Toro-McCown v. Department of Natural and Environmental Resources of Puerto Rico et al, No. 3:2008cv01058 - Document 87 (D.P.R. 2008)

Court Description: OPINION AND ORDER granting re 23 MOTION to dismiss as to Julio A. Toro-McCown filed by Luis Miguel Cruz, Javier Quintana-Mendez, Solid Waste Authority of Puerto Rico Clerk to enter judgment accordingly. Signed by Chief Mag. Judge Justo Arenas on 12/22/2008.(nydi) Modified on 8/12/2009 to correct document type (rc).

Download PDF
1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 JULIO A. TORO McCOWN, 5 Plaintiff 6 v. 7 8 9 10 11 12 13 14 15 16 17 18 19 LAYLANIE RUIZ-OLMO; SOLID WASTE AUTHORITY OF PUERTO RICO; HONORABLE JAVIER Và LEZ AROCHO, IN HIS PERSONAL AND OFFICIAL CAPACITIES AS SECRETARY OF THE DEPARTMENT OF NATURAL AND ENVIRONMENTAL RESOURCES OF PUERTO RICO; JAVIER QUINTANA Mà NDEZ, IN HIS PERSONAL AND OFFICIAL CAPACITIES AS EXECUTIVE DIRECTOR OF THE SOLID WASTE AUTHORITY OF PUERTO RICO; LUIS MIGUEL CRUZ, IN HIS PERSONAL AND OFFICIAL CAPACITIES AS ADMINISTRATOR OF THE ENVIRONMENTAL AGENCIES BUILDINGS; ABC INSURANCE CO.; JOHN DOE; STATE INSURANCE FUND CORPORATION, CIVIL 08-1058 (FAB) (JA) 20 Defendants 21 22 OPINION AND ORDER 23 24 This matter is before the court on the motion to dismiss of defendants Solid 25 26 Waste Authority, Javier Quintana Méndez, and Luis Miguel Cruz (collectively 27 SWA ). (Docket No. 23.) The motion was filed February 27, 2008. In it, the 28 SWA invokes Rule 12(b)(1) of the Federal Rules of Civil Procedure (lack of subject 1 CIVIL 08-1058 (FAB) (JA) 2 2 3 matter jurisdiction), as well as Rule 12(b)(6) (failure to state a claim upon which 4 5 relief can be granted). 6 defendants motion on March 25, 2008. (Docket No. 46.) That same day, Toro 7 moved 8 to voluntarily Plaintiff Julio A. Toro McCown ( Toro ) responded to dismiss defendants Department of Natural and Environmental Resources ( DRNA ) and Honorable Javier Vélez Arocho, Secretary 9 10 of the DRNA, because those two defendants and Toro had reached an agreement 11 to grant Toro the reasonable accommodation he sought. (Docket No. 47.) The 12 court granted Toro s motion on June 16, 2008, and dismissed defendants DRNA 13 and Vélez Arocho without prejudice. (Docket No. 56.) On April 1, 2008 the SWA 14 15 16 17 18 submitted its reply to Toro s response. (Docket No. 49.) On April 8, Toro filed a surreply in response to the SWA s reply. (Docket No. 51.) I. FACTUAL AND PROCEDURAL BACKGROUND Toro filed his complaint on January 14, 2008. He asserts that there is 19 20 federal subject matter jurisdiction over this cause of action because it arises under 21 the Constitution and laws of the United States. (Docket No. 1.) He invokes the 22 Americans with Disabilities Act ( ADA ), 42 U.S.C. § 12101 et seq., the 23 Rehabilitation Act, 29 U.S.C. § 794(a), the Civil Rights Act, 48 U.S.C. §§ 1983, 24 1988, and Section 1 of the Fourteenth Amendment to the United States 25 26 Constitution. He seeks an injunction ordering defendants to transfer Toro from 27 the Environmental Agencies Building, where he worked for the DRNA under 28 1 CIVIL 08-1058 (FAB) (JA) 3 2 3 allegedly unhealthy conditions, to a new office. Toro also demands compensatory 4 5 damages of $7,000,000, as well as punitive damages of $7,000,000 for harm 6 suffered under these unsafe conditions. Finally, Toro seeks reasonable attorney s 7 fees, costs, and expenses. 8 The material factual allegations of the complaint are not disputed in 9 10 defendants motion or reply brief, and are recounted here in the light most 11 favorable to Toro. Toro has been an employee of the DRNA since 1992, and at 12 all times relevant to the complaint. (Docket No 1, at 3, ¶ 5, at 4-5, ¶ 11.) The 13 only time Toro ever worked for the SWA was from 1988-1992. (Id. at 3, ¶ 5.) 14 15 The DRNA is responsible for the protection, conservation, and proper use of Puerto 16 Rico s natural resources. (Id. at 4-5, ¶ 11.) The SWA s function is to handle the 17 administrative and operational aspects of handling solid waste products. (Id. at 18 5, ¶ 12.) At all times relevant, the SWA owned the Environmental Agencies 19 20 21 Building in Rio Piedras, Puerto Rico, where Toro s DRNA office was relocated in April 2005. (Id. at 8, ¶ 21.) 22 Prior to this relocation, Toro had never suffered from any infirmities of the 23 lungs, or from any pulmonary or branchial disease. (Id. ¶¶ 20-22.) Once Toro 24 and some other employees began working in the new building, however, they 25 26 began developing allergies and experiencing shortness of breath. (Id. ¶ 21.) On 27 February 17, 2007, Toro was diagnosed with pulmonary fibrosis, a diagnosis that 28 1 CIVIL 08-1058 (FAB) (JA) 4 2 3 was confirmed on November 1, 2007 by an evaluation requested by the DRNA. 4 5 (Id. at 9, ¶ 25.) 