Marrero-Mendez v. Pesquera et al

Filing 74

ORDER denying 59 Motion to Dismiss for Failure to State a Claim; denying 60 Motion to Dismiss for Failure to State a Claim; granting 61 Motion to Dismiss; noted 63 Supplemental Motion; finding as moot 64 Motion to Stay; finding as moot 65 Motion for Extension of Time to File Response/Reply; finding as moot 72 Motion for Miscellaneous Relief. Signed by Judge Jay A. Garcia-Gregory on 8/19/2014. (RJC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

ALVIN MARRERO-MÉNDEZ,
Plaintiff

v.

CIVIL NO. 13-1203 (JAG)

HÉCTOR PESQUERA, et al.,
Defendant

OPINION AND ORDER
Alvin

Marrero-Méndez

(“Marrero”

or

“Plaintiff”),

individually and on behalf of the conjugal partnership comprised
by

him

and

his

spouse

Cynthia

Pérez-Valentin

(collectively,

“Plaintiffs”), brought this civil rights suit against defendants
Hector

Pesquera,

Mario

Rivera,

William
and

Orozco,

Ricardo

Guillermo

Calixto-Rodríguez,

Cruz-Domínguez

(collectively,

“Defendants”) of the Puerto Rico Police Department (“PRPD”) for
allegedly

infringing

upon

Marrero’s

First

Amendment

right

of

free exercise of religion. Essentially, Plaintiffs claim that
during an official PRPD meeting, Marrero was coerced by his
superior officer to observe the rest of his peers performing a
Christian prayer. And, during the prayer, Plaintiffs allege that
Marrero was not allowed to leave.

CIVIL NO. 13-1203 (JAG)

2

Defendants now move to dismiss the Complaint under Fed. R.
Civ. P. 12(b)(6), and also raise a qualified immunity defense.
(See Docket Nos. 59-61). For the reasons outlined below, the
Court grants in part Defendants’ 12(b)(6) motions and denies the
Defendants’ qualified immunity defense.
BACKGROUND

Marrero has worked for the PRPD as a police officer since
1999. (Docket No. 1 at ¶ 10). During these thirteen years, his
duties

as

complaints,

an

officer

have

conducting

included

arrests,

patrolling,

dealing

with

attending

the

public,

to
and

undertaking other crime-prevention activities. Id.
On

March

9,

2012,

around

7:30

p.m.,

the

Carolina

Area

Commander at that time, defendant Guillermo Calixto-Rodríguez
(“Calixto”), summoned forty PRPD police officers to a shopping
mall in Carolina to discuss a plan for an intervention that was
to take place nearby. Id. at ¶ 23. All the officers, Marrero
included, stood in formation during the meeting. Id. at ¶ 24.
According

to

the

complaint,

these

meetings

customarily

included a Christian invocation or closing prayer. Id at ¶ 37.
Accordingly, Calixto asked for a volunteer to close the meeting
with a prayer. Id. This time, however, Marrero called Calixto
aside and told him that “he objected to such official prayers
because they promote[d] religious beliefs to which he [did] not

CIVIL NO. 13-1203 (JAG)
subscribe.”

Id.

at

¶

3
25.

He

further

informed

his

superior

officer that “he felt very uncomfortable taking part in the
prayer and that he did not want to participate.” Id.
In

response,

Calixto

ordered

Plaintiff

to

abandon

the

formation, and Marrero separated himself from the formation. Id.
at ¶ 26. As Marrero walked away, Calixto ordered Marrero to stop
and stand still until the prayer was finished. Then, in front of
the formation, Calixto shouted that Plaintiff was standing apart
from

everyone

else

because

“he

doesn’t

believe

in

what

we

believe.” Id. Marrero recounts that he felt humiliated, and that
he turned his back to the formation until the prayer, which was
explicitly Christian, ended. Id.
For

the

rest

of

the

night,

Marrero

worked

with

his

immediate supervisor, defendant Cruz-Domínguez (“Cruz”). Between
tears,

Marrero

told

Cruz

that

he

felt

humiliated

and

upset

because of the incident with Calixto. Id. at ¶ 27. After their
chat, Cruz asked Marrero to hand over his weapon because he was
allegedly in an “emotional state.” Id. at ¶ 28.
Three

days

administrative

after
complaint

the
with

incident,
the

Marrero

PRPD’s

filed

an

Administrative

Investigation Division, alleging that his constitutional right
of freedom of religion had been violated. Id. at ¶ 29. Two days
after filing his complaint, Marrero met with defendant Mario
Rivera (“Rivera”), Chief of the Carolina Precinct of the PRPD.

