SuÁRez Cestero v. Pagan Rosa

• Decision Date: 23 February 1998
• Docket Number: No. CIV. 97-2251(PG).,CIV. 97-2251(PG).
• Citation: 996 F.Supp. 133
• Parties: Surima SUÁREZ CESTERO, et al., Plaintiffs, v. Daniel PAGAN ROSA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

996 F.Supp. 133

Surima SUÁREZ CESTERO, et al., Plaintiffs, v. Daniel PAGAN ROSA, et al., Defendants.

No. CIV. 97-2251(PG).

United States District Court, D. Puerto Rico.

February 23, 1998.

COPYRIGHT MATERIAL OMITTED

A.J. Bennazar-Zequeira, A.J. Bennazar Zequeira Law Offices, Laura Gonzalez-Lugo, Hato Rey, for Plaintiffs.

Hjalmar Flax, Dept. of Justice, John F. Nevares, Smith & Nevares, San Juan, PR, Miguel A. Pagan-Rivera, Francisco San-Miguel-Fuxench, Hato Rey, PR, for Defendants.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

I. INTRODUCTION

Plaintiffs, Surima Suárez Cestero (Suárez), by herself, and in representation of and as one of the heirs of Marcial Suárez and Encarnación Fuentes, and the Estate of Marcial Suárez and Encarnación Fuentes ("the Estate"),¹ brought the present action under 42 U.S.C. § 1983 against defendants Daniel Pagán Rosa, in his personal and official capacities as Secretary of the Department of Natural Resources and the Environment ("Secretary" and "DNRE"); Ferdín Carrasquillo Ayala, in his personal and official capacities as Mayor of Loíza ("the Mayor"); Pedro Toledo, in his personal and official capacities as Superintendent of the Puerto Rico Police Department; and Carmelo Correa, in his personal and official capacities as Carolina Area Commander of the Puerto Rico Police Department, for alleged violations of their federal rights as protected by the Due Process Clause of the Fifth and Fourteenth Amendments and the Takings Clause of the Fifth Amendment to the Constitution of the United States. Jurisdiction is alleged pursuant to 28 U.S.C. § 1343(a)(3).

Plaintiffs aver that defendants, by their actions, (1) illegally and forcibly detained Suárez and prevented her from carrying out a lawful commercial activity in violation of her liberty rights as protected by the Fifth and Fourteenth Amendments; (2) deprived Suárez and the Estate of their property interest in the commercial enterprise without due process, in violation of the Fifth and Fourteenth Amendments; (3) caused or directed the occupation of plaintiffs' property, which was thus taken without just compensation in violation of the Takings Clause of the Fifth Amendment; (4) illegally stopped and continue to illegally impede the development of the "Lago del Palmar" project as it has been approved pursuant to the permits issued to it and have thus deprived the plaintiffs of their property interest in those permits without due process in violation of the Fifth and Fourteenth Amendments; (5) deprived Suárez of her property interest in the sand extraction permits issued to her without due process in violation of the Fifth and Fourteenth Amendments; (6) illegally stopped and intend to permanently stop the development of the "Lago del Palmar" project thereby taking it without just compensation in violation of the Fifth Amendment. Plaintiffs request that this Court issue a temporary restraining order, and a preliminary and permanent injunction against Pagán. Carrasquillo and Toledo to enjoin them from further action to prevent sand extraction pursuant to the permit granted Suárez, and to enjoin Toledo to provide adequate protection to those engaged in the sand extraction activities. Plaintiffs also request that defendants be held liable to them for damages amounting to not less than $400,000.00 in losses, $23,000,000.00 for the alleged taking, $3,000,000.00 each to Suárez and Encarnación in compensatory damages, and not less than $5,000,000.00 in punitive damages. Before the Court are defendants' sundry motions to dismiss for lack of jurisdiction (Dkt. # 25, 31, 35 & 39), and plaintiffs' opposition thereto (Dkt. # 37), alleging that (1) plaintiffs' claim for injunctive relief has been rendered moot by newly enacted legislation, see S.J. Res. 398, 13th Leg., 2nd Sess. (P.R.1997) (enacted); (2) plaintiffs' § 1983 damages action is not ripe for failure to exhaust available state remedies; (3) the claims should be dismissed on qualified immunity grounds; and (4) the claims are barred by the Eleventh Amendment. Since the motions deal with essentially the same issues, the Court will address them jointly and by topic.

II. PROCEDURAL & FACTUAL BACKGROUND

Before we begin, it should be noted that this case carries with it a baggage of state and administrative procedures which were initiated long before the case was filed in federal court. In presenting the procedural background the Court will try to be as brief as possible.

Plaintiffs are the owners in fee simple of a parcel of land in the Medianía Baja Ward of the Municipality of Loíza. The parcel is located approximately 900 meters inland from the coast, 2.5 Km. East of the Río Grande de Loíza and 2.3 Km. West of the Río Herrera, with its only entrance located at Km. 8.4 of Puerto Rico State Road No. 187. In addition to her interest in the property as a member of the Estate. Suárez has a contract with the Estate for the extraction of sand from the property and a DNRE permit for its extraction. Plaintiff alleges that the extraction of sand from the property is the first phase of a residential project being developed by the Estate. The project has been denominated "Lago del Palmar" and will feature an artificial lake for the recreational activities of the future residents and flood reduction in the area.

Plaintiff allegedly sought and received approval for the project from the Aqueduct and Sewers Authority, the Puerto Rico Electric Power Authority, the Department of Transportation and Public Works, the Institute of Puerto Rican Culture, the Puerto Rico Telephone Company, the Puerto Rico Environmental Quality Board, as well as from the Municipality of Loíza and the DNRE. Plaintiffs allege that although the sand extraction was incidental to the project, as approved by all the aforementioned agencies, the DNRE additionally required that Suarez obtain an extraction permit. See P.R. Laws Ann. tit. 28, § 206 et seq. (1985). Suárez complied with all the application requirements and, after public notice and without opposition, the permit was issued on December 17, 1996. Plaintiffs claim they relied on the permit and commenced sand extraction on January, 1997.

On April 29, 1997, the Municipality filed a civil action in the Carolina Superior Court requesting a temporary restraining order, and temporary and permanent injunctions to prevent the extraction of sand from the property. They averred that the construction permits requested for Lago del Palmar were a subterfuge for obtaining a commercial sand extraction permit which would create an artificial lake without properly evaluating the individual and cumulative environmental impact on the surrounding area. The complaint was later amended to join the DNRE, the Puerto Rico Environmental Quality Board and ARPE as parties, as well as to make additional averments attacking the permits granted the Estate by these agencies.

Plaintiffs allege that on May 8, 1997, the Mayor mobilized trucks and machinery belonging to the Municipality of Loíza, together with several municipal employees and other persons, and led them to plaintiffs' property, where they allegedly blocked the entrance and departure of trucks working on the sand extraction and prevented Suárez and the truck drivers from leaving the property. Plaintiffs further allege that Suárez sought the protection of the Puerto Rico Police, but that Correa, who happened to be in the vicinity, ignored her request and refused to have a policeman take the necessary information to file criminal charges against the Mayor and the others who were forcibly denying access to the property. Plaintiffs also contend that Superintendent Toledo was appraised of the situation after Suárez' attorneys called the Loíza Police headquarters and requested their protection. Plaintiffs claim that the police, instead of intervening to protect Suárez in the exercise of her rights, assisted Carrasquillo and his followers in holding Suárez and the truck drivers hostage. The obstructive behavior on the part of the Mayor and the police continued for several days.

On May 8, while allegedly held hostage at the property, Suárez was served with the Carolina Superior Court complaint. Suárez and the Estate answered the complaint and counterclaimed, requesting a temporary restraining order and preliminary and permanent injunctions enjoining the Municipality from obstructing the sand extraction activities. They alleged that they had obtained all the necessary permits to effectuate the sand extraction and that the Municipality never expressed opposition to the expedition of such permits. They also requested monetary damages.

After a hearing on May 12, 1997, the Carolina Superior Court issued a TRO enjoining the extraction of sand for ten (10) days, and later extended it for an additional ten (10) days. On May 30, after another hearing and an on-site inspection, the Court issued a judgment granting the preliminary injunction, further enjoining the sand extraction for an additional 60 days and ordering the DNRE to carry out within that term an environmental evaluation. On June 23, the Estate and Suárez petitioned the Puerto Rico Court of Appeals, 7th Regional Circuit, to issue a writ of certiorari to review the trial court's issuance of the preliminary injunction, on the grounds that the trial court lacked jurisdiction. The Circuit Court denied the petition.

On August 4, 1997, the Carolina Superior Court denied the issuance of a permanent injunction and dismissed the Municipality's complaint "without prejudice of the determinations that may be reached by the pertinent forums with jurisdiction over this subject matter." Partial Sentence at 11, Municipio de Loíza v. Sucesion Suárez Fuentes (Sup.Ct.Carolina, Aug. 4, 1997) (No. FPE97-0332). To date, these civil proceedings have generated a considerable record. The Estate's counterclaim against the Municipality and the DNRE is still pending before the Carolina Superior Court and the...