Acevedo-Lopez et al v. Ortiz et al

2015 | Cited 0 times | D. Puerto Rico | March 31, 2015

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

Civil No. 13-1166 (DRD)

OPINION AND ORDER Pending before the Court are Jurisdiction at Docket No. 34 and at Docket No. 39. For the reasons set forth below, Motion to Dismiss for Lack of Subject Matter Jurisdiction is DENIED and the Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part.

I. Introduction

On February 26, 2013 Aida Acevedo Lopez, Janice De Jesus Concepción, Carmen Rivera Rivera, Iris Ruiz Rodriguez, Luz Rivera Charles, Friola Rivera Quiñones, Cydmarie Sanchez Correa, Estela Lugo, Carmen I. Gonzalez Morales, Lourdes Pardo Ortiz, Monica Gonzalez Rivera, Carmen Arcelay Mendez, Olga Gotay Lucas, Yomaira Irizarry, Wilivette Feliciano Torres and Melissa Arce Gonzalez the above-captioned case claiming AIDA ACEVEDO LOPEZ, et al., Plaintiffs v. VIVIAN ORTIZ, et al., Defendants.

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Fifth, Eighth, and Fourteenth Amendments of the Constitution of the United States, pursuant to the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983, and under the Constitution and laws of the Commonwealth of Puerto Rico, in particular, P.R. LAWS ANN. tit. 31, § 1802 See Amended Complaint at Docket No. 27.

II. Relevant Factual Background At the time of the filing of the complaint, Plaintiffs were incarcerated and under the custody of the Department o correctional institution. (Docket No. 27 ¶¶ 1-17.) On February 27, 2012, at approximately 2:00 Vega Alta correctional institution where approximately 100 female inmates were housed,

including Plaintiffs. 1

Id. ¶¶ 30-31. The female plaintiffs were given plastic bags, ordered to place Id. ¶ 33. The women remained in the visitation area throughout the day, were not given any

medical attention, and were surrounded at all times by the Tactical Operations Unit. (Docket No. 27 ¶ 34.) Id. ¶ 34.

At approximately 5:30 p.m. that same

who act like men are going to S

2 Id. Section 7, where they were kept in complete isolation from the rest of the general population in Id. ¶ 36. Upon arrival, Plaintiff Melissa Arce González was assigned to Section 7

1 Except Plaintiff Melissa Arce González, who arrived at the prison on March 1, 2012. 2

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e she would have no opportunity to find a gi 3

Id. ¶ 37. On March 1, 2012, Plaintiff Willivette Feliciano Torres was relocated to the general population. Id. ¶ 38.

Plaintiffs allege there were only eight serviceable beds in Section 7 and they had to take turns sleeping on the floor. Id. the Id. ¶¶ 40- e brought to them after the rest of the population had eaten. Id. 4

Id. order her Id. ¶ 43. The custodial officers would stand over Plaintiffs as they

ate and many would threaten Plaintiffs with their pepper spray. Id.

f 5

Id. discriminatory comments directly by Defendants Vivian Ortiz and Sgt. Marrero, who

would direct all manner of homophobic insults at them on a Id. ¶ 45. On March 2, Plaintiffs, and apologized to them on behalf of DCR and of then-Secretary of DCR, Jesús

González Cruz. Docket No. 27 ¶¶ 47, 48. relocated among the general population. Id. ¶ 49. Several of the Plaintiffs objected to being

3 4 Docket No. 27, 9, n. 5. 5 Custo ( Id.

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reassigned until they could speak with lawyers. Id. ¶ 50. Plaintiff Estela Lugo resisted being relocated and was assaulted by various correctional officers. 6

Id. III. Procedural Background

Plaintiffs filed the instant action against Defendant Vivian Ortiz, Colonel Nestor Velazquez, Samuel Jackson, Sgt. Marrero, one unnamed defendant and their spouses. (Docket No. 27 ¶¶ 18-25.) All Defendants were sued in their personal and individual capacities. Id. ¶ 26. Plaintiffs alleged that Defendants violated their rights under the United States Constitution, the Civil Rights Act of 1871, as amended, and under the Constitution and laws of the Commonwealth of Puerto Rico, in particular, P.R. LAWS ANN. tit. 31, § 5141. See Docket No. 1. Defendants then filed their Motion for a More Definitive Statement Pursuant to Federal Rule of Civil Procedure 12(e). (Docket No. 8.) (21) days to amend their Complaint. See Lopez v. Ortiz, 11 F.Supp. 3d 46 (D.P.R. 2014). This

Court instructed Plaintiffs to properly establish a cause of action against Defendants Id.

In their Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Defendants argue that this court lacks subject matter jurisdiction because Plaintiffs failed to exhaust all administrative remedies available to them before filing this suit, as mandated by the Prisoner Litigation (Docket No. 34.) Plaintiffs opposed the Motion to Dismiss arguing that the failure to exhaust

6 Other than this broad allegation, Plaintiff Lugo did not make any other allegations regarding the assault. She Plaintiff Lugo did not even allege excessive force under the Eighth Amendment and thus this Court shall not address this allegation.

