Cosme Rosado v. Serrano Rodriguez, Civil No. 98-1491 (JAG).

• Decision Date: 22 March 2002
• Docket Number: Civil No. 98-1491 (JAG).
• Citation: 196 F.Supp.2d 117
• Parties: Pedro COSME ROSADO, et als., Plaintiffs, v. Alfredo SERRANO RODRIGUEZ, et als., Defendants.
• Court: U.S. District Court — District of Puerto Rico

196 F.Supp.2d 117

Pedro COSME ROSADO, et als., Plaintiffs, v. Alfredo SERRANO RODRIGUEZ, et als., Defendants.

Civil No. 98-1491 (JAG).

United States District Court, D. Puerto Rico.

March 22, 2002.

COPYRIGHT MATERIAL OMITTED

Antonio Bauza-Torres, San Juan, PR, for plaintiffs.

Isabel Garces-Castro, Guaynabo, PR, Eduardo A. Vera-Ramirez, San Juan, PR, for defendants.

OPINION AND ORDER

GARCIA-GREGORY, District Judge.

Plaintiffs, Pedro Cosme-Rosado, Lydia Esther Rosado-Figueroa, and their conjugal partnership; Maria Teresa Cosine; Pedro Orlando Cosine-Rodriguez; and Yaritza Cosine-Rodriguez, brought suit under 42 U.S.C. §§ 1983 and 1988, the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution, and various state laws against Defendants, Alfredo Serrano-Rodriguez ("Serrano"), Mayor of the City of Naranjito and President of the local Popular Democratic Party, in his individual and official capacities; 3-C Construction; Cristino Cruz, and his conjugal partnership, seeking monetary damages for alleged constitutional violations, injunctive relief, and attorney's fees and costs. Defendants have moved for summary judgment (Docket No. 30). Plaintiffs have not filed a statement of contested material facts with specific references to record. After applying Local Rule 311.12, the Court grants Defendants' motion.

FACTUAL BACKGROUND

Plaintiffs are leaders and members of the New Progressive Party (NPP) and Defendants are members of the Popular Democratic Party (PDP). Plaintiffs allege that Defendants continually harassed them from 1992 to 1998 because of the their political affiliation. Specifically, Plaintiffs allege that Defendants illegally expropriated their land and forced them to live in rented homes. Plaintiffs further contend that their properties were subject to damages before the expropriation process began and that many of their belongings were destroyed. (Docket 40, Opposition to Summary Judgment, p. 3) Notwithstanding Plaintiffs allegations, the uncontested facts¹ establish that: In February 1993, Plaintiffs received a letter from Serrano in which the City stated an interest to expropriate their properties. (Docket 40, Exhibit No. 1). On July 21, 1994, the Municipal Assembly notified Plaintiffs that the Municipality was interested in expropriating their property and summoned them to voice their concerns at a public hearing to be held the next day. (Docket 30, Exhibit No. 3). On August 10, 1994, the Municipal Assembly approved an Ordinance authorizing the Municipality to begin expropriation proceedings. (Docket 30, Exhibits No.4). On August 12, 1994, Mayor Serrano signed the Ordinance. Id. The Puerto Rico Planning Board also approved the expropriation. (Docket 30, Exhibits No. 5). On June 6, 1996, a state court held that defendants complied with all the legal requirements needed to expropriate Plaintiffs' properties and ordered the expropriation of Plaintiffs' properties. (Docket 30, Exhibit No. 2, pages 1-4); (Docket 30, Exhibit No. 7, pages 1-3). In February 1999, Plaintiffs recovered their properties' value when the parties settled the expropriation sum and Plaintiffs withdrew their compensation. (Docket 30, Exhibit No. 6).

DISCUSSION

Summary judgment is appropriate 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party must demonstrate "an absence of evidence to support the nonmoving party's case." See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The nonmoving party must then "set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e).

Local Rule 311.12 requires the moving party to file and annex to the motion a "separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried," properly supported by specific references to the record. Similarly, the rule requires the non-moving party to file a statement of contested material facts. All material facts set forth in the moving party's statement "will be deemed to be admitted unless controverted by the statement required to be served by the opposing party." (Emphasis supplied.) The First Circuit has consistently upheld the validity of Local Rule 311.12. See, e.g., Morales v. Orssleff's EFTF, 246 F.3d 32, 33 (1st Cir. 2001); Rivas v. Federacion de Asociaciones Pecuarias, 929 F.2d 814, 816 n. 2 (1st Cir.1991).

