Vazquez-McLear v. State Insurance Fund et al

Filing 47

OPINION AND ORDER: Granting 31 Motion to Dismiss; granting 29 Motion to Dismiss. Signed by Judge Gustavo A. Gelpi on 6/24/2013. (MTG) Modified on 6/24/2013 to add opinion (er).

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO 3 4 MELBA VAZQUEZ-MCLEAR, 5 Plaintiff, 6 v. 7 STATE INSURANCE FUND, et al., 8 Defendants. Civil No. 12-1927 (GAG) 9 10 OPINION AND ORDER 11 12 Melba Vazquez McLear (“Plaintiff”) filed a complaint against the State Insurance Fund 13 (“SIF”) as well as individual defendants.1 This action is brought pursuant to 42 U.S.C. § 1983 14 (“Section 1983”), alleging violations of the First and Fourteenth Amendments to the United States 15 Constitution. Plaintiff also brings state-law claims alleging violations of Puerto Rico Law No. 100 16 of June 30, 1959 (“Law 100”), P.R. LAWS ANN. tit. 29, §§ 146 et seq.; Article II of the Puerto Rico 17 Constitution; and Articles 1802 and 1803 of the Civil Code of Puerto Rico (“Articles 1802 and 18 1803”), P.R. LAWS ANN. tit. 31, §§ 5141-5142. 19 Co-defendants Rivera Rivera, Rivera Feliciano, Marrero, and Hernandez Roman 20 (collectively “Defendants”) moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the 21 claims against them. (Docket No. 29). Olga Fas Santiago (“Fas Santiago”), current Executive 22 23 Zoime Alvarez Rubio (“Alvarez Rubio”) in her personal and official capacity as SIF’s Administrator, Saul Rivera Rivera (“Rivera Rivera”) in his personal capacity, Angie Hernandez Roman (“Hernandez Roman”) in her personal and official capacity as SIF’s Human Resources Director, Excer Rivera Feliciano (“Rivera Feliciano”) in his personal and official capacity as Ponce Region Executive Director for SIF, Darwin Marrero (“Marrero”), SIF’s General Medical Director, in his personal capacity, Insurance Company ABC, John Roe and Jane Doe in their personal and official capacities. 1 24 25 26 27 28 1 Civil No. 12-1927 (GAG) 2 Director of the Ponce Region of SIF, and Juan Zamora (“Zamora”), current Human Resources 3 Associate Director of SIF, joined the motion to dismiss (Docket No. 31) and filed a supplemental 4 motion to dismiss (Docket No. 40). Plaintiff opposed the motions. (Docket No. 42). Fas Santiago 5 and Zamora replied. (Docket No. 44). 6 2 After reviewing the pleadings and pertinent law, the court GRANTS Defendants’ motions 7 to dismiss at Docket Nos. 29, 31, and 40. 8 I. Standard of Review 9 “The general rules of pleading require a short and plain statement of the claim showing that 10 the pleader is entitled to relief.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st 11 Cir. 2009) (citations omitted) (internal quotation marks omitted). “This short and plain statement 12 need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it 13 rests.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 14 Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to 15 state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). To survive a Rule 16 12(b)(6) motion, a complaint must contain sufficient factual matter “to state a claim to relief that 17 is plausible on its face.” Twombly, 550 U.S. at 570. The court must decide whether the complaint 18 alleges enough facts to “raise a right to relief above the speculative level.” Id. at 555. In so doing, 19 the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff’s 20 favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008). However, “the tenet that a court must 21 accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” 22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of 23 action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. 24 at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere 25 possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’ -‘that the pleader is 26 entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)). 27 A plaintiff need not allege sufficient facts to meet the evidentiary prima facie standard. See 28 generally Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49 (D.P.R. 2013). Prima facie elements 1 Civil No. 12-1927 (GAG) 2 “are part of the background against which a plausibility determination should be made.” Id. at 54 3 (external citations omitted). “[T]he elements of a prima facie case may be used as a prism to shed 4 light upon the plausibility of the claim.” Id. (emphasis added). 5 II. 3 Factual Background 6 In February 2008, Plaintiff began her temporary appointment as a contract doctor for SIF.2 7 (Docket No. 1 ¶ 26.) Plaintiff states she was a supporter of the Popular Democratic Party (“PDP”) 8 at all relevant times. (Id. ¶ 27.) She alleges Defendants knew her political affiliation because she 9 was an open PDP supporter and did not participate in Defendants’ “fundraising schemes.” (Id.) 10 Later in 2008, after Defendants assumed power after the administration change, Plaintiff 11 “successfully participated in a selection process for the career position of doctor at the SIF.” (Id. 12 ¶ 28.) Plaintiff was one of two candidates chosen for the position. (Id.) In early 2009, Defendants 13 annulled the process. (Id.) Her immediate supervisor, Rosalia Santiago (“Santiago”), told her the 14 decision to annul the appointment process was due to internal concerns. (Docket No. 1 ¶ 29.) 15 Santiago told Plaintiff the position would open again in the future and that Plaintiff would be 16 selected. (Id.) Plaintiff alleges the appointment process was annulled in order to appoint New 17 Progressive Party (“NPP”) affiliates. (Id. ¶ 28.) 18 In 2011, Defendants announced their intention to appoint permanent career doctors. (Id. ¶ 19 30.) The job duties of these positions encompassed the same functions Plaintiff would have 20 performed had she been selected for the position in 2009. (Id. ¶ 30.) “In the first of those job 21 announcements, plaintiff was selected and recommended (with another candidate) for the position.”3 22 (Id. ¶ 31.) Plaintiff alleges Defendants gave the position to an NPP affiliate. (Docket No. 1 ¶ 31.) 23 24 In her complaint, Plaintiff also claims her temporary appointment began on April 1, 2008. (Docket No. 1 ¶ 2.) The court notes the inherent contradiction between these dates, but the discrepancy does not alter the outcome. 2 25 26 27 28 At this point in the complaint, it is unclear whether Plaintiff is referring to the 2008 or 2011 job announcement. 3 1 Civil No. 12-1927 (GAG) 2 Santiago made efforts with Defendants to offer Plaintiff the position. (Id. ¶ 32.) 4 3 On December 7, 2011, Defendants notified Plaintiff that her temporary appointment would 4 not be renewed after December 30, 2011. (Id. ¶ 2.) Her last temporary appointment extension was 5 for the last semester of 2011 (July 1, 2011 to December 31, 2011). (Id. ¶ 33.) Plaintiff submitted 6 job applications for other doctor positions at SIF, but “all were single handedly rejected because of 7 a pretextual technicism.” (Id. ¶ 34.) Plaintiff submitted the same application that she submitted to 8 the first relevant job announcement, but the “Good Standing” certificate included with the 9 application was outdated. (Id. ¶ 34.) The job openings were filled with NPP affiliates. (Docket No. 10 1 ¶ 34.) 11 Plaintiff claims the individual defendants “directly participated and intervened” in the 12 following personnel transactions: (1) the decision to cancel the job announcement for which Plaintiff 13 was selected in order to give the position to an NPP affiliate; (2) the decision to select NPP affiliates 14 with lesser qualifications than Plaintiff; (3) the decision not to renew Plaintiff’s temporary 15 appointment; and (4) the decision to discard Plaintiff’s applications for permanent doctor positions. 16 (Id. ¶¶ 11, 14, 16, 18.) 17 Plaintiff further alleges Alvarez Rubio acted in concert with others under her charge to favor 18 and protect NPP affiliated employees. (Id. ¶ 24.) Alvarez Rubio created vacancies by taking 19 adverse employment actions against known PDP affiliated employees “under unreasonable pretexts 20 and sham audits and reorganization exercises, in order to fill said positions with NPP sympathizers.” 21 (Id. ¶ 25.) 22 III. Discussion 23 A. 24 Defendants may be liable under Section 1983 only if: “a plaintiff can establish that his or her 25 constitutional injury ‘resulted from the direct acts or omissions of the official, or from indirect 26 conduct that amounts to condonation or tacit authorization.’” Ocasio-Hernandez v. Fortuno-Burset, 27 640 F.3d 1, 16 (1st Cir. 2011) (quoting Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 768 (1st 28 Section 1983 1 Civil No. 12-1927 (GAG) 2 Cir. 2010)). “[E]ach defendant’s role in the [challenged] decision must be sufficiently alleged to 3 make him or her a plausible defendant.” Id. The “[court] must determine whether, as to each 4 defendant, a plaintiff’s pleadings are sufficient to state a claim on which relief can be granted.” Id. 5 (quoting Sanchez v. Pereira-Castillo, 590 F.3d 31, 48 (1st Cir. 2009)). 5 6 Plaintiff alleges that Defendants violated her rights when they: (1) canceled the job 7 announcement for which Plaintiff was selected; (2) selected NPP affiliated candidates that had lesser 8 qualifications than Plaintiff; (3) did not renew her temporary appointment; and (4) discarded 9 Plaintiff’s applications for permanent doctor positions. The complaint further indicates Defendants’ 10 positions at SIF, that they respond directly to SIF’s Administrator, and that they are active 11 supporters of the NPP. (Docket No. 1 ¶¶ 10, 12, 15, 17.) The complaint, however, fails to include 12 allegations suggesting each defendant played any role in the alleged violations. Instead, it contains 13 generic accusations concerning Defendants’ collective conduct. Feliciano v. Rivera-Sanchez, 2012 14 WL 4471644, at *7 (D.P.R. Sept. 26, 2012) (dismissing Plaintiff’s Section 1983 claims because 15 complaint did not allege facts indicating each individual defendants’ role) (citing Soto-Torres v. 16 Fraticelli, 654 F.3d 153, 159 (1st Cir. 2011) (holding plaintiff’s allegation that defendant 17 “participated in or directed the constitutional violation . . .” was insufficient to survive motion to 18 dismiss because it “provided no facts to support either that he participated in or directed” the alleged 19 violations) (internal quotation marks omitted)). The court is left to guess each defendant’s 20 participation in the alleged adverse employment actions. Id. (“[T]hreadbare and speculative 21 allegations are insufficient to bring a complaint within the realm of plausibility.”) (citing Penalbert- 22 Rosa, 631 F.3d 592, 595 (1st Cir. 2011) (“Specific information, even if not in the form of admissible 23 evidence, would likely be enough at this stage; pure speculation is not.”)). Thus, the complaint fails 24 to include sufficient factual allegations as to each defendant’s participation. 25 26 27 28 Accordingly, the court GRANTS Defendants’ motion to dismiss Plaintiff’s Section 1983 claims. The court DISMISSES Plaintiff’s Section 1983 claims against Defendants.4 1 Civil No. 12-1927 (GAG) 6 2 B. Leave to Amend 3 At the end of her opposition to Defendants’ motion to dismiss, Plaintiff, in one sentence, 4 indicates she has a right to amend the complaint should the court deem the facts insufficient. 5 Following this statement, Plaintiff briefly details Federal Rule of Civil Procedure 15(a). Plaintiff 6 indicates “a party may amend the party’s pleadings once as a matter of course at any time before a 7 responsive pleading is served. Otherwise a party may amend the party’s pleading only by leave of 8 court or by written consent of the adverse party . . . .” (Docket No. 42 at 18.) 9 Rule 15(a)(1)(B) states that a party may amend its pleading once as a matter of course 10 twenty-one days after service of a motion under 12(b). Plaintiff failed to take advantage of the 11 twenty-one day period to amend her complaint as a matter of course after each motion to dismiss 12 was filed. 13 Alternatively, if Plaintiff is moving for leave to amend, she has failed to comply with the 14 requirements to do so. A party may amend its pleading with the court’s leave. FED. R. CIV. P. 15 15(a)(2). Reasons for denying a pre-judgment motion to amend include “undue delay, bad faith, 16 futility and the absence of due diligence on the movant’s part.” Palmer v. Champion Mortg., 465 17 F.3d 24, 30 (1st Cir. 2006). “Requests to amend should be made by separate motion and should 18 attach the proposed amended complaint so that the Court is able to evaluate the nature of the 19 proposed amendment and its sufficiency.” Levitt v. Sonardyne, Inc., 2012 WL 5350037, at *2 (D. 20 Me. Oct. 29, 2012) (citing Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006) (noting 21 plaintiffs did not attempt to supplement bare request for leave to amend)); FED. R. CIV. P. 7(b)(1)(A) 22 (“A request for a court order must be made by motion. The motion must be in writing unless made 23 during a hearing or trial”). Here, Plaintiff only briefly describes Rule 15(a) at the end of her 24 opposition to Defendants’ motions to dismiss. The only language in Plaintiff’s opposition 25 suggesting a request to amend is the argument’s title: “Right to Amend the Complaint Should the 26 27 28 For the same reasons, the complaint lacks any facts upon which to establish a claim against John Roe and Jane Doe. The court also DISMISSES, sua sponte, Plaintiff’s claims against them. 4 1 Civil No. 12-1927 (GAG) 2 Court deem the facts insufficient.” This alone, however, is an insufficient request to amend the 3 complaint. In no way does Plaintiff meet the requirements to move for leave to amend. Plaintiff 4 should have either exercised her right to amend the complaint within twenty-one days after each 5 motion to dismiss was filed or properly moved for leave to amend the complaint. 7 6 C. Fas Santiago and Zamora 7 Fas Santiago and Zamora, who are not named in the complaint, filed a motion to dismiss 8 claiming they currently hold the positions of Executive Director of the Ponce Region and Director 9 of the Human Resources Office of the SIF. (Docket No. 40.) In its opposition, Plaintiff argues that, 10 pursuant to Federal Rule of Civil Procedure 25(d), Fas Santiago and Zamora are automatically 11 entered into the complaint. The court need not discuss whether Rule 25(d) is applicable. Assuming 12 arguendo that Fas Santiago and Zamora are parties to the complaint, there are no factual allegations 13 against them rendering them plausible defendants. Accordingly, the court GRANTS Fas Santiago 14 and Zamora’s motion to dismiss. 15 D. Local Law Claims 16 Plaintiff’s complaint also alleges claims arising under Law 100, Article II of the Puerto Rico 17 Constitution, and Articles 1802 and 1803. For the same reasons the court dismissed Plaintiff’s 18 Section 1983 claims against Defendants, the court GRANTS Defendants’ motions to dismiss 19 Plaintiff’s state claims against them. The court hereby DISMISSES Plaintiff’s state law claims 20 against Defendants. 21 E. 22 Although Alvarez Rubio did not move to dismiss, the court concludes that dismissal of the 23 Defendant Alvarez Rubio claims against her is warranted for the same reasons that apply to the other defendants.5 24 25 In addition, Rule 4 of the Federal Rules of Civil Procedure governs the service of process of complaint. Rule 4(m) of the Federal Rules of Civil Procedure governs the timing of service process. It provides in relevant part: 5 26 27 28 If a defendant is not served within 120 days after the complaint is filed, the 1 Civil No. 12-1927 (GAG) 2 IV. 3 4 8 Conclusion For the reasons set forth above, the court GRANTS Defendants’ motion to dismiss at Docket Nos. 29, 31, and 40. Judgment shall be entered dismissing all claims against Defendants. 5 6 SO ORDERED. 7 In San Juan, Puerto Rico this 24th day of June, 2013. 8 9 s/ Gustavo A. Gelpí 10 GUSTAVO A. GELPI United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 court–on motion or on its own after notice to the plaintiff–must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. 24 25 26 27 28 FED. R. CIV. P. 4(m). The complaint was filed on November 12, 2012. On November 28, 2012, summonses were issued as to defendants Alvarez Rubio, Hernandez Roman, Marrero Arroyo, Rivera Feliciano, and Rivera Rivera. (Docket No. 11.) The Clerk’s Office docketed executed return services showing that Hernandez Roman, Marrero Arroyo, River Rivera, and Rivera Feliciano were served. (Docket Nos. 17, 19, 20, 21.) More than 120 days have passed since the filing of the complaint and there is no indication Alvarez Rubio was served.

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