Perez Acevedo v. Rivero Cubano, 06-2633.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Citation: 520 F.3d 26
• Docket Number: No. 06-2633.,06-2633.
• Parties: Félix PÉREZ-ACEVEDO; Iris Yolanda-Quiñones; Conjugal Partnership Pérez-Quiñones, d/b/a Don Manuel Poultry Farm, Plaintiffs, Appellants, v. Luis RIVERO-CUBANO; Yasenia Figueroa-Guzmán; X and Y, Defendants, Appellees, Commonwealth of Puerto Rico, Representing the Agriculture Department, Defendant.
• Decision Date: 12 March 2008

520 F.3d 26 Félix PÉREZ-ACEVEDO; Iris Yolanda-Quiñones; Conjugal Partnership Pérez-Quiñones, d/b/a Don Manuel Poultry Farm, Plaintiffs, Appellants,
v.
Luis RIVERO-CUBANO; Yasenia Figueroa-Guzmán; X and Y, Defendants, Appellees,
Commonwealth of Puerto Rico, Representing the Agriculture Department, Defendant. No. 06-2633. United States Court of Appeals, First Circuit. Heard January 11, 2008. Decided March 12, 2008.

[520 F.3d 28]

Noel Avilés-González for appellants.

Juan P. Rivera-Roman and Juan P. Rivera-Roman Law Firm on brief, for appellants.

Rosa Elena Pérez-Agosto, Assistant Solicitor General, Department of Justice, with whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana D. Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-Rodríguez, Deputy Solicitor General, were on brief, for appellees.

Before HOWARD, Circuit Judge, STAHL and SILER,^* Senior Circuit Judges.

HOWARD, Circuit Judge.

The appellants, who are poultry farmers, sued the Commonwealth of Puerto Rico and two Commonwealth officials under 42 U.S.C. § 1983. The farmers' suit claimed that the defendants denied them certain benefits, in violation of their due process rights under the Fourteenth Amendment to the United States Constitution. The plaintiffs also presented claims under Puerto Rico law, which were joined under supplemental jurisdiction. The magistrate judge dismissed the claims. We affirm.

I.

Plaintiffs Félix Pérez-Acevedo and Iris Yolanda-Quiñones operate Don Manuel Poultry Farm, a farm dedicated to the production and sale of fresh eggs. In 2003, Puerto Rico's Secretary of Agriculture promulgated a regulation that reorganized production in the poultry industry. Administrative Order No.2003-058-Amended.¹ As part of the reorganizational scheme, farmers could, on a voluntary basis, join a production "nucleus" that would allow them to market products under the label "Del País".² The order also provided that nucleus members would receive specific benefits from Puerto Rico's Department of Agriculture, including loan-guarantee programs, infrastructure programs, and tax credits.

The plaintiffs did not join a nucleus, as the Don Manuel Poultry Farm promotes and distributes its own products and they saw no business reason to join. As a result, they experienced three disadvantages: 1) they were denied financial assistance for expansion of their farm from the Department of Agriculture; 2) they were charged special fees for inspections conducted by regulatory agencies; and 3) they were rendered newly ineligible for an existing supermarket credit program, whereby grocers received tax credits to buy products from designated local producers.

The plaintiffs filed suit under 42 U.S.C. § 1983 against the Commonwealth of Puerto Rico and two Commonwealth officials, former Secretary of the Department of Agriculture Luis Rivero-Cubano and Deputy Controller of the Fresh Eggs Industry of the Department of Agriculture Yasenia Figueroa-Guzmán, in their personal and official capacities.³ The plaintiffs alleged that the "Del País" program had violated their rights under the First and Fourteenth Amendments to the United

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States Constitution.⁴ They also asserted claims under Puerto Rico's Constitution and P.R. Laws Ann. tit. 31, §§ 5141-42. See 28 U.S.C. § 1367.⁵

The defendants' motion for judgment on the pleadings, under Fed.R.Civ.P. 12(c), was granted, and this appeal followed.

II.

We review the grant of judgment on the pleadings de novo. Mongeau v. City of Marlborough, 492 F.3d 14, 17 (1st Cir.2007).

A motion for judgment on the pleadings is treated much like a Rule 12(b)(6) motion to dismiss. Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir.2007). "Because [a Rule 12(c)] motion calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom...." R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir.2006). Under Bell Atlantic v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007), to survive a Rule 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain factual allegations that "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true...." Id. at 1965 (internal citation omitted).

From this posture, we consider the plaintiffs' claims. A section 1983 violation occurs when an official acting under color of state law acts to deprive an individual of a federally protected right.⁶ Maymi v. Puerto Rico Ports Authority, 515 F.3d 20, 25 (1st Cir.2008). Here, we assume that all facts in the complaint are true. We must determine whether, on those facts, the plaintiffs would be able show "above the speculative level" that such a deprivation occurred. Bell Atlantic, 127 S.Ct. at 1965.

This appeal centers on the plaintiffs' procedural due process claims.⁷ The plaintiffs make an initial argument that the court failed to consider their procedural due process claim in its order granting the motion for judgment on the pleadings.⁸ Although the dismissal order mentions the due process argument several times, the order does not analyze the claim. Nevertheless, we have considered the plaintiffs' procedural due process claim and find that it fails on the merits. See Torromeo v. Town of Fremont, 438 F.3d 113, 118 (1st Cir.2006) (under de novo review we may affirm the court below on any basis made apparent from the record).

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The test for a procedural due process violation requires the plaintiffs to show first, a deprivation of a protected property interest, and second, a...