
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1306                           CELSO RODRIGUEZ-CIRILO, ET AL.,                               Plaintiffs - Appellants,                                          v.                               JUAN B. GARCIA, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. H ctor M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                         and DiClerico, Jr.,* District Judge.                                              ______________                                _____________________               Kevin G. Little  with whom  Law Offices David  Efr n was  on               _______________             ________________________          brief for appellants.               Eduardo  Rodr guez-Quilichini, Assistant  Solicitor General,               _____________________________          Department of  Justice,  with whom  Carlos  Lugo-Fiol,  Solicitor                                              _________________          General, and Edda Serrano-Blasini, Deputy Solicitor General, were                       ____________________          on brief for appellees.                                 ____________________                                     June 2, 1997                                 ____________________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                    TORRUELLA, Chief Judge.   Plaintiffs-appellants are six                    TORRUELLA, Chief Judge.                                ___________          family members,  one of  whom, Celso  Rodr guez-Cirilo ("Celso"),          was the victim of a stabbing.   Celso was stabbed by his brother,          Francisco Rodr guez-Cirilo  ("Francisco"), who is not  a party to          the suit.  The family members filed a civil rights damages action          under 42 U.S.C.   1983 (1994) against two officers  of the Puerto          Rico  Police Department  alleging that  the officers'  failure to          enforce a temporary detention  order against Francisco caused the          injury to Celso and thus violated his constitutional rights.1                     The  district  court held  that  plaintiffs  failed to          establish that a  due process right protected  under section 1983          was  violated  by  the   officers'  failure  to  prevent  private          violence,  and  also held  that  plaintiffs  could not  establish          causation.  Having reviewed the record and the parties' briefs on          appeal,  we  find  that the  district  court's  treatment  of the          causation  issue correctly  identifies  a  sufficient ground  for          granting summary judgment to the defendants.  We therefore do not          reach  the nettlesome  legal  question of  whether,  in light  of          DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189          ________    _______________________________________          (1989),  a police  officer's  knowing refusal  to  carry out  the          express  terms  of a  non-discretionary  detention  order can  be          deemed  an  "affirmative act"  that,  by increasing  the  risk of          private harm to those  sought to be  protected by the order,  may                                        ____________________          1  In view of the ambiguous wording of the plaintiffs' complaint,          the district  court chose to treat this  section 1983 suit as one          claiming  a  violation  of   due  process  under  the  Fourteenth          Amendment.  On appeal, neither party suggests otherwise.                                         -2-          trigger due process  concerns.   Cf. DeShaney, 489  U.S. at  201;                                           ___ ________          Frances-Col n  v.  Ram rez,  107  F.3d 62,  64  (1st  Cir.  1997)          _____________      _______          (discussing the limited scope for relief under section 1983 where          "the  government  employee, in  the  rare  and exceptional  case,          affirmatively  acts  to  increase  the  threat  of  harm  to  the          claimant");  Soto v. Flores, 103 F.3d 1056, 1064  (1st Cir. 1997)                       ____    ______          ("In a creation  of risk  situation, where the  ultimate harm  is          caused  by a third party,  courts must be  careful to distinguish          between conventional torts and constitutional violations.").                                      BACKGROUND                                      BACKGROUND                      In  the  summary  judgment  context,  we  relate  all          material  facts in genuine dispute in the light most favorable to          the  party  resisting  summary  judgment,  here  the  plaintiffs.          S nchez v. Alvarado, 101 F.3d  223, 225 n.1 (1st Cir. 1996).   On          _______   _________          March  16, 1994,  Jorge Rodr guez-Nieves  ("Jorge"), a  nephew of          both Celso and Francisco who is not a party in  the instant suit,          filed a petition  pursuant to  the Mental Health  Code of  Puerto          Rico  ("Law 116"),2  to  have his  uncle Francisco  involuntarily          detained for  psychiatric examination.  The  petition stated that          Francisco  presented  a danger  to  himself  and others  and  had          threatened to  kill with a sharp  object, such as a  machete or a          knife.    On March  17, 1994,  a San  Juan municipal  court judge          responded to the petition  by issuing an order that  Francisco be          detained  for  examination.     The  temporary  detention   order          authorizes a law  enforcement officer  to detain  the subject  --                                        ____________________          2  See P.R. Laws Ann. tit. 24   6006 (Supp. 1991).             ___                                         -3-          with  the assistance of health care personnel if necessary -- and          to  take him  to  a  psychiatric  institution  where  he  can  be          examined, and where he cannot be held for more than 24 hours.  If          the  examining doctor  concludes  that detention  for any  longer          period  or treatment of the subject is required, then that doctor          must notify the petitioner, who must then notify the  court.  The          temporary detention order under Law 116  does not explicitly give          police officers any discretion with regard to enforcement.3                      On the  same day  that the  order was  issued, Jorge,          along with two of Francisco's siblings (but not Celso), went to a          police station to have  the order enforced.  The  defendants were          at  the  police station  and assumed  the  task of  enforcing the          order, calling on paramedics for assistance.  Later that day, the          defendant police  officers, the paramedics, and  the three family          members  found Francisco  at  a local  establishment.   Francisco          refused  to go  with the  officers, stating  that he  was already          being  treated at a veteran's hospital.  The officers then failed          to carry out the order, despite the efforts of the family members          to convince the officers  that Francisco was dangerous.    Before          departing,  the  officers  told  the  family  members  that  they          themselves  should take  Francisco  to a  veteran's hospital  for          treatment, which is  contrary to the  stated procedure under  Law          116.                                        ____________________          3  Defendants  appear to concede  the fact that carrying  out the          terms of such a  Law 116 order is a  non-discretionary obligation          on the part of the police officer.                                         -4-                      No further  legal steps were taken  to obtain another          detention order, although the plaintiffs and other family members          assert  that they made further informal requests to the police to          take  Francisco into  custody.   Francisco  was ultimately  never          taken to  a hospital for examination  or treatment.  On  April 6,          1994, nearly three weeks  after the defendants' failure to  carry          out the temporary detention order, the injury giving rise to this          damages suit occurred.  Francisco stabbed his brother Celso while          Celso was at their mother's house  for a visit.  Celso had argued          with  Francisco about  getting their mother  some water  and then          stood  out on a balcony;  a few minutes  later Francisco returned          and stabbed  Celso in  the chest with  a knife.   Celso  suffered          injuries to  his  chest  and to  his  respiratory  and  digestive          systems.                      Plaintiffs  brought actions  for  damages under  both          section 1983 and Puerto Rico tort provisions.  The district court          granted summary judgment  to defendants on the section  1983 suit          and dismissed the state tort claims without prejudice.                                      DISCUSSION                                      DISCUSSION                      We review  the  district  court's  grant  of  summary          judgment de novo.  Serrano-Cruz v. DFI Puerto Rico, Inc., No. 96-                   __ ____   ____________    _____________________          1418, 1997 WL 114118, at *2, --- F.3d --- (1st Cir. 1997).                        The essential elements of  a claim under section 1983          are:  First, that  the defendants acted under color of state law;          and  second,  that the  defendants'  conduct worked  a  denial of          rights secured by the  Constitution or by federal law.   Mart nez                                                                   ________                                         -5-          v.  Col n, 54  F.3d 980,  984 (1st  Cir. 1995).   To  satisfy the              _____          second element, plaintiffs must show that the defendants' conduct          was the cause in fact of the alleged deprivation.  See Guti rrez-                                                             ___ __________          Rodr guez v. Cartagena, 882  F.2d 553, 559 (1st Cir.  1989).  The          _________    _________          issue of  causation of damages in a section 1983 suit is based on          basic  notions of  tort  causation.   See  Maldonado Santiago  v.                                                ___  __________________          Vel squez Garc a, 821  F.2d 822,  831 (1st  Cir. 1987)  ("Section          ________________          1983  imposes a causation requirement similar to that of ordinary          tort  law.").   In applying  basic tort  principles to  the facts          raised  by  a  particular   section  1983  claim,  the  causation          requirement may be fleshed  out with reference to state  law tort          principles.   Guti rrez-Rodr guez, 882 F.2d at 561.                        ___________________                      As discussed in the decision below, plaintiffs cannot          establish  that the conduct  of the defendants,  in not enforcing          the temporary detention order,  was the legal cause of  an attack          occurring much later.   See  Rodr guez-Cirilo v.  Garc a, 908  F.                                  ___  ________________     ______          Supp. 85, 91 (D.P.R.  1995).  