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administrative remedies is an affirmative defense and not a jurisdictional requirement. (Docket No. 38.) Defendants then moved the court for Judgment on the Pleadings, pursuant to Rule 12(c) of Federal Civil Procedure, wherein they argue that Plaintiffs failed to state a cause of action under the Fifth, Eight, and Fourteenth Amendments and that the PRLA bars Plaintiffs from bringing suit un remedies and because they did not allege physical injury. (Docket No. 39.)

After a careful review of all the pleadings, the c equest regarding the jurisdictional issue but agrees, in part, with judgment on the pleadings.

IV. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. Standard for Motion to Dismiss Federal courts Spielman v. Genzyme Corp., 251 F.3d 1, 4 (1st Cir. 2001). Federal

the court lacks subject matter jurisdiction. Motions under Rule 12(b)(1) are brought forth to attack

failure to comply with Federal Rule of Civil Procedure formal sufficiency of the allegations in the complaint. Tropical Air Flying Services, Inc. v.

Carmen Feliciano de Melecio, 158 F. Supp. 2d 177, 181 (D.P.R. 2001). It is settled that the standard followed by the court when considering a dismissal request under Rule 12(b)(1) is that the -pleaded factual claims and indulge all reasonable inferences in Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). To determine

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jurisdiction under Rule 12(b)(1), the court may also review the evidence on record, including affidavits and depositions, as opposed to a dismissal request under any other subsection of Rule 12(b). Vaqueria Tres Monjitas, Inc. v. Laboy, No. 04-1840, 2006 WL 6925764, at *5 (D. P. R. October 2, 2006).

s Rolón v. Rafael Rosario & Assocs., Inc., 450 F. Supp. 2d 153, 156 (D. subject matter jurisdiction, the court must dismiss the com Arbaugh v. Y&H Corp. -matter jurisdiction of a Willy v. Coastal Corp., 503 U.S. 131, 137 (1992).

B. Discussion Plaintiffs assert that this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343 and supplemental jurisdiction under 28 U.S.C. § 1367. Docket No. 27 at 2-3. Under Section 1331 of have original jurisdiction of all civil actions arising brought under the general federal question jurisdiction of the federal courts are those in which

fed Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 808 (1986). Section 1343 of the United States Code states, in relevant part, as follows:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons

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within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. 28 U.S.C. § 1343.

Although Plaintiffs did not cite to a specific subsection of 1343, the United States Supreme . . 1343(3) and [section] 1983 unquestionably authorize[] federal courts to entertain suits to redress the deprivation, under color of state law, of constitutional Hagans v. Lavine, 415 U.S. 528, 538 (1974). Supplemental jurisdiction is conferred in district courts by 28 U.S.C. § 1367 which states, in relevant part, that if the district court has original jurisdiction over a civil action, then the district s in the action within such original jurisdiction that they form part of the same case or controversy under Article federal claims must derive from a common n America v. Gibbs, 383 U.S. 715, 725 (1966). In other words, if one were to consider the claims

ordinarily b Id.

heir complaint. (Docket No. 27 ¶ 18-22.) However, all of the facts alleged by Plaintiffs transpired under the umbrella of the DCR. At all relevant times, Defendants were all employed, one way or another, by DCR and acted in their official capacities as prison officials. The alleged violations

Id. ¶¶ 1-17. These allegations all lead to the inference that

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Defendants were acting under color of state law during the allege employees and the discrimination took place in a DCR prison. all administrative remedies before bringing suit is incorrect. As Plaintiffs argued in their

Opposition to Motion to Dismiss, the exhaustion requirement is an affirmative defense to be raised and proven by the defendants, not a jurisdictional prerequisite. Ramos v. Patnaude, 640 F.3d 485, 488 (1st Cir. 2011) (citing Woodford v. Ngo, 548 U.S. 81, 101 (2006) and Jones v. Bock, 549 U.S. 199, 212 (2007)). Defendants claim failure to exhaust administrative remedies. Hernandez-Vazquez v. Ortiz-

Martinez, No. 09-01743, 2010 WL 132343, at *3 (D.P.R. 2010).

Regarding supplemental jurisdiction, the claims Plaintiffs are making under the Constitution and laws of the Commonwealth of Puerto Rico arise out of the same factual allegations as the federal claims. Therefore, they do arise out of the same common nucleus of operative fact and qualify for supplemental jurisdiction under 18 U.S.C. § 1367. This Court has subject matter ismiss is hereby DENIED.

