Motion For Relief From Stay Alvin Marrero Vs Pesquera PRPD

Case:17-03283-LTS Doc#:952 Filed:08/08/17 Entered:08/08/17 12:06:13 Desc: Main
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
In Re:
THE FINANCIAL OVERSIGHT AND Case No. 17-BK-03283(LTS)

MANAGEMENT BOARD FOR PUERTO
RICO
TITLE III PROMESA
As representative of the Commonwealth of
Puerto Rico
MOTION FOR RELIEF FROM STAY
TO THE HONORABLE COURT:
Comes now the Movant, Alvin Marrero-Mndez, through the undersigned attorneys, and
respectfully states as follows:
PROCEDURAL BACKGROUND
Alvin Marrero-Mndez has been an officer in the Puerto Rico Police Department
(PRPD) for more than 20 years. He is the plaintiff in a civil rights case filed against three
police supervisors sued in their personal and official capacities for violations of the
Establishment Clause of the First Amendment to the U.S. Constitution, in what the First Circuit
has described as a clear case of punishment on religious grounds. MarreroMndez v. Calixto
Rodrguez, 830 F.3d 38, 45 (1st Cir. 2016). In his Complaint,1 filed in March 2013, Officer
Marrero-Mndez alleged that his immediate supervisor, co-defendant Guillermo Calixto-
1
See Marrero Mendez v. Pesquera et al, No. 13-cv1203 (JAG).
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Rodrguez coerced him to participate in a Christian prayer during an officers briefing and
retaliated against him when he refused to do so. According to the Complaint, Calixto-Rodriguez
summoned a group of PRPD officers for a meeting in the parking lot of a shopping mall to
discuss a plan for an intervention to take place nearby. Officer Marrero-Mndez was among
those ordered to attend the briefing, as were two of his superiors, co-defendants Mario Rivera
and Ricardo Cruz-Domnguez. As the officers were lined up in formation, at the closing of the
briefing Calixto-Rodriguez asked for a volunteer to lead the group in a prayer. Officer Marrero-
Mndez, an atheist, called Calixto-Rodriguez aside, expressed his objection to the prayer, and
told him that the prayer violated PRPD regulations, which provided that [a] strict separation
shall be maintained between the church and state. (See attachment 1), Marrero Mendez v.
Pesquera et al., 13-cv1203 (JAG).
Calixto-Rodriguez became upset and ordered Marrero-Mndez to abandon the formation.
As Marrero- Mndez was walking away from the group, Calixto-Rodriguez shouted, in front of
the rest of the officers, that Marrero-Mndez should stop and stand still until the prayer was
finished. He then told the officers in formation that Marrero-Mndez was standing apart from the
group because he doesn't believe in what we believe in. Officer Marrero-Mndez felt
humiliated. Obeying the order, he stood, with his back to the formation, until the prayer ended.
Id.
In response to the events in the parking lot and Officer Marrero-Mndezs complaint
about the religious coercion, Defendants subsequently targeted him for further harassment and
retaliation, disarming him and demoting from his usual duties as a patrol officer. Instead, Officer
Marrero-Mndez was assigned menial tasks like washing cars. Defendants were sued in their
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personal and official capacities, and in the Complaint, Officer Marrero-Mndez requests both
equitable relief and monetary damages against Defendants in their personal capacities, as
allowed by section 1983 of the Civil Rights Act. 42 U.S.C. 1983. Defendants argued that they
were entitled to qualified immunity for their conduct. The district court disagreed, and the First
Circuit affirmed the denial of qualified immunity in 2016, holding that a reasonable officer in
March 2012 would have known that appellants conduct amounted to direct and tangible
coercion, a paradigmatic example of an impermissible establishment of religion. Marrero
Mndez, 830 F.3d at 48.
After the First Circuits ruling denying qualified immunity to Defendants, all discovery
proceedings were completed and briefing for dispositive motions was scheduled. On June 5,
2017, however, Defendants, in their personal capacities, filed a Notice of Automatic Stay of
Proceedings Pursuant to the Commencement of Case Under Title III of PROMESA. See 13-
cv1203 Dkt. 125 (Attachment 2). On June 6, 2017, the Court clerk modified the docket to title
the filing a Motion to Stay. Id. Dkt 127. Through said motion, Defendants notified the
District Court that they believe they are entitled to an automatic stay of the instant proceedings
under Sections 362(a) and 922(a) of the Bankruptcy Code (11 U.S.C. 362 and 922(a)), as a
result of the filing of the Commonwealth of Puerto Ricos petition of debt adjustment under Title
III of the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).
Following Movants objection,2 the District Court determined that all of Plaintiffs
claims are covered by PROMESAs automatic stay. Thus, this case is stayed pursuant to 48
U.S.C. 2161(a) and 11 U.S.C. 362 (a), and 922(a). Any request to lift or vacate the stay must be
2
See 13-cv1203, Dkt. 126 (Attachment 3)
3
filed in the Bankruptcy Court in the District Court in Case No. 17-BK-03283(LTS). (Emphasis
added).3
Accordingly, Movant is hereby requesting this Honorable Court to lift the stay imposed
by the District Court in the original case or, alternately, to modify the stay as to allow the
continuation of the litigation holding in abeyance any monetary claims for violations of the U.S.
Constitution.
ARGUMENT
THE AUTOMATIC STAY IMPOSED UNDER PROMESA DOES NOT APPLY TO

