Rivera–concepciÓn v. Commonwealth of P.R.

Decision Date30 September 2010
Docket NumberCivil No. 08–2378 (BJM).
Citation786 F.Supp.2d 442
PartiesJayrie RIVERA–CONCEPCIÓN, et al., Plaintiffs,v.Commonwealth of PUERTO RICO, et al., Defendants.
CourtU.S. District Court — District of Puerto Rico


Daliah Lugo–Auffant, Miguel A. Perez–Vargas, Perez Vargas & Lugo Auffant Law Offices, Hato Rey, PR, for Plaintiffs.Jorge Viera, Vega Alta, PR, pro se.


BRUCE J. McGIVERIN, United States Magistrate Judge.

This case arises from plaintiff Jayrie Rivera–Concepción's (Jayrie) expulsion in January 2007 from the Córdova and Fernós Congressional Internship Program (“Program”) subsequent to her sudden manifestation of a previously-undiagnosed bipolar disorder. ( See Docket No. 10–3). Before the court are the parties' memoranda in compliance with the court's order (Docket No. 47) requesting briefing on the following issues: (1) whether all defendants have sovereign immunity from plaintiffs' claims under Title II of the Americans with Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. § 12101 et seq., and section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq., and (2) whether sovereign immunity requires dismissal of plaintiffs' claims under Articles 1802 and 1803 of the Puerto Rico Civil Code, 31 L.P.R.A. §§ 5141, 5142.1 (Docket Nos. 50, 51). For the reasons that follow, the court hereby DISMISSES WITH PREJUDICE plaintiffs' Article 1802 and 1803 claims against the Program, the Puerto Rico Senate (“Senate”), the Puerto Rico House of Representatives (“House”), and José Aponte–Hernández (“Aponte”) and Kenneth McClintock in their official capacities (together with the Commonwealth, “the Commonwealth defendants), DISMISSES any Article 1802 and 1803 claims against defendants McClintock and Aponte in their personal capacities, DENIESdefendants' motion to dismiss plaintiffs' Title II and Rehabilitation Act claim against the Commonwealth defendants, and DISMISSES WITH PREJUDICE any Title II and Rehabilitation Act claims against individual defendants José Aponte–Hernández and Kenneth McClintock in their personal capacities.


In order to survive a Rule 12(b)(6) motion, a complaint must allege “a plausible entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Pérez–Acevedo v. Rivero–Cubano, 520 F.3d 26, 29 (2008). However, a court should “accept well-pled factual allegations in the complaint as true and make all reasonable inferences in the plaintiff's favor.” Miss. Public Employees' Retirement System v. Boston Scientific Corp., 523 F.3d 75, 85 (1st Cir.2008). While a complaint need not contain detailed factual allegations in order to withstand dismissal, a plaintiff's “obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citation omitted). The court need not accept as true legal conclusions or “naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (internal alteration omitted); Maldonado v. Fontanes, 568 F.3d 263, 267 (1st Cir.2009). The complaint must allege enough factual content to nudge a claim across the line from conceivable to plausible. Iqbal, 129 S.Ct. at 1952 (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955). The court's assessment of the pleadings is context-specific, requiring the court “to draw on its judicial experience and common sense.” Id. at 1949. The plaintiff must show more than the “sheer possibility that a defendant has acted unlawfully.” Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but has not shown, that the pleader is entitled to relief. Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

On a Rule 12(b)(6) motion to dismiss, “the facts are set forth as alleged in the complaint and inferences [are] taken in the light most favorable to ... the non-moving party.” Diaz–Romero v. Mukasey, 514 F.3d 115, 116 (1st Cir.2008); Estate of Bennett v. Wainwright, 548 F.3d 155, 163, 165 (1st Cir.2008). The court may consider documents the authenticity of which are not disputed by the parties, documents central to the plaintiffs' claim, and documents sufficiently referred to in the complaint. Curran v. Cousins, 509 F.3d 36, 44 (1st Cir.2007) (internal citation omitted). When “a complaint's factual allegations are expressly linked to—and admittedly dependent upon—a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6).” Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir.1998).2


