Larenos en Defensa del Patrimonio Historico, Inc. et al v. Municipality of Lares, No. 3:2011cv01880 - Document 38 (D.P.R. 2012)
Court Description: OPINION AND ORDER re 9 Motion to Dismiss; and re 32 Report and Recommendation. The Court ADOPTS the Report and Recommendation IN PART. Defendant's motion to dismiss plaintiffs' First Amendment claim and Commonwealth law claims is DENIED, and defendant's motion to dismiss plaintiffs' Fifth and Fourteenth Amendment claims is GRANTED. Signed by Judge Francisco A. Besosa on 08/06/2012. (brc)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO LAREà OS EN DEFENSA DEL PATRIMONIO HISTORICO, INC., et. al., Plaintiffs, v. CIVIL NO. 11-1880 (FAB) MUNICIPALITY OF LARES, et. al., Defendants. OPINION AND ORDER1 BESOSA, District Judge. Before the Court is a Report & Recommendation ( R&R ) issued by Magistrate Judge Velez-Rive on June 29, 2012. (Docket No. 32.) The R&R recommends that defendant Roberto Pagan-Centeno s ( Pagan ) motion to dismiss all of plaintiffs 2 claims pursuant to Federal Rule of Civil Procedure 12(b)(6) be DENIED. (Docket No. 9.) Defendant filed objections to the R&R on July 30, 2012. No. 36.) (Docket After reviewing the R&R, the Court ADOPTS the R&R IN 1 Justin Rowinsky, a second-year student at the Georgetown University Law Center, assisted in the preparation of this Opinion and Order. 2 Plaintiffs are: Yamil Guzman-Gonzalez, Alma Irizarry-Toledo, Edwin Vera-Muñoz, Gabriela Vargas-Quiñones, Maria M. Irizarry, Diego Torres-Delgado, Margaret G. Rego, Jose Ruiz-Santiago, Lillian Perez-Toledo and the non-profit corporation Lareños en Defensa del Patrimonio Historico, Inc. Civil No. 11-1880 (FAB) PART. 2 Defendant Pagan s motion to dismiss is GRANTED IN PART and DENIED IN PART. I. Background A. Factual History Plaintiffs against defendant filed Roberto a complaint Pagan on Centeno September 6, ( defendant ) 2011, in his personal and official capacity as the Mayor of Lares, and against the Municipality of Lares (collectively, defendants ). No. 1 at ¶¶ 11-12.) (Docket Plaintiffs seek damages and injunctive relief pursuant to 42 U.S.C. § 1983 for defendants alleged violations of plaintiffs First, Fifth, and Fourteenth Amendment rights. p. 1. Sections Plaintiffs 1, 4, 6 also and allege 7 of that Article the II defendants of the Id. at violated Puerto Rico Constitution, and Article 1802 of the Civil Code, P.R.Laws Ann. tit. 31 sec. 5141. Id. at ¶ 1. The Court declines to rehash the entire factual record, and highlights only the relevant facts. Simply put, plaintiffs opposed defendant Pagan s plan to change Lares s motto from La Ciudad del Grito ( City of the Uprising ), a historical reference to the September 23, 1868 revolt against the Kingdom of Spain, to Lares, Ciudad de los Cielos Abiertos ( Lares, the City of Open Skies ). Id. at ¶¶ 6-8, 12. Plaintiffs began expressing their opposition to the proposed change, and their complaint focuses on Civil No. 11-1880 (FAB) two specific incidents 3 that they allege were the result of defendant s actions. First, plaintiffs attempted to express their opinion in a public square, Plaza de la Revolucion ( Revolution Square ), during a march on September 12, 2010. Id. at ¶¶ 20-21. Revolution Square is a traditional place of public expression, and has been used by citizens for decades to express all sorts of political, social, [and] religious views. Id. at ¶ 21. Plaintiffs request to use Revolution Square was denied, allegedly because another group had requested to use the square on that day. Id. at ¶¶ 24, 26. That reason was apparently false, however, because no other group or persons held an activity at [Revolution] [S]quare on September 12, 2010. Id. at ¶¶ 27, 29. Plaintiffs aver upon [their] information and belief (1) that they were denied the use of [Revolution] [S]quare pursuant to defendant Pagan s instructions, and (2) that Lares does not have a set of rules and regulations . . . regarding the use of the public squares and public locations of the Municipality. Id. at ¶¶ 28, 31. Second, plaintiffs attempted to express their support of the original Lares motto by riding a float in a parade held on November 28, 2010. Id. at ¶¶ 38-39. Plaintiffs request to ride in the parade was denied, allegedly because all floats needed to be prepared with decorations and motives [sic] of the upcoming Civil No. 11-1880 (FAB) Christmas Season. 