Cintron-Valenzuela et al v. Commonwealth of Puerto Rico et al

MOTION to Dismiss for Failure to State a Claim and Want of Subject-Matter Jurisdiction

D.P.R.September 16, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO EDWIN CINTRON-VALENZUELA, et al, Plaintiffs, v. COMMONWEALTH OF PUERTO RICO, et al, Defendants. CIVIL NO. 16-1277 (FAB) AMERICAN WITH DISABILITIES, REHABILITATION ACT MOTION TO DISMISS AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM AND WANT OF SUBJECT-MATTER JURISDICTION TO THE HONORABLE COURT: COME NOW Co-defendants, the Commonwealth of Puerto Rico, Puerto Rico Department of Family Affairs, Administration of Family and Children (herein, “PRFA”), Wilma I. Ortiz-Rivera (herein, “Wilma Ortiz”), Mildred Nieves-Andino (herein, “Mildred Nieves”), and Waleska Camacho-Cruz (herein, “Waleska Camacho”, and together the “Co-defendants”) without submitting to this Court’s jurisdiction or waiving any affirmative defense, through the undersigned attorney, and very respectfully set forth and pray as follows: I. INTRODUCTION On August 19, 2016, Plaintiffs Edwin Cintron-Valenzuela and Eizzil Cintron-Valenzuela filed an Amended Complaint against the appearing co-defendants under the Americans with Disabilities Act (hereinafter, “ADA”) for violations of Title II1 and alleged retaliation2, Section 504 of the Rehabilitation Act3 (hereinafter, “Rehabilitation Act”), 42 U.S.C. § 1983 for constitutional violations of the Fourteenth Amendment of the U.S. Constitution, and also for state law claims. Dkt. No. 24, ¶ 1. As per the allegations included in the Complaint, Plaintiff Edwin Cintron is a 24-year-old man, born and still HIV positive, in need of long term care. Id. at ¶¶ 14, 15. In 2005, due to the death and illness if his adopting father, Plaintiff 1 42 U.S.C. § 12131-12134 2 42 U.S.C. § 12203 3 42 U.S.C. § 794 Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 1 of 18 2 Edwin Cintron was placed under the custody and tutorship of PRFA, while his mother retained partial custody. Id. at ¶ 17. He started to receive Social Security benefits under his adopting father Social Security plan. Id. at ¶ 19. The monthly benefits were administered by the PRFA. Id. In 2009 the Social Security notified Edwin that his Social Security benefits would end due to having reached the age of 18. Id. at ¶ 21. His adoptive mother appealed based on his disability and his Social Security benefits were approved in 2011. Id. at ¶¶ 22, 23. In 2011 Edwin was placed under the PRFA full custody and in that same year his adoptive mother died. Id. at ¶ 24. In 2011 the PRFA became the organizational payee of his Social Security benefits. Id. at ¶ 25. On November 2, 2014, Plaintiff Eizzil Cintron picked up Edwin from the foster home he had been. Id. at ¶ 32. It is further alleged that Plaintiff Eizzil Cintron found that Edwin had not received his Social Security monetary benefits, which had accumulated to $31,140.00 from Co-defendants PRFA, Waleska Camacho, Mildred Nieves and Wilma Ortiz. Id. at ¶ 34. Plaintiffs made several visits to different state and federal agencies to request investigation in regards to Edwin’s benefits. Id at ¶¶ 35-37. On February 18, 2015, Plaintiffs were summoned to PRFA’s offices and individual co- defendants told them that Edwin was not under the care of FCA since November 5, 2012. Id. at ¶ 38. Individual co-defendants also informed that his monetary benefits were sent, in a check payable to Edwin, to the Social Security office in Caguas. Id. at ¶ 39. On February 19, 2015, Plaintiff Eizzil was informed by the OMBUDSMAN, through a letter, that PRFA had informed that the Social Security benefits due to her brother, Edwin, was returned to the Social Security Administration and that agency would make the corresponding payment to Edwin. Id. at ¶ 41. On April 8, 2015, the Social Security Administration called Plaintiff Eizzil and stated that the defendants had not returned any moneys and/or benefits belonging to Edwin. Id. at ¶ 43. On April 9, 2015, the OMBUDSMAN office emailed Plaintiff Eizzil, submitting an attachment letter by defendants, whereby defendants stated that their agency