Concepcion v. Municipality of Guradbo

558 F.Supp.2d 149

Zuleika CONCEPCION, et al., Plaintiff(s) v. MUNICIPALITY OF GURABO, et al., Defendants.

Civil No. 05-2264 (FAB).

United States District Court, D. Puerto Rico.

May 11, 2007.

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Maria S. Kortright-Soler, M.S. Kortright Soler Law Office, San Juan, PR, Pedro R. Vazquez, III, Pedro R. Vazquez Law Office, Guaynabo, PR, for Plaintiffs.

Miguel A. Romero-Lugo, Romero, Rodriguez & Quijano, PSC, Maria Judith Surillo, Department of Justice, San Juan, PR, for Defendants.

MEMORANDUM AND ORDER

BESOSA, District Judge.

A District Court may refer pending dispositive motions to a Magistrate Judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Rule 72(a). Any party adversely affected by the report and recommendation may file written objections within ten days of being served with the Magistrate Judge's report. See 28 U.S.C. § 636(b)(1). 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, 673,100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). Failure to comply with this rule precludes further review. See Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). In conducting its review, the Court is free to "accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge." 28 U.S.C. § 636(a)(b)(1). Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985); Alamo Rodriguez v. Pfizer Pharmaceuticals, Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Hernandez-Mejias v. General 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)).

On May 24, 2007, the United States Magistrate Judge issued a Report and Recommendation in this case, recommending that the Defendants' Motion to Dismiss (Docket No. 18)¹ and the Supplement Motion to Dismiss (Docket No. 19) be granted in part and denied in part. No objections have been filed.

The undersigned, however, has made an independent examination of the record in this case and ADOPTS the magistrate judge's findings and recommendations as the opinion of this Court.

Accordingly, defendants Roman's and Santiago's request for dismissal of the procedural due process claims is hereby DENIED; defendants Roman's and Santiago's request for dismissal of section 1983 claims against them based on lack of personal involvement is hereby DENIED; Defendants' request for dismissal on qualified immunity grounds is hereby DENIED; Plaintiffs Roman's and Santiago's request for dismissal of the conspiracy claim is DENIED AS MOOT; plaintiffs' substantive due process claims are hereby DISMISSED WITH PREJUDICE. Partial judgment shall enter accordingly.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

MARCOS E. LOPEZ, Unites States Magistrate Judge.

I. PROCEDURAL BACKGROUND

On December 7, 2005, plaintiffs Zuleika Concepción-Alamo ("Concepción"), Quintilio Colón ("Colón"), Jahaira Sánchez ("Sánchez"), Lilliam Velázquez ("Velázquez") and Sandra Cortez ("Cortez") (collectively, "Plaintiffs"), filed a Complaint pursuant to 42 U.S.C. § 1983 ("Section 1983") against: (1) the Municipality of Gurabo ("Gurabo"); (2) Mr. Víctor Ortiz-Díaz ("Ortiz"), its Mayor; (3) Mr. Rafael Rodríguez ("Rodríguez"), Gurabo's City Administrator; (4) Ms. Magali Román-Castro ("Román"), Gurabo's Former Director of Human Resources; and (5) Ms. Merelyn Santiago ("Santiago"), Gurabo's Current Director of Human Resources (collectively, "Defendants"). Docket No. 1. Co-defendants Ortiz, Rodríguez, Román and Santiago are being sued in their personal and official capacities.¹ Plaintiffs seek redress for the alleged violation of Plaintiffs' constitutional rights under the First Amendment to the U.S. Constitution as applied to the States under the Due Process Clause of the Fourteenth Amendment. Pendent supplemental jurisdiction under the laws of the Commonwealth of Puerto Rico are premised on the same alleged actions, to wit: Article II, Sections 1, 6 and 7 of the Constitution of the Commonwealth Puerto Rico, breach of contract under the Civil Code of Puerto Rico, tort claims under Article 1802 of the P.R. Civil Code, 31 P.R. Laws Ann § 3151, Law 100, 29 P.R. Laws Ann § 146, et seq., and claims under the Commonwealth's Municipal Personnel System established by the Autonomous Municipalities Act, 21 P.R. Laws Ann. § 4001 et seq. Docket No 1.

