Ortiz-Sanchez et al v. Hernandez-Gregorat et al

Filing 55

OPINION AND ORDER granted in part and denied in part 25 Joint Motion to Dismiss. Signed by Judge Carmen C. Cerezo on 2/13/2013. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
CORALY M. ORTIZ-SANCHEZ, EDUARDO
SANTIAGO and their conjugal partnership
Plaintiffs
vs

CIVIL 11-2076CCC

RUBEN HERNANDEZ-GREGORAT, in his
individual and official capacity as Secretary of
Transportation and Public Works; BRENDA
GOMILA-SANTIAGO, in her individual and
official capacity as present Executive Director
of Human Resources of the Puerto Rico
Highway Authority; CESAR
MALDONADO-VAZQUEZ, in his individual
and official capacity as Human Resources
Specialist; ALFREDO SANTIAGO-IRIZARRY,
in his personal and official capacity as
General Manager of the Permanent Weights
Station in Salinas; LESLIE ALSINA-LOPEZ, in
her personal and official capacity as
Appointed Supervisor of Permanent Weights
Station in Salinas; LUIS RODRIGUEZ-ROSA,
in his personal and official capacity as Special
Studies and Programming Director of the
Puerto Rico Highway Authority; JAVIER A.
HERNANDEZ-SCIMECA, in his personal and
official capacity as Subdirector of the Puerto
Rico Highway Authority; JOSE
PESANTE-ROJOS, in his personal and official
capacity as Director of the Office of Weights
Station in Salinas; INSURANCE
COMPANY ABC; and JOHN DOE and
JILL ROE, in their individual and official
capacities
Defendants

OPINION AND ORDER
This is a 42 U.S.C. § 1983 action brought by Coraly M. Ortiz-Sánchez
(Ortiz-Sánchez), her husband Eduardo Santiago (Santiago), and their conjugal partnership
against various officials of the Puerto Rico Highways Authority, a Commonwealth agency
where Ortiz-Sánchez has worked since 2003. Ortiz-Sánchez complains of having been a
victim of political discrimination at said agency, avers that her due process rights have also

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2

been infringed, and together with her husband raise supplemental claims under a myriad
of Commonwealth laws. Before the Court now is the Joint Motion to Dismiss filed by all
defendants (docket entry 25), which plaintiffs opposed (docket entry 27). Defendants have
raised an Iqbal1 challenge to the complaint’s factual allegations made in support of the First
Amendment political discrimination claim, and also aver that plaintiffs have failed to state
claims under the Equal Protection and Due Process Clause of the U.S. Constitution. They
also plead that Santiago’s purported § 1983 claim be dismissed as unavailing, and further
ask that the supplemental claims be dismissed upon disposition of all the federal claims.
We briefly address their contentions in the Order that they were raised.
Iqbal
It is by now generally established that in order to “show” an entitlement to relief a
complaint must contain enough factual material “to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint are true (even
if doubtful in fact).” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted); see also Iqbal, 129 S.Ct. at 1950. The plausibility threshold “simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
illegal conduct.” Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 17 (1st Cir. 2011).
Having carefully read the allegations of the complaint, and viewing them in the light most
hospitable to the plaintiffs, as we must, we think that they meet this initial prong, for they
have pled enough facts to state a plausible claim under the First Amendment. This is not
enough, however, as “save under special conditions, an adequate complaint must include
not only a plausible claim but also a plausible defendant.”

Peñalbert-Rosa v.

Fortuño-Burset, 631 F.3d 592 (1st Cir. 2011). “Each defendant's role in the [adverse
employment] decision must be sufficiently alleged to make him or her a plausible defendant.
After all, ‘we must determine whether, as to each defendant, a plaintiff's pleadings are
1

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009).

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sufficient to state a claim on which relief can be granted.” Ocasio-Hernández, 640 F.3d
at 16 (quoting Sánchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009) (emphasis in
original). On this defendant-focused prong, we conclude that the complaint’s allegations fail
as to four of the defendants: Rubén Hernández-Gregorat, Leslie Alsina-López, Luis
Rodríguez-Rosa and Javier A. Hernández-Scimeca. Simply put, the complaint’s factual
averments do not plausibly establish personal involvement or individual responsibility by any
of these four defendants which would make them liable for the alleged constitutional injuries
suffered by plaintiff.

Accordingly, the complaint will be dismissed as to these four

defendants.
Equal Protection Claim
Ortiz-Sánchez’ equal protection claim is nothing more than a reinstatement of her
political discrimination claim under another rubric. This she cannot do. Uphoff-Figueroa v.
Alejandro, 597 F.3d 423, 430 n. 8 (1st Cir. 2010).

See also Pagán v. Calderón,

448 F.3d 16, 36-37 (1st Cir. 2006). Hence, the claim under the Equal Protection Clause is
ORDERED DISMISSED.
Due Process Claim
Given that the complaint’s allegations do not state that Ortiz-Sánchez was terminated
from her position, but only that she was stripped of functions, her Due Process claim also
falters. This is so because ““[u]nder Puerto Rico law, public employees have a property
interest in their continued employment, not in the functions they perform.” Ruiz-Casillas v.
Camacho-Morales, 415 F.3d 127, 134 (1st Cir. 2005) (quoting Rosado de Vélez v. Zayas,
328 F.Supp. 2d 202, 212 (D.P.R. 2004)). Consequently, the claim under the Due Process
Clause is similarly DISMISSED.
Santiago’s Purported § 1983 Claim
The complaint clearly states, at p. 3, ¶ 4, that Santiago “under state law seeks relief
and joins the instant case as a pendent claim to Ortiz-Sánchez’ federal claims.” (Emphasis

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ours.) Thus, Santiago has not pled a claim under § 1983. Defendants’ representations to
the contrary are misleading, and their request to dismiss Santiago’s inexistent § 1983 claim
is, therefore, vapid.
Supplemental Claims
As the First Amendment claim has survived dismissal for the time being, the Court
will not dismiss the supplemental claims brought against the defendants that remain in the
action.
Conclusion
For the reasons stated, the Joint Motion to Dismiss filed by all defendants (docket
entry 25) is GRANTED IN PART and DENIED IN PART. Accordingly, partial judgment will
be entered DISMISSING the federal claims brought against defendants Rubén
Hernández-Gregorat, Leslie

Alsina-López, Luis

Rodríguez-Rosa

and

Javier A.

Hernández-Scimeca with prejudice, and the supplemental claims brought against them
without prejudice.
SO ORDERED.
At San Juan, Puerto Rico, on February 13, 2013.

S/CARMEN CONSUELO CEREZO
United States District Judge