6 recommended that [Toro] be relocated to another area free of pollution until the 7 environmental problem in the work area is resolved. (Id.) Defendants did not, 8 The physician that performed the November evaluation however, relocate Toro despite the existence of empty offices in a nearby building. 9 10 11 (Id. at 12, ¶ 37.) Toro alleges that, as a result of these events, he has suffered an exacerbated medical condition and emotional distress. 12 13 II. STANDARD OF REVIEW A. Lack of Subject Matter Jurisdiction 14 15 Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a case 16 if the court lacks jurisdiction over the subject matter. Fed. R. Civ. P. 12(b)(1). 17 Because federal courts are courts of limited jurisdiction, federal jurisdiction is 18 never presumed. Fafel v. DiPaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting 19 20 Kikkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Viqueira v. 21 First Bank, 140 F.3d 12, 16 (1st Cir. 1998)). The burden is on the party asserting 22 federal jurisdiction to demonstrate that such jurisdiction exists. Padilla-Mangual 23 v. Pavía Hosp., 516 F.3d 29, 31 (1st Cir. 2008) (quoting Bank One, Tex., N.A. v. 24 Montle, 964 F.2d 48, 50 (1st Cir. 1992)). The complaint must be construed 25 26 liberally, treating the well-pleaded facts as true and indulging all reasonable 27 inferences in favor of the plaintiff. Burgos v. Citibank, N.A., 432 F.3d 46, 48 (1st 28 1 CIVIL 08-1058 (FAB) (JA) 5 2 3 Cir. 2005) (citing Federación de Maestros de P.R. v. Junta de Relaciones del 4 5 Trabajo de P.R., 410 F.3d 17, 20 (1st Cir. 2005)). 6 B. 7 8 Failure to State a Claim A proper pleading under Federal Rule of Civil Procedure 8(a)(2) must contain a short and plain statement of the claim showing that the pleader is 9 10 entitled to relief in order to give the defendant fair notice of what the . . . claim 11 is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 127 S. Ct. 12 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Federal 13 Rule of Civil Procedure 12(b)(6) allows a litigant to move for the dismissal of an 14 15 action for failure to state a claim upon which relief can be granted[.] Fed. R. 16 Civ. P. 12(b)(6). Dismissal under the rule is appropriate where the plaintiff has 17 failed to show its claim is at least plausible. Bell Atl. Corp. v. Twombly, 127 S. 18 Ct. at 1965 (doing away with the language of Conley v. Gibson, 355 U.S. at 19 20 45-46, which held that dismissal is only appropriate where it appears beyond 21 doubt that the plaintiff can prove no set of facts in support of his claim which 22 would entitle him to relief ). In ruling upon a Federal Rule of Civil Procedure 23 12(b)(6) motion, the court must accept as true all the well-pleaded factual 24 allegations in the complaint and construe all reasonable inferences in favor of the 25 26 plaintiff. Perry v. New England Bus. Serv., Inc., 347 F.3d 343, 344 (1st Cir. 2003) 27 (citing Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998)). 28 1 CIVIL 08-1058 (FAB) (JA) 6 2 3 Accordingly, to survive a 12(b)(6) motion, plaintiff must present factual 4 5 allegations, either direct or inferential, respecting each material element 6 necessary 7 Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 28 n.2 (1st Cir. 1996) (quoting 8 to sustain recovery under some actionable legal theory. Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)). 9 III. DISCUSSION 10 11 At issue is whether Toro s federal law claims can withstand a motion to 12 dismiss. Toro asserts that subject matter jurisdiction exists under 28 U.S.C. §§ 13 1331 (federal question jurisdiction) and 1343 (jurisdiction over claims arising 14 15 under Congressional Acts protecting civil rights). He states that 28 U.S.C. § 1367 16 confers the federal court with supplemental jurisdiction over the Puerto Rico law 17 claims in that those claims form part of the same case or controversy under 18 Article III of the United States Constitution as the claims over which the court has 19 20 21 original jurisdiction. I turn first to Toro s claims for injunctive relief. A. Injunctive Relief 22 The first two counts of Toro s complaint seek an injunction ordering 23 defendants to grant Toro a reasonable accommodation because of his disability. 24 He has now received the reasonable accommodation sought, and the question 25 26 27 28 becomes whether the first two counts are therefore moot. (Docket No. 46, at 11.) 