Barreras v. Soto

• Decision Date: 28 January 2022
• Docket Number: Civil 18-1029 (MEL)
• Parties: JOSE A. WISCOVITCH BARRERAS, et al., Plaintiffs, v. CARMEN YULÍN CRUZ SOTO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

JOSE A. WISCOVITCH BARRERAS, et al., Plaintiffs,
v.
CARMEN YULÍN CRUZ SOTO, et al., Defendants.

Civil No. 18-1029 (MEL)

United States District Court, D. Puerto Rico

January 28, 2022

REPORT & RECOMMENDATION

Marcos E. López, U.S. Magistrate Judge.

Mr. José Wiscovitch Barreras (“Mr. Wiscovitch”), Rosario Castañeda Casanova (“Ms. Castañeda”), the Conjugal Partnership formed between Mr. Wiscovitch and Ms. Castañeda, Claudia Wiscovitch, and Victoria Wiscovitch (collectively “Plaintiffs”) filed an amended complaint against Carmen Yulín Cruz Soto, former Mayor of San Juan (“Mayor Cruz”), in her individual capacity, and against the Municipality of San Juan (“the Municipality”) (collectively “Defendants”). ECF No. 14.^[1] Mr. Wiscovitch brings suit pursuant to the Civil Rights Act, 42 U.S.C. § 1983, alleging that Defendants violated his rights secured under the First, Fourth, and Fourteenth Amendments of the United States Constitution. ECF No. 14 at 2. Mr. Wiscovitch also seek injunctive relief against enforcing an administrative fine imposed on him which he alleges violated protections to his commercial speech secured under the First Amendment of the United States Constitution. ECF No. 14 at 8-9. Finally, Mr. Wiscovitch

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brings supplemental causes of action based in Article I Section 10 and Article II Sections 1, 8, 10, ^[2] and 16 of the Puerto Rico Constitution, and all Plaintiffs sue to recover for emotional harm under Puerto Rico Civil Code Section 1802. ECF No. 14 at 9-11.

Pending before the court are Defendants Mayor Cruz and the Municipality of San Juan's motions for summary judgment. ECF Nos. 105, 107. Defendants filed a joint statement of undisputed material fact in support of their individual motions for summary judgment. ECF No. 106. Plaintiffs responded in opposition to both motions for summary judgment on September 7, 2021, with a single accompanying response statement of material fact. ECF Nos. 134, 135, 136. Defendants were granted leave to file and subsequently filed individual reply motions and a single joint reply statement of material fact. ECF Nos. 144, 145, 147.

I. LEGAL STANDARD

The purpose of summary judgment “is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.” Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992) (citations omitted). Summary judgment is granted when the record shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it has the potential of determining the outcome of the

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litigation.” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting Rodríguez-Rivera v. Federico Trilla Reg'l Hosp., 532 F.3d 28, 30 (1st Cir. 2008)).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant presents a properly focused motion “averring ‘an absence of evidence to support the nonmoving party's case[, ]' [t]he burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both ‘genuine' and ‘material.'” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). For issues where the nonmoving party bears the ultimate burden of proof, the party cannot merely “rely on an absence of competent evidence, but must affirmatively point to specific facts [in the record] that demonstrate the existence of an authentic dispute.” McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (citation omitted). The party need not, however, “rely only on uncontradicted evidence . . . . So long as the [party]'s evidence is both cognizable and sufficiently strong to support a verdict in her favor, the factfinder must be allowed to determine which version of the facts is most compelling.” Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (emphasis in original) (citation omitted).

In assessing a motion for summary judgment, the court “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor.” Griggs-Ryan, 904 F.2d at 115. There is “no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, [and] no room for the judge to superimpose his own ideas of probability and likelihood.” Greenburg v. P. R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). The court may, however, safely ignore “conclusory allegations, improbable inferences, and

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unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted).

II. MR. WISCOVITCH'S UNSWORN DECLARATION IN SUPPORT OF HIS OPPOSITIONS TO MOTIONS FOR SUMMARY JUDGMENT

In support of Plaintiffs' motion in opposition to Defendants' motions for summary judgment, Plaintiffs submitted Mr. Wiscovitch's unsworn declaration made under penalty of perjury. ECF No. 134-1. Defendants move to strike Mr. Wiscovitch's statement alleging that it is a “sham affidavit” created for the sole purpose of creating material issues of fact to survive summary judgment. ECF No. 147 at 2-4; ECF No. 145 at 4-7.

A party is permitted to submit an affidavit in opposition to a motion for summary judgment so long as it is “made on personal knowledge, set[s] out facts that would be admissible in evidence, and show[s] that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Simply because an affidavit contains self-serving statements is not a basis to discredit an affidavit alone. Malavé-Torres v. Cusido, 919 F.Supp.2d 198, 205 (D.P.R. 2013) (indeed, “[m]ost affidavits are self-serving, as is most testimony . . .”) (internal citations omitted). Some portions of an affidavit may meet the requirements set forth in Rule 56, while others may not. Pérez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001). As such, Rule 56 operates as a “scalpel, not a butcher knife” and the court will disregard only the portions of the affidavit that are inadequate while considering the rest. Id. at 315 (citing Akin v. Q-L Inv., Inc., 959 F.2d 521, 531 (5th Cir.1992)).

But “where a party has given ‘clear answers to unambiguous questions' in discovery, that party cannot ‘create a conflict and resist summary judgment with an affidavit that is clearly contradictory,' unless there is a ‘satisfactory explanation of why the testimony has changed.'” Escribano-Reyes v. Pro. HEPA Certificate Corp., 817 F.3d 380, 386 (1st Cir. 2016) (quoting

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Hernández-Loring v. Universidad Metropolitana, 233 F.3d 49, 54 (1st Cir. 2000)). In determining whether the affidavit constitutes an attempt to manufacture an issue of fact to defeat summary judgment, the court may consider the party's explanation for any discrepancies as well as the timing of the affidavit. Malave-Torres, 919 F.Supp.2d at 203; Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 110 (1st Cir. 2006) (“[T]he Statement was executed only after [the defendant] had filed its motion for summary judgment, thus suggesting that the Statement was made solely to create an issue of fact for the purpose of surviving summary judgment . . .”).

Here, Defendants argue that Mr. Wiscovitch's unsworn declaration fabricates disputed facts when none exist, contradicts Mr. Wiscovitch's deposition testimony, and otherwise contains hearsay and irrelevant statements. ECF No. 147 at 2-4, 6; ECF No. 145 at 4-7. The timing of Mr. Wiscovitch's unsworn declaration does appear suspect. The unsworn declaration is dated “the 6th day of September 2021”-one day before Plaintiffs filed their response in opposition to Defendants' motions for summary judgment. ECF No. 134-1 at 2. Nevertheless, the contents of the unsworn declaration are not clearly contradictory to any of the testimony Mr. Wiscovitch gave in his prior deposition. Mr. Wiscovitch's unsworn declaration under penalty of perjury contains eighteen individual statements. ECF No. 134-1. The Municipality asserts a litany of proposed facts that Plaintiffs oppose using “only” the “sham affidavit.” ECF No. 145 at 5. However, a close examination of the facts shows that Plaintiff used sources other than the unsworn declaration-including Mr. Wiscovitch's deposition testimony-to contest all but one of Defendants' material, admissible, proposed facts that the Municipality identifies.^[3]

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Despite its late timing, at most Plaintiffs used Mr. Wiscovitch's unsworn declaration to bolster other evidence already in the record.

Likewise, Defendants fail to identify which specific statements contradict Mr. Wiscovitch's prior testimony, which statements are irrelevant, or which constitute hearsay. In contrast, Mr. Wiscovitch's unsworn declaration is wholly written on the basis of statements originating from his personal knowledge on the date of the incident in question, and he describes specific conversations with specific people at specific times. Upon reviewing Mr. Wiscovitch's deposition testimony and the unsworn declaration, nothing suggests that the facts contained in the unsworn declaration are contradictory to his sworn testimony. Mr. Wiscovitch's unsworn declaration is therefore sufficiently specific, based in his personal knowledge, and is not contradictory. While the timing of Mr. Wiscovitch's unsworn declaration gives reason to pause, the substance of the unsworn declaration alongside other evidence in the record shows that it is not a sham affidavit and can be properly considered for summary judgment...