4 Id. at ¶ 41. Plaintiffs attempted to comply by adding poinsettias3 (a traditional Christmas flower decoration) to their float, but were denied permission again. Id. at ¶¶ 42-43. Plaintiffs nonetheless attempted to enter the parade but Lares police agents immediately arrived, surrounded the float and restricted the liberty of the drivers of the parade and of other participant Plaintiffs impeding their movement and restricting their liberty. Id. at ¶¶ 47-49. Plaintiffs again aver upon their information and belief (1) that the actions of the police were acts undertaken upon the express or tacit instructions of defendant Pagan, and (2) that Lares does not have any policies, rules, or regulations, nor legally valid criteria to determine who can . . . participate in parades sponsored by the municipality. Id. at ¶ 45, 57. B. Procedural Background Defendant Pagan, in his personal capacity, filed a motion to dismiss plaintiffs complaint pursuant to Rule 12(b)(6) on October 31, 2011, for entitling them to relief. raises the affirmative plaintiffs failure to (Docket No. 9 at ¶ 2.) defense of qualified state Known in Puerto Rico as pascuas . claim Defendant also immunity. Plaintiffs filed an opposition on February 23, 2012. 3 a Id. (Docket Civil No. 11-1880 (FAB) No. 22.) 5 Magistrate Judge Velez-Rive s R&R focused solely on plaintiffs First Amendment complaint, defendant s motion to dismiss because: and recommends denying (1) plaintiffs had met the 12(b)(6) pleading threshold, and (2) defendant is not entitled to qualified immunity because a reasonable person in defendant s position would established law. have known that his actions Id. at pp. 19-20, 22. violated clearly The R&R did not address plaintiffs Fifth Amendment, Fourteenth Amendment or Commonwealth claims. The Court granted the defendant Pagan s motion for an extension of time in which to file objections, (Docket No. 34), and defendant Pagan filed objections to the R&R on July 30, 2012. (Docket No. 36.) Defendant Pagan raises a number of objections to the R&R. First, he contends that the R&R improperly took into consideration matters outside the pleadings, because of the procedural posture of the case. (Docket No. 36 at ¶ 5.) Defendant Pagan also objects to plaintiffs use of upon their information and belief, stating that this is not enough to establish the element of causation required in Section 1983. Id. at ¶ 7. Defendant Pagan noted that the R&R declined to address plaintiffs Fifth and Fourteenth Amendment claims, and re-stated his request for qualified immunity because he is immune from suit when performing this judicial or quasi judicial function. Id. at ¶¶ 9-10. Civil No. 11-1880 (FAB) II. 6 Legal Standards A. Referral pursuant to 28 U.S.C. § 636(b)(1) A district court may refer a case to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B) (2012); Fed.R.Civ.P. 72(b); Loc. Rule 72(b). affected by the report and Any party adversely recommendation may file written objections within fourteen days of being served with the magistrate judge s report. See 28 U.S.C. § 636(b)(1) (2012); Loc. Rule 72(d). A party that files a timely objection is entitled to a de novo determination of those portions of the report or specified proposed findings or recommendations to which specific objection is made. Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v. Raddatz, 447 U.S. 667, 673 (1980)). review. 1992). Failure to comply with this rule precludes further See Davet v. Maccorone, 973 F.2d 22, 30-31 (1st Cir. Furthermore, the objecting party must put forth more than [c]onclusory objections that do not direct the reviewing court to the issues in controversy. Velez-Padro v. Thermo King de Puerto Rico, Inc., 465 F.3d 31, 32 (1st Cir. 2006). In conducting its review, the court is free to accept, reject, or modify, in whole or in part, recommendations made by the magistrate judge. the findings or 28 U.S.C. § 636 (a)(b)(1) (2012); Templeman v. Chris Craft Corp., 770 F.2d 245, 247 Civil No. 11-1880 (FAB) 7 (1st Cir. 1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R. 2003). The Court may also accept those parts of the report and recommendation to which the parties do not object. See Hernandez-Mejias v. Gen. Elec., 428 F.Supp.2d 4, 6 (D.P.R. 2005) (citing Lacedra v. Donald W. Wyatt Detention Facility, 334 F.Supp.2d 114, 125-126 (D.R.I. 2004)). B. Rule 12(b)(6) Motion to Dismiss Pursuant to Rule 12(b)(6), a court can dismiss a complaint that fails to state a claim upon which relief can be granted. When