V. Motion for Judgment on the Pleadings

A. Standard of Review judgment on the pleadings after the pleadings are closed, but early enough not to delay trial. A

motion under Rule 12(c) is treated much the same as a motion under Rule 12(b)(6). Aponte-Torres v. University of Puerto Rico, 445 F.3d 50, 54 (1st Cir. 2006). The court must review the facts

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contained in the pleadings in the light most favorable to the non-movant and draw all reasonable inferences in their favor. Id. appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (quoting George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2nd Cir. 1977)). To survive a Rule 12(c) motion, a complaint must contain factual allegations that raise a right to relief above the speculative level. Perez-Acevedo v. Rivero- Cubano, 520 F.3d 26, 29 (1st Cir. 2008). Under Rule 12(c) there is no resolution of contested facts meaning that the court may enter judgment on the pleadings only if the properly considered facts conclusively establish the movan R.G. Financial Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006) (citing Rivera-Gomez, 843 F.2d at 635).

dehors the records for Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 38 (1st Cir. 2004). If the court does not exclude the outside materials, the summary judgment standard governs the disposition of the motion. 7

Id. A court may convert a motion for judgment on the pleadings to a motion for summary judgment when: (1) the party opposing the motion is given adequate notice of the conversion, and (2) is given a reasonable opportunity to present material made pertinent to the motion for summary judgment. Id. (citing Collier v. City of Chicopee Id.

7 excluded by the court, the motion must be treated as one for summary judgment under [Federal Rule of Civil FED.R.CIV.P. R. 12(d).

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interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter Reder, 355 F.3d at 39. After the movant states that there is no evidence supporting the Garside v. Osco Drug, Inc., 895 F.2d 46,

y a finder of fact Id. (citing Anderson v. Liberty Lobby, Inc. suit, that is, an issue which, perforce, needs to be resolved before the related legal issues can be Id. (citations omitted).

B. Conversion to Motion for Summary Judgment

that if Defendants wanted their motion to be examined as a motion for summary judgment, then it at 10. the pleadings, under Rule 12(c), to a motion for summary judgment, under Rule 56, is appropriate. The court reasons as follows.

This case assimilates Reder where the First Circuit determined that the district court correctly converted a motion for judgment on the pleadings to a motion for summary judgment as the notice and opportunity requirements were fully satisfied. 355 F.3d at 38. After the pleadings were closed, the plaintiff-appellee filed a motion for judgment on the pleadings and incorporated

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by Id. Reder filed a memorandum of law in response. Id. The First Circuit determined that although the district court did not give Reder explicit notice of the conversion, the attachment of outside materials to a motion for judgment on the pleadings provides the nonmovant constructive notice that the court may, if it so chooses, apply the summary judgment standard. Id. in opposition as the district court did not take action on the motion for

judgment on the pleadings until 18 calendar days after it was filed. Id. ten- Id. Thus, the conversion was within discretion. Id. at 39.

Here, both requirements are well-satisfied. First, Defendants attached outside documents to their motion for judgment on the pleadings. These outside materials effectively put Plaintiffs on constructive notice that this Court may apply the summary judgment standard, just like the incorporations of evidence served as constructive notice in Reder. Second, Plaintiffs had plenty of time to present evidence in opposition over 23 calendar days and merely filed a memorandum of law. As such, both the notice and opportunity requirements were satisfied hence the court has judgment. The court proceeds pursuant to said discretion.

C. Discussion

a. Requirement

Congress enacted the PLRA in 1996 following a sharp increase in prisoner litigation in federal courts to bring the litigation under control and to eliminate unwarranted federal-court

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interference with the administration of prisons. Woodford, 548 U.S. at 94

Id. (citing Porter v. Nussle, 534 U.S. 516, 524 (2002)). 42 U.S.C. § conditions under section 1983 . . . or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are available are which states, in relevant part, as follows:

Every person who, under color of any statute . . . of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other property proceeding for redress . . . 42 U.S.C. § 1983.

Exhaustion of administrative remedies under Section 1997e(a) serves two main purposes. Woodford, 548 U.S. at 90. First, it provides mistakes with respect to the programs it administers before it is haled into federal court, and it

di Id. (citations omitted). Second, it promotes efficiency as claims can generally be resolved more quickly and economically in proceedings before an agency than in litigation in federal court. Id. where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for Id. The exhaustion of administrative remedies is not er must . . . exhaust administrative remedies even where the relief sought monetary damages- Id. at 85

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challe Id. (emphasis added); see also

Porter v. Nussle requirement applies to all prisoners seeking redress for prison circumstances or occurrences). Cruz-Berrios v. Oliver-Baez, 792 F. Supp. 2d 224, 228

(D.P.R. 2011) (citing Cruz Berrios II, 630 F.3d 7, 11 (1st Cir. 2010)). To satisfy the burden, the defendant must prove that: (1) administrative remedies were in fact available to the plaintiff, and (2) the plaintiff failed to exhaust them. Id. The boundaries of proper exhaustion are defined by the Jones v. Bock, 549 U.S. 199, 218 (2007). In Medina-Claudio v. Rodriguez-Mateo dismissal because the plaintiff failed to exhaust administrative remedies. 292 F.3d 31, 34 (1st Cir.

2002). There was no dispute that the suit involved prison conditions under Section 1983 and so Section 1997e(a) applied. Id. Because there was no dispute that the plaintiff failed to exhaust all administrative remedies, the lower court dismissed the claim and the First Circuit affirmed. Id.

