Rivera-Muriente v. Agosto-Alicea, Civ. No. 90-1530 (JP).

• Citation: 770 F. Supp. 770
• Decision Date: 05 August 1991
• Docket Number: Civ. No. 90-1530 (JP).
• Parties: Juan RIVERA MURIENTE, Plaintiff, v. Juan AGOSTO ALICEA, et al., Defendants.
• Court: United States District Courts. 1st Circuit. District of Puerto Rico

770 F. Supp. 770

Juan RIVERA MURIENTE, Plaintiff, v. Juan AGOSTO ALICEA, et al., Defendants.

Civ. No. 90-1530 (JP).

United States District Court, D. Puerto Rico.

August 5, 1991.

Elías Dávila Berríos, Hato Rey, P.R., for plaintiff Juan Rivera Muriente.

Alice Net Carlo, García Rodón, Correa Martínez & Valderas, Hato Rey, P.R., for defendant Juan Agosto Alicea.

Mayra Maldonado Colón, Dept. of Justice, Federal Litigation Div., San Juan, P.R., for defendant García Santiago.

OPINION AND ORDER

PIERAS, District Judge.

The Court has before it the defendants' motion for summary judgment based on the fact that the plaintiff's complaint was time barred under the one year statute of limitations dictated by the relevant Puerto Rico law.

This is a civil rights case brought pursuant to 42 U.S.C. § 1983. The plaintiff, Juan Rivera Muriente, claims that he was discharged from his position as Investigator at the Bureau of the Lottery, Treasury Department of the Commonwealth of Puerto Rico, without the required pre-termination hearing. Since February of 1988, plaintiff had been on sick leave. In April of the same year, he received a letter dated March 28, 1988, in which codefendant Juan Agosto Alicea, then Secretary of the Treasury Department, brought charges against the plaintiff. According to the letter, the charges "constituted sufficient motive to impose disciplinary measures, including the dismissal from ... his position." Complaint, Exhibit A at 1; certified English translation, Docket Entry No. 58. The letter informed the plaintiff of the various charges and stated that he had fifteen days to request an informal administrative hearing to present witnesses and documentary evidence necessary to challenge the imposed disciplinary measures. Plaintiff argues that he filed such a request with the Legal Division of the Treasury Department on April 18, 1988. See Complaint, Exhibit B. The defendants claim that receipt of these letters was never recorded in the Register of Correspondence at the Legal Division of the Treasury Department, and that Rivera therefore waived his right to a pre-termination hearing. At that time, plaintiff's supervisor, Guillermina Aguilar, allegedly advised him that his name had been deleted from the employee's roster and that he was not authorized to enter the work premises.

Plaintiff contends that after sending the March 28, 1988 letter, codefendant Agosto Alicea further pursued him by issuing a series of press releases reiterating the charges filed against Rivera. In May of 1988, 153 of these charges were dismissed at a preliminary hearing, and the three remaining charges were dismissed at trial by way of a motion for nonsuit in April of 1989.¹ After the dismissal of all criminal charges, the plaintiff did not return to work. Codefendant Agosto resigned as Secretary of the Treasury in August of 1989, and later that month, the plaintiff wrote a letter to Mrs. Luz Delia Oquendo, Director of Personnel of the Department of the Treasury, informing her that the requested hearing was never granted. Complaint, Exhibit D. This letter was never answered.

Plaintiff contends that he was never given the pre-termination administrative hearing, and that he was therefore deprived of his right to continued employment without due process of law. Plaintiff filed the complaint in this case on April 10, 1990. The named defendant are Juan Agosto Alicea, former Secretary of the Treasury, and Ramón Garcia Santiago, the person who replaced Agosto. He requests injunctive relief and damages in the amount of $737,290.000.

I. SUMMARY JUDGMENT — THE LEGAL STANDARD

A motion for summary judgment is appropriately granted when:

The pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(c).

In a summary judgment motion, the movant bears the burden of demonstrating "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2254, 91 L.Ed.2d 265 (1986).

The nonmovant then bears the burden of establishing the existence of a genuine material issue. Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989). However, the nonmovant may not rest upon mere allegations or denial of the pleadings; it must respond, by affidavits or other supporting evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).

II. SECTION 1983 AND THE APPLICABLE STATUTE OF LIMITATIONS

It is well settled that state law statutes of limitations govern suits in federal courts arising under § 1983. Board of Regents v. Tomanio, 446 U.S. 478, 484, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440, 447 (1980); Ramirez Morales v. Rosa Viera, 815 F.2d 2, 4 (1st Cir.1987); Altair Corp. v. Pesquera de Busquets, 769 F.2d 30, 31 (1st Cir. 1985). The Supreme Court has further stated that in § 1983 actions, federal courts are to borrow the state-law limitations period for personal injury claims. Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988); Wilson v. Garcia, 471 U.S. 261, 279, 105 S.Ct. 1938, 1948-49, 85 L.Ed.2d 254 (1985). In Puerto Rico, the appropriate statute of limitations to apply to § 1983 actions is the one-year prescription for tort claims, Article 1868, 31 L.P.R.A. § 5298(2).²Rodriguez Narváez v. Nazario, 895 F.2d 38, 42 (1st Cir.1990); Altair Corp., 769 F.2d at 31.

A. Nature of right at issue

The due process clause of the fourteenth amendment of the United States Constitution guarantees public employees who have a property interest in continued employment the right to at least an informal hearing before they are discharged. Kauffman v. Puerto Rico Telephone Co., 841 F.2d 1169, 1173 (1st Cir.1988) (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985)). It is well established that a state employee's job is "property" only if state law gives the employee such "property" right in their continued employment. Cleveland Board of Education, 470 U.S. at 538, 105 S.Ct. at 1491. Under the law of Puerto Rico, government employees holding "career" or tenured jobs possess property rights in their continued employment.³ Kauffman, 841 F.2d at 1173.

In this case, the plaintiff held a "career" position as Investigator III in the Lottery Bureau. Thus, prior to being discharged, he was entitled to at least an informal hearing, and was so informed in the letter sent to plaintiff by codefendant Agosto on March 28, 1988.

B. Accrual

The accrual period for a section 1983 cause of action is governed by federal law, Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and begins to run when the plaintiff knows or has reason to know of the injury which forms the basis of the action. Street v. Vose, 936 F.2d 38, 39 (1st Cir.1991); Marrapese v. Rhode Island, 749 F.2d 934, 936 (1st Cir.1984), cert. denied, 474 U.S. 921, 106 S.Ct. 252, 88 L.Ed.2d 259 (1985). The underlying rationale of this rule is that the question when all the elements of the 1983 cause of action are present should be a question of federal law. Colburn v. Trustees of Indiana University, 739 F.Supp. 1268, 1300 (S.D.Ind.1990) (citing S. Nahmod, Civil Rights and Civil Liberties Litigation § 4.15 at 254 (2d ed. 1986)).

In the instant case, plaintiff alleges a violation of his procedural due process rights because defendant Agosto deprived him of his salary and his employment, without promptly providing him with the requested pre-termination hearing. Assuming that plaintiff requested the administrative hearing in April of 1988, he received no response to this request, and during the entire period from February 1988 to August of 1989, he did not report to work. According to Rivera, in April of 1988, he was told by Guillermina Aguilar, his supervisor, that he could not go to work, and that she had been given instructions that he was no longer an employee. Also, plaintiff spoke to a former coworker who had told him that the Deputy Director of the Lottery had intimated that Rivera had already been fired. Codefendant Agosto's Motion Submitting Certified Translations, Docket Entry No. 58, Exhibit B. The plaintiff received his last paycheck in November of 1988. Pretrial Order, Uncontested Fact No. 6. This paycheck represented the accumulated vacation days and it was not a salary. Agosto Motion submitting Certified Translation, Exhibits B, C. Therefore, plaintiff knew or should have known of the loss of his property interest — his continued employment — when he received the last paycheck liquidating his vacation. However, plaintiff did not file this lawsuit until April 10, 1990, well over a year after receiving this last check. Moreover, he declared that by the time he sent the letter in August of 1989, he understood he had already been "eliminated from the lists" and that he had been fired. Codefendant Agosto's Motion for Submitting Certified Translations, Exhibit E, plaintiff's deposition at 31.

Although the plaintiff has submitted several exhibits demonstrating conflicts over whether and when he was actually eliminated from the employees' roster list,⁴ and argues that he never received a formal notice of dismissal, these arguments are without merit. As mentioned above, the plaintiff knew he was discharged or removed when he was told by another coworker and by Aguilar that he was fired. Also, he no longer received a salary or any other payments from his employer, so that he must have known that he was not going to receive the requested pre-termination hearing prior to discharge.

Plaintiff further contends that the applicable accrual period is in August of 1989, when codefendant Agosto Alicea resigned from his position as Secretary of the Treasury and was no longer able to provide the plaintiff with the...