Otero-Vzquez et al v. Ortiz-Chevres et al

Filing 26

ORDER granting in part and denying in part 13 Motion to Dismiss; denying 14 Motion to Dismiss. Defendant Ortiz's Motion to Dismiss is denied. Plaintiffs are hereby afforded until August 29, 2011 to properly serve Defendant Ortiz. Defendants ' Motion to Dismiss is denied as to Plaintiffs' claims of First Amendment violations and granted as to Plaintiffs' claims of due process violations. Accordingly, Plaintiffs' claims of due process violations are dismissed with prejudice. Service of Process Deadline due by 8/29/2011. Signed by Judge Jay A Garcia-Gregory on 7/27/2011. (LL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NYVEA OTERO VAZQUEZ, et al.,
Plaintiff(s)
v.

CIVIL NO. 10-1605 (JAG)

ORLANDO ORTIZ CHEVRES, et al.,
Defendant(s)

OPINION AND ORDER
GARCIA-GREGORY,
Before

the

D.J.
Court

is

Defendant

Orlando

Ortiz

Chevres‟s

Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2)&(5). (Docket
No. 14). Also before this Court is all of the Defendants‟ Motion
to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6). (Docket No. 13).
For the reasons set forth below, the Court hereby DENIES Ortiz‟s
Motion

to

Dismiss

and

GRANTS

in

part

and

DENIES

in

part

Defendants‟ Motion to Dismiss.
FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 2010 Plaintiffs Nivea Otero Vazquez (“Otero”)
and Janet I. Pedroza (“Pedroza”) filed a complaint for violation
of their Civil Rights against Orlando Ortiz Chevres (“Ortiz”),
Charity

Rivera

Vázquez

(“Rivera”),

Emmanuel

Matos

García

(“Matos”), Marialis Figueroa (“Figueroa”), Carlos Rios (“Rios”)
and Insurance Company ABC (“ABC”). (Docket No. 1). Plaintiffs

Civil No. 10-1605 (JAG)

Otero

and

Pedroza,

2

public

employees

in

the

Municipality

of

Naranjito, bring suit under 42 U.S.C. § 1983 and seek damages
suffered

as

a

result

of

political

discrimination

in

the

workplace due to their affiliation with the Popular Democratic
Party (“PDP”).
Following

the

2008

general

elections,

Defendant

Ortiz,

member of the New Progressive Party (“NPP”), was elected Mayor
of Naranjito. Plaintiffs, lifelong members of the PDP, allege
that starting on January 2009 they endured constant comments and
threats from Defendants, suggesting Plaintiffs would not keep
their current positions for long. In addition, the work that was
assigned to them was not related to their career positions, as
only menial tasks and work that had already been completed by
other employees was given to them. Plaintiffs claim the only
motive for these actions was discriminatory since co-Defendants,
all

members

of

the

NPP,

were

well

aware

of

their

political

affiliation with the PDP.
Specifically, Plaintiffs allege, inter alia, that: Rivera
attempted to change Pedroza‟s flexible time schedule, which she
had

due

to

the

Affirmative

Action

Plan

implemented

in

the

office; García required only Otero (and the office Secretary) to
sign

in

every

time

she

left

the

office,

even

for

bathroom

breaks; Garcia moved Otero‟s desk, office and personal effects,
while she was not present, to another desk near the Secretary‟s

Civil No. 10-1605 (JAG)