Here, Defendants provided in their motion for judgment on the pleadings a description of the administrative process by which an inmate can seek redress for any grievances. 8

The administrative process is initiated by completing an application form provided by the Division. (Docket No. 39 at 20.) The inmate has fifteen (15) calendar days to file the application from the time he or she learns of the facts giving rise to the request. Id. No more than fifteen (15) days

8 Defendants also provided an English translation of the Regulation for Considering Requests for Administrative Remedies Filed by the Members of the Correctional Population, as an exhibit to their motion.

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superintendent of the institution, the head of the halfway home, the medical director, or the

coordinator of the Residential Treatment Center, the medical director [sic], and the supervisor of Id. The evaluating official shall notify the inmate, in writing, within a maximum of twenty (20) days following receipt of the response to the request for remedy submitted by the superintendent of the institution, the supervisor of the halfway home, the medical director, or the coordinator of the Residential Treatment Center. Id. If the inmate disagrees with the response issued, he or she may request a review in a request for reconsideration with the coordinator, within twenty (20) calendar days from the receipt of the notification of response. Id. If the inmate continues to be dissatisfied with the resolution, he or she may request judicial review before the Puerto Rico Court of Appeals, in compliance with the Uniform Administrative Procedure Act, Section 4.2, Act. No. 170, August 12, 1988; P.R. LAWS ANN tit. 3, § 2172. (Docket No. 39 at 21.) Defendants also provided letters which certify that five out of the seventeen Plaintiffs did not even initiate any administrative proceedings. 9

As such, Defendants met their burden of proving that Plaintiffs did not exhaust administrative remedies available to them before filing this suit. The burden shifted to Plaintiffs to counter the evidence provided by Defendants. However, (Docket No. 38.) Essentially, Plaintiffs argue that the exhaustion requirement is not a

jurisdictional requirement and so Defendants cannot obtain a judgment on the pleadings by arguing that it is. (Docket No. 46 at 9-10.) 9

The Plaintiffs for which Defendants provided the letters, stating that they did not exhaust remedies, are Iris Ruiz Rodríguez, Luz Rivera Charles, Lourdes Pardo Ortiz, Yomaira Irizarry, and Melissa Arce González.

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Defendants are no longer arguing that the Court lacks jurisdiction because of the failure to exhaust, but rather that the case must be dismissed because of that failure, not because of lack of jurisdiction. Plaintiffs cite Woodford, 548 U.S. 81, and Bock, 549 U.S. 199, are two landmark cases on the subject, in support of their argument. (Docket No. 46 at 9.) This is correct to a certain extent. While Woodford and Bock do stand for the proposition that failure to exhaust is an affirmative defense to be proven by the defendants, they also make clear that if the defendant proves that the exhaustion requirement is not met, then the claims must be dismissed. This is something Plaintiffs failed to include in their Opposition. (Docket No. 38.) At any rate, Plaintiffs have failed to offer any evidence, or even make any allegations, contrary to the evidence provided by Defendants.

Plaintiffs are pussyfooting with the Court by playing word games. In their Opposition to Motion to Dismiss, Docket No. 38, they conceded that the Complaint any allegations regarding their filing administrative grievances with the Puerto Rico Department o (Docket No. 38 at 1.) Yet Plaintiffs have not offered any evidence or made any allegations that they complied with the exhaustion rule or that the remedies were ed

to individuals who are imprisoned at the time the suit 10 (citing Rivera Quiñones v. Rivera González, 397 F. Supp. 2d 334, 340 (D.P. impossible for the Court to determine if any or all of the [P]laintiffs mentioned by the [D]efendants were released from confinement at the time of the filing of the C(Docket No. 46 at 10.) However, Plaintiffs do not allege that they were not still imprisoned when the Complaint was filed.

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The foregoing reasons this Court concludes that there were remedial measures available to the Plaintiffs and, those for who Defendants provided the letters, did not exhaust them.

b.

i. Compensatory Damages Woodford correctional facility, for mental or emotional injury suffered while in custody without a prior

showing of physical injury or the commission of a addressed the application of Section 1997e(e), the Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have. 10

They all agree that if the plaintiff does not allege a physical injury with their mental and/or emotional injuries, their claim for compensatory damages is barred under shall be brought for mental

or emotional damages without a prior sho ourt agrees.

of appetite, provoked by the constant humiliation, harassment, isolation[,] and abuse they were

subjected to by [D] (Docket No. 27 ¶ 59.) These are all mental and emotional injuries.

10 Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir. 2003); Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Tribe v. Snipes, 19 Fed. Appx. 325, 326 (6th Cir. 2001); Cassidy v. Indiana Dept. of Corrections, 199 F.3d 374, 376-77 (7th Cir. 2000); Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); Milledge v. McCall, 43 Fed. Appx. 196, 197 (10th Cir. 2002); and Harris v. Garner, 216 F.3d 970 (11th Cir. 2000).

