Larenos en Defensa del Patrimonio Historico, Inc. et al v. Municipality of Lares

Filing 109

MEMORANDUM AND ORDER re 64 motion for summary judgment; re 67 motion for summary judgment; re 70 Motion for Partial Summary Judgment; and in re 100 Report and Recommendation; and re 102 Report and Recommendation. The Court ADOPTS IN PART a nd REJECTS IN PART the magistrate judge's findings contained in the R&R at docket number 100, and ADOPTS the magistrate judge's findings contained in the R&R at docket number 102. The Court (1) DENIES summary judgment on plaintiffs' s ection 1983 claim; (2) GRANTS summary judgment of all federal and state law claims by plaintiff Larenos en Defensa del Patrimonio Historico, Inc.; (3) and (4) DENIES summary judgment as to plaintiffs' First Amendment claims for the events of Sep tember 12, 2010 and November 28, 2010; (5) DENIES summary judgment as to plaintiffs' supplemental claims; (6) GRANTS summary judgment as to plaintiffs' claims against defendant Pagan-Centeno in his personal capacity; and (7) DENIES plaintiffs' motion for partial summary judgment. Signed by Judge Francisco A. Besosa on 08/02/2013. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LAREÑOS
EN
DEFENSA
DEL
PATRIMONIO HISTORICO, INC., et
al.,
Plaintiffs,
v.

CIVIL NO. 11-1880 (FAB)

MUNICIPALITY OF LARES, et. al.,
Defendants.

MEMORANDUM AND ORDER
Besosa, District Judge.
Before the Court are the reports and recommendations (R&R’s)
of

United

States

Magistrate

Judge

Camille

L.

Velez-Rive,

recommending that the Court:
1.

DENY summary judgment on plaintiffs’ section 1983 claim

on the ground of an expired statute of limitations;
2.

GRANT summary judgment of all federal and state law

claims by plaintiff Lareños en Defensa del Patrimonio Historico,
Inc. (“plaintiff corporation”) for lack of standing;
3.

GRANT summary judgment as to plaintiffs’ First Amendment

claim for the events of September 12, 2010;
4.

DENY summary judgment as to plaintiffs’ First Amendment

claim for the events of November 28, 2010;
5.
claims;

DENY summary judgment as to plaintiffs’ supplemental

Civil No. 11-1880 (FAB)
6.

2

GRANT summary judgment as to defendant Mayor Pagan-

Centeno in his personal capacity for lack of evidence of individual
participation and under the doctrine of qualified immunity; and
7.

DENY plaintiffs’ motion for partial summary judgment.

(Docket Nos. 100 and 102.)

For the reasons discussed below, the

Court ADOPTS IN PART and REJECTS IN PART the magistrate judge’s
findings.
I.

Background
A.

Standard of Review
A

district

court

may

refer

a

pending

magistrate judge for a report and recommendation.

motion

to

a

See 28 U.S.C.

§ 636(b)(1)(B); Fed. R. Civ. P. 72(b); Loc. Rule 72(b).

Any party

adversely affected by the report and recommendation may file
written objections within fourteen days of being served with the
magistrate judge’s report.
§ 636(b)(1).

Loc. Rule 72(d).1

See 28 U.S.C.

A party that files a timely objection is entitled to

a de novo determination of “those portions of the report or
specified proposed findings or recommendations to which specific
objection

is

made.”

Ramos-Echevarria

v.

Pichis,

Inc.,

698

F.Supp.2d 262, 264 (D.P.R. 2010); Sylva v. Culebra Dive Shop, 389
F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)).

1

Failure to comply with this

The magistrate judge reduced the period for objections due to the
proximity of the trial date. (Docket Nos. 100 and 102.)

Civil No. 11-1880 (FAB)

3

rule precludes further review.
22, 30-31 (1st Cir. 1992).
4, 6 (1st Cir. 1987).

See Davet v. Maccorone, 973 F.2d

Borden v. Secretary of H.H.S., 836 F.2d

In conducting its review of the R&R, the

court is free to “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.”
28 U.S.C. § 636 (a)(b)(1); Templeman v. Chris Craft Corp., 770 F.2d
245,

247

(1st

Cir.

1985);

Alamo

Rodriguez

v.

Pfizer

Pharmaceuticals, Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003).
Furthermore, the Court may accept those parts of the report and
recommendation

to

which

the

parties

do

not

object.

