Larenos en Defensa del Patrimonio Historico, Inc. et al v. Municipality of Lares
Filing
38
OPINION AND ORDER re 9 Motion to Dismiss; and re 32 Report and Recommendation. The Court ADOPTS the Report and Recommendation IN PART. Defendant's motion to dismiss plaintiffs' First Amendment claim and Commonwealth law claims is DENIED, and defendant's motion to dismiss plaintiffs' Fifth and Fourteenth Amendment claims is GRANTED. Signed by Judge Francisco A. Besosa on 08/06/2012. (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.
OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is a Report & Recommendation (“R&R”) issued
by Magistrate Judge Velez-Rive on June 29, 2012.
(Docket No. 32.)
The R&R recommends that defendant Roberto Pagan-Centeno’s (“Pagan”)
motion to dismiss all of plaintiffs’2 claims pursuant to Federal
Rule of Civil Procedure 12(b)(6) be DENIED.
(Docket No. 9.)
Defendant filed objections to the R&R on July 30, 2012.
No. 36.)
(Docket
After reviewing the R&R, the Court ADOPTS the R&R IN
1
Justin Rowinsky, a second-year student at the Georgetown
University Law Center, assisted in the preparation of this Opinion
and Order.
2
Plaintiffs are:
Yamil Guzman-Gonzalez, Alma Irizarry-Toledo,
Edwin Vera-Muñoz, Gabriela Vargas-Quiñones, Maria M. Irizarry,
Diego Torres-Delgado, Margaret G. Rego, Jose Ruiz-Santiago, Lillian
Perez-Toledo and the non-profit corporation Lareños en Defensa del
Patrimonio Historico, Inc.
Civil No. 11-1880 (FAB)
PART.
2
Defendant Pagan’s motion to dismiss is GRANTED IN PART and
DENIED IN PART.
I.
Background
A.
Factual History
Plaintiffs
against
defendant
filed
Roberto
a
complaint
Pagan
on
Centeno
September
6,
(“defendant”)
2011,
in
his
personal and official capacity as the Mayor of Lares, and against
the Municipality of Lares (collectively, “defendants”).
No. 1 at ¶¶ 11-12.)
(Docket
Plaintiffs seek damages and injunctive relief
pursuant to 42 U.S.C. § 1983 for defendants’ alleged violations of
plaintiffs’ First, Fifth, and Fourteenth Amendment rights.
p.
1.
Sections
Plaintiffs
1,
4,
6
also
and
allege
7
of
that
Article
the
II
defendants
of
the
Id. at
violated
Puerto
Rico
Constitution, and Article 1802 of the Civil Code, P.R.Laws Ann.
tit. 31 sec. 5141.
Id. at ¶ 1.
The Court declines to rehash the entire factual record,
and highlights only the relevant facts.
Simply put, plaintiffs
opposed defendant Pagan’s plan to change Lares’s motto from “La
Ciudad del Grito” (“City of the Uprising”), a historical reference
to the September 23, 1868 revolt against the Kingdom of Spain, to
“Lares, Ciudad de los Cielos Abiertos” (“Lares, the City of Open
Skies”).
Id. at ¶¶ 6-8, 12.
Plaintiffs began “expressing their
opposition” to the proposed change, and their complaint focuses on
Civil No. 11-1880 (FAB)
two
specific
incidents
3
that
they
allege
were
the
result
of
defendant’s actions.
First, plaintiffs attempted to express their opinion in
a public square, Plaza de la Revolucion (“Revolution Square”),
during a march on September 12, 2010.
Id. at ¶¶ 20-21.
Revolution
Square is “a traditional place of public expression,” and has been
used by citizens “for decades” to express “all sorts of political,
social, [and] religious” views.
Id. at ¶ 21.
Plaintiffs’ request
to use Revolution Square was denied, allegedly because another
group had requested to use the square on that day.
Id. at ¶¶ 24,
26. That reason was apparently “false,” however, because “no other
group or persons held an activity at [Revolution] [S]quare” on
September 12, 2010.
Id. at ¶¶ 27, 29.
Plaintiffs aver “upon
[their] information and belief” (1) that “they were denied the use
of
[Revolution]
[S]quare
pursuant
to”
defendant
Pagan’s
instructions, and (2) that Lares “does not have a set of rules and
regulations . . . regarding the use of the public squares and
public locations of the Municipality.”
Id. at ¶¶ 28, 31.
Second, plaintiffs attempted to “express their support”
of the original Lares motto by riding a float in a parade held on
November 28, 2010.