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Thus, as a matter of law, Plaintiffs are not entitled to compensatory damages because they did not allege physical injury.

ii. Punitive and Exemplary Damages 11

Docket No. 27 at ¶ 62. Currently, the issue whether punitive damages are barred by the Section 1997e(e) is unclear. The Federal Circuit courts are split. On one hand, a majority of the circuits who have addressed the issue of whether Section 1997(e) bars the award of punitive damages have held in the negative. See Thompson v. Carter, 284 F.3d 411, 416(2nd Cir. 2002); Allah v. Hafeez, 226 F.3d 247, 252 (3rd Cir. 2000); Hutchins v. McDaniels, 512 F.3d 193, 198 (5th Cir. 2007); Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir. 2003); Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002); and Searles v. Van Bebber, 251 F.3d 869, 881 (10th Cir. 2001); Washington v. Hively, 695 F.3d 641, 644 (7th Cir. 2012). On the other hand, two circuits, the Eleventh and District of Columbia, have found that Section 1997e(e) bars such damages from being awarded. Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998); and Al-Amin v. Smith, 637 F.3d 1192, 1198 (11th Cir. 2011).

The First Cir . In Kuperman v. Wrenn, the First Circuit indirectly touched on the subject of punitive damages, while analyzing

that plaintiff had been excarcerated while the appeal was pending; therefore injunctive and declaratory relief was no longer available as relief. Yet the court recognized that monetary relief 11 Although the Plaintiffs are not requesting injunctive or declaratory relief, the Court deems it important to mention that the majority of circuits who have considered the issue found that Section 1997e(e) does not bar claims seeking injunctive or declaratory relief. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Harris v. Garner, 216 F.3d 970, 1000 (11th Cir. 2000); Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 808 (10th Cir. 1999); Davis v. District of Columbia, 158 F.3d 1342, 1346 (D.C. Cir. 1998); Zehner v. Trigg, 133 F.3d 459, 462 (7th Cir. 1997).

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was still available, specifically recognizing the availability punitive damages. 645 F.3d 69, 73 (1st Cir. 2011). [A]s a former prisoner alleging a constitutional violation that occurred during his Id. Thus, the undersigned opines that an indirect recognition that Section 1997(e) does not bar punitive damages. In addition, the Court stated:

Although neither party discussed the Prison Litigation Reform Act, we note that it could preclude [Plaintiff] from recovering on his § 1983 claim seeking compensatory damages. See 42 U.S.C. § 1997e(e). Section 1997e(e) provides that o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody section 1997e(e)'s limitation not to apply to constitutional claims, we need not reach the issue. It does not matter whether compensatory damages are available to [Plaintiff], because his requests for [. . .] punitive damages are enough to keep his claims alive. (Emphasis ours). Kuperman, 645 F.3d at 73 n. 5 (citing Thompson v. Carter, 284 F.3d 411, 416 17 (2d Cir. 2002) (collecting cases).). As such, the First Circuit did not clarify in depth whether Section 1997e limitation related only to constitutional damages or could be applied under other federal statutory

causes as to the instant case.

In allowing punitive damages under Section 1997e(e), the Third Circuit reasoned that Allah, 226 F.3d at 252. Therefore, should the plaintiff premise the punitive damages request on constitutional injury, then Section 1997e(e) does not bar the cause. Id.; see also Calhoun, 319 F.3d at same prisoner alleges some other type of non-physical injury, the statute would not foreclose

onal right is itself a cognizable injury, regardless of

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any resulting mental or emotional injury. Calhoun, 319 F.3d at 940. Additionally, the Third punitive damages is to punish the defendant for his willful or malicious conduct and to deter others

Al-Hafeez, 226 F.3d at 252. See also Calhoun, 319 F.3d at 941 (stating that punitive damages are not barred because they serve a different purpose than compensatory damages, which are the focus of Section 1997e(e)). Punitive damages may be awarded when the reckless or callous indifference to the federally Searles v. Van Bebber,

251 F.3d 869, 889 (10th Cir. 2001).

The D.C. Circuit disagreed with the majority and reasoned that Section 1997e(e) does not draw a distinction between punitive and compensatory damages. Davis v. District of Columbia, 158 F.3d 1342, 1348 (D. Id. prisoners could surmount § 1997e(e) simply by adding a claim for punitive damages and an Id. The Eleventh Circuit agreed with the D.C. - Al-Amin v. Smith, 637 F.3d 1192, 1197 Civil Action may be brought, Id. (citing Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir. 2000)).

issue, the undersigned follows the path the First Circuit was paving and, therefore, joins the reasoning of the majority of circuits that find that Section 1997e(e) does not bar punitive damages if they are premised on a constitutional claim

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and not mental or emotional injury. The undersigned finds this rationale extremely persuasive because while prisoners can seek redress through injunctive or declaratory relief, that hardly deters any future violation of constitutional rights. Considering the gravity of the situation, merely finding illegality is not enough. Punitive damages serve the purpose of punishing the wrongdoer and deterring any future similar action. 12

Here, Plaintiffs assert that their damages stem from the ted constitutional rights (Docket No. 27 ¶ 60.) Thus, while Plaintiffs may not recover any compensatory damages, their claims for punitive damages are not barred by Section 1997e(e). Consequently, the court now turns to analyze each constitutional violation alleged by Plaintiffs against Defendants in their personal capacities.

c. Claims Under Section 1983 Defendants allege in their Motion for Judgment on the Pleadings that Plaintiffs fail to state a claim under which relief can be granted. (Docket No. 39 at 7.) The Court will address each any

Grapentine v. Pawtucket Credit Union, 755 F.3d 29 (1st Cir. 2014). Section 1983 does

not create any independent substantive rights; it is only a procedural vehicle to vindicate constitutional and other federal statutory violations brought about by state actors. See Baker v. McCollan 12

The court found odd the lack of prospective injunctive relief remedy in the instant case pursuant to Ex Parte Young, 209 U.S. 441 (1908) and other Supreme Court jurisprudence cited infra.

