Colon-Morales v. Jusino-Henrry et al

Filing 14

ORDER granting 13 Motion to Dismiss. We dismiss Plaintiff's claims against the Commonwealth of Puerto Rico and the Administration of Corrections. Since Defendant Andres Jusino-Henry has not been properly served, there being no excuse for such failure, the case as to Defendant Andres Jusino-Henry is dismissed without prejudice for failure to prosecute diligently. Judgment to be entered accordingly. Signed by Chief Judge Jose A Fuste on 4/15/2010. (mrj)

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U N IT E D STATES DISTRICT COURT D IS T R IC T OF PUERTO RICO A L E X IS COLÓN-MORALES, Plaintiff, v. A N D R E S JUSINO-HENRY, C O M M O N W E A L T H OF PUERTO RICO, a n d PUERTO RICO ADMINISTRATION OF C O R R E C T IO N S , Defendants.

C i v il No. 09-1790 (JAF)

ORDER P lain tiff sues pro se under 42 U.S.C. § 1983 alleging that Defendants, acting under color o f state law, violated his federal rights. (Docket No. 3.) Defendants Commonwealth of Puerto R ico ("Commonwealth") and its Administration of Corrections ("AOC") now move for d is m is s a l under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff has failed to s ta te a claim under § 1983 and that they are entitled to sovereign immunity under the Eleventh A m e n d m e n t of the U.S. Constitution. (Docket No. 13.) Because we dismiss Plaintiff's claims ag ains t the movants on the latter ground, we need not address the former.1

We note for the sake of clarity that the movants' argument that Plaintiff's failure to plead the date of the alleged violation entitles all defendants to dismissal (see Docket No. 13 at 6) lacks merit. Statute of limitations is an affirmative defense; we grant a Rule 12(b)(6) dismissal on those grounds only where it is clear on the face of a plaintiff's complaint that a defendant is entitled to same. See, e.g., Santana-Castro v. Toledo-Dávila, 579 F.3d 109, 113-14 (1st Cir. 2009).

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U n d e r the Eleventh Amendment, "an unconsenting State is immune from federal-court s u its brought by its own citizens as well as by citizens of another State." Edelman v. Jordan, 4 1 5 U.S. 651, 663 (1974). A public institution also may benefit from sovereign immunity if it " is to be treated as an arm [or alter ego] of the State." Ainsworth Aristocrat Int'l Pty. Ltd. v. T o u ris m Co., 818 F.2d 1034, 1036 (1st Cir. 1987) (quoting Mt. Healthy City Sch. Dist. Bd. of E d u c . v. Doyle, 429 U.S. 274, 280 (1977)). "Puerto Rico, despite the lack of formal statehood, e n jo ys the shelter of the Eleventh Amendment in all respects." Ramirez v. P.R. Fire Serv., 715 F .2 d 694, 697 (1st Cir. 1983). B ecau se the Commonwealth has not consented to litigation in this case and because AOC is an administrative organ of the Commonwealth, see, e.g., Rodriguez-Narvaez v. Pereira, 552 F . Supp. 2d 211, 217 (D.P.R. 2007), both are entitled to sovereign immunity. We, therefore, c a n n o t hear Plaintiff's claims against them. G iv e n the foregoing, we hereby GRANT the Commonwealth and AOC's motion to d is m is s (Docket No. 13), and DISMISS Plaintiff's claims against them (Docket No. 3). L a stly, since Defendant Andrés Jusino-Henry has not been properly served, there being n o excuse for such failure, the case as to Defendant Jusino-Henry is dismissed without prejudice f o r failure to prosecute diligently. I T IS SO ORDERED. S a n Juan, Puerto Rico, this 15 th day of April, 2010. s/ José Antonio Fusté JOSE ANTONIO FUSTE Chief U.S. District Judge