Concepcion v. Commonwealth Of P.R.

682 F.Supp.2d 164

Jayrie RIVERA CONCEPCION, Cynthia Concepcion, and Jorge Viera, Plaintiffs,

v.Commonwealth of PUERTO RICO, et al., ¹ Defendants.

Civil No. 08-2378 (FAB).

United States District Court, D. Puerto Rico.

Jan. 20, 2010.

COPYRIGHT MATERIAL OMITTED

Daliah Lugo-Auffant, Miguel A. Perez-Vargas, Perez Vargas & Lugo Auffant Law Offices, Hato Rey, PR, for Plaintiffs.

Lumy Mangual-Mangual, P.R. Department of Justice, Luis Berrios-Amadeo, Cancio, Nadal, Rivera & Diaz, San Juan, PR, Ivan M. Castro-Ortiz, Michael C. McCall, Aldarondo & Lopez Bras, Guayna-bo, PR, for Defendants.

OPINION AND ORDER

BESOSA, District Judge.

Plaintiffs first filed this civil action before the Court of First Instance for the Commonwealth of Puerto Rico on January 22, 2008. They alleged violations of federal law pursuant to the Americans with Disabilities Act ("ADA") and the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985, and violations of Commonwealth law pursuant to the Constitution of Puerto Rico and various local laws. The defendants removed the action to this Court on December 10, 2008. Before the Court is defendants' motion to dismiss ² for failure to state a claim upon which relief may be granted. (Docket No. 12) Plaintiffs opposed the motion. (Docket No. 33) Defendants replied. (Docket No. 34) For the reasons discussed below, the Court hereby DENIES IN PART and GRANTS IN PART the motion to dismiss and ORDERS PARTIES TO SUBMIT SIMULTANEOUS MEMORANDA AS DIRECTED BELOW NO LATER THAN FEBRUARY 3, 2010.

FACTUAL BACKGROUND

The Court draws the following facts from the plaintiffs' amended complaint (Docket No. 10-3) and takes them as true for the purpose of resolving defendants' motion. Plaintiff Jayrie Rivera Concep-cion ("Rivera"), who was twenty-two years old at the time the amended complaint was filed, lived in Puerto Rico with her mother, Cynthia Concepcion ("Conception"), and stepfather, Jorge Viera ("Viera"), also plaintiffs in this case.

In 2006, Rivera applied for admission to the Cordova and Fernos Program of Congressional Internships ("Program"), which Rivera learned about from notices at the University of Puerto Rico ("UPR"). At UPR, Rivera was majoring in Labor Relations, and claims she was an outstanding student in the process of obtaining her degree with honors. Plaintiffs claim that the Program to which Rivera applied promised a semester-long internship opportunity in the United States Congress or an agency of the federal government which would be accepted for academic credit at UPR. Through the Program, the Legislative Assembly of Puerto Rico would cover round-trip air fare, lodging, and tuition as well as a per diem for each participating student.

On December 4, 2006, after completing the admissions process, Rivera was notified of her admission to the Program for the January through May, 2007 semester. On January 16, 2007, Rivera participated in the Program's orientation workshop. At the orientation, Rivera was provided with information about her transfer to Washington, D.C., where her internship would begin. Francisco Rodriguez-Car-ambot ("Rodriguez") and Cesar Hernandez ("Hernandez"), a representative of the "Washington Center," ³ directed the Program's orientation workshop. On January 18, 2007, Rivera traveled with Program participants and Rodriguez to Washington, D.C. to start the semester. When she arrived in Washington, D.C, Rivera had not yet been placed in an internship, but was enrolled in the Program in a class at Johns Hopkins University. On January 18, 2007, Rodriguez gave Rivera a check for three hundred dollars from the Puerto Rico Senate constituting her first per diem payment.

At approximately 5:00 p.m. on January 23, 2007, Rodriguez called Rivera's mother, Cynthia Concepcion. He informed Concepcion that Rivera had been "expelled" from the Program due to "erratic conduct" and that Rivera had to return immediately to Puerto Rico. Rodriguez told Concepcion that Rivera could use the ticket meant for her return to Puerto Rico at the end of the Program. Rodriguez told Concepcion to give him ten minutes while he informed Rivera about her expulsion.