assessing whether the plaintiff s complaint provides fair notice to the defendants and states a facially plausible legal claim, the Court must utilize a two-pronged approach. See Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 11-12 (1st Cir. 2011). First, the Court can disregard statements that offer legal conclusions couched as fact, because the plaintiff must do more than parrot the elements of the cause of action. Id. at 12. Then, the Court is bound to treat all properly pled factual allegations as true and draw all reasonable inferences in the plaintiffs favor. Id. The Court must base its determination solely on the material submitted as part of the complaint and expressly incorporated within it, unless the motion is converted to one for summary judgment. See Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). Civil No. 11-1880 (FAB) 8 The pled factual material must be sufficient to raise a right to relief above the speculative level, and to permit the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. 662, 678 (2009)). Id. (quoting Ashcroft v. The Supreme Court has held that the plaintiff s pleading must cross the line between possibility and plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 577 Court (2007). likelihood The of improbable. success should even Id. at 556. if not attempt proving the to forecast alleged facts the is Therefore, a complaint that contains a plausible basis for relief may proceed even if it appears that a recovery is very remote and unlikely. Id. at 556 (internal citation omitted). The Court will draw on its judicial experience and common sense in evaluating a complaint s plausibility. Grajales v. Puerto Rico Ports Authority, 682 F.3d 40, 44 (1st Cir. 2012) (internal citation omitted). C. Section 1983 Claims Pursuant to 42 U.S.C. § 1983, a party may bring a lawsuit against state officials acting under color of state law who violate constitutional provisions or federal law. Elena Municipality of San Juan, 677 F.3d 1, 10 (1st Cir. 2012). v. Puerto Rico is considered a state for the purposes of section 1983 claims. Civil No. 11-1880 (FAB) 9 See, e.g., id. (citing Deniz v. Muncipality of Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002)). D. Qualified Immunity Qualified functions as a immunity shield is against an affirmative unwarranted defense charges that that the official violated the Constitution in the course of performing the functions of the office. Garnier v. Rodriguez, 506 F.3d 22, 26 (1st Cir. 2007) (internal citation omitted). Qualified immunity can be raised at the motion to dismiss stage, lest unwarranted lawsuits impede the proper functioning of government. Id.; see also Pearson v. Callahan, 555 U.S. 223, 231 (2009) (holding that qualified immunity is available to ensure that insubstantial claims against government officials [will] be resolved prior to discovery. ) (internal quotation omitted). The Court utilizes a two-part test when evaluating a defendant s claim of qualified immunity. See, e.g., Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) (citing Pearson, 555 U.S. at 232). The Court must determine: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether that right was clearly established at the time of the defendant s violation. 568 F.3d at 269 (internal quotation omitted). evaluates the second prong, whether the Maldonado, When the Court right was clearly Civil No. 11-1880 (FAB) 10 established, it considers two additional factors: (1) the clarity of the law at the time of the alleged civil rights violation, and (2) whether a reasonable defendant would have understood that his conduct violated the plaintiffs constitutional rights. See id. ( That is, the salient question is whether the state of the law at the time of the alleged violation gave the defendant fair warning that his particular conduct was unconstitutional. ). The Supreme Court has stated that the doctrine of qualified immunity protects all state actors except the plainly incompetent [and] those who knowingly violate the law. Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011) (citing Malley v. Briggs, 475 U.S. 223, 231 (2009)). IV. Discussion Defendant Pagan s motion to dismiss encompasses all of plaintiffs claims against him in his personal capacity only. Although the R&R focuses solely on plaintiffs First Amendment claim, the Court will address whether the plaintiffs claims pursuant to the First, Fifth and Fourteenth Amendments of the United States Constitution meet the 12(b)(6) threshold, and if so, Civil No. 11-1880 (FAB) 11 whether defendant is entitled to qualified immunity.4 Although defendant objects to the use of material outside of plaintiffs pleading, the Court will rely solely on plaintiffs complaint in the following analysis. A. First Amendment Plaintiffs Amendment because he allege that allegedly defendant denied violated plaintiffs the the First use of Revolution Square on September 12, 2010, and denied them entry into the parade on November 28, 2010, based on the content of their speech. Defendant moves to dismiss pursuant to Rule 12(b)(6) and the doctrine of qualified immunity. The R&R recommends DENYING defendant s motion to dismiss and claim of qualified immunity with respect to plaintiffs First Amendment claims, and the Court agrees. 4 Plaintiffs also allege that defendant Pagan violated various Commonwealth laws and sections of the Puerto Rico Constitution. (Docket No. 1 at ¶ 1.) Defendant s motion to dismiss did not address the substantive merits of plaintiffs claims pursuant to Commonwealth law, but instead stated that the Court should decline to exercise supplemental jurisdiction if no other federal claims remain. (Docket No. 9 at ¶ 39.) Because the Court DENIES the defendant s motion to dismiss plaintiffs First Amendment claim, there is at least one substantial federal claim in the lawsuit, and the Court retains supplemental jurisdiction over the Commonwealth claims. Newman v. Burgin, 930 F.2d 955, 963 (1st Cir. 1991). Civil No. 11-1880 (FAB) i. 12 12(b)(6) Threshold Defendant Pagan contends that the plaintiffs complaint fails to affirmatively link him in his personal capacity to any alleged violation of their First Amendment rights. rejects this argument and determines that plaintiffs plausibly link defendant to the allegations. at 19.) The R&R claims (Docket No. 32 The Court must draw all reasonable inferences in the plaintiffs favor, and accept their pled facts as true. Plaintiffs use the phrase upon their information and belief numerous times in their complaint, a technique that has been approved of by at least one federal appellate court. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (noting that a plaintiff can plead facts alleged upon information and belief where the facts are peculiarly within the possession and control of the defendant ). In this case, only defendant Pagan knows whether he had an affirmative role in denying the plaintiffs two attempts to express their opinions, and whether he did so on the basis of the content of their message. See id. (noting that the complaint must raise a reasonable expectation that discovery will reveal evidence of illegality ) (citing Twombly, 550 U.S. at 556). The R&R thoroughly cites relevant precedent to establish that if the defendant denied plaintiffs requests based Civil No. 11-1880 (FAB) 13 on the content of their message (drawing all reasonable inferences in the plaintiffs favor), he violated the First Amendment. Public squares are traditionally places of First Amendment-protected expression, and only time, place and manner restrictions are constitutionally permitted. See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). First Amendment protection. Parades receive similar See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 568 (1995) (stating that [p]arades are thus a form of expression, and that there is an inherent expressiveness of marching to make a point ). It is reasonable and plausible that defendant Pagan had a direct role in denying plaintiffs use of Revolution Square and entry into the parade. It is also plausible that defendant did so because plaintiffs were advocating against defendant s attempt to change the Lares motto. discovery will Because there is a reasonable expectation that reveal evidence that the defendant violated plaintiffs First Amendment rights, plaintiffs complaint meets the required 12(b)(6) threshold. Grajales, 682 F.3d at 49. Defendant s motion to dismiss plaintiffs First Amendment claim is DENIED. ii. Qualified Immunity Defendant argues in the alternative that he is entitled to qualified immunity on plaintiffs First Amendment Civil No. 11-1880 (FAB) claim. 