1 CIVIL 08-1058 (FAB) (JA) 7 2 3 In order for the court to adjudicate a matter, Article III of the United States 4 5 Constitution requires that there be a case or controversy between the parties. 6 Allen v. Wright, 468 U.S. 737, 750 (1984); see U.S. Const. art. III, § 2. [A] 7 litigant must have suffered, or be threatened with , an actual injury traceable to 8 the defendant and likely to be redressed by a favorable judicial decision. 9 10 Johansen v. United States, 506 F.3d 65, 69 (1st Cir. 2007) (quoting Lewis v. 11 Cont l Bank Corp., 494 U.S. 472, 477 (1990)). Where the desired modification 12 of [defendant s] behavior underlying the plaintiff s complaint . . . has already been 13 accomplished it is appropriate to find a claim moot. Johansen v. United States, 14 15 506 F.3d at 69. 16 Here, the desired modification in defendant s behavior sought by Toro was 17 for defendants to transfer him to a new location where his lungs could be free of 18 ambient contaminants. (Docket No. 1, at 15-16, ¶¶ 50-57.) Toro has already 19 20 obtained this relief through an agreement with the DRNA, whereby the injunction 21 relief became moot, according to Toro s response to the SWA s motion to dismiss. 22 (Docket No. 47.) 23 B. 24 Damages 1. The Rehabilitation Act 25 26 Toro seeks damages in the remaining four counts. In the first of these he 27 invokes section 504 of the Rehabilitation Act, codified at 29 U.S.C. § 794. Section 28 (a) of that Act provides: 1 CIVIL 08-1058 (FAB) (JA) 8 2 3 6 [n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . . 7 29 U.S.C. § 794(a). Thus, the elements necessary to state a prima facie case 4 5 8 under the Act are: (1) plaintiff is an individual with a disability (2) who is 9 10 otherwise qualified (3) and who was discriminated against or denied a reasonable 11 accommodation (4) by an entity receiving federal financial assistance. 12 Calero-Cerezo v. United States Dep t of Justice, 355 F.3d 6, 20 (1st Cir. 2004). 13 Unlike the three other elements of 29 U.S.C. § 794, receipt of federal funds also 14 15 directly implicates the district court's subject matter jurisdiction over a 16 Rehabilitation Act claim. Rivera-Flores v. P.R. Tel. Co., 64 F.3d 742, 748 (1st Cir. 17 1995) (citing Bentley v. Cleveland County Bd. of County Comm'rs, 41 F.3d 600, 18 603-04 (10th Cir. 1994)). Indeed, [a]n indispensable jurisdictional element of 19 20 a Rehabilitation Act claim is a showing that a defendant accused of discrimination 21 is a recipient of federal financial assistance. Steir v. Girl Scouts of the USA, 383 22 F.3d 7, 13 (1st Cir. 2004) (citing Schultz v. Young Men's Christian Ass'n of the 23 United States, 139 F.3d 286, 288 (1st Cir. 1998)). The parties made much of 24 whether the defendants are immune to claims under the Rehabilitation Act, but 25 26 the issue is simple: if an entity accepts federal funds, it thereby waives Eleventh 27 Amendment immunity from claims under the Rehabilitation Act. 42 U.S.C. § 28 1 CIVIL 08-1058 (FAB) (JA) 9 2 3 2000d-7(a)(1); Orria-Medina v. Metro. Bus Auth., 565 F. Supp. 2d 285, 300 4 5 (D.P.R. 2007); see, e.g., Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 129 (1st 6 Cir. 2003) ( Congress has clearly expressed its intent to require waiver [and] the 7 Commonwealth [of Puerto Rico] has waived its immunity by accepting federal 8 funds. ). 9 10 I start by analyzing this fourth element of the Rehabilitation Act - whether 11 the SWA is a federal funding recipient - because it is jurisdictional in nature. 12 Absent the establishment of this element, there is no federal jurisdiction over the 13 Rehabilitation Act claim as a whole. A review of the complaint reveals that not 14 15 once does Toro allege that the SWA receives any form of federal financial 16 assistance. Paragraphs 11 and 12 of the complaint provide background 17 information on the DRNA and the SWA, respectively. (Docket No. 1, at 4-5, ¶¶ 18 11, 12.) While paragraph 11 alleges that the DRNA receives federal funds from 19 20 diverse sources, paragraph 12, which relates to the SWA, is conspicuously 21 without such an allegation. Paragraphs 58-62 of the complaint present the same 22 juxtaposition. Those paragraphs, which constitute the plea for recovery itself 23 under the Rehabilitation Act, explicitly allege again that the DRNA receives 24 Federal Funds. (Id. at 16, ¶ 60.) No mention is even made of the SWA in these 25 26 paragraphs, however, let alone any allegation that the SWA receives federal 27 funds. In alleging that the DRNA received federal funds, Toro made it clear he 28 1 CIVIL 08-1058 (FAB) (JA) 10 2 3 was aware of the federal funding requirement of his claim. It would seem 4 5 incongruous for him to allege twice that the DRNA received federal funds, while 6 failing to make any such allegation against the SWA, unless he was without a 7 basis for such an allegation. 