B & B Target Center, Inc. et al v. Figueroa-Sancha et al
Filing
56
OPINION AND ORDER re 18 Motion to Dismiss; 19 Motion to Dismiss; 22 Motion to Dismiss; 37 Motion to Dismiss. The Court GRANTS the defendants' motion to dismiss the plaintiffs' Fourth Amendment claim. The Court also DENIES the defe ndants' motion to dismiss with respect to the plaintiffs' Fourteenth Amendment, supervisory liability, direct liability, and failure to take remedial action claims. The Court grants the plaintiffs until July 9, 2012 to ame nd their pleading and substitute Figueroa and Puig (and any other defendant not currently in the position he or she was in when the complaint was filed) with their current successors. Signed by Judge Francisco A. Besosa on 07/03/2012. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
B&B TARGET
al.,
CENTER,
INC.,
et.
Plaintiffs,
v.
CIVIL NO. 11-1901 (FAB)
JOSE FIGUEROA-SANCHA, et. al.,
Defendants.
OPINION AND ORDER1
BESOSA, District Judge.
Before the Court is the defendants’ motion to dismiss all of
plaintiffs’ B&B Target Center, Inc. (“B&B”), Luis A. BermudezGonzalez (“Bermudez”) and Ana M. Latorre-Echeandia (“Latorre”)
(collectively, “plaintiffs”) claims pursuant to Federal Rule of
Civil
Procedure
12(b)(6)
(“Rule
12”).
After
reviewing
the
plaintiffs’ complaint and associated pleadings, the Court GRANTS IN
PART and DENIES IN PART the defendants’ motion to dismiss.
I.
Background
A.
Procedural History
Plaintiffs filed their complaint on September 14, 2011
against
defendants
Jose
Figueroa-Sancha
(“Figueroa”)
in
his
personal and official capacity as Superintendent of the Puerto Rico
1
Justin Rowinsky, a second-year student at the Georgetown
University Law Center, assisted in the preparation of this Opinion
and Order.
Civil No. 11-1901 (FAB)
2
Police Department (“PRPD”); Carlos W. Carrion-Rodriguez (“Carrion”)
in his personal and official capacity as Director of the PRPD’s
Organized Crime Office; and Jose G. Camacho-Crespo (“Camacho”),
Raymond Ramos-Bajandas (“Ramos”), Miguel Crespo-De Leon (“Crespo”)
and
Arelys
Serrano-Crespo
(“Serrano”)
in
their
personal
and
official capacities as officers in the PRPD’s Gun Shop Inspections
& Investigations Division.
Plaintiffs also included in their
complaint defendants Juan C. Puig-Morales (“Puig”) in his personal
and official capacity as Secretary of the Puerto Rico Department of
Treasury (“Treasury”); Elba N. Vazquez-Rasmo (“Vazquez”) in her
personal and official capacity as Director of the Treasury’s Bureau
of Consumer Taxes; and Auberto Otero-Rivera (“Otero”) in his
personal and official capacity as an Internal Revenue Officer of
the Treasury’s Bureau of Consumer Taxes.
Plaintiffs filed the complaint pursuant to 42 U.S.C.
§ 1983, claiming that the defendants violated their civil rights.
The plaintiffs seek punitive damages, compensatory damages, and
injunctive relief resulting from the defendants’ alleged violations
of the plaintiffs’ Fourth and Fourteenth Amendment rights, the
defendants’
direct
and
supervisory
failure to take remedial action.
liability,
and
defendants’
Id. at pp. 20-25.
Plaintiffs
also seek attorney’s fees and costs pursuant to 42 U.S.C. § 1988.
Civil No. 11-1901 (FAB)
3
The defendants have filed a total of four motions to
dismiss, (Docket Nos. 18, 19, 22, and 37), and all defendants have
filed motions specifically to join Puig’s motion to dismiss that
was filed on November 28, 2011.
(Docket No. 22.)
The plaintiffs
filed two responses in opposition, one on January 9, 2012, (Docket
No. 30), and one on March 27, 2012, (Docket No. 43).
Defendants
seek dismissal of all claims against all defendants pursuant to
Rule 12(b)(6) for plaintiffs’ failure to state a claim.
B.
Factual History
On January 5, 2009, the Federal Bureau of Alcohol,
Tobacco and Firearms (“ATF”) sent an email to B&B informing it that
a weapon traced to B&B’s name had been found outside of the
business.
(Docket No. 1 at ¶ 3.3.)
