Pacheco Pacheco v. Toledo et al, No. 3:2009cv02121 - Document 51 (D.P.R. 2011)

Court Description: OPINION AND ORDER granting in part and denying in part 39 Motion to Dismiss; finding as moot 22 Motion to Dismiss. Signed by Judge Jay A Garcia-Gregory on 1/31/2011. (LL)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO DIANA PACHECO-PACHECO, et al., Plaintiff(s) CIVIL NO. 09-2121 (JAG) v. SUPERINTENDENT PEDRO TOLEDO, et al., Defendant(s) OPINION AND ORDER GARCIA-GREGORY, D.J. Before Plaintiffs the § Court 1983 is Defendants Complaint for Motion civil to rights Dismiss violations. (Docket No. 39). For the reasons set forth, the Court GRANTS in part and DENIES in part Defendant s motion. FACTUAL AND PROCEDURAL BACKGROUND On November 4, 2008, several citizens were gathered near the neighbourhood of Colinas, in the Municipality of Yauco, celebrating the New Progressive Party s victory in the recent elections. In response to disturbance calls from neighbors in the area, several officers of the Puerto Rico Police (hereinafter PRP ) arrived at the scene to attempt to quell the loud and jubilant mass. Among the people celebrating in the area near Colinas Irizarry ). was José Luis Irizarry Pérez (hereinafter 2 Defendant Irizarry, Officer assaulted à ngel him L. with his Torres night Pérez stick approached and beat him repeatedly. Some of his fellow officers joined in the carnage, others stood by and watched. These officers are also Defendants in this case. Irizarry sustained several blows to his head, face and thorax. He was pronounced dead on arrival at the Metropolitan Hospital in Yauco. The Plaintiffs in this case are Diana Pacheco-Pacheco (hereinafter Pacheco ), D.P. and J.D.. Pacheco was Irizarry s girlfriend at the time and the mother of his two children, D.P. and J.D. At the time of his death, Irizarry had not acknowledged being the father D.P., and J.D. was still within Pacheco s womb. Plaintiff violations to Pacheco claims Irizarry s civil damages rights suffered and her for own several emotional damages under Puerto Rico tort law. Plaintiff s D.P. and J.D. claim their father s cause violations, which they of action for civil rights inherited upon his death, as well as their own tort damages under Puerto Rico law. D.P. and J.D., both underage are being represented by their mother in this action. STANDARD OF REVIEW Motion to Dismiss Standard of Review 3 Pursuant move to to Fed.R.Civ.P. dismiss an Rule action 12(b)(1), for lack a of defendant subject may matter jurisdiction. As courts of limited jurisdiction, federal courts have the duty of narrowly construing jurisdictional grants. See e.g., Alicea-Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.P.R. 1998). Since federal courts have limited jurisdiction, the party asserting jurisdiction has the burden of demonstrating the existence of federal jurisdiction. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995); Diaz Serrano v. Caribbean Records Inc., 270 F.Supp.2d 217 (D.P.R. 2003). whether to dismiss a complaint for lack When of deciding subject matter jurisdiction, the Court may consider whatever evidence has been submitted, such as . . . depositions and exhibits. See Aversa v. United federal States, 99 jurisdiction F.3d is 1200, premised 1210 on (1st the Cir. 1996). diversity When statute, courts must determine whether complete diversity exists among all plaintiffs and all defendants. Casas Office Machines v. Mita Copystar America, Inc., 42 F.3d 668, 673 (1st Cir. 1994). Motions brought under Rule 12(b)(1) are subject to the same standard of review as Rule 12(b)(6) motions. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994); Torres Maysonet v. Drillex, S.E., 229 F.Supp.2d 105, 107 (D.P.R. 2002). Under Rule 12 (b)(6), dismissal is proper only if it clearly appears, according to the facts alleged, that the plaintiff 4 cannot recover on any 221 Hernandez-Arencibia, viable F.3d theory. 45, 48 Gonzalez-Morales (1st Cir. v. 2000)(quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990)). Under Rule 12(b)(1) dismissal would be proper if the facts alleged reveal a jurisdictional defect not otherwise remediable. DISCUSSION Defendants sole argument for dismissal is that Plaintiffs lack standing. Regarding Plaintiff that she no party has third Pacheco, standing to Defendants bring suit argue for violations to Irizarry s rights. Regarding Plaintiffs D.P. and J. D., Defendants argue that they have no standing because their filial relationship to Irizarry has not been established. [T]he alleged standing such controversy as a question personal to warrant is stake his whether in the the invocation plaintiff outcome of of has the federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf. Warth v. Seldin, 422 U.S. 490, 498-99 (1975), (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). In order to establish standing, a plaintiff must show that (1) he or she personally has suffered some actual or threatened injury as a result of the challenged conduct; (2) the injury can be fairly traced to that conduct; and (3) the injury likely will be redressed by a favorable decision from the court. Mangual v. 5 Rotger-Sabat, 317 F.3d 45, 56 (1st Cir. 2003); N.H. Right to Life v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996). Regarding actions under 42 U.S.C. § 1983 specifically, this Court has held that to maintain an action under § 1983 a plaintiff can only allege that his or her own personal constitutional rights have been violated. Carmona Pacheco v. Betancourt y Lebron, 820 F. Supp. 45, 46 (D.P.R. 1993). Plaintiff Pacheco has no standing under § 1983 to sue for violations to Irizarry s constitutional rights. She does not allege that her own personal civil rights have been violated. She only alleges violations to Irizarry s rights. Pacheco may have suffered dearly, but as far as her complaint shows, her constitutional rights seem to have gone unscathed. That is not to say that she has no cause of action for her own emotional damages. She may have a claim under Article 1802 of the Civil Code of Puerto Rico.1 Plaintiffs D.P. and J.D. have standing to sue on their father s behalf. D.P. and J.D. have inherited Irizarry s cause of action under § 1983. Cuebas v. Dávila, 618 F. Supp. 2d 124, 129 (D.P.R. 2009); Gotay Sánchez v. Pereira, 343 F. Supp. 2d 65, 70 (D.P.R. 2004); Rivera v. Medina, 963 F. Supp. 78, 84 (D.P.R. 1997). The issue of their filial relationship to Irizarry may certainly 1 be important, 31 L.P.R.A. § 5141 if it can be disputed at all. 6 Nonetheless, the Court will not conduct a trial on the issue of paternity through Rule 12 motion practice. Furthermore, the Court notes that in their Opposition to Defendant s Motion to Dismiss, Plaintiffs submitted a judgment from the Puerto Rico Court of First Instance wherein the issue of paternity was conclusively determined. (Docket No. 40). Upon considering a DNA paternity test in Puerto Rico Civil Case No. JFI-2009-0025, Judge Riefkohl found Irizarry to be the father of D.P. and J.D. and ordered appropriate that the government minors be registered agencies. That as such judgment with the alone is sufficient for this Court to hold likewise, that Irizarry is the children s father and that they have standing to bring forth this claim. CONCLUSION The Court holds that Plaintiff Pacheco has no standing to sue for violations to Irizarry s civil rights. Therefore, her § 1983 claim is hereby dismissed. Plaintiff Pacheco does have standing to sue in tort for her own emotional damages under Article 1802 of the Puerto Rico Civil Code. Jurisdiction over Plaintiff Pacheco s state law claim is proper under supplemental jurisdiction. 28 U.S.C. § 1367(a). The Court also holds that Plaintiffs D.P. and J.D. have standing to bring their father s § 1983 complaint for civil rights violations. Finally, D.P. and J.D. s cause of action 7 under Puerto Rico tort law is also proper under supplemental jurisdiction. 28 U.S.C. § 1367. For the reasons stated above, the Court hereby GRANTS in part and DENIES in part Defendant s Motion to Dismiss. IT IS SO ORDERED. In San Juan, Puerto Rico, this 31st day of January, 2011. S/Jay A. Garcia-Gregory JAY A. GARCIA-GREGORY United States District Judge

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