Absent consent or valid congressional abrogation of state sovereign immunity, the Eleventh Amendment proscribes suits in which the state or one of its agencies or departments is named as the defendant. See generally Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 662–63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Commonwealth of Puerto Rico is treated as a state for purposes of Eleventh Amendment immunity analysis. Redondo Constr. Corp. v. P.R. Highway & Transp. Auth., 357 F.3d 124, 125 n. 1 (1st Cir.2004). Eleventh Amendment immunity can be raised at any time because of its jurisdictional implications.” Acevedo López v. Police Dep't, 247 F.3d 26, 28 (1st Cir.2001). The jurisdictional bar extends to officials and instrumentalities that function as arms of the state.3 Mt. Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Eleventh Amendment immunity “applies regardless of the nature of the relief sought,” Pennhurst, 465 U.S. at 100, 104 S.Ct. 900, thereby barring the recovery of damages in official capacity suits brought against Puerto Rico officials where recovery will come from the public fisc. Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Culebras Enters. Corp. v. Rivera Rios, 813 F.2d 506, 516 (1st Cir.1987) (citing Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).

The Commonwealth can waive its immunity in three ways: (1) by a clear declaration that it intends to submit itself to the jurisdiction of a federal court; (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). However, the Commonwealth's “waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.” Díaz–Fonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir.2006) (quoting Pennhurst, 465 U.S. at 99 n. 9, 104 S.Ct. 900).

Defendants claim sovereign immunity applies to plaintiffs' claims under Articles 1802 and 1803, the ADA, and the Rehabilitation Act. (Docket No. 51). Plaintiffs contend that defendants waived sovereign immunity from the state-law claims through their litigation conduct. (Docket No. 50, p. 4–7). Plaintiffs also argue that Congress validly abrogated defendants' sovereign immunity in the Rehabilitation Act and Title II of the ADA. ( Id., p. 7–11).

I. Tort Claims Under Puerto Rico Law

Article 1802 provides, “A person who by an act or omission causes damage to another through fault or negligence shall be obligated to repair the damage so done.” 31 L.P.R.A. § 5141. Article 1803 makes the Commonwealth “liable in this sense under the same circumstances and conditions as those under which a private citizen would be liable.” 31 L.P.R.A. § 5142. Neither law explicitly waives the Commonwealth's sovereign immunity; while Law 104, 32 L.P.R.A. § 3077, abrogates the Commonwealth's immunity with respect to negligence suits filed against it in its own courts, the statute does not extend the waiver to suits filed in federal court. Díaz–Fonseca, 451 F.3d at 33–34; Maysonet–Robles v. Cabrero, 323 F.3d 43, 51 n. 6 (1st Cir.2003).

Defendants argue that they may not be sued for torts committed outside Puerto Rico. (Docket No. 51, p. 20–22). To this end, defendants contend that the alleged tort at issue occurred outside Puerto Rican jurisdiction because Jayrie allegedly was dismissed from the Program while she was in the Washington, D.C./ Alexandria, Virginia area. (Docket No. 51, p. 21–22). Plaintiffs do not address this argument. Plaintiffs' amended complaint alleges that defendant Francisco Rodríguez–Carambot (“Rodríguez”), who is in default, is an employee of the Puerto Rico Legislative Assembly, that he was also in that area at the time, and that it was he who expelled Jayrie from the Program. (Docket No. 10–3, p. 2, ¶ 6, p. 3, ¶¶ 6, 8, p. 4, ¶ 14). However, the amended complaint does not allege any particular conduct by any other defendants ( i.e., those in Puerto Rico at the time), save that once Jayrie's parents arrived in Washington, “the Defendants told them she had been expelled for her health condition. ( Id., p. 4, ¶ 11). It is not clear whom, exactly, Jayrie's parents contacted, nor does the alleged conversation appear to cover any other act than Rodríguez's expulsion of Jayrie.

Law 104's waiver of immunity for negligence actions is limited; it does not comprehend “suits for damages against the...

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