Redondo Waste Sys. Inc. v. LÓpez–freytes

• Decision Date: 18 October 2011
• Docket Number: No. 10–1865.,10–1865.
• Citation: 659 F.3d 136
• Parties: REDONDO WASTE SYSTEMS, INC.; Big Blue Corp., Plaintiffs, Appellants,Haydee Redondo Maymí; Angel Luis Pérez Rodríguez, Plaintiffs,v.Carlos LÓPEZ–FREYTES, Former Executive Director of the Puerto Rico Environmental Quality Board and President of its Governing Board in his official and personal capacity; Angel Berrios–Silvestre, Associate Member of the Governing Board of the Puerto Rico Environmental Quality Board in his official and personal capacity; Eugene P. Scott–Amy, Vice–President of the Governing Board of the Puerto Rico Environmental Quality Board; Julio Iván Rodríguez–Colón, Manager of the Land Program of the Puerto Rico Environmental Quality Board and Alternate Member of its Governing Board, in his official and personal capacity, Defendants, Appellees,Javier J. Rua, Executive Director of the Puerto Rico Environmental Quality Board and President of its Governing Board, Defendant.
• Court: U.S. Court of Appeals — First Circuit

659 F.3d 136

REDONDO WASTE SYSTEMS, INC.; Big Blue Corp., Plaintiffs, Appellants,Haydee Redondo Maymí; Angel Luis Pérez Rodríguez, Plaintiffs,

v.Carlos LÓPEZ–FREYTES, Former Executive Director of the Puerto Rico Environmental Quality Board and President of its Governing Board in his official and personal capacity; Angel Berrios–Silvestre, Associate Member of the Governing Board of the Puerto Rico Environmental Quality Board in his official and personal capacity; Eugene P. Scott–Amy, Vice–President of the Governing Board of the Puerto Rico Environmental Quality Board; Julio Iván Rodríguez–Colón, Manager of the Land Program of the Puerto Rico Environmental Quality Board and Alternate Member of its Governing Board, in his official and personal capacity, Defendants, Appellees,Javier J. Rua, Executive Director of the Puerto Rico Environmental Quality Board and President of its Governing Board, Defendant.

No. 10–1865.

United States Court of Appeals, First Circuit.

Heard Sept. 9, 2011.Decided Oct. 18, 2011.

Fernando Luis Gallardo, Sr., with whom Woods & Woods LLP was on brief, for appellants.Ivonne Cruz Serrano, with whom Maymí, Rivera & Rotger, P.S.C. was on brief, for appellees.

Before LYNCH, Chief Judge, BOUDIN and THOMPSON, Circuit Judges.THOMPSON, Circuit Judge.

Plaintiffs Redondo Waste Systems, Inc., and Big Blue Corp. (collectively “Redondo”) appeal the district court's dismissal of their complaint alleging various malfeasance by the Puerto Rico Environmental Quality Board (“EQB”). Because Redondo's complaint states no plausible claim against any identifiable defendant, we affirm.

Redondo is a Puerto Rico-based business engaged in the treatment and disposal of regulated biomedical waste (sometimes abbreviated RBW). On November 17, 2008, Redondo filed the complaint at issue against the members of EQB's Governing Board, specifically Javier Rua, Carlos López–Freytes, Angel Berrios–Silvestre, Eugene Scott–Amy, and Julio Rodríguez–Colón. Whatever its legal weaknesses, the complaint tells a somewhat coherent story that we will now sum up.¹

Until 2002, Redondo's main method of waste disposal was incineration; that year, it invested in more environmentally friendly shredding equipment. A year later, Redondo began experiencing problems with its shredder. It therefore requested—and received—defendant Julio Rodríguez–Colón's approval to use autoclaves (which treat waste using high-temperature water vapor) rather than the shredder. This arrangement apparently worked for a few years, but in August 2006 EQB's inspector (and non-defendant) María de los Angeles Ortiz recommended that EQB issue an order shutting down Redondo's operations. On the same date, Ortiz threatened to fine the operator of the Yauco landfill if it received waste from Redondo. In November 2006, EQB ordered Redondo to stop collecting waste and to select an alternative facility for destroying the waste it had already accumulated.

For the next month, Redondo tried to work with EQB to get up and running again, but EQB remained mute or unhelpful. In late December 2006, Redondo sought a federal-court injunction requiring EQB to certify a replacement shredder Redondo had purchased. Redondo's complaint alleges that “the Court required EQB to certify [Redondo's] shredder,” but the district court docket shows that all Redondo's requests for injunctive relief were denied. In any event, Redondo resumed treating and disposing of waste in January 2007.

