HPY, Inc. v. Electric Power ( 1993 )

USCA1 Opinion

          April 15, 1993        [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2370

                                      HPY, INC.,

                                 Plaintiff-Appellant,

                                          v.

                          ELECTRIC POWER AUTHORITY, ET AL.,

                                Defendants-Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
                                       _____________
                                Boudin, Circuit Judge,
                                        _____________
                          and Burns, Senior District Judge.
                                     _____________________

                                 ____________________

            Francisco   J.   Amundaray-Rodriguez,  Mirta   E.  Rodriguez-Mora,
            ____________________________________   __________________________
        Attorney,  Department of Justice, Adrian Mercado and Mercado & Soto on
                                          ______________     ______________
        brief for appellant.
            Reina Colon De Rodriguez, Acting Solicitor General, Department  of
            ________________________
        Justice, Carlos Lugo Fiol,  Assistant Solicitor General, Department of
                 ________________
        Justice, Arturo  Trias, Miguel R. Garay  Auban, Pedro Santiago-Torres,
                 _____________  ______________________  _____________________
        Jorge  Marrero  Narvaez,  and Trias,  Acevedo  &  Otero  on brief  for
        _______________________       _________________________
        appellees.

                                 ____________________

                                 ____________________

        ________________________

        * Of the District of Oregon, sitting by designation.

















                 Per Curiam.   HPY, Inc.,  brought this  action under  42
                 __________

            U.S.C.    1983  against  three public  authorities in  Puerto

            Rico, certain  of their  officials, and  John Does  1 through

            1,000.  The  agencies are the  Electric Power Authority,  the

            Puerto  Rico  Aqueduct  and  Sewer Authority  and  the  Rural

            Housing  Administration.  The heart of  the complaint was the

            following allegation:

                        On  or  about 1985,  squatters, without
                      valid  title  or  authorization from  the
                      plaintiff started  massive land invasions
                      on   said    properties   [belonging   to
                      plaintiff].       The   squatters,   also
                      Defendants of [sic] this suit, encouraged
                      and  abetted  by  the  other  Defendants,
                      proceeded  to  construct or  build shacks
                      and houses on Plaintiff's properties.

            This, said the complaint, comprised a deprivation of property

            rights "without due process and without due compensation."

                 The  defendants  moved  to  dismiss  the  complaint  for

            failure  to state  a claim.   Fed. R.  Civ. P.  12(b)(6).  In

            opposing  the   motion,  HPY  offered  a   few  more  factual

            allegations.   Specifically, it  alleged  that squatters  had

            occupied  its  land  and  that  some  or  all  of  the  named

            defendants  had  encouraged  the  invasion  and  abetted  the

            squatters by  supplying public  facilities like power  to the

            squatters and even constructing or assisting the squatters to

            construct  shacks.  The  district court  ultimately dismissed

            the complaint, with prejudice, for failure to state  a claim,

            observing  that "we  are as  likely to  squeeze blood  from a



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            stone as we are to squeeze any more facts from this complaint

            . . . ."   HPY appeals.1

                 We affirm  the district court.   Section 1983  creates a

            claim for injuries done by anyone who "acting under color of"

            state law deprives the victim  of any "rights, privileges, or

            immunities" protected  under the Constitution.   The original

            complaint did not  explain what the named defendants had done

            under  color of state law, but we  will take the complaint on

            this  appeal  as  illuminated  by HPY's  oppositions  to  the

            motions to dismiss.   Even in this posture, and  allowing HPY

            the  benefits of liberal  pleading rules, 5  Wright & Miller,

            Federal Practice and  Procedure   1219 (1990),  we cannot see
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            how HPY can premise a claim under section 1983 upon the facts

            alleged.  

                 We  will assume  arguendo  that the  color of  state law
                                  ________

            requirement is met as to the named defendants (since they are

            governmental entities and officials) and that HPY's  property

            has been physically occupied  and its value diminished.   But

            if  the actions of the named defendants are not authorized by

            local  law or  regulation,  then there  is no  constitutional
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            violation  so  long as  local law  affords  a remedy  for any

            tortious  misconduct.   Hudson v. Palmer,  468 U.S.  517, 533
                                    ______    ______

                                
            ____________________

                 1After filing its  brief with this court,  HPY filed two
            informative  motions.   One motion  amended a  page reference
            included  in   its  brief;   the  second  provided   us  with
            supplemental  support  for  its  argument.    We  grant  both
            motions.

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            (1984) (unauthorized property seizure of  state employees not

            a constitutional  deprivation  if state  remedy  afforded).  

            Defendants  assert that there is a remedy under local law, 32

            L.P.R.A.    3077.  HPY neither alleged  the absence of such a

            remedy in the complaint  nor countered defendants'  assertion

            in this court (HPY did not file a reply brief).

                 Alternatively, if  HPY is alleging that  the abetting of

            the trespass is authorized by Puerto Rican law, conceivably a

            taking claim  would arise and the  Constitution would require

            compensation.     But  again  there   is  no   constitutional

            deprivation so  long as  Puerto Rico provides  an appropriate

            remedy  to  secure  compensation  for  takings.    Williamson
                                                               __________

            Planning  Commission  v. Hamilton  Bank,  473  U.S. 172,  194
            ____________________     ______________

            (1985).  Once again, the defendants assert that such a remedy

            exists under Puerto Rican law, see Culebras Enterprises Corp.
                                           ___ __________________________

            v. Rivera Rios, 813 F.2d 506,  513 (1st Cir. 1987), and  once
               ___________

            again there is no contrary allegation in the complaint and no

            counter to defendants' assertion by way of reply brief.

                 HPY also  complains that the dismissal  should have been

            without  prejudice in  light  of  the liberal  leave-to-amend

            policies followed by the courts.  Here, however, HPY filed an

            utterly uninformative complaint.  We have effectively treated

            the  additional material scattered  in its  three oppositions

            filed  in the district court as  amendments to the complaint.

            Even so,  HPY has still failed  to state a claim,  nor has it



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            filed a reply  in this  court responding  to the  authorities

            just  recited (which were set forth in the answering briefs).

            Accordingly,  we  do  not   think  that  the  dismissal  with

            prejudice represents an abuse of discretion.

                 Affirmed.
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