Padro v. Department of Navy, Civ. No. 89-0995CCC.

• Decision Date: 20 March 1991
• Docket Number: Civ. No. 89-0995CCC.
• Parties: Millie PADRO, Francisco Padro, Milagros Issac, Plaintiffs, v. DEPARTMENT OF the NAVY, U.S. Navy Resale Activity, Capt. J.C. Kennedy, U.S.N., L.C.D.R. D.E. Rach, U.S.N., Manuel Menchaca, Defendants.
• Court: U.S. District Court — District of Puerto Rico

759 F. Supp. 958

Millie PADRO, Francisco Padro, Milagros Issac, Plaintiffs, v. DEPARTMENT OF the NAVY, U.S. Navy Resale Activity, Capt. J.C. Kennedy, U.S.N., L.C.D.R. D.E. Rach, U.S.N., Manuel Menchaca, Defendants.

Civ. No. 89-0995CCC.

United States District Court, D. Puerto Rico.

March 20, 1991.

COPYRIGHT MATERIAL OMITTED

Juan Cruz-Cruz, Luquillo, P.R., for plaintiffs.

Daniel F. López-Romo, U.S. Atty., Miguel A. Fernández, Asst. U.S. Atty., Hato Rey, P.R., for defendants.

OPINION AND ORDER

CEREZO, District Judge.

This action, brought by plaintiffs under the provisions of Bivens v. Six Unknown Named Agents,¹ is now before the Court on defendants' motion to dismiss (docket entry 8) and the corresponding opposition (docket entry 11). The basis for the action is main plaintiff Millie Padro's claim that her constitutional right not to be deprived from liberty and/or property without a due process of law was violated in the course of various incidents that took place while she was employed by the Naval Exchange (NEX) located at the Roosevelt Roads Naval Station, Puerto Rico. Plaintiff specifically alleges that she was: 1) verbally harassed and false imprisoned in order to force her to sign a statement, 2) dismissed from her employment on the basis of that statement and 3) later prohibited from entering the Naval Station. Defendants have moved for dismissal based on various legal theories, basically claiming that plaintiffs have failed to state a claim upon which relief can be granted, and that the Court lacks jurisdiction over both the subject matter and the person. Having carefully considered all the arguments presented, we now address the matter.

Mindful of the procedural stage in which this case is now before us, we briefly pause to recognize the generally accepted rule concerning motions to dismiss for failure to state a claim: that they should be viewed with disfavor and rarely granted. This should not be surprising, however, considering the applicable rule of law when deciding such a motion. As aptly summarized by Judge Selya:

In the precincts patrolled by Rule 12(b)(6), the demands on the pleader are minimal. As we have recently stated, the Court must "accept the well pleaded factual averments of the latest ... complaint as true, and construe those facts in the light most flattering to the plaintiffs' case ... exempting, of course, those `facts' which have since been conclusively contradicted by plaintiffs' concessions or otherwise, and likewise eschewing any reliance on bald assertions, insupportable conclusions, and `opprobrious epithets.'" Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir.), cert. denied 483 U.S. 1021, 107 S.Ct. 3266, 97 L.Ed.2d 765 (1987) (citations omitted). A Rule 12(b)(6) motion will be granted only if, when viewed in this manner, the pleading shows no set of facts which could entitle plaintiffs to relief. Conley v. Gibson, 355 U.S. 41, 45-48, 78 S.Ct. 99, 101-103, 2 L.Ed.2d 80 (1957).

Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988).

This is not to say, however, that the minimal pleading requirements imposed on plaintiffs by the Rules are to be overlooked, for they are "nonetheless required to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory ... If the facts narrated by the plaintiffs `do not at least outline or adumbrate' a viable claim, their complaint cannot pass Rule 12(b)(6) muster." Id. at p. 515 (citations omitted).

Having thus laid the groundwork for our inquiry, we turn to a detailed examination of the facts before us, as stated in the complaint, in order to determine whether they are sufficient to state a claim for relief under the applicable law. We begin by examining the first incident of an alleged constitutional violation suffered by plaintiff Ms. Padró: her illegal detention and false imprisonment. In this regard, the complaint stated:

2. On or about July 2, 1988, MS MILLIE PADRO, while performing her assigned duties at the Navy Exchange, Navy Resale Activity, Roosevelt Roads U.S. Naval Station, Puerto Rico, was summoned to the Exchange Security Office in the same building. Once in this Office, the Security Manager, MANUEL MENCHACA, after verbally harassing her for several minutes, handed her a handwritten note which he wanted MS. PADRO to pass on her own handwriting to another sheet of paper with the heading "Voluntary Statement".

