Hernandez-Vazquez et al v. Ortiz-Martinez et al, No. 3:2009cv01743 - Document 22 (D.P.R. 2010)

Court Description: OPINION AND ORDER dismissing complaint 3 Complaint filed by Jose Hernandez-Vazquez Signed by Chief Mag. Judge Justo Arenas on 1/8/2010.(Arenas, Justo)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 JOSÃ HERNÃ NDEZ-VÃ ZQUEZ 5 6 Plaintiff 7 v. 8 GLORIA E. ORTIZ-MARTÃ NEZ, et al., 9 CIVIL 09-01743 (JA) Defendants 10 11 OPINION AND ORDER 12 13 Plaintiff, JosÃ© HernÃ¡ndez VÃ¡zquez, filed a pro-se complaint pursuant to 42 14 U.S.C. 1983, against the defendants, the Junta de Libertad Bajo Palabra ( Parole 15 Board ); Gloria E. Ortiz MartÃnez, Parole Board Chairwoman; Connie Caban- 16 Tristany, Socio Penal Technician for the Department of Corrections ( DOC ); and 17 18 Carlos Molina RodrÃguez, Secretary of the DOC. (Docket No. 3.) The defendants 19 move to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil 20 Procedure. (Docket No. 15.) For the reasons set forth below, the defendants 21 motion is hereby GRANTED. 22 23 24 I. FACTUAL AND PROCEDURAL BACKGROUND The following facts are derived from plaintiff s complaint filed on August 3, 25 2009. (Docket No. 3.) 26 allegations set forth in the complaint by plaintiff are true and shall also draw all 27 28 The court as it must, will assume that all material 1 CIVIL 09-01743 (JA) 2 2 3 reasonable inferences in his favor. New Jersey Carpenters Pension & Annuity 4 5 Funds v. Biogen IDEC Inc., 537 F.3d 35, 44 (1st Cir. 2008). 6 Plaintiff is an inmate in the penal custody of the Commonwealth of Puerto 7 Rico at the Southern Regional Institution in Ponce. Plaintiff claims that since he 8 served his minimum sentence, the Parole Board was supposed to hold a hearing 9 10 on August 28, 2008 to determine whether or not he could be granted parole. 11 However, the hearing did not take place because the DOC failed to submit certain 12 documents and information to the Parole Board. 13 On December 18, 2008, the Parole Board issued an interlocutory order 14 15 which provided that the DOC had to submit the information and the documents 16 that were not produced within 45 days so that the hearing could be conducted. 17 Plaintiff however claims that the DOC failed to comply with the order issued by the 18 Parole Board. 19 20 According to plaintiff the delays of the parole proceedings resulted in a 21 violation of the agreements or stipulations of the case of EfraÃn Montero-Torres v. 22 HernÃ¡ndez-ColÃ³n, Civil No. 75-0828 (PG). The Parole Board, plaintiff argues, was 23 supposed to conduct the hearing within 50 days but failed to do so. Plaintiff states 24 that as a result of the defendants negligent conduct his family and himself 25 26 27 28 suffered emotional damages in the amount of $150,000. 1 CIVIL 09-01743 (JA) 3 2 3 On October 1, 2009, the defendants filed a motion to dismiss plaintiff s 4 5 complaint. (Docket No. 15.) 6 plaintiff s complaint must be dismissed because he failed to exhaust available 7 administrative procedures. The defendants also argue that plaintiff s complaint 8 The defendants contend in their motion that must be dismissed because the Eleventh Amendment bars claims for the payment 9 10 of monetary damages against the Commonwealth of Puerto Rico. Id. at 2, ¶ 2. 11 On December 2, 2009, the defendants filed a motion requesting the court 12 to deem as unopposed their motion to dismiss and that plaintiff s complaint be 13 dismissed with prejudice. (Docket No. 17, at 2, ¶ 4.) On that same day, the court 14 15 issued an order dismissing the defendants motion for miscellaneous relief. 16 (Docket No. 18.) However, the court stated that the defendants motion to 17 dismiss would be considered as unopposed. Id. 18 II. STANDARD OF REVIEW 19 20 A. Rule 12 (b) (1) 21 Under Rule 12(b)(1), a defendant may move to dismiss an action against 22 him for lack of federal subject matter jurisdiction. Rivera v. State Ins. Fund 23 Corp., 410 F. Supp. 2d 57, 59 (D.P.R.2006) (citing Fed. R. Civ. P. 12(b)(1)). The 24 25 party asserting jurisdiction has the burden of demonstrating its existence. Id. 26 (citing Skwira v. United States, 344 F.3d 64, 71 (1st Cir.2003) (citing Murphy v. 27 United States, 45 F.3d 520, 522 (1st Cir.1995)). Moreover, [i]t is black-letter 28 1 CIVIL 09-01743 (JA) 4 2 3 law that a federal court has an obligation to inquire sua sponte into its own 4 5 subject matter jurisdiction. McCulloch v. Velez, 364 F.3d 1, 5 (1st Cir.2004), 6 quoted in Rosario v. United States, 538 F. Supp. 2d 480, 486 (D.P.R.2008). 7 8 Rule 12(b)(1) is a large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction, including ripeness, mootness, 9 10 the existence of a federal question, diversity, and sovereign immunity. Ivyport 11 Logistical Services, Inc. v Caribbean Airport Facilities, Inc., 502 F. Supp. 2d 227, 12 230 (D.P.R.2007) (quoting ValentÃn v. Hosp. Bella Vista, 254 F.3d 358, 362-63 13 (1st Cir.2001). A moving party may mount a sufficiency challenge, taking the 14 15 plaintiff's jurisdictionally-significant facts as true and requiring the court to 16 assess whether the plaintiff has propounded an adequate basis for subject-matter 17 jurisdiction. Rivera v. State Ins. Fund Corp., 410 F. Supp. 2d at 59 (D.P.R.2006) 18 (quoting ValentÃn v. Hosp. Bella Vista, 254 F.3d at 363). 19 20 Alternatively, when the jurisdictional facts are distinct from the case's 21 merits, a moving party can bring a factual challenge, in which case the court 22 addresses the merits of the jurisdictional claim by resolving the factual disputes 23 between the parties. Ivyport Logistical Services, Inc. v Caribbean Airport 24 25 26 27 28 Facilities, Inc., 502 F. Supp. 2d at 230 (D.P.R.2007) (quoting ValentÃn v. Hosp. Bella Vista, 254 F.3d at 363). 1 CIVIL 09-01743 (JA) 5 2 3 B. Rule 12 (b) (6) 4 5 Pursuant to Rule 12(b)(6) [of the Federal Rules of Civil Procedure], a 6 complaint should be dismissed when a plaintiff does not state a claim to relief that 7 is plausible on its face. ColÃ³n-Andino v. Toledo-Davila, 634 F. Supp. 2d 220, 229 8 (D.P.R.2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell 9 10 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face 11 when the complaint alleges enough facts to raise[] a right to relief above the 12 speculative level. Ocasio-HernÃ¡ndez v. Fortuno-Burset, 639 F. Supp. 2d 217, 221 13 (D.P.R.2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (citing 5 14 15 16 17 18 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). The [c]ourt will accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in plaintiffs favor. ColÃ³n-Andino v. 19 20 Toledo-Davila, 634 F. Supp. 2d at 229 (quoting Ashcroft v. Iqbal, 129 S.Ct. at 21 1949). However, where the well-pleaded facts do not permit the court to infer 22 more than the mere possibility of misconduct, the complaint has alleged-but it has 23 not show[n] - that the pleader is entitled to relief. Ocasio-HernÃ¡ndez v. Fortuno- 24 Burset, 639 F. Supp. 2d at 221 (quoting Ashcroft v. Iqbal, 129 S.Ct. at 1950 25 26 (quoting Fed.R.Civ.P. 8(a)(2)). 