8 On the other hand, the complaint itself does identify the SWA as a 9 10 defendant, which is significant because the Rehabilitation Act count requests a 11 reasonable accommodation from defendants and seeks recovery because of 12 actions by defendants. (Docket No. 1, at 17, ¶ 61, emphasis added.) 13 The question therefore is whether Toro, in failing not only to allege that the 14 15 SWA received federal funds but to even mention the SWA in its third cause of 16 action, has satisfied the jurisdictional fourth element of a cause of action against 17 the SWA under Rehabilitation Act. 18 Modern notions of notice pleading notwithstanding, a plaintiff, we think, 19 20 is . . . required to set forth factual allegations, either direct or inferential, 21 respecting each material element necessary to sustain recovery under some 22 actionable legal theory. Gooley v. Mobil Oil Corp., 851 F.2d at 515. In Gooley, 23 the plaintiff s allegation of an essential element of his claim was deemed to be a 24 naked conclusion and the defendant s motion to dismiss was granted. Id. The 25 26 plaintiff s complaint did, however, at least allege that essential element. Id. 27 Here, Toro does not even go that far. 28 1 CIVIL 08-1058 (FAB) (JA) 11 2 3 Gooley, however, bears less precedential value than the recent United 4 5 States Supreme Court decision of Bell Atl. Corp. v. Twombly. In Twombly, the 6 Court sought to clarify the standard to be applied in a 12(b)(6) motion to dismiss. 7 The essential factor that the court identified is whether plaintiff s claim is 8 plausible. Bell Atl. Corp. v. Twombly, 127 S. Ct. at 1965. This is the standard 9 10 I apply: is it plausible that the SWA has received federal funding? 11 In 1988, Congress broadened its definition of an entity that should be 12 considered a recipient of federal funding under the Act. The Act was to cast a 13 wider net to encompass all the operations of a department, agency, special 14 15 purpose district, or other instrumentality of a State or of a local government that 16 receives federal funding. 29 U.S.C. § 794(b)(1)(A); Winfrey v. City of Chicago, 17 957 F. Supp. 1014, 1024 (N.D. Ill. 1997). Then, in 1993, the Laws of Puerto Rico 18 were amended to attach the SWA to the DRNA as an operating component. 19 20 21 22 23 24 Reorganization Plan No. 1 of 1993 provides: The Solid Waste Authority is hereby attached to the Department of Natural and Environmental Resources as an operating component. The Authority shall retain its operating and administrative autonomy and its juristic capacity, but shall respond directly to the Secretary [of the DRNA] and shall be subject to his/her supervision, evaluation and auditing. 25 26 P.R. Laws Ann. tit. 3, app. IV, § V (emphasis added). Given that the SWA is 27 attached to the DRNA as an operating component, it is certainly plausible that 28 1 CIVIL 08-1058 (FAB) (JA) 12 2 3 the SWA might be considered an operation of the DRNA, which would make the 4 5 SWA equally responsible under the Rehabilitation Act as the DRNA because of the 6 1988 amendment to the Act. Moreover, because the SWA is attached to the 7 DRNA and because the DRNA was alleged to receive federal funds, it is certainly 8 plausible that some of said funds would be funneled into the SWA s coffers. The 9 10 plausibility of such a scenario is enhanced by the fact that the two entities are 11 governed by the same Secretary, who has powers of supervision, evaluation, and 12 auditing. Indeed, the fact that the SWA is alleged to own the building in which 13 certain DRNA operations are centered lends further weight to such plausibility. 14 15 Moreover, because the SWA was named in the complaint, and because the 16 Rehabilitation Act claim addressed the defendants in general, there was enough 17 substance in the claim to give the defendant fair notice of what the . . . claim is 18 and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 127 S. Ct. at 19 20 1964 (quoting Conley v. Gibson, 355 U.S. at 47). Accordingly, because it is 21 plausible that the SWA received federal funds, and because the SWA was put on 22 sufficient notice of the Rehabilitation Act claim, the jurisdictional element of 23 federal financial assistance is satisfied, at least for purposes of this motion to 24 dismiss. 