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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1590 <br> <br>                      GRANCID CAMILO-ROBLES, <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>           JOSE R. ZAPATA, A/K/A JOSE R. ZAPATA-RIVERA, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>                                 <br>                 Coffin, Senior Circuit Judge, <br>                                 <br>                   and Selya, Circuit Judge. <br>                                 <br>                                 <br> <br> <br>     John M. Garca with whom Orlando Fernndez and Garca & <br>Fernndez were on brief, for appellant. <br>     Judith Berkan, with whom Peter Berkowitz was on brief, for <br>appellee. <br> <br> <br> <br> <br> <br>April 20, 1999 <br> <br> <br> <br>                                 <br> <br>

  SELYA, Circuit Judge.  Plaintiff-appellee Grancid Camilo- <br>Robles seeks damages under 42 U.S.C.  1983 for indignities that he <br>suffered at the hands of a rogue officer of the Puerto Rico Police <br>Department, Miguel Daz-Martnez.  See Camilo-Robles v. Hoyos, 151 <br>F.3d 1, 4 (1st Cir. 1998) (Camilo-Robles I) (describing incident), <br>cert. denied, 119 S. Ct. 872 (1999).  He contends, among other <br>things, that various officials in the police hierarchy were <br>deliberately indifferent to, and failed properly to supervise, <br>their notorious subordinate.  In an earlier opinion, we upheld the <br>district court's pretrial order denying qualified immunity to a <br>number of defendants in this action, including three high-ranking <br>police officials.  See id. at 9-15. <br>  The case returns today for the same purpose, but at the <br>behest of a different defendant:  Jos R. Zapata-Rivera (Zapata), <br>who served as the police department's Assistant Superintendent for <br>Administrative Investigations for roughly five months immediately <br>preceding Daz-Martnez's assault on Camilo-Robles.  The duties of <br>that post include the investigation of complaints about the conduct <br>of police officers and, when appropriate, the taking of corrective <br>action (which might include anything from a simple reprimand to <br>requiring retraining to recommending suspension or expulsion, <br>depending on the circumstances).  Camilo-Robles claims that, given <br>Daz-Martnez's widespread reputation as a bashi-bazouk, Zapata <br>manifested deliberate indifference to citizens' rights in leaving <br>him, armed and unregenerate, in a position in which he could <br>perpetrate further acts of brutality. <br>  Zapata denies any responsibility for the May 1994 <br>encounter of which Camilo-Robles complains.  He maintains that he <br>performed his official duties in a proper and lawful manner; that <br>none of his acts or omissions violated Camilo-Robles's federally <br>protected rights; that the record evidence does not bespeak <br>deliberate indifference; and that, in all events, no causal <br>connection exists between his conduct and the incident in question.  <br>Zapata incorporated these arguments in a motion for summary <br>judgment asking, inter alia, that the district court declare him <br>qualifiedly immune from suit.  The court denied the motion in a <br>decurtate order, writing only "that there are issues of material <br>fact which preclude summary judgment."  This interlocutory appeal <br>ensued. <br>  Our analysis begins with bedrock.  Section 1983 provides <br>a private right of action against state actors   that is, public <br>officials acting under color of state law   who deprive individuals <br>of rights confirmed by federal constitutional or statutory law.  <br>Liability under that rubric is not strict or absolute.  The <br>qualified immunity doctrine constitutes one escape hatch.  In <br>practice, it holds harmless state actors whose behavior has <br>violated plaintiffs' rights as long as those rights were not at the <br>time clearly established under the Constitution or laws of the <br>United States.  See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 <br>(1982); Daz v. Daz-Martnez, 112 F.3d 1, 3 (1st Cir. 1997). <br>  The classic question that a qualified immunity defense <br>poses is whether the allegedly violated federal right was <br>established with sufficient clarity that a reasonable government <br>functionary should have conformed his conduct accordingly.  