27 assertions [and] unsupportable conclusions when evaluating the complaint's 28 Thus, a [c]ourt need not credit . . . bald 1 CIVIL 09-01743 (JA) 6 2 3 allegations . . . nor accept as true a legal conclusion couched as a factual 4 5 allegation. ColÃ³n-Andino v. Toledo-Davila, 634 F. Supp. 2d at 229 (quoting 6 Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996); Bell Atlantic Corp. v. Twombly, 7 550 U.S. at 570 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). 8 In sum, when [reviewing] a motion to dismiss the court must follow two 9 10 [basic] principles: (1) legal conclusions masquerading as factual allegations are 11 not entitled to the presumption of truth; and (2) plausibility analysis is a context- 12 specific task that requires courts to use their judicial experience and common 13 sense. Ocasio-HernÃ¡ndez v. Fortuno-Burset, 639 F. Supp. 2d at 221(citing 14 15 Ashcroft v. Iqbal, 129 S.Ct. at 1949-50) (citing Bell Atl. Corp. v. Twombly, 550 16 U.S. at 555-556). When applying these principles, courts may first separate out 17 merely conclusory pleadings, and then focus upon the remaining well-pleaded 18 factual allegations to determine if they plausibly give rise to an entitlement to 19 relief. Ocasio-HernÃ¡ndez v. Fortuno-Burset, 639 F. Supp. 2d at 221 (citing 20 21 Ashcroft v. Iqbal, 129 S.Ct. at 1950). III. ANALYSIS 22 23 24 Given that plaintiff is proceeding pro-se, I construe his pleadings, however inartful, liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (following 25 26 27 28 Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). The policy behind affording pro se plaintiffs liberal 1 CIVIL 09-01743 (JA) 7 2 3 interpretation is that if they present sufficient facts, the court may intuit the 4 5 correct cause of action, even if it was imperfectly pled. Ahmed v. Rosenblatt, 118 6 F.3d 886, 890 (1st Cir. 1997); see Castro v. United States, 540 U.S. 375, 381 7 (2003) (noting that courts may construe pro-se pleadings so as to avoid 8 inappropriately stringent rules and unnecessary dismissals of claims). However, 9 10 11 12 13 plaintiff s pro-se status does not excuse him from complying with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d at 890. A. Failure to Exhaust The defendants move to dismiss under Rules 12(b)(1) and 12(b)(6) for 14 15 failure to exhaust administrative remedies through the prison s grievance 16 procedures as required by the Prison Litigation Reform Act ( PLRA ), 42 U.S.C. § 17 1997e(a). 18 19 The PLRA proscribes that [n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner confined in jail, prison, or 20 21 any other correctional facility until such administrative remedies are exhausted. 22 Torres RÃos v. Pereira Castillo, 545 F. Supp. 2d 204, 205 (D.P.R.2007) (citing 42 23 U.S.C. § 1997e(a); see Booth v. Churner, 532 U.S. 731, 739 (2001) ( The 24 available reme[dy] must be exhausted before a complaint under § 1983 may 25 26 27 28 be entertained. ) Exhaustion of remedies is not discretionary but rather mandatory. Woodford v. Ngo, 548 U.S. 81, 85 (2006) (citing Booth v. Churner, 1 CIVIL 09-01743 (JA) 8 2 3 532 U.S. at 739 (2001)). [A] prisoner must . . . exhaust administrative remedies 4 5 6 7 8 even where the relief sought-monetary damages-cannot be granted by the administrative process. Woodford v. Ngo, 548 U.S. at 85. [T]here is no futility exception to the PLRA exhaustion requirement. Knowles v. New Hampshire Dept. of Corrections Commissioner, 538 F. Supp. 2d 9 10 453, 457 (D.N.H.,2008)(quoting Medina-Claudio v. RodrÃguez-Mateo, 292 F.3d 31, 11 35 (1st Cir.2002)). In other words, even if the prison's administrative process 12 does not provide for the type of relief the inmate desires, the prisoner must 13 complete any prison administrative process capable of addressing the inmate's 14 15 complaint and providing some form of relief. Knowles v. New Hampshire Dept. 16 of Corrections Commissioner, 538 F. Supp. 2d at 457 (citing Booth v. Churner, 17 532 U.S. at 739). 