Fernandez-Sierra et al v. Municipality of Vega Baja et al
Filing
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OPINION and ORDER: Denying 21 Motion to Dismiss; Denying 24 Motion to Dismiss. Signed by Judge Gustavo A. Gelpi on 11/4/2011. (TC)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF PUERTO RICO
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ALBERT FERNANDEZ-SIERRA, et al.,
Plaintiffs,
v.
Civil No. 11-1172 (GAG)
MUNICIPALITY OF VEGA BAJA, et al.,
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Defendants.
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OPINION AND ORDER
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Plaintiffs Edgardo Santiago-Canales (“Edgardo”), Bengamin Burgos-Vazquez (“Burgos13
Vazquez”), Damaris Henriquez (“Henriquez”), Alberto Fernandez-Sierra (“Fernandez-Sierra”),
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Nydia Otero-Boscana (“Otero-Boscana”), Eluid Martinez-Camacho (“Martinez-Camacho”), Jesse
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Rodriguez-Santos (“Rodriguez-Santos”), Yazira Oliveras-Rodriguez (“Oliveras-Rodriguez”), Javier
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Santiago-Canales (“Javier”), Hector Oquendo-Pantoja (“Oquendo-Pantoja”), Damaris Melendez17
Lopez (“Melendez-Lopez”), Efrain Colon-Bracero (“Colon-Bracero”) (collectively “Plaintiffs”)
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brought this action seeking legal and equitable remedies against The Municipality of Vega Baja
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(“Vega Baja”), Edgar Santana (“Santana”), Elizardi Rivera (“Rivera”), Jomir Davila-Rosario
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(“Davila-Rosario”) and Raphael Rodriguez-Jimenez (“Rodriguez-Jimenez”) (collectively
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“Defendants”). The essence of Plaintiffs’ claims is that Defendants retaliated against them for
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presenting a letter to the Municipal Legislature in opposition to the appointment of Rivera-Diaz as
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Police Commissioner (“Commissioner”). (See Docket No. 1 at ¶ 29.) Presently before the court
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are two motions to dismiss, one filed on behalf of Rodriguez-Jimenez (Docket No. 21) and one filed
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on behalf of Vega Baja and its officers (Docket No. 24). The motions raise the defenses of failure
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to state a claim upon which relief can be granted, qualified immunity and statute of limitations. (See
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Docket No. 1 at 5, 16; Docket No. 24 at ¶ 6.) After reviewing these submissions and the pertinent
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law, the court DENIES Defendants’ motions to dismiss.
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I.
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“The general rules of pleading require a short and plain statement of the claim showing that
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the pleader is entitled to relief.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st
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Cir. 2009) (citations omitted) (internal quotation marks omitted). “This short and plain statement
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need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
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rests.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Standard of Review
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Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to
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state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). To survive a Rule
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12(b)(6) motion, a complaint must contain sufficient factual matter "to state a claim to relief that is
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plausible on its face." Twombly, 550 U.S. at 570. The court must decide whether the complaint
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alleges enough facts to "raise a right to relief above the speculative level." Id. at 555. In so doing,
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the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's
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favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008). However, "the tenet that a court must
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accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."
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Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements
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of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly,
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550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infer more than the
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mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]' -‘that the pleader
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is entitled to relief.'" Iqbal, 129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)).
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II.
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Plaintiffs were employed as police officers for Vega Baja at all relevant times. (See Docket
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No. 1 at ¶ 2-12.) Santana, the mayor of Vega Baja, nominated Rivera-Diaz to be Commissioner of
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the Vega Baja Police Department. (See Docket No. 1 at ¶ 22.) In January 2008, Santiago-Canales
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authored a letter opposing Rivera-Sierra’s appointment. (See Docket No. 1 at ¶ 71.) The Municipal
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Legislature held confirmation hearings for Rivera-Diaz on April 10, 2008. (See Docket No. 1 at ¶
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23.) At this hearing, Plaintiffs voiced their opposition to Rivera-Diaz being appointed to the
Factual and Procedural Background
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Civil No. 11-1172 (GAG)
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position of Police Commissioner because he lacked specific prerequisites for the job. (See Docket
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No. 1 at ¶ 24-25.) All Plaintiffs signed a letter (“Opposition Letter”) stating the reasons for their
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opposition, and the Opposition Letter was read aloud during this hearing. (See Docket No. 1 at ¶
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23.) Plaintiffs’ opposition to Rivera-Diaz was memorialized in the minutes of the legislative
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session, and Santana and Rivera-Diaz both had knowledge of Plaintiffs opposition to this
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nomination. (See Docket No. 1 at ¶ 24-26.) Rivera-Diaz was confirmed as the Commissioner on
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April 22, 2009. (See Docket No. 21 at 4.) Plaintiffs claim that immediately after the confirmation,
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Santana and Rivera-Diaz began retaliating against and harassing Plaintiffs through their work
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assignments. (See Docket Nos. 29-30.)
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Plaintiffs plead sufficient facts to demonstrate they were subjected to arbitrary work
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assignments requiring them to watch, “abandoned and other public buildings and facilities in remote
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and often in high crime areas without adequate support, safety or resources.” (See Docket No. 1 at
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¶ 31.) These assignments are considered part of the general duties of a municipal police officer, but
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usually carried out by the Municipal Guardian Corps. (See Docket No. 1 at ¶ 32.) Plaintiffs argue
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these assignments were given to them specifically to annoy, distress and cause emotional harm.
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(See Docket No. 1 at ¶ 31-33.) The areas are known as dangerous and insecure areas of Vega Baja,
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and some do not have any restrooms or shelter. (See Docket No. 1 at 35, 37.) Additionally,
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Plaintiffs were assigned to these shifts at night, without patrol cars, without backup and without
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firearms. (See Docket No. 1 at ¶ 37.) Administratively, Plaintiffs were denied requests for vacation
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licenses, scrutinized for sick leave, denied use of official vehicles and were forced to change their
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work schedules. (See Docket No. 1 at ¶ 42.)
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Plaintiffs filed the instant complaint against Defendants on February 15, 2011. (Docket No.
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1). On September 9, 2011 Rodriguez-Jimenez filed a motion to dismiss arguing the defenses of
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qualified immunity and statute of limitations. (See Docket No. 21 at 5, 15.) The other Defendants
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filed a motion to dismiss due to failure to state a claim upon which relief can be granted, qualified
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immunity and statute of limitations. (See Docket No. 24 at ¶¶ 22, 28, & 31.)
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III.
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Discussion
A.
Failure to State a Claim Upon Which Relief Can Be Granted
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In order for Plaintiffs to establish a claim of retaliation for exercising their free speech rights,
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Plaintiffs must demonstrate they meet a three part test. See Rosado-Quinones v. Toledo, 528 F.3d
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1, 5 (1st Cir. 2008). Plaintiffs must show the speech (1) involved a matter of public concern; (2)
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their First Amendment rights outweigh the interest of the government to function efficiently; and
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(3) the protected speech substantially motivated the adverse action by Defendants. See id. Speech
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is considered a matter of public concern depending on the content, form and context of the speech.
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Id. If a public employee is speaking as an employee, rather than as a private citizen, the employee
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is not afforded protections under the First Amendment. See id. at 5-6. Factors that determine
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whether the speech was made as part of employment include the wearing of an official uniform, the
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location of the speech and the context of the speech. See Decotiis v. Whittemeore, 635 F.3d 22, 31
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(1st Cir. 2011).
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In this case, Plaintiffs are afforded protection under the First Amendment because Plaintiffs
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have sufficiently pled facts to meet the above test. First, the matter was a matter of public concern
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as demonstrated by the public confirmation hearings regarding the appointment of Rivera-Diaz.
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(See Docket No. 1 at ¶ 23.) Plaintiffs speech is protected because Plaintiffs’ read the Opposition
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Letter at a public confirmation hearing and at a time when members of the public were allowed to
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state their views on the nomination of Rivas-Diaz. Second, the ability of officers to inform the
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public that the nominee for Commissioner was unqualified for the position outweighs the interest
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of the government to function efficiently. Third, Plaintiffs plead that only those who opposed
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Rivera-Diaz’s appointment were subjected to harassment. (See Docket No. 1 at ¶ 43.) Plaintiffs
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allege sufficient facts to demonstrate a plausible claim upon which relief can be granted. Therefore
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Defendants’ motion to dismiss for this reason is DENIED.
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B.
Qualified Immunity
Defendants next argue that even if a constitutional violation has been demonstrated,
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Defendants are protected by qualified immunity because the right was not clearly established at the
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time, or alternatively, that an objectively reasonable official would not have believed these actions
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violated that right. (See Docket No. 24 at ¶ 24-26; Docket No. 21 at 11-12.) Defendants are entitled
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to qualified immunity if Plaintiffs cannot articulate a violation of a constitutional right or if the
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violation was not clearly established at the time the violation occurred. See Pearson v. Callahan,
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555 U.S. 223, 231 (2009); Decotiis, 635 F.3d at 36.
