Lopez v. Ortiz, Civil No. 13-1166 (DRD)

AIDA ACEVEDO LOPEZ, et al., Plaintiffs v. VIVIAN ORTIZ, et al., Defendants.

Civil No. 13-1166 (DRD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

March 31, 2015

OPINION AND ORDER

Pending before the Court are Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction at Docket No. 34 and Defendants' Motion for Judgment on the Pleadings at Docket No. 39. For the reasons set forth below, Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction is DENIED and the Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part.

I. Introduction

On February 26, 2013 Aida Acevedo Lopez, Janice De Jesus Conceptión, Carmen Rivera Rivera, Iris Ruiz Rodriguez, Luz Rivera Charles, Friola Rivera Quiñones, Cydmarie Sanchez Correa, Estela Lugo, Carmen I. Gonzalez Morales, Lourdes Pardo Ortiz, Monica Gonzalez Rivera, Carmen Arcelay Mendez, Olga Gotay Lucas, Yomaira Irizarry, Wilivette Feliciano Torres and Melissa Arce Gonzalez (collectively "Plaintiffs") initiated the above-captioned case claimingDefendants' actions violated their rights under the Fifth, Eighth, and Fourteenth Amendments of the Constitution of the United States, pursuant to the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983, and under the Constitution and laws of the Commonwealth of Puerto Rico, in particular, P.R. LAWS ANN. tit. 31, § 1802." See Amended Complaint at Docket No. 27.

II. Relevant Factual Background

At the time of the filing of the complaint, Plaintiffs were incarcerated and under the custody of the Department of Corrections and Rehabilitation ("DCR") at the Vega Alta Women's correctional institution." (Docket No. 27 ¶¶ 1-17.) On February 27, 2012, at approximately 2:00 a.m., male members of DCR's Tactical Operations Unit "stormed into" Sections 5, 6, and 7 of the Vega Alta correctional institution where approximately 100 female inmates were housed, including Plaintiffs.¹ Id. ¶¶ 30-31. The female plaintiffs were given plastic bags, ordered to place their belongings in them, and were "herded into the visitation area and ordered to sit on the floor." Id. ¶ 33. The women remained in the visitation area throughout the day, were not given any medical attention, and were surrounded at all times by the Tactical Operations Unit. (Docket No. 27 ¶ 34.) This caused an atmosphere of "tremendous anxiety." Id. ¶ 34.

At approximately 5:30 p.m. that same day, Defendant Sergeant Marrero ("Sgt. Marrero") entered the visitation area and called each of the Plaintiffs' names, "and announced, '[t]he butchies who act like men are going to Section 7.'"² Id. ¶ 35. "Plaintiffs were immediately relocated to Section 7, where they were kept in complete isolation from the rest of the general population in Vega Alta." Id. ¶ 36. Upon arrival, Plaintiff Melissa Arce González was assigned to Section 7"and was told she was being housed 'with the rest of the butches, where she would have no opportunity to find a girlfriend.'"³ Id. ¶ 37. On March 1, 2012, Plaintiff Willivette Feliciano Torres was relocated to the general population. Id. ¶ 38.

Plaintiffs allege there were only eight serviceable beds in Section 7 and they had to take turns sleeping on the floor. Id. ¶ 39. "During their segregation in Section 7, [P]laintiffs received no recreation," and "they were not allowed to eat in the dining area with the rest of the population." Id. ¶¶ 40-41. Plaintiffs' meals were brought to them after the rest of the population had eaten. Id. ¶ 42. The custodial officers told Plaintiffs that "women eat first, and then the butchies."⁴ Id. During the meals, a custodial officer was assigned to each Plaintiff "who would order her where to sit and eat." Id. ¶ 43. The custodial officers would stand over Plaintiffs as they ate and many would threaten Plaintiffs with their pepper spray. Id.

During the entirety of their segregation, Plaintiffs "were subjected to a constant barrage of verbal abuse by the custodial officers."⁵ Id. ¶ 44. "Plaintiffs were also subjected to derogatory and discriminatory comments directly by Defendants Vivian Ortiz ("Ortiz") and Sgt. Marrero, who would direct all manner of homophobic insults at them on a daily basis." Id. ¶ 45. On March 2, 2012, DCR's Regional Director, Ulrich Jiménez, personally visited Section 7, listened to the Plaintiffs, and apologized to them on behalf of DCR and of then-Secretary of DCR, Jesús González Cruz. Docket No. 27 ¶¶ 47, 48. A few hours after Mr. Jiménez's visit, [P]laintiffs were relocated among the general population. Id. ¶ 49. Several of the Plaintiffs objected to beingreassigned until they could speak with lawyers. Id. ¶ 50. Plaintiff Estela Lugo resisted being relocated and was assaulted by various correctional officers.⁶ Id.

