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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)

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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.

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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

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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.

/s/ Josue Gonzalez-Ortiz,

Josue Gonzalez-Ortiz, Esq.


USDC-PR NO: 221808

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF PUERTO RICO

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)

42. Plaintiff incorporates the preceding paragraphs as if fully set forth herein at length.

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)

49. Plaintiff incorporates the preceding paragraphs as if fully set forth herein at length.

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)

59. Plaintiff incorporates the preceding paragraphs as if fully set forth herein at length.

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

62. Plaintiff incorporates the preceding paragraphs as if fully set forth herein at length.

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.

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

Email: jgonzalez-ortiz@aclu.org

/S/ Daniel Mach


Daniel Mach (Motion for Pro Hac Vice
Admission Filed Herewith)
Heather L. Weaver (Motion for Pro Hac
Vice Admission Filed Herewith)
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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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF PUERTO RICO

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.

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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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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF PUERTO RICO

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

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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

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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,

/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
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

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.

/s/ Josue Gonzalez-Ortiz,


Josue Gonzalez-Ortiz, Esq.
USDC-PR NO: 221808

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF PUERTO RICO

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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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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