THE CLAIMS AGAINST DEFENDANTS IN THEIR PERSONAL CAPACITIES, AND EVEN
IF THE AUTOMATIC STAY WERE PROPER HERE, IT SHOULD BE LIFTED PURSUANT
TO THE SONNAX CRITERIA.
The Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA),
48 U.S.C. 2102-2241, is a sui generis bankruptcy-like statute enacted by Congress in June
2016 to address the imminent financial crisis in Puerto Rico. See generally Peaje Inv. LLC v.
Garca-Padilla, 845 F.3d 505, 509 (1st Cir. 2017) (discussing the statutes purpose). Title IV of
PROMESA includes a temporary, automatic stay provision for debt-related litigation against the
government of Puerto Rico upon the establishment of an Oversight Board for Puerto Rico. 48
U.S.C. 2194(a)-(b). Title III of the statute also incorporates by reference many provisions of
the Bankruptcy Code, including Sections 362 and 922 of the Bankruptcy Code, 48 U.S.C.
2161(a), although it is unclear the extent to which these provisions are fully incorporated into the
PROMESA statute.4
3
Id. Dkt. 131 (Attachment 4)
4
The District Court of Puerto Rico has evaluated similar stay requests under Sections 362(a) and 922(a), without
making any distinction to the temporary automatic stay of Title IV of PROMESA. See Vzquez-Carmona v.
4
In evaluating a petition to lift an automatic stay under PROMESA, this Court has applied
the factors enumerated by the United States Court of Appeals for the Second Circuit in In re
Sonnax Indus., Inc., 907 F.2d 1280, 1286 (2d Cir. 1990) (Sonnax). See, e,g., Brigade
Leveraged Capital Structures Fund Ltd. v. Garcia-Padilla, 217 F. Supp. 3d 508, 518 (D.P.R.
2016) (citing Sonnax). These factors include (1) whether relief would result in a partial or
complete resolution of the issues, (2) whether there is a lack of any connection with or
interference with the bankruptcy case, (3) the interests of judicial economy and the expeditious
and economical resolution of litigation, (4) whether litigation in another forum would
prejudice the interests of other creditors, and (5) the impact of the stay on the parties and the
balance of harms. Sonnax, 907 F.2d at 1286.
The stay provisions of PROMESA are inapplicable here, however, because Movants
civil rights claims against the individual defendants are separate and completely unrelated to any
claim for collection debt or credit of the nature that PROMESA was designed to address. See,
e.g. Brigade Leveraged Capital Structures Fund Ltd. v. Garcia-Padilla, 217 F.Supp.3d 508
(D.P.R. 2016) (discussing the application of the temporary stay of Title IV of PROMESA for
claims brought by bonds holders). Even if an automatic stay were proper here under PROMESA,
it should be lifted pursuant to the Sonnax standard. As discussed in detail below, since the
Defendants are not debtors under terms of PROMESA, Movants claim would not in any way
prejudice the interests of PROMESAs creditors. Also, after five years of intense litigation at this
advanced stage of the proceedings in which the parties have already completed discovery, a stay
Department of Education, Slip Copy, Civil No. 16-1846, 2017 WL 2352153 (D.P.R. 2017).
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would be harmful to Plaintiffs right to a expeditious and final resolution of his constitutional
claims Finally, Movants request for equitable relief, namely the adoption of sound constitutional
policies regarding religious practices within the Puerto Rico Police Department, is completely
unrelated to any monetary claim and in no way affects the interest that Debtors seek to protect
under PROMESA.
I. Because Defendants In Their Personal Capacities Are Not Debtors Under PROMESA,
Movants Claims Against Them Lack Any Connection To Or Interference With The
Bankruptcy Case.
As mentioned above, Plaintiffs claim for compensatory relief is directed at Defendants
in their personal capacities. Thus, Defendants are not entitled to an automatic stay of Plaintiffs
claims for compensatory relief because Defendants are not debtors within the meaning of the
PROMESA statute. Even assuming sections 362(a) and 922(a) of the Bankruptcy Code were
fully incorporated into PROMESA, automatic stay only stays actions against a debtor.
McCartney v. Integra Nat. Bank N., 106 F.3d 506, 509 (3d Cir. 1997) (internal quotation marks
omitted). [I]t is universally acknowledged that an automatic stay . . . may not be invoked by
entities such as sureties, guarantors, co-obligors, or others with a similar legal or factual nexus to
the . . . debtor. Id. (internal quotation marks omitted).
PROMESA provides for the adjustment of the Commonwealths debts, initiated through
a petition filed by the Oversight Board on behalf of a debtor, in this instance, the Commonwealth
of Puerto Rico. 48 U.S.C. 2164. Under PROMESA, a debtor means the territory or covered
territorial instrumentality concerning which a case under this subchapter has been commenced.
See 48 U.S.C. 2161(c)(2). Section 2162 also establishes that an entity may be a debtor under
Section III if: (1) the entity is (A) a territory that has requested the establishment of an
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Oversight Board or has had an Oversight Board established for it by the United States Congress .
. . ; or (B) a covered territorial instrumentality of a territory described in paragraph (1)(A); (2)
the Oversight Board has issued a certification under section 2146(b) . . . for such entity; and (3)
the entity desires to effect a plan to adjust its debts. 48 U.S.C. 2162. The statutes definition of
debtor does not encompass natural persons, and none of the Defendants, who are sued in their
personal capacities, satisfies to those terms. Nor do the debtor in the PROMESA petition (i.e.,
the Commonwealth) and Defendants Guillermo Calixto, Ricardo Cruz Dominguez and Mario
Rivera share an identity of interest sufficient to invoke the limited exception to this universally
acknowledged rule. Cf. In re Siskin, 231 B.R. 514, 51819 (Bankr. E.D.N.Y. 1999) (noting that
special circumstances may exist where there is such identity between a debtor and a third party
that judgment against a non-debtor would be binding upon a debtor so that the automatic stay
would also apply to the non-debtor).
Movants claims seeking compensatory relief against the individual officers in their
personal capacities under Section 1983 of the Civil Rights Act, which provides for a private
cause of action for constitutional violations. Cao v. Puerto Rico, 525 F.3d 112 (1st Cir. 2008). It
is the individual Defendants, then, and not the Commonwealth, who are liable for compensatory
damages, since state officials, sued in their individual capacities, are persons within the
meaning of 1983. See Hafer v. Melo, 502 U.S. 21 (1991) (holding that (1) state officers may be
personally liable for damages under 1983 based upon actions taken in their official capacities;
(2) officers potential liability is not limited to acts under color of state law that are outside their
authority or not essential to operation of state government, but also extends to acts within their
authority and necessary to performance of governmental functions; and (3) Eleventh Amendment
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does not erect a barrier against suits to impose individual and personal liability on state officers
under 1983).
The automatic stay imposed in this case is founded on the premise that the
Commonwealth of Puerto Rico has assumed the costs of [Individual Defendants] representation
and possibly the payment of any adverse judgment,5 as authorized by Law 104 of June 29,
1955, as amended. P.R. Laws Ann. Title 32 Secs 3085 et seq. The benefits provided by Law 104
do not alter or modify the nature of Movants Section 1983 claim against the individual
defendants. Puerto Ricos Law 104 permits an official, charged in a civil rights action relating to
official duties, to voluntarily request legal representation by the Commonwealth, and it permits
the Commonwealth to subsequently assume payment of any judgment. P.R. Laws Ann. tit. 32,
3085. But, under the statute, labeled by the First Circuit as idiosyncratic in nature, the Puerto
Rico Secretary of Justice has discretion to decide in which cases the Commonwealth assumes
representation and subsequently, after considering the findings of the court or which arise from
the evidence presented, whether it is in order to pay the judgment. Id. 3087. See Whitfield v.
Municipality of Fajardo, 564 F.3d 40, 42 (1st Cir. 2009); Ortiz-Feliciano v. Toledo Daz, 175
F.3d 37 (1st Cir. 1999); Burgos-Yantin v. Municipality of Juana Diaz, Slip Copy, Civil No. 07
1146 (JA), 2013 WL 435203 (D.P.R. Jan. 2, 2013). Moreover, under the Eleventh Amendment
the Movant is unable to request an execution of monetary judgment against the Commonwealth,
even when the Secretary of Justice has granted the judgment debtors request to indemnify them
with respect to the judgment. See Ortiz-Feliciano supra, at 40. Pietri-Giraldi v. Alvarado-Santos
443 F. Supp. 2d 214, 217 (D..P.R. 2006) (holding that pursuant to Section 3085 of Law 104, the
5
See Attachment 4, Order on Motion to Stay
8
claim for indemnification concerning payment of judgment lies with defendant public officers,
not with the plaintiff).
Hence, the benefits provided by Law 104 do not constitute a substitution of parties or an
admission of liability for the Commonwealth. It ultimately is an arrangement between the
Defendants and Puerto Rico Department of Justice in which the Secretary retains the discretion
to provide ongoing legal representation and potentially pay the judgment against individual
defendants pursuant to certain conditions established by law, and subject to the available
resources. See P.R. Laws Ann. Tit. 32 sec. 30926; P.R. Laws Ann. Tit. 32 sec. 3085 ([T]hese
provisions shall not be construed, for any reason whatsoever, as making the Commonwealth an
insurer of the aforesaid public servants, nor as a waiver of the sovereign immunity of the
Commonwealth.) (emphasis added). Accordingly, contrary to Defendants suggestion, there is
no identity of interest between themselves and the Commonwealth sufficient to apply the
automatic stay to this case.7 Plaintiffs ability to protect his fundamental constitutional rights,
6
Section 3092 of Law 9 provides that [t]he Secretary of Justice shall notify the Secretary of the Treasury of his
determination regarding the payment, on the basis of the provisions of 3085-3092a of this title. If the Secretary of
Justice decides payment should occur, the Secretary of the Treasury shall pay the judgment, costs and attorneys fees
imposed on the defendants from available funds in the Treasury of Puerto Rico. P.R. Laws Ann. Tit. 32 sec. 3092.
7
The order to stay in this case heavily relied on In re City of Stockton, 484 B.R. 372 (Bankr. E.D. Cal. 2012).
However, Stockton does not support Defendants argument. As Defendants note, Stockton was premised on
California Government Code 825, whichcontrary to Movants contentionis not very similar to the
provisions of Law 104. See Mot. to Stay 10 & n. 5. As discussed above, Law 104 confers discretion on the
Commonwealth as to whether it will provide legal representation to an official who requests it, and thereafter, it
gives discretion to the Commonwealth as to whether it will pay any damages award on behalf of an official who
requests ita determination that is not made until after any such award is entered against the official. Pursuant to
Law 104, the initial determination to grant legal representation to the public official sued for violations of a citizens
civil rights and the subsequent determination of whether the Commonwealth will assume the payment of judgment
are two separate and independent proceedings. The payment of the judgment is not automatic, but at the discretion if
the Secretary of Justice. See Ortiz et al. v. E.L.A., 158 D.P.R. 62, 71-72 (P.R. 2002). California law, by contrast, is
not discretionary, providing that, once a municipal official requests representation in writing, and the official
reasonably cooperates in good faith in the defense of the claim or action, the public entity shall pay any judgment
based thereon or any compromise or settlement of the claim or action to which the public entity has agreed. Cal.
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and the authority of this District Court to enforce federal law through Section 1983 of the, should
not yield to Puerto Ricos idiosyncratic Law 104.
II. In Any Event, Plaintiffs Claim For Equitable Relief Should Not Be Stayed Under
PROMESA.
PROMESA provides that nothing in this chapter shall be construed as impairing or in
any manner relieving a territorial government, or any territorial instrumentality thereof, from
compliance with Federal laws or requirements or territorial laws and requirements implementing
a federally authorized or federally delegated program protecting the health, safety, and
environment of persons in such territory. 48 U.S.C. 2106. The automatic stay authorized by
the PROMESA statute does not, therefore, apply to suits to enforce federal rights. See
Vazquez-Carmona v. Dept of Educ. of Puerto Rico, No. CV 16-1846 (GAG), 2017 WL
2352153, at *1 (D.P.R. May 31, 2017). Plaintiffs complaint seeks equitable relief against
Defendants for their egregious violation of his First Amendment rights specifically, the
adoption of sound constitutional policies related to religious practices in the work environment to
prevent constitutional violations as the one narrated in the complaint. PROMESA should not be
used as a vehicle to thwart that relief. See id.
IIIV. A Stay Would Impose Undue Hardship And Prejudice On Plaintiff, Preventing Him From
Obtaining An Expeditious Resolution Of His Constitutional Claims.
Finally, a stay at this stage of the judicial proceedings is unwarranted, considering that
this litigation has taken more than four years, discovery is complete, the First Circuit has
conclusively resolved the qualified immunity issue, and only dispositive motions and the trial
Govt Code 825 (emphasis added). Moreover, as discussed above, PROMESA has a very specific definition of
debtor, which did not apply in Stockton.
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remain. See Dkt. 120. A stay would place this litigation in an indefinite procedural limbo,
leaving Plaintiff without any permanent equitable relief and unfairly prejudicing his ability to
present his case should there be a trial.
Moreover, even assuming that Plaintiffs claim for compensatory relief might eventually
fall within the reach of PROMESA, it does not qualify for a stay now because it is not currently a
payable claim against the Commonwealths resources: Damages would have to be awarded to
Plaintiff; the Secretary of Justice would have to agree for the Commonwealth to pay those
damages on behalf of Defendants; and it would have to be determined whether that liability
would be qualify as a payment of credit, obligation, or debt as defined under PROMESA. Under
these circumstances, public policy favors the resolution of this civil rights action and denial of
Defendants request for a stay. See In re Santa Clara County Fair Ass'n, Inc., 180 B.R. 564,
566-567 (9th Cir. B.A.P. 1995) (holding that the Bankruptcy Court did not abuse its discretion in
modifying an automatic stay to allow prosecution of a district court civil rights action,
concluding that the public policy favored the resolution of civil rights actions and outweighed
any competing policy served by the automatic stay under the circumstances).
CONCLUSION
This Court should take care to apply PROMESA in a manner that honors the clearly
established constitutional rights of individuals like Movant Alvin Marrero-Mndez. As the
District Court of Puerto Rico recently noted,
In Puerto Ricos unique circumstances, any over breadth in the