III. Procedural Background

Plaintiffs filed the instant action against Defendant Vivian Ortiz, Colonel Nestor Velazquez, Samuel Jackson, Sgt. Marrero, one unnamed defendant and their spouses. (Docket No. 27 ¶¶ 18-25.) All Defendants were sued in their personal and individual capacities. Id. ¶ 26. Plaintiffs alleged that Defendants violated their rights under the United States Constitution, the Civil Rights Act of 1871, as amended, and under the Constitution and laws of the Commonwealth of Puerto Rico, in particular, P.R. LAWS ANN. tit. 31, § 5141. See Docket No. 1. Defendants then filed their Motion for a More Definitive Statement Pursuant to Federal Rule of Civil Procedure 12(e). (Docket No. 8.) This Court granted Defendants' motion and provided Plaintiffs twenty one (21) days to amend their Complaint. See Lopez v. Ortiz, 11 F.Supp. 3d 46 (D.P.R. 2014). This Court instructed Plaintiffs to properly establish a cause of action against Defendants since "general allegations under the Fifth, Eighth, and Fourteenth Amendments [are] insufficient." Id.

In their Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Defendants argue that this court lacks subject matter jurisdiction because Plaintiffs failed to exhaust all administrative remedies available to them before filing this suit, as mandated by the Prisoner Litigation Reform Act ("PLRA"). (Docket No. 34.) Plaintiffs opposed the Motion to Dismiss arguing that the failure to exhaustadministrative remedies is an affirmative defense and not a jurisdictional requirement. (Docket No. 38.) Defendants then moved the court for Judgment on the Pleadings, pursuant to Rule 12(c) of Federal Civil Procedure, wherein they argue that Plaintiffs failed to state a cause of action under the Fifth, Eight, and Fourteenth Amendments and that the PRLA bars Plaintiffs from bringing suit under 42 U.S.C. § 1983 ("Section 1983"), again, because they failed to exhaust all administrative remedies and because they did not allege physical injury. (Docket No. 39.)

After a careful review of all the pleadings, the court disagrees with Defendants' request regarding the jurisdictional issue but agrees, in part, with Defendant's Motion for judgment on the pleadings. The court's reasoning follows.

IV. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. Standard for Motion to Dismiss

Federal courts are courts of limited jurisdiction and thus have the responsibility "to police the border of federal jurisdiction." Spielman v. Genzyme Corp., 251 F.3d 1, 4 (1st Cir. 2001). Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") provides that a complaint will be dismissed if the court lacks subject matter jurisdiction. Motions under Rule 12(b)(1) are brought forth to attack two different types of defects: the pleader's failure to comply with Federal Rule of Civil Procedure 8(a)(1) and the court's actual lack of subject matter jurisdiction, which may exist despite the formal sufficiency of the allegations in the complaint. Tropical Air Flying Services, Inc. v. Carmen Feliciano de Melecio, 158 F. Supp. 2d 177, 181 (D.P.R. 2001). It is settled that the standard followed by the court when considering a dismissal request under Rule 12(b)(1) is that the court "must accept as true all well-pleaded factual claims and indulge all reasonable inferences in plaintiff's favor." Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). To determinejurisdiction under Rule 12(b)(1), the court may also review the evidence on record, including affidavits and depositions, as opposed to a dismissal request under any other subsection of Rule 12(b). Vaqueria Tres Monjitas, Inc. v. Laboy, No. 04-1840, 2006 WL 6925764, at *5 (D. P. R. October 2, 2006).

Once the defendant challenges the court's jurisdiction through a motion to dismiss, "it is plaintiff's burden to establish that the court has jurisdiction." Rolón v. Rafael Rosario & Assocs., Inc., 450 F. Supp. 2d 153, 156 (D.P.R. 2006). "When a federal court concludes that it lacks subject matter jurisdiction, the court must dismiss the complaint in its entirety." Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). "A final determination of lack of subject-matter jurisdiction of a case in a federal court, of course, precludes further adjudication of it." Willy v. Coastal Corp., 503 U.S. 131, 137 (1992).

B. Discussion

Plaintiffs assert that this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction under 28 U.S.C. § 1367. Docket No. 27 at 2-3. Under Section 1331 of the United States Code, "the district courts [ ] have original jurisdiction of all civil actions arising under the Constitution . . . of the United States." 28 U.S.C. § 1331. "The vast majority of cases brought under the general federal question jurisdiction of the federal courts are those in which federal law creates the cause of action." Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 808 (1986). Section 1343 of the United States Code states, in relevant part, as follows:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . (3) To redress the deprivation, under color of any

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