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substantive rights, but [merely provides] a method for vindicating federal rights elsewhere conferred

Gagliardi v. Sullivan, 513 F.3d 301, 306

(1st Cir. 2008) (citing Rodríguez-Cirilo v. García, 115 F.3d 50, 52 (1st Cir. 1997)). The standard is satisfied if the actor sets in motion a series of acts by others which the actor knows or should reasonably know would cause others to inflict constitutional injury. Ocasio-Hernandez v. Fortuno- Burset, 640 F.3d 1, 16 (1st Cir. 2011) (quoting Sanchez v. Pereira-Castillo, 590 F.3d 31, 50 (1st Id. (citing Ayala-Rodriguez v. Rullán, 511 F.3d 232, 236 (1st Cir. 2007)).

However, the claim under Section 1983 may also be granted as a personal or official capacity based on injunctive or equitable relief. See Mills v. State of Maryland, 118 F.3d 37, 54 (1st Cir. 1997) (citing Ex Parte Young, 209 U.S. 441 (1908); and Green v. Mansour, 474 U.S. 64, 68 1985)).

i. Fifth Amendment Claims property, without due process of law . . . U.S. CONST. AMEND. V. The Supreme Court has held

Vance v. Bradley

Due not to those of Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 8 (1st Cir. 2007) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)).

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In Martinez-Rivera the Fifth Amendment because they did not make any allegations that the Defendants were federal

actors. The instant case suffers the same infirmity. In their Amended Complaint, Plaintiffs argue the Constitution of the United States sexual orientation. (Docket No. 27.) However, as Defendants argued in their Motion for

Judgment on the Pleadings, that claims should be dismissed because Plaintiffs failed to allege that Defendants are federal actors, as a matter of fact, they are state actors and not federal actors. (Docket No. 39 at 8.) Thus, it is pellucid that all claims under the Fifth Amendment are dismissed as the Plaintiffs did not possess a federal government action. Simply stated, there is no Fifth Amendment claim in this case as to state actors. Martinez-Rivera, 498 F.3d at 8.

ii. Fourteenth Amendment Claims ] should the person be detained beyond arrest; when the pretrial detention began, as well as after the detainees have been convicted. It is settled that [neither] pretrial constitutional protections by rea Lopez, 11 F.

Supp. 3d at 50. Although prisoners experience a reduction in many privileges and rights, a Sanchez, 590 F.3d at 41

(quoting Turner v. Safley, 482 U.S. 78, 95, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)).

The Equal Protection Clause of the Fourteenth Amendment mandates that similarly situated persons be treated alike absent a rational basis for doing otherwise. City of Cleburne v. Cleburne

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Living Ctr., Inc., 473 U.S. 432, 440 (1985). In the prison context, the Equal Protection Clause of the Fourteenth Amendment forbids a state from arbitrarily treating one group of prisoners worse than another. Anderson v. Romero, 72 F.3d 518, 526 (7th Cir. 1995). n specific instances where persons situated similarly in all relevant aspects were treated differently, instances which have the capacity to demonstrate that plaintiffs were singled out for unlawfu Ayala-Sepulveda v. Municipality of San German, 671 F.3d 24, 32 (1st Cir. 2012) (internal quotations omitted).

Sixteen out of the seventeen Plaintiffs are, pursuant to the allegations, openly homosexual women. (Docket No. 27 ¶ 28.) According to Plaintiffs, their segregation was founded on their sexual preference and their non-stereotypical conforming physical appearance. Id. ¶ 27. In the instant case ual stereotypes

13 Plaintiffs posit Defendants classified and segregated them by gender classification based on their sexual stereotype, in violation of the Equal Protection Clause. ender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization. And hostility toward nonconformance with gender stereotypes also constitutes impermissible gender discrimination. Latta v. Otter, 771 F.3d 456, 486 (9th Cir. 2014) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001)

13 As to this matter, the court notes that in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), the Court protected against discrimination in mistreatment against gays and lesbians based on substantive somewhat related tests as to levels of scrutiny-applied to liberty interests under the former and discrimination claims under the latter. Lopez, 11 F. Supp. 3d 46 at 51.