B&B discovered that the weapon
was part of a group of twenty-five firearms that should have been
sent to a gun store in Oklahoma, but were never received.
Id.
B&B
then filed a claim with the ATF and PRPD on January 8, 2009, which
prompted B&B, the ATF and the PRPD to conduct a complete inventory
of B&B’s firearms from January 8 through January 22, 2009.
¶ 3.4.
Id. at
The inventory revealed that twenty-eight firearms were
missing, and the plaintiffs reported that finding to the PRPD. Id.
Unbeknownst to the plaintiffs, Superintendent Figueroa
sent a letter to Secretary Puig on May 1, 2009, recommending that
Treasury revoke B&B’s Gunsmith License (“license”) based on B&B’s
Civil No. 11-1901 (FAB)
4
alleged negligent care and handling of firearms at its business.
Id. at ¶ 3.5. Officers Camacho and Serrano inspected B&B on May 27
and August 25, 2009, respectively.
Id. at ¶ 3.6.
They issued two
separately signed Quarterly Inspection Reports that certified B&B
was in compliance with all applicable laws and regulations.
Id.
Despite those inspections, plaintiffs were notified that their
license was revoked in a letter signed by Vazquez and personally
delivered to them by Otero on September 17, 2009.
Id. at ¶ 3.7.
The September 17, 2009 letter notified the plaintiffs
that B&B’s license was summarily revoked, but “failed to adequately
expound
the
specific
factual
allegations
of
B&B’s
purported
misconduct.” Id. at ¶ 3.8. Immediately upon receiving the letter,
the plaintiffs’
requested
to
examine
the
revocation was based, but Otero refused.
files
on
which
Id. at ¶ 3.10.
the
Later
that same day, the plaintiffs filed a claim before the Treasury’s
Office of Procedural Adjudications, requesting a dismissal of the
summary revocation of their license.
Id.
The plaintiffs then
showed a copy of the complaint to Otero (also on September 17,
2009) who refused a second time to allow the plaintiffs to examine
the file on which the license revocation was based.
Id.
On
September 18, 2011, plaintiffs met with Director Carrion, Officers
Camacho and Ramos and others at PRPD’s General Headquarters in
order to “ascertain the basis” for the revocation of their license.
Civil No. 11-1901 (FAB)
Id. at ¶ 3.12.
5
The plaintiffs requested to examine the relevant
files for a third time, and were denied again.
Officer
Camacho
stated
that
the
revocation
Id. at ¶ 3.13.
was
based
on
an
inconsistency between B&B’s inventory and the PRPD’s electronic
registry; once the deficiency was corrected the license would be
re-instated.
plaintiffs
Id.
then
His explanation was incorrect.
requested
that
their
license
be
Id.
temporarily
restored pending a complete audit by an external expert.
¶ 3.14.
That suggestion was also denied.
The
Id. at
Id.
From September 21, 2009, through September 28, 2009, the
PRPD conducted a warrantless search of B&B and seized all of B&B’s
firearms.
Id. at ¶ 3.17.
Some of the seized firearms were legally
owned by third parties who had deposited them with B&B for custody
and/or repair.
Id. at ¶ 3.17.
The plaintiffs filed a second claim
before the Treasury’s Office of Procedural Adjudications requesting
an immediate hearing in lieu of B&B’s continuing “economic and
moral damages.”
Id. at
¶
3.19.
On
October
22,
2009,
the
plaintiffs also sent a similar letter to Superintendent Figueroa
that detailed the damages B&B was suffering:
loss of income,
damage to their reputation, and several lawsuits against the
plaintiffs by customers for various contractual damages.
¶¶ 3.20, 3.21.
Id. at
Civil No. 11-1901 (FAB)
6
On March 15, 2010, the plaintiffs presented their case
during an Administrative Hearing.
Id. at ¶ 3.22.
The Treasury’s
Examining Officer issued a Resolution on September 8, 2010, (which
became final on November 15, 2010) that found for the plaintiffs
and required the re-issuing of the plaintiffs’ license.
Id. at
¶ 3.23. The Resolution found that the police had erred in revoking
the license and that the “Plaintiffs’ due process rights were
clearly
violated.”
Id.
The
plaintiffs’
license
was
not
reinstated, however, until December 1, 2010, and B&B’s firearms and
ammunition were not returned until December 22-23, 2010.
¶ 3.25.
Id. at
The plaintiffs seek economic and moral damages accrued
during the sixteen months their license was suspended that resulted
from the defendants’ actions, for a total of $19,000,000.
Id. at
pp. 19-20.
II.
Legal Standard for a 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
Civil No. 11-1901 (FAB)
7
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).
The pled factual material must be sufficient “to raise a right
to relief above the speculative level,” and permit the Court to
“draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)).
pleading
must
plausibility.”
The Supreme Court has held that the plaintiff’s
cross
“the
line
between
possibility
and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 577
(2007). The Court should not attempt to forecast the likelihood of
success even if proving the alleged facts is “improbable.”
Id.
at 556. 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).
III. Legal Standard for 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
Civil No. 11-1901 (FAB)
8
violate federal constitutional provisions or federal law. Elena v.
Municipality of San Juan, 677 F.3d 1, 10 (1st Cir. 2012).
Puerto
Rico is considered a state for the purposes of section 1983 claims.
See, e.g., id. (citing Deniz v. Muncipality of Guaynabo, 285 F.3d
142, 146 (1st Cir. 2002)).
IV.
Discussion
Because the defendants have moved to dismiss all of the
plaintiffs’ claims, the Court will address each in turn.
A.
Fourth Amendment Claim
Plaintiffs allege that the search of B&B and the seizure
of the weapons in its possession (including some legally and
privately owned guns that were temporarily stored there) was
“objectively unreasonable” because it was performed “without any
search
warrant,
probable
(Docket No. 1 at ¶ 4.2.)
cause
or
objective
justification.”
Although the plaintiffs have articulated
the correct legal standard, their pleading fails to establish a
claim for relief.
The Fourth Amendment protects an individual’s “houses,
papers, and effects, against unreasonable searches and seizures.”
U.S. Const. amend. IV.
as private homes.
(1967).
It applies to commercial premises as well
See See v. City of Seattle, 387 U.S. 541, 543
Commercial property in a “closely regulated industry,”
however, is subject to a reduced expectation of privacy.
See
Civil No. 11-1901 (FAB)
9
Giragosian v. Bettencourt, 614 F.3d 25, 29 (1st Cir. 2010) (citing
New York v. Burger, 482 U.S. 691, 702 (1987)).
Because a reduced
expectation of privacy exists for certain businesses, warrantless
inspections of them are a “lawful exercise of the government’s
power.”
Giragosian, 614 F.3d at 29.
The Supreme Court has
enumerated three criteria for determining whether the government
can
perform
industries:
basis
of
warrantless
inspections
of
businesses
in
certain
(1) a substantial government interest that forms the
the
regulatory
scheme,
(2)
whether
the
warrantless
inspections are necessary to further that regulatory scheme, and
(3) if the regulatory scheme is a “constitutionally adequate
substitute for a warrant.”
Burger, 482 U.S. at 702-03.
The Supreme Court has held that firearms manufacturing
and dealing is one example of a “pervasively regulated industry.”
United States v. Biswell, 406 U.S. 311, 316 (1972) (holding that
the
regulation
of
firearms
is
“of
central
[government] efforts to prevent violent crime.”).
importance
to
Businesses such
as B&B are aware that their records, firearms and ammunition are
subject to regular inspections proscribed by applicable federal or
local
laws.
See
id.
The
touchstone
for
analyzing
these
warrantless searches and seizures is whether the officers’ actions
were “objectively reasonable.” See Graham v. Connor, 490 U.S. 386,
397 (1989) (internal citation omitted). Puerto Rico law prescribes
Civil No. 11-1901 (FAB)
10
the regulation of Gunsmith licenses, including allowances for the
inspection of “documents and books . . . by any public official or
law enforcement agent.”
P.R. Laws Ann. tit. 25, § 456i(g) (2009).
In addition, infractions of certain requirements can result in the
PRPD Superintendent revoking the business’s license.
include
keeping
weapons
in
an
unauthorized
Infractions
location,
id.
at
§ 456i(a), and failure to keep the required documents and books,
id. at § 456i(i).
Finally, businesses that are not certified “by
the police to have met the safety measures pursuant to this chapter
shall not initiate operations until [the businesses] have [a
license].”
P.R. Laws Ann. tit. 25, § 456i(a) (2009).
Plaintiffs acknowledge that they filed a report with the
PRPD documenting the twenty-eight missing weapons discovered during
the joint inventory conducted in January 2009.
¶ 3.4.)
(Docket No. 1 at
That report was the basis of Superintendent Figueroa’s
letter to Secretary Puig that recommended revoking B&B’s license.
Id. at ¶ 3.5.
Otero hand-delivered a letter to the plaintiffs,
which was signed by Vazquez and stated B&B’s license was summarily
revoked.
Id. at ¶ 3.7.
Once their license was revoked, B&B’s
possession of firearms violated applicable Puerto Rico law.
The
PRPD’s search and seizure of B&B’s inventory in September 2009 did
not
require
a
warrant
because
plaintiffs
were
voluntarily
participating in a highly regulated industry. See GM Leasing Corp.
Civil No. 11-1901 (FAB)
11
v. United States, 429 U.S. 338, 357-58 (1977) (internal citation
omitted).
Moreover, plaintiffs’ complaint has not included any
fact demonstrating that the PRPD’s search and seizure in September
2009 was objectively unreasonable.
There are no allegations of
property damage, harassment, or a general lack of professionalism
that could sustain their Fourth Amendment claim against a motion to
dismiss. Nor can any reasonable inferences to that effect be drawn
from the complaint.
As the First Circuit Court of Appeals has
noted, once the Government is “properly on the premises to inspect
records, documents, firearms and ammunition,” they are “entitled to
seize the incriminating records.”
F.2d 764, 765 (1st Cir. 1976).
United States v. Wilbur, 545
Similarly, once B&B’s license was
revoked, the PRPD was entitled and, indeed, obligated to ensure
that an unlicensed B&B did not display or sell firearms.
See
Biswell, 406 U.S. at 317 (holding that the “seizure of respondent’s
sawed-off
rifles
Amendment.”).
was
not
unreasonable
under
the
Fourth
Because the defendants’ conduct was objectively
reasonable, the defendants’ motion to dismiss plaintiffs’ Fourth
Amendment claim is GRANTED. The plaintiffs’ Fourth Amendment claim
is DISMISSED WITH PREJUDICE.
B.
Fourteenth Amendment Due Process Claim
The
Fourteenth
Amendment
decrees
that
no
State
may
“deprive any person of life, liberty, or property, without due
Civil No. 11-1901 (FAB)
process of law.”
12
U.S. Const. amend. XIV.
Due process claims may
be brought as procedural due process violations or substantive due
process
violations.
Plaintiffs
allege
that
their
Fourteenth
Amendment due process rights were violated both by the lack of a
pre-revocation hearing and the long delay before the Administrative
Hearing on March 15, 2010.
(Docket No. 1 at p. 23.)
In their
complaint, plaintiffs bring only a procedural due process claim.
Because the plaintiffs have failed to plead a substantive due
process claim, the Court focuses its analysis solely on procedural
due process.
Evaluating
“complicated”
and
a
procedural
“involves
a
myriad
due
process
of
claim
factors.”
is
Elena v.
Municipality of San Juan, 677 F.3d 1, 19 (1st Cir. 2012).
Because
the Court is deciding a motion to dismiss, the plaintiffs must have
pled facts to establish plausibly that the defendants acted under
“color of state law” to deprive the plaintiffs of a “protected
property interest” without due process of law.
See Gonzalez-Droz
v. Gonzalez-Colon, 660 F.3d 1, 13 (1st Cir. 2011).
The Court will
first determine if the plaintiffs’ complaint involves a protected
property interest, and then address whether the plaintiffs were
provided with constitutionally adequate due process.
v. Elridge, 424 U.S. 319, 335 (1976).
plaintiffs
were
provided
with
See Mathews
In evaluating whether the
constitutionally
adequate
due
Civil No. 11-1901 (FAB)
13
process, the Court looks to the “Mathews” test that requires the
Court to balance:
(1) the private interest affected by the
official action, (2) the risk of erroneous deprivation through the
procedures used, and (3) the government’s interest.
i.
Id.
Protected Property Interest
First,
B&B’s
license
was
a
property
interest
protected by the Due Process clause of the Fourteenth Amendment
because it was essential to its livelihood. See Gonzalez-Droz, 660
F.3d at 13 (holding that revoking a doctor’s license to practice
medicine and earn a livelihood was “the necessary showing of a
deprivation of a constitutionally protected interest.”); Bell v.
Burson, 402 U.S. 535, 539 (1971) (“Once licenses are issued . . .
their continued possession may become essential in the pursuit of
a
livelihood.”).
B&B
was
deprived
of
September 17, 2009, through December 1, 2010.
¶¶ 3.7, 3.25.)
its
license
from
(Docket No. 1 at
During those sixteen months the plaintiffs allege
that they lost income, faced lawsuits from customers, and suffered
a decline in their reputation.
These negative consequences on the
plaintiffs’ livelihood that resulted from the revocation of the
license sufficiently establish that B&B’s license is a protected
property interest.
Civil No. 11-1901 (FAB)
ii.
14
Constitutionally Adequate Process
The plaintiffs aver that their due process rights
were violated by the lack of a pre-revocation hearing, and the
length of time until the Administrative Hearing was finally held.
The Court will address both contentions.
a.
Pre-revocation Hearing
The plaintiffs first argue that the revocation
of B&B’s license violated procedural due process because they were
not afforded a pre-revocation hearing. (Docket No. 1 at ¶ 3.7.)
Even though a hearing prior to revoking a property interest is the
default requirement to satisfy procedural due process, see, e.g.,
Bell, 402 U.S. at 542,
there are exceptions for cases “where a
State must act quickly, or where it would be impractical to provide
pre-deprivation process.”
Elena, 677 F.3d at 20 (quoting Gilbert
v. Homar, 520 U.S. 924, 930 (1997)).
These exceptions principally
derive from the third “Mathews” factor:
interest.
the relevant government
As previously discussed, weapons dealerships are a
“perversely regulated industry” and are accordingly one of the
exceptions to the usual pre-deprivation hearing requirement.
See
Biswell, 406 U.S. at 316; Spinelli v. City of New York, 579 F.3d
160, 170 (2d Cir. 2009) (holding that a gun store owner was not
entitled to pre-deprivation due process).
governments’
interest
in
preventing
the
The local and federal
unlicensed
sale
and
Civil No. 11-1901 (FAB)
15
distribution of firearms necessitated prompt action by the PRPD
once B&B’s license was revoked.
See Spinelli, 579 F.3d at 170
(holding that “the City had sufficient cause to take prompt action
to address the security infractions” at the gun store) (internal
quotation
omitted).
Therefore,
the
defendants
were
not
constitutionally required to provide a pre-revocation hearing to
the plaintiffs.
b.
Post-revocation Hearing
Even
if
there
are
exigent
circumstances
necessitating prompt action, “there must be an adequate postdeprivation hearing within a reasonable time” in order to satisfy
procedural due process.
Suboh v. Dist. Attorney’s Office of
Suffolk Dist., 298 F.3d 81, 94 (1st Cir. 2002). Fundamentally, the
plaintiffs contend that holding the Administrative Hearing six
months after their license was revoked was not reasonable.
The
Court agrees.
The
primary
purpose
of
a
post-revocation
hearing within a reasonable time is to account for the second
“Mathews” factor, the risk of an erroneous deprivation.
Although
whether the deprivation was actually erroneous is “beside the
procedural due process point,” the Court must examine “the fairness
of
the
protocol”
deprivation.”
and
“the
risks
of
a
lasting
(erroneous)
Amsden v. Moran, 904 F.2d 748, 753-54 (1st Cir.
Civil No. 11-1901 (FAB)
1990).
16
The focus must be on the “ready availability of [a] prompt
post-deprivation review,” and that was lacking in this case.
See
Gonzalez-Dron,
660
F.3d
the
revocation
the
plaintiffs’
of
at
14.
The
license
six
and
months
the
between
Administrative
Hearing is much longer than other durations previously upheld as
constitutional.
See Gonzalez-Dron, 660 F.3d at 14 (two weeks);
Gamble v. Webb, 806 F.3d 1258, 1261 (5th Cir. 1986) (eight days).
In contrast, the Second Circuit Court of Appeals recently held that
a fifty-eight day delay between suspending a gun shop’s license and
a post-suspension hearing was too long.
Spinelli, 579 F.3d at 173
(“[T]he delay Spinelli actually experienced still exceeded the
bounds of due process.”).
similar
to
those
of
Because the facts of Spinelli are very
this
case,
its
holding
is
particularly
persuasive.
The Spinelli Court echoed the Supreme Court’s
admonition that “[a]t some point, a delay in the post-termination
hearing would become a constitutional violation.” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 547 (1985).
Without a license,
B&B was unable to function and the plaintiffs were unable to earn
any income.
determining
See FDIC v. Mallen, 486 U.S. 230, 242 (1988) (“In
how
long
a
delay
is
justified
in
affording
a
post-suspension hearing and decision, it is appropriate to examine
. . . the harm to this interest occasioned by delay . . . .”).
It
Civil No. 11-1901 (FAB)
17
was, therefore, “incumbent upon” the Commonwealth “to provide a
prompt hearing,” where the plaintiffs could have presented their
views and arguments on the merits of the revocation of their
license.
See
Spinelli,
579
F.3d
at
173-74.
In
addition,
plaintiffs exhausted all of their possible state remedies.
They
filed two complaints before the Treasury’s Office of Procedural
Adjudications, and requested permission to examine the files that
were the basis of the decision to revoke their license.
No. 1 at ¶¶ 3.7, 3.8, and 3.10-3.13.)
(Docket
None of those options
provided any relief to the plaintiffs, who were without their sole
source of income for almost sixteen months.
See Maymi v. Puerto
Rico Ports Auth., 515 F.3d 20, 30 (1st Cir. 2008) (holding that
“the state remedies” of reinstating the plaintiff’s salary and
awarding retroactive relief had provided “sufficient procedural due
process for the harms allegedly suffered” by her).
While the defendants may be able to provide
evidence
justified
demonstrating
the
lengthy
an
important
delay,
government
plaintiffs
have
interest
satisfied
that
their
current burden of pleading allegations that if true would establish
their Fourteenth Amendment due process rights were violated.
At
this stage, without more guidance from the parties on this issue,
the Court finds that plaintiffs have sufficiently pled facts to
show that they have been deprived of constitutionally adequate
Civil No. 11-1901 (FAB)
process.
18
Accordingly, the defendants’ motion to dismiss this
specific claim is DENIED.2
C.
Damages and Injunctive Relief
Plaintiffs have admitted that the defendants cannot be
liable for monetary damages pursuant to section 1983 because of the
Eleventh Amendment.
(Docket No. 43 at p. 5.)
Puerto Rico enjoys
the full protection of the Eleventh Amendment, and it is “well
settled” that state officials acting in their official capacity are
not liable for damages.
See, e.g., Futura Dev. of Puerto Rico,
Inc. v. Estado Libre Asociado de Puerto Rico, 144 F.3d 7 (1st Cir.
1998); Wang v. New Hampshire Bd. of Registration in Med., 55 F.3d
698, 700 (1st Cir. 1995).
Defendants can be sued for damages in
their individual capacity, however, and because the plaintiffs’
claim of a Fourteenth Amendment violation is moving forward, the
defendants may still be liable.
This logic is also applicable to
the plaintiffs’ request for injunctive relief, a remedy that can be
awarded against state officials acting in their official capacity
despite the Eleventh Amendment.
See Rosie D. ex rel. John D. v.
Swift, 310 F.3d 230, 234 (1st Cir. 2002) (citing Ex Parte Young,
2
The Court also DENIES the defendants’ motion to dismiss with
respect to the defendants’ direct liability, supervisory liability,
and failure to take remedial action.
Because these liability
claims depend on the success of the plaintiffs’ due process claim,
the Court reserves judgment.
Civil No. 11-1901 (FAB)
19
209 U.S. 123 (1908)) (holding that “suits against state officials
seeking prospective injunctive relief” are common).
Whether the
defendants are liable in their individual (damages) or official
(injunctive relief) capacities is yet to be determined.3
The Court notes, however, that Superintendent Figueroa
and Secretary Puig are not currently in those positions, and,
therefore, cannot be held liable in an official capacity for
injunctive relief.
The Court grants the plaintiffs until July 9,
2012 to amend their pleading and substitute Figueroa and Puig (and
any other defendant not currently in the position he or she was in
when the complaint was filed) with their current successors.
Figueroa and Puig and the other defendants are still potentially
liable in their individual capacities for damages.
3
The Court also reserves judgment on the plaintiffs’ claim for
attorney’s fees pursuant to 42 U.S.C. § 1988.
The Court will
address the issue after the merits of the remaining claims are
decided.
Civil No. 11-1901 (FAB)
V.
20
Conclusion
For
the
reasons
discussed
above,
the
Court
GRANTS
the
defendants’ motion to dismiss the plaintiffs’ Fourth Amendment
claim.
The Court also DENIES the defendants’ motion to dismiss
with respect to the plaintiffs’ Fourteenth Amendment, supervisory
liability, direct liability, and failure to take remedial action
claims.
IT IS SO ORDERED.
San Juan, Puerto Rico, July 3, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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