Costas Elena, et al v. Municipality of San Juan, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Norman H. Stahl, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [10-1849]

Case: 10-1849

Document: 00116362475

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Date Filed: 04/16/2012

Entry ID: 5633682

United States Court of Appeals
For the First Circuit
No. 10-1849
LUIS COSTAS ELENA; HAZEL RUSSELL-MCMILLAN;
and their CONJUGAL PARTNERSHIP,
Plaintiffs, Appellants,
v.
MUNICIPALITY OF SAN JUAN; ANDRÉS RIVERA; FERNANDO CORDERO,
Defendants, Appellees,
HENRY PAREDES; CARMEN DESPRADEL;
and their CONJUGAL PARTNERSHIP,
Defendants / Third-Party Plaintiffs, Appellees,
PUERTO RICO ELECTRIC POWER AUTHORITY,
Third-Party Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Stahl, and Thompson,
Circuit Judges.
David W. Román, José E. Alfaro-Delgado, and Brown & Ubarri on
brief for appellants.
Jorge R. Quintana-Lajara on brief for appellees Municipality
of San Juan and Andrés Rivera.
Michael C. McCall on brief for appellee Fernando Cordero.
Ernesto R. Irizarry on brief for appellees Henry Paredes,
Carmen Despradel, and their conjugal partnership.
Edwin J. Rivera Maldonado and Carlos M. Aquino Ramos on brief
for appellee Puerto Rico Electric Power Authority.

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THOMPSON, Circuit Judge. Plaintiffs Luis Costas Elena and
Hazel Russell McMillan appeal the district court's dismissal of
their

complaint

alleging

a

host

of

constitutional

violations

instigated by neighboring landowners Henry Paredes and Carmen
Despradel and carried out by the Municipality of San Juan, Puerto
Rico.1

Specifically, the plaintiffs say, Paredes and Despradel

lured the city into killing a botanical menagerie, including lush
trees and rare orchids, that the plaintiffs had maintained on their
property in San Juan.

In the end, however, not a single federal

claim has been pled adequately, so we affirm the dismissal of the
plaintiffs' entire case.
Plaintiffs Costas and Russell had a longstanding feud with
neighboring landowners Paredes and Despradel.

The problem was

rooted in now-deceased vegetation that the plaintiffs describe as
"palm trees, bushes and a large, healthy tree that . . . served as
a sanctuary for wild parrots . . . as well as heliconia and ginger"
but that Paredes and Despradel describe as having been so "wild,
uncultivated, and sparse[]" as to have caused them "miser[y] . . .
and intense suffering."2

According to the plaintiffs, the "large,

1

Technically, the Costas/Russell and Paredes/Despradel
conjugal partnerships are parties, too.
But the conjugal
partnerships do not matter for our purposes, so this is the last we
will say of them.
2

Indeed, Paredes and Despradel alleged that the plaintiffs
allowed "coconuts [to] hang over to [their] back yards, which
exposes anyone in their property to be killed, should a coconut
fall down to the ground."
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healthy tree" (which was also "magnificent and majestic") served as
a marker tree that spanned and defined the boundary between the
plaintiffs' and their neighbors' respective properties.
After years of torment at the sight of the plants next door,
Paredes and Despradel set into motion the destruction of the marker
tree, which they said threatened some nearby power lines. First,
they applied for and the Puerto Rico Natural Resources Department
granted them a permit to take down the tree.
Electric

Power

Authority

allegedly threatened lines.

temporarily

shut

Then the Puerto Rico
off

power

to

the

And from May 27 to June 5, 2008, the

Municipality of San Juan took care of the tree itself, sending
municipal

employees

—

first

Andrés

Rivera

and

then

Fernando

Cordero, both named as defendants — to cut the infringing branches.
As a result of this trimming, the so-called marker tree was left
without any branches (it later died), and the plaintiffs' yard was
left in disarray: the municipal employees "crushed and broke a
metal trellis that harbored 80 or more . . . orchids; crushed and
decapitated many palm trees; [and] crushed and cut many bushes and
plants

.

.

.

including

heliconia

and

ginger."3

They

3

also

Notably, some of the orchids had been "hand-carried" from
Longwood Gardens in Kennett Square, Pennsylvania. This is no small
matter:
Longwood is a very large and world-renowned public garden
[that] features an expansive arboretum where trees and
shrubs are cultivated, immaculate flower gardens,
collections of rare plants, a huge conservatory and
greenhouse complex, architectural displays, a water
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"destroy[ed] a special avocado tree that was in flower to bear
fruit" and had been an anniversary present from Russell to Costas.
As Rivera and then Cordero decimated the plaintiffs' beloved
plants, the plaintiffs challenged each respectively to defend his
actions.

Rivera said he was acting at Paredes's request but

declined to show the plaintiffs any permit; Cordero refused to
provide any information at all.
On December 23, 2008, the plaintiffs filed this federal-court
action against the Municipality of San Juan and Rivera and Cordero
in

their

individual

and

official

capacities

(from

now

on,

collectively the municipal defendants), and Paredes and Despradel
(from now on, collectively the Paredes defendants). The plaintiffs
alleged

violations

of

42

U.S.C.

§

1983

based

on:

(1)

the

Municipality's practice of destroying vegetation without affording
landowners any predeprivation notice or opportunity to be heard —
effectively, a procedural due process claim; (2) the Municipality's
taking of the plaintiffs' various plants without just compensation;
and (3) a broadly-styled claim that the defendants' conduct caused

garden, fountains, an open air theater for the performing
arts, managed meadow and forest lands, wetlands, wildlife
habitats, walking trails, picnic areas, and a variety of
educational and research facilities.
Unionville-Chadds Ford Sch. Dist. v. Chester Cnty. Bd. of
Assessment Appeals, 714 A.2d 397, 398 (Pa. 1998). The New York
Times has described Longwood's conservatory as "a lush, steamy,
orchid-festooned paradise." Carol Kino, A Garden With a Profusion
of Ideas, N.Y. Times, Mar. 14, 2010.
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the plaintiffs "intense pain and suffering" — essentially, a locallaw tort claim.

The complaint set off a flurry of responsive

pleadings.
On

February

25,

2009,

the

Paredes

defendants

answered,

claiming full ownership of the damaged tree but acknowledging that
it encroaches on the plaintiffs' property, alleging that the tree
had threatened nearby power lines, stating that they had therefore
obtained

a

permit

from

the

Puerto

Rico

Natural

Resources

Department, and claiming that their involvement in the tree-cutting
had ended there.

The Paredes defendants also counterclaimed

(1) that the plaintiffs' vegetation offended their right to enjoy
their property and (2) that the plaintiffs were negligent in some
unspecified way.
On February 28, 2009, two of the municipal defendants (the
Municipality

itself

and

Rivera)

answered,

broadly

denying

liability; they also cross-claimed for indemnification from the
Paredes defendants on the basis of a waiver Paredes and Despradel
had allegedly executed.
On

March

cross-claim,

4,

2009,

broadly

the

Paredes

denying

defendants

liability

and

answered
asserting

the
a

counter-cross-claim seeking indemnification from the Municipality
and its insurers because of "obstinacy."

Then on March 11, 2009,

the Paredes defendants filed a third-party complaint against the
"Electric Energy Authority of Puerto Rico," claiming that the

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agency not only induced the Municipality to destroy the plaintiffs'
tree but also sent personnel onto an alleged servitude between the
plaintiffs' and the Paredes defendants' properties in order to
remove plants.
On

March

17,

2009,

the

plaintiffs

answered

the

Paredes

defendants' counterclaims with a broad denial of liability.
On March 20, 2009, Cordero (for some reason not included in
the

Municipality's

original

answer)

answered

complaint with a broad denial of liability.

the

plaintiffs'

And on March 30, 2009,

all three municipal defendants answered the Paredes defendants'
counter-cross-claim, seeking sanctions for the Paredes defendants'
"reckless[] . . . misrepresentation" regarding "obstinacy."
No

doubt

feeling

left

out

from

the

web

of

parties-suing-parties, the Puerto Rico Electric Power Authority
(presumably the same entity as the earlier-named Electric Energy
Authority of Puerto Rico, henceforth PREPA) filed a cross-claim
against the Municipality, seeking indemnification.
So, to sum up: the plaintiffs sued the municipal defendants
and the Paredes defendants.