See, <br>e.g., Anderson v. Creighton, 483 U.S. 635, 638 (1987) (reiterating <br>that qualified immunity is meant to shield public officials "from <br>civil damages liability as long as their actions could reasonably <br>have been thought consistent with the rights they are alleged to <br>have violated").  In answering this question, a court must <br>undertake an objective inquiry into the totality of the <br>circumstances, with a view toward ascertaining whether the right <br>allegedly infringed, articulated at an appropriate level of <br>generality, was settled at the time of the public official's <br>actions, and if so, whether the official's conduct was obviously <br>inconsistent with that right.  See id. at 638-40.  In the last <br>analysis, then, qualified immunity purposes to protect government <br>functionaries who could not reasonably have predicted that their <br>actions would abridge the rights of others, even though, at the end <br>of the day, those officials may have engaged in rights-violating <br>conduct.  See id. at 639-41; see also Malley v. Briggs, 475 U.S. <br>335, 341 (1986) (explaining that qualified immunity protects "all <br>but the plainly incompetent or those who knowingly violate the <br>law"). <br>  In the supervisory liability context, the qualified <br>immunity inquiry at times presents peculiar problems.  Under <br>prevailing jurisprudence, neither a finding of "no liability" nor <br>a finding of qualified immunity follows invariably upon a showing <br>that the defendant-supervisor's conduct, in and of itself, failed <br>directly to violate federally protected rights.  Thus, in a subset <br>of supervisory liability cases, courts facing the need to conduct <br>a qualified immunity analysis have been compelled to go beyond the <br>paradigmatic Harlow inquiry.  This, in turn, has given rise to <br>vexing questions of appellate jurisdiction.  We explain briefly. <br>  Although the Supreme Court has yet to speak explicitly on <br>the matter, it is common ground among the lower federal courts <br>that, for purposes of section 1983, supervisors sometimes may be <br>held accountable for their subordinates' misdeeds.  See Camilo- <br>Robles I, 151 F.3d at 6-7.  Since respondeat superior cannot serve <br>as a basis for such liability, see Board of County Comm'rs of Bryan <br>County v. Brown, 520 U.S. 397, 403 (1997) (collecting cases), <br>courts traditionally have required a showing that the superior <br>either was a primary actor involved in, or a prime mover behind, <br>the underlying violation.  The case law speaks of the necessity of <br>showing an affirmative link, whether through direct participation <br>or through conduct that amounts to condonation or tacit <br>authorization.  See Aponte Matos v. Toledo Davila, 135 F.3d 182, <br>192 (1st Cir. 1998); Braddy v. Florida Dep't of Labor & Emp. Sec., <br>133 F.3d 797, 802 (11th Cir. 1998); Otey v. Marshall, 121 F.3d <br>1150, 1155 (8th Cir. 1997); Southard v. Texas Bd. of Crim. Justice, <br>114 F.3d 539, 550-51 (5th Cir. 1997). <br>  When a plaintiff premises his section 1983 claim on <br>allegations that the defendant-supervisor was a primary violator or <br>direct participant in the rights-violating incident, the qualified <br>immunity framework envisioned by Harlow and its progeny works quite <br>well.  In contrast, the framework engenders some confusion when <br>applied to cases in which the defendant-supervisor is sued as a <br>secondary or indirect violator. <br>  In such cases, liability attaches if a responsible <br>official supervises, trains, or hires a subordinate with deliberate <br>indifference toward the possibility that deficient performance of <br>the task eventually may contribute to a civil rights deprivation.  <br>See, e.g., Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th <br>Cir. 1994); Greason v. Kemp, 891 F.2d 829, 836-37 (11th Cir. 1990); <br>Sample v. Diecks, 885 F.2d 1099, 1116-17 (3d Cir. 1989); cf. City <br>of Canton v. Harris, 489 U.S. 378, 388-89 (1989) (explicating <br>deliberate indifference standard in a municipal liability setting).  <br>Under such a theory, a supervisor may be brought to book even <br>though his actions have not directly abridged someone's rights; it <br>is enough that he has created or overlooked a clear risk of future <br>unlawful action by a lower-echelon actor over whom he had some <br>degree of control. <br>  In these "neglect-of-risk" cases, confusion arises when <br>qualified immunity is factored into the mix because we accept by <br>hypothesis that the supervisor's actions have not, in themselves, <br>infringed on any federally protected right.  