Natal-Rosario v. Puerto Rico Police Dept.

• Decision Date: 18 May 2009
• Docket Number: Civil No. 08-1780 (JAG).
• Citation: 639 F.Supp.2d 174
• Parties: Jose NATAL-ROSARIO, et al., Plaintiffs v. PUERTO RICO POLICE DEPARTMENT, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

639 F.Supp.2d 174

Jose NATAL-ROSARIO, et al., Plaintiffs v. PUERTO RICO POLICE DEPARTMENT, et al., Defendants.

Civil No. 08-1780 (JAG).

United States District Court, D. Puerto Rico.

May 18, 2009.

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Julio Cesar Alejandro-Serrano, Amauri D. Padilla-Garcia, Nicolas Nogueras-Cartagena, Nicolas Nogueras Law Offices, San Juan, PR, for Plaintiff.

Jose J. Gueits-Ortiz, Department of Justice of Puerto Rico, Isabel Munoz-Acosta, U.S. Attorney's Office, District of Puerto Rico, San Juan, PR, for Defendants.

OPINION AND ORDER

GARCIA-GREGORY, District Judge.

Pending before the Court is Defendant Carlos Nazario's ("Nazario") motion to dismiss. (Docket No. 55). Additionally, Defendants Jane Erickson ("Erickson"), Miguel Marrero ("Marrero"), Iván López ("López"), and Mercedes Torres ("Torres") (collectively "Individual FBI Agents") moved to dismiss the claims against them. (Docket No. 57). For the reasons set forth below, the Court GRANTS in part and DENIES in part Nazario and Individual FBI Agents' (collectively "Defendants") motions to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

On December 31, 2008, Plaintiff José E. Natal Rosario ("Natal"), Katherine M. Álvarez ("Álvarez") and the conjugal partnership composed by both of them (collectively "Plaintiffs") filed the present complaint against Defendants requesting money damages under the Civil Rights Act, 42 U.S.C. § 1983, the Fourth, Fifth, and Fourteenth Amendment of the Constitution of the United States. Plaintiffs also proffered claims under the Constitution of the Commonwealth of Puerto Rico, Puerto Rico Law No. 115 of December 20, 1991 ("Law 115"), P.R. Laws Ann. tit. 29, § 194a(a), and the Puerto Rico statutory law of negligence, P.R. Laws Ann. tit. 31, §§ 5141, 5142. Essentially, Plaintiffs allege that Natal was an agent of the Puerto Rico Police Department ("PRPD") who was deputized by the Federal Bureau of Investigations ("FBI") to work in the Domestic Counter Terrorism Unit at that agency (hereinafter referred to as "the Unit"). According to Plaintiffs, on or about November 2006, Marrero and Torres, both of whom work for the FBI, targeted Natal for removal from the Unit. Plaintiffs aver that both of these federal officers implemented a systematic and continuous scheme to discredit Natal with his superiors and to tarnish his reputation within the Unit on the basis that Natal engaged in corrupt acts.

Plaintiffs allege that on April 11, 2008, co-defendant Nazario, a sergeant in the PRPD, and Marrero required that Natal appear in the offices of co-defendant Erickson, who is the Special Agent in Charge of the FBI. Once in Erickson's office, they allegedly informed Natal that it had come to the FBI's attention that he had sold information to a private citizen. According to Plaintiffs, Natal denied the charges and Erickson indicated to Natal that he should undergo a polygraph examination. Natal allegedly agreed to the exam.

Plaintiffs contend that co-defendant López, an FBI Agent, was supposed to administer the exam but instead questioned Natal about other matters that were not related to the alleged incident of selling information to a private citizen. According to Plaintiffs, López refused to conduct the polygraph examination and instead determined that Natal was lying. Plaintiffs claim that said determination was communicated to Erickson, who thereafter decided to remove Natal from the Unit. After Natal was removed from the Unit, he allegedly returned to the PRPD where he was informed by co-defendant José Caldero López ("Caldero"), who is a supervisor in the PRPD, that he would no longer be assigned to detective work because López had determined that he was corrupt. Plaintiffs aver that Natal was then transferred to Field Operations in the PRPD.

Plaintiffs claim that Natal's separation from the Unit and transfer from his detective work to the Fields Operation in the PRPD was done without due process of law in violation of his rights under the Fifth and Fourteenth Amendment. Additionally, Plaintiffs argue that Natal's substantive due process right under the Fourteenth and Fifth Amendment was violated. Furthermore, Plaintiffs allege that the act of intercepting Natal and interrogating him violated his rights under the Fourth Amendment. Plaintiffs also proffer several state law claims. (Docket No. 35).

