United States Court of Appeals
For the First Circuit
No. 05-1797
MARIA RAMOS-PIÑERO, ET AL.,
Plaintiffs, Appellants,
v.
COMMONWEALTH OF PUERTO RICO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpi, U.S. Magistrate Judge]
Before
Selya and Lipez, Circuit Judges,
and Saylor,* District Judge.
Nicolas Nogueras-Cartagena on brief for appellants.
Salvador J. Antonnetti-Stutts, Solicitor General; Mariana
Negrón-Vargas, Deputy Solicitor General; Maite D. Oronoz Rodríguez,
Deputy Solicitor General; and Leticia Casalduc-Rabell, Assistant
Solicitor General, on brief for appellees Commonwealth of Puerto
Rico and Department of Transportation and Public Works.
Francisco J. Amundaray on brief for appellee Municipality of
San Juan.
Luis G. Martinez Llorens on brief for appellee Pep Boys -
Manny, Moe & Jack of Puerto Rico, Inc.
June 30, 2006
_________
* Of the District of Massachusetts, sitting by designation.
Saylor, District Judge. This appeal arises out of the
tragic death of a fourteen-year-old boy who fell into an open
manhole. The plaintiffs, mostly relatives of the boy, sought
damages from various governmental and private defendants under 42
U.S.C. § 1983 and state tort law.1 The district court dismissed
the federal law claims on grounds of Eleventh Amendment immunity
and for failure to state a claim, and declined to exercise its
jurisdiction over the state law claims. Because we find that (1)
the Commonwealth of Puerto Rico (“Commonwealth”) and the
Commonwealth Department of Transportation and Public Works
(referred to in the pleadings by its Spanish-language acronym
“DTOP”) did not waive their Eleventh Amendment immunity from suit
and (2) plaintiffs’ claims against the remaining governmental
defendants do not rise to the level of a federal constitutional
violation, we affirm the dismissal.
I. BACKGROUND
Because the district court disposed of this case on
motions to dismiss, we assume the truth of the facts set forth in
the amended complaint. See Redondo-Borges v. U.S. Dep’t. of
Housing and Urban Dev., 421 F.3d 1, 5 (1st Cir. 2005).
1
For all relevant purposes in this opinion, Puerto Rico is
treated as a state. See, e.g., Soto v. Flores, 103 F.3d 1056, 1064
(1st Cir. 1997) (provisions of section 1983 concerning actions
“under color of state law” applicable to Puerto Rico); Arecibo
Cmty. Health Care, Inc. v. Puerto Rico, 270 F.3d 17, 21 n.3 (1st
Cir. 2001) (Puerto Rico enjoys immunity from suit to the same
extent as any state under the Eleventh Amendment).
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In the fall of 2003, Antonio Luis Ruiz Ramos was a
student at the Llana Middle School in Río Piedras, Puerto Rico. On
October 31, 2003, he left school around 1:40 p.m., after classes
ended for the day. It was raining heavily, and much of 65th
Infantry Avenue (a nearby street) and its surrounding sidewalks
were flooded by the time Antonio Luis began his walk home.
Antonio Luis was walking with a classmate, Ishell Marie
Dávila Villalobos. The two decided to cross 65th Infantry Avenue
and wait out the rain on the balcony of a nearby business known as
“El Caporal.” After some period of time, Antonio Luis jumped off
the balcony onto what he thought was solid ground.
Unknown to Antonio Luis, an open manhole had been
obscured by the flood waters. He fell through the opening and into
the rushing waters of a drainage pipe. The current propelled him
underground back across 65th Infantry Avenue, and through land on
which an auto-parts store owned by defendant Pep Boys - Manny, Moe
& Jack of Puerto Rico, Inc. (“Pep Boys”) is located. The water
carried him to a surface drainage outlet, but discarded tires and
auto parts obstructed the opening and he was trapped.
Rescuers eventually arrived, but the blockage slowed
their efforts to locate Antonio Luis and provide medical
assistance. He suffered multiple wounds to his head and body and
drowned.
According to the complaint, various defendants were aware
that the manhole lacked a cover, that a school was nearby, and that
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the area of 65th Infantry Avenue where the events occurred often
flooded.