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There is no question that Plaintiffs’ claims have been considered actionable violations of the
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First Amendment for quite some time. Government officials cannot retaliate against public
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employees for speaking out against the government. See Crawford-El v. Britton, 523 U.S. 574
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(1998); Hartman v. Moore, 547 U.S. 250, 256 (2006). Simply put, official reprisal for protected
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speech, “offends the Constitution [because] it threatens to inhibit exercise of the protected right.”
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Hartman, 547 U.S. at 256 (citing Crawford-El, 523 U.S. at 588). Additionally, this violation was
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clearly established prior to the events of 2009 through 2011. A reasonable official could not believe
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the singling out of Plaintiffs for harassment, excess scrutiny and undesirable work assignments
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because they spoke against the nomination of the Rivera-Diaz was constitutional. Therefore,
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Defendants’ motion to dismiss due to qualified immunity protections is DENIED.
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C.
Statute of Limitations
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Defendants’ next argue some of the Plaintiffs’ claims are untimely because they occurred
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beyond the one year statute of limitations followed in Puerto Rico. (See Docket Nos. 25 at 16 & 24
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at ¶¶ 29-31.) Section 1983 does not contain a limitations period and must borrow the forum state’s
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statute of limitations period. See Santana-Castro v. Toledo-Davila, 579 F.3d 109, 114 (1st Cir.
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2009). The limitations period in Puerto Rico is one year. See id.; 31 P.R.L.A. § 5298(2). While
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the statute of limitations is dictated by state law, the date of accrual is a question of federal law. See
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Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir. 1992). Typically, those events
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occurring before February 15, 2010 would be time barred because Plaintiffs filed suit on February
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15, 2011. However, if Plaintiffs can demonstrate a continuing violation, then events prior to
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February 15, 2010 may be considered as timely. See Nat’l R.R. Passenger Corp. v. Morgan, 536
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U.S. 101, 113-15 (2002). Plaintiffs must show ongoing acts of discrimination within the limitations
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period to successfully rest on the continuing violation theory. See Gilbert v. City of Cambridge, 932
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F.2d 51, 58-59 (1st Cir. 1991) (differentiating between discriminatory acts and ongoing injuries
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emanating from one discrete discriminatory act). Serial violations are separate actionable wrongs
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that are grounded in the same discriminatory animus. See Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610
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(1st Cir. 1992). Systemic violations are characteristically the application of a discriminatory policy
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or practice against the plaintiff. See id.
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At this stage in the litigation, Plaintiffs sufficiently plead facts that plausibly demonstrate
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continued harassment based on both the systemic and serial violation theories. Plaintiffs plead that
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they were the subject of a practice or policy of harassment because of the Opposition Letter. (See
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Docket No. 1 at ¶ 57.) They further plead that the root of the animus against them was their
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opposition to Rivera-Diaz as Commissioner and that they have been continually discriminated
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against since his confirmation. (See Docket No. 1 at ¶¶ 42-43.) Plaintiffs have plead discriminatory
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acts within the past year and therefore have adequately demonstrated their claims fall within the
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limitations period. (See Docket No. 1 at ¶ 189.) Defendants’ motion to dismiss due to the statute
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of limitations is DENIED.
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D.
Municipal Liability
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Additionally, Plaintiffs name Vega Baja as a defendant, claiming there was a policy of
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discrimination against Plaintiffs that can be attributed to Vega Baja. The Court announced that local
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governments could be subject to § 1983 claims in Monell v. Dept. of Soc. Serv., 436 U.S. 658, 690-
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91 (1978). However, Vega Baja is not responsible under the theory of respondeat superior for the
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actions of its employees. See Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011); Rodriguez-
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Garcia v. Mirdanda-Marin, 610 F.3d 756, 769 (1st Cir. 2010). A municipality may be liable if
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Plaintiffs claim damages pursuant to an official municipal policy, which includes decisions of a
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government’s lawmakers. See Connick, at 1359. Plaintiffs claim that local lawmakers, such as
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Santana, the Mayor of Vega Baja, were responsible for implementing the discriminatory policy. On
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its face, the complaint contains sufficient pleadings that show it is plausible for Plaintiffs to make
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their Monell claim. As such, Defendants’ motion to dismiss claims against Vega Baja is DENIED.
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IV.
Conclusion
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For the reasons set forth above, the court DENIES Defendants’ motions to dismiss at Docket
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Nos. 21 and 24 . As to the statute of limitations claims, with a more fully developed record, the
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court may revisit this issue at the summary judgment stage.
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SO ORDERED.
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In San Juan, Puerto Rico this 4th day of November, 2011.
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s/ Gustavo A. Gelpí
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GUSTAVO A. GELPI
United States District Judge
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