On January 21, 2009, Caldero and co-defendant Ismael Morales ("Morales") moved to dismiss Plaintiffs' claims against them. Specifically, Caldero and Morales alleged that Plaintiffs' Fifth Amendment due process claims should be dismissed because neither of them were federal agents. Moreover, they claimed that Plaintiffs' Fourth Amendment claims against them should be dismissed because they were not involved in Natal's interrogation. Additionally, Caldero and Morales alleged that the complaint did not contain sufficient factual allegations to sustain Plaintiffs' Fourteenth Amendment claims against them. Alternatively, they averred that if this Court found that Plaintiffs adequately proffered claims under the Constitution of the United States, they were entitled to qualified immunity. Caldero and Morales also alleged that Álvarez' claims should be dismissed because she lacked standing to bring any claims under section 1983. Finally, Caldero and Morales requested that Plaintiffs' supplemental state law claims be dismissed. (Docket No. 41). On January 26, 2009, Plaintiffs opposed Caldero and Morales' motion to dismiss. (Docket No. 43).

On April 2, 2009, 609 F.Supp.2d 194 (D.P.R.2009), this Court issued an Opinion and Order granting in part and denying in part Caldero and Morales' motion to dismiss. Specifically, this Court dismissed Álvarez and the conjugal partnership's claims from the case at bar. Moreover Plaintiffs' Fourth and Fifth Amendment claims against Caldero were dismissed. Additionally, all claims against Morales were dismissed. (Docket No. 56).

Nazario now moves this Court to dismiss Plaintiffs' claims against him. In his motion to dismiss, Nazario argues that Plaintiffs' section 1983 claim against him should be dismissed because Plaintiffs failed to state a claim under the Fourth, Fifth, and Fourteenth Amendment. Nazario also argues that Álvarez' claims should be dismissed. Furthermore, Nazario requests that Plaintiffs' supplemental law claims against him be dismissed. (Docket No. 55). On April 23, 2009, Plaintiffs opposed Nazario's motion to dismiss. (Docket No. 61).

Individual FBI Agents also moved to dismiss the claims against them arguing that Plaintiffs only proffered negligence-based claims and, therefore, pursuant to 28 U.S.C. § 2679(d)(1) they should be substituted by the United States as the defendant.¹ The motion was accompanied by a certification that the Individual FBI Agents were acting within the scope of their employment at the time of the alleged incidents. The Government further argues that if the Individual FBI Agents are substituted, the claims against the United States should be dismissed because Plaintiffs failed to exhaust administrative remedies. Alternatively, the Individual FBI Agents argue that they are entitled to qualified immunity. (Docket No. 57). On April 23, 2009, Plaintiffs opposed the Individual FBI Agents' dismissal request. (Docket No. 67).

STANDARD OF REVIEW

1. Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss Standard

In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), the Supreme Court recently held that to survive a motion to dismiss under Rule 12(b)(6), a complaint must allege "a plausible entitlement to relief." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95-96 (1st Cir.2007) (citing Twombly, 127 S.Ct. at 1967). While Twombly does not require heightened fact pleading of specifics, it does require enough facts to "nudge [plaintiffs'] claims across the line from conceivable to plausible." Twombly, 127 S.Ct. at 1974. Accordingly, in order to avoid dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 1965.

The Court accepts all well-pleaded factual allegations as true, and draws all reasonable inferences in plaintiff's favor. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). The Court need not credit, however, "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like" when evaluating the Complaint's allegations. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). When opposing a Rule 12(b)(6) motion, "a plaintiff cannot expect a trial court to do his homework for him." McCoy v. Massachusetts Institute of Tech., 950 F.2d 13, 22 (1st Cir.1991). Plaintiffs are responsible for putting their best foot forward in an effort to present a legal theory that will support their claim. Id. at 23 (citing Correa-Martinez, 903 F.2d at 52). Plaintiffs must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory." Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988).

DISCUSSION

1. Individual FBI Agents

Plaintiffs' claims against the Individual FBI Agents are brought pursuant to section 1983, which creates a private cause of action against individuals who violate constitutional rights while acting under color of state law. DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 33 (1st Cir.2001). However, the Individual FBI Agents were acting under color of federal law and, therefore, section 1983 is inapplicable. See Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Accordingly, Plaintiffs' section 1983 claims against the Individual FBI Agents shall be dismissed.

Plaintiffs' constitutional claims are actually brought pursuant to the Bivens doctrine. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S....