Concepcion received no subsequent communication from Rodriguez and was unable to contact Rivera. Plaintiffs claim that "no one knew about Rivera's whereabouts or her status." (Docket 10-3 at 3) During the late evening of January 23, 2007 and early morning of January 24, 2007, Concepcion made numerous telephone calls to the police in Washington, D.C. and Alexandria, Virginia, where the students of the Program were lodged. Alexandria police officers located Rivera disoriented and wandering aimlessly in the streets in shorts and a t-shirt when the outside temperature was thirty-two degrees Fahrenheit.

On January 24, 2007, Rivera was admitted to the psychiatric unit of the Inova Mount Vernon Hospital with a diagnosis of bipolar disorder in the manic phase. Rivera claims she had not previously suffered from bipolar disorder or any other serious mental or physical health condition.

On January 25, 2007, Rivera's mother and step-father traveled to Washington, D.C. Once there, they contacted the defendants ⁴, who told them that Rivera had not been expelled for disciplinary problems or conduct, but for her health condition. Rivera's parents remained in Washington, D.C. until Rivera's release from the hospital on February 18, 2007, when she was discharged to return to Puerto Rico with her parents.

Plaintiffs claim that no employee or representative of the Program or from the Washington Center intervened or showed support to Rivera or her parents with the situation. Plaintiffs further claim that, despite the fact that Rivera's roommate observed symptoms such as going outside without a coat or appropriate clothes for the weather, neither Rodriguez nor any other employee or representative of the Program for the Washington Center took any action to provide medical care, counseling, or support while Rivera was in the Program. Plaintiffs also contend that the Program's personnel did nothing to help Rivera or prevent her from going into the street and engaging in risky behavior. The only action that Rodriguez took when he learned of Rivera's symptoms was to expel her suddenly and to contact her mother in order to return Rivera to Puerto Rico as soon as possible, without any explanation or evaluation whatsoever. Plaintiffs further contend that it was Rivera's sudden expulsion that triggered Rivera into crisis.

Once Rivera's parents informed Rodriguez and the Program's personnel at the Washington Center about Rivera's situation, Rodriguez and the Program staff refused to cooperate to help clarify Rivera's situation or provide information about what happened. Neither did they provide any reasonable accommodation to help Rivera rejoin the Program. Instead, Rodriguez and the Program's staff notified UPR and apparently told UPR to drop Rivera from her semester courses without verbal or written explanation.

As of the writing of the Amended Complaint in July of 2008, Rivera had not received any official communication from the Program or the Washington Center explaining the reason for her expulsion, nor any response to Rivera's numerous requests for information regarding her academic file or her expulsion. Rivera has not received any communication regarding her readmission to the program, or information about how to recover the semester she lost due to her expulsion from the Program.

Rivera has continued to receive medical treatment. Her condition is stable. She returned to her studies and expected to complete her Bachelor's Degree in 2008. Plaintiffs contend that ever since Rivera was stabilized on or around February, 2007, Rivera has been and continues to be fully qualified to carry out the basic functions of the Program from which she was expelled.

Plaintiffs contend that the defendants' actions and omissions constitute gross negligence, disability based discrimination, and a violation of her rights under federal and local laws. Rivera claims mental, emotional and financial damages as a result of the above discussed facts.

GOVERNING STANDARD

Pursuant to Rule 12(b)(6), a complaint should be dismissed where a plaintiff does not "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, -U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible on its face if it "raises a right to relief above the speculative level," Bell Atl. Corp., 550 U.S. at 570, 127 S.Ct. 1955, by pleading enough "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Ashcroft, 129 S.Ct. at 1949. The court will accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in plaintiffs favor. Id.; see also Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). The Court need not credit, however, "bald assertions [and] un-supportable conclusions" when evaluating the complaint's allegations, Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996), nor "accept as true a legal conclusion couched as a factual allegation," Bell Atl. Corp., 550 U.S. at 570, 127 S.Ct. 1955 (quoting Papa-san v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).

DISCUSSION

Defendants move for dismissal because: (1) plaintiffs failed to exhaust their administrative remedies;⁵ (2) plaintiffs fail to state a claim against the Senate⁶ under the Civil Rights Act; (3) plaintiffs fail to state a claim under Section 1 of Article II of the Puerto Rico Constitution; (4) plaintiffs fail to state a claim against the Senate pursuant to Puerto Rico Law 44; and (5) defendants have immunity from plaintiffs' tort claims. The Court examines each of defendants' assertions in turn.

I. Exhaustion of Administrative Remedies

Defendants contend that this Court must dismiss plaintiffs' case because the...