Gonzalez v. Otero

• Citation: 172 F.Supp.3d 477
• Decision Date: 28 March 2016
• Docket Number: Civil No. 08–1330(DRD)
• Parties: Vicente Gonzalez, Linnete Munoz, and their conjugal partnership, Victor Franco, Margarita Rodriguez, and their conjugal partnership, Plaintiff(s), v. Octavio Otero, Rogelio Velez, Edwin Sepulveda, Jorge Quinones, Berta Santiago, James Adamski, Raymond Johnson, Stephen Ackman, Mark Nozaki, Billy Higgason, Ramon Roman, Gunner Pederson, Defendant(s).
• Court: U.S. District Court — District of Puerto Rico

172 F.Supp.3d 477

Vicente Gonzalez, Linnete Munoz, and their conjugal partnership, Victor Franco, Margarita Rodriguez, and their conjugal partnership, Plaintiff(s),

v.Octavio Otero, Rogelio Velez, Edwin Sepulveda, Jorge Quinones, Berta Santiago, James Adamski, Raymond Johnson, Stephen Ackman, Mark Nozaki, Billy Higgason, Ramon Roman, Gunner Pederson, Defendant(s).

Civil No. 08–1330(DRD)

United States District Court, D. Puerto Rico.

Signed March 28, 2016

Nicolas Nogueras–Cartagena, Nicolas Nogueras Law Offices, Jely A. Cedeno–Richiez, San Juan, PR, for Plaintiffs.

Isabel Munoz–Acosta, Lisa E. Bhatia–Gautier, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Defendants.

OPINION AND ORDER

DANIEL R. DOMINGUEZ, United States District Judge

Pending before the Court are the following motions: (a) Motion Requesting Leave for Summons by Publication, Docket No. 62; (b) Notice to the Court Regarding Plaintiffs' Request for Service of Publication filed by the federal officers and defendants Jorge Quinones;¹ Berta Santiago; Raymond Johnson and Rogelio Vélez (hereinafter defendants “Quinones; Santiago; Johnson and Velez”), Docket No. 63; (c) Motion to Dismiss and Memorandum in Support and Notice of Substitution of Parties, filed by defendants, Quinones; Santiago; Johnson, and Velez, Docket No. 64; (d) Motion to Supplement Motion to Dismiss, Docket No. 66; (e) Opposition to Motion to Dismiss, filed by plaintiffs, Docket No. 71; (f) Defendants' Reply to Plaintiffs Opposition to Motion to Dismiss, Docket No. 78; (g) Motion to Dismiss for Lack of Personal Jurisdiction and Motion for Joinder of Defendants' Motion to Dismiss (Docket 64) and Defendants (Docket 78), filed by defendant Gunnar Pederson (“Pederson”), Docket No. 82; (h) Plaintiffs' Opposition to Defendant Gunnar Pederson's Motion to Dismiss, Docket No. 83; (I) Motion to Supplement Motion in Response to Defendants' Motion to Dismiss under Rule 12(b)(6) filed by plaintiffs, Docket No. 93; and (j) Second Motion to Supplement Response to Motion to Dismiss filed by plaintiffs, Docket No. 94.

In addition, the parties have filed several motions, notwithstanding the fact that the Court specifically ordered that “the stay will remain in effect until the Court entertains the Motion to Dismiss for Lack of Personal Jurisdiction and Motion for Joinder of Defendants' Motion to Dismiss (Docket 64) and Defendants' (Docket 78) . See Minutes of January 31, 2011, Docket No. 107.²

For the reasons set forth below, defendants' Motion to Dismiss and Memorandum in Support and Notice of Substitution of Parties, Docket No. 64; Supplemental Motion to Dismiss, Docket No. 66; and, defendants' Reply to Plaintiffs' Opposition, Docket No. 78, are granted.

Introduction

This action was originally filed on March 18, 2008, against all defendants in their official and personal capacity. See Docket No. 1. However, prior to the commencement of the instant action both plaintiffs Gonzalez and Franco had initiated administrative proceedings with the Department of the Army of the United States (“Army”), which the Court deems critical in the factual and legal analysis of the instant complaint. This matter will be thoroughly discussed in more detail infra, the Court notes in a nutshell that neither Franco or Gonzalez exhausted their administrative procedures with the Agency and/or the Commission. Instead, plaintiffs opted to file the instant complaint ten months after the Army's final decision was rendered.³

After the filing of the instant complaint on March 18, 2008, plaintiffs filed on September 1, 2009, a third amended complaint against the same defendants but sue them in their personal capacity only, and added a claim under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), entitled “The Conspiracy To Impede Gonzalez's Appointment as Director Of The Directorate of Emergency Services, Hereinafter Referred To As DES, In Fort Buchanan.” See Docket No. 61–2.

On November 9, 2009, plaintiffs filed a Notice of Partial Voluntary Dismissal of Claims Against Jorge Quiñones and James Adamski With Prejudice, Docket No. 72. In addition, plaintiffs moved for the dismissal of all claims related to the First Amendment of the United States Constitution, as the “plaintiffs have conceded that no First Amendment Claims may lie on these facts and hereby voluntarily dismiss the same.” See Docket No. 72. Hence, as of November 9, 2009, the only remaining defendants under the [Third] Amended Complaint, Docket No. 61 are, Octavio Otero, Rogelio Velez, Edwin Sepulveda, Berta Santiago, Raymond Johnson, Stephen Ackman, Mark Nozaki, Billy Higgason, Ramon Roman, Gunner Pederson, and the United States of America.