14 The R&R correctly disagrees. The Court will evaluate defendant s claim using the required two-part test. a. Whether Plaintiff s Allegations Constitute a Constitutional Violation Both the R&R s thorough analysis Court s brief discussion above are applicable here. and the Because the Court must consider all of plaintiffs factual allegations as true, and draw all reasonable inferences in their favor, their complaint sufficiently alleges that the defendant plausibly violated plaintiffs First Amendment rights. b. Whether the Established Plaintiffs Right was Clearly The second prong of the test for qualified immunity requires the Court to determine whether the plaintiffs First Amendment rights were clearly established at the time the defendant allegedly violated them. The First Amendment protection of speech in public fora from content-based restrictions (unless narrowly drawn to serve a compelling government interest) was clearly established years before the Fall of 2010 when the defendant s alleged violations took place.5 See, e.g., Perry Educ. Ass n. v. Perry Local Educators Ass n., 460 U.S. 37, 66 (1983). 5 It is also axiomatic that the First Amendment is equally applicable to the states. See, e.g., Everson v. Bd. of Ewing Tp., 330 U.S. 1, 7 (1947). Civil No. 11-1880 (FAB) 15 More recently, the First Circuit Court of Appeals unequivocally stated that the First Amendment demands that the state not suppress speech where the real rationale for the restriction is disagreement with the underlying ideology or perspective that the speech expresses. Ridley v. Massachusetts Bay Transp. Auth., 390 F.3d 65, 82 (1st Cir. 2004). Therefore, First Amendment law was clear and unambiguous at the time of the defendant s alleged violations of plaintiffs First Amendment rights. In addition, any reasonable mayor in the defendant s position would have similarly understood that denying access to a public forum based on a disagreement with the content of the message violated the First Amendment. The ample precedent sufficiently gave the defendant fair warning that his particular conduct was unconstitutional. Maldonado, 568 F.3d at 269. posture of the case, the Based on the current procedural DENIES Court defendant s qualified immunity defense. B. Fifth Amendment Plaintiffs allege that defendant violated their Fifth Amendment Amendment, rights. however, (Docket applies No. 1 at ¶¶ 1, only to actions 54.) of The the government-not to those of state or local governments. Fifth federal Martinez- Rivera v. Sanchez-Ramos, 498 F.3d 3, 8 (1st Cir. 2007) (internal citation omitted); see also Dusenbery v. United States, 534 U.S. Civil No. 11-1880 (FAB) 16 161, 167 (2002) (contrasting the Fifth Amendment, which prohibits the United States from violating a citizen s due process rights, with the Fourteenth Amendment, which prohibits the States from doing the same) (emphasis added). Because plaintiffs did not include any federal defendants in their complaint, defendant s motion to dismiss with respect to the Fifth Amendment claim is GRANTED, and his qualified immunity defense on this specific claim is MOOT. C. Fourteenth Amendment The due process clause of the Fourteenth Amendment provides both procedural and substantive rights to Puerto Rico citizens. See, e.g., Gonzalez-Fuentes v. Molina, 607 F.3d 864, 879 (1st Cir. 2010). Plaintiffs complaint simply alleges that the defendant violated the Fourteenth Amendment. ¶¶ 52, 54.) (Docket No. 1 at Because the Court must draw all reasonable inferences in plaintiffs favor, it will address whether plaintiffs have sufficiently pled enough to meet the 12(b)(6) threshold for both a procedural due process violation and a substantive due process violation, and if so, whether defendant Pagan is entitled to qualified immunity. i. Procedural Due Process Plaintiffs have not identified any property interest of which they were deprived in violation of their procedural due Civil No. 11-1880 (FAB) 17 process rights, but instead claim that the Lares police illegally restricted plaintiffs liberty on defendant Pagan s instructions. (Docket No. 1 at ¶ 54.) provides procedural Because the federal due process clause protections for state-created substantive liberty interests, the Court must determine whether a previously enumerated liberty interest of plaintiffs was violated. Rogers v. Okin, 738 F.2d 1, 5 (1st Cir. 1984). The Court has not found any precedent that would entitle plaintiffs to relief based on defendant s alleged brief restriction of their liberty. Cases involving a liberty procedural due process violation focus on specific categories of plaintiffs. See Rogers, 738 F.2d at 6, 7 (recognizing a