had returned to the Social Security the benefits belonging to Edwin; also, that they were greatly concerned that Eizzil would be managing the Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 2 of 18 3 moneys of Edwin, since Eizzil’s social record indicate that she had a criminal record based on illegal appropriation. Id. at ¶ 44. Plaintiffs have failed to plausible plead any cause of action under ADA, the Rehabilitation Act, or any of the state law claims as set forth in the amended complaint. Appearing co-defendants request this Court to DISMISS WITH PREJUDICE the Amended Complaint. The analysis for our request follows. II. PLEADING STANDARD “The general rules of pleading require a short and plain statement of the claim showing that the pleader is entitled to relief.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.2009) (citations omitted) (internal quotation marks omitted). “This short and plain statement needs only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Toledo-Colon v. Puerto Rico, 812 F. Supp. 2d 110, 114-15 (D.P.R. 2011). A. DISMISSAL OF A COMPLAINT UNDER 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) is “[t]he proper vehicle for challenging a court's subject- matter jurisdiction.” Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362 (1st Cir.2001). Rule 12(b)(1) is a “large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction.” Id. at 362- 363. A moving party may base a challenge to the sufficiency of the plaintiff's assertion of subject matter jurisdiction solely on the pleadings. Med. Card Sys. v. Equipo Pro Convalecencia, 587 F.Supp.2d 384, 387 (D.P.R.2008) (citing Hosp. Bella Vista, 254 F.3d at 363). Toledo at 115. A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1) is subject to a similar standard of review as a motion brought pursuant to Rule 12(b)(6). Boada v. Autoridad de Carreteras y Transportacion, 680 F.Supp.2d 382, 384 (D.P.R.2010) (citing Negron-Gaztambide v. Hernandez-Torres, Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 3 of 18 4 35 F.3d 25, 27 (1st Cir.1994)). “When a district court considers a Rule 12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor.” Merlonghi v. U.S., 620 F.3d 50, 54 (1st Cir.2010) (citing Hosp. Bella Vista, 254 F.3d at 363). Toledo at 115. B. DISMISSAL OF A COMPLAINT UNDER 12 (b)(6) Under Rule 12(b)(6), a defendant may move to dismiss an action against him for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain sufficient factual matter “to state a claim to relief that is plausible on its face.” Bell A. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The court must decide whether the complaint alleges enough facts to “raise a right to relief above the speculative level.” Id. at 555, 127 S.Ct. 1955. In so doing, the court accepts as true all well-pleaded facts and draws all reasonable inferences in the plaintiff's favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir.2008). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint alleged-but it has not show[n]-that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)) (internal quotation marks omitted). Toledo at 115. III. PRFA AND THE COMMONWEALTH ARE ENTITLED TO ELEVENTH AMENDMENT IMMUNITY Plaintiffs are not entitled to recover monetary claims under any of ADA’s provision, thus they are not entitled to the recovery of compensatory damages, punitive/exemplary damages, interest, costs, and reasonable attorney’s fees, as requested in the Amended Complaint. Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 4 of 18 5 A motion to dismiss pursuant to the Eleventh Amendment of the United States Constitution is properly construed as a motion pursuant to Rule 12(b)(1). See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n. 2 (3d Cir.1996) (citing Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)); but cf. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997) (“The [Eleventh] Amendment, in other words, enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary's subject-matter jurisdiction. The immunity is one the States enjoy save where there has been ‘a surrender of this immunity in the plan of the convention.’ ”) (quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 322-323, 54 S.Ct. 745, 78 L.Ed. 1282 (1934)). The Eleventh Amendment to the Constitution of the United States proscribes that: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment bars suits from being brought in federal courts for monetary damages against states, unless the state being sued waives its immunity or consents to being sued. The Eleventh Amendment has also been interpreted to bar suits for monetary relief against the agencies or instrumentalities of a state and against its officers in their official capacities. Cruz v. Puerto Rico, 558 F. Supp. 2d 165, 173 (D.P.R. 2007). The Commonwealth of Puerto Rico is considered a state for purposes of the Eleventh Amendment. Id. Over the last two decades, the First Circuit consistently has held that Puerto Rico is considered a “State” for Eleventh Amendment purposes, and therefore Eleventh Amendment applies with full force to the Commonwealth of Puerto Rico. Id. at 174. Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 5 of 18 6 It is well settled law that sovereign immunity under the Eleventh Amendment extends beyond the core of the state government to “arms of the state”. Metcalf & Eddy v. Puerto Rico Aqueduct and Sewer Authority, 991 F.2d 935, 939 (1st Cir.1993). Great River Industries, Inc. v. Pub. Serv. Commn. of Puerto Rico, 131 F. Supp. 2d 265, 270 (D.P.R. 2001). [T]he Family Department of the Commonwealth of Puerto Rico is an arm or "alter ego" of the Commonwealth of Puerto Rico and is therefore cloaked with the mantle of Eleventh Amendment sovereign immunity. Gonzalez de Blasini v. Family Dep't, 278 F. Supp. 2d 206, 210 (D.P.R. 2003) ("Thus, the relevant factors lead the Court to conclude that the Department is an arm or 'alter ego' of the State, and is entitled to immunity under the Eleventh Amendment."), cited with approval Torres-Alamo v. P.R., 502 F.3d 20, 24 (1st Cir. 2007). Hernandez-Mendez v. Rivera, 137 F. Supp. 3d 142, 160 (D.P.R. 2015). 1. Plaintiffs are barred from recovering monetary claims from the PRFA and the Commonwealth Title II of ADA validly abrogates the sovereign immunity “insofar as [it] creates a private cause of action . . . for conduct that actually violates the Fourteenth Amendment[.]” United States v. Georgia, 546 U.S. 151, 126 S. Ct. 877 (2006). In the Amended Complaint, Plaintiffs make a general request for compensatory damages, punitive/exemplary damages, interest, costs, and reasonable attorney’s fees, amongst other requests. Dkt. No. 24, p. 23:(a) - 24(g). Plaintiff Edwin Valenzuela claims a violation of Title II ADA. In order to try and savage his monetary claims against the Commonwealth and the PRFA, he has included that Co-defendants also violated the Fourteenth Amendment of the Constitution of the Unites States of America, but this insertion has not been properly pleaded, it is not more than a conclusory statement. Dkt. No. 24, ¶ 75. The Commonwealth and the PRFA are entitled to the Eleventh Amendment protection and such has not been waived in Title II of ADA cases in which are there is no Fourteenth Amendment claim. Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 6 of 18 7 Therefore, all monetary claims under Title II of ADA against the Commonwealth, PRFA, and Co-defendants in their official capacities are barred by the Eleventh Amendment immunity and should be DISMISSED WITH PREJUDICE. Even more, since Plaintiffs have not requested any injunctive relief under ADA, the totality of ADA claims against the Commonwealth and the PRFA should be DISMISSED WITH PREJUDICE all ADA claims since there are no other available remedies that these co-defendants could provide. IV. TITLE II OF AMERICAN WITH DISABILITIES ACT Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." § 12132 (2000 ed.). A "'qualified individual with a disability'" is defined as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." § 12131(2). United States v. Georgia, 546 U.S. 151, 153-54, 126 S. Ct. 877, 878-79 (2006). In order to establish a prima facie case under Title II of the ADA, a plaintiff must show that (1) [he] is a qualified individual with a disability; (2) [he] was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. Parker v. Universidad de Puerto Rico, 225 F.3d at 5 (2000). Panzardi-Santiago v. Univ. of P.R., 200 F. Supp. 2d 1, 15 (D.P.R. 2002). Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 7 of 18 8 A. PLAINTIFF HAS FAILED TO PLEAD A PRIMA FACIE CASE OF TITLE II OF ADA Plaintiff Edwin Cintron is not entitled to any remedy under ADA Title II since he has failed to plead a prima facie case. 1. Denial of a PRFA service, program, or activity “by reason of” his disability In order to comply with the second prong of a prima facie Title II of ADA, a Plaintiff must show that the exclusion from the service, program, or activity, was by reason of his disability. Parker at 5. Plaintiff has not made a plausible pleading that meets this prong. Plaintiff only mentions of the fact that he was being discriminated by reason of this disability and need for long term. Dkt. No. 24, ¶ 59. He has failed to plead how any of the appearing co-defendants discriminated against him based or motivated by his disability. Plaintiff Edwin Cintron is not entitled to any remedy under Title II of ADA since he has failed to plead a prima facie case. Therefore, all Title II of ADA claims should be DISMISSED WITH PREJUDICE. V. TITLE II AND SECTION 12203 OF ADA, AND THE REHABILITATION ACT DO NOT PROVIDE FOR INDIVIDUAL LIABILITY A. ADA Individual co-defendants are not liable for under Title II and Section12203 of ADA. The ADA forbids discrimination by any “covered entity” defined as “an employer, employment agency, labor, organization, or joint labor-management committee.” 42 U.S.C. §§ 12112(a), 12111(2). “Employer” is defined as a “person engaged in an industry affecting commerce ... and any agent of such person.” 42 U.S.C. § 12111(5)(A). The relevant provisions under the ADA are almost identical in language to that used in Title VII and the Age Discrimination in Employment Act (ADEA), both of which define “employer” as any “person engaged in commerce ... [or] any agent of such person.” 29 U.S.C. § 623(a), § 630(b); 42 U.S.C. § 2000e, § 2000e(b); see Legal Services Corp. of P.R., 932 F.Supp. at 50. Although all Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 8 of 18 9 three statutes provide that a supervisor is an employer, a number of courts have held that Congress included the phrase “any agent” to make sure that respondeant superior liability was imposed on the employers for the acts committed by their agents, not upon the agents personally. Id. at 50-51. Cardona Roman v. U. of Puerto Rico, 799 F. Supp. 2d 120, 128 (D.P.R. 2011). Specifically, [the United States District Court for the District of Puerto Rico has] held that there is no individual liability under Title II of the ADA. Toledo v. Univ. of P.R., 2008 WL 189561, 2008 U.S. Dist. LEXIS 4248 (D.P.R.2008). Del-Villar-Rosario v. Puerto Rico Dept. of J., 573 F. Supp. 2d 496, 503 (D.P.R. 2008). No individual liability can be imposed under ADA. Therefore, all ADA claims against individual co- defendants Waleska Camacho, Mildred Nieves, and Wilma Ortiz, should be DISMISSED WITH PREJUDICE. B. REHABILITATION ACT Individual co-defendants are not liable for under the Rehabilitation Act. This Honorable Court has already found that claims under Section 504 of the Rehabilitation Act fail as to the individual plaintiffs because neither statute provides for individual liability. See Millay v. Surry Sch. Dep't, 2009 U.S. Dist. LEXIS 120224, 2009 WL 5184398 at *9 (D. Me. Dec. 22, 2009) (finding that individual defendants cannot be held personally liable in damages for violations of the ADA and the Rehabilitation Act); Abbott v. Town of Salem, 2006 U.S. Dist. LEXIS 4338, 2006 WL 276704 at *4 (D.N.H. Feb. 02, 2006) (dismissing a Rehabilitation Act claim against an individual defendant because neither Title II of the ADA, nor the Rehabilitation Act provided for individual capacity suits against state officials). Toledo- Colon v. Commonwealth, 812 F. Supp. 2d 110, 117 (D.P.R. 2011). No individual liability can be attached under the Rehabilitation Act. Therefore, all Rehabilitation Act claims against individual co-defendants Waleska Camacho, Mildred Nieves, and Wilma Ortiz, should be DISMISSED WITH PREJUDICE. Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 9 of 18 10 VI. REHABILITATION ACT Plaintiff Edwin is barred from pursuing a Rehabilitation Act claim against the appearing co- defendants since he has not been denied participation on a federally funded program or service of the PRFA or the Commonwealth and he was not discriminated by reason of his disability. Section 504 of the Rehabilitation Act prohibits discrimination against disabled individuals in any program or activity that receives federal funding. 29 U.S.C. §794 (a). It reads: No otherwise qualified handicapped individual in the United States, as defined in Section 7 (6), shall, solely by reason of his handicap, 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees. 29 U.S.C. §794 (a). Pagan Torres v. House of Representatives, 858 F. Supp. 2d 172, 192 (D.P.R. 2012). To establish a case for discrimination under Section 504 of the Rehabilitation Act, Plaintiff must allege that (1) [he] is disabled; (2) [he] sought to participate in a federally funded program or activity, (3) [he] was otherwise qualified to participate in such program, and (4) [he] was denied such participation - solely by reason of [his] disability. See Lesley v. Hee Man Chie, 250 F.3d 47, 52-53 (1st Cir. 2001). Pagan Torres v. House of Representatives, 858 F. Supp. 2d 172, 192 (D.P.R. 2012). Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 10 of 18 11 A. PLAINTIFF WAS NOT DENIED FROM PARTICIPATING IN A FEDERALLY FUNDED PROGRAM OR ACTIVITY Plaintiff Edwin Cintron is not entitled to any cause of action under the Rehabilitation Act against the Commonwealth or the PRFA since it has not plead that PRFA as an “organizational payee” is a federally funded program or activity. In reality the Rehabilitation Act is program specific. See Richard Foss v. City of Chicago, 817 F.2d 34 (7th Cir.; 1987) (Section 504 is by its terms program-specific. It proscribes discrimination only with respect to "programs" or "activities" receiving federal financial assistance. United States Department of Transportation v. Paralyzed Veterans of America, 477 U.S. 597, 106 S. Ct. 2705, 91 L. Ed. 2d 494; CONRAIL v. Darrone, 465 U.S. 624, 104 S. Ct. 1248, 79 L. Ed. 2d 568. Plaintiffs state that the Family and Children Administration is an agency of the Commonwealth of Puerto Rico, who administers benefits and services for family and children matters, both federally and state funded, in the Commonwealth of Puerto Rico. Dkt. No. 24, ¶ 7. But, as the aforementioned case law states, the Rehabilitation Act is program specific which receive federal financial assistance. United States Depatment of Transportation at 597. Plaintiffs further allege that individual co-defendants, “as payee for the Social Security Administration, excluded and denied plaintiff, “from programs and services of the Social Security Administration.” Dkt. No. 24, ¶ 84. The complaint is completely devoid of any pleading that the program or service of “organizational payee” or “payee from the Social Security Administration” is federally funded. Dkt. No. 1. Plaintiff fails to plead that PRFA administering Social Security benefits is a federally funded program or activity within the scope of the Rehabilitation Act. Therefore, the Rehabilitation Act claim should be DISMISSED WITH PREJUDICE. Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 11 of 18 12 B. PLAINTIFF WAS NOT DENIED PARTICIPATION BY REASON OF DISABILITY Plaintiff Edwin Cintron is not entitled to any cause of action under the Rehabilitation Act claim against the Commonwealth or the PRFA since it has not been plead that he was denied participation because by reason of his disability. The fourth prong of the Rehabilitation Act prima facie case is that the plaintiff was denied participation -solely by reason of his disability. Lesley at 52-53. Plaintiff has not made a plausible pleading that meets this prong. In the only moment in which he mentions that he was discriminated by reason of his disability is with a conclusory statement. Dkt. No. 24, ¶ 59. He