In February 2007, Redondo's second shredder broke. Around the same time, an EQB inspector determined that Redondo had been sending inadequately treated waste to the Yauco landfill.² Again the landfill stopped receiving waste from Redondo. Redondo sought a waiver from EQB (a request that EQB never acted on) and a bankruptcy-court injunction ordering the Yauco landfill operator to resume receiving treated waste from Redondo (which the court denied). In March 2007, EQB inspected Redondo's facility and determined that its shredder was in working order. EQB accordingly certified the shredder but ordered Redondo not to receive any more waste until it had dealt with the four million pounds that had accumulated while its equipment was broken or decertified. EQB rejected several of Redondo's proposed plans for dealing with this accumulated waste, finally appointing a company called Western Medical to do the job.³

Redondo's complaint alleges that EQB treated Redondo's competitor BFI/Stericycle much more favorably than it treated Redondo. Before 2003, BFI/Stericycle did not properly destroy any regulated biomedical waste but only once received a violation notice from EQB. Nor did EQB ever stop any landfill from receiving waste from BFI/Stericycle. Apparently because EQB would not act on its own to make BFI/Stericycle conform to Puerto Rico's waste-treatment laws, Dr. Haydee Redondo (an owner and corporate officer of Redondo) filed a complaint with EQB in 2001. But it does not appear anything came of this complaint; instead, EQB actually authorized BFI/Stericycle to dispose of inadequately treated waste in the Humaco landfill in 2002. Redondo makes no allegations about any other aspect of EQB's treatment of BFI/Stericycle after 2002, save for the implication that in 2003 BFI/Stericycle began properly destroying waste.

Redondo's complaint asserts four claims unmoored from any predicate factual allegations: (1) a request for declaratory judgment acknowledging that EQB's administrative adjudication process violates due process because of actual or structural bias; (2) an assertion that EQB retaliated against Redondo because of its protected speech, in violation of the First Amendment and 42 U.S.C. § 1983; (3) an assertion that EQB deprived Redondo of property without notice or hearing, in violation of the Fourteenth Amendment and § 1983; and (4) an assertion that EQB arbitrarily treated Redondo differently from its competitors, in violation of the Fourteenth Amendment and § 1983. On May 13, 2009, the defendants responded to the complaint with a Rule 12(b)(6) motion to dismiss. On June 25, 2009, Redondo conceded portions of the motion to dismiss,⁴ opposed others, and suggested that it would amend its complaint (but did not actually file a proposed amended complaint).

On March 31, 2010, the district court granted the motion to dismiss, relying primarily on the complaint's failure to link any claim to any particular defendant. On April 28, 2010, Redondo filed a motion to alter or amend judgment, finally attaching its proposed amended complaint. The defendants objected, and on June 16, 2010, the court denied the motion. This appeal followed. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court's order dismissing Redondo's complaint.⁵Rios–Colón v. Toledo–Davila, 641 F.3d 1, 4 (1st Cir.2011). We must reinstate the complaint if it “has facial plausibility” —in other words, if Redondo has pled “factual content that allows [us] to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). For us to draw such an inference, Redondo's complaint must allege facts linking each defendant to the grounds on which that particular defendant is potentially liable. Id. at 1948. If the complaint fails to do so, then we must affirm the dismissal order. Id.

The complaint fails the plausibility test spectacularly. Not only is no defendant specifically linked to any actionable conduct, but one of the captioned defendants is not even mentioned in the body of the complaint. Here is a summary of every mention of each defendant ⁶:

Javier Rua appears in the caption as “Executive Director of [EQB] and President of its Governing Board.” The complaint never mentions him again.

Carlos López–Freytes appears in the caption as “Former Executive Director of [EQB] and President of its Governing Board.” The complaint alleges that he supervised the other defendants in all their unspecified but allegedly illegal acts. Apparently when Redondo purchased a shredder, the financing bank contacted López. Additionally, Redondo sent López a letter requesting that an EQB inspector visit its facility to certify its new shredder; López did not answer the letter. And finally, after EQB shut down Redondo's operations in 2006, López publically threatened to fine companies that sent Redondo regulated biomedical waste anyway.

Angel Berrios–Silvestre appears in the caption as an “Associate Member of the Governing Board of [EQB].” The complaint mentions him once following the case caption. This mention reads in its entirety: “[Berrios] is an Associate Member of the Governing Board of the EQB and is being sued in his official and personal capacity. As a member of the Board, he acted under color of law in enforcing Puerto Rico and federal environmental laws.” According to Redondo's complaint, he enforced the laws—that is all.

Eugene Scott–Amy appears in the caption as “Vice–President of the Governing Board of [EQB].” The complaint alleges that Scott worked for the law firm that represents BFI/Stericycle before he worked for EQB. As a result of this work, he “continues to have a strong friendship and ties to the partners and associates of said law firm.” The complaint contains no other mention of Scott.

Julio Rodríguez–Colón appears in the caption as “Manager of the Land Program of [EQB] and Alternate Member of its Governing Board.” The complaint alleges that Rodríguez was supervised by defendant López. Rodríguez, in turn, supervised María de Los Angeles Ortiz and María Janice Sostre–Rivera. The complaint contains some conclusory allegations: he “wrongful[ly] refus[ed]...