application of the automatic stay [under PROMESA] implicates
most difficult issues of statutory interpretation and possibly
transgress the constitutional rights of United States citizens. Lets
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be clear the Commonwealth of Puerto Rico continues to be a

viable government. Its citizens continue to enjoy all their
constitutional rights (and it would appear they continue to enjoy all
their federal statutory rights as well)whatever may happen to their
monetary claims against the Commonwealth.
Cruz Rodrguez v. Administracin de Correccin. Civil Action 17-01464 (WGY), Order Re
Purported Stay, Dkt 11, June 20, 2017 (Young, D.J., sitting by designation) (Attachment 5).
This statement eloquently summarizes the core of Movants arguments regarding the use of
PROMESA by the Government in order to avoid accountably for violations of constitutionality
protected rights. The unique financial crisis in Puerto Rico that PROMESA is intended to deal
with should not be used as free pass for individual government actors to violate fundamental
rights, nor should constitute an additional burden for litigants in Puerto Rico to have access to a
fair judicial remedy in federal court.
WHEREFORE, Plaintiff respectfully requests that this Court to lift the stay of in this
case, or alternately allows the continuation of the judicial proceedings holding in abeyance any
monetary relief the Commonwealth would be compelled to comply by judgment.
Respectfully submitted, in San Juan Puerto Rico, on August 8, 2017
/s/ Josue Gonzalez-Ortiz,

Josue Gonzalez-Ortiz, Esq.
USDC-PR NO: 221808
William Ramirez-Hernandez, Esq.
American Civil Liberties Union
of Puerto Rico
Union Plaza, Suite 1105
416 Ave. Ponce de Leon
San Juan, Puerto Rico, 00918
Tel: 787-753-8493
Fax: 787-753-4268
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Email: jgonzalez-ortiz@aclu.org
Daniel Mach (Pro Hac Vice Admission)

Heather L. Weaver (Pro Hac Vice Admission)
American Civil Liberties Union Foundation
915 15th Street, NW, Suite 600
Washington, D.C. 20005
Tel: 202- 675-2330
Fax: 202- 546-0738
Email: dmach@aclu.org
hweaver@aclu.org
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CERTIFICATE OF SERVICE
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
all attorneys of record.

USDC-PR NO: 221808
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Appendix Complaint Page 1 of 13

ALVIN MARRERO-MNDEZ, individually Case No.

and on behalf the conjugal partnership
comprised by him and his spouse Cynthia Prez-
Valentin.
Plaintiff
v.
HECTOR PESQUERA, Superintendent of the

