Ramos-Pinero v. Commonwealth of Puerto Rico

• Decision Date: 30 June 2006
• Docket Number: No. 05-1797.,05-1797.
• Parties: Maria RAMOS-PIÑERO, et al., Plaintiffs, Appellants, v. COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

453 F.3d 48

Maria RAMOS-PIÑERO, et al., Plaintiffs, Appellants, v. COMMONWEALTH OF PUERTO RICO, et al., Defendants, Appellees.

No. 05-1797.

United States Court of Appeals, First Circuit.

Submitted April 5, 2006.

Decided June 30, 2006.

Nicolas Nogueras-Cartagena on brief for appellants.

Salvador J. Antonnetti-Stutts, Solicitor General; Mariana Negrón-Vargas, Deputy Solicitor General; Maite D. Oronoz Rodríguez, Deputy Solicitor General; and Leticia Casalduc-Rabell, Assistant Solicitor General, on brief for appellees Commonwealth of Puerto Rico and Department of Transportation and Public Works.

Francisco J. Amundaray on brief for appellee Municipality of San Juan.

Luis G. Martinez Llorens on brief for appellee Pep Boys-Manny, Moe & Jack of Puerto Rico, Inc.

Before SELYA and LIPEZ, Circuit Judges, and SAYLOR,^* District Judge.

SAYLOR, District Judge.

This appeal arises out of the tragic death of a fourteen-year-old boy who fell into an open manhole. The plaintiffs, mostly relatives of the boy, sought damages from various governmental and private defendants under 42 U.S.C. § 1983 and state tort law.¹ The district court dismissed the federal law claims on grounds of Eleventh Amendment immunity and for failure to state a claim, and declined to exercise its jurisdiction over the state law claims. Because we find that (1) the Commonwealth of Puerto Rico ("Commonwealth") and the Commonwealth Department of Transportation and Public Works (referred to in the pleadings by its Spanish-language acronym "DTOP") did not waive their Eleventh Amendment immunity from suit and (2) plaintiffs' claims against the remaining governmental defendants do not rise to the level of a federal constitutional violation, we affirm the dismissal.

I. BACKGROUND

Because the district court disposed of this case on motions to dismiss, we assume the truth of the facts set forth in the amended complaint. See Redondo-Borges v. U.S. Dep't. of Housing and Urban Dev., 421 F.3d 1, 5 (1st Cir.2005).

In the fall of 2003, Antonio Luis Ruiz Ramos was a student at the Llana Middle School in Río Piedras, Puerto Rico. On October 31, 2003, he left school around 1:40 p.m., after classes ended for the day. It was raining heavily, and much of 65th Infantry Avenue (a nearby street) and its surrounding sidewalks were flooded by the time Antonio Luis began his walk home.

Antonio Luis was walking with a classmate, Ishell Marie Dávila Villalobos. The two decided to cross 65th Infantry Avenue and wait out the rain on the balcony of a nearby business known as "El Caporal." After some period of time, Antonio Luis jumped off the balcony onto what he thought was solid ground.

Unknown to Antonio Luis, an open manhole had been obscured by the flood waters. He fell through the opening and into the rushing waters of a drainage pipe. The current propelled him underground back across 65th Infantry Avenue, and through land on which an auto-parts store owned by defendant Pep Boys — Manny, Moe & Jack of Puerto Rico, Inc. ("Pep Boys") is located. The water carried him to a surface drainage outlet, but discarded tires and auto parts obstructed the opening and he was trapped.

Rescuers eventually arrived, but the blockage slowed their efforts to locate Antonio Luis and provide medical assistance. He suffered multiple wounds to his head and body and drowned.

According to the complaint, various defendants were aware that the manhole lacked a cover, that a school was nearby, and that the area of 65th Infantry Avenue where the events occurred often flooded.

Antonio Luis's mother and other persons commenced a civil action in the United States District Court for the District of Puerto Rico on April 22, 2004. The complaint asserted claims for damages under 42 U.S.C. § 1983 and state tort law. Specifically, it alleged a violation of Antonio Luis's rights under the Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution by six defendants: (1) the Commonwealth; (2) DTOP; (3) the municipal government of San Juan, Puerto Rico ("Municipality"); (4) the Puerto Rico Aqueduct and Sewer Authority (PRASA); (5) Ondeo de Puerto Rico, Inc. ("Ondeo")², a private company operating under a service contract with PRASA; and (6) the Puerto Rico Highway Authority ("PRHA"). Plaintiffs also asserted state-law claims against all of the above defendants, along with Pep Boys and three unnamed insurance companies.

