Rivera-Astacio et al v. Commonwealth of Puerto Rico et al
Filing
41
OPINION AND ORDER granted in part and denied in part 27 Motion to Dismiss. Plaintiff Rivera shall SHOW CAUSE by 3/15/2017 why remaining claims against Commonwealth and PPR under Title VII and against Caldero under Section 1983 should not be dismissed. Signed by Judge Carmen C. Cerezo on 3/2/2017. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
YASHYRA M. RIVERA-ASTACIO;
PATRIA M. ASTACIO
Plaintiffs
vs
COMMONWEALTH OF PUERTO
RICO and its agency, PUERTO RICO
POLICE DEPARTMENT;
SUPERINTENDENT JOSE
CALDERO; John Doe, Richard Roe
and their respective insurance
companies
Defendants
CIVIL 15-3181CCC
OPINION AND ORDER
On June 1, 2016, plaintiffs Yashyra M. Rivera-Astacio (“Rivera”) and
Patria M. Astacio (“Astacio”) filed an Amended Complaint (d.e. 21) against
defendants the Commonwealth of Puerto Rico (“the Commonwealth”), the
Police of Puerto Rico (“PPR”), Superintendent José Caldero (“Caldero”), John
Doe, Richard Roe, and their respective insurance companies pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C.
§ 1983, Articles 1802 and 1803 of the Puerto Rico Civil Code, “the Puerto Rico
Law against discrimination and retaliation,” and “Puerto Rico Labor Laws
Including Public Law No. 80 of May 30, 1976 as amended, whistler blower act,
state law against retaliation, and equivalent Federal Labor Laws.” (d.e. 21,
p. 1).
On July 27, 2016, PPR and the Commonwealth filed a Motion to Dismiss
(d.e. 27) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the
grounds that (1) they are entitled to immunity pursuant to the Eleventh
Amendment to the United States Constitution for both federal and state law
claims, and (2) that co-plaintiff Astacio failed to state a claim upon which relief
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can be granted. On August 4, 2016, plaintiffs filed an Opposition (d.e. 29),
arguing that (1) the Eleventh Amendment does not apply to Puerto Rico,
(2) this Court has jurisdiction over all of its claims, and (3) plaintiff Astacio
pleaded adequately. On August 15, 2016, defendants filed a Reply (d.e. 32),
arguing that the United States Supreme Court’s decisions in Puerto Rico v.
Sanchez-Valle, 136 S.Ct. 1863 (2016) and Puerto Rico v. Franklin Cal.
Tax-Free Tr., 136 S.Ct. 1938 (2016) do not support the contention that the
Eleventh Amendment does not apply to Puerto Rico.
I.
FACTUAL BACKGROUND
The following are relevant allegations of the Amended Complaint
(d.e. 21): In 2007, plaintiff Rivera filed a sexual harassment and retaliation
claim against the Commonwealth of Puerto Rico, in which she prevailed on
October 5, 2010 (d.e. 21, ¶ 12). At some point in or after 2012, she alleges
that Sergeant Wilberto Morales, who was her supervisor, changed her shift and
cut her days off in half (d.e. 21, ¶¶ 17-19, 21, 23). Rivera describes an
incident, no time frame given, in which she participated in a domestic violence
situation and Morales told her that her job was to “protect the coasts” (d.e. 21,
¶¶ 24-27). Allegations 28-31 refer to a June 27, 2012 incident related to her
practice that day at the Guayama Shooting Range and allegation 33 refers
generally to Morales canceling a police operative after discarding information
provided by her concerning drug smuggling in the Guayama area. Rivera also
notes that she filed administrative complaints and a complaint with the United
States Equal Employment Opportunity Commission (“EEOC”), which issued a
Right to Sue Notice on October 3, 2015. (d.e. 21, ¶¶ 35-36). In her prayer for
relief, Rivera alleges that her “civil rights were violated due to [her]” skin color,
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3
gender, sex, and in retaliation for her Puerto Rico court case. (d.e. 21,
¶¶ 38-40). She also alleges that she and her mother “suffered and continue
to suffer severe emotional distress, affliction, anguish, [and] deprivation.”
(d.e. 21, ¶¶ 41-42).
II.
PLEADING STANDARDS
Under Rules 12(b)(1) and 12(b)(6), a defendant may move to dismiss an
action against him for lack of federal subject-matter jurisdiction or for failure to
state a claim upon which relief can be granted.
Benítez-Navarro v.
González-Aponte, 660 F. Supp. 2d 185, 188 (D.P.R. 2009). A motion to
dismiss brought under Rule 12(b)(1) is subject to the same standard of review
as a motion to dismiss under Rule 12(b)(6). Cintrón-Luna v. Román-Bultrón,
668 F. Supp. 2d 315, 316 (D.P.R. 2009). “In Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), the Supreme Court held that to survive a motion to
dismiss under Rule 12(b)(6), a complaint must allege ‘a plausible entitlement
to relief’.” Martínez-Díaz v. Doe, 683 F. Supp. 2d 171, 173 (D.P.R. 2010).
When ruling on a motion to dismiss the “court must accept the complaint's
well-pleaded facts as true and indulge all reasonable inferences in the plaintiff's
favor.” Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008). Although “Twombly
does not require heightened fact pleading of specifics . . . it does require
enough facts to ‘nudge [plaintiffs'] claims across the line from conceivable to
plausible’.” Quirós v. Muñoz, 670 F. Supp. 2d 130, 131 (D.P.R. 2009).
“Accordingly, in order to avoid dismissal, the plaintiff must provide the grounds
upon which his claim rests through factual allegations sufficient to ‘raise a right
to relief above the speculative level’.” Maldonado-Concepción v. Puerto Rico,
683 F. Supp. 2d 174, 175-76 (D.P.R. 2010).
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In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009), the Supreme
Court upheld Twombly and clarified that two underlying principles must guide
this Court's assessment of the adequacy of a plaintiff's pleadings when
evaluating whether a complaint can survive a Rule 12(b)(6) motion. “First, the
tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 129 S.Ct. at 1949. “Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id. at 1950. “Thus, any
nonconclusory factual allegations in the complaint, accepted as true, must be
sufficient to give the claim facial plausibility.” Id. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id., at 1949. “Determining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Id., at 1950. “[W]here the
well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged -but it has not ‘show[n]'‘that the pleader is entitled to relief’.” Id. “Furthermore, such inferences must
be at least as plausible as any ‘obvious alternative explanation’.”
Martínez-Díaz v. Doe, 683 F. Supp. 2d at 174 (quoting Ashcroft v. Iqbal,
129 S.Ct. at 1950-51).
CIVIL 15-3181CCC
III.
5
DISCUSSION
Title VII and ¶ 1983
Defendants PPR and the Commonwealth pray that plaintiffs’ Amended
Complaint (d.e. 21) be “dismissed in its entirety” (d.e. 27, p. 7). but they do not
address plaintiffs’ claims under Title VII of the Civil Rights Act or 42 U.S.C.
§ 1983. They argue generally, however, that they are entitled to Eleventh
Amendment immunity.
Puerto Rico has consistently been treated as a state for Eleventh
Amendment
purposes.
Nieves-Garay v. Puerto
Rico Police Dep't,
No. CIV. 09-1959 JAF, 2011 WL 2518801, at *4 (D.P.R. June 23, 2011) (citing
Metcalf & Eddy, Inc. V. P.R. Aqueduct and Sewer Co.,991 F.2d 935, 939 n. 3
(1st Cir. 1993). The Eleventh Amendment generally prohibits individuals from
seeking monetary relief from states and their agencies and instrumentalities.
Cruz v. Puerto Rico, 558 F. Supp. 2d 165, 173 (D.P.R. 2007). However, the
Eleventh Amendment is abrogated by Congress’ enforcement power under
Section Five of the Fourteenth Amendment to the United States Constitution
to enforce that amendment’s substantive provisions. Fitzpatrick v. Bitzer,
427 U.S. 445, 447 (1976).
Because Title VII was passed pursuant to said power, Eleventh
Amendment immunity does not protect defendants PPR and the
Commonwealth from claims for damages under Title VII. Rzadkowski-Chevere
v. Admin. for Child Support Enf't, 363 F. Supp. 2d 1, 6 (D.P.R. 2005).
Accordingly, said defendants’ request for dismissal of plaintiffs’ Title VII claims
is DENIED.
As to the claims under § 1983, it is apodictic that § 1983 only imposes
liability on “persons.” See Martinez-Velez v. Simonet, 919 F.2d 808, 810
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(1st Cir. 1990). The Supreme Court has held that a state, its agencies, and
state officials acting in their official capacities are not “persons” within the
meaning of ¶ 1983 and cannot be sued under it. Will v. Mich. Dept. of State
Police, 491 U.S. 58, 71 (1989). Thus, as both the Commonwealth and PPR
are not “persons” for § 1983 purposes, defendants’ request for dismissal of the
claims brought against them under its provisions is GRANTED.
State Law Claims
In plaintiffs’ Amended Complaint (d.e. 21), they state that this Court has
jurisdiction under Articles 1802 and 1803 of the Puerto Rico Civil Code, “Puerto
Rico Labor Laws including Law No. 80 of May 30, 1976,” “Puerto Rico Law
against discrimination and retaliation,” “whistler blower act, “state law against
retaliation, and equivalent Federal Labor Laws” (sic). (d.e. 21, ¶¶ 2-3).
Defendants PPR and the Commonwealth, rightfully unsure of exactly
which laws plaintiffs intend to cite in their Complaint, request dismissal of these
state law claims on the grounds that Congress has not overridden Puerto
Rico’s Eleventh Amendment immunity, and Puerto Rico has not otherwise
waived it. (d.e. 27, pp. 5-6).
Regarding Articles 1802 and 1803 of the Puerto Rico Civil Code, which
is the general negligence statute, we have stated the following: “Although the
Commonwealth has consented to be sued for damages in actions brought
under the Commonwealth general negligence statute, such consent does not
extend to actions filed in any courts but the Commonwealth’s own.”
Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir. 2006).
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Regarding Puerto Rico Law 80, 29 L.P.R.A. §§ 185a-m, we have held
that the Commonwealth has not waived its sovereign immunity. Mandavilli v.
Maldonado, 38 F. Supp. 2d 180, 205 (D.P.R. 1999).
Regarding Puerto Rico Law 115, 29 L.P.R.A. § 194a et. seq., we have
held that the Commonwealth has not waived its sovereign immunity. Diaz v.
Dep't of Educ., 823 F. Supp. 2d 68, 77 (D.P.R. 2011).
To the extent that plaintiff alleges claims against defendants PPR and the
Commonwealth under Puerto Rico Laws 17 and 69, 29 L.P.R.A. §§ 155-155m,
1321-1341 (sexual harassment and gender discrimination), we have also held
that the Commonwealth has not waived its sovereign immunity with respect to
these laws.
Hernandez-Mendez v. Rivera, 137 F. Supp. 3d 142,
161 (D.P.R. 2015).
Accordingly, and for the reasons stated above, defendants PPR and the
Commonwealth’s request for dismissal of plaintiffs’ state law claims is
GRANTED.
Co-Plaintiff Patria Astacio
Defendants PPR and the Commonwealth pray that all claims by
co-plaintiff Patria Astacio be dismissed for her failure to plead factual
allegations that state a claim upon which relief can be granted. Plaintiffs’
response does not address defendants’ argument. Their counter-argument,
in its entirety, is that plaintiffs “already discussed in the previous paragraphs
that this Honorable Court has primary jurisdiction of the claims under federal
law and under state law remedies under the Supplemental Jurisdiction
Principles in the interest of judicial efficiency and economy.” (d.e. 29, ¶ 18).
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In order to meet the pleading standard set forth in Ashcroft v. Iqbal,
plaintiffs must simply plead facts sufficient to “raise a right to relief above the
speculative level." Maldonado-Concepción, 683 F. Supp. 2d at 174, 175-76.
In plaintiffs’ Amended Complaint (d.e. 21), they mention co-plaintiff twice.
First, they mention her in the section naming the parties: “[Plaintiff Rivera’s]
mother Patria M Astacio is included as co-plaintiff.” (d.e. 21, ¶ 5). Second,
they mention her in the section outlining their prayer for relief: “Co-plaintiff
Patria M Astacio has suffered and continues to suffer, severe emotional
distress, affliction, anguish, deprivation due to her daughter suffering,
estimated on $500,000.00.” (d.e. 21, ¶ 42). Nowhere do plaintiffs allege any
facts as to the cause of co-plaintiff Astacio’s alleged suffering. Indeed the
“Facts” section of the Amended Complaint is entirely devoid of any references
to Astacio.
As noted above, in order to avoid dismissal, plaintiffs must “provide the
grounds upon which his claim rests through factual allegations sufficient to
raise a right to relief above the speculative level.” Maldonado-Concepción,
683 F. Supp. 2d at 174, 175-76) (emphasis ours). Because plaintiffs allege no
facts as to co-plaintiff Astacio, the Amended Complaint (d.e. 21) completely
fails to meeting the pleading standard outlined in Twombly and Iqbal.
Accordingly, defendants’ request for dismissal of the claims brought by
co-plaintiff Astacio is GRANTED.
IV.
DISPOSITION OF THE MOTION
For the foregoing reasons, defendants Commonwealth of Puerto Rico
and the Police of Puerto Rico’s Motion to Dismiss (d.e. 27) is GRANTED IN
PART AND DENIED IN PART. Defendants’ Motion is GRANTED as to (1) all
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claims by plaintiff Astacio, (2) the 42 U.S.C. ¶ 1983 claims by plaintiff Rivera
against the Commonwealth and PPR and (3) all state law claims by plaintiff
Rivera. Said claims are hereby DISMISSED WITH PREJUDICE. Defendants’
Motion is DENIED as to plaintiff Rivera’s claim under Title VII of the Civil Rights
Act, 42 U.S.C. § 200e et seq.
V.
ORDER TO SHOW CAUSE
Finally, and while defendants did not ask for the dismissal under
Twombly and Iqbal of plaintiff Rivera’s Title VII claim, our review of the
Amended Complaint has revealed that she invoked that federal statute in her
jurisdictional allegations followed by a narrative of five and a half pages of
allegations of fact none of which are linked as violations to any of the
provisions of Title VII. Similarly, there is a remaining claim under ¶ 1983
presumably against defendant Caldero, yet the Amended Complaint is devoid
of any specific allegations tying him to violations of plaintiff’s civil rights.
Accordingly, plaintiff Rivera shall SHOW CAUSE by MARCH 15, 2017 why
the remaining claims against the Commonwealth and PPR under Title VII and
against Caldero under ¶ 1983 should not be dismissed for her failure to comply
with the plausibility pleading standards established in Twombly and Iqbal, ante.
Failure to comply with this Order by the established deadline will result in the
immediate dismissal of the remaining claims, with prejudice.
SO ORDERED.
At San Juan, Puerto Rico, on March 2, 2017.
S/CARMEN CONSUELO CEREZO
United States District Judge
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