Antonio Luis’s mother and other persons commenced a civil
action in the United States District Court for the District of
Puerto Rico on April 22, 2004. The complaint asserted claims for
damages under 42 U.S.C. § 1983 and state tort law. Specifically,
it alleged a violation of Antonio Luis’s rights under the Fourth,
Fifth, Ninth, and Fourteenth Amendments to the United States
Constitution by six defendants: (1) the Commonwealth; (2) DTOP;
(3) the municipal government of San Juan, Puerto Rico
(“Municipality”); (4) the Puerto Rico Aqueduct and Sewer Authority
(PRASA); (5) Ondeo de Puerto Rico, Inc. (“Ondeo”)2, a private
company operating under a service contract with PRASA; and (6) the
Puerto Rico Highway Authority (“PRHA”). Plaintiffs also asserted
state-law claims against all of the above defendants, along with
Pep Boys and three unnamed insurance companies.
The Commonwealth and DTOP moved to dismiss on
jurisdictional grounds, asserting immunity under the Eleventh
Amendment of the United States Constitution. The Municipality
moved to dismiss contending, inter alia, that plaintiffs failed to
2
The district court appears to have assumed that Ondeo was to
be treated as a state actor. The parties do not challenge that
assumption on appeal, and because it is immaterial to our ultimate
conclusion, we do not address it.
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state a claim upon which relief could be granted under Fed. R. Civ.
P. 12(b)(6).3
Proceeding in several stages, the district court
dismissed the entire matter.4 On March 2, 2005, the court
dismissed the claims against the Commonwealth and DTOP on the basis
of Eleventh Amendment immunity. Later, the court dismissed the
section 1983 claims against the Municipality pursuant to Rule
12(b)(6), on the ground that the Municipality’s conduct failed to
amount to a constitutional violation. The court then dismissed the
claims against PHRA and Pep Boys on grounds similar to those of the
Municipality and dismissed sua sponte the remaining claims against
PRASA and Ondeo based on the same reasoning. With no federal
claims remaining, the district court declined to exercise
supplemental jurisdiction over the state law claims. The court
denied plaintiffs’ motion for reconsideration. This appeal ensued.
II. DISCUSSION
A. Standard of Review
The district court dismissed the section 1983 counts
against the Commonwealth and DTOP on jurisdictional grounds,
3
No federal claims were stated against Pep Boys or the three
unnamed insurance companies. Pep Boys moved to dismiss, contending
that because plaintiffs failed to state a federal cause of action,
the district court should decline supplemental jurisdiction over
the state tort claims against Pep Boys.
4
The matter was referred for all purposes to the United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and Fed. R.
Civ. P. 73.
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finding plaintiffs’ claims barred by the Eleventh Amendment. The
section 1983 claims against the remaining governmental defendants
and Ondeo were dismissed under Rule 12(b)(6) for failure to state
a claim.
In both instances, we review the lower court's dismissal
order de novo, accepting the plaintiffs' well-pleaded facts as true
and indulging all reasonable inferences therefrom. See, e.g.,
Redondo-Borges v. U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 5
(1st Cir. 2005) (Rule 12(b)(6)); Arecibo Cmty. Health Care, Inc. v.
Puerto Rico, 270 F.3d 17, 22 (1st Cir. 2001) (Eleventh Amendment
immunity). We are not bound by the reasoning of the district
court, and may affirm an order of dismissal on any basis made
apparent by the record. See Otero v. P.R. Indus. Comm'n, 441 F.3d
18, 20 (1st Cir. 2006).
B. Eleventh Amendment Immunity
The Eleventh Amendment, as construed by the Supreme
Court, bars a citizen from bringing an action in federal court
against his or her own state. See Bd. of Tr. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 363 (2001); see also Maysonet-Robles v.
Cabrero, 323 F.3d 43, 48 (1st Cir. 2003) (citing Hans v. Louisiana,
134 U.S. 1, 10 (1890)). A state, however, can waive its Eleventh
Amendment immunity in three ways: “(1) by a clear declaration that
it intends to submit itself to the jurisdiction of a federal court
or administrative proceeding; (2) by consent to or participation in
a federal program for which waiver of immunity is an express
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condition; or (3) by affirmative conduct in litigation.” New
Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir. 2004) (citations
omitted).
Plaintiffs here claim waiver by affirmative conduct in
litigation. Essentially, they contend that: the complaint alleged
three specific grounds of waiver of immunity5; that the
Commonwealth and DTOP responded to the complaint with a motion to
dismiss (on grounds of Eleventh Amendment immunity) that did not
deny those allegations with sufficient specificity; and that
defendants’ purported failure to do so itself constituted a waiver.
Plaintiffs’ theory is manifestly incorrect, if not
entirely frivolous. If litigation conduct is to constitute a
5
Specifically, plaintiffs contend that the Commonwealth
waived immunity by (1) accepting federal funds under the Hazard
Elimination Program, 23 U.S.C. § 152, and the Highway Safety Act of
1966, 23 U.S.C. §§ 401-11; (2) consenting to liability for injuries
caused by state negligence in maintaining its highways and sewers
under Article 404 of the Puerto Rico Political Code of 1902; and
(3) failing to demonstrate that DTOP was an “arm of the state” and
thus entitled to immunity under the Eleventh Amendment.
