United States Court of Appeals

For the First Circuit

No. 10-1619

GERMAN A. SOTO-TORRES,

Plaintiff, Appellee,

v.

LUIS FRATICELLI, Special Agent in Charge,

Defendant, Appellant,

ROBERT MUELLER, Director of the Federal Bureau of Investigation;

CONJUGAL PARTNERSHIP MUELLER-DOE; CONJUGAL PARTNERSHIP

FRATICELLI-DOE; TEN UNKNOWN AGENTS OF THE 

FEDERAL BUREAU OF INVESTIGATION,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. Garcia-Gregory, U.S. District Judge]

Before

Lynch, Chief Judge,

Lipez and Howard, Circuit Judges.

H. Thomas Byron III, Appellate Staff, Civil Division, with

whom Tony West, Assistant Attorney General, Rose E. RodriguezVelez, United States Attorney, and Barbara L. Herwig, Appellate

Staff, Civil Division, were on brief, for appellant.

Francisco M. López-Romo, with whom Edgar R. Vega-Pabón was

on brief, for appellee.

August 19, 2011
LYNCH, Chief Judge. The question before us is whether

the Special Agent in Charge (SAC) of the FBI's Puerto Rico

operations, Luis Fraticelli, who is sued in his individual

capacity, is entitled to qualified immunity on the grounds that

German A. Soto-Torres's second amended complaint failed to meet the

requirements of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). SotoTorres brought suit asserting claims of unlawful detention and

excessive force under a Bivens theory. See Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Soto-Torres complains of actions during the September 23,

2005, execution of a search warrant by FBI or other federal agents

on the residence of Filiberto Ojeda Rios, a notorious fugitive and

convicted felon who was thought to be dangerous and hiding in a

house in Hormigueros, Puerto Rico. That house was near the

property of Soto-Torres's parents. The complaint alleges that, in

the course of these operations, unnamed FBI agents assaulted SotoTorres, pushed him to the ground and handcuffed him, and detained

him in handcuffs for approximately four hours without explaining

the basis of his detention. Although SAC Fraticelli was in charge

of the operation, he was not present during the operation and had

no personal contact with Soto-Torres.

The complaint originally named as defendants Fraticelli

and ten unknown FBI agents, in their official and individual

capacities, as well as FBI Director Mueller in his official

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capacity. Only the Bivens claim against Fraticelli remains and is 1

before us. The complaint was filed about one year after the event;

Soto-Torres filed his first amended complaint about two years

later. His second amended complaint was filed in October 2009,

after the decision in Iqbal.

Defendants originally moved for summary judgment on

grounds of qualified immunity, which the district court denied. 

The Supreme Court then decided Iqbal, after which defendants filed

a Rule 12(c) motion requesting judgment on the pleadings on SotoTorres's personal capacity claims against Fraticelli; defendants

also moved to dismiss the official capacity claims against Mueller,

Fraticelli, and the unnamed agents pursuant to Rule 12(b)(1) on

grounds of sovereign immunity. The district court allowed SotoTorres to amend his complaint in light of Iqbal and denied

defendants' 12(b)(1) motion without prejudice so that it could be

re-filed after the complaint was amended. After Soto-Torres filed

his second amended complaint, defendants renewed their motion. The

district court granted the motion to dismiss the official capacity

claims against Mueller, Fraticelli, and the unnamed agents, but it

denied the motion as to the personal capacity claims, including

those against Fraticelli. Fraticelli filed this interlocutory

appeal from that denial.

The plaintiff has never identified the John Doe unnamed 1

FBI agent defendants.

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We hold that plaintiff's pleadings are insufficient under

Iqbal, reverse, and direct entry of judgment for Fraticelli.

I.

In an interlocutory appeal from the denial of qualified

immunity on a motion to dismiss on the pleadings, we accept the

well-pleaded facts of the plaintiff's claim as alleged in the

complaint. Iqbal, 129 S. Ct. at 1950. We do not accept the

complaint's legal conclusions or "'naked assertion[s]' devoid of

'further factual enhancement.'" Id. at 1949 (alteration in

original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557

(2007)); see also Maldonado v. Fontanes, 568 F.3d 263, 266 (1st

Cir. 2009).

We provide some undisputed background facts, agreed upon

by the parties. Soto-Torres's claims arise out of an FBI operation

to apprehend Filiberto Ojeda Rios, a Puerto Rico fugitive and

leader of the Macheteros group. The Macheteros have claimed

responsibility for acts of violence in Puerto Rico, including the

murders of a police officer in 1978 and U.S. Navy sailors in 1979

and 1982. In 1983, Macheteros operatives robbed a Wells Fargo

facility in West Hartford, Connecticut. Two years later, when FBI

agents acted to arrest Ojeda and other Macheteros members in

connection with the robbery, Ojeda shot and wounded an agent. He

was acquitted of the shooting charge in a 1989 trial in which he

represented himself.

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In 1990, while released on bond pending his trial for the

armed robbery charges, Ojeda severed his electronic monitoring

device and fled; the next day the U.S. District Court for the

District of Connecticut issued a warrant for his arrest. In 1992,

Ojeda was tried in absentia for the armed robbery, convicted on

fourteen counts, and sentenced to fifty-five years in prison.

In early September 2005, the San Juan FBI determined that

Ojeda was living in a house in Hormigueros on the west side of

Puerto Rico. At this time there were warrants for Ojeda's arrest

both for his 1990 flight and for his 1992 conviction. Consistent

with the hazards of the operation, on September 22, 2005, "a team

of FBI sniper-observers initiated surveillance of the Ojeda

residence." Their surveillance "continue[d] until September 23,

2005."

The parents of Soto-Torres lived within "hundreds of

feet" of this Ojeda target residence. The two properties did not

adjoin, and from Soto-Torres's parents' home "there was no

visibility toward the targeted residence" due to "the topography of

the place." No warrant was requested to search Soto-Torres's

parents' property. During the period of the FBI surveillance,

Soto-Torres went to his parents' property "on a daily basis" to

feed his horse.

On September 23, 2005, at approximately 3:45 p.m., SotoTorres arrived at his parents' property to feed his horse and work

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on fences on the property. At some point between 4:10 p.m. and

4:15 p.m., two unidentified helicopters flew overhead and "several

vehicles . . . full of armed federal agents" arrived at the

property.

Soto-Torres alleges that these agents "assaulted and

pushed [him] to the floor" and that he was subsequently "detained

and handcuffed behind his back for almost four hours" while being

"strongly interrogated by several federal agents." He alleges 2

that the agents "pointed their firearms" toward him for "most of"

this time and threatened to put him in prison. He alleges that he

was not told what was happening until his eventual release at

around 8:00 p.m., "having be[en] placed under the most severe

mental distress for almost four (4) hours." As injury, he alleges

that this detention and treatment caused him "physical harm and

emotional suffering," such that he "required psychological and

medical treatment."3

The complaint's allegations that Soto-Torres was 2

"illegally and unreasonabl[y] detained" and that "excessive force"

was used in pushing him to the floor are legal conclusions that are

not to be credited. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950

(2009). 

He also claims that there were several residences closer 3

to the targeted residence in which no one was detained or

handcuffed.

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Soto-Torres does not allege that SAC Fraticelli was 4

present when these events occurred or that Fraticelli witnessed

their occurrence. Rather, he makes only two relevant allegations. 

He alleges that Fraticelli "was the officer in charge during the

incident" and that he "participated in or directed the

constitutional violations alleged . . . or knew of the violation[s]

and failed to act to prevent them." These are the only allegations

that address Fraticelli's involvement in Soto-Torres's detention.5

Each of the FBI's fifty-six field offices, also called 4

divisions, across the United States and in Puerto Rico is overseen

by a Special Agent in Charge (SAC), except for the field offices in

Los Angeles, New York City, and Washington, D.C., which are headed

by Assistant Directors in Charge due to those offices' large size. 

See Local FBI Offices, http://www.fbi.gov/contact-us/field (last

visited Aug. 12, 2011).

Soto-Torres's complaint also alleges that his detention 5

would have been prevented if the FBI had taken the time to

"investigate and to determine who [he] was" prior to executing the

warrant, and that "Fraticelli incurred [sic] in deficient decisions

reflecting inadequate assessment of the known circumstances leading

to the detention." The complaint states that the FBI began

surveillance on September 19 "following and receiving direct orders

from defendant Fraticelli," that Soto-Torres went to his "parent's

property on a daily basis . . . in the same vehicle which was

registered under his name and address," and consequently that the

FBI agents would have been "able to get the vehicle's license

plates to determine who [he] was and to investigate all they

need[ed] to know about the property owners in the property

registry." 

All of these allegations are beside the point because the

complaint does not allege that this purported omission was itself

unconstitutional, nor would the law support such a claim. See

Daniels v. Williams, 474 U.S. 327, 333 (1986) ("[I]njuries

inflicted by governmental negligence are not addressed by the

United States Constitution."); Billington v. Smith, 292 F.3d 1177,

1190 (9th Cir. 2002) ("The Fourth Amendment's 'reasonableness'

standard is not the same as the standard of 'reasonable care' under

tort law, and negligent acts do not incur constitutional

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II.

The district court's denial of Fraticelli's qualified

immunity defense is immediately appealable as a final decision

within the meaning of 28 U.S.C. § 1291. See Iqbal, 129 S. Ct. at

1947. We review de novo the court's denial of Fraticelli's motion

for judgment on the pleadings. See Perez-Acevedo v. Rivero-Cubano,

520 F.3d 26, 29 (1st Cir. 2008).

A. Bivens, Qualified Immunity, and the Pleading Requirements

Bivens establishes, as a general proposition, "that

victims of a constitutional violation perpetrated by a federal

actor may sue the offender for damages in federal court despite the

absence of explicit statutory authorization for such suits." Ruiz

Rivera v. Riley, 209 F.3d 24, 26 (1st Cir. 2000) (quoting Wright v.

Park, 5 F.3d 586, 589 n.4 (1st Cir. 1993)) (internal quotation mark

omitted). This implied cause of action is the federal analog to

§ 1983 suits against state officials. Iqbal, 129 S. Ct. at 1948. 

"The purpose of Bivens is to deter individual federal officers from

committing constitutional violations." Chiang v. Skeirik, 582 F.3d

238, 243 (1st Cir. 2009) (quoting Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 70 (2001)) (internal quotation marks omitted).

A government officer is entitled to qualified immunity

from Bivens liability on a Rule 12(c) motion unless (1) "the facts

that a plaintiff has alleged . . . make out a violation of a

liability.").

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constitutional right" and (2) "the right at issue was 'clearly

established' at the time of [the official's] alleged misconduct." 

Pearson v. Callahan, 129 S. Ct. 808, 816 (2009). A right is

clearly established only if "it would be clear to a reasonable

officer that his conduct was unlawful in the situation he

confronted." Brosseau v. Haugen, 543 U.S. 194, 199 (2004); see

also Mlodzinski v. Lewis, Nos. 10-1966, 10-1967, 2011 WL 2150741,

at *6 (1st Cir. June 2, 2011).

A plaintiff bringing a Bivens action "must plead that

each Government-official defendant, through the official's own

individual actions, has violated the Constitution." Iqbal, 129 S. 6

Ct. at 1948. There is no vicarious liability. See id. (citing

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)).

As to an assertion of supervisory liability, we held in

Maldonado that a supervisor may not be held liable for the

Although one line of Soto-Torres's complaint alleges he 6

was unlawfully arrested, the remainder of the complaint makes clear

that the purported basis for Soto-Torres's claim is not that he was

unlawfully arrested, but rather that he was detained, allegedly, in

violation of the Fourth Amendment. In the Fourth Amendment

context, to make out a claim of unlawful detention, the plaintiff

must sufficiently allege that the detention was not supported by

reasonable suspicion. Morelli v. Webster, 552 F.3d 12, 19 (1st

Cir. 2009). Soto-Torres also alleges that excessive force was

used. To make out a claim of excessive force, the standard is

whether the force used was unreasonable under the circumstances. 

Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007); see also

Mlodzinski v. Lewis, Nos. 10-1966, 10-1967, 2011 WL 2150741 (1st

Cir. June 2, 2011) (addressing claim of excessive force in

qualified immunity framework and ordering immunity on claims of

prolonged detention in handcuffs).

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constitutional violations committed by his or her subordinates,

unless there is an "'affirmative link' between the behavior of a

subordinate and the action or inaction of his supervisor . . . such

that the supervisor's conduct led inexorably to the constitutional

violation." 568 F.3d at 275 (quoting Pineda v. Toomey, 533 F.3d

50, 54 (1st Cir. 2008)) (internal quotation marks omitted).7

In determining whether the facts alleged in the complaint

are sufficient to survive the Rule 12(c) motion, we employ a

two-pronged approach. The first prong is to identify the factual

allegation and to identify statements in the complaint that merely

offer legal conclusions couched as facts or are threadbare or

conclusory. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12

(1st Cir. 2011). "[S]ome allegations, while not stating ultimate

legal conclusions, are nevertheless so threadbare or speculative

that they fail to cross 'the line between the conclusory and the

factual.'" Peñalbert–Rosa v. Fortuño-Burset, 631 F.3d 592, 595

(1st Cir. 2011) (quoting Twombly, 550 U.S. at 557 n.5).

The second prong is to ask whether the facts alleged

would "allow[] the court to draw the reasonable inference that the

In Maldonado we observed that "recent language from the 7

Supreme Court may call into question our prior circuit law on the

standard for holding a public official liable under § 1983 [and

Bivens] on a theory of supervisory liability." Maldonado, 568 F.3d

263, 274 n.7 (1st Cir. 2009) (citing Iqbal, 129 S. Ct. at 1948). 

However, as in Maldonado, "[w]e need not resolve this issue . . .

because we find that [Soto-Torres has] not pled facts sufficient to

make out a plausible entitlement to relief under our previous

formulation of the standards for supervisory liability." Id. 

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defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct.

at 1949. "The make-or-break standard . . . is that the combined

allegations, taken as true, must state a plausible, not a merely

conceivable, case for relief." Sepúlveda–Villarini v. Dep't of

Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010). "The plausibility

standard is not akin to a 'probability requirement,' but it asks

for more than a sheer possibility that a defendant has acted

unlawfully." Id. (quoting Iqbal, 129 S. Ct. at 1949) (internal

quotation marks omitted).

When a complaint pleads facts that are "'merely

consistent with' a defendant's liability, it 'stops short of the

line between possibility and plausibility of entitlement to

relief.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at

557).

B. The Insufficiency of the Complaint

Soto-Torres essentially brings this suit on a theory of

supervisory liability. The only allegations in the complaint

linking Fraticelli with the detention of Soto-Torres are that

Fraticelli "was the officer in charge during the incident" and that

he "participated in or directed the constitutional violations

alleged herein, or knew of the violation[s] and failed to act to

prevent them." Iqbal and our precedents applying it make clear

that these claims necessarily fail.

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As our discussion of the law of supervisory liability

makes clear, the allegation that Fraticelli was "the officer in

charge" does not come close to meeting the required standard.

While the complaint states that Fraticelli "participated

in or directed the constitutional violations alleged herein," it

provided no facts to support either that he "participated in" or

"directed" the plaintiff's detention. In some sense, all high

officials in charge of a government operation "participate in" or

"direct" the operation. Iqbal makes clear that this is plainly

insufficient to support a theory of supervisory liability and fails

as a matter of law.

For the complaint to have asserted a cognizable claim, it

was required to allege additional facts sufficient to make out a

violation of a constitutional right. Those additional facts would

then be measured against the standards for individual liability. 

The complaint would have had to plead facts supporting a plausible

inference that Fraticelli personally directed the officers to take

those steps against plaintiff which themselves violated the

Constitution in some way. Such a pleading would then have been

tested to see whether the standards for immunity had been met. But

in this case, the complaint does not even meet the first prong of

our two-part Iqbal inquiry.

Our precedents make clear that it is not enough to state

that a defendant "was the officer in charge during the incident"

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and that he "participated in or directed the constitutional

violations" alleged. We so held in Maldonado, where we dismissed 8

a claim against a mayor who promulgated a no-pets policy in

municipal housing properties that led to the killing of pets by

subordinate officials. 568 F.3d at 273-74. We explained the

dismissal by observing that the mayor's alleged level of

involvement in the killing of the pets was "insufficient to support

a finding of liability," id. at 273, even though the complaint

alleged that the mayor observed one of the raids and "supervised,

directly or indirectly, the agencies involved," id. at 274. The

complaint identified "no policy which authorized the killing of the

pets, much less one which the Mayor authorized." Id. at 273. It

is also the effect of our ruling in Peñalbert–Rosa, where we held

that a complaint did not sufficiently allege the involvement of a

governor in the alleged politically motivated termination of the

plaintiff, who worked at the governor's mansion. 631 F.3d at 595. 

The district court erred as a matter of law when it 8

disregarded this clear statement in Maldonado. The district court

treated the reasoning of Maldonado as inapplicable to this case

because the portions of Maldonado that laid out the requirements

for supervisory liability concerned a Fourteenth Amendment

substantive due process claim, whereas here, Soto-Torres attempts

to state a supervisory liability theory for violation of his Fourth

Amendment rights. However, the constitutional source of a

plaintiff's claims are irrelevant to this court's analysis of

whether a plaintiff has satisfactorily articulated a supervisory

liability theory. Neither Maldonado nor Iqbal suggest that

supervisory liability theories should be treated differently based

on whether they are made to support a claim under the Fourth

Amendment or the Fourteenth Amendment.

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The complaint merely stated that the governor was in charge of

approving all personnel decisions at the mansion, including the

termination of the plaintiff, and that the governor "knew or

assumed" that the plaintiff belonged to a different political

party. Id.9

Soto-Torres's allegations about Fraticelli's active

involvement are no more concrete than those of the plaintiff in

Iqbal. The plaintiff in Iqbal alleged that Attorney General

Ashcroft and FBI Director Mueller "knew of, condoned, and . . .

agreed to subject" him to harsh conditions of detention, and that

Ashcroft was the "principal architect" of the policy that led to

his detention and that Mueller was "instrumental" in adopting and

executing it. Iqbal, 129 S. Ct. at 1951. The Court deemed those

bare allegations to be too conclusory to be "entitled to the

assumption of truth." Id.

As to Soto-Torres's alternative formulation that

Fraticelli "knew of the violation[s] and failed to act to prevent

them," his factual allegations are again insufficient. The

Pineda v. Toomey, 533 F.3d 50 (1st Cir. 2008), a pre- 9

Iqbal case in this circuit, also supports the proposition that

stating that a defendant was "in charge," without more, is

insufficient to support a theory of supervisory liability. Id. at

54-55 (holding that plaintiff failed to "affirmatively link[]," id.

at 55, defendant Boston Police sergeants to alleged constitutional

violations by subordinate officers where defendant sergeants

neither authorized nor witnessed alleged constitutional violations,

were not at the scene when alleged violations took place, and were

unaware of plaintiff's existence at the time of alleged

violations).

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complaint does not provide facts regarding what Fraticelli is

alleged to have known when, nor does it specify how he is alleged

to have known it, or how he somehow personally caused the

detention.

Soto-Torres has been unable to provide adequate facts

although he has twice amended his complaint over a period of many

years. If Soto-Torres "had any basis beyond speculation for

charging [Fraticelli] with knowing participation in the wrong, it

seems almost certain that this would have been mentioned." 

Peñalbert-Rosa, 631 F.3d at 596.

III.

We reverse and direct judgment in favor of Fraticelli

on grounds of qualified immunity.

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