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

Filing 66

ORDER re 59 Response to Order to Show Cause filed by Hazel Russell-McMillan, Luis Costas-Elena, Conjugal Partnership Costas-Russell; 52 Order to Show Cause. We ORDER judgment on the pleadings for Defendants Henry Paredes, Carmen Despradel, and th eir conjugal partnership (Neighbors). We: 1) DISMISS all federal claims against Neighbors WITH PREJUDICE and all Puerto Rico claims against Neighbors WITHOUT PREJUDICE; 2) DENY AS MOOT the motion to dismiss filed by the Municipality of San Juan; 3) DISMISS AS MOOT Neighbors' counterclaim against Plaintiffs; Municipality and Andres Rivera's cross-claim against Neighbors; Neighbors' cross-claim against Municipality, Rivera, Fernando Cordero, and their conjugal partnerships, and unk nown insurers; Neighbors' third-party complaint against PREPA and unknown insurers; PREPA's counterclaim against Neighbors; and PREPA's claim against Municipality; and 4) RETAIN only Plaintiffs' claims against Municipality, Rivera, and Cordero under federal and Puerto Rico laws. Signed by Chief Judge Jose A Fuste on 12/11/09.(mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO L U IS COSTAS-ELENA, et al., Plaintiffs, v. M U N IC IP A L IT Y OF SAN JUAN, et al., D e f e n d a n ts . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----- - - - - - - - - - - - - - - - P U E R T O RICO ELECTRIC POWER A U T H O R IT Y , C ro s s -C la im Plaintiff, v. M U N IC IP A L IT Y OF SAN JUAN, C ro s s -C la im Defendant.

C i v il No. 08-2403 (JAF)

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ORDER O n October 28, 2009, we issued an Opinion and Order that required Plaintiffs to show c a u se as to why we should not order sua-sponte judgment on the pleadings in favor of D e f e n d a n ts Henry Paredes, Carmen Despradel, and their conjugal partnership ("Neighbors"). (D o ck et No. 52.) Plaintiffs submitted a brief in response on November 18. (Docket No. 59.)

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In ordering Plaintiffs to show cause, we reasoned that the pleadings in this case cannot e sta b lis h Neighbors' liability under 42 U.S.C. § 1983.1 (Docket No. 52.) Specifically, we o b s e rv e d that Neighbors' procurement of a permit to trim tree branches did not transform th e m into state actors for the purposes of § 1983. (Id.) Plaintiffs respond by arguing that they have sufficiently alleged Neighbors' willful joint action with state actors as the basis for N eigh b o rs' liability. (Docket No. 59.) S e c tio n 1983 permits plaintiffs to sue defendants who acted under the color of state o r territorial law to deprive plaintiffs of their federal rights. 42 U.S.C. § 1983. For a private p e rs o n to incur liability, "the alleged deprivation must be `fairly attributable to the State.'" G o n zá lez-M o rales v. Hernández-Arencibia, 221 F.3d 45, 49 (1st Cir. 2000) (quoting Lugar v . Edmondson Oil Co., 457 U.S. 922, 937 (1982)). T h e fair attribution test requires both a state policy and a state a c to r. The state policy component requires that the deprivation b e caused by the exercise of some right or privilege created by th e State or by a rule of conduct imposed by the State or by a p erso n for whom the State is responsible. The state actor

"The standard for evaluating a Rule 12(c) motion for judgment on the pleadings is essentially the same as that for deciding a Rule 12(b)(6) motion." Asociación de Subscripción Conjunta del Seguro de Responsabilidad Obligatorio v. Flores Galarza, 484 F.3d 1, 22 (1st Cir. 2007) (quoting Pasdon v. City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005)); see Fed. R. Civ. P. 12(c). Borrowing from the standard for dismissal under Rule 12(b)(6), "a [movant's] obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Morales-Tañon v. P.R. Elec. Power Auth., 524 F.3d 15, 18 (1st Cir. 2008) (internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff's complaint and the defendant's answer "must contain factual allegations sufficient to `raise a right to relief above the speculative level.'" Id. (quoting Twombly, 550 U.S. at 555).

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Civil No. 08-2403 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 c o m p o n e n t requires that the party charged with the deprivation m u s t be a person who may fairly be said to be a state actor. A d e f e n d a n t may be a state actor because he is a state official, b e c a u s e he acted together with a state official, or because his c o n d u c t is otherwise chargeable to the State.

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Id . (internal quotation marks and citations omitted). With respect to joint action with state o f f ic ia ls , it suffices if the defendant "is a willful participant in joint activity with the State o r its agents." Casa Marie, Inc. v. Superior Court, 988 F.2d 252, 259 (1st Cir. 1993). "It is o b v io u s , nonetheless, that something more than mere resort to a state court is required to tra n sf o rm the [defendant] into a `co-conspirator or a joint actor with the judge.'" Id. (quoting D e n n is v. Sparks, 449 U.S. 24, 28 (1980)). In the instant case, Plaintiffs set forth four groups of allegations against Neighbors. (D o c k e t No. 1.) First, Plaintiffs aver that Neighbors twice permitted persons to invade P l a i n t if f s ' property prior to May 27, 2008, to cause damage to Plaintiffs' arbor and s h ru b b e ry. (Docket No. 1.) Second, Plaintiffs accuse Neighbors of (1) intentional failure to notify Plaintiffs or to afford them an opportunity for a fair hearing prior to the deprivation; (2 ) destruction of wooden structures in Plaintiffs' garden through careless trimming of tree b ra n c h e s; (3) public takings of 1,250 square feet of Plaintiffs' property without just c o m p e n s a tio n from May 27, 2008, through June 5, 2008; (4) destruction of trees on P la in t if f s ' property; (5) destruction of plants in Plaintiffs' garden; and (5) destruction of a p a r tic u l a r tree that was then in full bloom. (Id.) Third, in their recitation of facts, Plaintiffs a lle g e that municipal workers entered Neighbors' property to conduct the tree trimming on

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M ay 27, 2008, and informed Plaintiffs that Neighbors had requested the tree cutting a year p rio r. (Id.) Lastly, Plaintiffs aver generally that Neighbors "acted jointly and concertedly w ith other defendants" to deprive Plaintiffs of their property, without notice, from May 27 thro u g h June 5, 2008.2 (Id.) In their answer, Neighbors allege that they had procured a permit from the Puerto Rico N a tu ra l Resources Department ("DRNA") to trim tree branches on their property that in te rf e re d with electric power lines. (Docket No. 21.) Municipal workers then proceeded to trim pursuant to the permit. (Id.) Neighbors also aver that Plaintiffs had, on two prior o c c as io n s , complained bitterly and called the police when employees of the Puerto Rico E le c tric Power Authority ("PREPA") entered a public servitude between Plaintiffs' and N eigh b o rs' properties to trim branches that obstructed power lines. (Id.) A p p lyin g the Rule 12(c) standard and the state action doctrine to Plaintiffs' first set o f allegations predating May 27, 2008 (Docket No. 1) and Neighbors' answer (Docket N o . 21), we must infer either that the alleged trespassers were non-governmental, or that N e ig h b o rs had not coordinated with PREPA to harm Plaintiffs' property from the public s e rv itu d e . See González-Morales, 221 F.3d at 49. As for Plaintiffs' subsequent litany of a v e rm e n ts against Neighbors, none of these alleged acts on their face involved the g o v ern m en t of Puerto Rico. (See Docket No. 1.)

In responding to our order to show cause, Plaintiffs also adduce voluminous evidence that, as Rule 12(c) suggests, does not relate to the pleadings at issue. (See Docket Nos. 59; 62.)

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T h e only indications of state involvement appear in Plaintiffs' third set of allegations a n d in Neighbors' answer, i.e., the presence of municipal workers on Neighbors' property an d Neighbors' application for a DNRA permit to trim trees. (Docket Nos. 1; 21.) Under th e fair attribution test for state action, Neighbors' procurement of the permit constitutes an e x e rc is e of a privilege under Puerto Rico law that meets the state policy prong. See G o n z á le z -M o ra le s , 221 F.3d at 49. To be deemed a state actor under the second prong, h o w e v e r, Neighbors had to willfully act in concert with state officials beyond mere resort to a privilege granted by law. See id. In Dennis v. Sparks, the private defendant allegedly c o n s p ire d with the judge through bribery to obtain a judicial decree. 449 U.S. at 28. Here, th e presence of municipal workers on Neighbors' land suggests no more than that Neighbors h a d requested a tree trimming and permitted state workers to execute the desired action. L a stly, Plaintiffs' bald assertion that Neighbors "acted jointly and concertedly with o th e r defendants" (Docket No. 1) is the sort of unsupported legal conclusion that is given no w e ig h t under the relevant standard for dismissal on the pleadings. See Ashcroft v. Iqbal, 129 S . Ct. 1937, 1949-50 (2009) ("[W]here the well-pleaded facts do not permit the court to infer m o re than the mere possibility of misconduct, the complaint has alleged ­ but it has not `sh o w [ n ]' ­ `that the pleader is entitled to relief.'" (quoting Fed. R. Civ. P. 8(a)(2))); G a g lia rd i v. Sullivan, 513 F.3d 301, 305-06 (1st Cir. 2008). Plaintiffs' unsubstantiated a v e rm e n t simply recites the First Circuit test for state action without elucidating the factual b a sis for Neighbors' alleged conspiracy with state officials to take Plaintiffs' property. The

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a ss e rtio n also cannot augment Plaintiffs' other allegations, which we have determined to be leg a lly insufficient. We, therefore, find that the pleadings, when construed in the light most f a v o ra b le to Plaintiffs, do not entitle them to relief against Neighbors under § 1983. A c c o rd in g ly, we hereby ORDER judgment on the pleadings for Neighbors. We: 1 ) DISMISS all federal claims against Neighbors (Docket No. 1) WITH P R E J U D IC E and all Puerto Rico claims against Neighbors (id.) WITHOUT PREJUDICE; 2 ) DENY AS MOOT the motion to dismiss filed by the Municipality of San Juan (" M u n icip a lity" ) (Docket No. 42); 3 ) DISMISS AS MOOT Neighbors' counterclaim against Plaintiffs (Docket No. 21); M u n icip a lity and Andrés Rivera's cross-claim against Neighbors (Docket No. 22); N e ig h b o rs' cross-claim against Municipality; Rivera, Fernando Cordero, and their conjugal p a rtn e rsh ip s; and unknown insurers (Docket No. 24); Neighbors' third-party complaint a g a in st PREPA and unknown insurers (Docket No. 26); PREPA's counterclaim against N e ig h b o rs (Docket No. 37); and PREPA's claim against Municipality (Docket No. 38); and 4 ) RETAIN only Plaintiffs' claims against Municipality, Rivera, and Cordero under f e d e ra l and Puerto Rico laws (Docket No. 1). I T IS SO ORDERED. S a n Juan, Puerto Rico, this 11 th day of December, 2009. s /J o s é Antonio Fusté J O S E ANTONIO FUSTE C h ie f U.S. District Judge