enjoys the functional equivalent of          statehood in regard to section 1983 and, thus, state law includes          Puerto Rico law.   Mart nez, 54 F.3d at 984.                             ________            The plaintiffs also  contend that in granting  summary judgment          for  the defendants  Judge  Casellas  abused  his  discretion  by          vacating both  the prior order  of Judge  Cerezo denying  summary          judgment and his own order adopting the report and recommendation          of  Magistrate  Castellanos.   The  plaintiffs  assert  that this          action was improper due to the law of the case established by the          prior decisions.    We disagree.   Under  the circumstances,  our                                         -6-                                         -6-                            1.  Summary Judgment Standard                            1.  Summary Judgment Standard                    A  district court may  grant summary judgment  only  if          the  pleadings,  depositions,  answers  to  interrogatories,  and          admissions  on file, together  with the affidavits,  if any, show          that there is no genuine issue  as to any material fact and  that          the moving party is  entitled to a judgment as a  matter of law.           Fed. R. Civ. P. 56(c).  In this case,                    summary judgment will lie if the record, even                    when  taken in the  aspect most  favorable to                    the nonmovant  fails to  yield a  trialworthy                    issue  as to some material fact.  In applying                    this principle,  it is  important to  bear in                    mind that not every  genuine factual conflict                    necessitates  a trial.   It  is  only when  a                    disputed fact has the potential to change the                    outcome  of the suit  under the governing law                    if found favorably to  the nonmovant that the                    materiality hurdle is cleared.          Mart nez, 54 F.3d at 983-84 (citation omitted).  For the purposes          ________          of  this  appeal,  we  exercise  de novo  review  and  adopt  the                                           _______          plaintiffs  version of all controverted facts.  See id.                                                          ___ ___                                2.  Applying Mart nez                                2.  Applying Mart nez                                             ________                    The   plaintiffs  assert   that   the  district   court          improperly applied  Mart nez to this  case.  In Mart nez,  an on-                              ________                    ________                                        ____________________          decision  in  Mart nez  provided  ample  justification   for  the                        ________          district court to  revisit its prior decisions  concerning action          under  color  of  state law,  and  the  court did  not  abuse its          discretion by  so doing.  See  United States v. Lachman,  48 F.3d                                    ___  _____________    _______          586, 590  (1st Cir. 1995)  (district court judge has  latitude to          revisit own earlier  rulings); United States v.  Rivera-Mart nez,                                         _____________     _______________          931 F.2d 148, 150-51 (1st  Cir. 1991) (district court has ability          to reopen  issues  when controlling  authority  makes  subsequent          contrary decision of law).                                         -7-                                         -7-          shift7 police officer accidentally shot  and maimed a fellow off-          shift officer while harassing that officer in the  station house.          See 54  F.3d at 982, 987.   The harassing officer never expressly          ___          asserted his authority as a police officer, but he was in uniform          and armed  with  his service  revolver.   See id.  at  987.   The                                                    ___ ___          defendants were other police officers, at least one of whom was a          supervisor, who observed the incident but did not intervene.  See                                                                        ___          id.  at 983.   We reviewed the district  court s award of summary          ___          judgment  in favor  of the  defendants and  held that,  under the          totality of the circumstances, it  was clear that the officer was          not acting under color of state law because he was engaged in the          personal pursuit of private violence, making the grant of summary          judgment against the plaintiff appropriate.  See id. at 988.                                                       ___ ___                    Mart nez articulates the standard to be applied in this                    ________          case to determine  whether Hern ndez  was acting  under color  of          state  law when he shot and killed Galletti.   As we said in that          case,  [p]rivate violence -- even  private violence engaged in by          one who  happens to  work for  the state  -- has different  legal          ramifications  than  violence   attributable  to  state  action.           Mart nez, 54 F.3d at  985; see also Screws v.  United States, 325          ________                   ________ ______     _____________          U.S. 91, 111  (1945).   Thus, whether a police  officer is acting          under color of state law turns on the nature and circumstances of          the officer s conduct and the relationship of that conduct to the          performance of his  official duties.   Mart nez, 54  F.3d at 986.                                                 ________                                        ____________________            We  use  the term   on-shift   rather than  the  term  on-duty           because,   as  noted  supra,  Puerto  Rico  police  officers  are                                _____          considered to be on-duty twenty-four hours a day.                                         -8-                                         -8-           The  key  determinant is  whether  the  actor,  at the  time  in          question, purposes to act in  an official capacity or to exercise          official responsibilities pursuant to state law.   Id.                                                               ___                    One  relevant  facet  of this  inquiry  is  whether the          defendant has purported  to act under color  of state law or,  in          other words, has acted  under  pretense of  law.   See Screws  v.                                                             ___ ______          United States, 325 U.S. 91, 111 (1945); Mart nez, 54 F.3d at 987.          _____________                           ________          Action occurs  under pretense  of law  when an  individual imbued          with  official authority purports to exercise that authority when          actually acting wholly  outside of it.  See Mart nez,  54 F.3d at                                                  ___ ________          986-87.  However, as we have stated,                    [e]ven  though   acting under  color  of law                     includes  acting  under pretense of  law  for                    purposes  of a  state action  analysis, there                    can be no pretense  if the challenged conduct                    is  not related in some meaningful way either                    to  the officer s  governmental status  or to                    the performance of his duties.          Id. at 987.  Therefore, it is not enough for an individual merely          ___          to purport to exercise official  power in order to trigger   1983          liability, but rather the individual must actually be engaged  in          the abuse of official power  granted by the government.  See West                                                                   ___ ____          v. Atkins, 487 U.S. 42, 49 (1988); Mart nez, 54 F.3d at 986.             ______                          ________                    The  pivotal issue to  be determined, then,  is whether          Hern ndez    was  engaged   in  purely   personal   pursuits  or,          conversely, whether he was acting under color of state law.   Id.                                                                        ___          at 987.   In conducting  this inquiry, we must  assess Hern ndez            conduct  in light of the totality of surrounding circumstances.           Id.  In Mart nez, we identified several factors that are relevant          ___     ________                                         -9-                                         -9-          to, but not necessarily determinative of, the issue, including: a          police  officer s garb; an  officer s duty status,  including the          existence of  a regulation  providing that  officers are on  duty          twenty-four hours a day; the officer s use of a service revolver;          and, the location of the incident.  See id. at 986, 987.                                              ___ ___                    The plaintiffs  have resisted this  formulation of  the          issue.  At oral  argument, the plaintiffs urged  us to find  that          Hern ndez  acted under  color of  state law  because but  for his          official authority,  he could never  have done what  he did.   We          recognize that some language in  Mart nez might appear to support                                           ________          such an  expansive position.   See 54 F.3d  at 986  ( In general,                                         ___          section 1983  is not  implicated unless  a state actor s  conduct          occurs in the course of performing  an actual or apparent duty of          his office, or  unless the conduct  is such that the  actor could          not  have  behaved in  that  way  but for  the  authority of  his          office. ).    However,  that  statement  merely  articulates  the          minimum threshold that must be met for action to be considered as          occurring under color  of state  law and does  not set forth  the          specific test to  be applied in determining  whether a challenged          act was committed under color of state law.  In fact, in Mart nez                                                                   ________          we rejected such a sweeping  standard for   1983 liability.  See,                                                                       ___          e.g., id. at 987 ( [W]e must assess the nature of his  conduct in          ____  ___          light of the totality of surrounding circumstances . . . . ), 988          (  While a  police officer s use  of a state-issue weapon  in the          pursuit  of private activities  will have  furthered   the   1983          violation in a literal sense,   a court needs  additional indicia                                         -10-                                         -10-          of state authority to conclude that the officer acted under color          of state  law.  ) (citation omitted).   We will not  jettison our          settled case  law to embrace  such a broad standard  of liability          here.                    The plaintiffs  also  asserted at  oral  argument  that          endorsing the result reached by the district court would bring us          into conflict with the decisions  of other circuits.  Contrary to          this  assertion,  the  approach we  articulated  in  Mart nez and                                                               ________          endorse  here  is consistent  with  the approach  taken  by other          circuits that have considered the issue of whether the actions of          police  officers are taken under color  of state law.  See, e.g.,                                                                 ___  ____          David v.  City and County of Denver, 101 F.3d 1344, 1351-54 (10th          _____     _________________________          Cir. 1996); Barna v. City of Perth Amboy, 42 F.3d 809, 818-19 (3d                      _____    ___________________          Cir.  1994); Pitchell  v. Callan,  13 F.3d  545, 547-49  (2d Cir.                       ________     ______          1994); United States  v. Tarpley, 945 F.2d 806,  808-09 (5th Cir.                 _____________     _______          Cir. 1991);  Gibson v.  City of Chicago,  910 F.2d  1510, 1516-19                       ______     _______________          (7th 1990); Jones v. Gutschenritter,  909 F.2d 1208, 1211-12 (8th                      _____    ______________          Cir. 1990); Revene v. Charles  County Comm rs, 882 F.2d 870, 872-                      ______    _______________________          73 (4th Cir. 1989).  While not explicitly  adopting a totality of          the   circumstances  test,   these   courts  have   examined  the          circumstances surrounding a  challenged act to  determine whether          it  was committed under color of  state law.  Given the intensely          fact-specific nature  of such  analysis we  find it  unremarkable          that none of  the cases cited by the plaintiffs  are so factually          similar to this  case as to  persuade us to adopt  the particular          outcome the plaintiffs desire.                                         -11-                                         -11-                           3.  Application of the Standard                           3.  