3. That when MS. PADRO refused to do what MR. MENCHACA told her to do, she was locked by him in that office and informed that she would not be released until such time as she had written the statement handed to her. Depriving MS. PADRO of her liberty against her own will.

4. That fearing for her own safety, MS PADRO decided after a while, to write the statement as requested, even though she had no knowledge of most of the facts in the statements, and did not even know the meaning of many of the words included in it.

Plaintiffs claim that the incident described above amounts to a deprivation of Ms. Padró's liberty interests without a due process of law, in violation of the Fifth² Amendment to the U.S. Constitution. However, it has been repeatedly held that not every interference with personal liberty serves to activate the protection of the Due Process Clause. "It takes more than a false arrest or malicious prosecution claim to rise to the dignity of a constitutional violation, despite the loss of liberty that may be involved." Sami v. United States, 617 F.2d 755, 773 (D.C.Cir.1979). See also Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Among the factors to be taken into consideration as minimal requirements for a restriction of liberty claim to amount to a constitutional violation are whether the restriction of liberty was the result of an egregious and pervasive conduct, Sami v. United States, supra, at 773, or of conduct that "shocked the conscience" or was "otherwise offensive to the concept of ordered liberty." Baker v. McCollan, 443 U.S. at 147, 99 S.Ct. at 2696 (J. Blackmun, concurring). But a mere allegation that the restriction of liberty was committed by a governmental agent under color of official authority is not enough to transform what could certainly be considered a common law tort into a constitutional violation. Harper v. McDonald, 679 F.2d 955, 958 (D.C.Cir.1982). See also Baker v. McCollan, 443 U.S. at 147, 99 S.Ct. at 2696.

In view of the above, and after liberally interpreting the pleadings in favor of plaintiffs, we consider that the complaint, although terse and unarticulated, has managed to adumbrate a restriction of liberty claim cognizable under the Constitution. Indeed, the complaint alleges that plaintiff Ms. Padró was deprived of her liberty for what she describes as "a while," after having been verbally harassed, and with the intention of coercing her to write an involuntary statement; during circumstances that we assume rendered the detaining officer without probable cause to effectuate the detention in the first place. See Angola v. Civiletti, 666 F.2d 1, 3 (2d Cir.1981) (stating that "every person enjoys some measure of protection against being coerced into cooperating with law enforcement authorities by governmental techniques of intimidation and harassment.") We think that this is enough to describe conduct bordering in a violation to the Constitution and, at least for the moment, we opt to give plaintiffs the full fanfare of a constitutional claim.

With regard to plaintiffs' second allegation of a constitutional violation, the complaint stated:

5. That the statement mentioned above, on MS PADRO's handwriting, was used by her employer, Navy Resale Activity, Roosevelt Roads Naval Station, Puerto Rico, as basis for her removal from employment by the end of July, 1988.

6. That MS MILLIE PADRO was by the Navy Resale Activity, Roosevelt Roads U.S. Naval Station, Puerto Rico, employed as an intermittent employee, and was kept in that same category for over a year even though during all the time she worked a regular schedule and not an intermittent one. A change to a category of regular employee should had been effected in accordance with SECRETARY OF THE NAVY INSTRUCTIONS 5300.22A Chapter II, which calls for an evaluation and change in category once an intermittent employee is required to work a regular schedule for a period of 90 calendar days or more.

7. That by keeping MILLIE PADRO as an intermittent employee, her employer, NAVY RESALE ACTIVITY, denied her the right to appeal her dismissal from employment, under Chapter V SECNAVINST 5300.22A. Thus, depriving her of her constitutional right to the due process of law.

Plaintiffs claim that these actions infringed both their liberty and property interests without a due process, in violation of their constitutional guarantees.

It has been generally recognized that the concept of liberty embodied in the Constitution recognizes two particular interests of a public employee: 1) the protection of his good name, reputation, honor and integrity, and 2) his freedom to take advantage of other employment opportunities. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). In order for an employee to make a successful liberty deprivation claim, he must then prove that he has suffered an impairment of one of the above recognized interests. In cases involving a termination, this requires the employee to show that his/her dismissal was based on false and defamatory charges, and that the same were made public by the employer. Id.; See also Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 74 (1st Cir.1990), Brennan v. Hendrigan, 888 F.2d 189, 196 (1st Cir. 1989).

Notwithstanding this rule of law, we note that plaintiffs have completely failed to assert in their complaint any facts which could possibly be interpreted as showing that Ms. Padró was indeed...