has failed to plead how any of the appearing co-defendants discriminated against him based or motivated by his disability. Plaintiff Edwin Cintron has failed to plausibly plead that he denied participation in any program by reason of his disability. Therefore, the Rehabilitation Act claim should be DISMISSED WITH PREJUDICE. VII. PRFA AND THE COMMONWEALTH ARE ENTITLED TO SOVEREIGN IMMUNITY AGAINST PLAINTIFFS’ STATE LAW CLAIMS The Commonwealth and PRFA are entitled to sovereign immunity against the state law claims presented by Plaintiffs against them. The Court has supplemental jurisdiction to hear state law claims when, and if, the federal court has original jurisdiction in the action and the claims come from a “common nucleus of operative facts.” 28 U.S.C. § 1367; see also Allstate Interiors & Exteriors, Inc. v. Stonestreet Const., LLC, 730 F.3d 67, 72 (1st Cir. 2013). Supplemental jurisdiction under § 1367, however, does not override Eleventh Amendment immunity against subjecting a State to suit in federal courts. Pagan v. Puerto Rico, 991 F. Supp. 2d 343, 346 (D.P.R. 2014). Only Congress or an unequivocal consent from a State can override that State's sovereign immunity. Id. It is clear that Congress has not abrogated a State's Eleventh Amendment Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 12 of 18 13 immunity involving state law claims. Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 541 (2002). However, Puerto Rico has waived its sovereign immunity in its own courts. Díaz-Fonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir. 2006). Nonetheless, that waiver authorizing suits against the government of Puerto Rico in Puerto Rico's courts does not extend to state law claims brought against the government of Puerto Rico, and its instrumentalities, in federal court. Diaz v. Dep't of Educ., 823 F. Supp. 2d 68, 76 (D.P.R. 2011) (citing Díaz-Fonseca, 451 F.3d at 34). The Commonwealth of Puerto Rico has consented to be sued for damages in actions brought under the general negligence statute of Puerto Rico. However, said consent does not extend to any courts but the Commonwealth's own. Diaz-Fonseca, 451 F.3d at 34. Article 1802 of the Puerto Rico Civil Code does not contain an explicit waiver of the Commonwealth's sovereign immunity. P.R. LAWS ANN. tit. 31, § 5141. See Nieves-Garay v. Puerto Rico Police Dept., Civil No. 09-1959, 2011 U.S. Dist. LEXIS 67671, 2011 WL 2518801 at *5 (D.P.R. June 23, 2011). Diaz v. Dep't of Educ., 823 F. Supp. 2d 68, 76-77 (D.P.R. 2011). In the Amended Complaint, Plaintiffs present state law claims against all defendants, which included the PRFA and the Commonwealth. (our emphasis). Dkt. No. 24, ¶ 86-96. As the previously mentioned case law establishes, Plaintiffs are barred from presenting state law claims against the Commonwealth and the PRFA in this federal forum. Therefore, all state law claims against the PRFA and the Commonwealth should be DISMISSED WITH PREJUDICE. VIII. DUPLICITY OF CLAIMS UNDER DIFFERENT LAWS A. PLAINTIFFS ARE BARRED FROM PRESENTING CAUSES OF ACTION UNDER SECTION 1983 Plaintiffs are barred from bringing a parallel Section 1983 claim against individual Co-defendants for the same alleged facts used to claim under ADA and the Rehabilitation Act. Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 13 of 18 14 Plaintiff cannot bring an ADA or § 504 action against individual officers, because the proper defendant in such actions is the public entity responsible for the alleged discrimination. Nor can he bring a § 1983 action against Defendants based on allegedly discriminatory conduct. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) ("[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act."). Ramirez v. Tilton, No. C 07-04681 SBA (PR), 2010 U.S. Dist. LEXIS 33088, at *5-6 (N.D. Cal. Mar. 5, 2010). The Courts have reasoned that when a party seeks to recover for a violation of the ADA, the party's remedies are governed exclusively by the remedial scheme prescribed in the ADA. (citations omitted). Schuett v. Me. AG, No. 1:14-cv-00375-JDL, 2014 U.S. Dist. LEXIS 143510, at *6 (D. Me. Oct. 8, 2014). Plaintiffs, to affix their Section 1983 claims, incorporate and restate the same facts included in the complaint, thus, the claim arises under the same nucleus of facts as the ADA and Rehabilitation Act claims. Dkt. No. 24, ¶¶ 70-78. The Section 1983 claims are against co-defendants in their individual capacity. Id. Plaintiffs are only entitled to the remedial scheme of ADA and the Rehabilitation Act. Therefore, any Section 1983 claims should be DISMISSED WITH PREJUDICE. IX. DEFAMATION AND LIBEL Plaintiff Eizzil Valenzuela has not suffered from libel and slander since the alleged defamatory statements made were not false, and as consequence, were not made negligently. "In order for a private figure, such as plaintiff . . . , to prove defamation under Puerto Rico law, whether it be libel (written) or slander (oral), she must prove the following: (1) that the alleged defamatory statements are false; (2) that the defamatory statements (written or spoken) were negligently made to another; and (3) that the plaintiff suffered damages." Ojeda-Rodriguez v. Zayas, 666 F. Supp. 2d 240, 254- 55 (D.P.R. 2009) (citing Torres-Silva v. El Mundo, Inc., 106 D.P.R. 415, 6 P.R. Offic. Trans. 581 (1977)) Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 14 of 18 15 (footnote omitted). In addition to establishing these three elements, when a claim for defamation is brought pursuant to Article 1802, plaintiff must prove that there is a causal relationship between the defamatory statements and the damages suffered. See Rivera v. DHL Global Forwarding, 536 F. Supp. 2d 148, 157 (D.P.R. 2008). Santiago v. Santiago, 731 F. Supp. 2d 202, 209 (D.P.R. 2010). On April 6, 2006, Eizzil Cintron Valenzuela was charged with an infraction to Article 193 of the Puerto Rico Penal Code, which is classified as third degree felony. See, Criminal Complaint for Eizzil Cintron Valenzuela as issued by the First Instance Court of Puerto Rico on April 6, 2006 and signed by Judge Ann M. Higginbotham-Arroyo (hereinafter ”Exhibit 1”), p.1. Judge Higginbotham-Arroyo determined that there was probable cause, ordered her arrest, and bail was set for $6,000.00. Id. On April 6, 2006, Judge Higgnboham-Arroyo ordered the Police Captain to “immediately arrest Eizzil Cintron Valenzuela” for her to respond to the charge (charges) of Article 193 CP (Third grade). Judge Higgnboham also fixed a $6,000 bail for her to remain in probation. See, Arrest Order executed on April 6, 2006, (hereinafter, “Exhibit 2”), p. 1. This arrest order was executed by Agent Heriberto Rivera Garcia on April 23, 2006, when he arrested Plaintiff Eizzil Cintron. Exhibit 2. On that same day the Court ordered the Correctional Institution of Bayamon or any correctional institution of Puerto Rico to receive the accused, Plaintiff Eizzil Valenzuela, and to detain her until she posted the bail of $6,000.00 and she could be legally released from prison. See, Auto de Prisión Provisional, executed on April 23, 2006 and signed by Judge Jose M. D’Anglada Raffucci (hereinafter, “Exhibit 3”). On June 5, 2006, Plaintiff Eizzil Cintron was released from jail when she paid the $6,000.00 bail. See, Auto de Excarcelacion dated June 5, 2006 as executed by Judge Ana Rivera Vicenti (hereinafter, “Exhibit 4”).4 4 All of the documents enclosed are certified copies of the original file. See, certification of true and exact copies of the original file enclosed as Exhibit 5 to this motion. Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 15 of 18 16 On February 12, 2015, Co-defendant Waleska Camacho wrote a letter to the OMBUDSMAN in which she informed the necessary steps that were being taken towards returning Edwin’s benefits. In this letter Waleska Camacho explains that she was concerned as to Plaintiff Eizzil Cintron managing Edwin’s money since her social record reflects that she has criminal background since 2006, for illegal appropriation, for which she had to be in jail since she could not post the bail bond of $6,000.00. See, letter dated February 12, 2015 signed by co-defendant Waleska Camacho (hereinafter, “Exhibit 4”). Plaintiffs claim that these “statements were false.” Dkt. No. 24, ¶ 