25 26 27 28 I turn next to the substantive elements of the Rehabilitation Act. Specifically, the next issue is whether it is plausible that the SWA discriminated 1 CIVIL 08-1058 (FAB) (JA) 13 2 3 against Toro or failed to offer him a reasonable accommodation. A plaintiff may 4 5 show discrimination in either of two ways: by presenting evidence of disparate 6 treatment or by showing a failure to accommodate. Hoffman v. Caterpillar, Inc., 7 256 F.3d 568, 572 (7th Cir. 2001) (analyzing disability discrimination under the 8 ADA, which is the same analysis as under the Rehabilitation Act according to 9 10 Phelps v. Optima Health, Inc., 251 F.3d 21, 23 n.2 (1st Cir. 2001)). 11 Thus, the first question becomes whether it is plausible that Toro was 12 subject to disparate treatment by the SWA. The complaint alleges that the Puerto 13 Rico Occupational Safety and Health Administration of the Department of Labor 14 15 and Human Resources inspected the Environmental Agencies Building where Toro 16 worked, and determined that there was evidence of contamination on floors 1, 17 5, 7, 8, 9 of the building. It states that, [s]ince [Toro] started to work in the new 18 office building [he] developed constant allergies, shortness of breath and irritation 19 20 that increased in intensity over time. (Docket No. 1, at 8, ¶ 21.) The complaint 21 then states, A large number of other employees demonstrated similar 22 symptoms. (Id. (emphasis added).) In other words, other employees indeed, 23 employees on five different floors were exposed to the same or similar 24 conditions, and experienced similar symptoms, as Toro. Accordingly, Toro s 25 26 complaint does not make a plausible case to show that Toro was subjected to 27 disparate treatment. 28 1 CIVIL 08-1058 (FAB) (JA) 14 2 3 The next question is whether the SWA can be liable to Toro for money 4 5 damages for a failure to offer Toro a reasonable accommodation. The First Circuit 6 follows a two pronged analysis in determining whether a covered entity has failed 7 to provide a reasonable accommodation. First, the plaintiff must show not only 8 that the proposed accommodation would enable [him] to perform the essential 9 10 functions of [his] job, but also that, at least on the face of things, it is feasible for 11 the [covered entity] under the circumstances. Reed v. LePage Bakeries, Inc., 12 244 F.3d 254, 259 (1st Cir. 2001). Second, the plaintiff must prove that the 13 request was sufficiently direct and specific so as to put the covered entity on 14 15 notice of the need for an accommodation. Id. at 261. 16 Therefore, Toro first bears the burden of showing it was plausible that the 17 SWA could feasibly have granted him the relief he sought. The specific relief he 18 sought was to be transferred to an office and/or office building that does not 19 20 contain the plethora of ailing agents found in the Environmental [A]gencies 21 Building. (Docket No. 1, at 15, ¶ 51.) Nowhere in the complaint, however, is it 22 alleged that the SWA had the authority to transfer Toro to another office or 23 building. Indeed, nowhere does it appear that the SWA had any authority over 24 Toro whatsoever. The DRNA was Toro s employer, not the SWA. The only 25 26 information within the complaint touching on the relationship between Toro and 27 the SWA is that the SWA owned the building in which Toro happened to work, and 28 1 CIVIL 08-1058 (FAB) (JA) 15 2 3 that Toro worked for the SWA some 16 years ago. (Docket No. 1, at 3, ¶ 5, at 5, 4 5 § 12.) Considering only the pleadings before me, I cannot find it plausible that 6 the SWA could feasibly have ordered Toro moved to a different facility. It is not 7 for the owner of a building to instruct the employees of its tenant businesses 8 which buildings or offices they may do their jobs in. Toro has not pled any special 9 10 facts to suggest his relationship with the SWA might be any different. The fact 11 that the SWA was attached to the DRNA by statute does not change the fact that 12 the two are statutorily different entities with their own employees. The DRNA was 13 still Toro s only employer, and the SWA was still nothing more than the owner of 14 15 the building where Toro worked. Even if the attached relationship implied some 16 ability by one entity to give orders to the other entity s employees, it was the SWA 17 that was under the supervision of the DRNA s secretary, and not the other way 18 around. It would therefore be incongruous to find the SWA capable of controlling 19 20 the DRNA s employees. Accordingly, Toro cannot plausibly establish that the SWA 21 discriminated against him or failed to offer him a reasonable accommodation 22 under the third element of a Rehabilitation Act claim. Toro s claim under the 23 Rehabilitation Act is therefore dismissed for failure to state a claim upon which 24 relief can be granted. 25 26 2. 27 In his fourth cause of action Toro asserts a general claim under section 1983 28 of the 42 U.S.C. § 1983 Civil Rights Act. (Docket No. 1, at 17-18, ¶¶ 63-66.) He alleges 1 CIVIL 08-1058 (FAB) (JA) 16 2 3 defendants acted under color of state law in causing him physical and emotional 4 5 pain. He seeks $3,000,000 in damages, as well as fees and costs under 42 U.S.C. 6 § 1988. Toro does not identify a specific constitutionally or federally protected 7 right as having been violated in this section of the complaint. [Section] 1983 is 8 not itself a source of substantive rights, but merely provides a method for 9 10 vindicating federal rights elsewhere conferred. Graham v. Connor, 490 U.S. 11 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). 12 I therefore address whether section 1983 might afford Toro some remedy similar 13 to that available under the ADA or the Rehabilitation Act. Generally speaking, 14 15 section 1983 may be used to redress the deprivation of a . . . federal statute. 16 Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 176 (1st Cir. 2007) (citing 17 Maine v. Thiboutot, 448 U.S. 1, 4 (1980)). 18 festooned with exceptions. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d at This general rule is, however, 19 20 21 22 23 24 25 26 27 28 176. One familiar exception is that section 1983 cannot be used to enforce a statutory right when that statute's remedial scheme is sufficiently comprehensive as to demonstrate Congress's intent to limit the available remedies to those provided by the statute itself. See [Middlexex County Sewerage Auth. v. Nat l] Sea Clammers [Ass s], 453 U.S. [1] at 20-21[ (1981)]. This limitation ensures that plaintiffs cannot circumvent the idiosyncratic requirements of a particular remedial scheme by bringing a separate action to enforce the same right under section 1983. See Smith v. Robinson, 468 U.S. 992, 1009 . . . (1984) . . . . 1 CIVIL 08-1058 (FAB) (JA) 17 2 3 Id. at 176 (finding that the remedial scheme of Title IX is sufficiently 4 5 comprehensive to demonstrate Congress's intention to preclude the prosecution 6 of counterpart actions against state actors entities and individuals alike under 7 section 1983. ). Id. at 179. More important to our analysis is that [s]ection 8 1983 cannot be used as a vehicle for ADA or other statutory claims that provide 9 10 their own frameworks for damages. M.M.R.-Z. v. Puerto Rico, 528 F.3d 9, 13 n.3 11 (1st Cir. 2008) (citing A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 803-06 (3d 12 Cir. 2007) (no section 1983 action against official for violation of Rehabilitation 13 Act); also citing Holbrook v. City of Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 14 15 16 17 18 1997) (no section 1983 action against official for violation of ADA or Rehabilitation Act)). Here, it has already been determined that Toro cannot succeed on his claims under the ADA or the Rehabilitation Act. Those two acts have their own 19 20 sufficiently comprehensive statutory remedial frameworks to preclude counterpart 21 actions under section 1983. See 42 U.S.C. § 12117(a), (b); 29 U.S.C. § 794a. 22 In light of the substantial body of case law precluding section 1983 claims as a 23 fall-back for unsuccessful ADA and Rehabilitation Act claims, Toro s section 1983 24 claim must also be dismissed to the extent it is acting only as a vehicle to 25 26 27 28 further the ADA and Rehabilitation Act claims. 1 CIVIL 08-1058 (FAB) (JA) 18 2 3 Toro s complaint does not mention the Section 1 of the Fourteenth 4 5 Amendment to the Constitution of the United States (the Equal Protection Clause) 6 as part of his cause of action under section 1983. He does, however, make a brief 7 and vague allusion to it at the end of the facts section of his complaint. 8 Accordingly, I treat it as if it were pled under section 1983. The disabled1 are not 9 10 a suspect class for equal protection purposes. Toledo v. Sánchez, 454 F.3d 24, 11 33 (1st Cir. 2006) (citing City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 12 432, 439, 448-50 (1985)). In order to succeed on such a claim, therefore, Toro 13 must allege that he was intentionally treated differently from others similarly 14 15 situated and there was no rational basis for the difference in treatment. Toledo 16 v. Sanchez, 454 F.3d at 34 (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 17 (2000)). Here, Toro has failed to allege that he was treated any differently from 18 others situated similarly to him. Rather, he alleges that other employees suffered 19 20 similar symptoms (Docket No. 1, at 8, ¶ 21), and omits any allegation that such 21 other employees received treatment different to that which he received. 22 therefore has no right of recovery under the Equal Protection Clause. 23 24 He Finally, in his surreply, Toro raises an argument under the Due Process clause of Section 1 of the Fourteenth Amendment to the United States 25 26 27 28 Constitution. There is no mention of the Due Process Clause in Toro s complaint, 1 I treat Toro as if he were disabled for the sake of argument, without making any determination as to whether he actually is. 1 CIVIL 08-1058 (FAB) (JA) 19 2 3 but I nonetheless address the merits of such a claim here. The Due Process 4 5 Clause provides that [n]o State shall . . . deprive any person of life, liberty, or 6 property, without due process of law. U.S. Const. amend. XIV, § 1. The history 7 of the substantive due process doctrine indicates that it is to be applied with 8 caution and restraint. Santiago de Castro v. Morales Medina, 943 F.2d 129, 130 9 10 (1st Cir. 1991) (quoting Moore v. E. Cleveland, 431 U.S. 494, 502 (1977) 11 (plurality opinion, Powell, J.)). 12 traditional tort remedies. Ramos-Piñero v. Puerto Rico, 453 F.3d 48, 52 (1st Cir. 13 Indeed, the clause is not a substitute for 2006) (citing Daniels v. Williams, 474 U.S. 327, 332 (1986)). 14 15 There are two alternative tests by which substantive due process is 16 examined: (1) as a violation of specific property interest, or (2) as conduct 17 which shocks the conscience. Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir. 1991). 18 Under the first alternative, it is only when some basic and fundamental principle 19 20 has been transgressed that the constitutional line has been crossed. Santiago 21 de Castro v. Morales Medina, 943 F.2d at 131 (quoting Amsden v. Moran, 904 22 F.2d 748, 754 (1st Cir. 1990) (emphasis in original)). [T]he plaintiff must first 23 show a deprivation of a protected interest in life, liberty, or property. Rivera v. 24 Rhode Island, 402 F.3d 27, 33-34 (1st Cir. 2005) (citing Rhode Island Bhd. of 25 26 Corr. Officers v. Rhode Island, 357 F.3d 42, 49 (1st Cir. 2004)). Traditionally 27 encompassed within these interests are activities relating to marriage, 28 1 CIVIL 08-1058 (FAB) (JA) 20 2 3 procreation, contraception, family relationships, and child rearing and education. 4 5 Brown v. Hot, Sexy & Safer Prods., 68 F.3d 525, 532 (1st Cir. 1995) (quoting Roe 6 v. Wade, 410 U.S. 113, 153 (1973)). Here, Toro does not allege that he was at 7 any time deprived of his liberty, and he does not identify any constitutionally 8 recognized property interest of which he is supposed to have been deprived. He 9 10 merely cites personal and emotional injuries, and contends he had a property 11 interest in his job. 12 recognized right, however. Accordingly, he may not recover under the first theory 13 Such an interest is not a fundamental, constitutionally of due process claims. 14 15 Under the second alternative application of the Due Process Clause, Toro is 16 required to show that the SWA s actions shock the conscience. A proximate 17 causal link between a government agent's actions and a personal injury does not, 18 in itself, bring a case out of the realm of tort law and into the domain of 19 20 constitutional due process. Frances-Colón v. Ramírez, 107 F.3d 62, 64 (1st Cir. 21 1997). Rather, a plaintiff must also satisfy the more onerous requirement of 22 demonstrating that the state's actions shock the conscience of the court. 23 Rivera v. Rhode Island, 402 F.3d at 35. The Supreme Court has almost never 24 found this requirement to be met by plaintiffs, and the few circuit courts have 25 26 done so have been presented with truly egregious circumstances. Hasenfus v. 27 LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999) (citing Rogers v. City of Little Rock, 28 1 CIVIL 08-1058 (FAB) (JA) 21 2 3 152 F.3d 790 (8th Cir. 1998) (rape by police officer in connection with car stop); 4 5 Armstrong v. Squadrito, 152 F.3d 564 (7th Cir. 1998) (57-day unlawful detention 6 despite repeated requests)). Where a complaint does not indicate actual intent 7 to harm on the part of the defendants, but rather exhibits at most a deliberate 8 indifference towards the plaintiff, the court s determination is context-specific. 9 10 Ramos-Piñero v. Puerto Rico, 453 F.3d at 53. The United States Supreme Court 11 has held that the breaching of a duty of care owed to a plaintiff by failure to 12 provide a safe work environment is analogous to a fairly typical state-law tort 13 claim and not sufficient to constitute a violation of substantive due process rights. 14 15 Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992) (no due process 16 violation where sanitation worker suffered death by asphyxiation from sewer gas 17 while working in a manhole) (see also Ramos-Piñero v. Puerto Rico, 453 F.3d at 18 54 (no due process violation for death of a fourteen-year-old boy when 19 20 governmental entities failed to cover an open manhole). 21 Here, Toro alleges defendants violations of plaintiff s constitutional rights 22 were intentional, willful and wanton. (Docket No. 1, at 10, ¶ 31.) The most 23 egregious factual allegation he musters, however, is that the SWA admitted 24 workers into its building despite the fact that it may have had reason to know that 25 26 conditions had deteriorated in its air conditioning system. Such facts do not rise 27 to the level of shocking the conscience, but rather are closely analogous to those 28 1 CIVIL 08-1058 (FAB) (JA) 22 2 3 of Collins in that they involve the physical injury of a public employee potentially 4 5 caused by the negligence of a government entity. There was no violation of 6 substantive due process in Collins, and there was not one here. Toro s section 7 1983 is therefore dismissed. 8 C. State Law Claims 9 10 Toro s fifth cause of action raises Puerto Rico state law claims. It invokes 11 the Puerto Rico Disability Anti Discrimination Act, P.R. Laws Ann. tit. 1, § 501 et. 12 seq., as well as tort liability principles under Articles 1802 and 1803 of the Puerto 13 Rico Civil Code, codified at P.R. Laws Ann. tit. 31, §§ 5141 and 5142. (Docket No. 14 15 1, at 18-19, ¶¶ 67-72.) 16 Toro asserts that this court has supplemental jurisdiction over his state law 17 claims because they are so related to his federal claims that the two sets of claims 18 form part of the same case or controversy. 28 U.S.C. § 1367(a). I may decline 19 20 to exercise supplemental jurisdiction, however, if all claims over which it I have 21 original jurisdiction have been dismissed. 28 U.S.C. § 1367(c)(3). Certainly, if 22 the federal claims are dismissed before trial, even though not insubstantial in a 23 jurisdictional sense, the state claims should be dismissed as well. United Mine 24 Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). When it appears that a case 25 26 properly belongs in state court, as when the federal-law claims have dropped out 27 of the lawsuit in its early stages and only state-law claims remain, the federal 28 1 CIVIL 08-1058 (FAB) (JA) 23 2 3 court should decline the exercise of jurisdiction by dismissing the case without 4 5 prejudice. Rivera v. Murphy, 979 F.2d 259, 264-65 (1st Cir. 1992). 6 Here, the federal law claims were those claims made under the ADA, the 7 Rehabilitation Act, and section 1983 of the Civil Rights Act. Each of those is 8 dismissed by this order. Therefore, so too are Toro s remaining state law claims. 9 10 D. Punitive Damages 11 Toro s sixth cause of action requests punitive damages under the 12 Constitution and laws of the United States because defendants actions 13 constitute gross negligence and reckless disregard for plaintiff s constitutional 14 15 rights. (Docket No. 1, at 19, ¶ 74.) In his response in opposition to the SWA s 16 motion to dismiss, Toro concedes that he never intended to claim punitive 17 damages under the ADA or under the Rehabilitation Act. (Docket No. 46, at 12.) 18 Toro must therefore have intended to seek punitive damages either under his 19 20 section 1983 claim or under his state law claims, because these are the only other 21 claims he makes with any specificity. It is not clear, however, to which of the two 22 he intended to attach his punitive damages claim. Regardless, if he intended the 23 plea for punitive damages to apply to the section 1983 claim, the plea fails 24 because the section 1983 claim failed, and if the plea was meant to compliment 25 26 his state law claims, it fails because his state law claims are dismissed for the 27 reasons above. 28 1 CIVIL 08-1058 (FAB) (JA) 24 2 3 IV. CONCLUSION 4 5 Toro s claim under the Rehabilitation Act is dismissed because he cannot 6 show that the SWA discriminated against him. His section 1983 claim is dismissed 7 because section 1983 cannot create an independent vehicle for ADA or 8 Rehabilitation Act claims that provide their own frameworks for damages. All 9 10 federal law claims being thus dismissed, there exists no reason to assert 11 supplemental jurisdiction over the state law claims, which are therefore dismissed 12 as well. 13 In view of the above, the defendants motion is GRANTED. Accordingly, the 14 15 complaint is DISMISSED. The Clerk is to enter judgment accordingly. 16 SO ORDERED. 17 At San Juan, Puerto Rico, this 22d day of December, 2008. 18 19 20 21 22 23 24 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.