Fernandez-Sierra et al v. Municipality of Vega Baja et al, No. 3:2011cv01172 - Document 50 (D.P.R. 2011)

Court Description: OPINION and ORDER: Denying 21 Motion to Dismiss; Denying 24 Motion to Dismiss. Signed by Judge Gustavo A. Gelpi on 11/4/2011. (TC)

Download PDF

1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO 3 4 5 6 7 ALBERT FERNANDEZ-SIERRA, et al., Plaintiffs, v. Civil No. 11-1172 (GAG) MUNICIPALITY OF VEGA BAJA, et al., 8 9 Defendants. 10 11 OPINION AND ORDER 12 Plaintiffs Edgardo Santiago-Canales ( Edgardo ), Bengamin Burgos-Vazquez ( Burgos13 Vazquez ), Damaris Henriquez ( Henriquez ), Alberto Fernandez-Sierra ( Fernandez-Sierra ), 14 Nydia Otero-Boscana ( Otero-Boscana ), Eluid Martinez-Camacho ( Martinez-Camacho ), Jesse 15 Rodriguez-Santos ( Rodriguez-Santos ), Yazira Oliveras-Rodriguez ( Oliveras-Rodriguez ), Javier 16 Santiago-Canales ( Javier ), Hector Oquendo-Pantoja ( Oquendo-Pantoja ), Damaris Melendez17 Lopez ( Melendez-Lopez ), Efrain Colon-Bracero ( Colon-Bracero ) (collectively Plaintiffs ) 18 brought this action seeking legal and equitable remedies against The Municipality of Vega Baja 19 ( Vega Baja ), Edgar Santana ( Santana ), Elizardi Rivera ( Rivera ), Jomir Davila-Rosario 20 ( Davila-Rosario ) and Raphael Rodriguez-Jimenez ( Rodriguez-Jimenez ) (collectively 21 Defendants ). The essence of Plaintiffs claims is that Defendants retaliated against them for 22 presenting a letter to the Municipal Legislature in opposition to the appointment of Rivera-Diaz as 23 Police Commissioner ( Commissioner ). (See Docket No. 1 at ¶ 29.) Presently before the court 24 are two motions to dismiss, one filed on behalf of Rodriguez-Jimenez (Docket No. 21) and one filed 25 on behalf of Vega Baja and its officers (Docket No. 24). The motions raise the defenses of failure 26 to state a claim upon which relief can be granted, qualified immunity and statute of limitations. (See 27 Docket No. 1 at 5, 16; Docket No. 24 at ¶ 6.) After reviewing these submissions and the pertinent 28 1 Civil No. 11-1172 (GAG) 2 law, the court DENIES Defendants motions to dismiss. 2 3 I. 4 The general rules of pleading require a short and plain statement of the claim showing that 5 the pleader is entitled to relief. Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st 6 Cir. 2009) (citations omitted) (internal quotation marks omitted). This short and plain statement 7 need only give the defendant fair notice of what the . . . claim is and the grounds upon which it 8 rests. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Standard of Review 9 Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to 10 state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). To survive a Rule 11 12(b)(6) motion, a complaint must contain sufficient factual matter "to state a claim to relief that is 12 plausible on its face." Twombly, 550 U.S. at 570. The court must decide whether the complaint 13 alleges enough facts to "raise a right to relief above the speculative level." Id. at 555. In so doing, 14 the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's 15 favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008). However, "the tenet that a court must 16 accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." 17 Ashcroft v. Iqbal, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009). "Threadbare recitals of the elements 18 of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 19 550 U.S. at 555). "[W]here the well-pleaded facts do not permit the court to infer more than the 20 mere possibility of misconduct, the complaint has alleged-but it has not show[n]' - that the pleader 21 is entitled to relief.'" Iqbal, 129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)). 22 II. 23 Plaintiffs were employed as police officers for Vega Baja at all relevant times. (See Docket 24 No. 1 at ¶ 2-12.) Santana, the mayor of Vega Baja, nominated Rivera-Diaz to be Commissioner of 25 the Vega Baja Police Department. (See Docket No. 1 at ¶ 22.) In January 2008, Santiago-Canales 26 authored a letter opposing Rivera-Sierra s appointment. (See Docket No. 1 at ¶ 71.) The Municipal 27 Legislature held confirmation hearings for Rivera-Diaz on April 10, 2008. (See Docket No. 1 at ¶ 28 23.) At this hearing, Plaintiffs voiced their opposition to Rivera-Diaz being appointed to the Factual and Procedural Background 1 Civil No. 11-1172 (GAG) 2 position of Police Commissioner because he lacked specific prerequisites for the job. (See Docket 3 No. 1 at ¶ 24-25.) All Plaintiffs signed a letter ( Opposition Letter ) stating the reasons for their 4 opposition, and the Opposition Letter was read aloud during this hearing. (See Docket No. 1 at ¶ 5 23.) Plaintiffs opposition to Rivera-Diaz was memorialized in the minutes of the legislative 6 session, and Santana and Rivera-Diaz both had knowledge of Plaintiffs opposition to this 7 nomination. (See Docket No. 1 at ¶ 24-26.) Rivera-Diaz was confirmed as the Commissioner on 8 April 22, 2009. (See Docket No. 21 at 4.) Plaintiffs claim that immediately after the confirmation, 9 Santana and Rivera-Diaz began retaliating against and harassing Plaintiffs through their work 10 3 assignments. (See Docket Nos. 29-30.) 11 Plaintiffs plead sufficient facts to demonstrate they were subjected to arbitrary work 12 assignments requiring them to watch, abandoned and other public buildings and facilities in remote 13 and often in high crime areas without adequate support, safety or resources. (See Docket No. 1 at 14 ¶ 31.) These assignments are considered part of the general duties of a municipal police officer, but 15 usually carried out by the Municipal Guardian Corps. (See Docket No. 1 at ¶ 32.) Plaintiffs argue 16 these assignments were given to them specifically to annoy, distress and cause emotional harm. 17 (See Docket No. 1 at ¶ 31-33.) The areas are known as dangerous and insecure areas of Vega Baja, 18 and some do not have any restrooms or shelter. (See Docket No. 1 at 35, 37.) Additionally, 19 Plaintiffs were assigned to these shifts at night, without patrol cars, without backup and without 20 firearms. (See Docket No. 1 at ¶ 37.) Administratively, Plaintiffs were denied requests for vacation 21 licenses, scrutinized for sick leave, denied use of official vehicles and were forced to change their 22 work schedules. (See Docket No. 1 at ¶ 42.) 23 Plaintiffs filed the instant complaint against Defendants on February 15, 2011. (Docket No. 24 1). On September 9, 2011 Rodriguez-Jimenez filed a motion to dismiss arguing the defenses of 25 qualified immunity and statute of limitations. (See Docket No. 21 at 5, 15.) The other Defendants 26 filed a motion to dismiss due to failure to state a claim upon which relief can be granted, qualified 27 immunity and statute of limitations. (See Docket No. 24 at ¶¶ 22, 28, & 31.) 28 1 2 3 Civil No. 11-1172 (GAG) III. 4 Discussion A. Failure to State a Claim Upon Which Relief Can Be Granted 4 In order for Plaintiffs to establish a claim of retaliation for exercising their free speech rights, 5 Plaintiffs must demonstrate they meet a three part test. See Rosado-Quinones v. Toledo, 528 F.3d 6 1, 5 (1st Cir. 2008). Plaintiffs must show the speech (1) involved a matter of public concern; (2) 7 their First Amendment rights outweigh the interest of the government to function efficiently; and 8 (3) the protected speech substantially motivated the adverse action by Defendants. See id. Speech 9 is considered a matter of public concern depending on the content, form and context of the speech. 10 Id. If a public employee is speaking as an employee, rather than as a private citizen, the employee 11 is not afforded protections under the First Amendment. See id. at 5-6. Factors that determine 12 whether the speech was made as part of employment include the wearing of an official uniform, the 13 location of the speech and the context of the speech. See Decotiis v. Whittemeore, 635 F.3d 22, 31 14 (1st Cir. 2011). 15 In this case, Plaintiffs are afforded protection under the First Amendment because Plaintiffs 16 have sufficiently pled facts to meet the above test. First, the matter was a matter of public concern 17 as demonstrated by the public confirmation hearings regarding the appointment of Rivera-Diaz. 18 (See Docket No. 1 at ¶ 23.) Plaintiffs speech is protected because Plaintiffs read the Opposition 19 Letter at a public confirmation hearing and at a time when members of the public were allowed to 20 state their views on the nomination of Rivas-Diaz. Second, the ability of officers to inform the 21 public that the nominee for Commissioner was unqualified for the position outweighs the interest 22 of the government to function efficiently. Third, Plaintiffs plead that only those who opposed 23 Rivera-Diaz s appointment were subjected to harassment. (See Docket No. 1 at ¶ 43.) Plaintiffs 24 allege sufficient facts to demonstrate a plausible claim upon which relief can be granted. Therefore 25 Defendants motion to dismiss for this reason is DENIED. 26 27 28 B. Qualified Immunity Defendants next argue that even if a constitutional violation has been demonstrated, 1 Civil No. 11-1172 (GAG) 2 Defendants are protected by qualified immunity because the right was not clearly established at the 3 time, or alternatively, that an objectively reasonable official would not have believed these actions 4 violated that right. (See Docket No. 24 at ¶ 24-26; Docket No. 21 at 11-12.) Defendants are entitled 5 to qualified immunity if Plaintiffs cannot articulate a violation of a constitutional right or if the 6 violation was not clearly established at the time the violation occurred. See Pearson v. Callahan, 7 555 U.S. 223, 231 (2009); Decotiis, 635 F.3d at 36. 5 8 There is no question that Plaintiffs claims have been considered actionable violations of the 9 First Amendment for quite some time. Government officials cannot retaliate against public 10 employees for speaking out against the government. See Crawford-El v. Britton, 523 U.S. 574 11 (1998); Hartman v. Moore, 547 U.S. 250, 256 (2006). Simply put, official reprisal for protected 12 speech, offends the Constitution [because] it threatens to inhibit exercise of the protected right. 13 Hartman, 547 U.S. at 256 (citing Crawford-El, 523 U.S. at 588). Additionally, this violation was 14 clearly established prior to the events of 2009 through 2011. A reasonable official could not believe 15 the singling out of Plaintiffs for harassment, excess scrutiny and undesirable work assignments 16 because they spoke against the nomination of the Rivera-Diaz was constitutional. Therefore, 17 Defendants motion to dismiss due to qualified immunity protections is DENIED. 18 C. Statute of Limitations 19 Defendants next argue some of the Plaintiffs claims are untimely because they occurred 20 beyond the one year statute of limitations followed in Puerto Rico. (See Docket Nos. 25 at 16 & 24 21 at ¶¶ 29-31.) Section 1983 does not contain a limitations period and must borrow the forum state s 22 statute of limitations period. See Santana-Castro v. Toledo-Davila, 579 F.3d 109, 114 (1st Cir. 23 2009). The limitations period in Puerto Rico is one year. See id.; 31 P.R.L.A. § 5298(2). While 24 the statute of limitations is dictated by state law, the date of accrual is a question of federal law. See 25 Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir. 1992). Typically, those events 26 occurring before February 15, 2010 would be time barred because Plaintiffs filed suit on February 27 15, 2011. However, if Plaintiffs can demonstrate a continuing violation, then events prior to 28 February 15, 2010 may be considered as timely. See Nat l R.R. Passenger Corp. v. Morgan, 536 1 Civil No. 11-1172 (GAG) 2 U.S. 101, 113-15 (2002). Plaintiffs must show ongoing acts of discrimination within the limitations 3 period to successfully rest on the continuing violation theory. See Gilbert v. City of Cambridge, 932 4 F.2d 51, 58-59 (1st Cir. 1991) (differentiating between discriminatory acts and ongoing injuries 5 emanating from one discrete discriminatory act). Serial violations are separate actionable wrongs 6 that are grounded in the same discriminatory animus. See Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 7 (1st Cir. 1992). Systemic violations are characteristically the application of a discriminatory policy 8 or practice against the plaintiff. See id. 6 9 At this stage in the litigation, Plaintiffs sufficiently plead facts that plausibly demonstrate 10 continued harassment based on both the systemic and serial violation theories. Plaintiffs plead that 11 they were the subject of a practice or policy of harassment because of the Opposition Letter. (See 12 Docket No. 1 at ¶ 57.) They further plead that the root of the animus against them was their 13 opposition to Rivera-Diaz as Commissioner and that they have been continually discriminated 14 against since his confirmation. (See Docket No. 1 at ¶¶ 42-43.) Plaintiffs have plead discriminatory 15 acts within the past year and therefore have adequately demonstrated their claims fall within the 16 limitations period. (See Docket No. 1 at ¶ 189.) Defendants motion to dismiss due to the statute 17 of limitations is DENIED. 18 D. Municipal Liability 19 Additionally, Plaintiffs name Vega Baja as a defendant, claiming there was a policy of 20 discrimination against Plaintiffs that can be attributed to Vega Baja. The Court announced that local 21 governments could be subject to § 1983 claims in Monell v. Dept. of Soc. Serv., 436 U.S. 658, 690- 22 91 (1978). However, Vega Baja is not responsible under the theory of respondeat superior for the 23 actions of its employees. See Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011); Rodriguez- 24 Garcia v. Mirdanda-Marin, 610 F.3d 756, 769 (1st Cir. 2010). A municipality may be liable if 25 Plaintiffs claim damages pursuant to an official municipal policy, which includes decisions of a 26 government s lawmakers. See Connick, at 1359. Plaintiffs claim that local lawmakers, such as 27 Santana, the Mayor of Vega Baja, were responsible for implementing the discriminatory policy. On 28 its face, the complaint contains sufficient pleadings that show it is plausible for Plaintiffs to make 1 Civil No. 11-1172 (GAG) 2 their Monell claim. As such, Defendants motion to dismiss claims against Vega Baja is DENIED. 7 3 IV. Conclusion 4 For the reasons set forth above, the court DENIES Defendants motions to dismiss at Docket 5 Nos. 21 and 24 . As to the statute of limitations claims, with a more fully developed record, the 6 court may revisit this issue at the summary judgment stage. 7 8 SO ORDERED. 9 In San Juan, Puerto Rico this 4th day of November, 2011. 10 s/ Gustavo A. GelpÃ 11 GUSTAVO A. GELPI United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.