Rodriguez-Deynes v. Moreno-Alonso et al, No. 3:2016cv02986 - Document 32 (D.P.R. 2019)
Court Description: OPINION AND ORDER granting in part and denying in part 9 Motion to Dismiss for Failure to State a Claim. See order attached. Plaintiff has thirty days, once the stay is lifted, to provide a more definite statement as to the alleged false accusations and frivolous complaints against him. Signed by Judge Juan M. Perez-Gimenez on 3/22/2019. (PMA)
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Rodriguez-Deynes v. Moreno-Alonso et al Doc. 32 Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 1 of 21 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO VICTOR ROD RIGUEZ-D EYN ES, Plaintiff, v. ED W ARD MOREN O-ALON SO, ET AL., CIV. NO. 16-2986 (PG) Defendants. OPIN ION AN D ORD ER Plaintiff Victor Rodriguez-Deynes (“plaintiff”) files suit under 42 U.S.C. § 1983 and three local statutes. See Docket No. 3. Defendant Edward Moreno-Alonso (“defendant” or “MorenoAlonso”) m oves to dism iss. See Docket No. 9. Plaintiff opposes. See Docket No. 21. For the reason s set forth below, the court GRAN TS AN D D EN IES IN PART defendant’s m otion to dism iss. I. BACKGROU N D Plaintiff took the position of Academ ic Director at the Escuela Libre de Música Ernesto Ram os Antonini (“the school”) on Septem ber 3, 20 0 8. See Docket No. 3 at 3. He alleges the school suffered from a litany of staffing, funding and infrastructure problem s at that tim e. See id. In February of 20 10 , plaintiff purportedly becam e aware of the Departm ent of Education’s (or “the departm ent”) plan to m ove the school to a new location. See id. at 5. To address the school’s problem s, and to oppose relocation, plaintiff claim s he m ade num erous expressions between 20 0 9 and 20 11. See id. at 5-8 . 1 Plaintiff posits that, in retaliation, defendant – the Secretary of Education from 20 11 to 20 12 – intentionally coordinated a schem e of false accusations an d frivolous com plaints filed in state court. See id. at 7. Plaintiff also m aintains that, in or around May of 2010 , several individuals acting 1 The individual instances of speech will be discussed in detail below. Dockets.Justia.com Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 2 of 21 Page 2 Civ No. 16-2986 (PG) in concert with defendant called and visited him in an effort to intimidate an d “pressure” him . See id. at 8. Plaintiff further alleges that defendant and codefendant J esus Rivera-Sanchez (“codefendant” or “Rivera-Sanchez”) – the Secretary of Education from 20 10 to 20 11 – fabricated a disciplin ary record against him . See id. Then, plaintiff avers, he was notified he had been sum m arily suspended – albeit with pay – on October 7, 20 11. See id. at 7. 2 On J uly 24, 20 12, defendant was reinstated to his position, as “Academ ic Director of the School District of San J uan I.” Id. at 10 . However, he was transferred from the school to the Rafael Cordero Specialized School (“Rafael Cordero”), within the sam e district. Plaintiff worked at Rafael Cordero for four days, before leaving to seek m edical attention. See id. at 11. Plaintiff filed an initial com plaint in state court on Septem ber 26, 20 12. See Docket No. 21 at 28 . On Novem ber 16, 20 16, plaintiff sued defendant and co-defendant, in their individual capacities, in this court. 3 See Docket No. 1. Alm ost two m onths later, plaintiff filed an am ended com plaint (“the com plaint”). See Docket No. 3. Defendant m oves to dism iss. See Docket No. 9. II. STAN D ARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) authorizes the dism issal of a com plaint that fails to state a claim upon which relief could be granted. “To avoid dism issal, a com plaint m ust provide ‘a short and plain statem ent of the claim showin g that the pleader is entitled to relief.’” Garcia-Catalan v. United States, 734 F.3d 10 0 , 10 2 (1st Cir. 20 13) (quoting Fed. R. Civ. P. 8 (a)(2)). When ruling on a m otion to dism iss for failure to state a claim , a district court m ust “ask whether the com plaint states a claim to relief that is plausible on its face, accepting the plaintiff’s factual allegations and drawing all reasonable inferences in the plaintiff’s favor.” Cooper v. Charter Com m unication s Entertainm ents I, LLC, 760 F.3d 10 3, 10 6 (1st Cir. 20 14) (citing Maloy v. Ballori-Lage, 744 F.3d 250 , 252 (1st Cir. 20 14)) (internal quotations m arks om itted). 2 3 Plaintiff was notified of his right to an adm inistrative hearing, which he exercised. See id. at 7; 10 . Plaintiff also sues other, un known individuals. See id. at 2-3. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 3 of 21 Page 3 Civ No. 16-2986 (PG) “To cross the plausibility threshold, the plaintiff m ust ‘plead factual content that allows the court to draw the reasonable inferen ce that the defendant is liable for the m isconduct alleged.’” Cooper, 760 F.3d at 10 6 (citing Maloy 744 F.3d at 252). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9). That is, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level, … , on the assum ption that all the allegations in the com plaint are true (even if doubtful in fact) … .” Bell Atlantic Corp. v. Twom bly, 550 U.S. 544, 555 (20 0 7) (internal citations om itted). “Non-conclusory factual allegations in the com plaint m ust then be treated as true, even if seem ingly incredible.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 20 11). III. D ISCU SSION A. Pla in tiff’s Claim s U n d e r 4 2 U .S.C. § 19 8 3 Plaintiff claim s that defendant, acting under the color of state law, infringed upon his rights under the First and Fourteenth Am endm ents of the Constitution of the United States, in violation of 42 U.S.C. § 1983. See Docket No. 3 at 12. Section 1983 does not create substantive rights, but rather provides a cause of action through which a plaintiff can vindicate federal rights elsewhere conferred. See Albright v. Oliver, 510 U.S. 266, 271 (1994). To state a claim under § 1983, plaintiff m ust allege that defendant acted under color of state law and deprived him of a protected federal right. See Rogan v. City of Boston, 267 F.3d 24, 27 (1st Cir. 20 0 1). Defendant m oves to dism iss plaintiff’s claim s. See Docket No. 9. He argues plaintiff suffered no such breach of his federal rights because all purported actions fell within constitutional bounds. See id. at 3-11. To boot, defendant posits that at least som e of plaintiff’s claim s are tim e-barred. See id. at 11-13. i. Regarding First Am endm ent Retaliation Working for the governm ent does not strip a person of all First Am endm ent protection. See Foley v. Town of Randolph, 598 F.3d 1, 5 (1st Cir. 20 10 ). See also Decotiis v. Whittem ore, 635 F.3d 22, 29 (1st Cir. 20 11). At the sam e tim e, “a citizen who accepts public em ploym ent m ust accept Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 4 of 21 Civ No. 16-2986 (PG) Page 4 certain lim itations on [their] freedom .” Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 386 (20 11) (citations om itted). 4 Ergo, the “protection that public em ployees enjoy against speech-based reprisals is qualified.” McGunigle v. City of Quincy, 8 35 F.3d 192, 20 2 (1st Cir. 20 16) (citing Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 26 (1st Cir. 20 10 ); Garcetti v. Ceballos, 547 U.S. 410 , 418 (20 0 6)). Plaintiff alleges that defendants “retaliat[ed] against [him ] for his exercise of his rights under the First Am endm ent.” Docket No. 3 at 12. Defendant m oves to dism iss. See Docket No. 9 at 3-7. He argues the First Am endm ent affords plaintiff – a public em ployee – no shelter here. See id. Defendant avers, concerning the eight instances of speech presently in question, that plaintiff does not plausibly plead he engaged in protected speech. See id. 5 Thus, the court m ust settle whether plaintiff plausibly pleads that he spoke as a citizen on a m atter of public concern, rather than as a public em ployee. See Decotiis, 635 F.3d at 35. If plaintiff spoke as a public em ployee, no constitutional protections attach. See Garcetti, 547 U.S. at 421 (“when public em ployees m ake statem ents pursuant to their official duties, the em ployees are not speaking as citizens for First Am endm ent purposes, and the Constitution does not insulate their 4 “When som eone who is paid a salary so that [they] will contribute to an agency's effective operation begins to do or say things that detract from the agency's effective operation , the governm ent em ployer m ust have som e power to restrain [them ].” Guarnieri, 564 U.S. at 386– 87 (quoting Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality opin ion)). 5 For the m ost part, plaintiff supports his response to defendant’s m otion to dism iss with cases decided in or before 20 0 3. See Docket No. 21 at 16-20 . He therefore essentially eschews Garcetti (decided in 20 0 6) and its progeny, which shifted the relevant legal landscape by establishing that public em ployees m ay be shielded by the First Am endm ent when they speak as citizens but never when they speak as public em ployees (plaintiff briefly cites Garcetti twice, see id. at 19, but sidesteps that decision’s core holding). To boot, plaintiff calam itously m iscites Bolduc v. Town of Webster – the single post-Garcetti decision in his brief – in a pivotal m anner. Com pare Docket No. 21 at 16 (citing Bolduc, 629 F. Supp. 2d 132, 145 (D. Mass. 20 0 9)) (proposing that the first prong of the relevant in quiry is “that [plaintiff] spoke on a m atter of public concern”), with Bolduc, 629 F. Supp. 2d at 145 (proposin g that the sam e prong is actually “that [plaintiff] spoke as a citize n on a m atter of public concern ” (em phasis added)). Accordingly, plaintiff’s brief does not accurately reflect the current state of law on the m atter before the court. Indeed, it appears plaintiff would have the court ignore over ten years of good law and hold the First Am endm ent protects him even if he spoke as a public em ployee, as longs as the subject m atter of his expressions is of public concern. The court takes issue with such briefing practices, which could be interpreted as attem pts to m islead the court. In effect, plaintiff n either briefed the court on the m atter before it nor refuted defendant’s argum ents. Plaintiff (and his counsel) would do well to m ind this adm onition when briefin g this court in the future. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 5 of 21 Civ No. 16-2986 (PG) Page 5 com m unications from em ployer discipline”). But, if plaintiff spoke as a citizen on a m atter of public concern, the First Am endm ent m ay shield him . 6 See Lane v. Franks, 573 U.S. 228, 237 (20 14). To determ in e whether plaintiff took off his “em ployee hat” and put on his “citizen hat,” the court m ust establish his official duties and assess whether the speech in question was m ade pursuant to those duties. Decotiis, 635 F.3d at 31. See also O'Connell v. Marrero-Recio, 724 F.3d 117, 123 (1st Cir. 20 13). The inquiry calls for a “practical rather than form al” approach. Decotiis, 635 F.3d at 31 (such an inquiry focuses on “the duties the em ployee is actually expected to perform ”). After defining the public em ployee’s official duties, contextual clues help the court zero in on the nature of the expression under consideration. See id. at 32; Mercado-Berrios, 611 F.3d at 27 n.9 (quoting Garcetti, 547 U.S. at 421-23). 7 Today, the court will consider sim ply if “the com plaint alleges facts that plausibly set forth citizen speech.” See Decotiis, 635 F.3d at 35 (citing Sepulveda-Villarini v. Dep’t. of Educ. Of P.R., 628 F.3d 25, 30 (1st Cir. 20 10 )). 8 Nunc incipim us: 6 First Am endm ent protection m ay falter at a later stage of the relevant m ulti-step in quiry. See Barton v. Clancy, 632 F.3d 36, 45 (1st Cir. 20 11). The court will not reach those stages today. 7 Speech is m ore likely to be spoken as a public em ployee when it “owes its existence to … professional responsibilities,” when the em ployer “com m ission ed or created” the em ployee’s speech, when the em ployee was “paid to m ake” the expressions, when the em ployee’s “duties required him to m ake” the expressions, when the speech “am ounts to … work product,” and when the speech “is an official com m un ication.” Mercado-Berrios, 611 F.3d at 27 n.9 (quotin g Garcetti, 547 U.S. at 421-23). Additional factors include: the subject m atter of the speech; whether the speech was m ade up the chain of com m and; whether the em ployee spoke at [their] place of em ploym ent; whether the speech gave objective observers the im pression that the em ployee represented the em ployer when [they] spoke; whether the em ployee's speech derived from special knowledge obtained durin g the course of [their] em ploym ent; and whether there is a so-called citizen analogue to the speech. Decotiis, 635 F.3d at 32 (internal citations om itted). 8 To be sure, “navigating the shoals” of the Garcetti stan dard is often “tricky business” – “particularly so in the context of a m otion to dism iss, because the in quiry is so fact intensive and context specific.” Decotiis, 635 F.3d at 26. Cf. Hill v. Borough of Kutztown, 455 F.3d 225, 242– 43 (3d Cir. 20 0 6) (quoting Rankin v. McPherson, 483 U.S. 378, 384 (1987)) (stating that the m otion to dism iss “procedural posture” precluded determ in in g whether speech was a m atter of public concern in that case). Still, som e courts have been able to execute the full Garcetti analysis at the m otion to dism iss stage. However, even on Rule 12(b)(6) review, m ost of them were inform ed by abundant records. That is not the case here. En gaging in the full Garcetti in quiry on a m eager inform ational background can be hazardous. The test requires balancin g num erous non-dispositive factors. Austere allegations and a scant record can gull the reviewer into placing far m ore weight than appropriate on the few non-dispositive factors that are discernible from the face of the com plaint, poten tially skewing the scales towards m istaken outcom es. The court will steer clear of that pitful today. Conducting the run-of-the-m ill Garcetti test is nothing short of an im possibility on the record currently before the court. However, “the scope of our review on a m otion to dism iss does not dem and as m uch …” Decotiis, 635 F.3d at 35. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 6 of 21 Civ No. 16-2986 (PG) Page 6 1. Expressions at the Parent’s Assem bly Plaintiff alleges that “as part [sic] plaintiff’s endeavor he naturally m ade certain relevant expressions in official activities such as the assem bly of parents.” Docket No. 3 at 5. See also id. at 7 (“… [plaintiff] reported on [sic] the Parent’s Assem bly on Septem ber 7, 20 11…”). That allegation does not set forth facts that plausibly posit plaintiff engaged in citizen speech when he spoke at the Parent’s Assem bly. On the contrary: the com plaint characterizes the assem bly as an “official activit[y].” That characterization, while not dispositive, weighs against plaintiff. See Decotiis, 635 F.3d at 33 (citing Foley, 598 F.3d at 7) (“speech m ade to an audience to which an em ployee only has access through [their] job is generally less akin to citizen speech”); Foley 598 F.3d at 6-8 (discussing “official speech”); n.7, supra. In the absence of an y other pleaded facts, the court m ust dism iss plaintiff’s First Am endm ent claim as pertaining to the expressions he m ade at the Parent’s Assem bly. No inferences can be m ade in favor of plaintiff - there are no pleaded facts from which to infer that he engaged in citizen speech. See Cooper, 760 F.3d at 10 6 (citing Maloy, 744 F.3d at 252). 9 Thus, the court GRAN TS defendant’s m otion as to plaintiff’s claim s regarding his expressions at the Parent’s Assem bly. They are D ISMISSED W ITH OU T PREJU D ICE. 2. Open Letter and Expressions to N otiCel Plaintiff alleges he “wrote an open letter addressed to the school com m unity stating the m agnitude of these problem s an d indicating the need of [sic] additional resources.” Docket No. 3 at 5. See also id. at 7 (“[plaintiff] wrote an Open Letter to the Parents and to the Secretary of Education Septem ber 20 , 20 11”). Thus, the court m ust consider another bare-bones allegation. Indeed, when broken down, the allegation posits only four facts: (1) plaintiff wrote an open letter, (2) on Septem ber 20 , 20 11, (3) to the school com m unity, 10 (4) about the school’s problem s and the 9 Defendants m ove to dism iss only on the grounds that plaintiff spoke as an em ployee rather than as a citizen at the tim e he m ade the expressions in question. See Docket No. 9 at 3-7. The court will only review plaintiff’s allegations to the extent defendant has levied argum ents against them . See Rodriguez v. Mun icipality of San J uan, 659 F.3d 168 , 175 (1st Cir. 20 11) (“J udges are not m ind-readers, so parties m ust spell out their issues clearly, highlighting the relevant facts and analyzing on -poin t authority.”) 10 Plaintiff also alleges the sam e letter was addressed to “the Parents and the Secretary of Education…” Docket No. 3 at 7. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 7 of 21 Civ No. 16-2986 (PG) Page 7 need for resources. Still, plaintiff plausibly pleads – by the skin of his teeth – facts that set forth citizen speech. He alleged that the letter was an o p e n le tte r, for which there exists plenty of analogous citizen speech (anyone can pen an open letter, and private citizens often do so). See Garcetti, 547 U.S. at 422 (stating that expressions are m ore likely to be m ade as a citizen, rather than as an em ployee, when there is analogous citizen speech). See also Stuart v. Town of Fram ingham , 30 1 F. Supp. 3d 234, 241 (D. Mass. 20 18) (citing Decotiis, 635 F.3d at 32). While other considerations could weigh against plaintiff, they cannot be factored into the analysis without first drawing inferences in defen dant’s favor. See n.7, supra. Such in ferences are in appropriate at this stage. See Cooper, 760 F.3d at 10 6 (citing Maloy, 744 F.3d at 252). Thus, plaintiff plausibly pleads that his open letter was citizen speech. Plaintiff also alleges he “contacted NotiCel and anticipated [sic] to the m edia that the adm in istration planned to dism iss him in retaliation for his strong position [sic] ‘Rem odeling yes, m oving no’ m ovem ent.” Docket No. 3 at 7. For the sam e reasons detailed above (discussing the open letter), plaintiff plausibly pleads that he spoke as a citizen when he contacted NotiCel. See Garcetti, 547 U.S. at 422 (“letter to the newspaper had no official significance and bore sim ilarities to letters subm itted by num erous citizens every day”); Decotiis, 635 F.3d at 32. Private citizens can, and frequently do, m ake expressions to news m edia outlets (such as NotiCel). Therefore – because there is a citizen analogue to the speech in question – plaintiff plausibly pleads that he spoke as a citizen to NotiCel. Cf. Foley, 598 F.3d at 9 (citing McLaughlin v. City of Nashville, Civil No. 0 6– 40 69, U.S. Dist. LEXIS 78133, at *8 – 9 (W.D.Ark. Oct. 23, 20 0 6); Hailey v. City of Cam den, Civil No. 0 1– 3967, 20 0 6 WL 187540 2, at *16 (D.N.J . J uly 5, 20 0 6)). See also Gibson v. Kilpatrick, 773 F.3d 661, 670 (5th Cir. 20 14); Perkins v. Twp. of Clayton, 411 F. App'x 810 , 814 (6th Cir. 20 11) (“right to speak to the press was well established”). But see Gibson, 773 F.3d at 670 (“when an em ployee's official duties in clude com m unicating with … the press, it would be in disson ance with Garcetti to conclude that, when [they do] so, [they enjoy] First Am endm ent protection”); Bearss v. Wilton, 445 F. App'x 40 0 , 40 3 (2d Cir. 20 11). Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 8 of 21 Civ No. 16-2986 (PG) Page 8 Thus, the court D EN IES defendant’s m otion to dism iss as to plaintiff’s claim s regarding the open letter and the expressions m ade to NotiCel. 3. E-m ails Plaintiff alleges he “sent around a dozen e-m ails to the form er Special Assistant to the Secretary of Education defendant Moreno-Alonso.” Docket No. 3 at 5. This allegation is far too bare to surm ount Rule 12(b)(6) scrutiny. Nothing in the com plaint suggests such speech would fall under First Am endm ent protection. Far the opposite, the only discernible, tangible fact relevant to this analysis is that plaintiff sent com m unications up the chain of com m and to the Secretary of Education’s assistant. That a public em ployee spoke up the chain of com m and suggests he spoke as an em ployee rather than as a private citizen. See Decotiis, 635 F.3d at 32; Gibson, 773 F.3d at 670 ; Bettencourt v. Town of Mendon, 334 F. Supp. 3d 468, 485 (D. Mass. 20 18). Plaintiff is dam ningly silent as to any other considerations that could be factored into the inquiry. Plaintiff also alleges that he “sent an e-m ail to [codefendant] inquiring about what he correctly perceived as a m alicious ‘conspiracy’ to rem ove him .” See Docket No. 3 at 7. This secon d allegation is crippled by the sam e fatal flaw as the first. Here, too, plaintiff alleges he spoke up the chain of com m and, directly to the Secretary of Education. See Decotiis, 635 F.3d at 32 (speaking up the chain of com m and suggests em ployee speech); Gibson, 773 F.3d at 670 ; Bettencourt, 334 F. Supp. 3d at 485. To boot, the subject m atter of the e-m ail also pertains to plaintiff’s em ploym ent. See Cruz v. Puerto Rico Power Auth., 878 F. Supp. 2d 316, 326 (D.P.R. 20 12). 11 Thus, the com plaint’s factual allegations do not set forth that plaintiff spoke as a citizen in his e-m ail to codefendant. 11 While the court will not con sider whether plaintiff pleads speech on m atters of public concern , see n .9, supra, the court notes that “public concern is not usually involved when speech rights are invoked in connection with individual workplace disputes and grievances… The First Am endm ent does not em power public em ployees to constitutionalize ordinary em ployee grievances.” LaSalle v. Puerto Rico Elec. Power Auth., 144 F. Supp. 3d 274, 279 (D.P.R. 20 15) (internal citations om itted). See also Shattuck v. Potter, 441 F. Supp. 2d 193, 20 0 (D. Me. 20 0 6) (quoting O'Connor v. Steeves, 994 F.2d 90 5, 914 (1st Cir.1993)) (where a public em ployee sent a private com m un ication, “the form of [their] expression [did] not dem onstrate any ‘subjective intent to contribute to any ... public discourse’”). Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 9 of 21 Civ No. 16-2986 (PG) Page 9 Again, no inferences can be m ade, from these allegations, in favor of plaintiff - there are no pleaded facts from which to infer that he engaged in citizen speech. See Cooper, 760 F.3d at 10 6 (citing Maloy, 744 F.3d at 252). As such, plaintiff fails to plausibly plead that he engaged in citizen speech when he sent e-m ails to the Special Assistant to the Secretary of Education and to the Secretary of Education. Therefore, the court GRAN TS defendant’s m otion as to plaintiff’s claim s regarding the e-m ails. They are thus D ISMISSED W ITH OU T PREJU D ICE. 4. OMEP and OSHA Com plaints Plaintiff alleges he sen t “persistent m essages and letters to the Director of the Office [sic] Im provem ent for [sic] Public Schools (OMEP) denouncing the poor m aintenan ce and conservation of the School.” Docket No. 3 at 5. He further pleads that, “after seeing that OMEP did not attend [sic] his claim s, he had no alternative that [sic] to present a grievance in [sic] OSHA12 in connection to the unsanitary and unsafe conditions of the School.” Id. The court will address the OSHA grievance first. Plaintiff alleges he m ade com plaints to OSHA, a federal agency outside of the Puerto Rico Departm ent of Education. Because OSHA is an external agen cy outside of plaintiff’s chain of com m and, he sets forth facts that plausibly plead he engaged in citizen speech when he filed those com plaints. See Thom as v. Town of Salisbury, 134 F. Supp. 3d 633, 644 (D. Mass. 20 15) (com plaints m ade to the city m anager, outside the police departm ent’s chain of com m and, persuaded the court of citizen speech); Cruz v. Puerto Rico Power Auth., 878 F. Supp. 2d 316, 325– 26 (D.P.R. 20 12) (speech m ade to OSHA favors a conclusion of citizen speech). See also Gibson, 773 F.3d at 670 (quoting Davis v. McKinney, 518 F.3d 30 4, 313 (5th Cir. 20 0 8)) (“external com m unications are ordinarily not m ade as an em ployee, but as a citizen”); Dahlia v. Rodriguez, 735 F.3d 10 60 , 10 77 (9th Cir. 20 13) (plaintiff spoke as a citizen when he spoke outside the chain of com m and to an external agency); Reinhardt v. Albuquerque Pub. Sch. 12 OSHA is the acronym for the Occupational Safety and Health Adm in istration, an agency of the Un ited States Departm ent of Labor. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 10 of 21 Civ No. 16-2986 (PG) Page 10 Bd. of Educ., 595 F.3d 1126, 1137 (10 th Cir. 20 10 ) (“filing a com plaint with an agency outside a plaintiff's direct chain of com m and is not pursuant to official duties, but rather is the speech of a private citizen”(quotations om itted)). Still, speech m ade to external agen cies can n onetheless constitute em ployee speech when intrinsically related or pursuant to em ploym ent duties. See Rohrbough v. Univ. of Colorado Hosp. Auth., 596 F.3d 741, 750 (10 th Cir. 20 10 ) (speech m ade to outside agency which was required by em ploym ent duties “presents a closer question”); Alvarez v. Staple, 345 F. Supp. 3d 320 , 333-34 (S.D.N.Y. 20 18) (collecting cases and stating that public school teachers can speak as em ployees when com plaining about school district policies an d procedures to external agencies outside chain of com m and); Harris v. Bd. of Educ., 230 F.Supp.3d 88, 10 2 (E.D.N.Y. 20 17) (filing com plaint “to ensure the welfare of students is a duty of a teacher and in furtherance of the execution of one of her core duties” (quotations om itted)); Ross v. New York City Dept. of Educ., 935 F.Supp.2d 50 8 (E.D.N.Y. 20 13) (teacher's com plaints to teacher’s union and OSHA about conditions of school gym were not citizen speech). Cf. Gibson, 773 F.3d at 671 (com plaints to “law enforcem ent officers at the outside agencies whom he had m et through his official duties” were not citizen speech). As will be explain ed below when discussing the OMEP com plaints, the subject m atter of the OSHA grievance (the safety and conditions of the teaching environm ent) is intim ately related to plaintiff’s work duties. Thus, plaintiff sets forth facts that suggest both citizen and em ployee speech: (1) that plaintiff spoke to an external agency outside the chain of com m and favors a finding of citizen speech, while (2) that the subject m atter of the expressions was closely linked to plaintiff’s work duties favors a finding of em ployee speech. The court cannot m ake inferences against plaintiff at this stage. See Cooper, 760 F.3d at 10 6 (citing Maloy, 744 F.3d at 252). Sim ilarly, the court will not weigh the discernible Garcetti factors now. Rem em bering that no single Garcetti factor, see n.7, supra, is by itself dispositive, is critical to the inquiry. Indeed, the com plaint’s allegations include enough for this court to find that plaintiff co u ld h ave spoken as a citizen, without testing the scales – though it is very likely he spoke as an Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 11 of 21 Page 11 Civ No. 16-2986 (PG) em ployee. See Ocasio Hernandez, 640 F.3d at 12-13 (citing Twom bly, 550 U.S. at 556) (the court m ay not “attem pt to forecast a plaintiff’s likelihood of