OPINION AND ORDER
Pending before the Court are Co-defendants Pedro Toledo ("Toledo"), Leonar do Vázquez-Martínez ("Vázquez-Martínez"), Javier Avilés ("Avilés"), and Samuel Galloza's ("Galloza") motions to dismiss (Docket ## 9 & 21) and Plaintiffs' opposition thereto (Docket # 17). After reviewing the filings, and the applicable law, Co-defendant Toledo's m otion to dism iss is GRANTED, while the remaining Co-defendants' motion is GRANTED in part and DENIED in part.
Factual and Procedural Background
Plaintiffs' filed the above captioned com plaint seeking r edr ess for the dam ages suffered by Misael Medero-García ("Misael"), as a result of the alleged excessive for ce em ployed by G alloza, Vázquez-Martínez, and Avilés, police officers with the Puerto Rico Police Department, dur ing M isael's alleged detention and unlawful ar r est. The com plaint is premised on 42 U.S.C . § 1983, and Ar ticle 1802 of the Puer to R ico C ivil Code. P.R . L AWS ANN.tit. 31, § 5141 (1956). M isael's co-plaintiffs are his father , C ésar M eder oPonce, his m other , J oanne G ar cía-Martínez, and his sister , Eunice M eder o-G ar cía (a minor at the time the events unfolded,) who seek r elief for em otional dam ages. Plaintiffs sued Toledo, the Police Depar tm ent Super intendent, and the following officer s: G alloza, Vázquez-M ar tínez, and Avilés. Plaintiffs allege that Toledo is liable for their dam ages because he failed to institute adequate tr aining and super vising policies to pr event events like those alleged within the Complaint.
The appearing Defendants, Toledo, G alloza, Vázquez-M ar tínez, and Avilés m ove to dism iss the com plaint as to them on the following gr ounds: (1) that Eleventh Am endm ent Im m unity bar s any claim s against Defendants in their official capacities; (2) Plaintiffs' fail to state a cause of action under 42 U.S.C . § 1983, specifically under the Fir st, Four th, Fifth, Tenth and Four teenth Am endments of the United States C onstitution; (3) C ésar M eder o-Ponce, J oanne G ar cía-M ar tínez, and Eunice M eder o-G ar cía do not have standin g to sue under 42 U.S.C. § 1983 since these plaintiffs cannot gr ound their claim s on the alleged violation of their own civil r ights; (4) Defendants ar e entitled to qualified im m unity; (5) and Plaintiffs' supplem ental jur isdiction claim s should be dism issed.1 Defendant Toledo additionally ar gues that he is not liable under the doctr ine of Super visor y L iability. This C our t will discuss the m er its of these ar gum ents, as they r elate to each Defendant, below.
Because the pending motions are motions to dismiss, this C our t takes as tr ue all well pleaded facts contained in the com plaint, and dr aws all r easonable infer ences in Plaintiffs' favor. This Court shall star t with a br ief r ecount of the facts as they are set forth in the Complaint.
On Apr il 15, 2007, Misael was driving his father's car with two friends when he was asked by police Defendants G alloza, Vázquez-M ar tínez, and Avilés to stop his car . Defendant Vázquez-M ar tínez infor m ed M isael that he was stopped for not having his seat belt on. Plaintiff r esponded that Vázquez-M ar tínez was wr ong. The officer then pr oceeded to instr uct M isael and the other two passenger s to exit the car , while G alloza allegedly pointed a shotgun at them . O nce outside and after M isael showed his dr iver 's license and car r egistr ation, Vázquez-M ar tínez announced that he was going to sear ch the vehicle, an action that pr ovoked M isael's pr otest alleging that it could not be per for m ed without pr obable cause or a sear ch war r ant. G alloza allegedly pr oceeded to punch M isael on the back causing him to fall on top of the tr unk, and then applied cr ushing for ce against his head and chest. This behavior on behalf of G alloza continued while VázquezM ar tínez conducted a sear ch of the vehicle. No dr ugs, contr aband, or any illegal m ater ial wer e found. This fir st episode finished with Vázquez-M ar tínez issuing a fine to M isael for not wear ing the seat belt.