liberty procedural due process claim involving the involuntary commitment of mental patients); Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 410 (1st Cir. 1990) (recognizing a liberty procedural due process claim for malicious prosecution); Nolan v. Scafati, 430 F.2d 548, 549 (1st Cir. 1970) (recognizing a liberty procedural due process claim for a state prison inmate). Based on this lack of precedent, state action that briefly restricted the liberty of a civilian does not rise to the level of a procedural due process violation. Defendant s motion to dismiss plaintiffs Fourteenth Amendment procedural due process claim is GRANTED, and defendant s request for qualified immunity on this claim is MOOT. Civil No. 11-1880 (FAB) ii. 18 Substantive Due Process When an executive official s (such as a mayor) actions are challenged as violating substantive due process, the Court must determine whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. Gonzalez-Fuentes, 607 F.3d at 880 (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)). Descriptions of this test often descend into a morass of adjectives that are as nebulous as they are pejorative, id., such as arbitrary and capricious, and actions that appear shocking or violative of universal standards of decency. Amsden v. Moran, 904 F.2d 748, 753-54 (1st Cir. 1990) (internal citations omitted). The First Circuit Court of Appeals has recently characterized the Supreme Court as firm in its reluctance to expand the doctrine of substantive due process. Maldonado, 568 F.3d at 273. Applying those varied descriptions to this case, plaintiffs have failed to plead enough to withstand defendant s motion to dismiss. Even accepting all of their facts as true and drawing all reasonable inferences in their favor, a substantive due process claim appears to rest on the restriction of plaintiffs liberty as they attempted to enter the November 28, 2010 parade with their float. The Lares police restricted the liberty of the Civil No. 11-1880 (FAB) 19 drivers of the float, and other plaintiffs who were walking near the float and also attempting to enter the parade. Even if plaintiffs liberty was in fact restricted, the pled allegations do not rise of the level of shocking the Court s conscience. Therefore, plaintiffs have failed to state a claim of a substance due process violation upon which relief can be granted. Alternatively, the Court notes that the Maldonado court granted a defendant mayor s motion for qualified immunity on a claimed violation of substantive due process. F.3d at 273-74. Maldonado, 568 The Maldonado court cited the fact that the complaint does not allege that the Mayor was personally involved in any conscience-shocking conduct. Id. at 274 (emphasis added). Because section 1983 claims require an affirmative link between the defendant and the alleged constitutional violations, the mayor s absence from the alleged mass killing of dogs and cats in the Maldonado case was sufficient to grant him qualified immunity. Id. Similarly, plaintiffs in this case allege that the responsible actors for the alleged liberty violations were the Lares police, not defendant Pagan himself. (Docket No. 1 at ¶¶ 48-51.) Plaintiffs allege that the police denied the plaintiffs entry into the parade on the express or tacit instructions of the mayor, but those alleged instructions are only material to plaintiffs First Amendment claim. The complaint does not allege that defendant Civil No. 11-1880 (FAB) 20 Pagan specified how the police were to act, or that he was affirmatively linked to the police s actions in allegedly restricting plaintiffs liberty. Based on both a failure to pass the plausibility threshold required by Rule 12(b)(6) and a failure to link defendant Pagan affirmatively to the restriction of plaintiffs liberty, defendant Pagan s motion to dismiss plaintiff s Amendment substantive due process claim is GRANTED. Fourteenth Defendant s request for qualified immunity on this claim is MOOT. V. Conclusion For the reasons discussed above, the Court ADOPTS the R&R IN PART. Defendant s motion to dismiss plaintiffs First Amendment claim and Commonwealth law claims is DENIED, and defendant s motion to dismiss plaintiffs Fifth and Fourteenth Amendment claims is GRANTED. IT IS SO ORDERED. San Juan, Puerto Rico, August 6, 2012. s/ Francisco A. Besosa FRANCISCO A. BESOSA UNITED STATES DISTRICT JUDGE
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