Perez et al v. Aponte-Dalmau et al

Filing 51

ORDER granting 47 Motion to Dismiss. This case is dismissed as to defendants Aponte-Dalmau and Ayuso. By 12/7/12, plaintiffs shall show cause why the complaint should not be dismissed without prejudice as to the remaining "John Doe" defendants. Signed by US Magistrate Judge Bruce J. McGiverin on November 30, 2012. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARIO PÉREZ, et al.,
Plaintiffs,
v.
JOSE CARLOS APONTE DALMAU, Mayor of
the Municipality of Carolina, in his individual
capacity, et al.,

Civil No. 11-1773 (BJM)

Defendants.

OPINION AND ORDER
Mario Pérez and Pilar Santos Morales (collectively, “plaintiffs”) sued José Carlos Aponte
Dalmau (“Aponte”) and Ivan Ayuso (“Ayuso”), respectively the mayor and director of the
permits office for the Municipality of Carolina, in their individual capacities alone (collectively,
“named defendants”), as well as other unnamed municipal employees.

(Docket No. 1,

hereinafter “Compl.”). Plaintiffs allege that te defendants deprived and conspired to deprive
them of constitutional rights, and seek damages under 42 U.S.C. §§ 1983 and 1985. Before the
court is the named defendants’ motion to dismiss for failure to state a claim. (Docket No. 47).
Plaintiffs opposed. (Docket No. 48). For the reasons that follow, the motion to dismiss is
granted.
MOTION TO DISMISS STANDARD
To survive a motion to dismiss at the pleading stage, “an adequate complaint must
provide fair notice to the defendants and state a facially plausible legal claim.” OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A court parses the allegations of the
complaint in two steps. First, “‘legal conclusions couched as fact’ or ‘threadbare recitals of the
elements of a cause of action’” are identified and completely disregarded. Id. (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50 (2009)) (alteration marks omitted).

The

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Civil No. 11-1773 (BJM) — Opinion and Order

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remaining “[n]on-conclusory factual allegations” are then “treated as true, even if seemingly
incredible.” Id. The overall standard is only satisfied if those facts “state a plausible, not a
merely conceivable, case for relief”; however, a court must not “attempt to forecast a plaintiff’s
likelihood of success on the merits.” Id.
FACTUAL BACKGROUND
Applying this lens, the factual allegations of the complaint may be summarized quite
briefly. Plaintiffs are residents of Carolina. Aponte is the mayor of the municipality, and Ayuso
is the director of the permits office. (Compl., ¶¶ 2-4). Sometime in late 2010, an unnamed
municipal employee went to plaintiffs’ home in order to inspect construction work and issue
building permits. Plaintiffs believed that the employee’s only task was to inspect the outside of
the home; however, they caught the employee taking pictures of bedrooms and other places
inside the home. (Id., ¶¶ 8-9). They reported this to other unnamed municipal officials and
demanded copies of the photos, but have never been provided with them or any explanation of
what they were used for. (Id., ¶¶ 10-11). Sometime following this incident, municipal officers
(1) “mishandl[ed] required documentation for the building permits,” (2) violated “certain rights
afforded to plaintiff by federal law as a veteran,” and (3) issued Pérez a traffic ticket in front of
his house. (Id., ¶ 12).

They have talked to the named defendants and other municipal officials,

“to no avail.” (Id., ¶ 13). Plaintiffs are suffering emotional distress and hardship. (Id., ¶ 14).
DISCUSSION
Plaintiffs claim violations of their right against unreasonable searches under the Fourth
Amendment, and of their rights to due process and equal protection under the Fifth and
Fourteenth Amendments, and accuse defendants of conspiring to commit these violations. The
named defendants respond, inter alia, that the conspiracy claim fails as a matter of law, that they