This means that, <br>unlike the typical section 1983 case, we cannot concentrate the <br>Harlow inquiry on the underlying right; if we did, the supervisor's <br>qualified immunity would depend entirely on the reasonableness of <br>the subordinate's actions, and such an approach would contravene <br>the axiom that the actions of persons sued in their individual <br>capacities under section 1983 must be assessed on their own terms.  <br>See Malley, 475 U.S. at 341; Harlow, 457 U.S. at 818-19.  Such an <br>approach also would frame the relevant inquiry in terms <br>disquietingly close to those involved in the forbidden doctrine of <br>respondeat superior. <br>  To resolve this enigma, courts consigned to struggle with <br>neglect-of-risk cases generally have incorporated a review of the <br>merits of derivative tort liability into the qualified immunity <br>calculus.  The ensuing analysis customarily centers around whether <br>the supervisor's actions displayed deliberate indifference toward <br>the rights of third parties and had some causal connection to the <br>subsequent tort.  See, e.g., Camilo-Robles I, 151 F.3d at 7-8; <br>Braddy, 133 F.3d at 802; Otey, 121 F.3d at 1155; Southard, 114 F.3d <br>at 554.  To the extent that this methodology heightens the <br>imbrication between merits and immunity inquiries, it is imperfect.  <br>See Mitchell v. Forsyth, 472 U.S. 511, 527-29 (1985) (discussing <br>the separateness of the two inquiries); Camilo-Robles I, 151 F.3d <br>at 7 (stating that "courts are well-advised to separate 'qualified <br>immunity' analysis from 'merits' analysis whenever practicable").  <br>Nonetheless, we use the methodology because it is what our <br>precedent (and that of almost every other circuit) requires for the <br>performance of this type of supervisory liability/qualified <br>immunity analysis. <br>  This methodological imperfection tends to exacerbate a <br>familiar jurisdictional quandary.  Interlocutory orders (such as <br>orders denying pretrial motions to dismiss or for summary judgment) <br>normally are not appealable as of right when entered.  See 28 <br>U.S.C.  1291 (1994).  A different result sometimes obtains, <br>however, when a state actor unsuccessfully presses a pretrial <br>motion seeking the shelter of qualified immunity.  We say <br>"sometimes" because the jurisdictional waters are murky.  SeeCamilo-Robles I, 151 F.3d at 8 ("In the qualified immunity realm, <br>the dividing line between appealable and non-appealable denials of <br>summary judgment is blurred.").  Moreover, because the standard <br>qualified immunity framework fits neglect-of-risk cases awkwardly, <br>see id. at 7-9, efforts to distinguish appealable pretrial denials <br>of qualified immunity from non-appealable ones   always a Byzantine <br>endeavor   become even more difficult. <br>  Not every case is problematic.  The ground rules are <br>reasonably clear at either end of the jurisdictional continuum.  <br>The Supreme Court has held that the denial of a dispositive motion <br>bottomed on qualified immunity cannot support an interlocutory <br>appeal if the controlling question is "whether or not the pretrial <br>record sets forth a genuine issue of fact for trial."  Johnson v. <br>Jones, 515 U.S. 304, 319-20 (1995).  If, however, the "operative <br>question is purely legal in nature," an interlocutory appeal of <br>such an order is available.  Camilo-Robles I, 151 F.3d at 8 (citing <br>Johnson, 515 U.S. at 319).  In Stella v. Kelly, 63 F.3d 71 (1st <br>Cir. 1995), we described this dichotomy in the following way:  "a <br>summary judgment order which determines that the pretrial record <br>sets forth a genuine issue of fact, as distinguished from an order <br>that determines whether certain given facts demonstrate, under <br>clearly established law, a violation of some federally protected <br>right, is not reviewable on demand."  Id. at 74; accord Behrens v. <br>Pelletier, 516 U.S. 299, 306 (1996). <br>  Because of its focus on tort causation and culpability, <br>the qualified immunity analysis in neglect-of-risk cases seldom, if <br>ever, raises abstract questions of law about whether a right was <br>clearly established.  Moreover, the law is well-settled anent a <br>supervisor's liability for the conduct of his subordinates.  Thus, <br>in interlocutory appeals from the denial of qualified immunity in <br>this subset of cases, the jurisdictional question frequently falls <br>into the gray area, compelling the appellate tribunal to decide <br>whether the assertion of qualified immunity turns on the existence <br>of genuine issues of material fact (which is how the plaintiff <br>invariably will characterize the situation) or on a purely legal <br>entitlement to surcease under the relevant causation and <br>culpability standards, regardless of factual disputes (which is how <br>the defendant invariably will characterize the situation). <br>  This is the crux of the jurisdictional quandary that <br>confronts us today   and such quandaries become more intractable <br>where, as here, the lower court has done very little to clarify the <br>basis for its ruling.  Fortunately, this case comes equipped with <br>an unaccustomed luxury:  a prototype.  Between August 1990 and <br>December 1993 (when Zapata succeeded him), Toms Vazquez Rivera <br>(Vazquez) held the Assistant Superintendency.  On September 8, <br>1993, Daz-Martnez shot two persons (killing one and wounding the <br>other) while on active duty at the Barbosa Housing Project.  The <br>surviving victim and the decedent's family sued Daz-Martnez and <br>several police hierarchs, including Vazquez.  See Diaz, 112 F.3d at <br>2-3.  Vazquez sought unsuccessfully to be relieved of the burdens <br>of suit on qualified immunity grounds.  See id.  He then essayed an <br>interlocutory appeal.  In rejecting that initiative, we made two <br>pronouncements that are significant here. <br>  First, we accepted jurisdiction over Vazquez's purely <br>legal argument (which questioned the state of the law at and before <br>the time of the Barbosa Housing Project incident).  We concluded <br>that the applicable law, and, hence, the plaintiffs' asserted <br>right, was clearly established by 1993.  See id. at 4 (holding that <br>"it is beyond serious question that, at the times relevant hereto, <br>a reasonable police supervisor, charged with the duties that <br>Vazquez bore, would have understood that he could be held <br>constitutionally liable for failing to identify and take remedial <br>action concerning an officer with demonstrably dangerous <br>predilections and a checkered history of grave disciplinary <br>problems").  This conclusion applies full-bore in the case at hand <br>  and Zapata, to his credit, does not seriously argue to the <br>contrary. <br>  We then addressed Vazquez's fact-based assertion that the <br>trial court erred in refusing to grant his summary judgment motion <br>because the evidence did not show deliberate indifference on his <br>part.  See id. at 4-5.  We noted that the trial court had "rejected <br>this argument on the basis that the record contained controverted <br>facts," and held, therefore, that the determination was "not <br>reviewable on an interlocutory appeal."  Id. <br>  At first blush, it is difficult to remove the instant <br>case from Daz's precedential orbit.  Zapata tries; in an effort to <br>distinguish his situation, he bears down heavily on the fact that, <br>unlike Vazquez, he was in office only a short time when Daz- <br>Martnez accosted Camilo-Robles.  In this regard, he points out <br>that he assumed the Assistant Superintendent position in late 1993; <br>that, between then and May of 1994, he had only one concrete <br>opportunity to act with respect to Daz-Martnez; that his conduct <br>at that time, in and of itself, furnishes an insufficient <br>foundation for a claim of deliberate indifference; and that, <br>because of the brevity of his service, he, unlike his predecessor, <br>was not on notice of the incriminating details regarding Daz- <br>Martnez that subsequently came to light.  See Camilo-Robles I, 151 <br>F.3d at 4-5 (chronicling Daz-Martnez's record); Diaz, 112 F.3d at <br>2-3 (same).  This lack of knowledge, he says, compels a conclusion <br>that he acted reasonably in not initiating corrective action vis-- <br>vis Daz-Martnez prior to May of 1994. <br>     We agree with Zapata's main premise:  the extent of a <br>superior's knowledge of his subordinate's proclivities is a central <br>datum in determining whether the former ought to be liable (or <br>immune from suit) for the latter's unconstitutional acts.  SeeCamilo-Robles I, 151 F.3d at 7.  Here, however, the question of <br>notice is hopelessly factbound.  On one hand, Zapata argues, with <br>some evidentiary support, that he appropriately handled the sole <br>complaint that came to his attention because the investigator's <br>report concluded that the complainant (Flores-Miranda) had no <br>interest in proceeding and he (Zapata) had no other incriminating <br>information available to him at that time.  He was moreover, <br>entitled to rely, at least to some extent, on the work of his <br>predecessors and subordinates.  See Southard, 114 F.3d at 552-53; <br>Jones v. Wellham, 104 F.3d 620, 626-27 (4th Cir. 1997); Pacelli v. <br>deVito, 972 F.2d 871, 878 (7th Cir. 1992).  On the other hand, <br>Camilo-Robles counters, also with a measure of evidentiary support, <br>that Daz-Martnez's idiosyncrasies were well-known throughout the <br>constabulary; that Zapata, particularly, had enough knowledge <br>(however acquired) to create a duty to probe further and to <br>question the actions of others; that he acted recklessly in <br>terminating the investigation into the Flores-Miranda episode; <br>that the powers of his position were such that he could have acted <br>even without a formal complaint; and that the slightest effort on <br>his part would have uncovered easily available information (e.g., <br>the truth about Daz-Martnez's role in the Barbosa Housing Project <br>shootings and the fact that Flores-Miranda declined to press his <br>complaint mainly because he feared Daz-Martnez) that would have <br>led any responsible supervisor to take corrective action.  The <br>facts that Camilo-Robles marshals, if known to Zapata, might well <br>justify a finding of deliberate indifference.  See, e.g., Andrewsv. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (concluding that <br>question of fact as to deliberate indifference existed where <br>supervisor knew of subordinate's prior misdeeds but did not take <br>timely action either to discipline or investigate); Gutierrez- <br>Rodriguez v. Cartagena, 882 F.2d 553, 566 (1st Cir. 1989) <br>(upholding a finding of supervisory liability when there was <br>evidence that the defendant had failed "to identify and take <br>remedial action" concerning his subordinate, and had maintained a <br>"grossly deficient" disciplinary system). <br>     We believe that the nature of the parties' debate <br>indicates the substantial extent to which it is fact-dependent.  <br>Given the brevity of Zapata's service as Assistant Superintendent, <br>the reasonableness of his actions hinges largely on what he knew <br>and when he knew it concerning subjects such as Daz-Martnez's <br>history and the status of ongoing investigations involving that <br>troubled officer.  See, e.g., Shaw v. Stroud, 13 F.3d 791, 799 (4th <br>Cir. 1994) (stating that documented widespread abuses put <br>supervisors on notice that they may be liable for subordinate's <br>future misconduct); cf. Bryan County, 520 U.S. at 411-12 <br>(recognizing, in the negligent hiring context, that a municipality <br>may be liable if an applicant's background suggested that he would <br>be very likely, if hired, to commit specific constitutional <br>violations).  Despite the terseness of the district court's order, <br>we are confident that it analyzed the case in this manner and thus <br>perceived Zapata's claim to qualified immunity to turn upon <br>disputed questions of material fact.  Consequently, the court's <br>denial of qualified immunity is not reviewable on an interlocutory <br>appeal.  See Johnson, 515 U.S. at 313, 319-20; Diaz, 112 F.3d at 4- <br>5; Stella, 63 F.3d at 75-77. <br>     We need go no further.  In this instance, the state of <br>the record, the standards for summary judgment, and the fact- <br>intensive nature of derivative tort liability analysis all coalesce <br>to bring this case squarely into the Johnson realm.  Hence, we <br>dismiss Zapata's appeal, without prejudice, for want of appellate <br>jurisdiction.  This determination leaves open, of course, the <br>ultimate resolution of the qualified immunity issue.  See Behrens, <br>516 U.S. at 306-07; Camilo-Robles I, 151 F.3d at 9; Vazquez-Rios v. <br>Hernandez-Colon, 819 F.2d 319, 329 (1st Cir. 1987). <br> <br>Appeal dismissed.  Costs to appellee.</pre>

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