While plaintiffs do not argue on appeal that their purported
waiver grounds are substantively correct, we note the following.
First, the mere receipt of federal funds does not constitute a
waiver of immunity. See Edelman v. Jordan, 415 U.S. 651, 673-74
(1974). Second, for a state statute to constitute a waiver of
Eleventh Amendment immunity, “it must specify the State’s intention
to subject itself to suit in federal court.” Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (emphasis in original).
Neither consent to be sued in state court nor a general waiver of
sovereign immunity is sufficient. See, e.g., Fla. Dep’t of Health
& Rehabilitative Servs. v. Fla. Nursing Home Ass’n, 450 U.S. 147,
149-50 (1981) (consent to be sued in state court insufficient);
Atascadero, 473 U.S. at 241 (general waiver of sovereign immunity
insufficient). Third, appellants subsequently conceded in their
pleadings that DTOP was an “arm of the state” for purposes of
Eleventh Amendment immunity.
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waiver of immunity, that conduct must be “unambiguous” and “must
evince a clear choice to submit [the state’s] rights for
adjudication by the federal courts.” Maysonet-Robles, 323 F.3d at
52. Filing a motion to dismiss that specifically asserts Eleventh
Amendment immunity is hardly such an act. E.g., Lapides v. Bd. of
Regents of Univ. Sys. of Ga., 535 U.S. 613, 618-20 (2002) (removing
state action to federal court); Gardner v. New Jersey, 329 U.S.
565, 574 (1947) (filing a proof of claim in a bankruptcy
proceeding); Paul N. Howard Co. v. P.R. Aqueduct & Sewer Auth., 744
F.2d 880, 886 (1st Cir. 1984) (filing a counterclaim and third-
party complaint in federal court).
Accordingly, we conclude that the Commonwealth and DTOP
did not waive their immunity by filing a motion to dismiss. The
dismissal of the federal claims against the Commonwealth and DTOP
is therefore affirmed.
C. Substantive Due Process Claims
Plaintiffs’ remaining section 1983 claims against the
Municipality, PRASA, Ondeo, and PRHA (collectively, “Governmental
Defendants”) rest on an alleged violation of Antonio Luis’s
substantive due process rights. The Due Process Clause of the
Fourteenth Amendment forbids a state from depriving a person of
life, liberty, or property without due process of law.
Notwithstanding its plain language, the Due Process Clause
“guarantees more than fair process,” Washington v. Glucksberg, 521
U.S. 702, 719 (1997), and “cover[s] a substantive sphere as well,
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barring certain government actions regardless of the fairness of
the procedures used to implement them.” County of Sacramento v.
Lewis, 523 U.S. 833, 840 (1998) (citation and internal quotation
marks omitted).
The right to substantive due process is, however,
confined within relatively narrow limits. The Supreme Court has
emphasized that the Due Process Clause does not guarantee minimum
levels of safety or security. See, e.g., Collins v. City of Harker
Heights, 503 U.S. 115, 126-27 (1992).6 It has likewise observed
repeatedly that the Due Process Clause is not a substitute for
traditional tort remedies. See, e.g., Daniels v. Williams, 474
U.S. 327, 332 (1986) (“Our constitution deals with the large
concerns of the governors and the governed, but it does not purport
to supplant traditional tort law in laying down rules of conduct to
regulate liability for injuries that attend living together in
society.”); Paul v. Davis, 424 U.S. 693, 701 (1976) (rejecting
reasoning that the Fourteenth Amendment is “a font of tort law to
be superimposed upon whatever systems may already be administered
by the States”); see also Frances-Colón v. Ramirez, 107 F.3d 62,
6
See also DeShaney v. Winnebago County Dep't of Soc. Servs.,
489 U.S. 189, 194-97 (1989) (holding that a state's failure to
protect an individual against private violence generally does not
constitute a violation of the Due Process Clause, because the
Clause imposes no duty on the state to provide members of the
general public with adequate protective services); Soto v. Flores,
103 F.3d 1056, 1064 (1st Cir. 1997) (where the harm is caused by a
third party, “courts must be careful to distinguish between
conventional torts and constitutional violations”).
-9-
63-64 (1st Cir. 1997) (rejecting plaintiff’s attempt to clothe a
medical malpractice claim in civil rights language).
Plaintiffs’ claim of substantive due process here is
based on the contention that the Governmental Defendants failed to
devote sufficient resources to the design and maintenance of their
sewer and highway systems, resulting in flooding and the failure to
cover an open manhole.7 They did so, plaintiffs contend, despite
knowing of the open manhole and of the tragic consequences that
could arise if the opening became obscured by floodwaters.
Plaintiffs thus challenge the executive actions of state and local
officials. Under such circumstances, “the threshold question is
whether the behavior of the governmental officer is so egregious,
so outrageous, that it may fairly be said to shock the contemporary
conscience.” Lewis, 523 U.S. at 848 n.8.
The “shock the conscience” standard is somewhat
amorphous, but determining its boundaries is not an arbitrary
exercise. See id. at 847. The Supreme Court has stated that
negligently inflicted harm is “categorically beneath the threshold”
of a constitutional violation. Id. at 849. In contrast, behavior
“at the other end of the culpability spectrum” – that is, behavior
“intended to injure in some way unjustifiable by any government
7
Plaintiffs allege an array of misconduct and omissions
including, among other things, failure to construct and maintain
the sewer facilities to prevent flooding; failure to maintain the
highway and adjacent lands to prevent flooding; failure to
supervise the area around the manhole; improper use of a drainage
pump; and failure to inspect and repair the open manhole.
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interest” – is the sort of official action most likely to “shock
the conscience.” Id.
Nothing in plaintiffs’ complaint indicates that the
defendants actually intended to harm Antonio Luis. Rather, the
complaint alleges at most that the defendants were deliberately
indifferent to his safety. According to the Supreme Court,
culpability in this “middle range . . . is a matter for closer
calls.” Id. And this court has previously noted that “[i]n
situations where actors have an opportunity to reflect and make
reasoned and rational decisions, deliberately indifferent behavior
may suffice to shock the conscience.” Rivera v. Rhode Island, 402
F.3d 27, 36 (1st Cir. 2005) (emphasis added; internal quotation
marks omitted). That determination, however, is context-specific.
Although plaintiffs suggest otherwise, "[d]eliberate indifference
that shocks in one environment may not be so patently egregious in
another." Lewis, 523 U.S. at 850.
The Supreme Court’s decision in Collins guides our
analysis here. In that case, a sanitation department worker died
of asphyxiation from sewer gas while working in a manhole. His
widow alleged that the city was deliberately indifferent to her
husband’s safety; specifically, she contended that the city knew of
the specific dangers posed by the sewer gas, but failed to provide
training, warnings, or proper equipment to deal with the threat.
503 U.S. at 117-18. The Court declined to characterize those
“deliberately indifferent” omissions as “conscience-shocking.”
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Instead, it described the plaintiff’s complaint as “analogous to a
fairly typical state-law tort claim: The city breached its duty of
care to [the decedent] by failing to provide a safe work
environment.” Id. at 128.
We find this claim, like the claim advanced in Collins,
to be analogous to a typical state tort claim, and accordingly
insufficient to state a substantive due process violation. See
Frances-Colón, 107 F.3d at 64 (“A proximate causal link between a
government agent’s actions and a personal injury does not, in
itself, bring a case out of the realm of tort law and into the
domain of constitutional due process.”).
As was the case in Collins, our unwillingness to
characterize the Governmental Defendants’ alleged omission as
“conscience-shocking” “rests on the presumption that the
administration of government programs is based on a rational
decisionmaking process that takes account of competing social,
political, and economic forces.” 503 U.S. at 128. Creating and
maintaining public works such as sewers, roads, and sidewalks
“involve a host of policy choices.” Id. at 129. Local governments
must decide the appropriate level of resources, which are
necessarily limited, to devote to those works. Even where the
government is aware of specific dangers, such as open manholes, it
must perform a triage among competing demands — a triage that is
occasionally performed in times of emergency, such as heavy rains
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and flooding. Government actors must also determine, as a policy
matter, how to make these decisions and what resources to devote to
assessing the various competing needs. Such questions are best
answered by locally elected representatives and their appointees
“rather than by federal judges interpreting the basic charter of
Government for the entire country.” Id.8
We emphasize that the danger at issue in this case was a
danger to the general public — not a danger that was in any
meaningful sense specific to Antonio Luis. Cf., e.g., Kallstrom v.
City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998) (state’s
actions must “place the victim specifically at risk, as
distinguished from a risk that affects the public at large”);
Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995) (plaintiff must
be a “member of a limited and specifically definable group”). In
such a context, even a conscious decision not to cover a manhole
may be unwise or unreasonable, but it does not “shock the
conscience” as that term is defined under the law. See White v.