Puerto Rico Police Department; WILLIAM
OROZCO, Carolina Area Commander of the
Puerto Rico Police Department; GUILLERMO
CALIXTO-RODRGUEZ, former Carolina
Area Commander for the Puerto Rico Police
Department; MARIO RIVERA, Chief of the
Carolina Precinct of the Puerto Rico Police
Department; RICARDO CRUZ-
DOMNGUEZ, Supervisor of the Puerto Rico
Police Department; all of the above named
Defendants acting in their official and individual
capacities and on behalf of their respective
conjugal partnerships comprised by them and
their respective spouses.
Defendants
COMPLAINT
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I. INTRODUCTION
1. The First Amendment to the U.S. Constitution, and the Constitution and laws of the
Commonwealth of Puerto Rico, clearly prohibit the Puerto Rico Police Department (Department)
and its supervisors from proselytizing employees, sponsoring official prayer, or engaging in any form
of discrimination in the workplace on account of religion. The U.S. Constitution and the
Constitution of the Commonwealth of Puerto Rico, furthermore, protect from retaliation by their
supervisors any officers who object to these unlawful practices.
2. When Department supervisors engage in these unconstitutional activities, they subject the
officers under their command to unwelcome indoctrination and religious messages, creating a tense
and hostile work environment and harming the community as a whole by sending a divisive message
of religious favoritism for those who adhere to the supervisors preferred faith.
3. This is a civil action brought under the First Amendment to the U.S. Constitution and 42
U.S.C. 1983 for declaratory relief, equitable relief, and monetary damages for discriminatory and
retaliatory actions taken against Plaintiff, Alvin Marrero-Mndez, by his supervisory officers due to
Plaintiffs religious beliefs.
4. This action is also brought under Article II, Sections 1, 3, and 4 of the Constitution of the
Commonwealth of Puerto Rico; Act #115 of December 20, 1991, 29 L.P.R.A. 194a; and Articles
1802 and 1803 of the Puerto Rico Civil Code, 31 L.P.R.A. 5141 and 5142.
5. Specifically, as set forth in greater detail below, Plaintiff has suffered discrimination,
humiliation, and stigmatization after being subjected to unwanted, officially sponsored prayer and
proselytizing during various mandatory meetings called by his supervisors to discuss work-related
matters. He also has been subjected to retaliation, including downgraded professional
responsibilities, and has confronted a hostile work environment as a consequence of informing his
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supervisors about his refusal to participate in unlawful state-sponsored prayers in the workplace.
These unlawful practices are ongoing and are likely to continue in the future unless this Court
intervenes.
II. JURISDICTION
6. This Honorable Court has jurisdiction over the federal constitutional and statutory claims set
forth in this complaint pursuant to 28 U.S.C. 1331 (federal question) and 28 U.S.C. 1343(a)(3)
(civil rights).
7. This Honorable Court is also authorized to order declaratory and injunctive relief pursuant to
28 U.S.C. 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure.
8. This Honorable Court may exercise supplemental jurisdiction over Plaintiffs
Commonwealth of Puerto Rico statutory and constitutional claims pursuant to 28 U.S.C. 1367(a)
because those arise from the same nucleus of operative facts as Plaintiffs federal claims.
9. Venue properly lies before this Court under 28 U.S.C. 1391(b). Plaintiff and Defendants
are residents of the Commonwealth of Puerto Rico and the acts and/or omissions giving rise to
Plaintiffs claims have occurred in this district.
III. PARTIES
10. Plaintiff Alvin Marrero-Mndez has served as a police agent for the Puerto Rico Police
Department since 1999. As a Department officer, he is subject to the customs, policies, and practices
of Defendants in the employment area. Before the events alleged herein, Plaintiffs professional
duties included, among others, patrolling, attending to complaints, conducting arrests, dealing with
the public, and undertaking other crime-prevention activities.
11. Plaintiff is an open atheist, and as such, does not subscribe to the Christian faith or any other
religious doctrine. He values his right to adopt no religious beliefs as much as others surely value
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their right to follow a particular faith. He is deeply offended by and objects to the Defendants
official religious practices because these practices promote religious beliefs with which he does not
agree. Plaintiff further objects to these practices because they are religiously coercive in that they
pressure him to participate in prayer and worship.
12. Defendant Guillermo Calixto-Rodrguez was, until January 2013, the Carolina Area
Commander of the Puerto Rico Police Department. During that time, he was in a supervisory
position over Plaintiff. Guillermo Calixto-Rodrguez is responsible for the actions and policies that
led to the events described in this complaint.
13. Defendant William Orozco is currently the Carolina Area Commander of the Puerto Rico
Police Department.
14. Defendant Mario Rivera is, and was at all times material to this complaint, Chief of the
Carolina Airport Area Precinct of the Puerto Rico Police Department and is responsible for the
actions and policies that led to the events described in this complaint.
15. Defendant Ricardo Cruz-Domnguez is, and was at all times material to this complaint,
Plaintiffs immediate supervisor at the Puerto Rico Police Department and is responsible for the
actions and policies that led to the events complained of in this action.
16. On information and belief, at all times material to this complaint, Defendants Rivera and
Cruz-Domnguez acted pursuant to authority delegated or conferred to them by Guillermo Calixto-
Rodrguez and/or the Puerto Rico Police Department. Defendants actions and/or omissions fall
within the scope of that authority and pursuant to an official policy and practice adopted by them and
the Department.
17. Defendant Hector Pesquera is the current Superintendent of the Puerto Rico Police
Department. Since assuming this role in March 2013, he has had the ultimate authority in the
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adoption of official policies and practices within the Department and is responsible for ensuring the
Departments compliance with the laws and Constitutions of the Commonwealth of Puerto Rico and
the United States.
18. Defendants are employees, agents, and/or supervisory personnel of the Puerto Rico Police
Department and were, at all times material to this complaint, acting in the course and scope of their
employment.
19. Defendants participated in and/or directed the constitutionally unlawful violations alleged
herein, or knew of the violations and failed to act or prevent them.
20. At all times relevant to this complaint, Defendants all acted under color of state law and acted
in the course and scope of their employment.
21. All individual Defendants are jointly liable for the monetary damages alleged herein.
IV. FACTUAL ALLEGATIONS
22. Plaintiff incorporates the preceding paragraphs as if fully set forth herein at length.
23. On March 9, 2012, around 7:30 p.m., then-Carolina Area Commander, Defendant Guillermo
Calixto-Rodrguez, summoned over forty (40) police officers of the Carolina region of the Puerto
Rico Police Department to discuss an intervention plan for the area. The meeting took place in the
parking lot at the Plaza Carolina Shopping Mall in Carolina. Defendants Mario Rivera and Ricardo
Cruz-Domnguez also attended the meeting.
24. All police officers present at the meeting, including Plaintiff, were standing in military
formation. After the briefing, Defendant Guillermo Calixto-Rodrguez asked for a volunteer to close
the meeting with a prayer.
25. Plaintiff called Defendant Guillermo Calixto-Rodrguez aside and told him that he objects to
such official prayers because they promote religious beliefs to which he does not subscribe. He also
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pointed out that the prayer violated Department regulations, which provide that [a] strict separation
shall be maintained between the church and the state. 25 L.P.R.A. 3134. Plaintiff informed
Defendant Guillermo Calixto-Rodrguez that he felt very uncomfortable taking part in the prayer and
that he did not want to participate.
26. Defendant Guillermo Calixto-Rodrguez became upset and ordered Plaintiff to abandon the
formation. Following the commanding officers instructions, Plaintiff separated himself from the
formation. As Plaintiff was walking away, Defendant Calixto-Rodrguez shouted that Plaintiff
should stop and stand still until the prayer was finished. Then, in front of the entire formation,
Defendant Guillermo Calixto-Rodrguez shouted that Plaintiff was standing apart from everyone else
because he doesnt believe in what we believe. Plaintiff felt humiliated and turned his back to the
formation until the prayer, which was explicitly Christian, ended.
27. After the prayer, Plaintiff was assigned to work with his immediate supervisor, Defendant
Cruz-Domnguez, for the rest of the night. Plaintiff told Cruz-Domnguez that he felt humiliated and
upset and that, as a result of the incident with Defendant Guillermo Calixto-Rodrguez, he preferred
to be assigned to work performing his usual duties at the airport station. Plaintiff also began to cry
because he was so humiliated. On his way to the airport station, Plaintiff told Cruz-Domnguez that
what had happened was an outrage and that he was going to file an administrative complaint.
28. After arriving at the airport station, Defendant Cruz-Domnguez requested that the Plaintiff
hand over his weapon because he was allegedly in an emotional state. Defendant Cruz-Domnguez
also instructed Plaintiff to report to Defendant Mario Rivera the following Monday, March 12, 2012,
to receive further orders about a transfer.
29. On March 12, 2012, early in the morning, Plaintiff filed an administrative complaint with the
Administrative Investigation Division at Police Headquarters in San Juan, alleging that his
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constitutional right of freedom of religion had been violated.
30. That same day, Plaintiff personally delivered copies of the administrative complaint to the
office of the Auxiliary Superintendent of Field Operations, Leovigildo Vzquez, and to the office of
the Carolina Region Commander Carlos J. Miranda.
31. Plaintiffs administrative complaint was inexplicably referred to the Police Departments
Domestic Violence Division and was assigned to Inspector Margarita George. To date, Plaintiff has
not been officially notified on the status of his complaint and no proper investigation has been
carried out.
32. On March 14, 2012, Plaintiff met with Defendant Mario Rivera. Defendant told Plaintiff that
he had two options: either report to the Command Office (Comandancia) for clerical tasks in the
office, or stay in the airport station to perform vehicle-maintenance tasks. Plaintiff chose the latter
even though both alternatives effectively constituted demotions from Plaintiffs usual responsibilities
as a police officer.
33. Since then, Plaintiff has been deprived of performing the usual law-enforcement tasks of a
regular police officer, such as patrolling, attending to complaints, conducting arrests, dealing with
the public, and carrying out other crime-prevention activities.
34. Now, instead of carrying out the law enforcement duties for which he is trained, the sole
employment duties assigned to Plaintiff, a 14-year veteran of the Department, have been those of a
car-washer and messenger.
35. On several occasions, Plaintiff has been ordered to report to work during the night shift, when
the vehicle garage is closed, leaving him without any work to do. He has also been ordered to wash
patrol cars under the harsh blazing sun of the early afternoons.
36. Plaintiff remains disarmed and is treated arbitrarily and discriminatorily in other ways. For
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instance, during the last year, he has been capriciously denied his weekly day off without
justification.
37. Plaintiff also continues to be subjected to unwelcomed proselytizing and prayer as a result of
Defendants practice of commencing or ending official mandatory gatherings and meetings with
Christian prayer. Indeed, every other month or so, the Puerto Rico Police Department for the
Carolina Area meets to discuss work and intervention plans. These meetings typically include a
Christian invocation or closing prayer.
38. Based on Defendants past and ongoing custom, policy, and practice of promoting prayer, and
proselytizing at official meetings and activities, Plaintiff reasonably believes and fears that
Defendants will continue to infringe his constitutional rights in the near future and beyond.
39. Based on Defendants past and ongoing retaliation against him for objecting to unlawful
practices and policies, Plaintiff further reasonably believes and fears that Defendants will continue to
retaliate against him in violation of his constitutional rights in the near future and beyond.
40. The hostile work environment and unconstitutional customs, policies, and practices to which
Plaintiff has been subjected have caused him severe mental distress, anguish, humiliation, and shame
and have prompted him to seek professional psychological help.
41. Superintendent Hector Pesquera, has or should have had knowledge of the customs, practices,
and policies alleged of herein. However, he has ignored, promoted and/or endorsed the unlawful
police conduct described above.
V. CAUSES OF ACTIONS
COUNT I: Establishment Clause Violation (42 U.S.C. 1983)
43. By the conduct alleged above, Defendants violated, and continue to violate, Plaintiffs rights
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under the Establishment Clause of the First Amendment to the U.S. Constitution, made applicable to
the states and territories through the Fourteenth Amendment to the U.S. Constitution. The customs,
practices, and policies established by Defendants are the cause-in-fact of the constitutional
violations.
44. Defendants conduct coercively exposes Plaintiff to unwanted religious exercise and
messages sponsored by Department officials.
45. Defendants conduct also improperly endorses religion. A reasonable, objective observer
aware of the conduct alleged of above would conclude that Defendants have endorsed and continue
to endorse religion within the Department.
46. Defendants conduct, in addition, has the primary purpose and effect of promoting and
advancing religion and excessively entangles Defendants and the Department, a government
agency, with religion.
47. As a direct and proximate consequence of the conduct described above, Plaintiff has
suffered severe mental distress, anguish, humiliation, and shame.
48. There is a real and immediate threat that Defendants will cause similar violations against
Plaintiff in the future. Therefore, Plaintiff is in immediate danger of sustaining a direct injury as a
result of Defendants unlawful and abusive behavior.
COUNT II: First Amendment Violation for Retaliation (42 U.S.C. 1983)
50. By Defendants retaliatory conduct described above, Defendants have violated, and are
continuing to violate, Plaintiffs First Amendment rights under the U.S. Constitution.
51. Plaintiff has been subjected to a hostile work environment and was demoted from the usual
responsibilities of his position as a law enforcement officer in retaliation for his refusal to participate
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in state-sponsored prayer, for speaking out in opposition to unlawful religious activities and official
prayer during working hours, and for filing an administrative complaint regarding these practices.
52. Defendants official reprisal against Plaintiff, as alleged in this complaint, offends the
Constitution because it effectively inhibits Plaintiffs exercise of protected rights under the First
Amendment.
COUNT III: Supplemental State Law Claims Alleging Violations

of the Constitution of the Commonwealth of Puerto Rico
53. Plaintiffs incorporate the preceding paragraphs as if fully set forth herein at length.
54. The facts set forth in this complaint constitute violations of Plaintiffs rights by Defendants
under Article II, Sections 1, 3, and 4 of the Constitution of the Commonwealth of Puerto Rico; and
the Civil Code of Puerto Rico of 1930, Article 1802, et seq., 31 LPRA 5141, et seq.
55. Section 1, Article II, of the Constitution of the Commonwealth of Puerto Rico states that the
dignity of humankind is inviolable; and that all men and women are equal before the law; and that
no discrimination shall be made on account of race, color, sex, birth, social origin or condition, or
political or religious ideas.
56. Section 3, Article II, of the Constitution of the Commonwealth of Puerto Rico provides that
there shall be complete separation of church and state.
57. Section 4, Article II, of the Constitution of the Commonwealth of Puerto Rico establishes that
no law shall be made abridging freedom of speech or of the press.
58. Defendants discriminatory and retaliatory conduct has caused Plaintiff to suffer public
humiliation, as well as severe mental distress, anguish, humiliation, and shame.
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COUNT IV: Supplemental State Law Claims Alleging Violations

of Puerto Rico Antidiscrimination Statutes (Act # 115 of December 20, 1991)
60. Defendants conduct, as alleged herein, violates Puerto Rico Act #115 of December 20, 1991,
29 L.P.R.A. 194a, as it constitutes reprisal for Plaintiffs opposition to discriminatory practices
carried out by employer subordinates.
61. Defendants illegal, discriminatory, and retaliatory conduct has caused Plaintiff to suffer
severe mental distress, anguish, and shame.
COUNT V: Supplemental State Law Claim Under Puerto Ricos Tort Statute
63. Defendants conduct, as alleged herein, make them liable under Articles 1802 and 1803 of the
Puerto Rico Civil Code, 31 L.P.R.A. 5141 and 5142.
64. Defendants actions and omissions were tortious and caused plaintiff severe mental distress,
anguish, humiliation, and shame, which should to be compensated.
65. Defendants conduct and omissions are the proximate cause of all damages complained of
herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully prays that this Honorable Court declare that
Defendants conduct was illegal and in violation of the constitutional provisions and statutes herein
identified, and that it grant Plaintiff the following remedies:
A. That this Honorable Court issue a Declaratory Judgment declaring that Defendants actions
and/or omissions violate the First and Fourteenth Amendments of the Constitution of the United
States, the Bill of Rights of the Commonwealth of Puerto Rico Constitution, and Puerto Ricos anti-
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discrimination statutes.
B. That this Honorable Court issue preliminary and permanent injunctive relief prohibiting
Defendants from subjecting subordinates to prayer or any other form of proselytizing in violation of
the Establishment Clause of the First Amendment to the U.S. Constitution while performing their
official duties as police officers.
C. That this Honorable Court issue preliminary and permanent injunctive relief requiring the
Defendants to develop policies and procedures that will ensure the protection of Plaintiffs rights
alleged herein, including restoring Plaintiffs regular job duties as a police officer.
D. That this Honorable Court award compensatory and general damages against all Defendants
sued in their individual capacities, for Plaintiff, in an amount to be determined according to proof, as
a remedy for the mental and emotional distress and discomfort that Plaintiff suffered, as provided by
the laws and statutes of the United States and the Commonwealth of Puerto Rico.
E. That this Honorable Court award exemplary and punitive damages against all Defendants
sued in their individual capacities in an amount to be determined at trial, in light of Defendants
willful, wanton, and malicious acts with conscious disregard and deliberate indifference to Plaintiffs
civil rights.
F. That this Honorable Court award Plaintiff his costs, expenses, and attorneys fees.
G. Pre-judgment interest; and
H. Any other relief this Court deems equitable and just.
In San Juan, Puerto Rico, on this 8th day of March, 2013.
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Respectfully submitted,
/S/ Josue Gonzalez-Ortiz, Esq.

USDC-PR NO: 221808

of Puerto Rico
Tel: 787-753-8493
Fax: 787-753-4268
/S/ Daniel Mach

Daniel Mach (Motion for Pro Hac Vice
Admission Filed Herewith)
Heather L. Weaver (Motion for Pro Hac
Vice Admission Filed Herewith)
Tel: 202- 675-2330
Fax: 202- 546-0738
hweaver@aclu.org
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Appendix Notice of Stay Page 1 of 6

ALVIN MARRERO-MENDEZ
Plaintiff Case No. 13-1203 (JAG)
v.
HECTOR PESQUERA, et al.
Defendants
NOTICE OF AUTOMATIC STAY OF PROCEEDINGS PURSUANT TO THE

COMMENCEMENT OF CASE UNDER TITLE III OF PROMESA
COME NOW defendants Guillermo Calixto-Rodrguez, Mario Rivera and Ricardo Cruz-
Domnguez, in their official and individual capacities, through the undersigned counsel, without
waving any defense, and very respectfully SET FORTH and PRAY as follows:
1. The above-captioned action was commenced on March 8, 2013 (ECF No. 1),
alleging claims against the appearing defendants of the Puerto Rico Police Department (PRPD),1
in their official and individual capacities, for events that allegedly occurred before May 3, 2017.
2. The Department of Justice represents the appearing defendants in the instant case
in accordance with the benefits of legal representation under Law No. 104 of June 29, 1955, as
amended, P.R. Laws Ann. tit. 32, 30852 et seq. and the Regulation Regarding Legal
1
On August 19, 2014, this Court dismissed the claims against former Superintendent Hctor Pesquera and William
Orozco. ECF No. 74.
2
Article 12 of law 104, as amended, is clear and precise in determining that:
Every official, ex-official, employee or ex-employee of the Commonwealth of Puerto Rico who is
sued for damages in his personal capacity, when the cause of action is based on alleged violations
of the plaintiffs civil rights, due to acts or omissions committed in good faith, in the course of his
employment and within the scope of his functions, may request the Commonwealth of Puerto
Rico to provide him with legal representation, and to subsequently assume the payment of any
judgment that may be entered against his person.
32 L.P.R.A. 3085 (emphasis added). Law 9 of November 26, 1975 amended Law 104 by adding, among others,
Article 12.
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Representation and Payment of Judgment, Regulation No. 8405 of 2013. Accordingly, the
Commonwealth of Puerto Rico (Commonwealth) assumes the cost of the legal representation,
including, but not limited to, the costs of depositions, transcripts, and translations.3
3. Likewise, pursuant to Law 104 and its Regulation 8405, the Commonwealth
assumes the payment of a subsequent adverse judgment against every official, ex-official,
employee or ex-employee of the Commonwealth covered by the provisions of 3085-3092a.
P.R. Laws Ann. tit.32, 3085, 3092.
Particularly, section 3092 provides, in part, the following:
The Secretary of Justice shall notify the Secretary of the Treasury of his
determination regarding the payment, on the basis of the provisions of 3085
3092a of this title. The Secretary of the Treasury shall pay the judgments, costs and
attorneys fees imposed on the defendants from available funds in the Treasury of
Puerto Rico.
P.R. Laws Ann. tit.32, 3092.4
4. On June 30, 2016, the federal law known as Puerto Rico Oversight, Management
and Economic Stability Act, also known as PROMESA, 48 U.S.C. 2101 et seq., was enacted.
5. On May 3, 2017, the Commonwealth of Puerto Rico, by its representative pursuant
to section 315 of the Puerto Rico Oversight, Management, and Economic Stability Act
(PROMESA), the Financial Oversight and Management Board for Puerto Rico, filed a petition
in the United States District Court for the District of Puerto Rico under Title III of PROMESA. In
re: Commonwealth of Puerto Rico, Case No. 17-1578 (the Petition).
3
Any adverse determination by the Secretary of Justice is subject to judicial review. P.R. Laws Ann. tit. 32, 3087.
4
Officials or former officials of municipalities and public corporations, in their individual capacities, may also benefits
from legal representation under Law 9. See P.R. Laws Ann. tit. 32, 3085. Notwithstanding, the payment of judgment
against these officials or former officials falls within the purview of such municipalities and public corporations. See
P.R. Laws Ann. tit. 32, 3092; Municipality of Fajardo v. Secretario de Justicia, 187 DPR 245, 257 (2012). In the
event that the affected Government corporation or instrumentality, or municipality, does not have the necessary funds
available to defray said amount, the Commonwealth shall make payment thereof, subject to a subsequent
reimbursement. P.R. Laws Ann. tit. 32, 3092.
2
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6. Pursuant to sections 362(a) and 922(a) of the Bankruptcy Code, as incorporated by
reference under Section 301(a) of PROMESA, the commencement or continuation of a judicial,
administrative, or other actions or proceedings against the debtor that was or could have been
commenced before the commencement of the petition under Title III or any act to collect, assess,
or recover a claim against the debtor that arose before the commencement of the case under a
Title III proceeding is automatically stayed without further action. 11 U.S.C. 362(a), 922(a);
48 U.S.C. 2161(a)(emphasis provided). The Commonwealth is the debtor in the Petition pursuant
to 48 U.S.C. 2161(c)(2) (PROMESA 301(c)(2)).
7. The automatic stay is among the most basic of debtor protections under
bankruptcy law, Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Protection, 474 U.S. 494,
503 (1986); see also Jamo v. Katahdin Fed. Credit Union, 283 F.3d 292, 398 (1st Cir. 2002), and
takes effect immediately upon the filing of a bankruptcy petition "because the automatic stay is
exactly what the name implies -- 'automatic' -- it operates without the necessity for judicial
intervention." Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 975 (1st Cir. Mass.
Mar. 10, 1997) (citing Sunshine Dev., Inc. v. FDIC, 33 F.3d 106, 113 (1st Cir. 1994)). It is aimed
at giv[ing] the debtor breathing room by stopping all collection efforts, all harassment, and all
foreclosure actions. In re Soares, 107 F.3d at 975 (citations omitted); see also Jamo, 283 F.3d at
398. And, the stay remains in force until a federal court either disposes of the case, see 11 U.S.C.
362(c)(2), or lifts the stay, see Id. 362(d)-(f), allowing debtors to resolve their debts in a
more orderly fashion [citation omitted], and at the same time safeguards their creditors. Id.
8. Moreover, section 922 has the effect of staying the cases against officials
represented under Law 104, as amended by Law 9. Precisely, section 922(a)(1) provides that:
A petition filed under this chapter [11 USCS 901 et seq.] operates as a stay, in
addition to the stay provided by section 362 of this title [11 USCS 362], applicable
to all entities,
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(1) the commencement or continuation, including the issuance or employment of