A second episode occur r ed m inutes after war ds, when a ner vous M isael r an a r ed light tr ying to outr un the Defendants' patr ol, which continued to follow him . The patr ol finally inter cepted M isael's car , the Defendant officer s stopped him yet again, violently took him out of the car , thr ew him against the pavem ent, and handcuffed him behind the back. O ther police officer s ar r ived at the scene while M isael was being punched and kicked per sistently by G alloza, Vázquez-M ar tínez and Avilés, along with two other police officer s, J ohn Doe 1, and J ohn Doe 2. At som e point, G alloza punched M isael so har d in the chest that he lost his air and alm ost passed out. None of the other police officer s that ar r ived at the scene did anything to stop the aggr ession towar ds M isael.
A thir d and last episode unfolded at the Bar celoneta police station wher e M isael was br ought by the Defendants and wher e he com plained of the pain and injure ies caused by the officer s' aggr ession. Plaintiff did not r eceive any fir st aid or m edical attention and was never infor m ed of his M ir anda r ights. W hen M isael's father , C ésar M eder o-Ponce, ar r ived at the station he was appalled by the condition in which he found his son. M eder o-Ponce was not affor ded an official police explanation of what had happened. H e alleges to have only r eceived a stiff r esponse: that the ar r esting and assaulting police officer s wer e gone.
Standard of Review
Fed. R . C iv. P. 12(b)(6)
To su r vive a R ule 12(b)(6) m otion, Plaintiffs' "well-pleaded facts m ust possess enough heft to show that [they ar e] entitled to r elief." C lar k v. Boscher , 514 F. 3d 107, 112 (1st C ir . 2008).2 In evaluating whether Plaintiffs ar e entitled to r elief, the cour t m ust accept as tr ue all of their "well-pleaded facts [and indulge] all r easonable infer ences ther efr om " in the Plaintiffs' favor . Bell Atlantic C or p. v. Twom bly, 127 S. C t. 1955, 1964 (2007). T he Fir st C ir cuit has held that "dism issal for failur e to state a claim is appr opr iate if the com plaint fails to set for th factual allegations, either dir ect or infer ential, r especting each m ater ial elem ent necessar y to sustain r ecover y under som e actionable legal theor y." G agliar di v. Sullivan, 513 F. 3d 301, 305(1st C ir . 2008). C our ts "m ay augm ent the facts in the com plaint by r efer ence to docum ents annexed to the com plaint or fair ly incor por ated into it, and m atter s susceptible to judicial notice." Id. at 305-306. H owever , in judging the sufficiency of a com plaint, cour ts m ust "differ entiate between well-pleaded facts, on the one hand, and 'bald asser tions, unsuppor table conclusions, per iphr astic cir cum locution, and the like,' on the other hand; the for m er m ust be cr edited, but the latter can safely be ignor ed." LaC hapelle v. Ber kshir e Life Ins., 142 F .3d 507, 508 (quoting Aulson v. Blanchar d, 83 F.3d 1, 3 (1st C ir .1996)); Buck v. Am er ican Air lines, Inc., 476 F. 3d 29, 33 (1st C ir . 2007); see also R ogan v. M enino, 175 F.3d 75, 77 (1st C ir . 1999). Thus, Plaintiffs m ust r ely in m or e than unsuppor ted conclusions or inter pr etations of law, as these will be r ejected. Ber ner v. Delahanty, 129 F.3d 20, 25 (1st C ir . 1997) (citing G ooley v. M obil Oil C or p., 851 F.2d 513, 515 (1st C ir . 1988)); see also Ashcr oft v. Iqbal, 129 S. C t. 1937, 1949-1950 (2009) (stating that the doctr ine that a cour t m ust be com pelled to accept as tr ue all of the allegation contained in a com plaint "is inapplicable to legal conclusions").
Ther efor e, "even under the liber al pleading standar ds of Feder al Rule of C ivil Pr ocedur e 8, the Supr em e C our t has r ecently held that to sur vive a m otion to dism iss, a com plaint m ust allege 'a plausible entitlem ent to r elief.'" R odr íguez-O r tíz v. M ar go C ar ibe, Inc., 490 F.3d 92 (1st C ir . 2007) (citing Twom bly, 127 S. C t. at 1965). Although com plaints do not need detailed factual allegations, the "plausibility standar d is not akin to a 'pr obability r eq uir em ent,'but it asks for m or e than a sheer possibility that a defendant has acted unlawfully." Twom bly, 127 S.Ct. at 1965; see also Ashcr oft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A plaintiff's obligation to "pr ovid e the 'gr ounds' of his 'entitle[m ent] to r elief' r equir es m or e than labels and conclusions, and a for m ulaic r ecitation of the elem ents of a cause of action will not do." Twom bly, 127 S. C t. At 1965. That is, "factual allegations m ust be enough to r aise a r ight to r elief above the speculative level, on the assum ption that all allegations in the com plaint ar e tr ue." Par ker v. H ur ley, 514 F. 3d 87, 95 (1st C ir . 2008).
Applicable Law and Analysis
Pedr o Toledo, H ead of the Puer to R ico Police Depar tm ent Plaintiffs br ought Toledo as a C o-defendant in this case, alleging that, as a super visor , his "policies and policy decisions have r esulted in totally inadequate selection and tr aining for police officer s. The super vision and super visor y policies of police officer s fail to detect or punish incidents of unwar r anted physical violence against citizens." See Docket # 6, ¶ 3.1. Fur ther m or e, Plaintiffs allege that Toledo "knew or should have known of the aggr essive behavior and pr opensity for violence of Defendants Sam uel G alloza, Leonar do Vázquez-M ar tínez and J avier Avilés, [...] and tur ned a blind eye to these pr oblem atic r ogue police officer s in failing to pr oper ly super vise then and take r em edial action against them ." See Docket # 6, ¶ 4.4. The com plaint additionally contends that T oledo's failur e to pr oper ly take r em edial actions as to the other C o-defendants constituted "a r eckless or callous indiffer ence to the constitutional r ights of Plaintiffs." See Docket # 6, ¶ 4.4.
H owever , Plaintiffs' com plaint lacks specificity as to Toledo's par ticipation in the violation of M isael's constitutional r ights to be fr ee fr om police br utality. Toledo has m oved to dism iss all claim s on the following gr ounds: (1) C o-plaintiffs other than M isael lack standing to sue under 42 U.S.C . § 1983; (2) ther e is no super visor y liability pur suant to that section; (3) Toledo is entitled to qualified im m unity; and (4) the pendent state law claim s m ust be dism issed.
In or der for a plaintiff to have a viable claim under § 1983, he m ust show (1) that the conduct com plained of was com m itted by a per son acting under color of state law; and (2) that this conduct depr ived the Plaintiffs of their r ights, pr ivileges, or im m unities secur ed by the C onstitution or laws of the United States. See G utiér r ez v. C ar tagena, 882 F . 2d 553, 559 (1st C ir . 1989). The second pr ong of the inquir y is two-folded: (1) ther e m ust be an actual depr ivation of a feder ally pr otected r ight, and (2) the conduct com plained of m ust have been causally connected to the depr ivation. Id.
The fir st elem ent (acting under color of state law) has not been disputed by the Co-defendant, and it is appar ent fr om the com plaint that all the appear ing Defendants wer e acting under color of state la w. H owever , Plaintiffs' claim s against Toledo fail to over com e var ious hur dles. Fir st, as Toledo cor r ectly notes, Plaintiffs other than M isael have no viable claim under §1983, as they do not claim that their constitutional r ights wer e violated, but only that they have suffer ed dam ages for the violation of M isael's constitutional r ights. Although this C our t under stands that C o-plaintiffs C ésar M eder o-Ponce, J oanne G ar cía-M ar tínez and m inor Eunice M eder o-G ar cía m ay have suffer ed significant m ental anguish as a r esult of M isael's injure ies, these dam ages wer e not caused by a depr ivation of their own constitutional r ights. See Soto v. Flor es, 103 F. 3d 1056, (1st C ir . 1997) (stating that although plaintiff suffer ed m ental anguish as a r esult of her son's death, which was caused by Defendants' violation of the deceased's constitutional r ights, "[t]he question is not one of a degr ee of suffer ing, but whether the plaintiff can establish a violation of a feder al r ight[; w]hile [plaintiff's] loss was of enor m ous, hear tbr eaking m agnitude, the Constitution does not pr otect against all har m s. She her self was not depr ived of a constitutionally pr otected inter est, and she m ay not br ing a §1983 due pr ocess claim [...]"). As such, Co-plaintiffs C ésar M eder o-Ponce, J oanne G ar cía-M ar tínez, and Eunice M eder o-G ar cía's claim s under §1983 ar e her eby DISMISSED with prejudice.