Lemacks, 183 F.3d 1253, 1258 (11th Cir. 1999) (“[W]hen someone not
in custody is harmed because too few resources were devoted to
their safety and protection, that harm will seldom, if ever, be
8
Moreover, each policy option will inevitably carry its own
risks — risks that will, in many cases, be well-known to the
policy-makers. Yet a “substantive due process violation does not
arise whenever the government’s choice prompts a known risk to come
to pass.” Schroder v. City of Fort Thomas, 412 F.3d 724, 729 (6th
Cir. 2005).
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cognizable under the Due Process Clause.”). State law may require
due care on the part of state officials; the United States
Constitution does not. Lewis, 523 U.S. at 849.
We also emphasize that the situation at bar is “quite
different” from that in which an individual is in state custody
prior to his injury, and is therefore owed a specific duty of care
by the state. See Collins, 503 U.S. at 127; DeShaney v. Winnebago
County Dep’t of Soc. Servs., 489 U.S. 189, 199-200 (1989).
“[W]hen the state by the affirmative exercise of its power so
restrains an individual’s liberty that it renders him unable to
care for himself,” the state may incur an “affirmative duty to
protect” the individual. DeShaney, 489 U.S. at 200 (emphasis
added). Here, however, plaintiffs can point to no affirmative act
by the state that deprived Antonio Luis of his liberty.9
Finally, plaintiffs assert that because Puerto Rico
maintained the sewer systems, it specifically undertook the duty to
guarantee the safety of its citizens in this context. Collins all
but forecloses such a conclusion. The Court there found that the
city had no duty to provide its employees with a safe working
9
To the extent plaintiffs attempt to ground liability in the
so-called “state-created danger” theory, the absence of an
affirmative act by the state in creating the danger is fatal to the
claim. See Rivera, 402 F.3d at 37. The only affirmative acts
reasonably inferred from the complaint are that the state built and
maintained the roadways and sewer systems. These acts are simply
too attenuated from the danger at issue to meet the requirements of
this particular due process theory. See id.; Searles v. Se. Penn.
Transp. Auth., 990 F.2d 789, 793 (3d Cir. 1993).
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environment, and indicated that a claim by a pedestrian “who
inadvertently stepped into an open manhole . . . should be analyzed
in a similar manner.” Collins, 503 U.S. at 119; see also Lewellen
v. Metro. Gov’t of Nashville & Davidson County, Tenn., 34 F.3d 345,
350 n.4 (6th Cir. 1994) (interpreting Collins as “indicating that
persons not employed by the government are . . . precluded from
recovering under § 1983 for injuries caused by the government’s
‘deliberate indifference’ to a known risk” where the individual is
not in state custody); Searles, 990 F.2d at 792 (applying Collins
to conclude that the state transportation agency had no duty to
provide the public with a safe passenger environment on its
trains).10
In summary, the complaint fails to state a claim under
section 1983 for violation of substantive due process. The actions
of the Governmental Defendants in failing to prevent the hazard of
an open manhole cover, even if true, do not “shock the conscience”
within the meaning of the law.
10
Plaintiffs here attempt to distinguish Collins on the ground
that the decedent in that case voluntarily accepted “an offer of
employment.” 503 U.S. at 128. In contrast, plaintiffs contend
Antonio Luis was a minor and therefore unable to take voluntary
actions. That distinction in this context is immaterial; it can
hardly be said that the plaintiff in Collins knew the danger he
faced and voluntarily entered the manhole nonetheless. Indeed, it
was precisely the alleged lack of knowledge that gave rise to the
claim.
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III. CONCLUSION
Without question, the death of Antonio Luis Ruiz Ramos
was a horrific tragedy. Nonetheless, we are required to separate
our natural, and powerful, sympathy for the decedent’s family
from our duty to apply the law. Under that standard, the case is
not a particularly close one. The Eleventh Amendment bars the
action as to the Commonwealth and DTOP. As to the Governmental
Defendants, the complaint does not allege a violation of
substantive due process, and therefore fails to state a claim
under section 1983 upon which relief can be granted.
Two issues remain. First, having properly dismissed
the federal claims, the district court did not abuse its
discretion in declining to exercise supplemental jurisdiction
over the state-law claims asserted in this case. See 28 U.S.C. §
1367(c)(3); see also Martinez v. Colon, 54 F.3d 980, 990-91 (1st
Cir. 1995). Second, because we affirm the decision of the
district court on the merits, we find no abuse of discretion in
its refusal to grant plaintiffs’ motion for reconsideration.
Affirmed.
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Ramos-Pinero v. Commonweath of PR
Court: Court of Appeals for the First Circuit
Date filed: 2006-06-30
Citations: 453 F.3d 48
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