Application of the Standard                    With  these preliminary matters  aside, we now  turn to          the  substance  of this  appeal  -- the  review  de  novo of  the                                                           ________          district court s grant of summary judgment on the color-of-state-          law  issue.   The plaintiffs  point to  the following  factors to          justify    1983 liability: the twenty-four hour a day regulation;          Hern ndez   repeated statements that he was a police officer; his          use of  his service revolver  in the shooting; his  statements to          patrons that he  was there to   keep the peace   and that he  was           handling  the  situation ;   and  his  display  of   his  police          identification.  These  factors, they argue, raise  a trialworthy          issue as to whether Hern ndez was acting under color of state law          on the night that he killed Galletti.                      We agree that some of these factors weigh in favor of a          finding  of   1983 liability.  In particular, Hern ndez  comments          to patrons that he was there to keep the peace and his display of          his  police identification might, viewed in isolation, support an          inference that  Hern ndez was  acting  under pretense  of law  by          purporting  to  act in  his  official  capacity.   However,  that          conclusion  was  belied  by  the  rest  of  Hern ndez   behavior,          especially  his repeated assertions that  he could do things such          as  look dirty  at Galletti because he was a police officer.                    Mere statements  by individuals that they  are entitled          to a  special privilege because  of their official status  do not          constitute action  under color  or pretense of  state law  if the          asserted  privilege lies  clearly  outside  the  scope  of  their                                         -12-                                         -12-          official duties.   Statements  by Hern ndez  that he  could  look          dirty  at  Galletti because  he was a  police officer  so clearly          fell outside his official capacity that they did not constitute a          reasonable pretense that he was acting as a police officer at the          time.                      Even more significantly, the  final interchange between          Galletti and  Hern ndez  prior to  their  going outside  the  bar          dominates any  characterization of  the events  of that  evening.          Both parties agree that at  a point just before Galletti s death,          he invited  Hern ndez outside  to settle  their differences  in a          fight.  Hern ndez  accepted.  From the time that the two left the          bar  until Hern ndez  shot Galletti,  Hern ndez  made no  further          pretense that he was acting as a police officer.                    Whatever brief pretense  Hern ndez may have made  to be          acting in his official capacity by showing his identification and          stating that he was  keeping the peace ended when the  two agreed          to fight it out.  In Mart nez, we stated:                               ________                    The campaign  of terror  that [the  harassing                    officer]  mounted  was patently  personal  in                    nature,  and   [the  victim]   unquestionably                    realized as  much; indeed, there was  not the                    slightest  indication  that   [the  harassing                    officer s] conduct was undertaken pursuant to                    the  authority of  his office.   Plainly, the                    fact that  [the victim] walked  away numerous                    times shows  that he was not  so intimidated                     by  [the  harassing  officer s]  status as  a                    policeman  as  to cause  him to  refrain from                    exercising his legal right[s].           Mart nez, 54  F.3d at 988  n.6 (quoting Jones  v. Gutschenritter,          ________                                _____     ______________          909 F.2d 1208, 1212 (8th Cir. 1990)).  Here, any possibility that          Galletti  was intimidated by Hern ndez  claims of official status                                         -13-                                         -13-          is belied by the undisputed  fact that Galletti invited Hern ndez          to engage in a private brawl.   Because Hern ndez made no further          pretense of official action, there  is not enough evidence in the          record, even taken in the light most favorable to the plaintiffs,          to support the inference that Hern ndez was acting under color of          state  law  when  he  shot  Galletti.    As  the  district  court          concluded,                       Galletti s   reaction  in   the   face   of                    Hern ndez   openly  hostile  behavior towards                    him serves  to buttress  our conclusion  that                    Hern ndez    actions    constituted   private                    conduct outside  the line  of duty,  and that                    the latter s  status as  an  officer did  not                    enter into his taunting of the decedent.  The                    particular interaction between  Hern ndez and                    Galletti was of a distinctly personal nature,                    and Galletti unquestionably realized as much.                    The fact that Galletti not only initiated the                    confrontation,   but   subsequently   invited                    Hern ndez to  fight  it out  outside  the bar                    shows  that  he  was  not so  intimidated  by                    Hern ndez  status as a policeman  as to cause                    him to  refrain  from  exercising  his  legal                    rights.           We agree, and this conclusion ends our inquiry.8                                      Conclusion                                      Conclusion                                      __________                    For the reasons stated above, we affirm the judgment of                                                     affirm                                                     ______          the district court.                                        ____________________            The action-under-the-color-of-state-law issue  being decided in          favor  of the defendants, the remainder of the plaintiffs  claims          unravel.  With  no underlying   1983 violation by Hern ndez, none          of the other defendants can be found liable under the supervisory          liability theory forwarded by the plaintiffs.                                         -14-                                         -14-
