Ocasio-Lozada et al v. USA et al

Filing 33

OPINION AND ORDER GRANTING 22 MOTION for Judgment on the Pleadings Pursuant to Rule 12(c) and DENYING 22 Motion to Dismiss Pursuant to Rule 12(b)(1) filed by Luis S. Fraticelli, USA; DENYING 32 MOTION for Leave to File Reply to Opposition to Mo tion for Judgment on the Pleadings filed by Luis S. Fraticelli, USA. We DISMISS the claim against Fraticelli but RETAIN all claims against the United States and the eight unknown FBI agents and their respective conjugal partnerships. We ORDER the United States to file an answer to the complaint on or before February 18, 2010. Answer deadline due by 2/18/2010. Signed by Chief Judge Jose A Fuste on 2/5/10.(mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO R A F A E L OCASIO-LOZADA, et al., Plaintiffs, v. U N IT E D STATES OF AMERICA, et al., D e f e n d a n ts . C i v il No. 09-1192 (JAF)

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O P I N IO N AND ORDER P la in tif f s, Rafael Ocasio-Lozada, Enid A. Gracia-Berríos, their conjugal partnership, and th e ir children, Karla Jiménez-Gracia, Ángel Ocasio-Gracia, Laura Ocasio-Gracia, and Carolina O c a sio -G ra c ia , and Margarita Berríos-Burgos, bring this action against Defendants, the United S ta te s of America, Luis Fraticelli and his conjugal partnership, and eight unknown agents of the F e d e ra l Bureau of Investigation ("FBI") and their respective conjugal partnerships. (Docket N o . 1.) Plaintiffs seek redress for an illegal search and seizure under Bivens v. Six Unknown N a m e d Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Id.) Plaintiffs also allege v io latio n s of Articles 1802 and 1803 of the Puerto Rico Civil Code, for which redress is sought th ro u g h the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. (Id.) The U n ited States and Fraticelli ("Movants") move for judgment on the pleadings under Federal R u le of Civil Procedure 12(c) and dismissal pursuant to Rule 12(b)(1). (Docket No. 22.) P lain tiff s oppose. (Docket No. 30.)

Civil No. 09-1192 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I. F a c t u a l and Procedural Synopsis

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W e draw the following facts from Plaintiffs' complaint (Docket No. 1). As we must in a d d re ss in g a motion to dismiss, we assume Plaintiffs' factual allegations to be true and make a ll reasonable inferences in their favor. Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008). T h e alleged facts are as follows. Plaintiffs reside in a one-story house with a two-car g a ra g e situated on Ibizco Street in Haciendas de Dorado, a subdivision in Dorado, Puerto Rico. O n July 6, 2007, Plaintiffs were awoken well before dawn by FBI agents knocking on their d o o r . After Rafael opened the door, the agents brandished firearms and arrested him in his u n d e rw e a r, and took him outside in handcuffs. Agents removed his children from the house and th e n proceeded to search the house for firearms. FBI agents also detained Margarita, Enid's elde rly mother, with firearms in hand. After one-and-one-half hours of searching, Enid, who

w a s not at home when the search began, arrived at the house and demanded that the agents p ro d u c e a search warrant. The warrant, issued by a federal magistrate judge on July 5, 2007, d e s c rib e d the target of the search as follows: "Haciendas del Dorado, Calle Begonia, Dorado, P u e rto Rico, further described as a two-story concrete house with a large opened carport on the f irs t floor and stairs leading to the second floor." After the agents admitted that they had m is ta k e n Plaintiffs' home for their intended target, Rafael and Enid denied permission to c o n tin u e searching their house. The agents proceeded to execute their warrant at another lo c a tio n .

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A f te rw a rd s , Fraticelli, FBI director for Puerto Rico, informed the press that the FBI had s e a rc h e d houses in connection with robberies of armored trucks. Defendants' actions caused d a m a g e to Plaintiffs' property and inflicted emotional distress on Plaintiffs. The agents who p a rtic ip a te d in the search wore no identification and did not reveal their names. A s a result of the alleged facts, on February 19, 2008, Plaintiffs filed an administrative co m p la in t against the United States and the FBI requesting investigation of the search. Their re q u e st was denied on September 23, 2008. On February 27, 2009, Plaintiffs commenced the in s ta n t action in federal district court. (Docket No. 1.) Movants moved for judgment on the p le a d in g s and dismissal on December 18 (Docket No. 22), and Plaintiffs opposed on January 20 (D o c k e t No. 30). II. M o tio n to Dismiss Under Rule 12(b)(6) W e construe Movants' motion for judgment on the pleadings as a motion to dismiss u n d e r Rule 12(b)(6) because they have improvidently raised the motion before serving an an sw er on Plaintiffs, see Fed. R. Civ. P. 12(c), and the standards under Rules 12(b)(6) and 12(c) a re identical, see Asociación de Subscripción Conjunta del Seguro de Responsabilidad O b lig a to rio v. Flores Galarza, 484 F.3d 1, 22 (1st Cir. 2007). Under Rule 12(b)(6), a defendant m a y move to dismiss an action against him, based solely on the complaint, for the plaintiff's " f ailu re to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In a ss e ss in g this motion, we "accept[] all well-pleaded facts as true, and we draw all reasonable