3

office; García also precluded Otero from accessing audit files
needed to perform her work; Otero and Pedroza were not invited
to several activities sponsored by the Administration of the
Municipality; Otero received a letter alleging “abandonment of
work

area”

and

her

salary

was

retained,

even

though

she

presented a medical certificate evidencing she was ill, and;
Pedroza was transferred to another division where there were no
duties to perform, while her previous position was given to an
NPP employee, and was never given an opportunity to have this
decision reviewed. Plaintiffs informed these grievances to the
Defendants, but no action was taken to resolve the matter.
As a result of Defendants‟ actions, Plaintiffs allege they
have been placed in unreasonable inferior working conditions and
have suffered violations of their First and Fourteenth Amendment
rights, as well as their rights under the laws and Constitution
of the Commonwealth of Puerto Rico. The damages suffered are
estimated in the amount of $3,000,000. Also, Plaintiffs allege
they

are

entitled

to

punitive

damages

in

the

amount

of

$2,000,000.
On October 26, 2010 Defendants filed a Motion to Dismiss
Pursuant to Rule 12(b)(6). Shortly thereafter, Defendant Ortiz
filed

a

Plaintiffs

Motion
timely

Nos. 21, 22).

to

Dismiss

filed

Pursuant

oppositions

to

to

Rule

both

12(b)(2)&(5).

motions.

(Docket

Civil No. 10-1605 (JAG)

4

STANDARD OF REVIEW
Standard of Review under Rule 12(b)(5)
“Effectuation of service is a precondition to suit.”
Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir.1998).
Federal Rule of Civil Procedure 12(b)(5) permits a court to
dismiss an action for “insufficient service of process.” Fed. R.
Civ. P. 12(b)(5). A defendant may “object to the plaintiff's
failure to comply with the procedural requirements for proper
service of the summons and complaint” as set forth in Rule 4.
Thompson v. Sears, Roebuck and Co., No. 04-5342, 2006 WL 573796,
at

2

(E.D.

12(b)(5),

Pa.

the

demonstrating

2006).

party
its

“In

making

validity

resolving
the

when

a

service
an

motion
has

objection

under

Rule

the

burden

of

to

service

is

made.” Id., (citing Reed v. Weeks Marine, Inc., 166 F. Supp. 2d
1052, 1054 (E.D. Pa. 2001).
Standard of Review under Rule 12(b)(6)
The Supreme Court has stated in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), that in order for a complaint to survive a
motion

to

plausible

dismiss

under

entitlement

Caribe,

Inc.,

490

Twombly,

550

U.S.

to

F.3d
at

Rule

12(b)(6),

relief.”

it

must

allege

Rodríguez-Ortiz

92,

95-96

(1st

Cir.

559).

While

Twombly

v.

2007)

does

not

“a

Margo

(quoting
require

heightened fact pleading of specifics, it does require enough

Civil No. 10-1605 (JAG)

facts

to

“nudge

conceivable

to

5

[plaintiffs‟]

across

the

line

from

Twombly,

plausible.”

claims

550

U.S.

at

570.

Accordingly, in order to avoid dismissal, the plaintiff must
provide the grounds upon which his claim rests through factual
allegations sufficient “to raise a right to relief above the
speculative level.” Id. at 555.
In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme
Court recently upheld Twombly and clarified that two underlying
principles must guide this Court‟s assessment of the adequacy of
the plaintiff‟s pleadings when evaluating whether a complaint
can survive a Rule 12(b)(6) motion. See Iqbal, 129 S.Ct. at
1949-50.

First,

allegations

in

the
the

court

must

complaint

as

identify
such

any

conclusory

allegations

are

not

entitled to an assumption of truth. See id. at 1949. “[T]he
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555).
“Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Iqbal, 129 S.Ct. at 1950
(citing

Twombly,

550

U.S.

at

556).

Thus,

any

nonconclusory

factual allegations in the complaint, accepted as true, must be
sufficient to give the claim facial plausibility.

See

id. A

Civil No. 10-1605 (JAG)

6

claim has facial plausibility when the pleaded facts allow the
court to reasonably infer that the defendant is liable for the
specific

misconduct

alleged.

See

id.

at

1949,

1952.

Such

inferences must be more than a sheer possibility and at least as
plausible as any obvious alternative explanation. See id. at
1949,

1951.

Plausibility

is

a

context-specific

determination

that requires the court to draw on its judicial experience and
common sense. See id. at 1950.
DISCUSSION
Motion to Dismiss under Rule 12(b)(2)&(5)
The

Court

will

address,

as

a

threshold

matter,

whether

Ortiz was properly served and, therefore, whether the Court has
personal

jurisdiction

over

Ortiz.

Service,

Plaintiff

attempted

to

According
effect

to

the

Proof

of

on

Ortiz

by

service

leaving a copy of the summons and the complaint with Myrna L.
Santiago
submitted

(“Santiago”).
an

“Unsworn

(Docket
Statement

No.

6,

under

p.

2).

Penalty

Ortiz
of

then

Perjury”

stating he never authorized or appointed Santiago to receive
service on his behalf in his personal capacity. (Docket No. 141). The Courts have held, under Fed.R.Civ.P. 4, that even when a
secretary
individual

is
in

authorized
his

to

official

receive

summons

capacity,

the

on

behalf

secretary

of

may

an
not

receive summons in the individual‟s personal capacity if she has

Civil No. 10-1605 (JAG)

not

been

authorized

to

7

do

so.

See

Figueras

v.

Autoridad

de

Energia Electrica, 553 F.Supp.2d 43 (2007).
Thus, Ortiz has not been properly served in his personal
capacity, and the Court has no personal jurisdiction over this
Defendant. However, “[t]he general rule is that „when a court
finds that service is insufficient but curable, it generally
should quash the service and give the plaintiff an opportunity
to re-serve the defendant.‟ ” Gregory v. United States/United
States Bankruptcy Court for the Dist. of Colo., 942 F.2d 1498,
1500 (10th Cir.1991)(quoting Pell v. Azar Nut Co., 711 F.2d 949,
950 n. 2 (10th Cir.1983)). Therefore, since this Court finds
that Plaintiffs, if given the opportunity, could properly serve
Ortiz in his personal capacity, it will grant additional time
for Plaintiffs to do so.
Motion to Dismiss under Rule 12(b)(6)
Defendants argue that Plaintiffs have failed to plead that
Pedroza and Otero have been deprived of any rights secured by
the

Constitution

of

the

United

States

by

Defendants,

while

acting under color of state law. Defendants further argue that
Plaintiffs

have

not

been

able

to

prove

that

the

challenged

actions occurred due to political discrimination, in accordance
with Mount Healthy City Board v. Doyle, 429 U.S. 274 (1977).
Political

association

is

one

of

the

core

freedoms

guaranteed by the First Amendment. See Elrod v. Burns, 427 U.S.

Civil No. 10-1605 (JAG)

8

347, 354 (1976). The First Circuit has established that a prima
facie case of political discrimination has four elements: “(1)
that

the

plaintiff

and

defendant

have

opposing

political

affiliations, (2) that the defendant is aware of the plaintiff's
affiliation, (3) that an adverse employment action occurred, and
(4) that political affiliation was a substantial or motivating
factor

for

the

adverse

employment

action.”

Lamboy-Ortiz

v.

Ortiz-Vélez, 630 F.3d 228, 240 (1st Cir. 2010) (citing Welch v.
Ciampa, 542 F.3d 927, 938 (1st Cir. 2008)).
According

to

the

Plaintiffs‟

claims,

Defendants

are

all

members of the NPP, while Plaintiffs are active members of the
PDP.

It

is

Plaintiffs‟
that,

undisputed
political

Plaintiffs

that

Defendants

affiliations

contend

they

with

were

were
the

both

well

PDP.

aware

Having

subject

to

of
said

adverse

employment actions by Defendants.
Among her numerous allegations, Plaintiff Otero states her
salary was retained for one day of absence, even though she
presented a medical certificate as evidence of being ill. She
was also allegedly required to sign in and out of the office,
even when using the restroom; said procedure was only required
of

Otero

(and

the

Secretary)

and

was

used

several

times

to

reprimand her.
The

Courts

harassment,

as

have

stated

opposed

to

that

formal

“[a]ctions
employment

of

informal

actions

like

Civil No. 10-1605 (JAG)

9

transfers or demotions, can be the basis for first amendment
claims if the motive was political discrimination; but this is
so only if the discriminatory acts are „sufficiently severe to
cause reasonably hardy individuals to compromise their political
beliefs and associations in favor of the prevailing party.‟”
Martinez-Velez v. Rey-Hernandez, 506 F.3d 32, 227 Ed. Law Rep.
57 (1st Cir. 2007)(quoting Agosto-de-Feliciano v. Aponte-Roque,
889

F.2d

1209,

Plaintiff

4

I.E.R.