The concept of  proximate causation          restricts tort  liability to those whose  conduct, beyond falling          within  the infinite  causal  web leading  to  an injury,  was  a          legally  significant cause.  The  passage of  time can  certainly          reduce the  legal significance of a  particular contributing act.          See Restatement (Second) of Torts    433 (1965) (lapse of  time a          ___ _____________________________          factor  to be  considered in  determining whether  a contributing          factor is substantial).                        The  remoteness  in time  of  the harm  in  this case          precludes a  finding of proximate causation.   Although Francisco                                         -6-          committed  the kind of violence  mentioned in the  petition for a          detention  order, the space of  over two weeks  that passed after          the  officers' failure  to  detain Francisco,  during which  time          family members did not attempt to obtain another detention order,          renders  his later act of violence too remote to impose liability          on  the officers.  Cf. Mart nez  v. California, 444 U.S. 277, 285                             ___ ________     __________          (1980)  (murder committed  by parolee  five months  after release          "too  remote" a  consequence to  hold  parole board  liable under          section  1983);  Restatement  (Second)  of Torts     433  (1965).                           _______________________________          Although  the stabbing  occurred  at  the  address named  in  the          original petition, and although the  police officers may have had          some indication that  Celso would be at danger  from an attack by          Francisco,4 given  the intervening  time we  cannot say that  the          officers' failure to enforce the order was the legal cause of the          injury.  See Mart nez,  444 U.S. at 285; Restatement  (Second) of                   ___ ________                    ________________________          Torts    433  cmt. f  ("Experience has  shown that  when a  great          _____          length of  time has  elapsed between the  actor's negligence  and          harm  to another, a great number of contributing factors may have          operated,  many of which may be difficult or impossible of actual                                        ____________________          4   It is a widely recognized tort law principle that one  may be          responsible  for  the  foreseeable  intervening  acts  of   third          parties.   For example, the requirement  of "causalidad adecuada"          under  Puerto  Rico  tort  law  would  permit  the  assignment of          liability  if the  intervening  third party  action  -- that  is,          Francisco's stabbing  -- was a reasonably foreseeable consequence          of the defendants' actions.  Widow of Andino v. Puerto Rico Water                                       _______________    _________________          Resources  Auth., 93 P.R.R. 168, 177-79  (P.R. 1966) (harm caused          ________________          by  reasonably  foreseeable  intervening  causes,  including  the          actions of third parties, may lead to liability).                                         -7-          proof.  . . . [T]he effect of  the actor's conduct may thus be so          attenuated as to be insignificant . . . .").                      What further persuades us that the causation issue in          this case is dispositive is that even if Francisco had been taken          to a hospital on March 17, 1994, for examination, appellants have          not  shown that an examination  performed on that  day would have          prevented the violent attack, spurred by an argument, on April 6,          1996.  The  temporary detention  period was itself  limited to  a          maximum of  twenty-four hours.   Appellants offered  no competent          evidence that could have supported a finding that an  examination          in  Francisco's particular  case would  have prevented  the later          attack.   Appellants  rely  on a  clinical psychologist's  signed          statement  asserting  that  Francisco's   "personality  disorder"          caused  the stabbing, and  that, had  Francisco been  detained on          March 17, 1994, he  would have received effective treatment  that          would have prevented the stabbing.   This statement, based solely          on  information collected through  conversations with Francisco's          relations  and formed  without any  direct examination  of either          Francisco  or of  his medical  records, is  not enough  to defeat          defendants' motion  for summary  judgment and  does not  create a          triable  issue of material fact as to causation.5  "The nonmoving          party must  establish a trial-worthy issue  by presenting 'enough                                        ____________________          5  This statement, as the district court notes, would probably be          found unreliable and inadmissible  as expert testimony under Fed.          R. Evid. 702.  Garc a, 908 F. Supp. at  91-92.  In any event, the                         ______          psychologist's  broad  assertion  regarding  causation  does  not          create a triable issue  in this case, where the  defendant's case          as to a lack of proximate causation is strong.                                         -8-          competent evidence to enable a finding favorable to the nonmoving          party.'"   LeBlanc v.  Great Am. Ins.  Co., 6 F.3d  836, 842 (1st                     _______     ___________________          Cir. 1993)  (quoting Anderson v.  Liberty Lobby,  Inc., 477  U.S.                               ________     ____________________          242, 249 (1986)).  Thus,   not  only   do  appellants   run  into          proximate  causation problems,  but their  case also  falls short          with regard to demonstrating  the "but for" aspect of  causation.          See  Restatement (Second) of Torts,    432 (1965).   We conclude,          ___  _____________________________          therefore, that defendants were properly granted summary judgment          based on plaintiffs' failure to demonstrate causation under well-          established tort principles.                      Appellants'  remaining  arguments  on  appeal   do  not          require lengthy  treatment.    First,  we note  that  the  record          indicates that the  appellants have failed  to support, with  any          competent evidence, their additional assertion that there existed          a  conspiracy between  the  defendants and  Francisco to  violate          plaintiffs'  civil rights.   Second,  in response  to appellants'          claim  that the district  court abused its  discretion in denying          them an opportunity  to amend their complaint  after the deadline          for such amendments established  in the court's scheduling order,          we note that  even had the  plaintiffs been able  to amend  their          complaint  by adding as a  third defendant the  supervisor of the          two  defendant police  officers, the  fundamental, insurmountable          obstacle of causation would still have remained,  and would still          have offered a sufficient ground for summary judgment in favor of          defendants.                                      CONCLUSION                                      CONCLUSION                                         -9-                      For the foregoing reasons  the district court's grant          of summary judgment to defendants is affirmed.                                                ________                                                        Concurrence Follows                                         -10-                    CAMPBELL, Senior  Circuit Judge (Concurring).   I write                    CAMPBELL, Senior  Circuit Judge (Concurring)                              __________________________________          separately because  I believe that there  was sufficient evidence          of causation  to allow the issue to  go to the jury.   However, I          concur  with the  majority's result  because I  do not  think the          police  officers'   conduct  constituted  a   violation  of   the          plaintiffs' constitutional due process rights.                                    I.  Causation                                    I.  Causation                    I think the record indicates the existence of a factual          issue  as  to  causation,  precluding  the  granting  of  summary          judgment in favor  of Defendants on the  ground of an absence  of          causation.  See  Ahern v. O'Donnell, 109 F.3d  809, 811 (1st Cir.                      ___  _____    _________          1997)  (all inferences to be made in  favor of party against whom          summary judgment sought).                    Causation  depends upon  whether,  assuming the  police          officers violated    1983  on March  17 by  not carrying  out the          court order  directing them  to take Francisco  into custody  for          psychiatric examination, there was a sufficient causal connection          between  the  officers' default  and  Francisco's  stabbing of  a          relative two weeks later.                    Causation  in tort  law is  generally divided  into two          concepts:  causation  in fact, or actual causation, and proximate          or legal  causation.  See W. Page Keeton et al., Prosser & Keeton                                ___                        ________________          on  Torts     41-42 (5th  ed.  1984).   The terms  for these  two          _________          concepts are sometimes confused,  as are the concepts themselves.          Regardless of  the terminology, however, there  are two questions                                         -11-          that  must  be answered  to  determine if  a  defendant's conduct          "caused" a  plaintiff's injury.   The  first question  is whether          there was  in fact some  causal relationship between  the conduct          and  the outcome.  The Restatement expresses this test as whether                                 ___________          the defendant's  conduct was a "substantial  factor" in producing          the harm.  Id.  The second question is  whether the circumstances                     ___          and  causal  relationship  are  such  that the  law  will  impose          liability on the  defendant.   Sometimes this is  expressed as  a          foreseeability  test, see  Keeton,  supra,    42,  at 273.    Cf.                                ___           _____                     ___          Restatement  (Second)  of  Torts,      431(b)  (1965)  (different          ________________________________          terminology).                    Regarding the second  issue, foreseeability, that prong          is  plainly satisfied here.   A foreseeable result  of the police          officers'  failure  to take  Francisco  to  the psychiatrist  for          examination,  as ordered  by the  court, was  that he  would harm          someone,  since  the  express  basis  of   the  court  order  was          Francisco's  potential dangerousness  and likely  eligibility for          involuntary commitment in  a mental health facility.   The reason          for  the  ordered  psychiatric  examination,  as  Puerto   Rico's          statute specifically  provides, infra, is to  determine whether a                                          _____          person believed to  be dangerous  is dangerous, and  needs to  be                                            __          committed  immediately  in  order  to  avoid  the  kind  of  harm          Francisco later caused.  While under the  preliminary court order          in issue  Francisco could only be detained for twenty-four hours,          the  order directed  that he  be psychiatrically  examined during          that period and that,  within the twenty-four hours, a  report of                                 ____________________________                                         -12-          his condition be sent to the judge and proper steps be  initiated          for his  involuntary admittance should  that be indicated.   Thus                   ___________          the harm that occurred  here was clearly a foreseeable  result of          interrupting  the protective  process begun  by the  petition and          order.                    Since the harm that  occurred was foreseeable, the only          remaining  question  is  that  of  actual  cause,  i.e.,  whether                                             ______          Francisco's  later  assault  with  a knife  was  actually  linked          causally in sufficient  degree to the police's  failure to detain          Francisco  for the  ordered psychiatric  examination.   I believe          that on this record a  factual issue is raised as to  whether the          police officers' failure to comply with the court order to detain          Francisco  was a "substantial factor"  in bringing about the harm          from Francisco's later stabbing of Celso.6                     The  order the  police failed  to carry out  was issued          under a  comprehensive statutory  scheme for the  examination and          involuntary commitment  to a  mental health facility  of mentally          ill  people who  are dangerous to  themselves or others.   In the          first  step of this process,  any person who  fears an individual          may be psychologically unstable may  bring that individual to the          attention of  a Puerto  Rico court.   P.R. Laws  Ann. tit.  24,                                          ____________________          6  Although the majority discusses the Restatement's "substantial                                                 ___________          factor" test under the  rubric of proximate causation, Rodr guez-                                                                 __________          Cirilo  v. Garc a, ___ F.3d ___, No.  96-1306, slip op. at 6 (1st          ______     ______          Cir. May ___, 1997),  it is perhaps more accurately  described as          referring to actual  causation.  See Keeton, supra,    42, at 278                                           ___         _____          ("[T]he  1948   revision   of  the   Restatement  limited   [the]          application [of the "substantial factor" test] very definitely to          cause in fact alone.")  (citing, inter alia, Restatement (Second)                                           __________  ____________________          of Torts   433 (1965)).          ________                                         -13-          6006.  This occurred  here when a relative, Mr.  Jorge Rodr guez-          Nieves,  filed a petition to the Puerto Rico court declaring that          Francisco  was  believed  dangerous,  having threatened  to  kill          someone with a sharp  object such as a  machete or a knife.   The          petition also  stated  that Francisco  had previously  been in  a          recognized mental institution.                    The second step spelled out in  the Puerto Rico statute          is for a judge to decide, preliminarily, whether or not there are          "reasonable grounds  to believe  that the  patient is  subject to          involuntary admission and needs immediate hospitalization to keep          ___________          him  from  harming himself,  other  persons  or property."    Id.                                                                        ___          (emphasis supplied).   The judge expressly  found such reasonable          grounds here and issued  a written order that Francisco was to be          detained for twenty-four hours and examined by  a psychiatrist to          determine "if he should be admitted immediately and involuntarily          to the psychiatric  institution," as the  statute provided.   The          order  directed that  an explanatory  report  be returned  to the          judge  within   the  twenty-four   hours  and  a   resolution  of          provisional   admittance  prepared   in   the   event   continued          hospitalization was required.  It  was the court order containing          the above  provisions that the  police allegedly failed  to carry          out,  with  the result  that Francisco  was  never examined  by a          psychiatrist  and  the  necessary   steps  never  taken  for  his          involuntary hospitalization should that have  been recommended by          the psychiatrist.                                         -14-                    If Francisco  had been  examined, the  psychiatrist was          under a duty, as the order and Puerto Rico law provide, to report          his   findings  concerning   Francisco's  mental   condition  and          potential dangerousness  back  to the  court  within  twenty-four          hours.   If  the court  had then  found by  clear and  convincing          evidence, see P.R. Laws Ann. tit. 24,   6089,  that Francisco was                    ___          "subject to involuntary admission,"  the court would have ordered          him confined  to a mental health  facility.  P.R. Laws  Ann. tit.          24,    6090.  The statute  provides that a person  is "subject to          involuntary admission" if he  is mentally ill and if,  because of          his illness, he "may reasonably  be expected to physically injure          himself or any other person, or damage property."  P.R. Laws Ann.          tit. 24,   4002(14)(a).                      It  is important to  emphasize that  the order  here in          question  did not merely provide for a twenty-four hour period of          detention.    Rather  it  was  based  on  a  judge's  finding  of          reasonable  cause to believe  that Francisco was  a candidate for          involuntary  admission,  i.e.  confinement,  in  a mental  health          facility.  The twenty-four hours' detention was merely the period          within which he was to be evaluated, after which, if  the initial          finding was confirmed, he would be involuntarily committed  for a          more extended period.  Under Puerto Rico law, a court's order for          involuntary  admission is limited,  in the  first instance,  to a          term of  thirty days,  but it  can be  followed by an  additional          thirty-day order.    P.R. Laws  Ann. tit.  24,    6094(a).   This          second thirty-day  period may then be  supplemented by additional                                         -15-          periods  of 180  days as  long  as the  patient "continues  to be          subject to involuntary  admission."   P.R. Laws Ann.  tit. 24,             6094(b).  So in effect, once involuntarily admitted, a person may          be  forced  to  remain  confined  in  a  mental  health  facility          indefinitely if he  remains a  danger to himself,  others, or  to          property because of a mental illness.                    I  believe the  evidence  here plainly  creates a  jury          issue  as to whether Francisco would likely have been confined to          a  mental  health facility  for a  sufficient  period of  time to          render him  unable to  stab Celso  when he  did,  had the  police          complied with the  court order  to detain him  for a  psychiatric          examination.  A jury could find that the police officers' failure          to  enforce the order was  a "substantial factor"  in the ensuing          harm.                    As  noted,   there  is  evidence  that   Francisco  had          threatened to  kill with a sharp  object, such as a  machete or a          knife, a threat followed by stabbing his brother two weeks later.          The record also  indicates his prior hospitalization  in a mental          facility, giving  rise to an inference that  his behavior stemmed          from an  underlying mental  condition.  Even  more significantly,          the  record   shows  a   judicial  determination,  reciting   the          consideration  of evidence,  that "the  Court finds  a reasonable          basis  to  believe  that  [Francisco]   may  be  subject  to   an          involuntary  admission treatment  and  hospitalization under  the          provisions of the  Puerto Rico Mental  Health Code."   Underlying          that  determination  necessarily  lay  a  finding  of  reasonable                                         -16-          grounds  to  believe that  Francisco  might  harm himself,  other          persons or property.  See P.R. Laws Ann. tit. 24,   6006.                                  ___                    The  above facts  more  than suffice,  in  my view,  to          demonstrate  a triable issue over  whether, if the defendants had          done  their duty and  brought Francisco  to the  psychiatrist for          examination,  the latter  would more  likely than not  have found          that  Francisco was  mentally ill and  a danger to  himself or to          others and  recommended committing  him involuntarily.   Had that          recommendation been  made, it  could also be  reasonably inferred          that  the Puerto Rico court would have implemented it pursuant to          the statutory  authority  described above,  and  that  Francisco,          being confined, would not have been able to stab Celso two  weeks          later.   Hence, I believe there is  adequate evidence to create a          factual issue for later trial  over whether the police  officers'          default was a "substantial factor" in causing Celso's stabbing.7                    The majority argues that  no reasonable jury could find          that the  police  officers' failure  to  bring Francisco  to  the          psychiatrist actually  caused Celso's  injuries.  They  point out          that two weeks  elapsed between the  police officers' failure  to                                        ____________________          7  My colleagues' error, as I see it, is in treating causation as          a  matter for their own determination now rather than recognizing          that,  on  summary  judgment,  the question  is  simply  whether,          viewing everything  most favorably to (here)  the plaintiffs, the          record indicates a disputed issue of fact.  I do not see how, for          that purpose, one can  ignore the finding, similar to  a probable          cause finding,  of a Puerto  Rico judge, coupled  with undisputed          facts  strongly  indicating  that  Francisco  was  both  mentally          unbalanced  and   dangerous  to   others      the   criteria  for          involuntary admission.  From these facts a reasonable  jury could          infer  that he would likely have been committed for several weeks          or more, thus preventing any attack on Celso.                                         -17-          detain Francisco and  the stabbing.  They also  insist that it is          too speculative, on this record,  to know whether Francisco would          have  been confined or  treated so as  not to  have injured Celso          when he did.                    The time factor is hardly significant here.   Two weeks          is  not a lengthy interval for  present purposes; it is less than          the  thirty days which the court could have initially ordered him          confined had the court determined, after psychiatric examination,          that he was dangerous.  "[W]here it is evident that the influence          of  the actor's  negligence is still  a substantial  factor, mere          lapse of time, no  matter how long, is not sufficient  to prevent          it from being the legal cause of the other's harm."   Restatement                                                                ___________          (Second)  of Torts,   433(c) cmt. f  (1965).  The damage from the          __________________          collapse of a defective bridge is no less caused by the builder's          negligence   even  though   occurring  months   or  years   after          construction.                    As  for the argument that it is too speculative whether          Francisco would have been confined,  I think, for reasons already          discussed,  that  the present  record  is sufficient  to  raise a          factual issue concerning his likely commitment that makes summary          judgment  inappropriate.   The  evidence  of  Francisco's  mental          instability and  dangerousness is uncontested making  it probable          that  he would have  been committed.   The Puerto Rico  judge had          already  found   that  Francisco  was  a   likely  candidate  for          involuntary commitment     a preliminary finding, to be sure, but                                         -18-          indicative of a factual issue in that judge's mind as to the need          to commit him.                    There is, in addition,  the affidavit of a psychologist          which, if  accepted,  would  lend even  further  support  to  the          probability of  his commitment.   Unfortunately, as  the district          court and  my colleagues note,  the affidavit is  poorly drafted.          The   affidavit  says   only  that   it  is   the  psychologist's          "understanding"   that  Francisco   has  a   serious  personality          disorder.  It does say, however, that the psychologist is "of the          opinion that Mr. Francisco  Rodr guez-Cirilo's being  temporarily          detained  on March 17, 1994  for the purpose  [of] an examination          and evaluation of his  mental condition . . . would have resulted          in Francisco Rodr guez-Cirilo's  receipt of timely  and effective          psychological and/or psychiatric treatment,  most likely on an in                                                       ____________________          patient  basis  over  an  extended  period  of  time,"  (emphasis          ____________________________________________________          supplied)  and expresses  the opinion  that such  treatment would          have prevented Francisco's later stabbing of Cirilo.                    Given,  in  any  case,  the  other uncontested  factual          evidence   mentioned   above   plainly   indicating   Francisco's          abnormality  and dangerousness,  I  cannot doubt  that a  factual                                                                 __________          issue exists over whether Francisco would have been confined and,          ____________          if  so, rendered unable to have committed the assault in dispute.          The very finding by  the Puerto Rico court of  reasonable grounds          to believe  that Francisco was subject  to involuntary commitment          suggests the existence of such a triable issue.  The existence of          such an issue is the only question  at the present stage.  We are                               ____                                         -19-          not  now  acting  as factfinders.    Summary  judgment  is not  a          substitute  for trial.  The credible evidence here all shows that          Francisco  was  suffering from  mental  instability,  having been          previously  hospitalized and  having  uttered  credible  threats,          later  carried out,  to  stab  someone  to  death.    Hence  even          excluding the  affidavit, the record provides a factual basis for          a  finding   that,  if   detained  as  ordered   for  psychiatric          examination,  Francisco would,  more likely  than not,  have been          involuntarily  admitted  to  a mental  health  facility,  thereby          preventing the  later stabbing.  The police  officers' failure to          detain  Francisco could thus reasonably  be found to  have been a          "substantial factor" in producing Celso's injuries.                                II.  The Due Process Claim                              II.  The Due Process Claim                    Despite my disagreement with the majority on causation,          I concur in the result because, like the district court, I do not          believe  that the plaintiffs have  stated a violation  of the Due          Process Clause of the federal constitution.8                     Plaintiffs' due process claim does not rest, of course,          on any contention  that the police  or other agents of  the state          attacked  or physically  harmed Celso.   This  case is  not about          violence  committed by agents of  the state.  Rather, Plaintiffs'          claim  concerns  the  all  too common  situation  where  violence          inflicted  by a  third party  might have  been prevented  had the                                        ____________________          8   The  Fourteenth  Amendment states,  in relevant  part, "[N]or          shall any State deprive any person of life, liberty, or property,          without due process of law . . . ."                                         -20-          police or  other public  officials  acted more  diligently.   But          while police default may  be found to have  caused Celso to  lose          the  protection of a state statutory scheme designed to guard the          public against people having Francisco's potential  for violence,          this   unfortunate  failure   does   not  violate   the   federal          constitution.  As the Supreme Court wrote:                         But nothing in the language of the Due                      Process Clause itself requires  the State                      to   protect   the  life,   liberty,  and                      property of its citizens against invasion                      by private actors.  The Clause is phrased                      as a limitation  on the State's  power to                      act,   not  as  a  guarantee  of  certain                      minimal  levels  of safety  and security.                      It  forbids the  State itself  to deprive                      individuals of life, liberty, or property                      without  "due process  of  law," but  its                      language  cannot  fairly  be extended  to                      impose an affirmative  obligation on  the                      State to  ensure that those  interests do                      not come to harm through other means.          DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189,          ________    ______________________________________          195 (1989).  See also Estate of Gilmore v. Buckley,  787 F.2d 714                       ________ _________________    _______          (1st Cir.)  (holding that a  county was not liable  under the Due          Process Clause  for the  death of  a woman murdered  by a  prison          inmate while he was on a furlough release, even though the county          had reason to know that the victim was in special danger from the          murderer), cert. denied, 479 U.S. 882 (1986).                     ____________                    Nor does the  fact that the  police violated the  plain          order of a Puerto Rico court to detain Francisco and bring him to          a  psychiatrist  for examination  change  the  analysis.   Police          officers  certainly have a  duty to obey  court orders.   But the          court did not, in  ordering Francisco's detention, thereby create                                         -21-          the sort of "special  relationship" between the state and  all of          Francisco's potential  victims that  might make the  state liable          for any  harm  that came  to  them  at Francisco's  hands.    See                                                                        ___          generally DeShaney, 489 U.S.  at 198-203 (discussing the "special          _________ ________          relationship"  test).  Neither  did the  state render  Celso more          vulnerable to the danger posed by Francisco.  See id. at 201.  By                                                        ___ ___          failing  to detain  him  for examination,  the defendants  merely          failed  to reduce a  danger    not  of the state's  own making             that Francisco's violent proclivities already created.                     The  police  officers  in  this  case  may  have  acted          improperly.  Faced with  a court order to detain  Francisco, they          should not  have substituted their  judgment for the  court's and          refused to  detain him  in violation  of the  court's order.   As          discussed above, a jury could reasonably find that their wrongful          failure  to enforce the court's order was a substantial factor in          causing  Celso's  injury  by  Francisco.    Their  default  might          constitute a tort under  state law.  See Restatement  (Second) of                                               ___ ________________________          Torts   323  (1965) (stating  that one who  undertakes to  render          _____          services to  another may  be liable for  performing negligently).          But  "the   Due  Process  Clause  of   the  Fourteenth  Amendment          . . . does not  transform every tort  committed by a  state actor          into a constitutional violation."  DeShaney, 489 U.S. at 202.  If                                             ________          the  defendants' conduct  here violated  the Due  Process Clause,          then many  everyday defaults  of police, firefighters,  and other          public  officials around  the nation  would likewise  violate the          Constitution  on a  similar theory.   It  will be  unfortunate, I                                         -22-          believe, if,  instead of relying on state  legislatures and state          courts  to provide legal means to redress matters of this nature,          federal courts  transform conduct that  is at most  tortious into          constitutional causes of action.                    I  would  affirm the  decision  of  the district  court          because  the plaintiffs have no  cause of action  under 42 U.S.C.            1983 and the Due Process Clause.                                                     -23-