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did not violate plaintiffs’ rights, and that they are entitled to qualified immunity. (Docket No. 47,
p. 7-8, 10-16).
The conspiracy claim requires little discussion. While plaintiffs’ opposition occasionally
mentions a “concerted unlawful and malicious conspiracy” among the defendants, they do not
refute defendants’ observation (Docket No. 47, p. 10-13) that a conspiracy claim under 42 U.S.C.
§ 1985 requires “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.” See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971);
Soto-Padró v. Public Bldgs. Auth., 675 F.3d 1, 4 (1st Cir. 2012). Plaintiffs do not allege that any
such animus exists here, and the claim invoking section 1985 must therefore be dismissed.
I next consider whether the named defendants are entitled to qualified immunity. Any
person who deprives another of a federally protected right “under color of” state law may be held
personally liable. See 42 U.S.C. § 1983. However, an individual is immune from suit for
damages if either (1) the plaintiff fails to state a violation of a constitutional right, or (2) any such
right was not “clearly established” when the alleged violation occurred. Maldonado v. Fontanes,
568 F.3d 263, 269 (1st Cir. 2009). This qualified immunity is “an immunity from suit and not a
mere defense to liability,” weeding out “insubstantial claims” even before discovery has
occurred. Id. at 268. Importantly, an individual’s office, standing alone, does not make him or
her personally liable for the conduct of other government actors. Ayala-Rodríguez v. Rullán, 511
F.3d 232, 236 (1st Cir. 2007). Rather, a plaintiff must “establish that her constitutional injury
resulted from the direct acts or omissions of the official, or from indirect conduct that amounts to
condonation or tacit authorization.” Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 768 (1st
Cir. 2010). Put differently, a plaintiff must allege “that the supervisor’s conduct (whether action
or inaction) constitutes supervisory encouragement, condonation or acquiescence, or gross
negligence of the supervisor amounting to deliberate indifference.” Grajales v. P.R. Ports Auth.,

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682 F.3d 40, 47 (1st Cir. 2012) (citation and quotation marks omitted). This necessarily means
that a supervisor must have “some kind of notice of the alleged violations . . . .” Lipsett v. Univ.
of P.R., 864 F.2d 881, 902 (1st Cir. 1988) (citing Pembaur v. City of Cincinnati, 475 U.S. 469,
483-84 (1986)). In the qualified immunity calculus, this means that even assuming that a
subordinate violated a clearly established constitutional right, the proper question is “whether, in
the particular circumstances confronted by each [supervisor], that [supervisor] should reasonably
have understood that his conduct jeopardized these rights.” See Camilo-Robles v. Hoyos, 151
F.3d 1, 7 (1st Cir. 1998) (emphasis added) (synthesizing supervisory liability and qualified
immunity doctrines).
Here, plaintiffs failed to allege or plausibly infer facts that would make Aponte or Ayuso
personally liable, even assuming for argument’s sake that some municipal employee violated
their rights. They highlight the allegations that Aponte and Ayuso “were responsible for the
promulgation and implementation” of municipal policy, failed to train their employees, and
should have known about the incidents. (Docket No. 48, p. 7-8). “These are exactly the sort of
‘unadorned, the-defendant-unlawfully-harmed-me accusation[s]’” held insufficient under
Supreme Court and First Circuit precedent. See Feliciano-Hernández v. Pereira-Castillo, 663
F.3d 527, 534 (1st Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Indeed,
plaintiffs’ allegations closely resemble those rejected in Feliciano-Hernández—“that the
defendants ‘failed in their duty to assure adequate monitoring, disciplining, evaluating, training
and supervising any and all personnel under their charge,’” and that “‘[h]ad the defendants
complied with their supervisory duties, they would have identified’” the malfeasant employees.
See id. In sum, nothing in plaintiffs’ narrative beyond mere conjecture suggests Aponte or Ayuso
knew of plaintiffs’ plight until sometime afterwards—assuming, generously, that their complaints
to the municipality even went up the chain of command to either named defendant. Accordingly,

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plaintiffs’ conclusory allegations of negligent supervision are not entitled to be taken as true. On
balance, then, the properly-considered factual allegations do not state a plausible claim against
Aponte or Ayuso.

They never suggest any causal link between either official and the

unauthorized photography.

As a result, plaintiffs have not alleged federal constitutional

violations by either named defendant, and they are entitled to qualified immunity.
CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED. The claims against Jose
Carlos Aponte Dalmau and Ivan Ayuso are DISMISSED. Moreover, plaintiffs are ORDERED
TO SHOW CAUSE within seven (7) days why claims against the remaining John Doe and Jane
Doe defendants should not be dismissed without prejudice for failure to timely serve process.
See Fed. R. Civ. P. 4(m).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of November, 2012.
S/Bruce J. McGiverin
BRUCE J. McGIVERIN
United States Magistrate Judge