CIVIL NO. 13-1203 (JAG)

4

In response to his complaint, Rivera told Marrero that he had
two options: either to report to the Command Office for clerical
tasks in the office or to stay in the airport station to perform
vehicle-maintenance

tasks.

latter.

the

Id.

Since

Id.

meeting

at

¶

with

32.

Plaintiff

Rivera,

chose

Marrero

has

the
not

performed the usual law-enforcement tasks of a regular police
officer. Id. at ¶ 33.
STANDARD OF REVIEW
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. Fed. R. Civ. P. 12(b)(6). 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.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556
U.S. 662 (2009).
The First Circuit distilled from Twombly and Iqbal a twopronged test designed to measure the sufficiency of a complaint.
Ocasio-Hernández v. Fortuño Burset, 640 F.3d 1 (1st Cir. 2011).
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

CIVIL NO. 13-1203 (JAG)

5

they are “seemingly incredible,” or that “actual proof of those
facts is improbable.” Id. Finally, the court must assess 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. 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

I.

Supervisory Liability
In their first motion to dismiss, Defendants argue that the

complaint does not allege sufficient facts to sustain its claims
of

supervisory

liability

against

Hector

Pesquera,

the

PRPD

Superintendent, (“Pesquera”) and William Orozco, the Carolina
Area

Commander

of

the

PRPD

(“Orozco”).

(Docket

No.

59).

A

cursory review of the complaint shows that Defendants are right.
For the reasons that follow, Plaintiffs’ claims against Pesquera
and Orozco are dismissed with prejudice.
Liability under § 1983 “cannot rest solely on a defendant's
position of authority.” Ocasio–Hernández, 640 F.3d at 16. At a
minimum,

the

complaint

must

plead

that

each

defendant

was

CIVIL NO. 13-1203 (JAG)

6

personally involved in the alleged constitutional violation. See
Pineda v. Toomey, 533 F.3d 50, 54 (1st Cir. 2008)(holding that,
for liability under § 1983 to attach, supervisory defendants
must

be

affirmatively

linked

to

the

alleged

constitutional

violations). Thus, in the absence of personal and intentional
conduct, supervisory responsibility by itself is not sufficient
to survive a motion to dismiss. See Peñalbert Rosa v. Fortuño
Burset, 631 F.3d 592, 595 (1st Cir. 2011) (“bald assertions” and
“unsupportable

conclusions”

are

insufficient

to

establish

personal participation in the unlawful conduct).
Regarding Orozco, the Complaint only alleges that he is the
Carolina Area Commander of the PRPD. (Docket No. at ¶ 13). The
complaint

is

barren

of

any

factual

allegations

concerning

Orozco’s knowledge or endorsement of, let alone participation
in,

the

challenged

conduct.

The

claims

against

him

must

therefore be dismissed.
On the other hand, the complaint alleges that Pesquera had
actual or constructive “knowledge of the customs, practices, and
policies

alleged

of

herein.”

(Docket

No.

at

¶

40).

It

also

claims that Pesquera “has ignored, promoted and/or endorsed the
unlawful police conduct” alleged in the complaint. (Id.). But
this is still not enough. As this Court has mentioned before,
not just any act or omission leads to liability. When pressing a
claim of supervisory liability, the plaintiff must go further

CIVIL NO. 13-1203 (JAG)

7

and show that “the supervisor acted with deliberate indifference
to plaintiff's constitutional rights.” Villanueva-Cruz v. Puerto
Rico, 2012 WL 1712691 (D.P.R. May 15, 2012)(citing Camilo–Robles
v.

Hoyos,

151

F.3d

1,

7

(1st

Cir.

1998)).

“This

level

of

indifference is shown where 1) there exists a grave risk of
harm; 2) the official has actual or constructive knowledge of
that risk; and 3) the official fails to take easily available
measures to address that risk.” Id. Moreover, the plaintiff must
demonstrate that the supervisor’s actions, either explicitly or
through

“tacit

approval

[],

acquiescence

[],

or

purposeful

disregard,” resulted in the constitutional violation asserted.
Id.
The complaint at bar does nothing to show just how Pesquera
“ignored, promoted [or] endorsed” the officers’ actions, or even
whether Pesquera could have taken measures to avoid the outcome
of that meeting. Moreover, there is no indication that Pesquera
was even aware of the conduct displayed by the officers. Simply
put,

without

further

factual

enhancement,

the

allegations

presented in the complaint are threadbare. As such, Plaintiffs’
claims against Pesquera must be dismissed.
II.

Plaintiffs have adequately stated an Establishment Clause
claim
Defendants

also

move

for

dismissal

on

the

basis

that

Plaintiffs have not properly pled a § 1983 claim for violations

CIVIL NO. 13-1203 (JAG)

8

of Marrero’s rights under the First Amendment. (Docket No. 60).
The Court is not persuaded.
The Establishment Clause proscribes Congress from making
laws

“respecting

an

establishment

of

religion.”

U.S.

Const.

amend. I. As it concerns us here, Plaintiffs’ claim centers on
state-sponsored prayer. Plaintiffs contend that an official of
the Commonwealth of Puerto Rico coerced Marrero to observe a
prayer during an official meeting, against both his will and his
beliefs. To date, the Supreme Court has analyzed governmentsponsored prayer under roughly three standards: the three-prong
framework set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971);
the endorsement test, which aims to complement and “clarif[y]
the Lemon test as an analytical device, Lynch v. Donnelly, 465
U.S.

668,

689

(1984)

(O’Connor,

J.,

concurring);

and

the

“coercion” test adopted in Lee v. Weisman, 505 U.S. 577, 587
(1992).1

1

Courts have recognized two broad categories of cases involving
violations to the Establishment Clause: “insider” and “outsider”
cases. Kerr v. Farrey, 95 F.3d 472, 478 (7th Cir. 1996).
“Insider cases” exist when existing religious groups seek some
benefit from the state or in which the state wishes to confer a
benefit on such a group (or groups). In “outsider cases,” like
the one at bar, the state imposes religion on an unwilling
subject. In Kerr, the Seventh Circuit clarified that while the
Lemon test is the appropriate analytical framework to assess
insider cases, outsider cases require the approach outlined in
Lee v. Weisman, 505 U.S. 577, 587 (1992).

CIVIL NO. 13-1203 (JAG)

9

While the Supreme Court still “wrestl[es] with the precise
content of these principles,” Kerr v. Farrey, 95 F.3d 472 (7th
Cir. 1996), one thing is clear: “at a minimum, the Constitution
guarantees that government may not coerce anyone to support or
participate in religion or its exercise.” Lee, 505 U.S. 577, 587
(recognizing

that

unconstitutional

coercion

may

be

exercised

both directly, such as by mandatory attendance at a religious
exercise, and indirectly).
From
test

to

coercion,

Lee,

the

Seventh

Circuit

determine

whether

the

a

person’s

rights

fashioned

state

under

the

has

a

three-pronged

violated,

through

Establishment

Clause:

“first, has the state acted; second, does the action amount to
coercion; and third, is the object of the coercion religious or
secular?” Kerr, 95 F.3d at 479. Though the First Circuit has not
yet

expressed

its

position

on

Kerr,

the

Eighth

and

Ninth

Circuits have adopted this test, noting that it is “particularly
useful” in “determining whether there was governmental coercion
of religious activity.” Inouye v. Kemna, 504 F.3d 705, 713 (9th
Cir. 2007); Jackson v. Nixon, 747 F.3d 537, 542 (8th Cir. 2014).
Because the situation at hand is sufficiently analogous to that
in Kerr, Jackson and Inouye and because the Court understands

CIVIL NO. 13-1203 (JAG)

10

that the test accurately distills the teachings of Lee, the
Court shall adopt it here.2
The first prong of the test is whether the state has acted;
here,

there

is

no

doubt

it

has.

Defendants

were

all

PRPD

officers, and, because the meeting was called to organize a PRPD
intervention, they were all acting in their official capacity.
Plaintiffs have therefore met the first prong.
Second,

the

action

was

plainly

coercive.

That

night,

Marrero stood in formation among forty other officers. When he
asked for permission to leave the formation during the prayer,
the

commanding

officer

forced

the

Plaintiff

to

observe

the

prayer, against his will and his own religious beliefs. We note,
furthermore, this was the first time he spoke up as an atheist
during his thirteen year tenure with the PRPD. Since expressing
2

The common denominator between these cases is that the person
was coerced into trading their religious liberty for some
benefit or in order to avoid adverse consequences. See Inouye,
504 F.3d 714 (“The Hobson's choice [parole officer] Nanamori
offered Inouye —to be imprisoned or to renounce his own
religious beliefs— offends the core of Establishment Clause
jurisprudence.”); Jackson, 747 F.3d (finding a plausible
Establishment Clause violation where plaintiff alleged he was
required to attend and complete a nonsecular substance abuse
treatment program in order to be eligible for early parole);
Kerr, 95 F.3d (similar to Jackson). Here, Marrero faced a
similar choice: be silent and remain with his duties as an
officer, or exercise his First Amendment rights and be relegated
to vehicle maintenance tasks. “It is a tenet of the First
Amendment that the State cannot require one of its citizens to
forfeit his or her rights and benefits as the price of resisting
conformance to state-sponsored religious practice.” Lee, 505
U.S. at 596. It is equally evident that the State cannot punish
an individual for expressing such resistance.

CIVIL NO. 13-1203 (JAG)

11

his own beliefs about the prayer, his gun was taken away and he
no longer performs the regular duties of a PRPD officer.
The final element of the test requires that the object of
the coercion be religious. Calixto took care of that when he
explained to the officers that Plaintiff was standing apart from
everyone else because “he didn’t believe in what” the rest of
the officers believed. In addition, the complaint flatly alleges
that this prayer, as well as those given at previous meetings,
was a Christian prayer. Thus, the Court finds this element met
as well.
Accordingly, in light of the above, the Court finds that
Plaintiffs

have

established

a

plausible

Establishment

Clause

violation. Defendants’ motion to dismiss this claim is denied.
III. Defendants are not entitled to qualified immunity
Finally,

Defendants

raise

a

qualified

immunity

defense.

This defense protects executive-branch officials from liability
so long as their conduct does not violate clearly-established
statutory or constitutional rights of which a reasonable person
would have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
As a threshold matter, we note that the defense does not
shield government officials from claims for equitable relief.
See Lugo v. Alvarado, 819 F.2d 5, 7 (1st Cir. 1987) (holding
that “a defense of qualified immunity is totally immaterial” to

CIVIL NO. 13-1203 (JAG)

12

a request for injunctive relief). Thus, Defendants’ qualified
immunity defense against Plaintiffs’ claims for equitable relief
fails.
Courts

employ

a

two-part

test

to

determine

whether

qualified immunity is available, asking (1) “whether the facts
alleged or shown by the plaintiff make out a violation of a
constitutional

right;

and

(2)

if

so,

whether

the

right

was

‘clearly established’ at the time of the defendant's alleged
violation.” Pearson v. Callahan, 555 U.S. 223, 224; see also
Maldonado

v.

Fontanes,

568

F.3d

263,

269

(1st

Cir.

2009).

Previously, the Court found that Plaintiffs have adequately pled
an Establishment Clause violation. With the first prong met, we
turn to the second one.
Here, the question is whether the law was clear at the time
of

the

alleged

violation

and

whether

a

reasonable

defendant

would have understood that his conduct violated an individual’s
constitutional rights. Pearson, 555 U.S. at 223. In conducting
this analysis, “a court should ‘use its full knowledge of its
own [and other relevant] precedents.’” Elder v. Holloway, 510
U.S. 510, 516 (1994). Moreover, the Court “should search the
relevant authorities both in circuit and out of circuit.” Barton
v. Clancy, 632 F.3d 9, 22.3 Although earlier cases involving

3

See also El Dia, Inc. v. Rossello, 165 F.3d 106, 110 n. 3 (1st
Cir. 1999) (declining to adopt “a hard-and-fast rule” that out-

CIVIL NO. 13-1203 (JAG)
“fundamentally

similar”

13
facts

can

provide

especially

strong

support for a conclusion that the law is clearly established,
they are not necessary to such a finding. Hope v. Pelzer, 536
U.S. 730, 741 (2002).
The Court finds that the state of law in March 2012 would
have

enabled

ordering

a

a

reasonable

subordinate

to

police

officer

observe

a

to

religious

conclude
prayer

that
given

during an official meeting - without giving the subordinate the
ability

to

opt

United

States.

out

-

Again,

would

violate

“the

the

Constitution

Constitution

of

guarantees

the
that

government may not coerce anyone to support or participate in
religion or its exercise.” Lee v. Weisman, 505 U.S. 577, 587
(1992) (finding that the students, at a graduation ceremony,
were

forced

to

participate

in

a

specific

institutionalized

message). Following this principle, courts have invariably found
Establishment Clause violations in situations where the state
actor did not allow an individual the opportunity to leave the
religious prayer. For example, in Milwaukee Deputy Sheriffs, the
county

sheriff

invited

members

of

a

Christian

church

to

mandatory deputy roll call meetings so they could present their

of-circuit precedent is either determinative of or irrelevant to
whether a law is clearly established, and instead stating that
whether precedent “clearly establishes” a law may depend in part
upon “the location and level of the precedent, its date, its
persuasive force, and its level of factual similarity to the
facts before this Court”).

CIVIL NO. 13-1203 (JAG)
religious

message

and

14
proselytize.

Milwaukee

Deputy

Sheriffs

Ass'n v. Clarke, 513 F. Supp. 2d 1014, 1021 (E.D. Wis. 2007)
aff'd sub nom. Milwaukee Deputy Sheriffs' Ass'n v. Clarke, 588
F.3d 523 (7th Cir. 2009). The Seventh Circuit found that the
religious nature of the church members' presentation, combined
with the fact that the sheriff had invited them to speak at
mandatory deputy meetings, signaled to the deputies that the
sheriff endorsed the religious message being conveyed. Id. Thus,
the deputies were coerced to participate or at least remain
present at the presentations for fear of losing their jobs. Id.
In contrast, courts have found no Establishment Clause violation
when the state actor allows the plaintiff an option to leave the
prayer. See, e.g., Kaplan v. City of Chicago, No. 05 C 2001,
2009

WL

804066,

constitutional

at

*2

(N.D.

infirmity

Ill.

with

Mar.

prayer

27,

2009)(finding

at

meeting

no

because

plaintiff’s commanding officer allowed plaintiff to leave, and
also offered to change the plaintiff’s assignment so that she
would no longer be in the pool of officers possibly assigned to
attend those meetings).
Here, the Court finds that the Defendants’ actions fall on
the wrong side of the spectrum. At the meeting in question,
there

were

forty

police

officers

standing

in

a

military

formation when the commander asked for a volunteer to lead the
prayer. Though Plaintiff specifically informed his commanding

CIVIL NO. 13-1203 (JAG)

15

officer that he felt uncomfortable and “that he did not want to
participate” in the prayer, he was not allowed to leave. He was
forced to stand still and watch his fellow officers express
religious beliefs to which he does not subscribe.
To make matters worse, Plaintiff was marginalized for not
“believing in [what his fellow officers] believed in.” This is
particularly troublesome in the context of this case, as law
enforcement officers may be particularly vulnerable to employer
coercion given their strict chain of command. Milwaukee Deputy
Sheriffs Ass'n v. Clarke, 513 F. Supp. 2d 1014, 1021 (E.D. Wis.
2007); see also Mellen v. Bunting, 327 F.3d 355, 371 (4th Cir.
2003) (stating that cadets at the Virginia Military Institute
were “uniquely susceptible to coercion” due to the Institute's
detailed

regulation

of

conduct

and

its

philosophy

of

“[o]bedience and conformity”). In short, qualified immunity does
not shield a police officer from liability where he forces a
subordinate to observe religious prayer at an official meeting.
For these reasons, the Court finds that Defendants’ qualified
immunity defense fails.
CONCLUSION
In light of the above, Defendants’ motions to dismiss are
granted solely as to Plaintiffs’ claims against co-defendants
Pesquera and Orozco. Everything else remains.
IT IS SO ORDERED.

CIVIL NO. 13-1203 (JAG)

16

In San Juan, Puerto Rico, on August 19, 2014.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge