Reyes-Berrios v. Conte-Miller et al, No. 3:2010cv01408 - Document 52 (D.P.R. 2011)
Court Description: OPINION AND ORDER dismissing case as per Defendants' motion to dismiss for failure to state a claim upon which relief can be granted 31 . Signed by Judge Salvador E. Casellas on 3/10/11.(PR)
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Reyes-Berrios v. Conte-Miller et al Doc. 52 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 LYSETTE REYES-BERRIOS 3 Plaintiff, 4 v. 5 7 MARIA CONTE-MILLER, PERSONALLY AND AS DIRECTOR OF THE FORENSIC SCIENCES INSTITUTE, et al. 8 Defendants. 6 Civil No. 10-1408 (SEC) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 OPINION & ORDER Before the Court are the above-captioned defendants ( Defendants ) motion to dismiss (Docket No. 31) and plaintiff Lysette Reyes-Berrios opposition thereto (Docekt No. 36). After considering the motions and the applicable law, Defendants motion is GRANTED. Factual and Procedural Background Reyes-Berrios, a Forensic Pathology Technician at the Institute of Forensic Science of Puerto Rico ( IFS ), filed this suit under the First, Fifth and Fourteenth Amendments of the United States Constitution; the Americans with Disabilities Act ( ADA ); and the Commonwealth of Puerto Rico s Constitution and laws. Docket No. 41.1 Defendants are the Commonwealth of Puerto Rico, the IFS, and a group of IFS managerial employees (sued in both their official and individual capacities) with supervisory responsibilities over Reyes-Berrios. Id. In essence, Reyes-Berrios 26-page complaint alleges that Defendants failed to provide her with reasonable accommodations in connection with a depression produced by some of her job s responsibilities; that Defendants initiated a disciplinary process and threatened to fire Reyes-Berrios after she denounced her discontent with matters at the IFS in legislative, 24 25 1 26 All references to Reyes-Berrios complaint in this opinion relate to her Second Amended Complaint. Id. Dockets.Justia.com 1 Case No. 10-1408(SEC) 2 administrative, and state court proceedings; and that the administrative proceeding Reyes- 3 Berrios initiated to challenge Defendants actions was fraught with irregularities and due 4 process violations. Id. Defendants moved to dismiss Reyes-Berrios complaint, claiming 5 Eleventh Amendment immunity and arguing that her complaint is devoid of factual allegations 6 to support any valid cause of action. Docket No. 31. Reyes-Berrios demurred, arguing that her 7 complaint is legally sufficient to withstand dismissal. Docket No. 36. 2 8 Standard of Review 9 To survive a Rule 12(b)(6) motion to dismiss, Plaintiffs well-pleaded facts must 10 possess enough heft to show that [they are] entitled to relief. Clark v. Boscher, 514 F. 3d 107, 11 112 (1st Cir. 2008).2 In evaluating whether Plaintiffs are entitled to relief, the court must accept 12 as true all well-pleaded facts [and indulge] all reasonable inferences in the plaintiffs favor. 13 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The First Circuit has held that dismissal 14 for failure to state a claim is appropriate if the complaint fails to set forth factual allegations, 15 either direct or inferential, respecting each material element necessary to sustain recovery under 16 some actionable legal theory. Gagliardi v. Sullivan, 513 F. 3d 301, 305(1st Cir. 2008). Courts 17 may augment the facts in the complaint by reference to documents annexed to the complaint 18 or fairly incorporated into it, and matters susceptible to judicial notice. Id. at 305-306. 19 Nevertheless, in judging the sufficiency of a complaint, courts must differentiate between 20 well-pleaded facts, on the one hand, and bald assertions, unsupportable conclusions, 21 periphrastic circumlocution, and the like, on the other hand; the former must be credited, but 22 the latter can safely be ignored. LaChapelle v. Berkshire Life Ins., 142 F.3d 507, 508 (quoting 23 Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996)); Buck v. American Airlines, Inc., 476 F. 3d 24 25 26 2 FED . R. CIV . P. 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to allow the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). 1 Case No. 10-1408(SEC) 2 29, 33 (1st Cir. 2007); see also Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). Thus 3 Plaintiffs must rely in more than unsupported conclusions or interpretations of law, as these will 4 be rejected. Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (citing Gooley v. Mobil Oil 5 Corp., 851 F.2d 513, 515 (1st Cir. 1988)). 3 6 Therefore, even under the liberal pleading standards of Federal Rule of Civil Procedure 7 8, the Supreme Court has recently held that to survive a motion to dismiss, a complaint must 8 allege a plausible entitlement to relief. RodrÃguez-OrtÃz v. Margo Caribe, Inc., 490 F.3d 92 9 (1st Cir. 2007) (citing Twombly, 550 U.S. at 559). Although complaints do not need detailed 10 factual allegations, the plausibility standard is not akin to a probability requirement, but it 11 asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 12 U.S. at 556. 13 In Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), the Supreme Court 14 upheld Twombly and clarified that two underlying principles must guide a court s assessment 15 of the adequacy of pleadings when evaluating whether a complaint can survive a Rule 12(b)(6) 16 motion. See Iqbal, 129 S. Ct. at 1949-50. First, the court must identify any conclusory 17 allegations in the complaint as such allegations are not entitled to an assumption of truth. Id. 18 at 1949. Specifically, the court is not obligated to accept legal conclusions set forth as factual 19 allegations in the complaint. Moreover, threadbare recitals of the elements of a cause of action, 20 supported by mere conclusory statements, do not suffice. Id. (citing Twombly, 550 U.S. at 21 555). Second, a complaint survives only if it states a plausible claim for relief. Id. (citing 22 Twombly, 550 U.S. at 556). Thus, any nonconclusory factual allegations in the complaint, 23 accepted as true, must be sufficient to give the claim facial plausibility. Id. A claim has facial 24 plausibility when the pleaded facts allow the court to reasonably infer that the defendant is 25 liable for the specific misconduct alleged. Id. at 1949, 1952. Such inferences must amount to 26 more than a sheer possibility and be as plausible as any obvious alternative explanation. Id. at 1 Case No. 10-1408(SEC) 2 1949, 1951. Plausibility is a context-specific determination that requires the court to draw on 3 its judicial experience and common sense. Id. at 1950. 4 4 In sum, a plaintiff s obligation to provide the grounds of his entitle[ment] to relief 5 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause 6 of action will not do. Id. (citing Twombly, 550 U.S. at 555). [F]actual allegations must be 7 enough to raise a right to relief above the speculative level, on the assumption that all 8 allegations in the complaint are true. Parker v. Hurley, 514 F. 3d 87, 95 (1st Cir. 2008). 9 Applicable Law and Analysis 10 I. Eleventh Amendment Immunity 11 The Eleventh Amendment to the United States Constitution provides: 12 13 [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. 14 U.S. Const. Am. XI. Although the Eleventh Amendment literally seems to apply only to suits 15 against a State by citizens of another State, the Supreme Court has consistently extended the 16 scope of this Amendment to suits by citizens against their own state. See Board of Trustees of 17 the Univ. of Ala. v. Garrett, 531 U.S. 356, 362-63 (2001); see also Kimel v. Fla. Bd. of Regents, 18 528 U.S. 62, 72-73 (2000); Hans v. Louisiana, 134 U.S. 1, 15 (1890).The Commonwealth of 19 Puerto Rico enjoys the protection of the Eleventh Amendment. See e.g., Jusino-Mercado v. 20 Commonwealth of Puerto Rico, 214 F.3d 34, 37 (1st Cir. 2000). 21 The Eleventh Amendment protection primarily furthers two goals: the protection of a 22 state s treasury, and the protection of its dignitary interest against being haled into federal court. 23 Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr. 24 Corp., 322 F.3d 56, 61 (1st Cir. 2003) (citing Fed. Mar. Comm n v. S.C. State Ports Auth., 535 25 U.S. 743 (2002)). Accordingly, the Eleventh Amendment protects governmental 26 instrumentalities, which are an arm or alter ego of the State, see e.g., Ainsworth Aristocrat Int l Pty. Ltd. v. Tourism Co. of P.R., 818 F.2d. 1034, 1036 (1st Cir. 1987), as well as state 1 2 Case No. 10-1408(SEC) 5 officials in their official capacity. The rationale behind these protections is that a claim for 3 monetary relief against an arm of a state or a state official in his or her official capacity is an 4 action for the recovery of money from a state. Ford Motor v. Dept. of Treasury, 323 U.S. 459 5 (1945) (overruled on other grounds). 6 Considering the above, co-defendant the Commonwealth of Puerto Rico is entitled to 7 Eleventh Amendment immunity. For the same reasons, the IFS, as an arm of the 8 Commonwealth, and the IFS managerial employees sued in their official capacities are also 9 entitled to Eleventh Amendment immunity. Accordingly, Reyes-Berrios claims against the 10 Commonwealth of Puerto Rico, the IFS, and the IFS managerial employees sued in their official 11 capacities are DISMISSED with prejudice. 12 II. Claims under the Federal Constitution 13 The Court s analysis here begins with 42 U.S.C. § 1983, which is the statutory predicate 14 for vindicating federal rights elsewhere conferred. See Graham v. Connor, 490 U.S. 386, 393-94 15 (1989). To prove liability under § 1983, a plaintiff[] must show by a preponderance of the 16 evidence that (1) the challenged conduct was attributable to a person acting under color of state 17 law; and (2) the conduct deprived the plaintiff of rights secured by the Constitution or laws of 18 the United States. Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 151-52 (1st Cir. 2006). In any 19 event, under § 1983, government officials may only be held liable if the plaintiff can establish 20 that her constitutional injury resulted from the direct acts or omissions of the official, or from 21 indirect conduct that amounts to condonation or tacit authorization. Rodriguez-Garcia v. 22 Municipality of Caguas, 495 F.3d 1, 10 (1st Cir. 2007) (internal quotation marks omitted). The 23 plaintiff suit must therefore link each individual defendant to the alleged violation of federal 24 rights. Gonzalez-Piña v. Rodriguez, 407 F.3d 425, 432 (1st Cir. 2005). Each defendant responds 25 for his own acts or omissions in light of his duties; that is, there is no liability on the basis of 26 respondeat superior. Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91-92 (1st Cir. 1994); Rizzo v. Goode, 423 U.S. 362, 375-77 (1976). Furthermore, a defendant s conduct must be 1 Case No. 10-1408(SEC) 2 shown to be intentional, grossly negligent, or with reckless or callous indifference to the 3 plaintiff s constitutional rights. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st 4 Cir. 1989); Simmons v. Dickhaut, 804 F.2d 182, 185 (1st. Cir. 1986). 5 6 A. First Amendment/Retaliation 6 In this case, Reyes-Berrios complaint properly alleges that Defendants actions were 7 taken under color of state law, and Defendants do not dispute this. Reyes-Berrios complaint, 8 however, fails to satisfy the second prong of § 1983, as, even under the most favorable reading 9 possible, it fails to establish that Defendants actions impinged on her First Amendment rights. 10 It is well-settled that a state cannot condition public employment on a basis that 11 infringes the employee s constitutionally protected interest in freedom of expression. Connick 12 v. Myers, 461 U.S. 138, 142 (1983). The First Amendment therefore proscribes states from 13 retaliating against employees who exercise their freedom of speech. Rosado-Quiñonez v. 14 Toledo, 528 F.3d 1, 5-6 (1st Cir. 2008). To determine whether a plaintiff has a colorable First 15 Amendment claim for retaliation, a court in this circuit must follow a three-pronged analysis: 16 22 First, the court must determine whether [the plaintiff] made her statements as a citizen upon matters of public concern. If the speech involved matters not of public concern, but instead ... of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee s behavior. Second, the court must weigh the strength of the employee s and the public s First Amendment interests against the government s interest in the efficient performance of the workplace. Third, if the employee s and the public s First Amendment interests outweigh a legitimate governmental interest in curbing the employee s speech, [the plaintiff] must show that the protected expression was a substantial or motivating factor in an adverse employment action. 23 Tang v. State of R.I., Dept. of Elderly Affairs, 163 F.3d 7, 12 (1st Cir. 2005) (internal 24 quotations and citations omitted) (emphasis added). 17 18 19 20 21 25 26 In this case, Reyes-Berrios complaint fails to satisfy the first prong of the 1 Case No. 10-1408(SEC) 2 aforementioned analysis. Her First Amendment claim is premised in part on statements she 3 allegedly made during hearings at the Puerto Rico Legislative Assembly. Docket No. 41, ¶¶ 21- 4 22 and 78. According to her complaint, Reyes-Berrios participation in these hearings was 5 motivated by concerns with her health, and with her working conditions and the working 6 conditions of other forensic pathology assistants and technicians at the IFS.... Id. at ¶ 21. At 7 these hearings, Reyes-Berrios expressed her views, made claims, and requested remedies 8 regarding her working conditions, the working conditions of other workers at the IFS, and 9 regarding her requests for reasonable accommodation. Id. at ¶ 22. Reyes-Berrios First 10 Amendment claim is also premised on similar allegations made during administrative hearings 11 and state court proceedings initiated as part of her discontent with Defendants. Id. at ¶¶ 23 & 12 78. 7 13 These types of expressions, involving matters of personal rather than public interest, are 14 unprotected by the First Amendment. See Tang, 163 F.3d 12 (holding that complaints about 15 working conditions are not matters of public concern involving First Amendment protection); 16 Rosado-Quiñonez, 528 F.3d 5-6 (holding that labor harassment claims did not constitute matters 17 of public interest for First Amendment purposes); Mulero-Abreu v. Oquendo-Rivera, 729 18 F.Supp.2d 498, 516 (D.P.R. 2010) (denying First Amendment protection to letter and verbal 19 complaints regarding working conditions, as they were classic examples of speech concerning 20 internal working conditions affecting only the speaker and co-workers. ). Moreover, Reyes- 21 Berrios complaint fails to state how her appearance at the legislative hearings as well as the 22 other administrative and state court proceedings advanced the public interest or the internal 23 workings of the IFS. Her opposition to Defendants motion to dismiss is also silent on this 24 regard. For these reasons, Reyes-Berrios First Amendment/retaliation claim is DISMISSED 25 26 1 2 Case No. 10-1408(SEC) with prejudice. 8 3 B. Fourteenth Amendment and Due Process 3 4 The Fourteenth Amendment of the U.S. Constitution protects against deprivation of life, 5 liberty, or property without due process of law and guards against any encroachment on those 6 rights by federal or state authority. Kwong Hai Chew v. Colding, 344 U.S. 590, 596-597, n.5 7 (1953). These protections extend to the Commonwealth of Puerto Rico. Calero-Toledo v. 8 Pearson Yacht Leasing Co., 416 U.S. 663, 669, n. 5 (1974). The Fourteenth Amendment due 9 process guarantee has both procedural and substantive aspects. Amsden v. Moran, 904 F.2d 10 748, 753 (1st Cir. 1990). In this case, even though Reyes-Berrios complaint fails to explicitly 11 state so, her allegations appear to claim due process procedural violations; thus, the following 12 discussion is limited to that aspect of due process.4 13 In order to establish a procedural due process claim under § 1983, a plaintiff must 14 allege that he was deprived of a property interest by defendants acting under color of state law 15 and without the availability of a constitutionally adequate process. Maymi v. Puerto Rico Ports 16 Authority, 515 F.3d 20, 29 (1st Cir. 2008). Property interests are not created by the 17 18 19 20 21 22 23 24 25 26 3 The Court also notes that Reyes-Berrios complaint fails to establish facts regarding the third prong of the Tang analysis e.g., that the protected expression was a substantial or motivating factor in an adverse employment action. Although Reyes-Berrios complaint advances many conclusory allegations as to Defendants alleged discriminatory acts, it fails to show (with proper factual averments) that her expressions prompted Defendants conduct toward her. The Court, however, need not elaborate this analysis further given Reyes-Berrios failure to meet the first prong of Tang. 4 Reyes-Berrios complaint contains no allegations that could sustain a substantive due process claim. A claim is cognizable as a violation of substantive due process only when it is so extreme and egregious as to shock the contemporary conscience. McConkie v. Nichols, 446 F.3d 258, 260 (1st Cir. 2006); see also Bibiloni Del Valle v. Puerto Rico, 661 F.Supp.2d 155, 185 (D.P.R. 2009) ( The very nature of this constitutional protection has caused that substantive due process protection be used sparingly. ). There are no allegations in Reyes-Berrios complaint amounting to the extreme level of conduct required for a substantive due process claim to lie. 1 Case No. 10-1408(SEC) 2 Constitution; they are created and their dimensions are defined by existing rules or 3 understandings that stem from an independent source such as state law. Rosado De Velez v. 4 Zayas, 328 F. Supp. 2d 202, 211 (D.P.R. 2004) (citing Bd. of Regents of States Colleges v. 5 Roth, 408 U.S. 564, 577 (1972). 9 6 Under Puerto Rico law, employees classified as career or permanent have vested 7 property rights, and cannot be deprived of these rights without due process of law. Febus- 8 Rodriguez, 660 F.Supp.2d 178. At a minimum, career employees are entitled to notice and a 9 meaningful opportunity to respond prior to termination. Id.; see also Monfort-Rodriguez, 599 10 F. Supp. 2d at 168. Before termination, due process requires that [t]he tenured public employee 11 [receives] oral or written notice of the charges against him, an explanation of the employer s 12 evidence, and an opportunity to present his side of the story. Cleveland Bd. of Educ. v. 13 Loudermill, 470 U.S. 532, 546 (1985). Nevertheless, even when these procedures are deficient, 14 a plaintiff s due process procedural claim fails [i]f a state provides adequate postdeprivation 15 remedies either by statute or through the common-law tort remedies available in its courts.... 16 Cronin v. Town of Amesbury, 81 F.3d 257, 260 (1st Cir. 1996); see also Hudson v. Palmer, 468 17 U.S. 517, 533 (1984). In fact, [w]hen a deprivation of a property interest is occasioned by a 18 random and unauthorized conduct of state officials, the Supreme Court has repeatedly 19 emphasized that the due process inquiry is limited to the issue of the adequacy of post- 20 deprivation remedies provided by the state. Hadfield v. McDonough, 407 F.3d 11, 19-21 (1st 21 Cir. 2005).5 22 23 24 25 5 26 [A] government official has committed a random and unauthorized act when he or she misapplies state law to deny an individual the process due under a correct application of state law. Id. 1 Case No. 10-1408(SEC) 10 2 In this case, the IFS never fired Reyes-Berrios; she currently holds her regular position 3 of Forensic Pathology Technician with the IFS. Docket No. 41, ¶ 4. Therefore, even though she 4 appears unhappy and complains about being assigned to work mainly in simple autopsy cases 5 despite her experience and availability to work (Docket No. 41, ¶ 75), Reyes-Berrios cannot 6 validly claim a deprivation of a proprietary interest. See De Velez v. Zayas, 328 F. Supp. 2d 7 202, 212 (D.P.R. 2004) ( under Puerto Rico law, public employees have a property interest in 8 their continued employment, not in the functions they perform. ) (internal citations omitted). 9 Reyes-Berrios complaint mentions in passing that Defendants suspended her without 10 pay for 30 days in December 2009. Under some circumstances, courts have considered 11 suspensions without pay to be a deprivation of a proprietary interest, but the adequacy of post- 12 deprivation procedures remains as the dispositive inquiry in these cases. See e.g., Gilbert v. 13 Homar, 520 U.S. 924, 932 (1997). Here, Reyes-Berrios complaint fails to state whether she 14 contested the 30-day suspension or whether pre and post-deprivation procedures in connection 15 with her suspension were inadequate.6 Without these allegations, Reyes-Berrios complaint falls 16 far short of alleging a violation of due process procedural rights. For these reasons, Reyes- 17 Berrios due process claim is DISMISSED with prejudice. 18 C. Fifth Amendment 19 The Fifth Amendment provides that [n]o person shall... be deprived of life, liberty, or 20 property, without due process of law... U.S. Const. amend. V; see also Gerena v. Puerto Rico 21 Legal Services, Inc., 697 F. 2d 447, 449 (1st Cir. 1983). This amendment applies to actions of 22 the federal government, not those of private individuals, or of state, local or municipal 23 governments. Id. at 449; see also Martinez-Rivera v. Sanchez-Ramos, 498 F. 3d 3, 8 (1st Cir. 24 25 26 6 Reyes-Berrios complaint states that she initiated an administrative proceeding in response to Defendants notice of a possible termination (Docket No. 41, ¶¶ 64-74), but it is silent as to how she addressed her suspension. 1 Case No. 10-1408(SEC) 2 2007) (affirming dismissal of Plaintiffs claims under the Fifth Amendment because defendants 3 were state actors and not federal actors). None of Defendants in this case are federal actors; 4 accordingly, Reyes-Berrios claims pursuant to the Fifth Amendment are DISMISSED with 5 prejudice. 6 7 11 III. Claims under Federal Statutes A. ADA 8 The ADA prohibits employers to discriminate against an otherwise qualified individual 9 based on his or her disability. Calero-Cerezo v. United States Department of Justice, 355 F. 10 3d 6, 19 (1st Cir. 2004). That is, under the ADA an employer may not discriminate against a 11 qualified individual in regard to job application procedures, the hiring, advancement, or 12 discharge of employees, employee compensation, job training, and other terms, conditions, and 13 privileges of employment. Sullivan v. Neiman, 358 F. 3d 110, 114 (1 st Cir. 2004). The ADA 14 also imposes on employers an affirmative duty to offer reasonable accommodation to an 15 otherwise qualified disabled employee. Calero, 355 F. 3d 20. Accordingly, [a] determination 16 of who is the employer and who is the employee, for discrimination pruposes, is crucial when 17 determining personal liability under the ADA. Lopez-Mulero, 490 F.Supp.2d 214, 219 (D.P.R. 18 2007). In this case, since the Commonwealth through the IFS is Reyes-Berrios employer, the 19 ADA cannot apply to the IFS managerial employees sued in their individual capacities. See Id. 20 at 220. In fact, Reyes-Berrios motion in opposition to dismissal concedes as much, stating that 21 [a]s far as the A.D.A. is concerned the Plaintiff does acknowledge that there is no individual 22 liability against the individual personal Defendants under the statute. The party liable is the 23 employer. Docket No. 36, p. 11. For these reasons, Reyes-Berrios ADA claims are 24 DISMISSED with prejudice. 25 26 1 Case No. 10-1408(SEC) 12 2 IV. Claims under State Law 3 Having dismissed Reyes-Berrios federal law claims against Defendants, her state law 4 claims are DISMISSED without prejudice. See Newman v. Burgin, 930 F.2d 955, 963 (1st 5 Cir. 1991) (holding that [t]he power of a federal court to hear and to determine state-law 6 claims in non-diversity cases depends upon the presence of at least one substantial federal 7 claim in the lawsuit. ). 8 Conclusion 9 Based on the foregoing, Defendants motion to dismiss is GRANTED and the case is 10 DISMISSED with prejudice. 11 IT IS SO ORDERED. 12 In San Juan, Puerto Rico, this 10th of March, 2011. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 s/ Salvador E. Casellas SALVADOR E. CASELLAS U.S. Senior District Judge
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