See

Hernandez-Mejias v. General Elec., 428 F. Supp. 2d 4, 6 (D.P.R.
2005) (citing Lacedra v. Donald W. Wyatt Detention Facility, 334
F.Supp.2d 114, 125-126 (D.R.I. 2004)). A party’s failure to object
to an R&R allows the Court to assume that the party agrees with the
recommendations in the R&R.

Gonzalez-Santos v. Torres-Maldonado,

839 F. Supp. 2d 488, 500 (D.P.R. 2012).
B.

Undisputed Facts
In the R&R, the magistrate judge presents “Defendants’

Uncontested Issues of Facts” and “Plaintiffs’ Uncontested Issues of
Facts”

separately.

(See

Docket

No.

100.)

After

reviewing

plaintiffs’ and defendants’ submissions, the Court surmises that
the magistrate judge structured the factual background in that way

Civil No. 11-1880 (FAB)

4

because the parties haphazardly complied with Loc. R. 56.2

Local

Rule 56(b) strives “to create an organized and clear representation
of issues of fact which are truly contested between the parties,”
Total Petroleum P.R. Corp. v. Colon, 819 F. Supp. 2d 55, 60 (D.P.R.
2011) (Besosa, J.), and in this case the parties have not even come
close to providing the Court an easy-to-follow, comprehensible
account of the exact disputed and undisputed issues.

Although in

its objections to the R&R the plaintiffs set forth 19 additional

2

Local Rule 56(b) requires a party moving for summary judgment to
submit factual assertions in “a separate, short, and concise
statement of material facts, set forth in numbered paragraphs,”
which must be in compliance with Local Rule 56(e).
While the parties do submit factual assertions in separate
statements, their submissions are far from short, concise, and
clear. In one reply, for example, the plaintiffs “submit their
Statement of Facts that have remained Uncontested and a Counter
Statement of the Facts that the Defendants Propose as Uncontested
but that are Contested.”
(Docket No. 88 at 1.)
Moreover,
plaintiffs often conclude individual factual assertions with the
phrase, “This fact has not been contested by the [d]efendants,”
(see, e.g., Docket No. 88), yet the defendants often reply that
plaintiffs “mislead the Court [by] indicating erroneously that [the
defendants] did not contest these matters when in fact [they] did.”
(see, e.g., Docket No. 99.) The Court admonishes the parties to
take heed that the First Circuit Court of Appeals has “repeatedly
. . . emphasized the importance of local rules similar to Local
Rule 56 [of the District of Puerto Rico].” Hernandez v. Phillip
Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007).

Civil No. 11-1880 (FAB)

5

factual assertions that they still “believe[] to be undisputed,”3
(Docket No. 108 at 2–5), the plaintiffs did not make specific
objection to the magistrate judge’s recitation of the undisputed
factual

background.

Accordingly,

and

after

painstakingly

navigating the numerous and unorganized submissions of contested
and uncontested facts by the defendants, (Docket Nos. 65, 82, 99)
and the plaintiffs, (Docket Nos. 71, 88), the Court hereby adopts
the facts as stated in the R&R.
C.

Procedural History
On July 16, 2013 and July 18, 2013, the magistrate judge

issued two R&R’s (Docket Nos. 100 and 102, respectively) which
allotted the parties until July 29, 2013 to file objections.

On

July

an

29,

2013,

the

Court

granted

plaintiffs’

motion

for

extension of time, and on July 31, 2013 plaintiffs filed their

3

The Court finds that plaintiffs’ inclusion of these 19 facts,
without supported citations to record material, fail to comply with
Local Rule 56(e), which states in pertinent part:
An assertion of fact set forth in a statement of material
facts shall be followed by a citation to the specific
page or paragraph of identified record material
supporting the assertion. The court may disregard any
statement of fact not supported by a specific citation to
record material properly considered on summary judgment.
The court shall have no independent duty to search or
consider any part of the record not specifically
referenced in the parties’ separate statement of facts.
D.P.R. Civ. R. 56(e) (emphasis added).
Nonetheless, the Court
notes that many of the facts are already contained in the
magistrate judge’s recitation of Plaintiffs’ Uncontested Issues of
Facts. (Docket No. 100 at 12–14.)

Civil No. 11-1880 (FAB)
objections.

6

(Docket Nos. 107 & 108.)

Defendants did not submit

any objections and thus have waived the right to further review in
the district court.

Davet, 973 F.2d at 30-31. The Court addresses

plaintiffs’ objections below.
II.

Plaintiffs’ Objections
A.

First Amendment Claim for the Events of September 12,
2010
Plaintiffs

first

object

to

the

magistrate

judge’s

recommendation to grant defendants’ motion for summary judgment as
to the First Amendment claim for the events of September 12, 2010.
The magistrate judge found that “no First Amendment violation to
[plaintiffs’] freedom of expression and/or association ensued”
because plaintiffs “were allowed a reasonable alternate public
space to conduct their activity on September 12, 2010.”
No. 100 at 30.)

(Docket

The Court finds that the proper legal standard

under the First Amendment does not support such a finding, and that
summary judgment is not warranted on that ground, and REJECTS the
magistrate judge’s recommendation on this claim.
1.

Standard
The

Supreme

Court

of

the

United

States

recognized:
The government does not have a free hand to
regulate private speech on government property
. . . . [M]embers of the public retain strong
free speech rights when they venture into
public
streets
and
parks,
which
have
immemorially been held in trust for the use of
the public and, time out of mind, have been

has

Civil No. 11-1880 (FAB)

7

used for purposes of assembly, communicating
thoughts between citizens, and discussing
public questions.
In order to preserve this
freedom, government entities are strictly
limited in their ability to regulate private
speech in such “traditional public fora.”
Reasonable
time,
place,
and
manner
restrictions[, however,] are allowed . . . .”
Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132 (2009). Thus,
“the First Amendment does not guarantee the right to communicate
one’s views at all times and places or in any manner that may be
desired.”

Heffron v. Int’l. Soc. for Krishna Consciousness, 452

U.S. 640, 647 (1981).
that

“is

regulated

justified
speech,

A time, place, and manner restriction is one
without

.

.

.

reference

[is]

to

narrowly

the

content

tailored

to

of

the

serve

a

significant governmental interest, and . . . leave[s] open ample
alternative channels for communication of the information.”

Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989); McCullen v.
Coakley, 571 F.3d 167, 175 (1st Cir. 2009).
“Although a time, place, and manner restriction
cannot be upheld without examination of alternative avenues of
communication open to potential speakers, [the Supreme Court has]
consistently rejected the suggestion that a government may justify
a

content-based

prohibition

by

alternative means of expression.”

showing

that

speakers

have

Consol. Edison Co. v. Public

Serv. Comm’n., 447 U.S. 530, 556 (1980).

Contrary to what the

magistrate judge concluded, therefore, the mere fact that the
defendants directed the plaintiffs to another public site on

Civil No. 11-1880 (FAB)

8

September 12, 2010 to carry out their protest — an alternative
avenue

of

communication

—

does

not

necessarily

lead

to

the

conclusion that the plaintiffs’ First Amendment rights were not
violated. After all, “[a] major criterion for a valid time, place,
and manner restriction is that the restriction may not be based
upon either the content or subject matter of speech.”

Heffron v.

Int’l Soc. for Krishna Consciousness, 452 U.S. 640, 648 (1981).
The reviewing court must thus first analyze whether a legitimate,
content-neutral reason existed for imposing the time, place and
manner restriction.

See Sullivan v. City of Augusta, 511 F.3d 16,

33 (1st Cir. 2007). So long as government regulation of expressive
activity is “justified without reference to the content of the
regulated speech,” it is content-neutral.

Ward, 491 U.S. at 791

(citing Clark v. Community for Creative Non-Violence, 468 U.S. 288,
293 (1984) (emphasis added)).
2.

Analysis
The Municipality of Lares must assert a legitimate,

content-neutral reason for its restriction on plaintiffs’ use of
the Plaza de la Revolucion on September 12, 2010.

Finding that

material issues of genuine fact remain as to the legitimacy of the
Municipality’s proposed reason, the Court REJECTS the magistrate
judge’s recommendation that summary judgment be granted as to the
plaintiff’s First Amendment claim for the September 12, 2010
events.

Civil No. 11-1880 (FAB)

9

The record indicates that plaintiffs and defendant
Pagan-Centeno have “background history” stemming from each other’s
positions as to the Municipality of Lares’ historical name/motto.
On September 23, 1868, an uprising took place in Lares.