The Paredes defendants sued the

plaintiffs, the Municipality, and PREPA. The Municipality sued the
Paredes defendants.

And PREPA sued the Municipality.

On October 28, 2009, the court, specifically noting the
apparent absence of state action on the part of the Paredes
defendants,

ordered

the

plaintiffs

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to

show

cause

why

their

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On November 18, 2009, the

plaintiffs responded to the show-cause order but did not convince
the court, which dismissed the plaintiffs' claims as to the Paredes
defendants and kicked out the Paredes defendants' counter-claim
against the plaintiffs.

The court then held that its dismissal of

the claims between the plaintiffs and the Paredes defendants mooted
every remaining claim except the plaintiffs' against the municipal
defendants and the Municipality's waiver-based cross-claim against
the Paredes defendants. The plaintiffs attempted to take this mass
dismissal up on interlocutory appeal but were rebuffed.
On January 8, 2010, the municipal defendants filed their own
motion to dismiss or for judgment on the pleadings, arguing that
the plaintiffs' takings claim was unripe and that their due process
claims failed for want of a property interest.

The plaintiffs

responded on February 1 but again did not convince the court, which
granted judgment on the pleadings dismissing (1) the procedural due
process claim on the unargued ground that any predeprivation
procedure would have been impractical, and (2) the takings claim
and (3) an inferred substantive due process claims for unripeness.4

4

No substantive due process claim as such appears in the
complaint; the district court, however, apparently construed the
complaint as conceivably containing one and rejected any such claim
prophylactically.
The district court also rejected constitutional claims based
on the Fourth Amendment's prohibition against unreasonable seizures
and Article IV § 2's Privileges and Immunities Clause (extended to
Puerto Rico by 48 U.S.C. § 737).
The plaintiffs make no
discernible attempt to resurrect any such claims on appeal.
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The plaintiffs appeal, trying to bring back these three claims
against the Paredes and municipal defendants.
We
judgment

review
on

de

the

novo

the

pleadings

district
under

court's

Fed.

R.

orders

Civ.

P.

entering

12(c)

and

dismissing the complaint. Pérez-Acevedo v. Rivero-Cubano, 520 F.3d
26, 29 (1st Cir. 2008).

We will affirm the dismissal only if,

taking all the complaint's well-pled allegations as true and
viewing the other pleadings in the light most favorable to the
plaintiffs, the complaint still does not allege "enough facts to
state a claim to relief that is plausible on its face."

Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007); Pérez-Acevedo, 520 F.3d
at 29 (applying Twombly to Rule 12(c)).

The plaintiffs argue that

their civil-rights claims — sounding, again, in takings and due
process — survive this test against all the defendants.

For

reasons we will now explain, we disagree and affirm the district
court.
First the plaintiffs contest the grant of judgment on the
pleadings in favor of the Paredes defendants on the civil-rights
claims.

The statutory basis for these claims, 42 U.S.C. § 1983,

renders

persons

acting

under

color

of

constitutional and federal-law violations.5

5

state

law

liable

for

It follows that if the

For purposes of § 1983, Puerto Rico "is deemed equivalent to
a state." Déniz v. Municipality of Guaynabo, 285 F.3d 142, 146
(1st Cir. 2002).
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Paredes defendants did not act under color of state law then they
cannot be liable under § 1983.
The plaintiffs claim that the Paredes defendants acted under
color of state law by working "jointly and concertedly" with the
municipal and commonwealth defendants to violate the plaintiffs'
rights.

This claim both is conclusory — the complaint does not

describe specifically how the Paredes defendants did anything at
all jointly and in concert with the government defendants6 — and is
untethered from any source of legal authority — the plaintiffs make
no attempt to explain how the Paredes defendants fit into the
scheme of § 1983 state-actor jurisprudence.7

Because they present

6

For example, the complaint alleges that "[d]efendant Andrés
Rivera, acting jointly and concertedly with the other defendants,
denuded the said tree and left only its bare skeleton," and that
"[a]t all times pertinent defendants Paredes were present and acted
jointly and concertedly with other defendants in the actions
described herein." The plaintiffs' brief on appeal repeats the
same mantra. But these exceedingly general allegations do not tell
us what the Paredes defendants actually did "jointly and
concertedly with" Andrés Rivera. One imagines that if, e.g., they
had been hacking away at the plaintiffs' plants with machetes, then
the plaintiffs would have presented specific allegations to that
effect.
As it is, because we give no credit to conclusory
allegations, Ashcroft v. Iqbal, 556 U.S. 662, 678, 679, 681, 686
(2009), the plaintiffs' invoking "jointly and concertedly" as magic
words does not "nudge[] their claims across the line from
conceivable to plausible . . . ." Twombly, 550 U.S. at 570.
And, to the extent the plaintiffs attempt to draw us into
reviewing "the voluminous evidence" they submitted, we decline the
invitation, sticking instead to the pleadings and construing all
allegations as favorably to the plaintiffs as grammar and reason
allow.
7

The plaintiffs allude to a three-part test, citing BarriosVelázquez v. Asociación de Empleados del Estado Libre Asociado de
Puerto Rico, 84 F.3d 487, 493 (1st Cir. 1996), but they do not say
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only conclusory and unsupported arguments, the plaintiffs have
failed to provide us with any reason to reinstate their claims
against the Paredes defendants.

Ashcroft v. Iqbal, 556 U.S. 662,

678, 679, 681, 686 (2009) (repeatedly noting that courts are not to
credit conclusory allegations); Rodríguez v. Municipality of San
Juan, 659 F.3d 168, 176 (1st Cir. 2011) (holding that a party's
failure to point us toward the law governing an issue waives the
issue).

We affirm the dismissal of these claims.

Next the plaintiffs ask that we reinstate their takings claim
against the municipal defendants. Their complaint alleged that the
municipal defendants temporarily deprived the plaintiffs of the use
of a corner of their property and permanently deprived them of
certain plants and garden accoutrements, all without stepping
forward to provide just compensation for these deprivations.

The

plaintiffs say these allegations are sufficient to state a claim.
The Fifth Amendment, extended to the states (and Puerto Rico)
by the Fourteenth, permits government takings of private property
only for public use and with just compensation to the individual
deprived of the property.

Déniz v. Municipality of Guaynabo, 285

F.3d 142, 146 (1st Cir. 2002).

A plaintiff may claim a takings

violation via § 1983, but for the claim to be ripe, a plaintiff

what that test is or how their complaint satisfies it.
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must first exhaust any available state remedies.8

Entry ID: 5633682

Id. at 149

(holding that "[a] plaintiff's failure to exhaust the inverse
condemnation remedy renders premature a section 1983 damages action
predicated

upon

an

alleged

takings

violation"9);

see

also

Downing/Salt Pond Partners, L.P. v. Rhode Island, 643 F.3d 16, 2027 (1st Cir. 2011) (discussing the continuing vitality of the
exhaustion

requirement).

This

makes

intuitive

sense:

if

a

plaintiff has not even tried to obtain compensation from the state,
then we cannot say that the state has denied the plaintiff just
compensation.

See Williamson Cnty. Reg'l Planning Comm'n v.

Hamilton Bank of Johnson City, 473 U.S. 172, 194-95 (1985).
The plaintiffs admit that they have not exhausted state
remedies but meanderingly argue that any such attempt would be
futile.

Although the plaintiffs use the word futility, their

argument fits better into a related doctrine: exhaustion is not
required where recourse to state procedures would not provide an
adequate remedy.

See Gilbert v. City of Cambridge, 932 F.2d 51,

64-65 (1st Cir. 1991).

Unfortunately for the plaintiffs, though,

8

The plaintiffs correctly note that § 1983 does not require
them to exhaust state remedies in order to state a claim; however,
that is beside the point.
A successful § 1983 claim must be
grounded in some substantive violation, and a takings violation
requires exhaustion.
9

The inverse-condemnation doctrine allows a plaintiff to seek
a remedy from a government actor that has bypassed the formal
eminent domain process and taken property from the plaintiff.
Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 89 n.1
(1st Cir. 2003).
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they have the burden of proving inadequacy, and (as we will
explain) they have not met this burden.

Id. at 65.

The plaintiffs focus on a small aspect of their takings claim
— the temporary loss of use of a corner of their property — and
cite cases suggesting that Puerto Rico law is not likely to afford
them adequate compensation because this temporary deprivation was
not "substantial." See, e.g., Commonwealth of P.R. v. Northwestern
Const., Inc., 3 P.R. Offic. Trans. 523, 103 P.R. Dec. 377 (1975).
But even assuming that the plaintiffs have accurately characterized
Puerto Rico takings law, their discussion ignores part of their
claim (the alleged taking of the tree, plants, and trellis, all of
which could be deemed "substantial") and fails to "convinc[e] us
that

their

situation

is

outside

condemnation remedy . . . ."

the

[Puerto

Rico]

inverse

Gilbert, 932 F.2d at 65.

The

plaintiffs cannot bypass the exhaustion requirement by carving
their claim into pieces, focusing on the weakest piece, and arguing
that the entire claim will fail if that piece does.

In the end,

their failure to argue that their entire takings claim would afford
them inadequate relief in a state tribunal is fatal to their claim.
See Déniz, 285 F.3d at 149.
On to substantive due process.

The Fourteenth Amendment

prohibits states from depriving any person of life, liberty, or
property without due process of law.

U.S. Const. amend. XIV.

State conduct violates an individual's substantive-due-process

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rights when it is "so brutal, demeaning, and harmful that it is
shocking to the conscience."
20, 30 (1st Cir. 2008).

Maymí v. P.R. Ports Auth., 515 F.3d

Plaintiffs argue now that "the actions of

the Municipality and its officials of cutting down the . . . tree
by surprise and without notice, explanation or opportunity to be
heard when it was easy to do so, certainly satisfies the applicable
'shocks the conscience' test."
This argument fails for a few reasons. First, no substantivedue-process claim as such actually appears in the complaint.
Second, the above quote constitutes the entirety of the plaintiffs'
substantive-due-process argument before us - they make no attempt
at any analysis whatsoever, let alone developed argument. For both
reasons, any such claim is waived.

Rodríguez, 659 F.3d at 175

(noting that "we deem waived claims not made or claims adverted to
in a cursory fashion, unaccompanied by developed argument"). Third
and finally, where a substantive-due-process claim is founded on
the same deprivation as a takings claim, as here, the due process
claim is subject to the same exhaustion requirement as the takings
claim.

Williamson Cnty., 473 U.S. at 199-200; Déniz, 285 F.3d at

149 ("Dressing a takings claim in the raiment of a due process
violation does not serve to evade the exhaustion requirement.").
For

all

these

reasons,

no

substantive-due-process

available to the plaintiffs.

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claim

is

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This leaves only the plaintiffs' procedural-due-process claim.
A government actor violates an individual's procedural-due-process
rights

when

it

deprives

that

individual

affording adequate procedural protections.

of

property

without

See Maymí, 515 F.3d at

29.
Different defendants argue for different reasons that the
plaintiffs have not sufficiently alleged any plausible property
interest.

Though we ultimately reject the plaintiffs' procedural-

due-process claim and therefore need not decide the propertyinterest issue, we note that neither of the defendants' arguments
is convincing.

To start, the Paredes defendants argue that the

tree in which the plaintiffs claim a property interest is, in fact,
entirely on their (the Paredes defendants') property.

But this

argument fails because it presents a factbound question and ignores
the complaint's contrary allegations, which we must honor in the
context of Rule 12(c) motions.

The municipal defendants and PREPA

argue that the complaint is insufficient because the plaintiffs
pled in the alternative that they had either a direct interest in
the tree or else an interest in the shade and security it provided.
But the rules are clear that alternative pleadings are proper, see
Fed. R. Civ. P. 8(d)(2) ("If a party makes alternative statements,
the pleading is sufficient if any one of them is sufficient."), and
the plaintiffs appear to have presented at least one set of facts
sufficient to support a plausible property interest in the tree

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that forms the centerpiece of this litigation.10

Entry ID: 5633682

Finally, looking

past the tree, the plaintiffs alleged the destruction of personal
property including rare orchids, ginger and heliconia plants, an
avocado tree, and a trellis and fence.

No one suggests that the

plaintiffs lacked an interest in these elements of their garden, so
we think the plaintiffs have adequately pled property interests in
them as well as the tree.
Nevertheless, the plaintiffs' claim fails for another reason:
the government's procedure here was constitutionally adequate.
Our

determination

of

"what

process

is

due"

can

be

a

complicated one involving "a myriad of factors," González-Droz v.
González-Colón, 660 F.3d 1, 13 (1st Cir. 2011), but it is made
easier here by the plaintiffs' reliance on a single factor.

They

say that the defendants gave them no predeprivation notice, that
prior notice is the hallmark of procedural due process, and that

10

Specifically, the plaintiffs alleged that the tree was a
"marker tree" skirting the boundary between their property and the
Paredes defendants'. Under Puerto Rico law, a tree that serves as
a boundary marker, as the plaintiffs allege here, may only be
removed by the consent of both adjacent landowners. P.R. Laws Ann.
tit. 31, § 1805. Even if the tree had been almost wholly on the
Paredes defendants' property, the plaintiffs still might have had
some property interest in it: Puerto Rico law gives an adjacent
landowner the right to remove branches and roots to the extent they
extend over the adjacent land.
Id. § 1804.
Otherwise,
tree-trimming and -removal are the province of the landowner or
government.
See, e.g., P.R. Laws Ann. tit. 22, § 196(w)(4)
(requiring that PREPA report on its tree-trimming program); P.R.
Laws Ann. tit. 31, § 1242 (either landowner or "authorities" shall
remove tree that threatens damage). In any event, the plaintiffs'
claim of a property interest in the tree appears to be at least
plausible under Puerto Rico law.
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nothing in this case exempted the defendants from that basic
requirement.

They do not address the adequacy of postdeprivation

procedures, so any argument founded on that line of reasoning is
not before us.11
Although prior notice is generally required for a governmental
deprivation of property to comport with procedural due process, the
Supreme Court has held that there is an exception for cases "where
a State must act quickly, or where it would be impractical to
provide predeprivation process."
930 (1997) (listing cases).

Gilbert v. Homar, 520 U.S. 924,

In Parratt v. Taylor, 451 U.S. 527,

541 (1981) (overruled in part on other grounds by Daniels v.
Williams, 474 U.S. 327, 330-31 (1986)), for example, the Supreme
Court held that predeprivation process is not constitutionally
necessary

in

cases

involving

"random

and

unauthorized"

state

actions. See also Zinermon v. Burch, 494 U.S. 113, 128-30 (1990).
Such "random and unauthorized" property deprivations are perhaps
the most common application of the impracticality exception to
prior notice; however, the variety of other circumstances within
which the exception has been recognized demonstrates that the

11

Other arguments the plaintiffs do not make include: (1)
whether the statute authorizing tree-cutting facially provides
inadequate process (in fact, no party actually discusses the
statutory basis, if any, for the alleged tree-cutting permit); and
(2) whether the Municipality engaged in a pattern of cutting trees
of disputed ownership without notice or opportunity to be heard.
We note these lacunae only to highlight that our opinion is
significantly limited by the parties' arguments.
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exception is a flexible one, see Herwins v. City of Revere, 163
F.3d 15, 18 (1st Cir. 1998) (stating that whether process "needs to
be

furnished

before

the

seizure

.

.

.

depends

on

the

circumstances") — as, in fact, is all due-process jurisprudence,
see, e.g., Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 9 (1st Cir.
2010). In Parratt the Supreme Court briefly described several such
circumstances from past cases, ranging from "the summary seizure
and destruction of drugs without a preseizure hearing" for the
protection of public health, 451 U.S. at 539 (citing Ewing v.
Mytinger &
immediate

Casselberry,
seizure

of

Inc.,

property

339

U.S.

without

594 (1950)),
a

prior

to

"the

hearing

when

substantial questions are raised about the competence of a bank's
management," id. (citing Fahey v. Mallonee, 332 U.S. 245 (1947)).
Though none of these cases is specifically instructive here, we
reiterate

that

impracticality

the

Supreme

reflects

Court's

the

case-by-case

flexibility

approach

of

to

due-process

jurisprudence.
The district court relied on Zinermon and cast the municipal
defendants' actions as "random and unauthorized," but we do not
think that is quite right. Given that the pleadings indicate these
defendants acted on the authority of a specific permit, it is
difficult

to

unauthorized

say
(even

that
if

their
their

actions

were

authorization

-18-

either

random

was

faulty).

or

Case: 10-1849

Document: 00116362475

Page: 19

Date Filed: 04/16/2012

Entry ID: 5633682

Nevertheless, their reliance on the permit does underscore the
reason that predeprivation notice would have been impractical here.
The pleadings show impracticality because, even on the facts
viewed most favorably to the plaintiffs, the municipal defendants
had no reason to know of the plaintiffs' putative property interest
before they undertook the deprivation at issue.
indicate

that

the

government

actors

relied

The pleadings

on

the

Paredes

defendants' representations (or, allegedly, misrepresentations)
that the damaged tree belonged to them (the Paredes defendants).12
It simply would not be practical to require the government to spend
time and treasure investigating the validity of claimed treeownership before undertaking every tree cutting.

And notice

regarding the deprivation of property other than the tree would
have been even less practical, given that such damage was merely
incidental to the cutting of the tree — the allegations are that
the plaintiffs' garden was damaged by branches falling from the
tree, not by any independent acts of the defendants.

If in fact

the Paredes defendants misinformed the municipal defendants in some
way, then perhaps the plaintiffs have some valid tort claim — an

12

The parties dispute whether the municipal defendants cut
down the tree identified by the Paredes defendants in their treecutting application or whether they in fact cut down a different
tree. This dispute is not material. Even taking the set of facts
most favorable to the plaintiffs — in which the Paredes defendants
identified the tree at issue and the municipal defendants destroyed
that same tree — predeprivation notice would have been impractical
because the municipal defendants still would have had no idea of
the plaintiffs' possible interest in the tree.
-19-

Case: 10-1849

issue

Document: 00116362475

we

do

not

Page: 20

decide.13

But

Date Filed: 04/16/2012

the

pleadings

Entry ID: 5633682

show

that

predeprivation process would have been impractical here, and the
plaintiffs neither claim nor argue insufficient postdeprivation
process; therefore, there has been no plausible violation of the
plaintiffs' procedural-due-process rights.
Assuming the plaintiffs' allegations are true, arguably the
destruction of their trees and garden was improper.

But not every

improper act gives rise to a constitutional claim, and we simply
see no such claim on the facts as alleged here.
affirm the district court's dismissal orders.
bear its own costs.

We therefore

Each party shall

So ordered.

13

We note that the district court merely "decline[d]
supplemental jurisdiction over [the plaintiffs'] claims arising
under Puerto Rico law" and stated that the "[p]laintiffs must seek
resolution of their grievances from the Commonwealth, from which
their rights under tort law arise."
Presumably, then, these
claims' dismissal was without prejudice.
-20-