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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1222 <br> <br>                  AMELIA BARRETO-RIVERA, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                  LUIS R. MEDINA-VARGAS, ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>         ON APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                  Stahl, Lipez, Circuit Judges, <br>              and Reavley,* Senior Circuit Judge. <br>                                 <br>  <br> <br>  Raul S. Mariani Franco with whom Carlos M. Hernandez <br>Lopez, Juan C. Cancio Reichard, and Cancio & Cancio Reichard were <br>on brief for appellants. <br>  John F. Nevares with whom Lizzie M. Portela and Smith & <br>Nevares were on brief for appellees. <br> <br> <br> <br> <br> <br>February 18, 1999 <br> <br> <br> <br> <br>                                 <br>*Of the Fifth Circuit, sitting by designation. <br>

  LIPEZ, Circuit Judge.  Plaintiffs, relatives of decedent  <br>Arstides Ortega-Barreto ("Ortega-Barreto"), brought suit under 42 <br>U.S.C.  1983 against defendants Luis Medina-Vargas ("Officer <br>Medina-Vargas"), a police officer of the Commonwealth of Puerto <br>Rico, and his supervisor at the Puerto Rico Police Department, <br>Superintendent Pedro Toledo-Dvila ("Toledo-Dvila").  Plaintiffs <br>alleged that Officer Medina-Vargas, acting under color of state <br>law, used excessive force to shoot and kill Ortega-Barreto.  The <br>district court disagreed and granted summary judgment in favor of <br>defendants, concluding that the fight between the two men that led <br>to Ortega-Barreto's death was personal in nature and thus Officer <br>Medina-Vargas was not acting under color of state law when he shot <br>Ortega-Barreto.  After a careful review of the record, we conclude <br>that there are genuine issues of material fact that preclude the <br>entry of summary judgment.  Accordingly, we vacate the judgment and <br>remand for further proceedings.  <br>I. Background <br>  We recite the facts in a light most favorable to the <br>nonmoving party, making all reasonable inferences in that party's <br>favor.  See Martinez v. Colon, 54 F.3d 980, 980 (1st Cir. 1995).  <br>On April 28, 1995, Ortega-Barreto left his house and went to a <br>local store to purchase cigarettes and beverages.  As Ortega- <br>Barreto drove home from the store, Officer Medina-Vargas followed <br>Ortega-Barreto in his police cruiser and attempted to force Ortega- <br>Barreto to pull his car over to the side of the road.  Ortega- <br>Barreto refused to stop his vehicle and Officer Medina-Vargas <br>chased Ortega-Barreto back to his house.  Officer Medina-Vargas <br>parked behind Ortega-Barreto and said, "Come here, I want to talk <br>to you."  He then demanded Ortega-Barreto's driver's license and <br>vehicle registration.  Ortega-Barreto told him that he had the <br>vehicle registration, but he did not have a license.  An argument <br>ensued and the men shouted profanities at each other.  Ortega- <br>Barreto told Officer Medina-Vargas, "You got fresh or made a pass <br>at my wife," to which Officer Medina-Vargas responded, "You are <br>fresher because you have abused many old folks around here."  The <br>two men began to throw punches at each other and Officer Medina- <br>Vargas repeatedly hit Ortega-Barreto with his night stick.  The men <br>were separated and Ortega-Barreto retreated into his house.   <br>  At that point, Ortega-Barreto's uncle and mother <br>approached Officer Medina-Vargas.  Officer Medina-Vargas pushed <br>Ortega-Barreto's uncle to the ground and shoved his mother.  Upon <br>seeing his family assaulted, Ortega-Barreto left his house, went <br>into his yard and picked up a piece of plastic tube.  He started <br>toward Officer Medina-Vargas with the tube in his hand.  Although <br>several witnesses were able to take the tube from him, Ortega- <br>Barreto continued to approach Officer Medina-Vargas.  As Ortega- <br>Barreto approached, Officer Medina-Vargas radioed for back up <br>stating: "10-50, I have been attacked.  Hurry up, this guy is <br>acting tough and I am going to have to shoot him."  Police <br>Lieutenant Jose Francisco Cruz-Feliciano told Officer Medina-Vargas <br>to calm down and that help was on the way.   Ortega-Barreto, <br>standing approximately six to eight feet from Officer Medina- <br>Vargas, told Officer Medina-Vargas to drop his gun and to fight <br>with his fists.  Officer Medina-Vargas instructed Ortega-Barreto <br>not to come any closer or he would shoot.  Ortega-Barreto continued <br>to approach, empty handed, and Officer Medina-Vargas shot him in <br>the stomach. Ortega-Barreto fell to the ground.  Bystanders yelled <br>at Officer Medina-Vargas that he had killed Ortega-Barreto.   <br>Officer Medina-Vargas responded that if Ortega-Barreto got up, he <br>would shoot him again.  Ortega-Barreto was pronounced dead at the <br>hospital.   <br>  On April 26, 1996, plaintiffs filed a complaint under 42 <br>U.S.C.  1983 in the United States District Court for the District <br>of Puerto Rico alleging that Officer Medina-Vargas's conduct <br>violated Ortega-Barreto's civil and constitutional rights.  The <br>complaint further alleged that Superintendent Toledo-Dvila was <br>liable for Officer Medina-Vargas's conduct because he failed to <br>control, supervise and discipline Officer Medina-Vargas despite <br>Toledo-Dvila's knowledge of Officer Medina-Vargas's disciplinary <br>problems.  Officer Medina-Vargas failed to answer the complaint and <br>a default judgment was entered against him on January 14, 1997.  <br>The case then proceeded against Superintendent Toledo-Dvila on the <br>claim of supervisory liability.  Toledo-Dvila filed a motion for <br>summary judgment, arguing that Officer Medina-Vargas's actions were <br>not under color of state law and thus no supervisory liability <br>could be attributed to Toledo-Dvila under 42 U.S.C.  1983.  The <br>motion was granted by the court on November 24, 1997, and <br>plaintiffs' complaint was dismissed.  This appeal followed. <br>  As noted above, there was a default judgment entered <br>against Officer Medina-Vargas.  Nevertheless, to determine whether <br>Superintendent Toledo-Dvila could be liable under a theory of <br>supervisory liability, we must first determine if there are genuine <br>issues of material fact relating to whether Officer Medina-Vargas <br>was acting under color of law when he shot and killed Ortega- <br>Barreto.  Only then do we reach the issue of whether there are also <br>genuine issues of material fact relating to Toledo-Dvila's <br>responsibility for Officer Medina-Vargas's conduct.  <br>II. Discussion <br>  Federal Rule of Civil Procedure 56(c) permits a court to <br>enter summary judgment when "the pleadings, depositions, answers to <br>interrogatories, and admissions on file, together with the <br>affidavits, if any, show that there is no genuine issue as to any <br>material fact and that the moving party is entitled to a judgment <br>as a matter  of law." Fed. R. Civ. P. 56(c).  Our review is de novo <br>and we evaluate the record in a light most favorable to the <br>nonmoving party, "indulging all reasonable inferences in that <br>party's favor." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, <br>581 (1st Cir. 1994).  Although we will not credit unsupported <br>speculation,  "the nonmoving party is entitled 'to have the <br>credibility of his evidence as forecast assumed, his version of all <br>that is in dispute accepted, [and] all internal conflicts in [the <br>evidence] resolved favorably to him. . . ." Greenburg v. Puerto <br>Rico Maritime Shipping Auth., 835 F.2d 932, 935 (1st Cir. <br>1987)(quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 <br>(4th Cir. 1979)).  Put another way, in evaluating a motion for <br>summary judgment, we must determine "whether the evidence presents <br>a sufficient disagreement to require submission to a jury or <br>whether it is so one-sided that one party must prevail as a matter <br>law." Anderson v. Liberty Lobby, Inc.,  477 U.S. 242, 251-52 <br>(1986). <br>A. Liability under 42 U.S.C.  1983 <br>  To state a claim under section 1983, a plaintiff must <br>allege two elements: 1) that the conduct complained of has been <br>committed under color of state law, and 2) that this conduct worked <br>a denial of rights secured by the Constitution or laws of the <br>United States. See Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. <br>1995).  In analyzing the first element in this case -- namely, <br>whether the conduct of the police officer involved private violence <br>or violence attributable to state action -- we have warned that <br>courts must avoid simplistic solutions. See id. at 986.  No single, <br>easily determinable factor will control whether a police officer <br>was acting under color of state law.  See id.  While certain <br>factors will clearly be relevant -- for example, a police officer's <br>garb, an officer's duty status, the officer's use of a service <br>revolver, and the location of the incident -- these factors must <br>not be assessed mechanically.  See id. at 986-87; Parrilla-Burgosv. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997). <br>     In Martinez, we explained that "whether a police officer <br>is acting under color of state law turns on the nature and <br>circumstances of the officer's conduct and the relationship of that <br>conduct to the performance of his official duties."  Martinez, 54 <br>F.3d at 986.  Such an evaluation requires an assessment of the <br>totality of the surrounding circumstances, see id. at 987, and <br>"[t]he key determinant is whether the actor, at the time in <br>question, purposes to act in an official capacity or to exercise <br>official responsibilities pursuant to state law,"  id. at 986.   In <br>applying these principles to the facts at issue in Martinez, we <br>concluded that an on-shift officer who shot and maimed a fellow <br>officer was engaged in a "personal frolic" and not acting under <br>color of state law. Id. at 987.  The on-shift officer relentlessly <br>harassed Martinez over a period of time, verbally abusing him, <br>pointing his gun first at Martinez's stomach and then later at his <br>groin, taunting him and asking Martinez if he was scared.  <br>Throughout these encounters, the officer never asserted his <br>authority as a police officer.  We concluded that he "was bent on <br>a singularly personal frolic: tormenting an acquaintance." Id.  In <br>the case of an officer against officer dispute, the limited indicia <br>of state action, i.e., use of his police weapon, his on-shift <br>status and his uniform, were not enough to establish that the <br>officer "exercise[d], or purport[ed] to exercise, any power (real <br>or pretended) possessed by virtue of state law. . . . Though on <br>duty and in uniform, [the officer's] status as a police officer <br>simply did not enter into his benighted harassment of his fellow <br>officer." Id.  <br>     More recently, in Parrilla-Burgos, we again addressed the <br>parameters of police conduct allegedly carried out under color of <br>state law. Parrilla-Burgos, 108 F.3d 445.  A police officer shot <br>and killed a bar patron during a fight outside of the bar.  See id.at 446-47.  The officer was on medical leave and, although he was <br>not in uniform, he was carrying his police identification and <br>service revolver.  The officer went to the bar with a group of <br>friends where he encountered the decedent.  See id. at 446.  <br>Threats were made and the officer told decedent: "I'll look at you <br>whichever way I please, because I am a cop."  The situation <br>escalated and again the officer told decedent that, "I look at <br>anybody I want, because I am a cop.  Anybody I decide I want to <br>look at dirty, I look at them dirty."   Id. at 447.  A crowd <br>gathered around the men and apparently the officer showed his <br>identification and told the crowd that he was there to keep the <br>peace.  Although this act controlled the situation for a few <br>minutes, tensions increased shortly thereafter.  See id.  While <br>still in the bar, the decedent challenged the officer and stated, <br>"Well, you leave the gun and me and you will have it out, outside."  <br>The officer responded, "I don't need a gun to fight you. Come on, <br>step outside."  The men did step outside, but the officer brought <br>his gun.  Almost immediately, as they began to fight, the officer <br>pulled out his weapon and shot the decedent six times.  See id.  <br>     On the basis of these facts, we concluded that, even <br>though some factors weighed in favor of finding that the officer <br>was acting under pretense of law by purporting to act in his <br>official capacity, i.e., comments that the officer was in the bar <br>to keep the peace and his display of his identification, most of <br>the officer's conduct demonstrated that he was acting in a private <br>capacity. See Parrilla-Burgos, 108 F.3d at 450-51.  We noted in <br>particular that in the final moments of the confrontation, the <br>victim invited the officer to engage in a private brawl and there <br>was no further pretense of official action.  See id. <br>B. Application of the Standards <br>     In concluding that Officer Medina-Vargas was not acting <br>under color of state law, the district court relied heavily on two <br>interactions between Officer Medina-Vargas and Ortega-Barreto's <br>wife that occurred prior to April 28.  In Ortega-Barreto's wife's <br>deposition, she testified that her husband and Officer Medina- <br>Vargas were acquaintances and there had never been trouble between <br>the two men.  By contrast, she had experienced some difficulties <br>with Officer Medina-Vargas.  A few weeks before the shooting, <br>Officer Medina-Vargas had seen her driving with a mechanic who did <br>not have a license.  Officer Medina-Vargas stopped her and warned <br>her that if he saw her allowing a person to drive her car without <br>a license, he would file a complaint against her.  He also told her <br>that "if I see you like that again our friendship will not be the <br>same as before."  Ortega-Barreto's wife thought this comment was <br>strange because she "did not have any friendship with Medina, only <br>that I would greet him whenever I saw him and because he would pass <br>time with my husband."   <br>     She then described a later incident when Officer Medina- <br>Vargas  passed by while she and her children were sitting in their <br>car.  He "made an expression with his mouth like when you are going <br>to blow someone a kiss but I don't know whether he did it to my <br>boys or me, but he fixed his look on me.  I had noticed Medina <br>being somewhat strange and I had already told my husband."  <br>Although the court appropriately considered this deposition <br>testimony in evaluating the motion for summary judgment, it was not <br>entitled to draw inferences favorable to the defendant as to the <br>"true" nature of the relationship between Officer Medina-Vargas and <br>Ortega-Barreto's wife.  The court stated:  <br>     Medina's true purpose in creating the <br>     encounter became obvious when Ortega accused <br>     Medina of making a pass at his wife.  Medina's <br>     prior actions toward Ortega's wife are <br>     indicative of the personal nature of his <br>     relationship with Ortega and his intentions <br>     when he intervened with him.  Medina had been <br>     acting strangely around Ortega's wife, to the <br>     effect that he was requesting sexual and love <br>     favors from her.  The love feud which was the <br>     cause of Medina's intervention then became <br>     evident. <br> <br>Barreto-Rivera v. Medina-Vargas, 988 F. Supp 28, 32 (D.P.R. 1997).  <br>The court's analysis includes further references to the <br>relationship between Officer Medina-Vargas and Ortega-Barreto's <br>wife: "The case at issue . . .  is the story of a man who felt <br>unrequited love, hate, jealousy towards the husband of a woman he <br>wanted," id.; "jealousy, which was mutual between Medina and <br>Ortega, had taken over for some time and was the underlying <br>personal relation between them," id.; Officer Medina-Vargas's acts <br>"were acts of a personal nature, in which the pent-up emotions of <br>one man raged against those of another who wanted to have his wife <br>and vice versa," id.  <br>     These statements about a "love feud" are improper <br>inferences drawn against the nonmoving party on a motion for <br>summary judgment.  There was no evidence in the record that Officer <br>Medina-Vargas was requesting sexual favors from Ortega-Barreto's <br>wife.  There was scant evidence to support the finding that Officer <br>Medina-Vargas pursued Ortega-Barreto on April 28th because of a <br>love feud.  <br>     In discussing the significance of Officer Medina-Vargas's <br>call for back up on his police radio in the final moments of the <br>confrontation, the court again drew an improper inference from the <br>evidence in support of the defendants. Acknowledging that the call <br>for back up "could constitute an act in official capacity", id., <br>the court went on to speculate that "Medina may have made the call <br>in order to shoot Ortega and argue self-defense, knowing Ortega's <br>volatility." Id. at 33.  Such speculation adverse to the nonmoving <br>party is inappropriate on a motion for summary judgment. <br>     The court also placed undue emphasis on the subjective <br>reactions of the victim to the confrontation with Officer Medina- <br>Vargas.  For example, the court states that "Ortega's reaction to <br>Medina's pointing a gun in his direction was not that of a citizen <br>confronting a police officer, but rather, as in Parrilla-Burgos, <br>that of a participant in a private brawl."  Id.   The court further <br>observed that the victim's actions were "not the acts of a person <br>heeding another's status as a policeman; instead, they reflect <br>Ortega's total disregard for Medina's official position."  Id.  <br>Although we accorded the subjective reactions of the victim some <br>relevance in the color of law analysis in Martinez and Parrilla- <br>Burgos, the primary focus of the color of law analysis must be on <br>the conduct of the police officer.  Cf. Pitchell v. Callan, 13 F.3d <br>545, 548-49 (2d Cir. 1994)(noting that plaintiff's argument <br>"erroneously centers on [the victim's] subjective reaction to [the <br>officer's] conduct rather than the nature of [the officers'] <br>activity, and misses the essence of the color of law requirement <br>and the protection afforded by section 1983"). <br>     Officer Medina-Vargas was on duty, in uniform, patrolling <br>in his police cruiser. Cf. Pickrel v. City of Springfield, 45 F.3d <br>1115, 1118 (7th Cir. 1995)(remarking that police uniform, wearing <br>of gun, and marked squad car parked outside of building were all <br>indicia of state authority).  Relying on his authority as a police <br>officer, Officer Medina-Vargas attempted to stop Ortega-Barreto <br>while he was driving his car home from the store.  Cf. Black v. <br>Stephens, 662 F.2d 181, 188 (3d Cir. 1981)(finding that on-duty <br>officer, dressed in police academy windbreaker, who pulled over <br>vehicle to investigate whether driver was intoxicated was acting <br>under color of law).  Pursuant to his police powers, he demanded <br>Ortega-Barreto's license and registration. When the two men began <br>to fight, Officer Medina-Vargas forced Ortega-Barreto to submit <br>with the use of his nightstick, a police-issued weapon and a potent <br>symbol of police authority. See Barna v. City of Perth Amboy, 42 <br>F.3d 809, 818 (3d Cir. 1994)(noting that a police-issued nightstick <br>is "an objective indicia of police authority").  When Ortega- <br>Barreto came out of the house in the final moments of the <br>confrontation and challenged Officer Medina-Vargas to put down his <br>weapon, Officer Medina-Vargas used his police radio to request <br>assistance from other police officers.  Cf. United States v. <br>Tarpley, 945 F.2d 806, 809 (5th Cir. 1991)(noting that fact that <br>off-duty police officer summoned another officer to home where <br>officer was assaulting plaintiff was of particular significance in <br>concluding that officer was acting under color of law).  He then <br>shot and killed the advancing, unarmed Ortega-Barreto with his <br>service revolver.  Reviewing the "nature and circumstances" of <br>Officer Medina-Vargas's conduct and the "relationship of that <br>conduct to the performance of his official duties," see Martinez, <br>54 F.3d at 986, we are unwilling to say that Officer Medina- <br>Vargas's conduct was so clearly personal in nature that a jury <br>could reach only one outcome.  To the contrary, on this summary <br>judgment record there remains a genuine dispute about that issue.  <br>We must therefore vacate the court's entry of summary judgment. <br>C. Supervisory Liability <br>     A supervisor may be found liable under section 1983 on <br>the basis of his own acts or omissions; liability may not be <br>predicated upon a theory of respondeat superior. See Maldonado- <br>Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. <br>1994)(citing Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 <br>(1st Cir. 1989)).  A supervisor may be found liable if the <br>"supervisor's conduct or inaction amounted to a reckless or callous <br>indifference to the constitutional rights of others." Gutierrez- <br>Rodriguez, 882 F.2d at 562.  "[E]ven if a supervisor lacks actual <br>knowledge of censurable conduct, he may be liable for the <br>foreseeable consequences of such conduct if he would have known of <br>it but for his deliberate indifference or willful blindness, and if <br>he had the power and authority to alleviate it."  Maldonado-Denis, <br>23 F.3d at 582.   <br>     A plaintiff must also show that there is "an 'affirmative <br>link' between the street-level misconduct and the action, or <br>inaction, of supervisory officials." Gutierrez-Rodriguez, 882 F.2d <br>at 562 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)).   <br>     This causation requirement can be satisfied <br>     even if the supervisor did not participate <br>     directly in the conduct that violated a <br>     citizen's rights; for example, a sufficient <br>     [causal] nexus may be found if the supervisor <br>     knew of, overtly or tacitly approved of, or <br>     purposely disregarded the conduct. <br>     Consequently, deliberate indifference to <br>     violations of constitutional rights can forge <br>     the necessary linkage between the acts or <br>     omissions of supervisory personnel and the <br>     misconduct of their subordinates. <br> <br>Maldonado-Denis, 23 F.3d at 582.  A plaintiff can establish a <br>causal link "if there exists a known history of widespread abuse <br>sufficient to alert a supervisor to ongoing violations." Id. <br>     Officer Medina-Vargas's history in the police department <br>was troubled at best.  Despite failing the psychological component <br>of the police academy entrance exam, he was admitted to the school. <br>Over the course of his twenty-five year career, Officer Medina- <br>Vargas was disciplined thirty times for abuse of power, unlawful <br>use of physical force and/or physical assaults; six incidents led <br>to recommendations that he be dismissed from the force.  Toledo- <br>Dvila's first review of Officer Medina-Vargas's file came in 1992, <br>when  an investigating officer recommended his dismissal because he <br>had an extensive record of physical assaults and there had been no <br>apparent change in his behavior despite sanctions.  Ignoring the <br>recommendation, Toledo-Dvila imposed a fifteen day suspension.  <br>Two weeks later, Toledo-Dvila reviewed another disciplinary action <br>taken against Officer Medina-Vargas for the improper use of his <br>firearm three years earlier.  Following this review, Toledo-Dvila <br>reduced Officer Medina-Vargas's sanction from a thirty day <br>suspension imposed by the former superintendent to a two day <br>suspension.   <br>     There is clearly sufficient evidence in this record to <br>allow a jury to reasonably conclude that Toledo-Dvila displayed <br>deliberate indifference to Officer Medina-Vargas's propensity <br>toward violent conduct, and that there was a causal connection <br>between this deliberate indifference and Officer Medina-Vargas's <br>fatal confrontation with Ortega-Barreto.  <br>     Judgment VACATED.</pre>

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