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-based discrimination)).

he appropriate analysis for an equal protection claim is whether Griffin v. Coughlin, 743 F. Supp. 1006, 1010 (N.D.N.Y. 1990) (citing Benjamin v. Coughlin, 905 F.2d 571, 574-75 (2nd Cir. 1990)); see also Langone v. Coughlin, 712 F. Supp. 1061, 1066 (N.D.N.Y. 1989); and Williams v. Lane constitutional right claimed to have been infringed is fundamental, and the State under other

Washington v. Harper, 494 U.S. 210, 223 (1990). prison staff to treat all inmate groups the same when differentiation is necessary to avoid a threat to

Kuperman, 645 F.3d at 78. When there is no suspect classification involved, or any deprivation of fundamental rights, the ordinary equal protection test is extremely deferential. Beauchamp v. Murphy, 37 F.3d 700, 707 (1st Cir. 1994). Plaintiffs argue that Defendants violated their equal protection rights under the Fourteenth Amendment for discriminating against because of stereotypical classifications. Particularly, against their physical appearance, masculin (Docket No. 27.) existence of an unconstitutional practice or regulation used by the correctional facility where the

allegations took place. (Docket No. 39.) To wit, Defendants contend that Plaintiffs grievance is merely an isolated event in a specific time frame that in no way escalates to a Constitutional

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violation. Id. at 12. Should the court find that there is a discriminatory practice; Defendants then penological interests that the court must Id. While it is true that Plaintiffs are not alleging that there is an unconstitutional regulation in place, it does not bar Plaintiffs from alleging their constitutional rights were violated under the by the Equal Protection Clause and hide behind the fact that there is no written regulation or on-

going practice in place. Regardless, Defendants argue that the carried out for security reasons and done to avoid potential violence between inmates. (Docket No. 39.) Particularly, they argue that housing homosexuals with heterosexuals might cause friction between cellmates that potentially could lead to violence. Id. at 13. and security are well established by [Supreme

Harper, 494 U.S. at 223. Given the clear instructions from the Supreme Court that judgment, the court awards deference to Defendants and their decision to segregate Plaintiffs for

their own safety. See , 482 U.S. 342, 350 (1987). 14

Nevertheless, the court is mindful of the early stage of this litigation, and is well aware that

the court must hold a more lenient posture. See García-Catalán v. United States, 734 F.3d 100, 104 14 See also necessary and correct result of our deference to the informed discretion of prison administrators permits them, Pell v. Procunier, officials have exaggerated their response . . . courts should ordinarily defer to their expert judgment in [institutional securit

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(1st Cir. 2013). Plaintiffs have successfully pled sufficient facts to plausibly state a claim of Fourteenth Amendment Equal Protection violation due to gender discrimination. Regarding they were surrounded by the Tactical Operations Unit all day; subjecting them to daily

homophobic insults; and feeding them after the rest of the population, Defendants do not allege there was a legitimate penological interest being served.

The court is confident that discovery will enlighten this determination at a later stage in the proceedings; and therefore finds that, at this juncture, Plaintiffs have pled sufficient facts to plausib Motion for Judgment on the P DENIED.

iii. Eighth Amendment Claims ons, but neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal citations and quotations omitted). It is well-settled that on and the conditions Id. (citing Helling v. McKinney, 509 U.S. 25, 113 (1993)). The Eighth Amendment is meant to prohibit

Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014). cruel and unusual punishment forbidden by the Eighth Amendment, a

wanton inflictions of pain are those that are totally without penological justification. Silverstein v. Federal Bureau of Prisons, 559 Fed. Appx. 739, 753 (10th Cir. 2014) (citing Whitley v. Albers,

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475 U.S. 312, 319 (1986) and quoting Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). In sum, to be considered cruel and unusual punishment, the conditions of confinement must: (1) be grossly disproportionate to the severity of the crime warranting punishment, (2) involve the wanton and unnecessary infliction of pain, or deprive an inmate of the minimal civilized necessities. See Rhodes, 452 U.S. at 346-47. constitutionally inadequate conditions of confinement must allege and prove an objective

Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001).

1) The objective component In order to successfully allege an Eighth Amendment violation, plaintiff must first plead facts which, if true, establish an objective component- occurred. Only deprivations which deny are sufficiently g Hunnewell v. Warden, Maine State Prison, 19 F.3d 7 (1st Cir. 1994) (quoting Wilson v. Seiter, 111 S. Ct. 2321, 2324 (1991)).

-of-confinement claim. Because routine discomfort is part of the penalty that criminal offenders pay for their offenses Hudson v. McMillian, 503 U.S. 1, 9 (1992). See also Rhodes, 452 U.S. at 366 (housing two inmates per cell was not unconstitutional as it did not lead to deprivations of essential food, medical care, or sanitation); Jackson v. Meachum, 699 F.2d 578, 581 (1st Cir. 1983) (indefinite segregated confinement in a facility that provided satisfactory shelter, clothing, food, exercise, sanitation, lighting, heat, bedding, medical and psychiatric attention, and personal safety,

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but virtually no communication or association with fellow inmates did not constitute a violation of the Eighth or Fourteenth Amendments); Tillery v. Owens, 907 F.2d 418, 428 (3rd Cir. 1990) conditions, exposure to pervasive risk of physical assault, severe overcrowding, and unsanitary

conditions have all been found to be cruel and unusual under contemporary standards of Silverstein, 559 Fed. Appx. at 753 (quoting Hewitt v. Helms, 459 U.S. 460, 468 ble and more restrictive quarters for nonpunitive .