As of this date, however, the only remaining defendants pending in this case, who have been sued in their personal capacity and have been properly served with service of process [regardless of whether the service of process was timely or not], are four defendants, to wit, Rogelio Velez; Berta Santiago; Raymond Johnson; and, Gunner Pederson.⁴ Lastly, according to the record of the Court, the United States is not a party in this case, as the United States of America was never served with service of process. The record shows that summons were issued by the Clerk's Office to serve the United States through the United States Attorney General, the United States Attorney for the District of Puerto Rico and the United States Army Garrison. See Docket No. 18. However, there is no evidence in the record of the Court that the summons issued were indeed properly served upon the United States, as they were not returned executed.

Before proceeding any further it is important to enumerate certain key facts and their chronology which are critical to the time frame of the facts in the instant case.

1. On April 3, 2007, COL Ackman provided plaintiff Vicente Gonzalez (“Gonzalez”) a letter placing him on Administrative Leave pending the outcome of the criminal investigation being conducted against Gonzalez. See Third Amended Complaint, Docket No. 61, ¶ 89⁵ and Docket No. 66–2, page 2. On April 12, 2007, plaintiff Gonzalez contacted the EEO Office, and the initial interview was conducted on even date, that is, April 12, 2007, Reference No. ARFTBUCH07APR01261. See Docket No. 66–4, pages 2–9.

2. On April 5, 2007, COL Ackman provided plaintiff Victor Franco (“Franco”) a similar letter placing him on administrative leave pending the outcome of the criminal investigation. See Third Amended Complaint, Docket No. 61, ¶ 91, and Docket No. 66–5, page 2. On April 13, 2007, plaintiff Franco contacted the EEO Office, and the initial interview was conducted on the same date, that is, April 13, 2007. Reference No. ARFTBUCH07APR01281. See Docket No. 66–7.

3. On April 18, 2007, Special Agent Higgason and Special Agent Roman informed plaintiff Gonzalez that he was being investigated for possible criminal charges of Conspiracy (18 U.S.C. § 371 ); Graft (18 U.SC. § 208 ); False Statements (18 U.S.C. § 1001 ); Obstruction of Justice (18 U.S.C. § 1506 ), and Theft of Public Property (18 U.S.C. § 641 ). See Third Amended Complaint, Docket No. 61, ¶¶ 95–97.

4. On May 17, 2007, the EEO Counselor hand delivered separate Memorandums to both plaintiffs, Gonzalez and Franco. See Docket entries No. 66–4, and 66–7.

5. On July 9, 2007, plaintiff Franco was reinstated to his position as an Investigator with the Department of Army Civilian Police (“DACP”). See Third Amended Complaint, Docket No. 61, ¶ 101.

6. On or about October 11, 2007, Special Assistant U.S. Attorney Javier Calderon (“SAUSA Calderon”), informed plaintiff Gonzalez that there was no basis to conclude that plaintiffs Gonzalez or Franco had committed the listed criminal offenses. See Third Amended Complaint, Docket No. 61, ¶ 102.

7. On November 11, 2007, the Criminal Investigation Division (“CID”) issued a final report closing the investigation because there was no evidence to prove or disprove Gonzalez' participation in illegal activities. See Third Amended Complaint, Docket No. 61, ¶¶ 120–121.

8. On February 20, 2008, plaintiff Gonzalez received an official memorandum issued by Evelyn Rivera, Security Manager for Fort Buchanan (“FBPR”) stating that his security clearance had been suspended based on information that stemmed from the pending criminal investigation. See Third Amended Complaint, Docket No. 61, ¶ 104. On that same date, defendant Pederson issued a memorandum to plaintiff Gonzalez detailing him to the Directorate of Human Services while his security clearance was suspended.Id.9. April 23, 2008, and after a review of the files of the pending criminal investigation, Garrison Commander Ackman restored plaintiff Gonzalez his security clearance. See Third Amended Complaint, Docket No. 61, ¶ 106. Plaintiff Gonzalez was allowed to return to his normal duties as the Chief of Police at Fort Buchanan.

10. It is important to note, that both plaintiffs, Gonzalez and Franco were placed on administrative leave with pay until they were cleared and restored to their normal duties. Hence, plaintiffs Gonzalez and Franco suffered no economic damages, as they were being paid while the investigation was being conducted. “Therefore, no employment harm as it relates to your employment has occurred. ” (Emphasis ours). See Army's Final Decision issued on the Complaint filed by plaintiff Franco, dated May 31, 2007, Docket No. 66–9, page 3.⁶ “EEOC has asserted that complainant [Franco] that continued to be paid while on leave and that, under certain circumstances, placement on paid administrative leave for brief periods would not result in harm sufficient to state a justiciable claim. ” Id . “Therefore, in accordance with applicable regulations, Title 29, Code of Federal Regulations, Sections 1614.107(a)(1), this claim is dismissed for failure to state a claim. ” Id. (Emphasis ours).

11. The record shows that the instant complaint was filed on March 18, 2008, that is, after the 30 day period to appeal the

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