18 remedies even where the relief sought-monetary damages-cannot be granted by 19 Therefore a prisoner must now exhaust administrative the administrative process. Knowles v. New Hampshire Dept. of Corrections 20 21 Commissioner, 538 F. Supp. 2d at 457 (quoting Woodford v. Ngo, 548 U.S. at 85) 22 (citing Booth v. Churner, 532 U.S. at 734). Failure to exhaust administrative 23 remedies prior to bringing suit, requires dismissal of plaintiff s claim without 24 prejudice. See Medina-Claudio v. RodrÃguez-Mateo, 292 F.3d at 36, cited in Rand 25 26 27 28 v. Simonds, 422 F. Supp. 2d 318, 325 (D.N.H.2006); Feliciano v. Servicios Correccionales, 79 F. Supp. 2d 31, 34 (D.P.R.2000). However, it is important to 1 CIVIL 09-01743 (JA) 9 2 3 point out that failure to exhaust is an affirmative defense [for the defendant to 4 5 raise and prove] under the PLRA, and [that] inmates are not required to specially 6 plead or demonstrate exhaustion in their complaints. Jones v. Bock, 549 U.S. 7 199, 216 (2007). This means that exhaustion of administrative remedies is a 8 mandatary requirement and not jurisdictional. Casanova v. Dubois, 289 F.3d 142, 9 10 147 (1st Cir. 2002). Therefore, plaintiff s claim cannot be dismissed under Rule 11 12(b)(1) when the defendant claims failure to exhaust administrative remedies. 12 Dismissal therefore is only warranted under Rule 12 (b)(6) when the complaint on 13 its face conclusively shows that the plaintiff could not have exhausted his 14 15 16 remedies. Jones v. Bock, 549 U.S. at 215; see Trans-Spec Truck Service, Inc. v Caterpillar, Inc., 524 F.3d 315, 320 (1st Cir. 2008). 17 Plaintiff in this case alleges that the defendants violated his constitutional 18 rights by delaying the parole proceedings. Plaintiff seeks monetary damages as 19 a result of the defendants conduct in handling the parole proceedings. Plaintiff s 20 21 request for monetary damages does not stem from an allegation of being subject 22 to unconstitutional prison conditions. Therefore, the defendants may not rely on 23 plaintiff s alleged failure to exhaust administrative remedies as an affirmative 24 defense. The exhaustion requirement under PLRA pertains only to against prison 25 26 27 28 conditions, 42 U.S.C. § 1997e(a), not to challenges to state parole procedures. See Wilkinson v. Dotson, 544 U.S. 74, 84 (2005)(citing cases relating to prison 1 CIVIL 09-01743 (JA) 10 2 3 conditions as a separate category of suits challenging administrative procedures 4 5 6 7 8 under § 1983, distinct from suits regarding state parole procedures). Therefore, plaintiff s complaint cannot be dismissed based on the defendants contention. B. Sovereign Immunity The defendants contend that the court must dismiss plaintiff s claim against 9 10 them in their official capacity because the Eleventh Amendment bars payment of 11 monetary damages against the Commonwealth of Puerto Rico. The Eleventh 12 Amendment bars suits from being brought in federal courts for monetary damages 13 against states, unless the state being sued waives its immunity or consents to 14 15 being sued. Cruz v. Puerto Rico, 558 F. Supp. 2d 165, 173-175 (D.P.R.2007). 