Id. at ¶¶ 38-39.
Plaintiffs’ request to ride
in the parade was denied, allegedly because all floats needed to be
“prepared with decorations and motives [sic] of the upcoming
Civil No. 11-1880 (FAB)
Christmas Season.”
4
Id. at ¶ 41.
Plaintiffs attempted to comply by
adding poinsettias3 (a traditional Christmas flower decoration) to
their float, but were denied permission again.
Id. at ¶¶ 42-43.
Plaintiffs nonetheless attempted to enter the parade but Lares
police
agents
immediately
arrived,
surrounded
the
float
and
“restricted the liberty of the drivers of the parade and of other
participant Plaintiffs impeding their movement and restricting
their liberty.” Id. at ¶¶ 47-49.
Plaintiffs again aver upon their
“information and belief” (1) that the actions of the police “were
acts
undertaken
upon
the
express
or
tacit
instructions”
of
defendant Pagan, and (2) that Lares does not have “any policies,
rules, or regulations, nor legally valid criteria to determine who
can . . . participate in parades sponsored by the municipality.”
Id. at ¶ 45, 57.
B.
Procedural Background
Defendant Pagan, in his personal capacity, filed a motion
to dismiss plaintiffs’ complaint pursuant to Rule 12(b)(6) on
October
31,
2011,
for
entitling them to relief.
raises
the
affirmative
plaintiffs’
failure
to
(Docket No. 9 at ¶ 2.)
defense
of
qualified
state
Known in Puerto Rico as “pascuas”.
claim
Defendant also
immunity.
Plaintiffs filed an opposition on February 23, 2012.
3
a
Id.
(Docket
Civil No. 11-1880 (FAB)
No. 22.)
5
Magistrate Judge Velez-Rive’s R&R focused solely on
plaintiffs’
First
Amendment
complaint,
defendant’s motion to dismiss because:
and
recommends denying
(1) plaintiffs had met the
12(b)(6) pleading threshold, and (2) defendant is not entitled to
qualified immunity because a reasonable person in defendant’s
position
would
established law.
have
known
that
his
actions
Id. at pp. 19-20, 22.
violated
clearly
The R&R did not address
plaintiffs’ Fifth Amendment, Fourteenth Amendment or Commonwealth
claims.
The Court granted the defendant Pagan’s motion for an
extension of time in which to file objections, (Docket No. 34), and
defendant Pagan filed objections to the R&R on July 30, 2012.
(Docket No. 36.)
Defendant Pagan raises a number of objections to the R&R.
First, he contends that the R&R improperly “took into consideration
matters outside the pleadings,” because of the procedural posture
of the case.
(Docket No. 36 at ¶ 5.)
Defendant Pagan also objects
to plaintiffs’ use of “upon their information and belief,” stating
that “this is not enough to establish the element of causation
required in Section 1983.”
Id. at ¶ 7.
Defendant Pagan noted that
the R&R declined to address plaintiffs’ Fifth and Fourteenth
Amendment claims, and re-stated his request for qualified immunity
because he “is immune from suit when performing this judicial or
quasi judicial function.”
Id. at ¶¶ 9-10.
Civil No. 11-1880 (FAB)
II.
6
Legal Standards
A.
Referral pursuant to 28 U.S.C. § 636(b)(1)
A district court may refer a case to a magistrate judge
for a report and recommendation.
See 28 U.S.C. § 636(b)(1)(B)
(2012); Fed.R.Civ.P. 72(b); Loc. Rule 72(b).
affected
by
the
report
and
Any party adversely
recommendation
may
file
written
objections within fourteen days of being served with the magistrate
judge’s report. See 28 U.S.C. § 636(b)(1) (2012); Loc. Rule 72(d).
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.”
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)).
review.
1992).
Failure to comply with this rule precludes further
See Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir.
Furthermore, the objecting party must put forth more than
“[c]onclusory objections that do not direct the reviewing court to
the issues in controversy.”
Velez-Padro v. Thermo King de Puerto
Rico, Inc., 465 F.3d 31, 32 (1st Cir. 2006).
In conducting its review, the court is free to “accept,
reject,
or
modify,
in
whole
or
in
part,
recommendations made by the magistrate judge.”
the
findings
or
28 U.S.C. § 636
(a)(b)(1) (2012); Templeman v. Chris Craft Corp., 770 F.2d 245, 247
Civil No. 11-1880 (FAB)
7
(1st Cir. 1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc.,
286 F.Supp.2d 144, 146 (D.P.R. 2003).
The Court may also accept
those parts of the report and recommendation to which the parties
do not object.
See Hernandez-Mejias v. Gen. 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)).
B.
Rule 12(b)(6) Motion to Dismiss
Pursuant
to
Rule
12(b)(6),
a
court
can
dismiss
a
complaint that fails to state a claim upon which relief can be
granted. When assessing whether the plaintiff’s complaint provides
“fair notice to the defendants” and states “a facially plausible
legal claim,” the Court must utilize a two-pronged approach.
See
Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 11-12 (1st Cir.
2011). First, the Court can disregard statements that “offer legal
conclusions couched as fact,” because the plaintiff must do more
than “parrot the elements of the cause of action.”
Id. at 12.
Then, the Court is bound to treat all “properly pled factual
allegations” as true and draw all reasonable inferences in the
plaintiffs’ favor.
Id.
The Court must base its determination
solely on the material submitted as part of the complaint and
expressly incorporated within it, unless the motion is converted to
one for summary judgment. See Alternative Energy, Inc. v. St. Paul
Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
Civil No. 11-1880 (FAB)
8
The pled factual material must be sufficient “to raise a
right to relief above the speculative level,” and to permit the
Court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Iqbal, 556 U.S. 662, 678 (2009)).
Id. (quoting Ashcroft v.
The Supreme Court has held that
the plaintiff’s pleading must cross “the line between possibility
and plausibility.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
577
Court
(2007).
likelihood
The
of
“improbable.”
success
should
even
Id. at 556.
if
not
attempt
proving
the
to
forecast
alleged
facts
the
is
Therefore, a complaint that contains a
plausible basis for relief “may proceed even if it appears that a
recovery is very remote and unlikely.”
Id. at 556 (internal
citation omitted). The Court will draw “on its judicial experience
and
common
sense”
in
evaluating
a
complaint’s
plausibility.
Grajales v. Puerto Rico Ports Authority, 682 F.3d 40, 44 (1st Cir.
2012) (internal citation omitted).
C.
Section 1983 Claims
Pursuant to 42 U.S.C. § 1983, a party may bring a lawsuit
against state officials “acting under color of state law” who
violate
constitutional
provisions
or
federal
law.
Elena
Municipality of San Juan, 677 F.3d 1, 10 (1st Cir. 2012).
v.
Puerto
Rico is considered a state for the purposes of section 1983 claims.
Civil No. 11-1880 (FAB)
9
See, e.g., id. (citing Deniz v. Muncipality of Guaynabo, 285 F.3d
142, 146 (1st Cir. 2002)).
D.
Qualified Immunity
Qualified
functions
as
“a
immunity
shield
is
against
an
affirmative
unwarranted
defense
charges
that
that
the
official violated the Constitution in the course of performing the
functions of the office.”
Garnier v. Rodriguez, 506 F.3d 22, 26
(1st Cir. 2007) (internal citation omitted).
Qualified immunity
can be raised at the motion to dismiss stage, “lest unwarranted
lawsuits impede the proper functioning of government.”
Id.; see
also Pearson v. Callahan, 555 U.S. 223, 231 (2009) (holding that
qualified immunity is available to “ensure that insubstantial
claims against government officials [will] be resolved prior to
discovery.”) (internal quotation omitted).
The Court utilizes a two-part test when evaluating a
defendant’s claim of qualified immunity.
See, e.g., Maldonado v.
Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) (citing Pearson, 555
U.S. at 232).
The Court must determine: “(1) whether the facts
alleged or shown by the plaintiff make out a violation of a
constitutional right; and (2) if so, whether that right was clearly
established at the time of the defendant’s violation.”
568 F.3d at 269 (internal quotation omitted).
evaluates
the
second
prong,
whether
the
Maldonado,
When the Court
right
was
clearly
Civil No. 11-1880 (FAB)
10
established, it considers two additional factors:
(1) the clarity
of the law at the time of the alleged civil rights violation, and
(2) whether a reasonable defendant would have understood that his
conduct violated the plaintiffs’ constitutional rights.
See id.
(“That is, the salient question is whether the state of the law at
the time of the alleged violation gave the defendant fair warning
that his particular conduct was unconstitutional.”).
The Supreme
Court has stated that the doctrine of qualified immunity “protects
all state actors except the plainly incompetent [and] those who
knowingly violate the law.”
Haley v. City of Boston, 657 F.3d 39,
47 (1st Cir. 2011) (citing Malley v. Briggs, 475 U.S. 223, 231
(2009)).
IV.
Discussion
Defendant
Pagan’s
motion
to
dismiss
encompasses
all
of
plaintiffs’ claims against him in his personal capacity only.
Although the R&R focuses solely on plaintiffs’ First Amendment
claim, the Court will address whether the plaintiffs’ claims
pursuant to the First, Fifth and Fourteenth Amendments of the
United States Constitution meet the 12(b)(6) threshold, and if so,
Civil No. 11-1880 (FAB)
11
whether defendant is entitled to qualified immunity.4
Although
defendant objects to the use of material outside of plaintiffs’
pleading, the Court will rely solely on plaintiffs’ complaint in
the following analysis.
A.
First Amendment
Plaintiffs
Amendment
because
he
allege
that
allegedly
defendant
denied
violated
plaintiffs
the
the
First
use
of
Revolution Square on September 12, 2010, and denied them entry into
the parade on November 28, 2010, based on the content of their
speech.
Defendant moves to dismiss pursuant to Rule 12(b)(6) and
the doctrine of qualified immunity.
The R&R recommends DENYING
defendant’s motion to dismiss and claim of qualified immunity with
respect to plaintiffs’ First Amendment claims, and the Court
agrees.
4
Plaintiffs also allege that defendant Pagan violated various
Commonwealth laws and sections of the Puerto Rico Constitution.
(Docket No. 1 at ¶ 1.)
Defendant’s motion to dismiss did not
address the substantive merits of plaintiffs’ claims pursuant to
Commonwealth law, but instead stated that the Court should decline
to exercise supplemental jurisdiction if no other federal claims
remain. (Docket No. 9 at ¶ 39.) Because the Court DENIES the
defendant’s motion to dismiss plaintiffs’ First Amendment claim,
there is “at least one substantial federal claim in the lawsuit,”
and the Court retains supplemental jurisdiction over the
Commonwealth claims. Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.
1991).
Civil No. 11-1880 (FAB)
i.
12
12(b)(6) Threshold
Defendant
Pagan
contends
that
the
plaintiffs’
complaint fails to affirmatively link him in his personal capacity
to any alleged violation of their First Amendment rights.
rejects
this
argument
and
determines
that
plaintiffs’
plausibly link defendant to the allegations.
at 19.)
The R&R
claims
(Docket No. 32
The Court must draw all reasonable inferences in the
plaintiffs’ favor, and accept their pled facts as true.
Plaintiffs use the phrase “upon their information
and belief” numerous times in their complaint, a technique that has
been approved of by at least one federal appellate court.
See
Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010)
(noting that a plaintiff can plead “facts alleged upon information
and belief where the facts are peculiarly within the possession and
control of the defendant”).
In this case, only defendant Pagan
knows whether he had an affirmative role in denying the plaintiffs’
two attempts to express their opinions, and whether he did so on
the basis of the content of their message.
See id. (noting that
the complaint must “raise a reasonable expectation that discovery
will reveal evidence of illegality”) (citing Twombly, 550 U.S.
at 556).
The
R&R
thoroughly
cites
relevant
precedent
to
establish that if the defendant denied plaintiffs’ requests based
Civil No. 11-1880 (FAB)
13
on the content of their message (drawing all reasonable inferences
in the plaintiffs’ favor), he violated the First Amendment. Public
squares are
traditionally
places
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).
First Amendment protection.
Parades receive similar
See, e.g., Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 568 (1995)
(stating that “[p]arades are thus a form of expression,” and that
there is an “inherent expressiveness of marching to make a point”).
It is reasonable and plausible that defendant Pagan had a direct
role in denying plaintiffs’ use of Revolution Square and entry into
the parade.
It is also plausible that defendant did so because
plaintiffs were advocating against defendant’s attempt to change
the Lares motto.
discovery
will
Because there is “a reasonable expectation that
reveal
evidence”
that
the
defendant
violated
plaintiffs’ First Amendment rights, plaintiffs’ complaint meets the
required
12(b)(6)
threshold.
Grajales,
682
F.3d
at
49.
Defendant’s motion to dismiss plaintiffs’ First Amendment claim is
DENIED.
ii.
Qualified Immunity
Defendant argues in the alternative that he is
entitled to qualified immunity on plaintiffs’ First Amendment
Civil No. 11-1880 (FAB)
claim.
14
The R&R correctly disagrees.
The Court will evaluate
defendant’s claim using the required two-part test.
a.