Otero‟s

alleged

Cas.

(BNA)

First

1827

(1st

Amendment

Cir.

1989)).

violations

thus

survive a Motion to Dismiss under Rule 12(b)(6).
As to Plaintiff Pedroza‟s allegations, she claims she was
told she would not keep her position for long. Also, she was
transferred, without her consent to another division where she
received

less

work,

while

her

position

was

given

to

an

NPP

affiliate. The Court notes that “[a]n internal transfer can be
an

adverse

employment

action

if

„accompanied

by

a

negative

change in the terms and conditions of employment.‟” Terry v.
Ashcroft, 336 F.3d 128, 144 (2d Cir. 2003)(quoting Morris v.
Lindau, 196 F.3d 102, 113 (2d Cir.1999)) Interpreting Plaintiff
Pedroza‟s claims liberally under Haines v. Kerner, 404 U.S. 519
(1972), it is the opinion of this Court that she has stated a
plausible § 1983 claim of First Amendment violations.
Regarding Plaintiffs‟

allegations of

violations to

their

due process rights, the Fourteenth Amendment guarantees that the

Civil No. 10-1605 (JAG)

10

state shall not deprive persons of their property without due
process of law. See U.S. Const. amend. XIV, § 1. In the instant
case, both Plaintiffs claim they were deprived of the functions
and duties inherent to their respective positions. The Courts
have

held

that

“property

interests

are

not

created

by

the

Constitution; „they are created and their dimensions are defined
by

existing

rules

or

understandings

that

stem

from

an

independent source such as state law.‟ Rosado De Velez v. Zayas,
328 F.Supp.2d 202, 212 (D.P.R. 2004)(quoting Bd. of Regents v.
Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
In order to state a due process claim under § 1983, Plaintiffs
must first prove they have a property right under state law, and
that they were deprived of such right by Defendants. See Mimiya
Hosp., Inc. v. U.S. Dept. of Health & Human Servs., 331 F.3d
178,

181

(1st

employees

have

a

not

in

the

Consejo

de

Educacion

employment,
(citing

Cir.2003).

“Under

property

Puerto

interest

functions
de

they
la

Rico

in

law,

their

perform.”

U.P.R.

v.

public

continued
Id.

at

212

Rossello,

137

D.P.R. 83, 110 (1994)).
Therefore,
employment

in

unaffected,

the

given
the

that

Plaintiffs

Municipality

of

continue

Naranjito,

to

their

hold
salary

Court finds that Pedroza and Otero were not

deprived of any property interest. Their Fourteenth Amendment
due process claims must thus be dismissed.

Civil No. 10-1605 (JAG)

11

CONCLUSION
For

the

reasons

stated

above,

the

Defendant Ortiz‟s Motion to Dismiss.

Court

hereby

DENIES

All of the Defendants‟

Motion to Dismiss is DENIED as to Plaintiffs‟ claims of First
Amendment

violations,

and

GRANTED

as

to

the

claims

of

due

process violations. Plaintiffs‟ Fourteenth Amendment due process
claims are hereby dismissed with prejudice.
Finally,

service

upon

Defendant

Ortiz

in

his

personal

capacity was ineffective and is hereby quashed. Plaintiff will
be

allowed

additional

time

up

to

August

29,

2011

to

effect

proper service upon Ortiz in his personal capacity.

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 27th of July, 2011.

S/Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge