BRIAN FERNÁNDEZ-SALICRUP, individually and in representation of his minor children; MARÍA RAMOS-SANTIAGO, individually and in representation of her minor children; F.-R., minor; J.F.-R., minor; CONJUGAL PARTNERSHIP Fernández-RAMOS, Plaintiffs, Appellants,
JOSÉ FIGUEROA-SANCHA, Superintendent of the Police Department; JOSÉ L. CALDERO-LÓPEZ, Colonel, Director of the Carolina Police Region; JOSÉ LUIS DÍAZ-PORTALATÍN, Captain; GINNETTE ROSADO, Police Officer, Defendants, Appellees
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Aida M. Delgado-Colón, U.S. District Judge.
Eduardo Vera Ramírez, with whom Landrón Vera, LLC, Eileen Landrón Guardiola, and Luis Rodríguez Muñoz, were on brief, for appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General, with whom Margarita L. Mercado-Echegaray, Solicitor General, and Zarel Soto-Acabá, Assistant Solicitor General, were on brief, for appellees Figueroa-Sancha, Caldero-López,
Díaz-Portalatín, and Rosado.
Zarel Soto-Acabá, Assistant Solicitor General, with whom Margarita L. Mercado-Echegaray, Solicitor General, and Susana I. Peñagarícano-Brown, Assistant Solicitor General, were on brief, for appellee Figueroa-Sancha.
Before Torruella, Thompson, and Kayatta, Circuit Judges.
TORRUELLA, Circuit Judge.
On October 8, 2010, Plaintiffs Brian Fernández-Salicrup, Marí a Ramos-Santiago, and the Conjugal Partnership formed between them -- on their own behalf and on behalf of their minor children Valerie
Fernández-Ramos (" Fernández" ) and Jesús Fernández-Ramos -- filed suit against Puerto Rico Police Department (" PRPD" ) Superintendent José Figueroa-Sancha (" Figueroa" ), PRPD Carolina Regional Director José Caldero-López (" Caldero" ), PRPD Canóvanas District Commander Luis
Díaz-Portalatín (" Díaz" ) (collectively, the " Supervisory Defendants" ), and PRPD officer Jeanette Rosado (together with the Supervisory Defendants, the " Defendants" ). Plaintiffs alleged, under 42 U.S.C. § 1983 and analogous provisions of the Puerto Rico Civil Code's torts statute, that
Fernández's Fourth, Fifth, Ninth, and Fourteenth Amendment rights were violated when she was unconstitutionally arrested and subjected to excessive force during an incident at the Luis Hernaiz-Veronne High School (the " School" ). Following discovery, the district court struck Plaintiffs' expert report and granted summary judgment in favor of the Supervisory Defendants; shortly thereafter, it dismissed with prejudice the claims against Rosado as well. Plaintiffs now appeal. For the reasons that follow, we affirm the exclusion of the expert report, the grant of summary judgment in favor of the Supervisory Defendants, and the dismissal with prejudice of Plaintiffs' Fourth Amendment excessive force claim against Rosado. As to Plaintiffs' Fourth Amendment unconstitutional arrest claim against Rosado, however, we reverse the dismissal and remand for trial.
A. Factual Background
On October 9, 2009, then-Puerto Rico Governor Luis Fortuño attended an event at the
Jesús T. Piñero Public Housing Project, located across the street from the School. A number of students at the School objected to Fortuño's presence, so, as a form of protest, they threw objects such as eggs, rocks, and tree branches at
the PRPD officers guarding the event and at cars passing through the street. In response,
Díaz, the commanding officer at the scene, instructed a number of police officers -- including Rosado -- to enter the School in order to quiet the situation and arrest those responsible for throwing objects.
Once the officers entered the School's premises, however, the situation turned chaotic. The students, whether they were throwing objects or not, all ran towards the School building. One of those students was
Fernández. Though Fernández never threw anything, she ran away from the PRPD, entered a hallway, closed the gate behind her, and remained nearby. PRPD officers, including Rosado, soon arrived at the gate and ordered
Fernández to open it; she immediately complied.
Upon opening the gate, Rosado spoke to Fernández " in a rough manner" and pushed her aside.
Fernández, not happy with how she was being spoken to, told Rosado not to speak to her like that, to which Rosado answered that she could speak to
Fernández however she liked. Fernández once again expressed her displeasure with Rosado's tone, at which point Rosado " shoved"
Fernández face-first against a wall and placed a handcuff on her left wrist. But before Rosado could finish handcuffing her,
Fernández slipped through the gate in an attempt to escape. As this was occurring, a number of students grabbed
Fernández's right arm and tried to help her by pulling her away from Rosado. This led to a small tug-of-war between Rosado and the students, hurting
Fernández in the process. Ultimately, this escape attempt failed, and Fernández was escorted to the School Director's office.