Whether Plaintiff’s Allegations Constitute a
Constitutional Violation
Both
the
R&R’s
thorough
analysis
Court’s brief discussion above are applicable here.
and
the
Because the
Court must consider all of plaintiffs’ factual allegations as true,
and draw all reasonable inferences in their favor, their complaint
sufficiently
alleges
that
the
defendant
plausibly
violated
plaintiffs’ First Amendment rights.
b.
Whether the
Established
Plaintiffs’
Right
was
Clearly
The second prong of the test for qualified
immunity requires the Court to determine whether the plaintiffs’
First Amendment rights were clearly established at the time the
defendant allegedly violated them.
The First Amendment protection
of speech in public fora from content-based restrictions (unless
narrowly drawn to serve a compelling government interest) was
clearly
established
years
before
the
Fall
of
2010
when
the
defendant’s alleged violations took place.5 See, e.g., Perry Educ.
Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 66 (1983).
5
It is also axiomatic that the First Amendment is equally
applicable to the states. See, e.g., Everson v. Bd. of Ewing Tp.,
330 U.S. 1, 7 (1947).
Civil No. 11-1880 (FAB)
15
More recently, the First Circuit Court of Appeals unequivocally
stated that
the
First
Amendment
“demands
that
the
state
not
suppress speech where the real rationale for the restriction is
disagreement with the underlying ideology or perspective that the
speech expresses.”
Ridley v. Massachusetts Bay Transp. Auth., 390
F.3d 65, 82 (1st Cir. 2004).
Therefore, First Amendment law was
clear and unambiguous at the time of the defendant’s alleged
violations of plaintiffs’ First Amendment rights. In addition, any
reasonable mayor in the defendant’s position would have similarly
understood that denying access to a public forum based on a
disagreement with the content of the message violated the First
Amendment.
The ample precedent sufficiently “gave the defendant
fair warning that his particular conduct was unconstitutional.”
Maldonado, 568 F.3d at 269.
posture
of
the
case,
the
Based on the current procedural
DENIES
Court
defendant’s
qualified
immunity defense.
B.
Fifth Amendment
Plaintiffs allege that defendant violated their Fifth
Amendment
Amendment,
rights.
however,
(Docket
“applies
No.
1
at
¶¶
1,
only
to
actions
54.)
of
The
the
government-not to those of state or local governments.”
Fifth
federal
Martinez-
Rivera v. Sanchez-Ramos, 498 F.3d 3, 8 (1st Cir. 2007) (internal
citation omitted); see also Dusenbery v. United States, 534 U.S.
Civil No. 11-1880 (FAB)
16
161, 167 (2002) (contrasting the Fifth Amendment, which “prohibits
the United States” from violating a citizen’s due process rights,
with the Fourteenth Amendment, which “prohibits the States” from
doing the same) (emphasis added).
Because plaintiffs did not
include any federal defendants in their complaint, defendant’s
motion to dismiss with respect to the Fifth Amendment claim is
GRANTED, and his qualified immunity defense on this specific claim
is MOOT.
C.
Fourteenth Amendment
The
due
process
clause
of
the
Fourteenth
Amendment
provides both procedural and substantive rights to Puerto Rico
citizens. See, e.g., Gonzalez-Fuentes v. Molina, 607 F.3d 864, 879
(1st Cir. 2010).
Plaintiffs’ complaint simply alleges that the
defendant violated the Fourteenth Amendment.
¶¶ 52, 54.)
(Docket No. 1 at
Because the Court must draw all reasonable inferences
in plaintiffs’ favor, it will address whether plaintiffs have
sufficiently pled enough to meet the 12(b)(6) threshold for both a
procedural due process violation and a substantive due process
violation, and if so, whether defendant Pagan is entitled to
qualified immunity.
i.
Procedural Due Process
Plaintiffs have not identified any property interest
of which they were deprived in violation of their procedural due
Civil No. 11-1880 (FAB)
17
process rights, but instead claim that the Lares police illegally
restricted plaintiffs’ liberty on defendant Pagan’s instructions.
(Docket No. 1 at ¶ 54.)
provides
procedural
Because the “federal due process clause
protections
for
state-created
substantive
liberty interests,” the Court must determine whether a previously
enumerated liberty interest of plaintiffs was violated.
Rogers v.
Okin, 738 F.2d 1, 5 (1st Cir. 1984).
The Court has not found any precedent that would
entitle plaintiffs to relief based on defendant’s alleged brief
restriction of their liberty. Cases involving a liberty procedural
due process violation focus on specific categories of plaintiffs.
See Rogers, 738 F.2d at 6, 7 (recognizing a liberty procedural due
process
claim
involving
the
involuntary
commitment
of
mental
patients); Torres v. Superintendent of Police of Puerto Rico, 893
F.2d 404, 410 (1st Cir. 1990) (recognizing a liberty procedural due
process claim for malicious prosecution); Nolan v. Scafati, 430
F.2d 548, 549 (1st Cir. 1970) (recognizing a liberty procedural due
process claim for a state prison inmate).
Based on this lack of
precedent, state action that briefly restricted the liberty of a
civilian does not rise to the level of a procedural due process
violation.
Defendant’s motion to dismiss plaintiffs’ Fourteenth
Amendment procedural due process claim is GRANTED, and defendant’s
request for qualified immunity on this claim is MOOT.
Civil No. 11-1880 (FAB)
ii.
18
Substantive Due Process
When an executive official’s (such as a mayor)
actions are challenged as violating substantive due process, the
Court must determine “whether the behavior of the governmental
officer is so egregious, so outrageous, that it may fairly be said
to shock the contemporary conscience.”
Gonzalez-Fuentes, 607 F.3d
at 880 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847
n. 8 (1998)).
Descriptions of this test “often descend into a
morass of adjectives that are as nebulous as they are pejorative,”
id., such as “arbitrary and capricious,” and actions that “appear
shocking or violative of universal standards of decency.”
Amsden
v. Moran, 904 F.2d 748, 753-54 (1st Cir. 1990) (internal citations
omitted).
The
First
Circuit
Court
of
Appeals
has
recently
characterized the Supreme Court as “firm in its reluctance to
expand the doctrine of substantive due process.”
Maldonado, 568
F.3d at 273.
Applying those varied descriptions to this case,
plaintiffs have failed to plead enough to withstand defendant’s
motion to dismiss.
Even accepting all of their facts as true and
drawing all reasonable inferences in their favor, a substantive due
process claim appears to rest on the restriction of plaintiffs’
liberty as they attempted to enter the November 28, 2010 parade
with their float. The Lares police “restricted the liberty” of the
Civil No. 11-1880 (FAB)
19
drivers of the float, and other plaintiffs who were walking near
the float and also attempting to enter the parade.
Even if
plaintiffs’ liberty was in fact restricted, the pled allegations do
not
rise
of
the
level
of
shocking
the
Court’s
conscience.
Therefore, plaintiffs have failed to state a claim of a substance
due process violation upon which relief can be granted.
Alternatively, the Court notes that the Maldonado
court granted a defendant mayor’s motion for qualified immunity on
a claimed violation of substantive due process.
F.3d at 273-74.
Maldonado, 568
The Maldonado court cited the fact that “the
complaint does not allege that the Mayor was personally involved in
any conscience-shocking conduct.”
Id. at 274 (emphasis added).
Because section 1983 claims require an affirmative link between the
defendant and the alleged constitutional violations, the mayor’s
absence from the alleged mass killing of dogs and cats in the
Maldonado case was sufficient to grant him qualified immunity. Id.
Similarly, plaintiffs in this case allege that the responsible
actors for the alleged liberty violations were the Lares police,
not
defendant
Pagan
himself.
(Docket
No.
1
at
¶¶
48-51.)
Plaintiffs allege that the police denied the plaintiffs’ entry into
the parade on the “express or tacit instructions of the mayor,” but
those alleged instructions are only material to plaintiffs’ First
Amendment claim.
The complaint does not allege that defendant
Civil No. 11-1880 (FAB)
20
Pagan specified how the police were to act, or that he was
affirmatively
linked
to
the
police’s
actions
in
allegedly
restricting plaintiffs’ liberty.
Based on both a failure to pass the plausibility
threshold required by Rule 12(b)(6) and a failure to link defendant
Pagan affirmatively to the restriction of plaintiffs’ liberty,
defendant
Pagan’s
motion
to
dismiss
plaintiff’s
Amendment substantive due process claim is GRANTED.
Fourteenth
Defendant’s
request for qualified immunity on this claim is MOOT.
V.
Conclusion
For the reasons discussed above, the Court ADOPTS the R&R IN
PART.
Defendant’s motion to dismiss plaintiffs’ First Amendment
claim and Commonwealth law claims is DENIED, and defendant’s motion
to dismiss plaintiffs’ Fifth and Fourteenth Amendment claims is
GRANTED.
IT IS SO ORDERED.
San Juan, Puerto Rico, August 6, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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