Velazquez-Caussade et al v. Orta-Rodriguez et al

Filing 37

ORDER: Granting in part and denying in part 36 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Gustavo A. Gelpi on 3/18/14. (CL)

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

VICTOR VELAZQUEZ-CAUSSADE, et
al.,
Plaintiffs,
v.

Civil No. 13-1761 (GAG)

RAMON ORTA-RODRIGUEZ, et al.,
Defendants.

MEMORANDUM OPINION
This is a political discrimination case. The claim is for reduction in responsibility to
ultimately nothing on account of political affiliation. It was brought against Plaintiffs’ direct
supervisor (“Cruz”), Puerto Rico’s Secretary of Sports and Recreation (“Orta”), and the
Commonwealth of Puerto Rico. The court denied Cruz’s motion to dismiss and stated that the
Commonwealth remains only for purposes of prospective injunctive relief. (See Docket No. 14.)
Presently before the court is Orta’s motion to dismiss. (Docket No. 36.)
Orta raises four issues. First, he claims Plaintiffs’ spouses are not entitled to relief for
alleged First Amendment violations against only Plaintiffs. Orta is correct and this claim is
dismissed without prejudice; however, the spouses remain parties as to the state law-based
claims.
Second, Orta raises the affirmative defense of qualified immunity. This claim is denied
without prejudice. See Davila Torres v. Feliciano Torres, 924 F. Supp. 359, 369-70 (D.P.R.

Civil No. 13-1761(GAG)
2013) (discussing denial of qualified immunity to government officials who allegedly stripped
functions).
Third, the facts in the complaint alleged specifically against Orta at paragraphs 46, 47,
49, and 51 could plausibly indicate that he instructed Cruz to reduce Plaintiffs’ responsibilities to
nothing. Paragraph 52 indicates that one Plaintiff even told Orta about the reduction, and
paragraph 56 states that Plaintiffs informed Orta via letter. It would be improper to dismiss the
claim at this stage when so many questions exist as to factual allegations that plausibly entitle
Plaintiffs to relief.
Fourth, Orta asserts that the Commonwealth has not waived its sovereign immunity and
that, because he is being sued as an official of the Commonwealth, Plaintiffs are actually suing
the Commonwealth. Furthermore, Orta claims that the court is prohibited from exercising
supplemental jurisdiction over the state law claims.
As previously stated, the only relief that may be imposed on the Commonwealth and the
Department of Sports and Recreation is prospective injunctive relief. To the extent any money
damages are awarded for violations of either state or federal law, they may not come from Puerto
Rico’s coffers. Rather, such an award may only be drawn from the individual Defendants’
pockets (whether they are indemnified is irrelevant).
The complaint is against both Cruz and Orta in their official and individual capacities.
Lodging a complaint against an officer in his official capacity supplements the argument against
the Commonwealth for prospective injunctive relief. Doing so in an individual capacity means
Plaintiffs are chasing Cruz’s and Orta’s money, not Puerto Rico’s. Claims against them for
section 1983 violations and state law-based claims in their individual capacities are appropriate.
See Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 530-31 (1st Cir. 2009) (“[T]he

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Civil No. 13-1761(GAG)
Eleventh Amendment . . . do[es] not bar federal suits challenging state action under both state
and federal law if the relief sought is not of the kind barred by the Eleventh Amendment – as is
true of damages to be paid out of the official’s pocket.”). Whether Cruz and Orta “acted under
color of state law” as government officers, which exposes them to individual-capacity liability if
they violated Plaintiffs’ rights, is, at the very least, plausible. Id. at 531. The facts will need to
be discovered. Cruz and Orta are not barred from attempting to distinguish liability for actions
taken in their official capacities from actions taken in their individual capacities.
For the reasons discussed above, the court GRANTS in part and DENIES in part the
motion to dismiss at Docket No. 36.

SO ORDERED.
In San Juan, Puerto Rico this 18th day of March, 2014.

/S/ Gustavo A. Gelpí
GUSTAVO A. GELPI
United States District Judge

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