16 The Eleventh Amendment has . . . been interpreted to bar suits for monetary 17 relief against the agencies or instrumentalities of a state and against its officers 18 in their official capacities. Id. (citing Kentucky v. Graham, 473 U.S. 159, 169 19 (1985), quoted in Culebras Enterprises Corp. v. Rivera RÃos, 813 F.2d 506, 516 20 21 (1st Cir.1987)). In other words, Eleventh Amendment immunity does not solely 22 protect the State. Since a State only exists through its instrumentalities, Eleventh 23 Amendment immunity also extends to arms or alter egos of the State as well as 24 to state employees exercising their official duties. Cruz v. Puerto Rico, 558 F. 25 26 27 28 Supp. 2d at 173-175. (citing Ainsworth Aristocrat Int l Pty. Ltd. v. Tourism Co. of Puerto Rico, 818 F.2d 1034, 1036 (1st Cir. 1987) (citations omitted)). [A] suit 1 CIVIL 09-01743 (JA) 11 2 3 against a state official in his or her official capacity is not a suit against the official 4 5 rather is a suit against the official s office. As such, it is no different from a suit 6 against the State itself. Will v. Mich. Dep t of State Police, 491 U.S. 58, 71 7 (1989); Cosme-PÃ©rez v. Mun. of Juana Diaz, 585 F. Supp. 2d 229, 236 8 (D.P.R.2008). 9 10 [T]he First Circuit consistently has held that Puerto Rico is considered a 11 State for Eleventh Amendment purposes, and therefore Eleventh Amendment 12 applies with full force to the Commonwealth of Puerto Rico. Cruz v. Puerto Rico, 13 558 F. Supp. 2d at 173 -175. (citations omitted). Therefore, since Puerto Rico is 14 15 afforded the same rights as a state and has not waived its claim to Eleventh 16 Amendment Immunity, any private suit against the Commonwealth of Puerto Rico 17 is barred. See e.g., Jusino-Mercado v. Commonwealth of P.R., 214 F.3d 34, 37 18 (1st Cir. 2000); Ezratty v. Commonwealth of P.R., 648 F.2d 770, 776 n.7 (1st Cir. 19 1981) (explicitly stating that Eleventh Amendment immunity applies to Puerto 20 21 Rico); Orria-Medina v. Metropolitan Bus Authority, 565 F. Supp. 2d 285, 310 22 (D.P.R.2007). Consequently, [t]he eleventh amendment bars the recovery of 23 damages in a federal court against the Commonwealth of Puerto Rico, see e.g. 24 RamÃrez v. Puerto Rico Fire Service, 715 F.2d 694, 697 (1st Cir. 1983), and by the 25 26 27 28 same token, it bars the recovery of damages in official capacity suits brought against Puerto Rico officials where recovery will come from public fisc. Culebras 1 CIVIL 09-01743 (JA) 12 2 3 Enter. Corp. v. Rivera RÃos, 813 F.2d at 516 (citing Kentucky v. Graham, 473 U.S. 4 5 at 165-166 (1985)). The Parole Board as well as the Department of Corrections 6 function as arms of the Commonwealth of Puerto Rico and any judgment against 7 the defendants in their official capacity would effectively be a judgment against 8 the Commonwealth of Puerto Rico. See MartÃnez-Machicote v. Ramos-RodrÃguez, 9 10 553 F. Supp. 2d 45, 51 (D.P.R.2007); Padilla CintrÃ³n v. Rossello GonzÃ¡lez, 247 11 F. Supp. 2d 48, 57 (D.P.R.2003); Jusino Mercado v. Com. of Puerto Rico, 101 F. 12 Supp. 2d at 59 (D.P.R.1999). The court therefore finds that the defendants are 13 protected by the Eleventh Amendment. As such, plaintiff s claim against the 14 15 16 defendants in their official capacity is dismissed with prejudice. IV. CONCLUSION 17 In view of the above, I find that plaintiff has failed to state a claim upon 18 which relief can be granted. Thus, the defendants motion to dismiss is hereby 19 GRANTED. (Docket No. 15.) Accordingly, plaintiff s claim for monetary damages 20 21 against the defendants in their official capacities is DISMISSED WITH PREJUDICE. 22 In view of the above, the Clerk is directed to enter judgment accordingly. 23 24 At San Juan, Puerto Rico, this 8th day of January, 2010. 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge

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