89. Further, she also claims that the alleged defamation and libel was done negligently. Id. at ¶ 93. Appearing co-defendants strongly disagree with Plaintiff Eizzil’s allegations. First of all, as her criminal record reflect, indeed, she has a criminal record, it was for a felony, and she was in jail for failure to post bail bond, which was for $6,000. Exhibit 1 Exhibit, 2, and Exhibit 3. Thus, the information included in the letter is true and from a trustworthy source. Therefore, her libel and defamation claims under state law claim and Art. II, Sec. 8, of the Constitution of the Commonwealth of Puerto Rico should be DISMISSED WITH PREJUDICE. 5 X. SUPPLEMENTAL JURISDICTION OVER PLAINTIFFS STATE LAW CLAIMS A federal court exercising original jurisdiction over federal claims also has “supplemental jurisdiction over all other claims that are so related to the claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C.A. § 1367(a) (West 1993). If, however, the court dismisses the foundational federal claims, it must reassess its jurisdiction, this time engaging in a pragmatic and case-specific evaluation of a variety of considerations that may bear on the issue. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256-57 5 Once the slander and libel claims are dismissed with prejudice, it is respectfully requested to this Court to disregard any allegation in the Amended Complaint as to the contents of the letter included as Exhibit 6 not being true. Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 16 of 18 17 (1st Cir.1996). Among the factors that will often prove relevant to this calculation are the interests of fairness, judicial economy, convenience, and comity. Id. Comity is a particularly important concern in these cases. As the Supreme Court observed in United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not unsubstantial in a jurisdictional sense, the state claims should be dismissed as well. Camelio v. Am. Fedn., 137 F.3d 666, 672 (1st Cir. 1998). Accordingly, the balance of competing factors ordinarily will weigh strongly in favor of declining jurisdiction over state law claims where the foundational federal claims have been dismissed at an early stage in the litigation. See Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995). Id. Plaintiffs have not been able to present federal foundation claims exist against the appearing defendants; hence Plaintiffs’ supplemental jurisdiction claims should be DISMISSED WITH PREJUDICE. WHEREFORE, appearing co-defendants respectfully request this Court to DISMISS THE AMENDED COMPLAINT WITH PREJUDICE. I HEREBY CERTIFY that on this same date, I have electronically filed the foregoing with the Clerk of the Court using CM/ECF system, which will send notification of such filing to the attorneys of record. RESPECTFULLY SUBMITTED, In San Juan, Puerto Rico, this September 16, 2016. [ I N T E N T I O N A L L Y L E F T B L A N K ] Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 17 of 18 18 CESAR R. MIRANDA-RODRIGUEZ Secretary of Justice MARTA ELISA GONZALEZ Y. Deputy Secretary General Litigation Office WANDYMAR BURGOS-VARGAS Director Federal Litigation and Bankruptcy Division s/ Katiuska Bolaños-Lugo KATIUSKA BOLAÑOS-LUGO USDC-PR No. 231812 Attorney for the Commonwealth of Puerto Rico, Puerto Rico Department of Family Affairs, Administration of Family and Children, Waleska Camacho, Mildred Nieves, and Wilma Ortiz. Federal Litigation Division P.O. Box 9020192 San Juan, Puerto Rico 00902-0192 Phone: 787-721-2900 Ext. 2650 Fax: 787-723-9188 Email: kbolanos@justicia.pr.gov Case 3:16-cv-01277-FAB Document 30 Filed 09/16/16 Page 18 of 18 Case 3:16-cv-01277-FAB Document 30-1 Filed 09/16/16 Page 1 of 2 Case 3:16-cv-01277-FAB Document 30-1 Filed 09/16/16 Page 2 of 2 Case 3:16-cv-01277-FAB Document 30-2 Filed 09/16/16 Page 1 of 2 Case 3:16-cv-01277-FAB Document 30-2 Filed 09/16/16 Page 2 of 2 Case 3:16-cv-01277-FAB Document 30-3 Filed 09/16/16 Page 1 of 1 Case 3:16-cv-01277-FAB Document 30-4 Filed 09/16/16 Page 1 of 1 Case 3:16-cv-01277-FAB Document 30-5 Filed 09/16/16 Page 1 of 1 Case 3:16-cv-01277-FAB Document 30-6 Filed 09/16/16 Page 1 of 1