process, of a judicial, administrative, or other action or proceeding against an
officer or inhabitant of the debtor that seeks to enforce a claim against the debtor
11 USCA 922.
9. The case of In re City of Stockton, 484 B.R. 372 (Bankr. E.D. Cal.2012), wherein
the defendants were individual capacity municipality officials, illustrates how section 922
interplays with the present case. The In re City of Stockton Court recognized that in chapter 9
municipal debt adjustment cases, there is an additional automatic stay imposed by 11 U.S.C.
922(a), supplement[ing] the basic automatic stay of 11 U.S.C. 362 by stopping actions against
municipal officers and inhabitants to enforce a claim against the municipality. 484 B.R. at 374;
see also In re Jefferson County, 474 B.R. 228, 247-248 (Bankr. N.D. Ala., 2012). In re City of
Stockton held that the 922(a) stay will not be modified to permit a lawsuit against municipal
officers to proceed. Id.
The court in In re City of Stockton reasoned that:
For the same reason that geometry holds that the shortest distance between two
points is a straight line, the additional automatic stay of 922(a), rather than the
362 automatic stay, directly protects municipal officers in chapter 9 cases without
the need for a court to perform the mental gymnastics required to extend the 362
automatic stay.
484 B.R. at 375-376. In 922(a), the phrase to enforce a claim against the debtor
necessarily encompasses both direct and indirect claims against a municipality. Id. at 378
(Emphasis ours). The California court, in recognizing the sovereign immunity landscape related
to doctrines associated with Ex Parte Young, 209 U.S. 123 (1908), further stated:
The action against the individual officers is an exercise of the well-known strategy
of suing a sovereign by falsely pretending to sue an officer. To the extent that there
is a judgment against the individuals, the City, having undertaken their defense,
will be required to pay the judgment. Cal. Gov't Code 825 & 825.2. Hence, the
civil action against the individuals "seeks to enforce a claim against the debtor"
within the meaning of 922(a). 11 U.S.C. 922(a)(1).
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Id. at 376; see also Id. at 378. As expounded by In re City of Stockton:

These doctrines tolerating suits by indirection were so embedded in the law of
sovereign immunity at the time of the enactments of 922(a) and its predecessors
that it is apparent that the additional automatic stay was designed to deal with
situations like the one now in issue.
Id. 378.
10. It bears noting that the benefit of legal representation alluded in In re Stockton is
governed by the California Government Code 825, which language is very similar to the
provisions of legal representation under Law 104, as amended.5
11. Being the automatic stay under section 922 of the Bankruptcy Code applicable to
the present case, the undersigned request the court to take judicial notice of the above, staying the
proceedings in the above-captioned case pursuant to sections 362(a) and 922(a) of the Bankruptcy
Code, as incorporated by reference under section 301(a) of PROMESA, 48 USC 2161(a).
12. The appearing parties do not waive any right or defense arising from Title III of
PROMESA and the Commonwealths Petition under Title III; and, reserve their rights to plead or
5
California Government Code 825 provides in its pertinent part:
(a)Except as otherwise provided in this section, if an employee or former employee of a public entity
requests the public entity to defend him or her against any claim or action against him or her for an
injury arising out of an act or omission occurring within the scope of his or her employment as an
employee of the public entity and the request is made in writing not less than 10 days before the day
of trial, and the employee or former employee reasonably cooperates in good faith in the defense of
the claim or action, the public entity shall pay any judgment based thereon or any compromise or
settlement of the claim or action to which the public entity has agreed.
If the public entity conducts the defense of an employee or former employee against any claim or
action with his or her reasonable good-faith cooperation, the public entity shall pay any judgment
based thereon or any compromise or settlement of the claim or action to which the public entity has
agreed. However, where the public entity conducted the defense pursuant to an agreement with the
employee or former employee reserving the rights of the public entity not to pay the judgment,
compromise, or settlement until it is established that the injury arose out of an act or omission
occurring within the scope of his or her employment as an employee of the public entity, the public
entity is required to pay the judgment, compromise, or settlement only if it is established that the
injury arose out of an act or omission occurring in the scope of his or her employment as an
employee of the public entity.
Nothing in this section authorizes a public entity to pay that part of a claim or judgment that is for
punitive or exemplary damages.
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address any pending matter or claim in this case if the stay is lifted or if any order is issued in the
Petition proceedings under Title III. Moreover, the appearing parties request shall not be
construed as a waiver of any defense by the Commonwealth of Puerto Rico, including any right or
defense arising from Title III of PROMESA and the Commonwealths Petition under Title III.
WHEREFORE, Defendants respectfully request the Court to take judicial notice of the
above, staying all proceedings in this case.
I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of Court,
using the CM/ECF system, which will send notification of such filing to all parties and attorneys
of record.
RESPECTFULLY SUBMITTED.
In San Juan, Puerto Rico, this 5th day of June, 2017.
s/ Jos Luis Gonzlez Castaer

JOS LUIS GONZALEZ CASTANER
USDC-PR No. 201905
jgonzalez@gcpsc.com
s/ Magaly Rodrguez Quiones

MAGALY RODRIGUEZ QUIONES
USDC-PR No. 205010
mrqvlaw@gmail.com /mrodriguez@gcpsc.com
GONZALEZ CASTAER, CSP
128 F.D. Roosevelt Ave., 2nd Floor
San Juan, Puerto Rico 00918-2409
Tel. 787-758-7819 / Fax 787-758-4152
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Appendix Opposition to Motion to Stay Page 1 of 10

ALVIN MARRERO-MENDEZ
Plaintiff Case No. 13-1203 (JAG)
v.
HECTOR PESQUERA, et al JURY TRIAL DEMANDED
Defendants
OPPOSITION TO MOTION TO STAY
TO THE HONORABLE COURT:
Comes now Plaintiff Alvin Marrero Mndez, through the undersigned attorneys, and
respectfully states as follows:
On June 5, 2017, Defendants Guillermo Calixto, Ricardo Cruz Domnguez and Mario Rivera
filed a Notice of Automatic Stay of Proceedings Pursuant to the Commencement of Case Under Title
III of PROMESA. (Dkt. 125). On June 6, 2017, the Court clerk modified the docket to title the filing
a Motion to Stay. 1 Through said motion, Defendants notified the District Court that they believe
they are entitled to an automatic stay of the instant proceedings under Sections 362(a) and 922(a) of
the Bankruptcy Code (11 U.S.C. 362 and 922(a)), as a result of the filing of the Commonwealth
of Puerto Ricos petition of debt adjustment under Title III of the Puerto Rico Oversight,
Management, and Economic Stability Act (PROMESA). See In re Commonwealth of Puerto Rico,
Case No. 17-1578.
1
Plaintiff thus refers to Defendants filing as a Motion to Stay. This Court has authority to decide
whether the automatic stay Pursuant to the Commencement of Case Under Title III of PROMESA
applies to the proceeding pending before it. See Lockyer v. Mirant Corp., 398 F.3d 1098, 1107 (9th
1
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Defendants are wrong. The PROMESA stay does not apply to pending civil rights lawsuits
for equitable relief. Nor does it apply to suits for compensatory relief against officials in their
personal capacities, as they do not constitute debtors under the terms of PROMESA. Accordingly,
the Court should deny Defendants Motion for Stay and the case should proceed.
ARGUMENT
The Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), 48
U.S.C. 2102-2241, is a sui generis bankruptcy-like statute enacted by Congress in June 2016 to
address the imminent financial crisis in Puerto Rico. See generally Peaje Inv. LLC v. Garca-Padilla,
845 F.3d 505, 509 (1st Cir. 2017) (discussing the statutes purpose). Title IV of PROMESA includes
a temporary, automatic stay provision for debt-related litigation against the government of Puerto
Rico upon the establishment of an Oversight Board for Puerto Rico. See 48 U.S.C. 2194(a)-(b).
Title III of the statute also incorporates by reference many provisions of the Bankruptcy Code,
including Sections 362 and 922 of the Bankruptcy Code. 42 USC 2161(a), although it is unclear
the extent to which these provisions are fully incorporated into the PROMESA statute.2 Defendants
Motion to Stay is based on Sections 362 and 922. Mot. to Stay 6. The Motion should be denied
because Plaintiffs civil rights claims against the individual defendants are separate and completely
unrelated to any claim for collection debt or credit of the nature that PROMESA was designed to
address. See, e.g. Brigade Leveraged Capital Structures Fund Ltd. v. Garcia-Padilla, 217 F.Supp.3d
508 (D.P.R. 2016) (discussing the application of the temporary stay of Title IV of PROMESA for
claims brought by bonds holders).
Cir. 2005).
2
The District Court of Puerto Rico has evaluated similar stay requests under Sections 362(a) and
922(a), without making any distinction to the temporary automatic stay of Title IV of PROMESA.
See Vzquez-Carmona v. Department of Education, Slip Copy, Civil No. 16-1846, 2017 WL
2
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I. PLAINTIFFS CLAIM FOR EQUITABLE RELIEF SHOULD NOT BE STAYED

UNDER THE PROMESA STATUTE.
PROMESA provides that nothing in this chapter shall be construed as impairing or in any
manner relieving a territorial government, or any territorial instrumentality thereof, from compliance
with Federal laws or requirements or territorial laws and requirements implementing a federally
authorized or federally delegated program protecting the health, safety, and environment of persons
in such territory. 48 U.S.C. 2106. The automatic stay authorized by the PROMESA statute does
not, therefore, apply to suits to enforce federal rights. See Vazquez-Carmona v. Dept of Educ. of
Puerto Rico, No. CV 16-1846 (GAG), 2017 WL 2352153, at *1 (D.P.R. May 31, 2017). Plaintiffs
Complaint seeks equitable relief against Defendants for their egregious violation of his First
Amendment rights. PROMESA should not be used as a vehicle to thwart that relief. See id.
II. PLAINTIFFS CLAIM FOR COMPENSATORY RELIEF AGAINST THE

DEFENDANTS IN THEIR PERSONAL CAPACITIES SHOULD NOT BE STAYED
BECAUSE DEFENDANTS ARE NOT DEBTORS UNDER PROMESA.
Plaintiffs claim for compensatory relief is directed at Defendants in their personal
capacities. Thus, Defendants are not entitled to an automatic stay of Plaintiffs claims for
compensatory relief because Defendants are not debtors within the meaning of the PROMESA
statute. Even assuming sections 362(a) and 922(a) of the Bankruptcy Code were fully incorporated
into PROMESA, automatic stays issue only against a debtor. McCartney v. Integra Nat. Bank N.,
106 F.3d 506, 509 (3d Cir. 1997) (internal quotation marks omitted). [I]t is universally
acknowledged that an automatic stay . . . may not be invoked by entities such as sureties, guarantors,
co-obligors, or others with a similar legal or factual nexus to the . . . debtor. Id. (internal quotation
marks omitted).
2352153 (D.P.R. 2017).

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PROMESA provides for the adjustment of the Commonwealths debts, initiated through a
petition filed by the Oversight Board on behalf of a debtor, in this instance, the Commonwealth of
Puerto Rico. 48 USC 2164. Under PROMESA, a debtor means the territory or covered territorial
instrumentality concerning which a case under this subchapter has been commenced. See 48 USC
2161(c)(2). Section 2162 also establishes that an entity may be a debtor under Section III if the entity
is (A) a territory that has requested the establishment of an Oversight Board or has had an Oversight
Board established for it by the United States Congress in accordance with section 2121 of this title;
or (B) a covered territorial instrumentality of a territory described in paragraph (1)(A); (2) the
Oversight Board has issued a certification under section 2146(b) for such entity; and (3) the entity
desires to effect a plan to adjust its debts. See 48 U.S.C.A. 2162. The statutes definition of debtor
does not encompass natural persons, and none of the appearing Defendants, who are sued in their
personal capacities, conform to those terms.
Nor do the debtor in the PROMESA petition (i.e., the Commonwealth) and Defendants
Guillermo Calixto, Ricardo Cruz Dominguez and Mario Rivera share an identity of interest sufficient
to invoke the limited exception to this universally acknowledged rule. Cf. In re Siskin, 231 B.R.
514, 51819 (Bankr.E.D.N.Y.1999) (noting that special circumstances may exist where there is
such identity between a debtor and a third party that judgment against a non-debtor would be binding
upon a debtor so that the automatic stay would also apply to the non-debtor).
Although not specifically articulated in their Motion, Defendants appear to suggest that they
share an identity of interest with the debtor of the PROMESA petition. Citing Sec. 922(a) of the
Bankruptcy Code, supra, they argue that Plaintiffs pending civil right claims under Section 1983
against them constitute a direct and indirect claim against the Commonwealth because the
Commonwealth has assumed their legal representation and possibly will assume any judgment
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against them through the benefits provided to public servants through Law 104, P.R. Laws Ann. Tit.
32 sec. 3085 et seq. Mot. to Stay 2-3. But, as noted above, Plaintiffs claims seeking compensatory
relief are directed against the individual officers in their personal capacities, as allowed by 42 U.S.C
1983. It is the Defendants, then, and not the Commonwealth, who are liable for compensatory
damages, since state officials, sued in their individual capacities, are persons within the meaning of
1983. See Hafer v. Melo, 502 U.S. 21 (1991) (holding that (1) state officers may be personally
liable for damages under 1983 based upon actions taken in their official capacities; (2) officers
potential liability is not limited to acts under color of state law that are outside their authority or not
essential to operation of state government, but also extends to acts within their authority and
necessary to performance of governmental functions; and (3) Eleventh Amendment does not erect
barrier against suits to impose individual and personal liability on state officers under 1983).
The benefits provided by Law 104 do not alter this conclusion, or modify the nature of
Plaintiffs section 1983 claim against the individual defendants. Law 104 permits an official, charged
in a civil rights action relating to official duties, to voluntarily request legal representation by the
Commonwealth, and it permits the Commonwealth to subsequently assume payment of any
judgment. P.R. Laws Ann. tit. 32, 3085. But, under the statute, labeled by the First Circuit as
idiosyncratic in nature, the Puerto Rico Secretary of Justice has discretion to decide in which cases
the Commonwealth assumes representation and subsequently, after considering the findings of the
court or which arise from the evidence presented, whether it is in order to pay the judgment. Id.
3087. See Whitfield v. Municipality of Fajardo, 564 F.3d 40 at 42 (2009); Ortiz-Feliciano v. Toledo
Daz. 175 F.3d 37 (1999); Burgos-Yantin v. Municipality of Juana Diaz, Slip Copy, Civil No. 07
1146 (JA) 2013 WL 435203. And, even if the Commonwealth has agreed to provide representation
for an official, there is nothing stopping the Commonwealth from reversing that decision at any time.
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Moreover, no decision about whether to pay a judgment on behalf of an official sued in his personal
capacity is made under after compensatory relief is awarded and the Commonwealth has an
opportunity to assess the Courts findings, evaluate the relief awarded, and determine whether there
are sufficient resources to cover the cost of the judgment.3
Hence, the benefits provided by Law 104 do not constitute a substitution of parties or an
admission of liability for the Commonwealth. It ultimately constitutes an arrangement between the
Defendants and Puerto Rico Department of Justice in which the Secretary retained the discretion to
possibly provide ongoing legal representation and possibly pay the judgment against individual
defendants pursuant to certain conditions established by law, and subject to the available resources.
See P.R. Laws Ann. Tit. 32 sec. 3092.4 See P.R. Laws Ann. Tit. 32 sec. 3085 (emphasis added)
([T]hese provisions shall not be construed, for any reason whatsoever, as making the
Commonwealth an insurer of the aforesaid public servants, nor as a waiver of the sovereign
immunity of the Commonwealth.) (emphasis added). Accordingly, contrary to Defendants
suggestion, there is no identity of interest between themselves and the Commonwealth sufficient to
apply the automatic stay to this case.5 Plaintiffs ability to protect his fundamental constitutional
3
Under the Eleventh Amendment a plaintiff is unable to request an execution of judgment against
the Commonwealth, even when the Secretary of Justice has granted the judgment debtors request to
indemnify them with respect to the judgment. See Ortiz-Feliciano supra, at 40. Pietri-Giraldi v.
Alvarado-Santos 443 F.Supp. 2d 214, 217 (D.C.P.R. 2006) (holding that pursuant to Section 3085 of
Law 104, the claim for indemnification concerning payment of judgment lies with defendant public
officers, not with the plaintiff).
4
Section 3092 of Law 9 provides that [t]he Secretary of Justice shall notify the Secretary of the
Treasury of his determination regarding the payment, on the basis of the provisions of 3085-
3092a of this title. If the Secretary of Justice decides payment should occur, the Secretary of the
Treasury shall pay the judgment, costs and attorneys fees imposed on the defendants from available
funds in the Treasury of Puerto Rico. P.R. Laws Ann. Tit. 32 sec. 3092.
5
In re City of Stockton, 484 B.R. 372 (Bankr. E.D. Cal.2012), does not support Defendants
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rights, and the authority of this District Court to enforce federal law through section 1983 of the Civil
Rights Act, should not yield to Puerto Ricos idiosyncratic Law 104.
III. DEFENDANTS REQUESTED STAY WOULD CAUSE PLAINTIFF UNDUE

HARDSHIP AND UNFAIR PREJUDICE.
Finally, a stay at this stage of the judicial proceedings is unwarranted, considering that this
litigation has taken more than three years, discovery proceedings have been completed, and only
dispositive motions and the trial remain. See Dkt. 120. A stay would place this litigation in an
indefinite procedural limbo, leaving Plaintiff without any permanent equitable relief and unfairly
prejudicing his ability to present his case should there be a trial.
Moreover, even assuming that Plaintiffs claim for compensatory relief might eventually fall
within the reach of PROMESA, it does not qualify for a stay now because it is not currently a
payable claim against the Commonwealths resources: Damages would have to be awarded to
Plaintiff; the Secretary of Justice would have to agree for the Commonwealth to pay those damages
on behalf of Defendants; and it would have to be determined whether that liability would be qualify
as a payment of credit, obligation, or debt as defined under PROMESA. Under these circumstances,
argument. See Mot. to Stay 9. As Defendants note, Stockton was premised on California
Government Code 825, whichcontrary to Defendants contentionis not very similar to the
provisions of Law 104. See Mot. to Stay 10 & n. 5. As discussed above, Law 104 confers
discretion on the Commonwealth as to whether it will provide legal representation to an official who
requests it, and thereafter, it provides discretion to the Commonwealth as to whether it will pay any
damages award on behalf of an official who requests ita determination that is not made until after
any such award is entered against the official. Pursuant to Law 104, the initial determination to grant
legal representation to the public official sued for violations of a citizens civil rights and the
subsequent determination of whether the Commonwealth will assume the payment of judgment are
two separate and independent proceedings. The payment of the judgment is not automatic, but at the
discretion if the Secretary of Justice. See Ortiz et al. v. E.L.A., 158 D.P.R. 62, 71-72 (Supreme Court
of Puerto Rico, 2002) California law, by contrast, is not discretionary, providing that, once a
municipal official requests representation in writing, and the official reasonably cooperates in good
faith in the defense of the claim or action, the public entity shall pay any judgment based thereon or
any compromise or settlement of the claim or action to which the public entity has agreed. Cal.
Govt Code 825 (emphasis added). Moreover, as discussed above, PROMESA has a very specific
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public policy favors the resolution of this civil rights action and denial of Defendants request for a
stay. See In re Santa Clara County Fair Ass'n, Inc. 180 B.R. 564, 566-567 (U.S. Bankruptcy
Appellate Panel, 9th Cir. 1995) (holding that the Bankruptcy Court did not abuse its discretion in
modifying an automatic stay to allow prosecution of a district court civil rights action, under the
reasoning that the public policy favored the resolution of civil rights actions and outweighed any
competing policy served by the automatic stay under the circumstances).
WHEREFORE, Plaintiff respectfully requests that this Court to deny Defendants Motion
for Stay.
Respectfully submitted,

USDC-PR NO: 221808
of Puerto Rico
Tel: 787-753-8493
Fax: 787-753-4268
Daniel Mach (Pro Hac Vice Admission)

Heather L. Weaver (Pro Hac Vice Admission)
Tel: 202- 675-2330
Fax: 202- 546-0738
hweaver@aclu.org
definition of debtor, which did not apply in Stockton.
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In San Juan, Puerto Rico, on this June 19, 2017
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CERTIFICATE OF SERVICE
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 all
attorneys of record.

USDC-PR NO: 221808
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Appendix Order on Motion To Stay Page 1 of 2

ALVIN MARRERO-MENDEZ, et al.,
Plaintiffs,
v. CIVIL NO. 13-1203 (JAG)
HECTOR PESQUERA, et al.,
Defendants.
ORDER
GARCIA-GREGORY, D.J.
The Court GRANTS Defendants Motion to Stay this case, Docket No. 125, pursuant to
the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), 48 U.S.C.
2101, et seq. PROMESAs automatic stay applies to any action against the debtor that was or could
have been commenced before the Title III proceeding. 11 U.S.C. 362(a); 48 U.S.C. 2161(a)
(incorporating by reference 11 U.S.C. 362). This includes actions for equitable relief. See Advanced
Computer Servs. of Michigan, Inc. v. MAI Sys. Corp., 161 B.R. 771, 774 (E.D. Va. 1993) (There is no merit
to the argument that a suit for injunctive and declaratory relief is an equitable suit and not a
judicial action as to which a stay is applicable.).
The automatic stay also applies to actions against an officer or inhabitant of the debtor
that seeks to enforce a claim against the debtor. 11 U.S.C. 922(a); 48 U.S.C. 2161(a)
(incorporating by reference 11 U.S.C. 922). The police officers in this case are represented under
Law 104 of June 29, 1955, as amended, P.R. Laws Ann. tit. 32, 3085, et seq. (Law 104). Docket
No. 125. Thus, the Commonwealth of Puerto Rico has assumed the costs of their representation
and possibly the payment of any adverse judgment. Id. 3087, 3088. As a result, the claims against
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Appendix Order on Motion To Stay Page 2 of 2
Civil No. 13-1203 (JAG) 2
the officers in their personal capacities are also covered by the stay, because they ultimately seek
to enforce a claim against the debtor. See In re City of Stockton, Cal., 484 B.R. 372, 376 (Bankr. E.D.
Cal. 2012) (holding that an action against officers of the City of Stockton, California, who were
being represented by the City under a California law that is similar to Law 104, was covered by
the automatic stay of actions against the City, because the action was one that seek[ed] to enforce
a claim against the debtor since [t]o the extent that there is a judgment against the individuals,
the City, having undertaken their defense, will be required to pay the judgment.).
Accordingly, all of Plaintiffs claims are covered by PROMESAs automatic stay. Thus, this
case is stayed pursuant to 48 U.S.C. 2161(a) and 11 U.S.C. 362(a), 922(a). Any request to lift
or vacate the stay must be filed in the Bankruptcy Court in the District of Puerto Rico in Case No.
17-BK-03283 (LTS).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 20th day of July, 2017.
S/ Jay A. Garcia-Gregory
JAY A. GARCIA-GREGORY
United States District Judge
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Motion For Relief From Stay Alvin Marrero Vs Pesquera PRPD

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Case:17-03283-LTS Doc#:952 Filed:08/08/17 Entered:08/08/17 12:06:13 Desc: Main

IN THE UNITED STATES DISTRICT COURT

THE FINANCIAL OVERSIGHT AND Case No. 17-BK-03283(LTS)

MOTION FOR RELIEF FROM STAY

TO THE HONORABLE COURT:

respectfully states as follows:

has described as a clear case of punishment on religious grounds. MarreroMndez v. Calixto

Marrero-Mndez alleged that his immediate supervisor, co-defendant Guillermo Calixto-

Pesquera et al., 13-cv1203 (JAG).

Calixto-Rodriguez became upset and ordered Marrero-Mndez to abandon the formation.

coercion, a paradigmatic example of an impermissible establishment of religion. Marrero

Mndez, 830 F.3d at 48.

THE AUTOMATIC STAY IMPOSED UNDER PROMESA DOES NOT APPLY TO

48 U.S.C. 2102-2241, is a sui generis bankruptcy-like statute enacted by Congress in June

balance of harms. Sonnax, 907 F.2d at 1286.

As mentioned above, Plaintiffs claim for compensatory relief is directed at Defendants

the . . . debtor. Id. (internal quotation marks omitted).

. . ; or (B) a covered territorial instrumentality of a territory described in paragraph (1)(A); (2)

would also apply to the non-debtor).

not with the plaintiff).

admission of liability for the Commonwealth. It ultimately is an arrangement between the

Commonwealth.) (emphasis added). Accordingly, contrary to Defendants suggestion, there is

not yield to Puerto Ricos idiosyncratic Law 104.

PROMESA provides that nothing in this chapter shall be construed as impairing or in

Vazquez-Carmona v. Dept of Educ. of Puerto Rico, No. CV 16-1846 (GAG), 2017 WL

used as a vehicle to thwart that relief. See id.

present his case should there be a trial.

established constitutional rights of individuals like Movant Alvin Marrero-Mndez. As the

District Court of Puerto Rico recently noted,

In Puerto Ricos unique circumstances, any over breadth in the

be clear the Commonwealth of Puerto Rico continues to be a

Cruz Rodrguez v. Administracin de Correccin. Civil Action 17-01464 (WGY), Order Re

PROMESA by the Government in order to avoid accountably for violations of constitutionality

fair judicial remedy in federal court.

monetary relief the Commonwealth would be compelled to comply by judgment.

Respectfully submitted, in San Juan Puerto Rico, on August 8, 2017

/s/ Josue Gonzalez-Ortiz,

Daniel Mach (Pro Hac Vice Admission)

/s/ Josue Gonzalez-Ortiz,

Josue Gonzalez-Ortiz, Esq.

IN THE UNITED STATES DISTRICT COURT

ALVIN MARRERO-MNDEZ, individually Case No.

HECTOR PESQUERA, Superintendent of the

supervisors any officers who object to these unlawful practices.

Plaintiffs religious beliefs.

matters. He also has been subjected to retaliation, including downgraded professional

8. This Honorable Court may exercise supplemental jurisdiction over Plaintiffs

Plaintiffs claims have occurred in this district.

the public, and undertaking other crime-prevention activities.

pressure him to participate in prayer and worship.

led to the events described in this complaint.

Cruz-Domnguez acted pursuant to authority delegated or conferred to them by Guillermo Calixto-

the United States.

herein, or knew of the violations and failed to act or prevent them.

in the course and scope of their employment.

IV. FACTUAL ALLEGATIONS

Cruz-Domnguez also attended the meeting.

the meeting with a prayer.

that he did not want to participate.

formation until the prayer, which was explicitly Christian, ended.

to receive further orders about a transfer.

constitutional right of freedom of religion had been violated.

the Carolina Region Commander Carlos J. Miranda.