Plaintiffs assert in the Complaint three causes of action. The first cause of action under 42 U.S.C. § 1983 states that Defendants acted with callous indifference and reckless disregard in illegally, unlawfully and intentionally violating Plaintiffs' constitutional rights secured under the First and Fourteenth Amendments to the U.S. Constitution, and the laws of the Commonwealth of Puerto Rico. For the significant emotional harm, injuries and material damages that Plaintiffs claim to have suffered as a result of these violations, each of them requests compensation in an amount of no less than one million dollars ($1,000,000.00) each, plus an equal amount in liquidated damages pursuant to Law 100. Id., ¶¶ 5.1-5.8. Through the second cause of action, Plaintiffs request reinstatement to their positions and reimbursement for lost wages and back pay since the date of their termination and/or reduction of salaries, including, but not limited, to medical insurance and benefits, Social Security contributions, retirement contributions, pension, 401-K plans, stock ownership valuations and sick/annual leave balance since January 2005. Id., ¶¶ 6.1-6.4. Through the third cause of action, Plaintiffs request an award of one million dollars ($1,000,000.00) for punitive damages. Id., ¶¶ 7.1-7.3. Finally, Plaintiffs claim that Defendants have acted with temerity and are therefore liable for any pre-judgment interest, costs and attorney fees. Id., ¶¶ 8.1-8.3

On June 5, 2006, co-defendants Ortiz, Rodríguez, Román and Santiago filed a Motion to Dismiss (Docket No. 18) requesting dismissal of "the Complaint in its entirety against Magali Román Castro and Merelyn Santiago" on the grounds that the Complaint fails to state a conspiracy claim, a substantive due process claim, and a valid Section 1983 claim.² On June 12, 2006, Ortiz, Rodríguez, Román and Santiago filed a Supplement to Motion to Dismiss (Docket 19), alleging as an additional ground for dismissal of the Complaint that said co-defendants are entitled to qualified immunity.³ In both the Motion to Dismiss and the Supplement to Motion to Dismiss, co-defendants appear in their personal capacities and without submitting to the jurisdiction of this Court.

On June 19, 2006, Plaintiffs filed an Opposition to Defendants' Motion to Dismiss ("Opposition") claiming that the grounds for dismissal raised by Defendants in the Motion to Dismiss and the Supplement to Motion to Dismiss are without merit. Docket No. 20.

Pursuant to the Referral Order issued by the Court on February 26, 2007 (Docket No. 22), this matter was referred to the undersigned for a Report and Recommendation on the Motion to Dismiss, the Supplement to Motion to Dismiss and the Opposition to said motions. Dockets No. 18-20.

II. FACTUAL BACKGROUND

This is a political discrimination suit involving several members affiliated and active with the Popular Democratic Party ("PDP"), all of which claim to be municipal career employees whose employment tenure with Gurabo predates the November 2004 general elections held in Puerto Rico. In said elections, co-defendant Ortiz, a member of the New Progressive Party ("NPP"), was elected Mayor of the Municipality of Gurabo. The incumbent mayor was Mr. Jose A. Rivera, a member of the Popular Democratic Party ("PDP"). Docket No. 1, ¶ 1.1.

According to the Complaint, once in office, Ortiz began a systematic pattern and policy of discrimination against Plaintiffs by taking adverse employment actions on account of their association and affiliation to the PDP and to former mayor Mr. José A. Rivera which was widely known in the community. These actions included de facto demotions, where co-defendants were left idling with virtually no work, reassignment to inferior positions, salary reductions and, in some cases, termination of employment. Plaintiffs claim that these actions were without cause or justification, and that they were taken without providing appropriate pre-deprivation remedies, such as a hearing, before Defendants engaged in said action. Plaintiffs also assert that Defendants' actions were unjustified, illegal, unreasonable, arbitrary, "conscience shocking" and constitute an abusive use of Defendants' powers under color of law and authority. Id., ¶¶ 1. 2, 1.3.

It is under this scenario that Plaintiffs allege the following facts pertaining to each of them.

1) Zuleyka Concepción

Since February 2004, Concepción held the position of Supervisor I. She supervised and was responsible for the day to day operation of the Child Care Center. Her salary and the Child Care Center's budget derived from federal funds from the Child Care and Development Fund administered by the Administration for the Care and Integral Development of the Commonwealth of Puerto Rico's Department of Family. She claims that she was an employee under contract but that she had employment rights as a permanent employee. Id., ¶¶ 4.4, 4.5.

According to the 2004-2005 Child Care Center's budget, which had been approved by former mayor Mr. José A. Rivera and the Department of Family, Conceptión's monthly salary was $1,928.00, beginning on January 1, 2005. But as soon as Ortiz took office, he refused to pay Concepción the agreed...