The Commonwealth and DTOP moved to dismiss on jurisdictional grounds, asserting immunity under the Eleventh Amendment of the United States Constitution. The Municipality moved to dismiss contending, inter alia, that plaintiffs failed to state a claim upon which relief could be granted under Fed.R.Civ.P. 12(b)(6).³

Proceeding in several stages, the district court dismissed the entire matter.⁴ On March 2, 2005, the court dismissed the claims against the Commonwealth and DTOP on the basis of Eleventh Amendment immunity. Later, the court dismissed the section 1983 claims against the Municipality pursuant to Rule 12(b)(6), on the ground that the Municipality's conduct failed to amount to a constitutional violation. The court then dismissed the claims against PHRA and Pep Boys on grounds similar to those of the Municipality and dismissed sua sponte the remaining claims against PRASA and Ondeo based on the same reasoning. With no federal claims remaining, the district court declined to exercise supplemental jurisdiction over the state law claims. The court denied plaintiffs' motion for reconsideration. This appeal ensued.

II. DISCUSSION

A. Standard of Review

The district court dismissed the section 1983 counts against the Commonwealth and DTOP on jurisdictional grounds, finding plaintiffs' claims barred by the Eleventh Amendment. The section 1983 claims against the remaining governmental defendants and Ondeo were dismissed under Rule 12(b)(6) for failure to state a claim.

In both instances, we review the lower court's dismissal order de novo, accepting the plaintiffs' well-pleaded facts as true and indulging all reasonable inferences therefrom. See, e.g., Redondo-Borges v. U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 5 (1st Cir.2005) (Rule 12(b)(6)); Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 22 (1st Cir. 2001) (Eleventh Amendment immunity). We are not bound by the reasoning of the district court, and may affirm an order of dismissal on any basis made apparent by the record. See Otero v. P.R. Indus. Comm'n, 441 F.3d 18, 20 (1st Cir.2006).

B. Eleventh Amendment Immunity

The Eleventh Amendment, as construed by the Supreme Court, bars a citizen from bringing an action in federal court against his or her own state. See Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001); see also Maysonet-Robles v. Cabrero, 323 F.3d 43, 48 (1st Cir.2003) (citing Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). A state, however, can waive its Eleventh Amendment immunity in three ways: "(1) by a clear declaration that it intends to submit itself to the jurisdiction of a federal court or administrative proceeding; (2) by consent to or participation in a federal program for which waiver of immunity is an express condition; or (3) by affirmative conduct in litigation." New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir.2004) (citations omitted).

Plaintiffs here claim waiver by affirmative conduct in litigation. Essentially, they contend that: the complaint alleged three specific grounds of waiver of immunity⁵; that the Commonwealth and DTOP responded to the complaint with a motion to dismiss (on grounds of Eleventh Amendment immunity) that did not deny those allegations with sufficient specificity; and that defendants' purported failure to do so itself constituted a waiver. Plaintiffs' theory is manifestly incorrect, if not entirely frivolous. If litigation conduct is to constitute a waiver of immunity, that conduct must be "unambiguous" and "must evince a clear choice to submit [the state's] rights for adjudication by the federal courts." Maysonet-Robles, 323 F.3d at 52. Filing a motion to dismiss that specifically asserts Eleventh Amendment immunity is hardly such an act. E.g., Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618-20, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (removing state action to federal court); Gardner v. New Jersey, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504 (1947) (filing a proof of claim in a bankruptcy proceeding); Paul N. Howard Co. v. P.R. Aqueduct & Sewer Auth., 744 F.2d 880, 886 (1st Cir.1984) (filing a counterclaim and third-party complaint in federal court).

Accordingly, we conclude that the Commonwealth and DTOP did not waive their immunity by filing a motion to dismiss. The dismissal of the federal claims against the Commonwealth and DTOP is therefore affirmed.

C. Substantive Due Process Claims

Plaintiffs' remaining section 1983 claims against the Municipality, PRASA, Ondeo, and PRHA (collectively, "Governmental Defendants") rest on an alleged violation of Antonio Luis's substantive due process rights. The Due Process Clause of the Fourteenth Amendment forbids a state from depriving a person of life, liberty, or property without due process of law. Notwithstanding its plain language, the Due Process Clause "guarantees more than fair process," Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), and "cover[s] a substantive sphere as well, barring certain government actions regardless of the fairness of the procedures used to implement them." County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (citation and internal quotation marks omitted).

The right to substantive due process is, however, confined within relatively narrow limits. The Supreme Court has emphasized that the Due Process Clause does not guarantee minimum levels of safety or security. See, e.g., Collins v. City of Harker...