According to their pleadings, Plaintiffs were humiliated, harassed, isolated and abused by Defendants when they were herded and isolated to a separate unit, based on sexual-stereotyping. (Docket No. 27 ¶¶ 33-38.) Plaintiffs were abruptly escorted to Section 7 of the Vega Alta ted for approximately five (5) days. Id. During those days, Plaintiffs were subjected to daily homophobic insults from prison officials and were fed after the rest of the prison population. (Docket No. 27 ¶¶ 40-42.) Plaintiffs were not afforded enough serviceable beds so they had to take turns sleeping, while some would sleep on the floor. Docket No. 27 ¶ 39. Lastly, Plaintiffs did not receive any recreation during their segregation. Id. ¶ 40. Id. During the meals, a custodial officer was assigned to each Id. at ¶ 43. The custodial officers would stand over Plaintiffs as they ate and many would threaten Plaintiffs with their pepper spray. Id. The length of the conditions is also taken into consideration. npleasant conditions of bly cruel for .

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Surprenant v. Rivas, 424 F.3d 5, 20 (1st Cir. 2005) (citing Hutto v. Finney, 437 U.S. 678, 687, 98 S. Ct. 2565, 57 L.Ed.2d 522 (1978)) of five (5) days.

However, in Brown v. Plata, 131 S. Ct. 1910 (2011) the Supreme Court found that overcrowding caused an inadequate strain in medical and mental health facilities; overburdened limited clinical and custodial staff; and created violent, unsanitary and chaotic conditions that contributed to the Eighth Amendment violation. Moreover, in Rodriguez-Sanchez v. Acevedo- Vila, 763 F. Supp. 2d 294, 303 (D.P.R. 2011), this Court found an Eight Amendment violation for the combination of inhumane conditions that plaintiff was subjected to for thirty-six (36) days where his cell had a clogged toilet, shower water running through it, and was unlit.

Nevertheless, not every deviation from ideally safe conditions constitutes a violation of the constitution. Hunnewell, 19 F.3d at 4. establish an Eighth Amendment violation is a purely legal question determination to be made by

Hickey v. Reeder, 12 F.3d 754, 756 (8th Cir. 1993) (citing Hudson, 503 U.S. at 6).

Considering that this case has not reached the discovery stage, thus, information regarding Plaint with caution finds that Plaintiffs have sufficiently pled enough facts to state an Eight Amendment claim for the conditions of confinement they were subjected to b

be (more latitude is appropriate in cases where it cannot reasonably be expected that the [plaintiff], without the benefit of discovery, would have any information García-Catalán, 734 F.3d at 104.

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Consequently, -of-confinement, at this juncture, are sufficiently serious to plausibly state a claim for an Eighth Amendment violation. Accordingly, -of-confinement could give rise to the level conditions that violate the Eight Amendment.

2) The Subjective component s health and safety. See Farmer,

511 U.S. at 834, Leavitt; 645 F.3d at 497. For conditions of confinement cases, the standard is Id. See also Lakin v. Barnhart, 758 F.3d 66, 71 (1st Cir. 2014) (quoting Farmer, the Court emphasized that under the Eight Amendment,

511 U.S. at 833). The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. In of (2) a substantial risk (3) of serious harm and (4) disregarded t Id. erely

establishing deliberate indifference on a subjective level is insufficient if the medical needs are not serious enough to necessitate action under the Eight Amendment. Berrios-Romero v. Compass Grp. N. Am., 727 F. Supp. 2d 54, 59 (D.P.R. 2010).

Plaintiffs posit Defendants Ortiz and Sgt. Marrero had knowledge, witnessed and directly participated in their segregation. (Docket No. 27 ¶¶ 35, 45.) Moreover, they also allege to have been subjected to derogatory and harassing homophobic comments by Ortiz and Sgt. Marrero. Id. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

order by Ortiz, Velazquez, Jackson and unidentified Defendant Roe. Id. at 51.

Consequently, the court finds that Plaintiffs sufficiently pled the subjective requirement of DENIED.

VI. Conclusion Jurisdiction at (Docket No. 34) is hereby GRANTED in part and DENIED in part. Particularly,

the claims dismissed are those pertaining to Plaintiffs Iris Ruiz Rodriguez, Lourdes Pardo Ortiz, Luz Rivera Charles, Melisa Arce Gonzalez, and Yomayra Irizarry who have failed to exhaust administrative remedies. Moreover, GRANTED in part and DENIED in part.

Eight and Fourteenth Amendment claims remain, as described above, and they may only recover punitive damages. IT IS SO ORDERED. In San Juan, Puerto Rico, this 31st day of March, 2015. s/Daniel R. Domínguez DANIEL R. DOMINGUEZ United States District Judge

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