As noted earlier, Plaintiffs failed to submit a concise statement of contested material facts properly supported by specific references to the record. As a result, Plaintiffs have failed to comply with the so-called "anti-ferret rule," as they have not presented a concise statement of material facts as to which there is a genuine issue to be tried.

The Court is not required to "ferret through the record" lurking for facts that may favor Plaintiffs when those facts were not proffered under a counterdesignation of facts as required by Local Rule 311.12. Morales, 246 F.3d at 33. "When a party opposing a motion for summary judgment fails to comply with the `antiferret rule,' the statement of material facts filed by the party seeking summary judgment [shall be] deemed ... admitted." Mendez Marrero v. Toledo, 968 F.Supp. 27, 34 (D.P.R.1997); Tavarez v. Champion Prods., Inc., 903 F.Supp. 268, 270 (D.P.R. 1995).

Here, Plaintiffs took the risk "to sit idly by and allow the summary judgment proponent to configure the record." Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991). Although the nonmovant's failure to provide a statement of contested material facts does not automatically warrant the granting of summary judgment, "it launches the nonmovant's case down the road towards an easy dismissal." Mendez Marrero, 968 F.Supp. at 34. Since all material facts in Defendants' statement of uncontested material facts are deemed admitted, the Court need only examine whether, given the uncontested facts, Defendants are entitled to judgment as a matter of law.

In order to prevail on a § 1983 claim and other federal constitutional claims, Plaintiffs must establish: (1) that the conduct complained of was committed by a person acting "under color of state law," see Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); (2) that Defendants' conduct "deprived plaintiff[s] of rights, privileges or immunities secured by the Constitution or laws of the United States", see Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir.1985); and (3) that a causal connection exists between the defendants' actions and the alleged deprivation. See Soto v. Flores, 103 F.3d 1056, 1061-62 (1st Cir.1997).

1. DUE PROCESS CLAIM

Under the Fourteenth Amendment to the Constitution, no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. IV, § 1. In order to establish a procedural due process claim under § 1983, Plaintiffs must allege first that they have a property interest as defined by state law and, second, that Defendants, acting under color of state law, deprived them of that property interest without a constitutionally adequate process. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265,(1982); PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 30(1st Cir. 1991).

Upon review of the record the Court concludes that although Plaintiffs had a legitimate property interest in their land they were deprived of it through a constitutionally adequate process. The "Fifth Amendment does not proscribe taking of property; it proscribes taking without just compensation." See Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 195, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). No constitutional violation occurs until just compensation has been denied. Id. Just compensation need not be paid in advance of, or contemporaneously with the taking. Id. All that is constitutionally required is the existence of an adequate provision for obtaining compensation at the time of the taking. Id.

Due process sometimes requires some type of notice or hearing prior to the deprivation in order to prevent arbitrary deprivations before they occur. See Zinermon v. Burch, 494 U.S. 113, 127-133, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). If the officials who deprive an individual of his property have authority to provide a pre-deprivation process, a post-deprivation remedy does not satisfy due process unless there is necessity for prompt governmental action. Id; see also Logan, 455 U.S. at 436, 102 S.Ct. 1148. Pre-deprivation remedies are appropriate for deprivations carried out pursuant to a governmental practice or established policy. See Zinermon, 494 U.S. at 138, 110 S.Ct. 975.

Given the uncontested facts, this Court cannot infer that Plaintiffs due process rights were violated. The expropriation at all times was done according to law. The Municipality notified their interest in Plaintiffs' property by means of a letter, and also provided for a public hearing before the taking. (Docket 40, Exhibit No.1); (Docket 30, Exhibit No.3). Thus Plaintiffs were afforded pre-deprivation due process.

Also, an adequate provision to obtain compensation through judicial process in the Courts of Puerto Rico existed at the time of the taking. (Docket 30, Exhibit No. 2). Plaintiffs indeed sought compensation in the Puerto Rico court proceeding and it was granted. (Docket 30, Exhibit No. 6). The only way they could prevail on their damage claims for deprivation of due process is to prove that the remedies granted were inadequate. Hudson v. Palmer, 468 U.S. 517, 539, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Culebras Enterprises v. Rivera Rios, 813 F.2d.506, 515 ...