Fernández was later transported to a nearby police station, and then to the Carolina police headquarters where she was given a citation to appear in court. She, along with nine other students, was charged with violating Article 208 (causing aggravated damages), Article 251 (causing violence against the public authority), and Article 258 (rioting) of the Puerto Rico Penal Code. The charges were eventually dismissed.
B. Procedural Background
Plaintiffs filed suit in the district court on October 8, 2010. Following the onset of discovery, a protracted dispute arose regarding documents in the possession of the PRPD. Because the intricacies of this dispute are relevant to Plaintiffs' claim that the district court erred in excluding their expert's report, we describe the chronology of this dispute in some detail.
o March 29, 2011. Plaintiffs filed a motion to compel documents from non-parties the Internal Investigation Bureau and the Human Resources Office of the PRPD (collectively, the " Non- Parties" ). These documents, Plaintiffs claimed, contained critical information to aid their expert witness, Dr. William Gaut, in refuting Rosado's allegation that
Fernández had reached for Rosado's weapon. Defendants moved to quash the requests the same day, alleging that Defendants had never received a copy of the subpoena served on the Non-Parties and that in any event the requested personnel files
were confidential. On April 5, 2011, the district court issued a show cause order requiring the Non-Parties to explain why the motion to compel should not be granted. On April 22, 2011, the Non-Parties responded, explaining that the documents were confidential, that the request was overly costly and burdensome, and that Plaintiffs refused to examine the files in order to identify the relevant documents to be produced. The district court chose not to immediately resolve the issue, opting instead to leave the motions pending.
o April 20, 2011. Plaintiffs filed a new motion to compel, this time seeking initial disclosures from Defendants. This motion was denied without prejudice on April 23, 2011, because Plaintiffs failed to show that the parties complied with the court's meet and confer requirements.
o April 25, 2011. Plaintiffs re-filed their April 20 motion to compel initial disclosures. This motion provided proof of compliance with the court's meet and confer requirements. The district court chose not to immediately resolve the issue, opting instead to leave the motion pending.
o June 23, 2011. Plaintiffs filed a request for a court order seeking the release of confidential personnel files held by the PRPD. This motion was in response to an April 25, 2011, informative motion by the Non-Parties in which the Non-Parties confirmed their belief that the personnel files being sought by Plaintiffs were confidential and thus could not be released absent a court order. The district court chose not to immediately resolve the issue, opting instead to leave the motion pending.
o August 8, 2011. The district court entered a case management order setting August 30, 2011, as the deadline to serve initial disclosures and December 31, 2011, as the deadline for all discovery. In light of this order, it denied as moot Plaintiffs' April 25, 2011, motion to compel initial disclosures.
o October 24, 2011. Plaintiffs served non-party PRPD with a subpoena to produce documents, information, or objects, or to permit the inspection of premises by November 8, 2011. Both PRPD and Defendants filed motions to quash on November 7, 2011, alleging a lack of proper notice to Defendants and a failure to give PRPD a reasonable time to comply. On November 14, 2011, Plaintiffs filed a motion to compel and for sanctions, arguing that the motions to quash were not justified and that sanctions were in order since the PRPD did not comply with the subpoena by November 8. The motions were referred to a magistrate judge on November 17. The following day, the magistrate judge denied the motions to quash and granted in part and denied in part Plaintiffs' motion. The judge ordered PRPD to produce the documents, information, or objects requested by Plaintiffs by December 2 (later extended until December 16 and then to December 27), but the judge declined to impose sanctions for failure to comply with the subpoena.
o December 1, 2011. The parties attended a status conference with the magistrate judge. At the conference, Plaintiffs complained that while they had retained a police procedure/practice expert, the expert could not complete his report until he received the documents sought in Plaintiffs' motions to compel. Defendants responded that many of the requested documents had already been produced, that some did not exist, and that others -- such as videos and photographs -- were
being located and would be produced. The parties indicated that they would be meeting on December 9 to discuss the PRPD's production in an effort to narrow the remaining issues.
o December 7, 2011. The parties jointly moved for an extension of the discovery deadline to March 31. The district court granted the extension on December 22, 2011, but noted that " [n]o further extensions will be granted" and that the " [f]ailure to abide by the ...