success…”). Nam ely, plaintiff sets forth that he spoke outside of the chain of com m and to an external agency. As such, plaintiff plausibly pleads that he engaged in citizen speech when he filed his grievance with OSHA. Thus, defendant’s m otion to dism iss as it pertain s to plaintiff’s com plaints to OSHA is D EN IED . Whether plaintiff plausibly pleads he spoke as a citizen when he sent “persistent m essages and letters” to OMEP tenders a tighter query. Unlike OSHA, OMEP is not an external agen cy well outside plaintiff’s chain of com m and, but instead an internal office within the Departm ent of Education – for whom plaintiff worked. That fact lands plaintiff in deep water. Cf. Alvarez, 345 F. Supp. 3d at 332. See also Mercado-Berrios, 611 F.3d 18 at 27-28. The only other relevant fact set forth in the allegation is the subject m atter of the expressions, which does not lean towards plaintiff’s position. “Under the First Am endm ent, speech can be ‘pursuant to’ a public em ployee's official job duties even though it is not required by, or included in, the em ployee's job description, or in response to a request by the em ployer.” Weintraub v. Bd. of Educ. of City Sch. Dist. of City of New York, 593 F.3d 196, 20 3 (2d Cir. 20 10 ). See also Mercado-Berrios, 611 F.3d 18 at 26, n.8; Foley, 598 F.3d at 6; Phillips v. City of Dawsonville, 499 F.3d 1239, 1242 (11th Cir.20 0 7). Plaintiff alleges he com plained to OMEP about “the poor m aintenance and conservation of the School,” which the com plaint links to “unsafe and unsanitary conditions” at the school. Docket No. 3 at 5. Though com plaining to OMEP about the school’s “m aintenance” and “conservation” m ay have not necessarily been a part of plaintiff’s official work duties, the school’s physical condition is so inherently related to the perform ance of plaintiff’s duties as an academ ic director and educator that any expressions pertaining thereto would necessarily be m ade pursuant to plaintiff’s work duties. C.f. Weintraub, 593 F.3d at 20 2-0 3. 13 13 See also Mercado Berrios, 611 F.3d at 27 (citing Win der v. (citing Ren ken v. Gregory, 541 F.3d 769, 773 (7th Cir.20 0 8) (professor’s com plaint regarding educational grant was em ployee speech because the grant was “for the benefit of students” and “aided in the fulfillm ent of his Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 12 of 21 Civ No. 16-2986 (PG) Page 12 Erste, 566 F.3d 20 9, 215 (D.C.Cir.20 0 9)) (“com plaints like [plaintiff’s] m ight be unprotected, since they could be said to facilitate job perform ance…”); Alvarez, 345 F. Supp. 3d at 333-34; Harris, 230 F.Supp.3d at 10 2; Ross, 935 F.Supp.2d 50 8; Massaro v. The Dep't of Educ. of the City of New York, No. 0 8 CIV.10 678 LTS FM, 20 11 WL 220 7556, at *4 (S.D.N.Y. J une 3, 20 11), aff'd sub nom . Massaro v. New York City Dep't of Educ., 481 F. App'x 653 (2d Cir. 20 12) (“Classroom safety, the practical availability of proper teaching space and the teacher's ability to perform [their] duties in the space are …in dispensable prerequisites to effective teaching and classroom learning. Com m unications … [regarding] such m atters are, thus, part and parcel of a teacher's duties as a public em ployee and do not enjoy First Am endm ent protection.”). In short, the conditions of the teaching environm ent are intrinsic to any pedagogic endeavor. This court holds that ensuring that the teaching environm ent is safe and apt is an obvious core duty of a public em ployee charged with the vital task of educating youth. Thus, the subject m atter of the OMEP com plaints tips the balance towards em ployee rather than citizen speech, because it is “partand-parcel” of plaintiff’s work duties. 14 In the absence of any other pleaded facts, the court must dism iss plaintiff’s First Am endm en t claim as they pertain to the com plaints he filed with OMEP. The subject m atter of the com plaints, coupled with the fact that the com plaints were intra-agency com m unications, can lead the court to no other outcom e. No inferences can be m ade in favor of plaintiff - there are no pleaded facts from which to infer that he engaged in citizen speech. See Cooper, 760 F.3d at 10 6 (citing Maloy, 744 F.3d at 252). Thus, the court GRAN TS defendant’s m otion as to plaintiff’s claim s regarding his com plaints to OMEP. They are D ISMISSED W ITH OU T PREJU D ICE. teachin g responsibilities); Bram m er– Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 120 4 (10 th Cir.20 0 7) (speech regarding student behavior, curriculum , pedagogy, and classroom -related expenditures was m ade pursuant to teachers’ em ploym ent duties); Freitag v. Ayers, 468 F.3d 528, 546 (9th Cir.20 0 6); Battle v. Bd. of Regents, 468 F.3d 755, 761 (11th Cir.20 0 6)). 14 As the record develops, it is possible that the sam e subject m atter analysis could later be applied to som e of plaintiff’s other expressions, possibly with the sam e results. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 13 of 21 Civ No. 16-2986 (PG) Page 13 5. Com plaints Against Board Mem bers and Teachers Plaintiff pleads that “on Septem ber 26, 20 11, [he] proceeded to subm it to the Appointing Authority ([codefendant] Rivera-Sanchez) through the Office of the Legal Division of the Secretary of Education various issues regarding of [sic] regulatory violations of som e m em bers of the Board and teachers for breach of their responsibilities and duties that were again st the best interests of the school com m unity.” Docket No. 3 at 7. This allegation does not set forth citizen speech. Instead, plaintiff establishes that he was speaking up the chain of com m and, to the Secretary of Education. See Decotiis, 635 F.3d at 32; Gibson, 773 F.3d at 670 (“one of the factors that we have considered is whether the em ployee's com plaint was m ade within the chain of com m and or to an outside actor, such as a different governm ent agency or the m edia”); Bettencourt, 334 F. Supp. 3d at 485. See also Docket No. 3 at 7 (“plaintiff proceeded to subm it to [Rivera-Sanchez]”). Weighing the alleged subject m atter of the com plaints – the “breach of responsibilities and duties” plaintiff attributes to som e Board m em bers and teachers – does not save plaintiff’s bacon. Indeed, the subject m atter of the speech is not sufficiently unrelated to plaintiff’s job as to support that he spoke as a citizen. See Cruz, 8 78 F. Supp. 2d at 326. Plaintiff does not plead any other facts from which inferen ces in his favor could be m ade. See Cooper, 760 F.3d at 10 6 (citing Maloy, 744 F.3d at 252). Ergo, plaintiff failed to plausibly plead that he engaged in citizen speech when he m ade the com plaints against the board m em bers and teachers. As such, the court GRAN TS defendant’s m otion as to plaintiff’s claim s regardin g these com plaints. They are thus D ISMISSED W ITH OU T PREJU D ICE. ii. On the Applicability of Substantive Due Process Defendant does not challenge a substantive due process claim in his m otion to dism iss. See Docket No. 9 at 7-11. Still, plaintiff argues in favor of one in his opposition thereto. See Docket No. 21 at 24-27. Nevertheless, it is unclear whether plaintiff even raises such a claim to begin with. Indeed, to the extent that plaintiff sets forth a Fourteenth Am endm ent cause of action in the Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 14 of 21 Civ No. 16-2986 (PG) Page 14 com plaint, he pleads solely that “[the] process of sum m ary suspension violated plaintiff’s due process rights…” Docket No. 3 at 12. The focus on process urges the court down a road of procedural rather than substantive due process. See Mongeau v. City of Marlborough, 492 F.3d 14, 18 (1st Cir. 20 0 7) (quoting Am sden v. Moran, 90 4 F.2d 748, 754 (1st Cir.1990 ) (“a substantive due process inquiry focuses on ‘what’ the governm ent has done, as opposed to ‘how and when’ the governm ent did it”). The court need not focus on whether plaintiff, in fact, brings a substantive due process claim . Such a claim – assum ing, arguendo, one was brought – does not fare well here. “Substantive due process is an inappropriate avenue of relief when the governm ental conduct at issue is covered by a specific constitutional provision.” Pagan v. Calderon, 448 F.3d 16, 33– 34 (1st Cir. 20 0 6). 15 However, throughout his com plaint, plaintiff repeatedly argues that he was sum m arily suspended in retaliation for expressions and com plaints he m ade under First Am en dm ent protection. See Docket No. 3 at 7-8; 11 (allegations No. 20 , 22, 23 and 36 are particularly clear iterations of plaintiff’s contention). Plaintiff’s grievances therefore fall squarely under the purview of the First Am endm ent and cann ot proceed under the guise of a Fourteenth Am endm ent substantive due process claim . See id. (citing Ruiz– Casillas v. Cam acho– Morales, 415 F.3d 127, 134 (1st Cir.20 0 5); Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 46 (1st Cir. 1992)). The “application of this prophylactic rule depends only on whether a specific constitutional provision addresses the type of conduct at issue.” Id. (citing Albright, 510 U.S. at 273– 75). The success or failure of plaintiff’s First Am endm ent retaliation claim is im m aterial to the inapplicability of a substantive due process claim here. See id. 15 (citin g S. County Sand & Gravel Co. v. Town of S. Kingstown , 160 F.3d 834, 835 (1st Cir.1998) (“When a specific provision of the Constitution protects individuals against a particular kind of [m isconduct] by governm ent actors, individuals seekin g redress ... m ust assert their claim s under that particular constitutional rubric in stead of invokin g the m ore generalized notion of substantive due process.”); County of Sacram ento v. Lewis, 523 U.S. 8 33, 843 (1998); Graham v. Connor, 490 U.S. 386, 395 (1989)). Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 15 of 21 Civ No. 16-2986 (PG) Page 15 As such, any substantive due process claim plaintiff m ay raise holds no water in the instant case, and is accordingly D ISMISSED W ITH PREJU D ICE. iii. Concerning Procedural Due Process Plaintiff posits “[the] process of sum m ary suspension violated [his] due process rights…”. Docket No. 3 at 12. Defendant now m oves to dism iss plaintiff’s procedural due process claim . See Docket No. 9 at 7-11. He argues, am ong other things, that plaintiff was not entitled to due process because he was suspended with pay, and that all due process guarantees were nevertheless provided. See id. 16 The court agrees. To plead a procedural due process violation, plaintiff m ust first establish a protected liberty or property interest, 17 and, second, a deprivation of that interest without a constitutionally suitable process. See Gonzalez-Droz v. Gonzalez-Colon, 660 F.3d 1, 13 (1st Cir. 20 11) (quoting Aponte– Torres v. Univ. of P.R., 445 F.3d 50 , 56 (1st Cir.20 0 6)). Plaintiff fails on the first prong: em ployees do not have a protected property interest in their job functions. See Torres– Martinez v. P.R. Dep’t. of Corr., 48 5 F.3d 19, 24– 25 (1st Cir. 20 0 7). See also Rosado De Velez v. Zayas, 328 F.Supp.2d 20 2, 212 (D.P.R. 20 0 4) (holding that in Puerto Rico public em ployees have a protected property interest in their continued em ploym ent, but not in the functions they perform ). Indeed, public em ployees do not have a right to the procedural guarantees of due process when they are suspended from their jobs, but with pay. Collins v. Univ. of New Ham pshire, 664 F.3d 8 , 16– 17 (1st Cir. 20 11); Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 9-10 (1st Cir. 20 0 3); Chardon, 20 15 WL 4924369, at *6-7. 18 To be sure, when public em ployees are suspended without 16 Once again , plaintiff com pletely om its the controlling case law. See Docket No. 21 at 27-28. See also n. 5, supra. The applicable case law is not only well-established, plaintiff’s counsel are them selves fam iliar with it, as they have litigated this exact sam e issue before. See Delgado v. Chardon, No. CIV. 12-1450 MEL, 20 15 WL 4924369 (D.P.R. Aug. 18 , 20 15). 17 In Puerto Rico, “career” public em ployees, such as plaintiff, have a vested property right in their continued em ploym ent, and can not be deprived of that right without due process. See Borges– Colon v. De J esus– Flores, 483 F.3d 1, 8 (1st Cir. 20 0 6); Figueroa– Serrano v. Ram os– Alverio, 221 F.3d 1, 5 (1st Cir. 20 0 0 ). 18 “Still, it is conceivable that a very long or open-en ded paid suspension m ight function so m uch like a term ination that som e due process protection m ight attach.” Torres-Rosado, 335 F.3d at 10 n.8 (5-m onth suspension was not too long so as to im plicate due process concerns); Collins, 664 F.3d at 17. In Torres-Rosado and Collins, the First Circuit did not suggest what suspension len gth would call for a due process violation. In Chardon , the court was Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 16 of 21 Civ No. 16-2986 (PG) Page 16 pay, due process protections activate not in response to the suspension itself, but to the deprivation of salary. See id. Ergo, because plaintiff was suspended with pay, his procedural due process claim m ust fail. 19 Plaintiff also argues his due process rights were breached when he was transferred to an equivalent position in a different school. See Docket 21 at 28. This argum ent is nonsensical: there is no deprivation of a property interest in a lateral m ove. Cf. Torres– Martinez, 485 F.3d at 24– 25. 20 To wit, after careful review of the com plaint, the court cannot m ake out plaintiff even brings an intelligible procedural due process claim prem ised on his tran sfer to an equivalent role in a different school. As such, plaintiff cann ot establish a procedural due process claim upon which relief can be granted. 21 Therefore, defendant’s m otion to dism iss plaintiff’s procedural due process claim s is GRAN TED and those claim s are D ISMISSED W ITH PREJU D ICE. iv. About Tim e Civil rights actions brought under § 1983 do not have a fixed statute of lim itations. See RuizSulsona v. Univ. of Puerto Rico, 334 F.3d 157, 159 (1st Cir. 20 0 3). Instead, courts typically borrow the forum state’s statute of lim itations for personal injury actions. Id. In Puerto Rico, a one-year statute of lim itations attaches to such claim s. See P.R. Laws Ann. tit. 31 § 5298 . The “institution [of not swayed by a 32-m onth suspension. See 20 15 WL 4924369, at *6. Here, the court is not persuaded by a 10 -m onthand-19-day suspension . What m ore, the len gth of tim e “without due process” is m uch shorter than that, given that plaintiff was afforded an opportunity to be heard at som e point after he was duly notified of his paid suspension. 19 Plaintiff was notified of his suspension and afforded the opportunity to be heard. See Docket No. 3 at 7-8 , 910 . Such guarantees typically satisfy the Fourteenth Am endm ent. See Quiñon es v. Puerto Rico Elec. Power Auth., 199 F. Supp. 3d 474, 490 (D.P.R. 20 16) (no due process violation where em ployees sum m arily suspended with pay were given notice of the charges against them , as well as an opportun ity to be heard, and then subsequently reinstalled to their positions) 20 Som e transfers can m aterially change the conditions of a public worker’s em ploy. See Gu v. Boston Police Dep't, 312 F.3d 6, 14 (1st Cir. 20 0 2). Still, “[t]he clear trend of authority is to hold that a purely lateral transfer, that is, a transfer that does not in volve a dem otion in form or substance, cannot rise to the level of a m aterially adverse em ploym ent action.” Marrero v. Goya of P.R., Inc., 30 4 F.3d 7, 23 (1st Cir. 20 0 2) (quoting Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)). It would be an im possibly long stretch to hold that a lateral transfer such as plaintiff’s constitutes a deprivation of a protected property interest. Cf. Torres– Martinez, 48 5 F.3d at 24– 25. 21 To the extent that plaintiff argues that “no official notification was ever sent by certified m ail, as required,” Docket No. 3 at 10 , the court m ust point out that the Fourteenth Am endm ent m akes no such requirem ent. See Torres– Rosado, 335 F.3d at 10 (“the federal Due Process Clause does not incorporate the particular procedural structures enacted by the state or local govern m ents; these claim s should be pursued, if at all, under [state] law”); Lopez Quinonez v. Puerto Rico Nat. Guard, 488 F. Supp. 2d 112, 119 (D.P.R. 20 0 7). Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 17 of 21 Civ No. 16-2986 (PG) Page 17 the claim ] before the courts” tolls that one-year period. P.R. Laws Ann. tit. 31 § 530 3. While the statute of lim itations length stem s from state law, “[f]ederal law determ in es the date on which the claim accrued.” Rodríguez García v. Municipality of Caguas, 354 F. 3d 91, 96 (1st Cir. 20 0 4) (citations om itted). The one-year statute of lim itations “begins running one day after the date of accrual, which is the date plaintiff knew or had reason to know of the injury.” Ben itez– Pons v. Com m onwealth of P.R., 136 F.3d 54, 59 (1st Cir. 1998) (citations om itted). Defendant posits som e of plaintiff’s § 1983 claim s should be dism issed because they are tim e-barred. See Docket No. 9 at 11-13. Plaintiff argues that the violations were “continuous,” and thus tim ely. See Docket No. 21 at 28-30 . To evaluate the tim eliness of plaintiff’s § 198 3 claim s, the court m ust distinguish between four separate alleged events: (1) plaintiff’s suspension, see Docket No. 3 at 7, 9, (2) plaintiff’s transfer, see id. at 10 -11, (3) a string of false accusations and frivolous com plaints filed in state court to harass plaintiff, see id. at 6, and (4) a series of calls and personal visits “m eant” to intim idate or “pressure” plaintiff, see id. at 6-7. 1. Suspension and Transfer Plaintiff filed the above-captioned civil suit on Novem ber 16, 20 16. See Docket No. 1. His § 198 3 claim s m ust observe a one-year statute of lim itations. See Ruiz-Sulsona, 334 F.3d at 159. All claim s that accrued prior to Novem ber 16, 2015 – as is the case for all of plaintiff’s claim s -- would then presum ably be tim e barred. However, plaintiff tolled the statute of lim itations when he filed suit in state court on Septem ber 26, 20 12. See P.R. Laws Ann. tit. 31 § 530 3; Docket No. 21 at 28. Thus, to be tim ely, the claim s m ust have accrued a year earlier, on or after Septem ber 26, 20 11. Defendant allegedly notified plaintiff of his suspension on October 7, 20 11 and of his transfer on Septem ber 7, 20 12. See Docket No. 3 at 7, 11. Plaintiff’s § 1983 claim s as pertaining to those events are consequently tim ely – defen dant him self concedes that point in his m otion to dism iss. See Docket No. 9 at 13. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 18 of 21 Page 18 Civ No. 16-2986 (PG) 2. False Accusations and Frivolous Com plaints Plaintiff alleges that, due to the actions of defendant, he was on the receiving end of a string of false accusations and frivolous com plaints filed in state court. See Docket No. 3 at 6. However, plaintiff does not plead a tim e for when these accusations and com plaints allegedly took place. Because the cause of action under which plaintiff files suit – § 1983 – “has been created by a statute that extinguishes the right of action as well as the rem edy if the suit is not brought within a certain period,” a specific allegation of tim e is required in the pleadings. 5A CHARLES ALAN W RIGHT & ARTHUR R. M ILLER, F EDERAL P RACTICE AND PROCEDURE § 130 9 (3d ed. 20 0 4). However, dism issal is very rarely the prescribed m edicine for a failure to plead tim e. Instead, “if specific allegations of tim e and place are required or desirable but none are pleaded, courts will generally grant a m otion for a m ore definite statem ent and give a party a reasonable length of tim e to cure the defect rather than dism iss the com plaint.” Id. See also Fed. R. Civ. P. 12(e). Ordering a m ore definite statem ent here is well within the court’s powers. Indeed, when, as here, the court cannot reliably infer the tim e of the events from the pleadings as they stan d, “the court m ay act under Rule 12(b)(6) or Rule 12(e), whichever is appropriate, without regard to how the m otion is denom inated.” 5C CHARLES ALAN W RIGHT & ARTHUR R. M ILLER, F EDERAL P RACTICE AND PROCEDURE § 1376 (3d ed. 20 0 4). As such, the court orders plaintiff to provide a m ore definite statem ent in order to cure the defect. 22 3. Calls and Visits Plaintiff also claim s that, around May 20 10 , several unspecified individuals acting in con cert with defendant called and visited him to intim idate and “pressure” him (presum ably to stop speaking publicly). See Docket No. 3 at 6-7. These calls and visits took place well over one year before plaintiff filed suit in state court. Thus, a § 1983 claim based on these events would ordinarily 22 The court m ust stress that the order to provide a m ore definite statem ent will be lim ited in scope: plaintiff will only supplem ent the am ended com plaint to include tim e allegations for the purported incidents of false accusations and frivolous com plaints filed in state court. Plaintiff will have a period of thirty days, once the stay currently im posed on the case is lifted, to cure the defect. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 19 of 21 Civ No. 16-2986 (PG) Page 19 be tim e barred. Still, plaintiff argues that these claim s are not tim e-barred because they fall within the statute of lim itations under the continuing violation doctrine. See Docket No. 21 at 30 . Courts m ust take great care to distinguish between continuing violations and discrete acts when calculating statutes of lim itations in civil rights cases arising under § 198 3. See generally Moran Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st Cir. 20 0 8). Continuing violations “involve an interlinked succession of related events or a fullyintegrated course of conduct.” Mack v. Great Atlantic and Pac. Tea Co., 8 71 F.2d 179, 18 3 (1st Cir. 198 9). They “allo[w] an em ployee to seek dam ages for otherwise tim e-barred allegations if they are deem ed part of an on going series of discrim inatory acts and there is som e violation within the statute of lim itations period that anchors the earlier claim s.” Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139, 144 (1st Cir. 20 12) (citing O'Rourke v. City of Providence, 235 F.3d 713, 731 (1st Cir. 20 0 1); Cordero– Suarez v. Rodriguez, 689 F.3d 77, 83 (1st Cir. 20 12)). On the other hand, a discrete act refers to an individual incident significant enough to “constitut[e] a separate actionable unlawful em ploym ent practice…” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 10 1, 114 (20 0 2). Courts do not consider discrete acts a part of continuing violations. Instead, “[e]ach discrete discrim inatory act starts a new clock for filing charges alleging that act.” Id. at 113. Events such as term inations, suspensions, and transfers are, decidedly, discrete acts. See id. at 114. Plaintiff’s argum ent would indeed be availing if “there is som e violation within the statute of lim itations period that anchors the earlier claim s.” Loubriel, 694 F.3d at 144 (citing O'Rourke, 235 F.3d at 731: Cordero– Suarez, 689 F.3d at 8 3). However, the two events that the court has found to fall within the statute of lim itations period – the suspension and the transfer – cannot an chor the earlier claim s because they are discrete acts. See Morgan, 536 U.S. at 114. Notwithstanding, the court cannot yet rule on this issue. The intim idating calls and visits and the false accusations and frivolous lawsuits, all form s of harassm ent against plaintiff, “involve an interlinked succession of related events or a fully-integrated course of conduct.” Mack, 871 F.2d at 18 3. That is, each of these acts is one in a series of related harassm ent acts, all allegedly Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 20 of 21 Page 20 Civ No. 16-2986 (PG) perpetrated by or attributable to defendant. As such, they, am ongst them selves, constitute continuing violations. Nevertheless, because plaintiff has not m ade tim e allegations as to the purported false accusations and frivolous lawsuits, the court cannot, at this tim e, determ ine whether “there is som e violation within the statute of lim itations period that anchors the earlier claim s.” Loubriel, 694 F.3d at 144 (citing O'Rourke, 235 F.3d at 731: Cordero– Suarez, 68 9 F.3d at 83). Once plaintiff satisfies the order for a m ore definite statem ent, the court will be able to separate wheat from chaff. Plaintiff’s § 1983 claim s based on his suspension and subsequent transfer are tim ely. Defendant him self concedes the point in his m otion to dism iss. See Docket No. 9 at 13. But, the court cannot at this tim e rule on the tim eliness of plaintiff’s § 1983 claim s prem ised on the accusations, com plaints, calls and visits because plaintiff has not m ade tim e allegations as to when the accusations and com plaints took place. As such, this court will D EN Y defendant’s m otion to dism iss plaintiff’s § 1983 claim s at this juncture, and order plaintiff to cure the defect in his pleadings by incorporating the tim e allegations above specified. If so appropriate, defendants can later renew a challenge to the tim eliness of plaintiff’s § 1983 claim s. B. Pla in tiff’s State Law Claim s Plaintiff files suit under Puerto Rico Public Laws No. 115 of Decem ber 20 , 1991 and No. 426 of Novem ber 7, 20 0 0 . See Docket No. 3 at 12-13. Defendant m oves to dism iss plaintiff’s claim s under both those causes of action. 23 See Docket No. 9 at 13-16. However, plaintiff states in his response that he does not object to the dism issal of these claim s. See Docket No. 21 at 2, n.3. As such, they are D ISMISSED W ITH OU T PREJU D ICE. v. CON CLU SION For the foregoing reasons, defendant’s m otion to dism iss is GRAN TED IN PART. Plaintiff’s First Am endm ent claim s regarding the unprotected expressions he m ade at the Parents 23 Plaintiff also sues under Puerto Rico’s general tort statute, Article 180 2 of the Puerto Rico Civil Code. See Docket No. 3 at 12-13. Defendant does not m ove to dism iss that cause of action. Case 3:16-cv-02986-PG Document 32 Filed 03/22/19 Page 21 of 21 Civ No. 16-2986 (PG) Page 21 Assem bly, the e-m ails he sent, the com plain ts he filed with OMEP, and the com plaints he filed against certain board m em bers an d teachers are all D ISMISSED W ITH OU T PREJ U D ICE. Plaintiff’s Fourteenth Am endm ent due process claim s are D ISMISSED W ITH PREJ U D ICE. Plaintiff’s claim s under Puerto Rico Public Laws No. 115 of Decem ber 20 , 1991 and No. 426 of Novem ber 7, 20 0 0 are also D ISMISSED W ITH OU T PREJU D ICE, in accordan ce with plaintiff’s non-objection thereto. Defendant’s m otion to dism iss is D EN IED IN PART insofar as som e of plaintiff’s First Am endm ent retaliation claim s survive because he properly pleads he engaged in protected speech regarding the open letter he penned, the expressions he m ade to NotiCel, and the com plaints he filed with OSHA. Defendant’s contention that plaintiff’s § 1983 claim s are tim e-barred also fails. The court also ORDERS plaintiff to subm it A MORE D EFIN ITE STATEMEN T providing tim e allegations for the purported incidents of false accusations and frivolous com plaints filed in state court. IT IS SO ORD ERED . In San J uan, Puerto Rico, March 22, 20 19. S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PEREZ-GIMEN EZ SEN IOR U .S. D ISTRICT JU D GE
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