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in f e re n c e s in favor of the [plaintiff]." Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962, 9 7 1 (1st Cir. 1993). However, mere legal conclusions "are not entitled to the assumption of tru th ." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). T h e complaint must demonstrate "a plausible entitlement to relief" by alleging facts that d ire c tly or inferentially support each material element of some legal claim. Gagliardi v. S u lliv a n , 513 F.3d 301, 305 (1st Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 5 5 9 (2007)). "Specific facts are not necessary; the statement need only give the defendant fair n o tic e of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U .S . 89, 93 (2007) (quoting Twombly, 550 U.S. at 559) (internal quotation marks omitted). M o v a n ts contend that we should dismiss the case against Fraticelli for Plaintiffs' failure to allege his role in the illegal search and seizure. (Docket No. 22.) In response, Plaintiffs note th a t they averred that Fraticelli spoke to the press and the FBI failed to disclose the names of ag en ts who participated in the search of Plaintiffs' house. (Docket No. 30.) A plaintiff may assert a Bivens action against a federal officer for a warrantless search a n d seizure in violation of the Fourth Amendment. DeMayo v. Nugent, 517 F.3d 11, 14-15 (1st C ir. 2008). However, none of Plaintiffs' allegations implicate Fraticelli in the faulty execution o f the search warrant. (See Docket No. 1.) At most, Plaintiffs complain that Fraticelli's public s ta te m e n ts brought them into disrepute. (See id.) Even if the complaint could be read to imply th a t Fraticelli denied Plaintiffs access to the identity of culpable agents, such conduct would not v io late the U.S. Constitution. Cf. Wilkie v. Robbins, 551 U.S. 537, 549-50 (2007) (noting that

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th e Court has only recognized Bivens actions for searches and seizures in violation of the Fourth A m e n d m e n t , employment discrimination in violation of the Due Process Clause, and violations o f the Eighth Amendment in prisons). Without an allegation of unconstitutional conduct against F ra tic e lli, no action may lie against him under Bivens. See Bivens, 403 U.S. at 389. III. M o tio n to Dismiss Under Rule 12(b)(1) U n d e r Federal Rule of Civil Procedure 12(b)(1), a movant may challenge the court's s u b j e c t- m a tte r jurisdiction by raising a sufficiency challenge. The court takes the plaintiff's " ju ris d ic tio n a lly-s ig n if ic a n t facts as true" and "assess[es] whether the plaintiff has propounded a n adequate basis for subject-matter jurisdiction." Valentín v. Hosp. Bella Vista, 254 F.3d 358, 3 6 3 (1st Cir. 2001). The party asserting jurisdiction bears the burden of showing its existence. S e e Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003). M o v a n t s argue that we should dismiss the action against the United States because P la in tif f s' allegations are conclusory and because the alleged misconduct is beyond the scope o f the FTCA. (Docket No. 22.) Movants portray Plaintiffs' claim as a constitutional violation that is not subject to the United States' waiver of sovereign immunity under the FTCA. (Id.) In response, Plaintiffs note that the FTCA references local tort law and that the Civil Code of P u erto Rico contemplates redress for Plaintiffs' situation. (Docket No. 30.)

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T h e FTCA authorizes actions in tort against the U.S. Government. 28 U.S.C. § 2674. T h e subject-matter jurisdiction of federal district courts over FTCA claims is predicated on a sta tu to ry waiver of sovereign immunity. Id. § 1346(b)(1). This waiver is explicitly limited to: in ju ry or loss of property . . . caused by the negligent or w ro n g f u l act or omission of any employee of the Government w h ile acting within the scope of his office or employment, u n d e r circumstances where the United States, if a private p e rs o n , would be liable to the claimant in accordance with the la w of the place where the act or omission occurred. Id . The FTCA defines government employees to include officers or employees of federal a g e n c ie s, military personnel, and persons acting on behalf of a federal agency in an official c a p a c ity. 28 U.S.C. § 2671. Furthermore, Article 1802 of the Puerto Rico Civil Code provides f o r recovery in tort for the acts and omissions of a defendant that causes injury to a plaintiff, 3 1 L.P.R.A. § 5141 (1990), and Article 1803 provides for vicarious liability, id. § 5142. M o v a n ts point to no authority, nor do we find any, for the proposition that an action c a n n o t lie under the FTCA when the same facts could give rise to a constitutional violation. (S e e Docket No. 22.) The text of 28 U.S.C. § 1346(b) points us to Puerto Rico law for the a p p ro p ria te definition of a cause of action. Moreover, Plaintiffs' detailed averments claim that F B I agents entered their property without proper legal authority and proceeded to detain P lain tiff s without permission, which resulted in both damage to physical property and emotional d is tre ss for Plaintiffs. We find that Plaintiffs have sufficiently pleaded a case against the United S ta te s for its intentional acts and negligence in breach of Article 1802 and the FTCA.

Civil No. 09-1192 (JAF) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IV . C o n c lu s io n

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In view of the foregoing, we hereby GRANT Movants' motion for judgment on the p le a d in g s (Docket No. 22) and DENY Movants' motion to dismiss (id.). We DENY Movants' m o tio n to tender a reply (Docket No. 32). We DISMISS the claim against Fraticelli but R E T A I N all claims against the United States and the eight unknown FBI agents and their re s p e c tiv e conjugal partnerships. L a s t ly, we ORDER the United States to file an answer to the complaint on or before F e b r u a r y 18, 2010. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 5 th day of February, 2010. s /J o s é Antonio Fusté J O S E ANTONIO FUSTE C h ie f U.S. District Judge