Albizu-Merced et al v. Autoridad de Energia Electrica de Puerto Rico
Filing
44
ORDER granting in part and denying in part 19 Motion to Dismiss. Answer deadline due by 2/1/2013. Signed by Judge Jay A Garcia-Gregory on 1/8/2012. (RJC)
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALBIZU-MERCED, et al.,
Plaintiffs,
v.
THE PUERTO RICO ELECTRIC POWER
AUTHORITY,
CIVIL NO. 11-1969(JAG)
Defendant.
OPINION & ORDER
GARCIA-GREGORY, D.J.
Pending before the Court is a motion to dismiss under FED.
R. CIV. P. 12(b)(6)
filed
by
the
Puerto
Rico
Electric
Power
Authority (“PREPA”). For the reasons stated below, this motion
is hereby GRANTED IN PART AND DENIED IN PART.
BACKGROUND
The complaint stems from an inspection conducted by PREPA
personnel on Plaintiffs Juan Albizu-Merced, Maria E. Martinez
and
the
conjugal
partnership
comprised
between
them
(“Plaintiffs”) property in 2009. According to the complaint, the
workers
entered
Plaintiffs’
property
without
his
consent,
informing Mr. Albizu that he could not leave until they finished
2
CIVIL NO. 11-1969(JAG)
the inspection. The personnel then removed the power meter and
installed a new one. They informed Mr. Albizu that he would need
to install a new column, “as the existing meter was too far from
the external part of the plot where the house is located and
could
not
be
read
without
penetrating
into
the
property.”
(Docket No. 11, p. 3).
Sometime later, Plaintiffs were notified that a complaint
had
been
filed
against
them
“for
undue
use
of
electrical
services,” and that a hearing would be held at the offices of
PREPA. Mr. Albizu appeared at the PREPA offices on the scheduled
date, but was told that he needed an attorney to proceed. Mr.
Albizu was given time to retain an attorney, was told that he
“would receive a notice of the time and place of the hearing in
the administrative case,” and was then asked to leave. (Docket
No.
11,
received
p.
3).
notice
Nevertheless,
of
the
time
Plaintiffs
and
place
allege
of
the
they
never
re-scheduled
administrative hearing.
The hearing was held without Plaintiffs’ presence and a
final
resolution
was
reached.
administrative court held that
Among
other
things,
the
“PREPA had been deprived of an
amount in use of electricity in excess of $9,000.00, and that
once
penalties
amount
in
and
excess
of
interest
were
$12,000.00.”
applied
(Id.
at
PREPA
p.
was
4).
owed
an
Plaintiffs
3
CIVIL NO. 11-1969(JAG)
received notice of this resolution by mail. Plaintiffs sought
reconsideration of the administrative court’s resolution, but
the same was denied. As a result, PREPA suspended service to
Plaintiffs’ home on March 2011. According to the complaint, the
electricity has yet to be restored.
Plaintiffs
constitutional
electric
and
power
violated
then
their
filed
state
company
the
law
PREPA.
constitutional
instant
action,
violations
by
Plaintiffs
claim
rights
by
alleging
Puerto
Rico’s
that
PREPA
suspending
their
electrical service, attempting to collect a $12,000 debt, and
requiring them to build a column to install an electrical meter,
all without due process.
STANDARD OF LAW
Under Rule 12(b)(6), a defendant may move to dismiss an
action for failure to state a claim upon which relief can be
granted. To overcome a Rule 12(b)(6) motion, the complaint must
plead
sufficient
facts
“to
state
a
claim
to
relief
that
is
plausible on its face.” See Bell Atl. Corp. v. Twombly, 550 U.S.
544,
570
(2007);
see
also
Ashcroft
v.
Iqbal,
556
U.S.
662
(2009).
In Ocasio-Hernández v. Fortuño Burset, 640 F.3d 1 (1st Cir.
2011), the First Circuit distilled from Twombly and Iqbal a two-
4
CIVIL NO. 11-1969(JAG)
pronged test designed to measure the sufficiency of a complaint.
First,
the
reviewing
court
must
identify
and
disregard
“statements in the complaint that merely offer legal conclusions
couched as fact, or threadbare recitals of the elements of a
cause of action.” Ocasio-Hernández, 640 F.3d at 12 (internal
punctuation
omitted).
In
this
analysis,
the
remaining
non-
conclusory factual allegations must be taken as true, even if
they are “seemingly incredible,” or that “actual proof of those
facts is improbable.” Id. Finally, the court assesses whether
the facts taken as a whole “state a plausible, not merely a
conceivable, case for relief.” Id.
In
conducting
this
test,
a
court
must
not
attempt
to
forecast the likelihood of success even if recovery is remote
and unlikely. See Ocasio-Hernández, 640 F.3d at 12. Thus, “[t]he
relevant inquiry focuses on the reasonableness of the inference
of liability that the plaintiff is asking the Court to draw from
the facts alleged in the complaint.” Id. at 13.
DISCUSSION
Before
addressed.
pressing
The
Court
on,
several
notes
that
preliminary
while
the
matters
amended
must
be
complaint
hints at constitutional violations stemming from sources other
than the Fourteenth Amendment, these are only mentioned in a
5
CIVIL NO. 11-1969(JAG)
perfunctory manner.1 The three counts charged in the complaint
are
simply
titled
“Deprivation
of
Plaintiffs’
Fourteenth
Amendment Rights.” (Id. at p. 5-7). Most importantly, Plaintiffs
concede in their opposition to PREPA’s motion to dismiss that
“no claims other than due process claims are before” this Court.
(Docket No. 27, ¶ 20; see also Id. at ¶ 6). Because the language
pertaining to such claims appears to be used solely for poetic
effect, the Court will (in an abundance of caution) dismiss the
same without prejudice.
Plaintiffs
also
use
language
that
seems
to
hint
at
a
substantive due process claim under the Fourteenth Amendment.
(See
Docket
No.
11,
Count
I
¶
3:
stating
that
Defendant’s
violations of Plaintiff’s due process rights is shocking to the
conscience).
Nonetheless,
the
Court
finds
the
complaint
insufficient to sustain this type of claim, as it would require
Plaintiffs to allege that “the government conduct was, in and of
itself,
inherently
availability
of
impermissible
remedial
or
irrespective
protective
procedures.”
of
Maymi
the
v.
Puerto Rico Ports Authority, 515 F.3d 20, 30 (1st Cir. 2008).
Needless
to
say,
terminating
Plaintiffs’
electrical
service
1
See, e.g., Docket No. 11: Defendant’s actions violated
Plaintiffs’ “rights to free speech,” (Count I ¶ 1); their
“rights to assemble peasably [sic] under the First Amendments
[sic],” (Count II, ¶ 1); and their “civil rights to privacy”
(Count III, ¶ 1).
6
CIVIL NO. 11-1969(JAG)
falls
far
necessary
short
to
Remaining,
of
the
“brutal”
a
substantive
configure
then,
is
Plaintiffs’
and
“demeaning”
due
process
procedural
due
conduct
claim.
process
Id.
claim
under the Fourteenth Amendment, and their claims under state
law.
I.
Procedural Due Process
To
prevail
on
a
procedural
due
process
claim
under
42
U.S.C. § 1983, Plaintiffs must prove they were deprived of a
“property interest by defendants acting under color of state law
and
without
the
availability
of
a
constitutionally
adequate
process.” Maymi v. Puerto Rico Ports Authority, 515 F.3d 20, 29
(1st
Cir.
2008).2
Property
rights
are
not
created
by
the
Constitution; “they are created and their dimensions are defined
by
existing
rules
or
understandings
that
stem
from
an
independent source such as state law.” Gonzalez-De-Blasini v.
Family Dept., 377 F.3d 81, 86 (1st Cir. 2004)(citing Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972)). Once the property
interest
has
been
identified,
due
process
requires
that
the
right to notice and a hearing “be granted at a meaningful time
and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80
(1972).
2
Puzzlingly, nowhere do Plaintiffs mention 42 U.S.C. § 1983.
This is the correct vehicle through which constitutional claims
may be levied against the Commonwealth of Puerto Rico. The Court
reads the complaint as grounded implicitly on this statute.
7
CIVIL NO. 11-1969(JAG)
a. Property Interest
PREPA
challenges
the
notion
that
Plaintiffs
have,
as
consumers, any property interest in continued utility service.
Caselaw
from
the
Supreme
Court
holds
otherwise.
In
Memphis
Light, Gas and Water Division v. Craft, 436 U.S. 1 (1978), the
Supreme
Court
stated
–
without
much
discussion
–
that
a
customer’s property interest in continuous utility service “is
self-evident.” Id. at 18. Thus, the Supreme Court found that
“some
administrative
consumer
complaints
procedure”
prior
to
was
necessary
suspension
of
to
entertain
those
essential
services. It is hardly disputable that electrical service falls
under one of these “necessit[ies] of modern life.” Id.
PREPA offers various arguments that are easily rebutted.
For instance, PREPA contends that there is no constitutional
right to electricity service because consumers have to sign a
contract, pay for the service, and abide by PREPA’s rules. PREPA
cites no authority for its position, and it appears that such an
argument is nothing more than a red herring. Plaintiffs do not
claim to have a right to receive free or unchecked electrical
service. Rather, they claim that as paying customers, they were
entitled to some administrative hearing before they were cut
from the grid.
8
CIVIL NO. 11-1969(JAG)
In their reply to Plaintiffs’ opposition, PREPA backtracks
from its original position that there is no constitutional right
to continued utility service. Instead, PREPA contends that all
it “needed to do [before terminating Plaintiffs’ service] was to
adequately
appraise
Mr.
Albizu
Merced
of
the
threat
of
termination of the service and the availability to present his
objections.” (Docket No. 32, p. 4). Of course, this implies that
there
is
a
property
interest
Accordingly,
PREPA’s
motion
in
to
continued
dismiss
utility
on
service.
grounds
that
Plaintiffs have not alleged a cognizable property interest is
DENIED.
b. Due Process
PREPA’s stronger argument is that it provided Plaintiffs
with notice and an opportunity to be heard. PREPA buttresses
this argument with more than ten attachments to its motion to
dismiss. These tend to show that Plaintiffs were provided with
notice, that a hearing was held without their presence, and that
a final resolution was reached on the matter. (See attachments
to Docket No. 19). Plaintiffs, on the other hand, deny that they
were notified of the hearing, or that they received any summons.
(See Docket No. 11, ¶ 11). Plaintiffs also filed an affidavit to
that effect. (See Docket No. 34-1).
9
CIVIL NO. 11-1969(JAG)
Because both parties reference documents that fall outside
the
pleadings,
and
because
these
materials
are
arguably
necessary to determine whether due process was actually given,
the Court finds that dismissal at this juncture is improper.
While the Court could, in its discretion, convert PREPA’s motion
to dismiss into one for summary judgment, the Court considers
that
further
factual
development
is
necessary
for
the
just
disposition of this case. Accordingly, the better alternative is
to await a properly filed motion under Rule 56. See Keys Jet
Ski,
Inc.
v.
Kays,
893
F.2d
1225,
1230
(11th
Cir.
1990).
Therefore, PREPA’s motion to dismiss is denied on this ground as
well.
CONCLUSION
For the reasons stated above, the Court GRANTS IN PART AND
DENIES IN PART PREPA’s motion to dismiss. The only federal claim
remaining in this case is Plaintiffs’ procedural due process
claim under § 1983 and the Fourteenth Amendment. Further, the
Court
elects
to
retain
supplemental
jurisdiction
Plaintiffs’ state law claims.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 8th day of January, 2013.
S/ Jay A. Garcia-Gregory
over
10
CIVIL NO. 11-1969(JAG)
JAY A. GARCIA-GREGORY
United States District Judge
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