M isael's claim s against Toledo, albeit for differ ent r easons, necessar ily suffer the sam e fate. The law in this C ir cuit is clear that a super ior officer , such as Toledo, "cannot be held vicar iously liable under [section 1983] on a r espondeat super ior theor y." M aldonado v. Castillo, 23 F. 3d 576, 581(1st C ir . 1994). A super visor can only be held liable for his own acts or om issions. Id. That is, in or der for super visor y liability to attach, a plaintiff m ust allege that the super visor 's behavior dem onstr ates deliber ate indiffer ence in or der to disr egar d his constitutional r ights and that this conduct was affir m atively linked to the subor dinate's illegal act or om ission. Id. at 582. In other wor ds, ther e m ust be an elem ent of deliber ate indiffer ence and one of causation. The "causation r equir em ent can be satisfied even if the super visor did not par ticipate dir ectly in the conduct that violated a citizen's r ights [...] if the su per visor knew of, over tly or tacitly appr oved of, or pur posely disr egar ded the conduct." Id. The necessar y nexus m ay also be found if "ther e exists a wid espr ead abuse sufficient to aler t a super visor to ongoing violations[, to the extent that] the super visor y is on notice and fails to take cor r ective action, say, by better tr aining or closer over sight." Id. Fur ther m or e, "isolated instances of unconstitutional activity or dinar ily ar e insufficient to establish a super visor 's policy or custom , or other wise to show deliber ate indiffer ence." Id.
Finally, in or der to find that a super visor showed deliber ate indiffer ence, ther e m ust be an allegation of: (1) a gr ave r isk of har m , (2) the super visor 's actual or constr uctive knowledge of that r isk, and (3) his failur e to take easily available m easur es to addr ess the r isk. Robles v. H oyos, 151 F. 3d 1, 7(1st C ir . 1998). In other wor ds, it is "r equir ed that the super visor had 'over tly or tacitly appr oved of, or pur posely disr egar ded the conduct." R odr íguez-Vázquez v. C intr ón-R odr íguez, 160 F. Supp. 2d 204, 211(D. P.R . 2001) (citing, Lipsett v. Univer sity of Puer to R ico, 864 F. 2d 881, 902-903 (1st C ir . 1988)). In this r egar d, an im por tant factor in deter m ining whether a super visor is liable to the extent he has encour aged, condoned [...] or been deliber ately indiffer ent to the behavior of a subor dinate, is whether the official was put on notice of behavior which was likely to r esult in the violation of the constitutional r ights of citizens. R odr íguez-Vázquez, 160 F. Supp. 2d at 211.
M isael's com plaint is com pletely devoid of allegations fr om which the C our t could infer that Toledo was on notice of the officer s' violent and illegal conduct, that this conduct cr eated a gr ave r isk of har m for citizens, and that, even then, Toledo failed to take m easur es to addr ess the r isk. The only allegations m ade against Toledo ar e conclusive in natur e, i.e., that he failed to cr eate a policy for pr ocedur es and oper ations that was consistent with the constitutional r ights of Plaintiffs, and/or that he failed to tr ain the officer s, and/or that he failed to super vise them to ensur e com pliance with the policy. This C our t concludes, as we have in sim ilar cases, that M isael's "factual allegations ar e poor and insufficient to establish all the elem ents of h is claim against Toledo." R odr íguezVázquez, 160 F. Supp. 2d at 212. The lack of specific allegations that link Toledo to the officer s' m alfeasance im pede us fr om concluding that his conduct showed deliber ate indiffer ence for M isael's constitutional r ights, as it is r equir ed to hold Toledo liable under §1983. In light of the above, M isael's § 1983 claim s against Toledo ar e her eby DISMISSED with prejudice.
Because the r em aining claim s against Toledo, to wit, those under Ar ticle 1802 of the Puer to R ico C ivil Code, wer e br ought pur suant to supplem ental jur isdiction, having dism issed all feder al claim s against him , the C our t will also dism iss the pendent state law claim s. Exer cising jur isdiction over pendent state law claim s once the feder al law claim s ar e dism issed is discr etional. See Newm an v. Bur gin, 930 F. 2d 955, 963-964 (1st C ir . 1991) (holding that "the power of a feder al cour t to hear and to deter m ine state-law claim s in non-diver sity cases depends upon the pr esence of at least one substantial feder al claim in the lawsuit...[and] the distr ict cour t has consider able author ity whether or not to exer cise this power , in light of such consider ations as judicial econom y, convenience, fair ness to litigants, and com ity"). As such, all state law claim s against Toledo ar e DISMISSED without prejudice. Because this C our t has dism issed all claim s against Toledo, it needs not addr ess his ar gum ents r egar ding qualified im m unity.
O fficer s Leonar do Vázquez-M ar tínez, J avier Avilés, and Sam uel G alloza Plaintiffs also aver that Defendants Vázquez-M ar tínez, Avilés and G alloza, ar e liable under §1983. Plaintiffs allege that Defendants wer e pr esent at the tim e of M isael's ar r est, at which point all thr ee used excessive for ce (i.e. violently taking him out of the car , thr owing him against the tr unk to handcuff him and r epeatedly beating him ), and none of them did nothing to stop this conduct.
Defendants r aise five ar gum ents in suppor t of their m otion to dism iss: (1) that Eleventh Am endm ent Im m unity bar s any claim s against Defendants in their official capacities; (2) Plaintiffs fail to state a cause of action under 42 U.S.C. § 1983, specifically under the Fir st, Fifth, Ninth, Tenth and Four teenth Am endm ents of the United States C onstitution; (3) C ésar M eder o-Ponce, J oanne G ar cía-M ar tínez, and Eunice M eder oG ar cía do not have standing to sue under 42 U.S.C . § 1983, since these Plaintiffs cannot gr ound their claim s on alleged violation of their own civil r ights; (4) Defendants ar e entitled to qualified im m unity; (5) and Plaintiffs' supplem ental claim s should be dism issed. See Docket # 21, p. 2.
As discussed in the above section, claim (3) has been alr eady dism issed and claim (2) will be discussed in the following sections. W e now tur n to Defendants' claim s (1), (4), and (5).
Defendants posit that the claim s against them in their official capacities should be dism issed, because the Police Depar tm ent, as a C om m onwealth agency, is entitled to Eleventh Am endm ent Im m unity. This Am endm ent pr ovides:
[t]he J udicial power of the United States shall not be constr ued to extend to any suit in law or equity, com m enced or pr osecuted against one of the United States by C itizens of another State, or by C itizens or Subjects of any For eign State. U.S.C ONST. am end. XI.3
Although the Eleventh Am endm ent seem s to apply only to suits against a State by citizens of another State, the Supr em e C our t has consistently extended the scope of this Am endm ent to suits by citizens against their own State. See Boar d of Tr ustees of the Univ. of Ala. v. G ar r ett, 531 U.S. 356, 362 (2001); see also K im el v. Fla. Bd. of R egents, 528 U.S. 62, 72-73 (2000); H ans v. Louisiana, 134 U.S. 1, 15 (1890). Although the C om m onwealth of Puer to R ico is not a state, it enjoys the pr otection of the Eleventh Am endm ent. See J usino-M er cado v. Com m onwealth of Puer to R ico, 214 F.3d 34, 37 (1st C ir . 2000); O r tiz Feliciano v. Toledo-Dávila, 175 F.3d 37, 39 (1st C ir . 1999); Futur a Developm ent v. Estado Libr e Asociado, 144 F.3d 7,12-13 (1st C ir . 1998); R am ír ez v. Puer to R ico Fir e Ser v., 715 F.2d 694, 697 (1st C ir . 1984).
H owever , Eleventh Am endm ent immunity is not absolute and m ay be waived by the state or "str ipped away" by C ongr ess. M etcalf & Eddy v. P.R .A.S.A., 991 F.2d 935, 938 (1st C ir . 1993). T her e ar e four (4) cir cum stances in which the Eleventh Am endm ent pr otection unr avels: (1) when a state consents to be sued in a feder al for um ; (2) when a state waives its own im m unity by statute or the like; (3) when C ongr ess abr ogates state im m unity ("so long as it speaks clear ly and acts in fur ther ance of par ticular power s"); and (4) when, pr ovided that cir cum stances allow, other constitutional im per atives take pr ecedence over the E leventh Am endm ent's pr otection. Id. at 938 (citations om itted). Despite num ber two above, the Fir st Cir cuit has held that the fact that a state has waived its im m unity to be sued does not autom atically m eans that it waived its im m unity in feder al cour t. See Díaz-Fonseca v.Com m onwealth of Puer to R ico, 451 F. 3d 13, 33 (1st C ir . 2006) (holding that although the C om m onwealth waived its im m unity to be sued in cer tain cir cum stances in its own cour ts, it did not waive its im m unity to be sued in feder al cour t).
The Eleventh Am endment bar extends to gover nm ental instr um entalities which ar e an ar m or "alter ego" of the State. See Ainswor th Ar istocr at Int'l Pty. Ltd. v. Tour ism C o. of P.R ., 818 F.2d. 1034, 1036 (1st C ir . 1987); O choa R ealty Cor p. v. Far ía, 618 F. Supp. 434, 435 (D.P.R . 1985); Pennhur st State Sch. H osp. v. H alder m an, 465 U.S. 89, 100 (1984); M t. H ealthy C ity Sch. Dist. v. Doyle, 429 U.S. 274, 280-281 (1977); Ur sulich v. P.R . Nat'l G uar d, 384 F. Supp. 736, 737-38 (D.P.R. 1974). It also pr otects state officia ls in their official capacity. The r ationale behind this extension of the Eleventh Am endm ent pr otection is that a claim against a state official in his or her official capacity for m onetar y r elief is an action for the r ecover y of m oney fr om the State. For d M otor v. Dept. of Tr easur y, 323 U.S. 459 (1945); W ill v. M ichiganDept. of State Police, 491 U.S. 58, 71 (1989). H ence, a claim against a state official in her official capacity for m onetar y r elief is, in essence, a claim against the State.
That the Puer to R ico Police Depar tm ent is an ar m or alter ego of Puer to R ico has been established by this distr ict on num er ous occasions.4 See Nieves-C r uz v. C om m . of P.R ., 425 F. Supp. 2d 188, 192 (D. P. R . 2006); López-R osar io v. Police Dept., 126 F. Supp. 2d 167, 170-171 (D.P.R . 2000); Aguilar v. C om m . of P.R ., 2006 W L 3000765 at *1; Suár ezC ester o v.Pagán-R osa, 996 F. Supp. 133, 142-43 (D.P. R . 1998). As such, this C our t need not dwell on this point.
Notwithstanding the above, her ein Defendants wer e sued in their per sonal and individual capacities as well, and not just in their official capacities. As such, Defendants' r equest for dism issal of the claim s against their per sonal capacity is DENIED. H owever , the Plaintiffs' claim s against Defendants in their official capacity ar e DISMISSED with prejudice.
In r egar ds to Defendants' claim (4) that they ar e entitled to qualified im m unity and, ther efor e, that they ar e exem pt fr om suit for m oney dam ages in their per sonal capacity, Defendants ar gue that they did not violate M isael's constitutional r ights. This C our t will now discuss what qualified im m unity entails.
Q ualified im m unity is an affir m ative defense against per sonal liability which m ay be r aised by state officials. W hitfield v. M eléndez-River a, 431 F. 3d 1, 6 (1st C ir . 2005). It "pr ovides a safe har bor for public officials acting under the color of state law who would other wise be liable under 42 U.S.C . §1983 for infr inging the constitutional r ights of pr ivate par ties." Id.; see also Ander son v. C r eighton, 483 U.S. 635, 638 (1987). In deter m ining whether a defendant is entitled to qualified im m unity, cour ts shall apply a thr ee-par t test: "(1) whether the plaintiff has alleged a constitutional violation; (2) whether the law was clear ly established that defendant's action violated a constitutional r ight of the plaintiff; and (3) whether a r easonable official would have under stood that his actions violated a constitutional r ight." R iver a-J im énez v. Pier luisi, 362 F. 3d 87, 93 (1st C ir . 2004); J ennings v. J ones, 499 F.3d 2, 11.
At this stage, this C our t has concluded that M isael has pled a viable § 1983 cause of action against Defendants. Ther efor e, this C our t cannot conclude that M isael has failed to allege that Defendants violated his constitutional r ights. M or eover , accor ding to the facts of the com plaint, G alloza, Vázquez-M ar tínez, and Avilés should have under stood that their actions or om issions constituted a violation of Co-plaintiff's constitutional r ights. This C our t finds that a r easonable official would not have believed that the acts com m itted by this tr io of police officer s wer e lawful, in light of clear ly established law. M or eover , any r easonable police officer is awar e that it is unlawful to use violence and excessive for ce when stopping and ar r esting an individual, especially when the Co-plaintiff did not show a suspicious behavior , car r y dr ugs, illegal m ater ial or contr aband item s in his car , and only questioned officer Vázquez-M ar tínez about the sear ch the latter was about to conduct in his vehicle. See Docket # 6, ¶ 3.8. At this point, this C our t cannot conclude, without m aking factual deter m inations, that G alloza, Vázquez-M ar tínez, and Avilés acted r easonably under the cir cum stances, and ar e entitled to qualified im m unity. Ther efor e, their m otion to dism iss on this gr ound is DENIED.
Finally, Defendants r equest that this Cour t dism iss the claim s br ought pur suant to its supplem ental jur isdiction because dism issal of said claim s is pr oper once all feder al claim s have been disposed of. H owever , since Plaintiffs' feder al claim s have not been dism issed, their r equest is DENIED.
Plaintiffs' Fir st Am endm ent C laim
The Fir st Am endm ent of the U.S. C onstitution states that "C ongr ess shall m ake no law r especting and establishm ent of r eligion, or pr ohibiting the fr ee exer cise of ther eof; or abr idging the fr eedom of speech, or of the pr ess, or the r ight of the people peaceably to assem ble, and to petition the G over nm ent for a r edr ess of gr ievances." U.S.C ONST. am end. I.
The allegations in the com plaint ar e totally devoid of any facts suppor ting any possible violation of this Am endm ent. Ther e is not a single claim that Plaintiffs' r ight to fr eely exer cise their r eligion, speech, r ight to assem ble and to petition the G over nm ent for r edr ess of gr ievances have been violated. Ther efor e, any contentions under the Fir st Am endm ent ar e her eby DISMISSED with prejudice.
Plaintiffs' Fifth Am endm ent C laim s
Defendants fur ther m ove the C our t to dism iss Plaintiffs' Fifth Am endm ent claim s. The Fifth Am endm ent pr ovides that "[n]o per son shall [...] be depr ived of life, liber ty, or pr oper ty, without due pr ocess of law [...]" U.S.C ONST.am end. V; see also Ger ena v. Puer to R ico L egal Ser vices, 697 F. 2d 447, 449 (1st C ir . 1983). This am endm ent applies to actions of the feder al gover nm ent, not those of pr ivate individuals, or of state, local or m unicipal gover nm ents. Id. at 449; see also M ar tínez-R iver a v. Sánchez-R am os, 498 F. 3d 3, 8 (affir m ing sua sponte a dism issal of Plaintiffs' claim s under the Fifth Am endm ent because the police officer s wher e state actor s and not feder al actor s). Because Plaintiffs' com plaint does not allege that any of the Defendants ar e feder al actor s, instead it aver s that they acted under color of state law (see Docket # 6 ¶ 2.9, 2.10 and 2.11), their claim s pur suant to the Fifth Am endm ent ar e her eby DISMISSED with prejudice.
Plaintiffs' Tenth Am endm ent C laim s
The T enth Am endm ent of the C onstitution of the United States, states that "[t]he power s not delegated to the United States by the Constitution, nor pr ohibited by it to the States, ar e r eser ved to the State r espectively, or to the people." U.S.C ONST. am end. X.
The Tenth am endm ent of the C onstitution of the United States clear ly r ends that the feder al gover nm ent acts on enum er ated and lim ited power s, wher eas state gover nm ents benefit fr om gener al power s. Evidently the Tenth Am endm ent is inapplicable to this claim , nullifying Plaintiffs' attem pt to find a venue for § 1983. Ther efor e, any contentions under the Tenth Am endm ent ar e her eb y DISMISSED with prejudice.
Plaintiffs' Four teenth Am endm ent C laim s
Plaintiffs also seek r elief under the Four teenth Am endm ent contending that, dur ing M isael's seizur e, Defendants used excessive for ce, and invaded his pr ivacy. In opposition, Defendants ar gue that when a constitutional violation is cover ed by a par ticular statute, that specific pr ovision m ust be applied, instead of the Four teenth Am endm ent.
The Four teenth Am endm ent m andates that no State shall "depr ive any per son of life, lib er ty, or pr oper ty, without due pr ocess of law." U.S. Const. am end. XIV, § 1. In or der to establish the bur den on a substantive due pr ocess cause of action, a plaintiff m ust "pr esent a well-pleaded claim that a state actor depr ived it of a r ecognized life, liber ty, or pr oper ty inter est, and that he did so thr ough conscien ce-shocking behavior ." Estate of Bennett v. W ainwr ight, 548 F.3d 155, 162 (1st C ir . 2008) (citing C lar k, 514 F.3d at 112; see also R am os-Piñer o v. Puer to R ico, 453 F.3d 48, 53 (1st C ir . 2006)) (stating that the "shock the conscience" standar d im plicates behavior "so egr egious, so outr ageous, that it m ay fair ly be said to shock the contem por ar y conscience") (citing C county of Sacr am ento v. Lewis, 523 U.S. 833, 848 n.8 (1998)). O nly "[b]ehavior 'intended to injure e in som e way unjustifiable b y any gover nm ent inter est' [...] is the sor t of official action m ost likely to 'shock the conscience.'" R am os-Piñer o, 453 F.3d at 53 (citations om itted). Plaintiffs ar gue that they have shown that the Defendants engaged in "'conscience shocking' exer cises of power " (see Docket # 17 ¶ 4.18) dur ing the excessive beating he r eceived.
M isael's substantive due pr ocess claim , pr em ised on the depr ivation of his liber ty, fails insofar as his claim is r eally an excessive for ce claim that should be, and is, br ought under the Four th Am endm ent. W ainwr ight, 548 F.3d at 163. The Supr em e C our t has held that: all claim s that law enfor cem ent officer s have used excessive for ce -deadly or not-in the cour se of an ar r est, investigator y stop, or other "seizur e" of a fr ee citizen should be analyzed under the Four th Am endm ent and its "r easonableness" standar d, r ather than under a "substantive due pr ocess" appr oach. G r aham ,490 U.S. at 395.
As in the case of M isael, a "seizur e" which entitles plaintiff to "the Four th Am endm ent's pr otections occur s only when gover nm ent actor s have, 'by m eans of physical for ce or show of author ity, [...] in som e way r estr ained the liber ty of a citizen [...].'" Id., n.10 (citing Ter r y v. O hio, 392 U.S. 1, 19, n.16 (1968)).
Since an alter native constitutional claim is available in this case, M isael's substantive due pr ocess claim s on this fr ont cannot pr evail. See W ainwr ight, 548 F.3d at 163. As such, Plaintiffs' claim s under the Four teenth Am endm ent ar e DISMISSED with prejudice.
The claims stemming fr om the Fir st, Fifth, Tenth and Four teenth Am endments, and the inclusion by Defendants of a Ninth Am endm ent claim in their m otions to dism iss (see Docket # 9, p. 10 & Docket # 21, ¶ 3) ar e, r espectively, unfounded and m istaken.5 This C our t r em inds the p ar ties that all r epr esentations to the cour t, subm itted to the cour t thr ough pleadings, m otions, and any other docum ent, ar e bound by FED. R . C IV. P. 11(b)'s m andate. Ther efor e, all claim s, defenses, and other legal ar gum ents that ar e unwar r anted by existing law, ar e, in fact, fr ivolous, and can be sanctioned by the cour ts. In the pr esent case, b oth Plaintiffs and Defendants have set for th unwar r anted legal ar gum ents, insofar as the cur r ent case law is extr em ely clear as to the applicable statutes in cases such as this one. The car eless inclusion of num er ous allegations and defenses is unjustified, and unnecessar ily oner ous for the cour ts. Ther efor e, the par ties shall take the for egoing into consider ation when appear ing befor e this C our t, or face the im position of sanctions.
Conclusion
In light of the above discussion, Toledo's m otion to dism iss (Docket # 9) is GRANTED, and Vázquez-M ar tínez, Avilés, and G alloza's like m otion (Docket # 21) is GRANTED in part and DENIED in part. Par tial judgm ent will be enter ed accor dingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 16th day of June, 2009.
1. See Docket # 21, Motion to Partially Join and/or Adopt Motion to Dismiss Filed on November 28, 2008.
2. FED. R. CIV. P. 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to allow the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007).
3. The Supreme Court has established that the Eleventh Amendment protection primarily furthers two goals: the protection of a state's treasury and the protection of its dignitary interest of not being haled into federal court. Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir. 2003) (citing Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002)).
4. The Supreme Court requires a two-step analysis in order to determine whether a government institution is an arm or alter ego of the state and thus entitled to immunity under the Eleventh Amendment. Fresenius Med. Care, 322 F.3d at 65 (citing and discussing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994)). First, the court must analyze how the state has structured the government institution and, second, if the "structural indicators point in different directions," the risk of the damages being paid from the public treasury should be assessed. Id. at 65-69.
5. There is not a single instance in Plaintiffs' Complaint or the Opposition to Motion to Dismiss (Docket ## 6 & 17) that either states or suggests the inclusion of a Ninth Amendment relief.