Lareños En Defensa Del Patrimonio Historico, Inc. v. Municipality Lares

957 F.Supp.2d 150

LAREÑOS EN DEFENSA DEL PATRIMONIO HISTORICO, INC., et al., Plaintiffs,

v.MUNICIPALITY OF LARES, et. al., Defendants.

Civil No. 11–1880(FAB).

United States District Court, D. Puerto Rico.

Aug. 2, 2013.

Roberto O. Maldonado–Nieves, Roberto O. Maldonado Nieves Law Office, San Juan, PR, for Plaintiffs.

William Marini–Roman, William Marini Law Office, Lares, PR, Ivonne Cruz–Serrano, Maymi Rivera LLC, San Juan, PR, for Defendants.

MEMORANDUM AND ORDER

BESOSA, District Judge.

Before the Court are the reports and recommendations (R & R's) of United States Magistrate Judge Camille L. Velez–Rive, recommending that the Court:

1. DENY summary judgment on plaintiffs' section 1983 claim on the ground of an expired statute of limitations;

2. GRANT summary judgment of all federal and state law claims by plaintiff Lareños en Defensa del Patrimonio Historico, Inc. (“plaintiff corporation”) for lack of standing;

3. GRANT summary judgment as to plaintiffs' First Amendment claim for the events of September 12, 2010;

4. DENY summary judgment as to plaintiffs' First Amendment claim for the events of November 28, 2010;

5. DENY summary judgment as to plaintiffs' supplemental claims;

6. GRANT summary judgment as to defendant Mayor Pagan–Centeno in his personal capacity for lack of evidence of individual participation and under the doctrine of qualified immunity; and

7. DENY plaintiffs' motion for partial summary judgment. (Docket Nos. 100 and 102.) For the reasons discussed below, the Court ADOPTS IN PART and REJECTS IN PART the magistrate judge's findings.

I. BackgroundA. Standard of Review

A district court may refer a pending motion to a magistrate judge for a report and recommendation. See28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Rule 72(b). Any party adversely affected by the report and recommendation may file written objections within fourteen days of being served with the magistrate judge's report. Loc. Rule 72(d). ¹See28 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.” Ramos–Echevarria v. Pichis, Inc., 698 F.Supp.2d 262, 264 (D.P.R.2010); 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). Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987). In conducting its review of the R & R, 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)). A party's failure to object to an R & R allows the Court to assume that the party agrees with the recommendations in the R & R. Gonzalez–Santos v. Torres–Maldonado, 839 F.Supp.2d 488, 500 (D.P.R.2012).

B. Undisputed Facts

In the R & R, the magistrate judge presents “Defendants' Uncontested Issues of Facts” and “Plaintiffs' Uncontested Issues of Facts” separately. ( See Docket No. 100.) After reviewing plaintiffs' and defendants' submissions, the Court surmises that the magistrate judge structured the factual background in that way because the parties haphazardly complied with Loc. R. 56.² Local Rule 56(b) strives “to create an organized and clear representation of issues of fact which are truly contested between the parties,” Total Petroleum P.R. Corp. v. Colon, 819 F.Supp.2d 55, 60 (D.P.R.2011) (Besosa, J.), and in this case the parties have not even come close to providing the Court an easy-to-follow, comprehensible account of the exact disputed and undisputed issues. Although in its objections to the R & R the plaintiffs set forth 19 additional factual assertions that they still “believe[ ] to be undisputed,” ³ (Docket No. 108 at 2–5), the plaintiffs did not make specific objection to the magistrate judge's recitation of the undisputed factual background. Accordingly, and after painstakingly navigating the numerous and unorganized submissions of contested and uncontested facts by the defendants, (Docket Nos. 65, 82, 99) and the plaintiffs, (Docket Nos. 71, 88), the Court hereby adopts the facts as stated in the R & R.

C. Procedural History

On July 16, 2013, 2013 WL 4001865, and July 18, 2013, 2013 WL 4002008, the magistrate judge issued two R & R's (Docket Nos. 100 and 102, respectively) which allotted the parties until July 29, 2013 to file objections. On July 29, 2013, the Court granted plaintiffs' motion for an extension of time, and on July 31, 2013 plaintiffs filed their objections. (Docket Nos. 107 & 108.) Defendants did not submit any objections and thus have waived the right to further review in the district court. Davet, 973 F.2d at 30–31. The Court addresses plaintiffs' objections below.

II. Plaintiffs' ObjectionsA. First Amendment Claim for the Events of September 12, 2010

Plaintiffs first object to the magistrate judge's recommendation to grant defendants' motion for summary judgment as to the First Amendment claim for the events of September 12, 2010. The magistrate judge found that “no First Amendment violation to [plaintiffs'] freedom of expression and/or association ensued” because plaintiffs “were allowed a reasonable alternate public space to conduct their activity on September 12, 2010.” (Docket No. 100 at 30.) The Court finds that the proper legal standard under the First Amendment does not support such a finding, and that summary judgment is not warranted on that ground, and REJECTS the magistrate judge's recommendation on this claim.

1. Standard

The Supreme Court of the United States has recognized:

“The government does not have a free hand to regulate private speech on government property.... [M]embers of the public retain strong free speech rights when they venture into public streets and parks, which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. In order to preserve this freedom, government entitiesare strictly limited in their ability to regulate private speech in such “traditional public fora.” Reasonable time, place, and manner restrictions[, however,] are allowed....”

Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009). Thus, “the First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.” Heffron v. Int'l. Soc. for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). A time, place, and manner restriction is one that “is justified without reference to the content of the regulated speech, ... [is] narrowly tailored to serve a significant governmental interest, and ... leave[s] open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); McCullen v. Coakley, 571 F.3d 167, 175 (1st Cir.2009).

“Although a time, place, and manner restriction cannot be upheld without examination of alternative avenues of communication open to potential speakers, [the Supreme Court has] consistently rejected the suggestion that a government may justify a content-based prohibition by showing that speakers have alternative means of expression.” Consol. Edison Co. v. Public Serv. Comm'n., 447 U.S. 530, 556, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). Contrary to what the magistrate judge concluded, therefore, the mere fact that the defendants directed the plaintiffs to another public site on September 12, 2010 to carry out their protest—an alternative avenue of communication—does not necessarily lead to the conclusion that the plaintiffs' First Amendment rights were not violated. After all, “[a] major criterion for a valid time, place, and manner restriction is that the restriction may not be based upon either the content or subject matter of speech.” Heffron v. Int'l Soc. for Krishna Consciousness, 452 U.S. 640, 648, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981). The reviewing court must thus first analyze whether a legitimate, content-neutral reason existed for imposing the time, place and manner restriction. See Sullivan v. City of Augusta, 511 F.3d 16, 33 (1st Cir.2007). So long as government regulation of expressive activity is “ justified without reference to the content of the regulated speech,” it is content-neutral. Ward, 491 U.S. at 791, 109 S.Ct. 2746 (citing Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (emphasis added)).

2. Analysis

The Municipality of Lares must assert a legitimate, content-neutral reason for its restriction on plaintiffs' use of the Plaza de la Revolucion on September 12, 2010. Finding that material issues of genuine fact remain as to the legitimacy of the Municipality's proposed reason, the Court REJECTS the magistrate judge's recommendation that summary judgment be granted as to the plaintiff's First Amendment claim for the September 12, 2010 events.

The record indicates that plaintiffs and defendant Pagan–Centeno have “background history” stemming from each other's positions as to the Municipality of Lares' historical name/motto. On September 23, 1868, an uprising took place in Lares. Tradition has it that it was a revolt against the Kingdom of Spain.⁴ (Docket...