Tradition

has it that it was a revolt against the Kingdom of Spain.4
No. 99 at 5–6.)

(Docket

The uprising — ultimately suppressed by the

Spanish military — has been known in Lares as the “Grito de Lares,”
and the township’s motto has been “La Ciudad del Grito.”

Id. at 6.

The namesake “La Ciudad del Grito” was not only adopted by the
population of the township, but the Institute of Puerto Rican
Culture

has

acknowledged

and

adopted

that

motto,

and

the

Municipality adopted the motto as part of its coat of arms around
the 1950s.

Id.

Defendant Pagan-Centeno has been the mayor of

Lares since January 1, 2009, and at some point during his tenure as
mayor adopted the slogan of “Las Cuidad de los Cielos Abiertos” as
the Municipality’s motto.

Id. at 7–8.5

The plaintiffs form part

of the not-for-profit corporation Lareños en Defensa del Patrimonio

4

At least one scholar has characterized the uprising as an act of
resistance (for mainly economic reasons) against the abuse by the
Spanish government on the island, and that it was later, in the
1930s, that the “Grito de Lares” was memorialized as a core event
for the Puerto Rican nation. Pico, Fernando, A Cry for Modernity
or a Defense of Tradition, El Nuevo Dia, September 17, 2000.

5

Defendants claim, however, that the slogan “Ciudad de los Cielos
Abiertos” is not the only motto that the mayor uses or promotes,
and that it does not come to the exclusion of other mottos.
(Docket No. 99 at 8) (“[T]he Mayor has not changed the motto but
has been using an additional one . . . .”).

Civil No. 11-1880 (FAB)

10

Historico Inc., which was organized with the purpose of promoting
the historical patrimony of the Municipality of Lares. (Docket No.
99 at 3.)

In September 2010, plaintiffs wanted to use the Lares

town square, known as the Plaza de la Revolucion, to protest the
use of the mayor’s township namesake “Lares La Ciudad de los Cielos
Abiertos” instead of the motto “Ciudad del Grito.”

Id.

Both parties submit deposition and sworn testimony
showing that the Municipality denied plaintiffs’ request to make
use of the Plaza de la Revolucion on September 12, 2010.

The

parties agree that Plaza de la Revolucion is a property owned and
managed by the Municipality that has “historically been used as a
place of public expression of all sorts to express views and ideas
by many people.”
for

the

(Docket No. 99 at 11–12.)

Municipality’s

denial

of

The proposed reason

Revolution

Plaza

for

the

plaintiffs’ protest was because an artisan’s market would be
present there until 6:00 p.m. that day.

(See Docket No. 100 at 12;

see also Docket Nos. 68-4 at 3–4; 71-1 at 3; 71-2 at 2; 71-3; 65-1
at 6–7, 15–17; 99 at 13–14.)

The only persons who ultimately used

the Plaza de la Revolucion on September 12, 2010 were a group of
artisans who regularly set up a tent measuring approximately
40 feet by 20 feet on the side of the square to sell crafts.
(Docket No. 100 at 12.)

The Plaza de la Revolucion is larger than

Civil No. 11-1880 (FAB)

11

the 20 x 40 foot area where the artisans set up,6 and on other
occasions the Municipality has allowed other activities at the
square while artisans sold their art crafts.

Id.

Construing the entire record in the light most
favorable to

the plaintiffs and drawing all reasonable inferences

their favor, as the Court must do at this stage, see Farmers Ins.
Exch. v. RNK, Inc., 632 F.3d 777, 779-80 (1st Cir. 2011), the Court
finds that material issues of fact preclude defendants’ motion for
summary judgment on plaintiffs’ First Amendment claim for the
events of September 12, 2010.

A reasonable inference may be drawn

from the submitted evidence that the plaintiffs’ request to use the
Plaza de la Revolucion was denied precisely because of the content
or subject matter of their desired protest and its relation with
the plaza’s historical significance; the plaintiffs’ purpose in
organizing the September 12, 2010 event was “to protest, express
their views, and oppose the mayor’s actions” regarding the “Cuidad
del Grito” namesake — which arose from a historical uprising in the
town — and they were denied permission despite other groups having
been able to conduct their activities in the past in the plaza
alongside the artisans.

6

On the other hand, a reasonable inference

The exact size of the plaza is contested.
Plaintiffs,
introducing a small diagram, contend that the plaza measures
approximately 10,800 square feet.
(Docket No. 71 at 7.)
Defendants introduce deposition testimony by a government employee,
however, that states that the plaza is 1,200 square meters
(Docket No. 68-6 at 2), or about 3,900 square feet.

Civil No. 11-1880 (FAB)

12

may also be drawn that the government denied access to the Plaza de
la Revolucion for the legitimate state interest of crowd control;
the plaza had
September

been booked for the artisans’ market each Sunday in

2010,

and

plaintiffs’

protest

approximately 1800 to 2000 attendees.
“tend[s]

to

support

conflicting

would

have

attracted

The evidence here thus

inferences”

of

whether

the

Municipality’s asserted reason for denying plaintiffs the use of
the plaza is legitimate and content-neutral, see Mandel v. Boston
Phoenix, Inc., 456 F.3d 198, 207 (1st Cir. 2006).

Because the

determination can go both ways, summary judgment is not warranted.
See Montfort-Rodriguez v. Rey-Hernandez, 504 F.3d 221, 229 (1st
Cir.

2007)

(“Summary

judgment

cannot

be

predicated

on

so

vacillatory a record.”) (citation and internal quotations omitted).
Moreover,

the

issue

also

ultimately

involves

credibility

determinations of witnesses, which the court cannot make. Anderson
v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

(“Credibility

determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those
of a judge.”).

Accordingly, the Court DENIES defendants’ request

for summary judgment as to plaintiffs’ First Amendment claim for
the events of September 12, 2010, and REJECTS the magistrate
judge’s findings as to that claim.

Civil No. 11-1880 (FAB)
B.

13

First Amendment Claim for the Events of November 28, 2010
Plaintiffs

next

object

to

the

magistrate

judge’s

recommendation to deny the plaintiff’s motion for partial summary
judgment for the events of November 28, 2010. The magistrate judge
reasoned that genuine issues of material fact remained as to the
events of November 28, 2010, and thus advised that summary judgment
is inappropriate.
“there

(Docket No. 100 at 31.)

is

no

controversy

motivation

of

the

over

[d]efendants

any
as

Plaintiffs object that

material
far

as

the

facts,
denial

[p]laintiffs[’] entry is impertinent and immaterial.”
No. 108 at 9.)

and

the

of

the

(Docket

Because the Court agrees that genuine issues of

material fact do indeed exist, it finds that summary judgment is
not warranted on plaintiff’s First Amendment claim for the events
of November 28, 2010.
The Free Speech Clause of the First Amendment restricts
government regulation of private speech, Pleasant Grove City v.
Summum, 555 U.S. 460, 467 (2009), and “reflects a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.”

Boos v. Barry, 485 U.S. 312,

318

As

(1988)

(citations

omitted).

the

Supreme

elaborated:
This Court long ago recognized that members of
the public retain strong free speech rights
when they venture into public streets and
parks, which have immemorially been held in
trust for the use of the public and, time out
of mind, have been used for purposes of

Court

has

Civil No. 11-1880 (FAB)

14

assembly,
communicating
thoughts
between
citizens, and discussing public questions. In
order to preserve this freedom, government
entities are strictly limited in their ability
to regulate private speech in such traditional
public fora.
Reasonable time, place, and
manner restrictions are allowed, but any
restriction based on the content of the speech
must satisfy strict scrutiny, that is, the
restriction must be narrowly tailored to serve
a
compelling
government
interest,
and
restrictions
based
on
viewpoint
are
prohibited.
Summum,

555

omitted).

U.S.
Public

at

469

squares

(internal
are

quotations

traditionally

and

places

citations
of

First

Amendment-protected expression, and only time, place and manner
restrictions are constitutionally permitted.

See, e.g., Clark v.

Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

As a

form of expression, participation in parades receives similar First
Amendment protection.

See, e.g., Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, 515 U.S. 557, 568 (1995)
(stating that parades have an “inherent expressiveness of marching
to make a point”).
It is undisputed between the parties that traditionally,
a celebration takes place each year in Lares to commemorate the
patron saint of the town; that the celebration takes place with
social, cultural, and religious activities; that the Municipality
has sponsored, produced, and directed such activities for several
years; that one of the activities that has taken place under the
sponsorship and direction of the Municipality as part of the yearly

Civil No. 11-1880 (FAB)

15

patron saint activities has been a parade of carriages or floats;
that as part of the parade of carriages, floats are prepared by
residents of Lares and by people from other townships to form part
of the parade; that people participate on foot and other persons
participate in their own cars or in buses or in other types of
motor vehicles; and that as part of the activities of the year
2010, the parade took place on November 28, 2010.
at 16–19.)

(Docket No. 99

Beyond those facts, the parties do not agree on a host

of material facts that directly pertain to whether the Municipality
violated plaintiffs’ rights to free speech.
The fundamental issues of whether and to what extent the
defendants curbed the plaintiffs’ speech, for example, remain
disputed.

Plaintiffs claim that the municipal initially denied

them the right to participate in the parade; that nonetheless they
prepared a float and attempted to enter the parade through an
intersection

on

the

parade

route;

and

that

Municipal

police

officers barred the entrance of the float into the parade. (Docket
No.

88

at

12.)

Defendants

deny

that

plaintiffs

desired

to

participate in the parade with a carriage to express their support
to the namesake of the township of Lares as “La Ciudad del Grito”;
they contest whether “plaintiffs were told that once those who were
part of the parade with Christmas motif were finished, they were
free to go ahead with their float”; and they dispute “any claim of
having

intervened

with

plaintiffs’

float.”

(Docket

Nos.

99

Civil No. 11-1880 (FAB)

16

at 19–23; 102 at 14–15.)

Given the opposing opinions as to whether

any

government

infringement

ever

occurred

against

plaintiffs

regarding the November 28, 2010 parade, it is unquestionable that
the parties also dispute any reason underlying the alleged denial
of permission to participate in the parade.

Furthermore, the

parties dispute whether set guidelines existed under which the
Municipality

issued

or

denied

participate in the parade.

the

plaintiffs

permission

to

While the plaintiffs argue that the

Municipality had no regulations in effect to determine who, when,
and how persons or groups could participate in the parade,7 the
defendants claim that the “[p]laintiffs did not request permission”
to participate in the parade, and that rules, regulations, and a
Municipality Office dedicated to conducting the activities of the
town — including issuing policies regarding the parade — indeed
existed.

(See Docket No. 99 at 17–18.)
“Summary judgment cannot be predicated on so vacillatory

a record.”

Montfort-Rodriguez v. Rey-Hernandez, 504 F.3d 221, 229

(1st

2007)

Cir.

(citation

and

internal

quotations

omitted).

Moreover, these factual issues are pertinent to the determination
of

whether

a

government

restriction

upon

plaintiffs’

speech

occurred, and if so, what type of legal standard is invoked to
classify the restriction’s constitutionality.

7

At this stage, the

Plaintiffs also claim that defendants failed to produce such
regulations in response to their discovery requests.
(Docket
No. 88 at 9.)

Civil No. 11-1880 (FAB)

17

Court cannot determine as a matter of law whether the defendants
infringed

upon

the

plaintiffs’

free

foundational issues of fact remain.
the

magistrate

judge’s

speech

rights

because

Accordingly, the Court ADOPTS

recommendation

on

this

claim,

and

plaintiffs’ motion for summary judgment as to their First Amendment
claim for the events of November 28, 2010 is DENIED.
C.

Dismissal of Defendant
personal capacity

Mayor

Pagan-Centeno,

in

his

The plaintiffs’ final objection focuses on the magistrate
judge’s recommendation to dismiss claims against defendant Mayor
Pagan-Centeno in his personal capacity.

The magistrate judge

reasoned that plaintiff Guzman-Gonzalez’s testimony that he heard
from Ms. Marilia Arce-Gonzalez, a Municipal employee, that “Mayor
Roberto Pagan-Centeno had told her not to allow our participation
because we wanted to create controversy,” (Docket No. 100 at 36),
was “unreliable for being double hearsay and may not defeat summary
judgment on grounds that it shows pretext or intent.”

Id. at 37.

Acknowledging that their evidence against defendant Pagan-Centeno
in his personal capacity is based on statements the mayor allegedly
made to municipal employees, who then allegedly spoke to plaintiff
Guzman-Gonzalez,
inadmissible.

the

plaintiffs

dispute

(Docket No. 108 at 10–12.)

that

the

evidence

is

They claim that their

evidence contradicts the sworn but self-serving statements of Mayor
Pagan-Centeno, and thus a genuine issue of material fact exists as

Civil No. 11-1880 (FAB)

18

to why the plaintiffs were barred from the November 28, 2010
parade.

Id. at 10–11.
The

First

Circuit

Court

of

Appeals

has

ruled

that

“inadmissible evidence may not be considered” at the summary
judgment stage.

Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993)

(citation omitted).

The question facing the Court, therefore, is

whether statements by Ms. Arce and other municipal employees to
plaintiff Guzman-Gonzalez regarding statements made by Mayor PaganCenteno are admissible evidence against defendant Pagan-Centeno in
his personal capacity.

Pursuant to the Federal Rules of Evidence,

plaintiff Guzman-Gonzalez’ testimony that Mayor Pagan-Centeno told
Ms. Arce not to permit the plaintiffs to participate in the parade
because

they

“wanted

to

create

controversy”

constitutes

inadmissible hearsay within hearsay. See Fed. R. Evid. 805. Mayor
Pagan-Centeno’s

alleged

statement

admission of a party opponent.

qualifies

as

a

nonhearsay

See Fed. R. Evid. 801(d)(2).

For

that statement to be admissible, however, Ms. Arce’s statement — or
any other statement by Municipality officials regarding Mayor
Pagan-Centeno’s statements — to plaintiff Guzman-Gonzalez must also
meet an exception to the rule against hearsay.

See Fed. R. Evid.

805. Plaintiffs offer no such exception, and the Court declines to
hold that one is met.
Cir.

1990)

Consequently,

(“Judges
a

See U.S. v. Zannino, 895 F.2d 1, 17 (1st
are

litigant

not
has

expected
an

to

obligation

be
to

mind-readers.
spell

out

its

Civil No. 11-1880 (FAB)
arguments
peace.”).

squarely

and

19
distinctly,

or

else

forever

hold

its

Plaintiffs do argue that statements by the municipal

employees “constitute an admission by employees of the Municipality
under the direction of the Ma[y]or,” and pursuant to Fed. R. Evid.
801(d)(2), the Court agrees that such a statement is admissible
against the Municipality.

As against the mayor in his personal

capacity, however, the statement cannot qualify as an opposing
party hearsay exclusion.

Accordingly, the Court agrees with the

magistrate judge that the circumstantial evidence or inference of
intentions attributed to Mayor Pagan-Centeno “is tenuous at the
most.”

(Docket No. 100 at 37.)

Because “[m]ere allegations, or

conjecture unsupported in the record, are insufficient to raise a
genuine issue of material fact,” August v. Offices Unlimited, Inc.,
981 F.2d 576, 580 (1st Cir. 1992), summary judgment is appropriate
as to the claims against defendant Pagan-Centeno in his personal
capacity.

Furthermore, the Court also ADOPTS the magistrate

judge’s qualified immunity analysis — which was not objected to by
the parties — and holds that summary judgment is warranted as to
plaintiffs’ claims against Mayor Pagan-Centeno in his personal
capacity

because

he

is

entitled

to

qualified

immunity.

Accordingly, the Court DISMISSES all claims against defendant
Pagan-Centeno in his personal capacity.

Civil No. 11-1880 (FAB)

20

III. CONCLUSION
For the reasons discussed above, the Court ADOPTS IN PART and
REJECTS IN PART the magistrate judge’s findings contained in the
R&R at

docket

number

100,

and

ADOPTS

the

magistrate judge’s

findings contained in the R&R at docket number 102.

Accordingly,

the Court (1) DENIES summary judgment on plaintiffs’ section 1983
claim

on

the

ground

of

an

expired

statute

of

limitations;

(2) GRANTS summary judgment of all federal and state law claims by
plaintiff Lareños en Defensa del Patrimonio Historico, Inc. for
lack of standing; (3) and (4) DENIES summary judgment as to
plaintiffs’ First Amendment claims for the events of September 12,
2010 and November 28, 2010; (5) DENIES summary judgment as to
plaintiffs’ supplemental claims; (6) GRANTS summary judgment as to
plaintiffs’ claims against defendant Pagan-Centeno in his personal
capacity; and (7) DENIES plaintiffs’ motion for partial summary
judgment.
IT IS SO ORDERED.
San Juan, Puerto Rico, August 2, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE