Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 1 of 12 IN THE UNITED STATES DISTRIC COURT FOR THE DISTRICT OF PUERTO RICO JOSÉ A. WISCOVITCH BARRERAS, ROSARIO M. CASTAÑEDA CASANOVA, and the CONJUGAL PARTNERSHIP formed between them, CLAUDIA WISCOVITCH AND VICTORIA WISCOVITCH, PLAINTIFFS v. CARMEN YULÍN CRUZ SOTO, in her official and personal capacities, RAFAEL GONZÁLEZ LÓPEZ and SAMUEL PEREZ BARRETO, in their official capacity as employees of the San Juan Municipal Police, the MUNICIPALITY OF SAN JUAN, JANE DOE, JOHN DOE, and INSURANCE AGENCY A,B,C CIVIL NO: FOR: CIVIL RIGHTS VIOLATIONS SECTION 1983 UNDER THE 1 ST, 4 TH AND 14 TH AM. OF THE US CONST.ETC. PLAINTIFFS DEMANDS TRIAL BY JURY DEFENDANTS COMPLAINT TO THE HONORABLE COURT: COME NOW the Plaintiffs, José A. Wiscovitch Barreras, Rosario M. Castañeda Casanova, and the Conjugal Partnership formed between them, Claudia Wiscovitch and Victoria Wiscovitch, and Asiana Food and Beverage, Inc., through the subscribing attorney, and very respectfully ALLEGE and PRAY: I. STATEMENT OF THE CASE 1. During the celebration of the 2017 traditional Fiestas de la Calle San Sebastián in Old San Juan, Plaintiff José A. Wiscovitch Barreras, an attorney and well-known and active resident of Old San Juan, was unlawfully arrested and humiliated in broad daylight and in front of dozens of people. Plaintiff s illegal detention and arrest was directly ordered by the
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 2 of 12 Defendant, Carmen Yulín Cruz Soto, the Mayor of San Juan, and perpetrated by the San Juan Municipal Police (MSJP) officers, Rafael González López and Samuel Pérez Barreto, as well as other unknown Muinicipality of San Juan (MSJ) s personnel, acting under color of law. Wiscovich s detention and ultimate arrest for unwarranted and unjustifiable reasons while riding a bicycle through the streets of Old San Juan, was a violation of Wiscovitch s constitutional rights both under the laws of the United States and the Commonwealth of Puerto Rico. Furthermore, the actions described herein against Wiscovitch violated Asiana s constitutional right to commercial speech due to the fact that Wiscovitch was fined for $5,000 for carrying a discrete advertisement of Asiana Sushi Bar in his bicycle. As a consequence, Plaintiffs have suffered substantial damage to their honor and reputation, as well as emotional and monetary damages. 2. Due to the defendants illegal actions, Plaintiffs seek compensatory damages as well as declaratory and relief for their civil rights violations under the First, Fourth and Fourteenth Amendments to the United States Constitution pursuant to 42 US.C. 1983; compensatory damages for violations of Articles I, 10, and Article 2, 1, 8 and 16 of the Constitution of the Commonwealth of Puerto Rico, and Article 1802 of the Puerto Rico Civil Code, 31 LPRA 5141. State and federal claims hereinafter set forth derive from a common nucleus of operative facts. II. JURISDICTION 3. This complaint is brought under the Civil Rights Act, 42 U.S.C. 1983, and the rights secured under the First, Fourth and Fourteenth Amendment to the United States Constitution. This Court has jurisdiction over this complaint pursuant to 28 U.S.C. 1331 and 1343 (a)(3). 2
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 3 of 12 4. Supplemental jurisdiction for the causes of action invoked under the Constitutions and the laws of the Commonwealth of Puerto Rico is invoked under 28 U.S.C. 1367. 5. Venue is appropriate in the Court pursuant to 28 U.S.C. 1391, as this action is brought in the judicial district in which the unlawful actions against Plaintiffs occurred. III. THE PARTIES 6. Plaintiff José A. Wiscovitch (Wiscovitch) is an attorney, citizen of the United States of America, and a well-known resident of Old San Juan, Puerto Rico. 7. Plaintiff Rosario M. Castañeda Casanova (Castañeda) is a citizen of the United States of America and a resident of Old San Juan, Puerto Rico. Castañeda is married to Wiscovitch and is the President of Asiana Food and Beverage, Inc. the corporation that owned Asiana Sushi Bar, a restaurant in Old San Juan. 8. The Conjugal Partnership composed by Wiscovitch and Castañeda is the legal entity that governs their economic regime. 9. Plaintiff Claudia Wiscovitch Castañeda (Claudia) is of legal age and a citizen of the United States of America. She is a resident of Miami. Claudia is Wiscovitch and Castaneda s oldest daughter. She was present in Old San Juan on the day of her father s illegal arrest. 10. Plaintiff Victoria Wiscovitch (Victoria) is of legal age, a citizen of the United States of America, and resident of Rhode Island where she is attending college. Victoria is the youngest daughter of Wiscovitch and Castañeda. 11. All plaintiffs collectively are herein denominated herein as Plaintiffs 12. The Defendant Carmen Yulín Cruz Soto (Mayor Cruz Soto), is of legal age and a resident of San Juan, Puerto Rico. Defendant is currently, and at all times relevant to this Complaint, the Mayor of the Municipality of San Juan and, as such, the final policy making 3
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 4 of 12 authority of the San Juan Municipal Police. Mayor Cruz Soto directly participated in the illegal and unconstitutional acts against Wiscovitch. Mayor Cruz Soto is being sued in both her individual and official capacities. 13. The defendant Municipality of San Juan is an autonomous municipality created in accordance with the Autonomous Municipality Act, 21 PR Laws Ann. 4003, with legal capacity independent from the government of the Commonwealth of Puerto Rico, with legal, legislative, and fiscal capacity in all matters, whose policies and practices, carried out by the Mayor of San Juan, deprived Wiscovitch and Asiana of their constitutional rights as set forth in this Complaint, and for which it is liable. 14. The defendant Rafael González-López (González-López) is a San Juan municipal police officer, who acting under color of law and in the course and scope of his employment, participated in the illegal acts against Wiscovitch and Asiana. González-López defendant is being sued in his official capacity. 15. The defendant Samuel Pérez-Barreto (Pérez-Barreto), is a San Juan municipal police officer supervisor, who acting under color of law and in the course and scope of his employment, participated in the illegal acts against Wiscovitch. Perez Barreto is sued in his official capacity. 16. Defendant s Jane and Joe Doe represents one or more San Juan Municipal Police (SJP) officers and/or employees, who acting under color of law and in the course and scope of their employment, participated in the illegal acts against Wiscovitch. 17. The defendant Insurance Company A, B, C is one or more insurance companies that may have issued and have in effect insurance policies that cover the acts alleged herein. 18. All defendants are hereby denominated as Defendants. 4
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 5 of 12 III. THE FACTS 19. On or about January 21, 2017, at 1:00pm, Plaintiff Wiscovitch was riding his bicycle around Old San Juan. This was on the third day of the celebration of the 2017 Fiestas de las Calle San Sebastian (FCSS). Wiscovitch, picked up a stranger who asked for a ride. Wiscovitch went past la Plaza Colón and he encountered a municipal police brigade who let him pass without any intervention or inquiry. 20. As Wiscovitch was riding through San Francisco St., next to the Church located therein, Wiscovitch suddenly encountered Mayor Cruz Soto who ordered him to stop and park what she called an unathorized vehicle. Mayor Cruz Soto ordered John Doe to remain with Wiscovich while ordering Wiscovich not to move. 21. Mayor Cruz ordered John Doe to call the police. 22. Several MSJP surrounded Wiscovitch, including Gonzalez Lopez, requesting his identification, address and started interrogating while Wiscovithch argue with them asserting his due process rights to know why they were intervening with him to no avail. After several minutes a MSJP supervisor Perez Barreto talked to him away from the other MSJ officers and Wiscovich identified himself verbally, however, he explained that he did not have any form of Id. 23. Mayor Cruz Soto approached the MSJ officers intervening with Wiscovitch and ordered the MSJ police officers to imposed every fine possible. 24. After Mayor Cruz-Soto verbalized the aforementioned order, enraged Wiscovitch replies with the following statement: Personalmente haré todo lo posible para que usted no sea 5
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 6 of 12 gobernadora, which translated to English says I will personally do anything possible for you not to become the governor. 25. Upon hearing Wiscovitch s statement Mayor Cruz Soto yelled take him away and Perez Barreto immediately handcuffed Wiscovitcht, placed him under arrest without reading his Miranda rights or informing him why he was arrested. Mayor Cruz Soto entourage began applauding when Wiscovitch was handcuffed. 26. Wiscovitch was forced to walked handcuffed all the way from San Francisco St. to the Covadonga Police headquarters. This events were witnessed by thousands of people, including Wiscovitch s neighbors, who were participating from the Fiestas de la Calle San Sebastián and upon information and belief some of them recorded images and posted them in social media. 28. Once at the Covadonga MSJP headquarters, municipal police officers searched Wiscovitch and he was held in custody for about two hours. His bicycle was confiscated and taken to a special area within the Municipality. 29. While in custody, Wiscovitch called his wife to inform her what had happened and requested her to bring his identification. Castaneda arrived to Covadonga with the ids truly nervous. Wiscovitch starts feeling strong heart palpitations and feelings of frustration, anxiety, and anger because of all that had happened. 30. After two hours of being detained and handcuffed in the Covadonga headquarters, MSJP issued Wiscovitch a Notice to Appear to the San Juan First Instance Court for the filing of one charge of obstruction of justice, a felony. 31. In addition, MSJP fined Wiscovitch with three administrative infractions of the Old San Juan Public Order Code. The three administrative infractions were for: (1) riding a bicycle 6
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 7 of 12 without helmet, for which a $50.00 fine was imposed; (2) not riding the bicycle through the right lane, for which a $50.00 fine was imposed, and (3) for having a sign in his bicycle that said Asiana Sushi Bar, which was Castañeda s business, for which a $5,000.00 fine was imposed. 31. The three administrative infractions were challenged by Wiscovitch and a hearing was held on March 2017, as of today there has not been a resolution to the infractions. 32 On February 22, 2017 the Court of First Instance of San Juan held that there was no probable cause for the arrest of Wiscovitch. As a result, the obstruction of justice charge was dismissed. 33. As a result of the aforementioned facts Wiscovitch has become antisocial, sleep deprived, irritable, anxious, and depressed. Wiscovich has been under psychiatric treatment ever since the events described herein. During the aforementioned events, Wiscovitch s dignity had been violated, he felt denigrated as a person and as a professional. IV. FIRST CAUSE OF ACTION Fourth Amendment Violations 34. Plaintiffs incorporate and restate each of the above paragraphs as if fully set forth herein. 35. Mayor Cruz Soto, John Doe, Perez Barreto and Gonzalez Lopez acting under color of law, willfully deprived Wiscovitch of his federal protected constitutional right to be free from unreasonable searches and seizures under the Fourth Amendment of the Constitution of the United States. 36. Defendant Cruz Soto ordered MSJP officers, who are under her authority by virtue of law, to arrest plaintiff without probable cause of any felony being committed or in process. 7
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 8 of 12 37. MPSJ officers González López and Perez Barreto, acting under color of law and in the course of his employment, following Cruz Soto s direct orders, proceeded to handcuff Wiscovitch and put him under arrest without probable cause. 39. Neither Pérez Barreto nor González López were present during the alleged misdemeanor offenses allegedly committed by Wiscovitch. Perez Barreto and Gonzalez Lopez acts were objectively unreasonable. 40. As a result of the Defendants s deliberate, intentional and unlawful acts, Wiscovitch was unreasonably detained and arrested for more than three hours suffering extensive embarrassment, humiliation, and damage to his reputation and honor. 41. Defendants acted willfully, maliciously, and/or with reckless disregard of the consequences of their actions. Accordingly, Wiscovitch is entitled to compensatory damages, punitive damages, attorney fees, and any other form of relief allowed by law. herein. V. SECOND CAUSE OF ACTION FIRST AMENDMENT VIOLATION: RETALIATION 42. Plaintiffs incorporate and restate each of the above paragraphs as if fully set forth 43. Mayor Cruz Soto retaliated against Wiscovitch by ordering his arrest as a result of his political statement uttered, namely, that he would personally do anything for Defendant Cruz Soto not to become the governor in violation of the First Amendment. 44. Defendants acted willfully, maliciously, and/or with reckless disregard of the consequences of their actions. Accordingly, Wiscovitch is entitled to compensatory damages, punitive damages, attorney fees, and any other form of relief allowed by law. 8
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 9 of 12 VI. THIRD CAUSE OF ACTION FIRST AMENDMENT VIOLATION: COMMERCIAL SPEECH 47. Plaintiffs incorporate and restate each of the above paragraphs as if fully set forth herein. 48. As a result of his arrest, Plaintiff was given a $5,000.00 administrative fine because his bicycle had a discrete advertising sign for his wife s restaurant that said Asiana Sushi Bar. 49. The advertisement for Asiana Sushi Bar set forth herein is a form of commercial speech protected by the First Amendment of the Constitution of the United States. 50. The Municipality of San Juan ordinance 33, Series 2016-2017 (the ordinance) is unconstitutional to the extent that it intended to regulate Wiscovitch signage attached to his bicycle in open spaces. In the alternative, the ordinance is unconstitutional since it does not meet the 4 prong test established in Central Hudson Gas & Elec. Co. v. Public Service Comm. Of New York, 477 U.S. 577(1980). 51. Wiscovitch request that Defendants be permanently enjoined or refrain from enforcing the collection of the $5,000 fine imposed as alleged herein. VIII. SUPPLEMENTAL CAUSES OF ACTION PUERTO RICO CONSTITUTION 55. Plaintiffs incorporate and restate each of the above paragraphs as if fully set forth herein. 56. The actions described herein constitute a violation of Wiscovitch s right to dignity, reputation and honor, as established by Article II, 1, 8, and 16 of the Constitution of 9
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 10 of 12 the Commonwealth of Puerto Rico, entitling plaintiff to damages for the suffering caused by the Defendants illegal actions. 57. The actions described herein also violate Article I, 10 of the Constitution of the Commonwealth of Puerto Rico which protects against unreasonable searches and seizures, entitling Wiscovitch to damages caused by the Defendants illegal actions. ARTICLE 1802 OF THE CIVIL CODE 58. Plaintiffs incorporate and restate each of the above paragraphs as if fully set forth herein. 59. Defendants, are also liable to the plaintiffs under Article 1802, 31 LPRA 5141 of Puerto Rico s Civil Code. 60. As a consequence of Defendants wrongful actions, Wiscovitch suffered and continuous to suffer intense emotional distress, anxiety, and depression, all of which have greatly affected his quality of life. 61. As a consequence of Defendants wrongful actions, Castañeda suffered the humiliation and emotional damages of seeing her husband handcuffed and held in custody as a criminal 62. Furthermore, Castañeda and the Conjugal Partnership have suffered monetary damages, including loss of revenue, after Asiana Sushi Bar closed operations the same month of Wiscovitch s unlawful arrest. 63. As a consequence of Defendants wrongful actions, Claudia and Victoria have suffered emotional damages and mental anguish due to their father sufferings and due to the fact that their father was mistreated in front of thousands of people. PRAYER FOR RELIEF WHEREFORE, and for the foregoing reasons, Plaintiffs respectfully requests this court that judgment be entered against the Defendants: (a) Ordering the defendants to pay Wiscovitch the sum of no less than $3,0000,000 in punitive and compensatory damages, for Section 1983 violations; 10
Case 3:18-cv-01029 Document 1 Filed 01/18/18 Page 11 of 12 (b) Ordering the defendants to pay costs and attorney fees as set forth in 42 USC Section 1983, as Amended; (c) Ordering the defendants to cease and desist enforcing the $5,000 fine impose to Wiscovitch in violation of the First Amendment right to commercial speech; (d) Ordering the defendants to pay the sum of no less than $800,000 to Wiscovitch, Conjugal Partnership, Castaneda, Claudia and Victoria of compensatory damages including but not limited to economic damages, emotional damages, mental anguish, loss of consortium for violation of Article 1802 of the Puerto Rico Civil Code. (e) Ordering the Defendants to pay the sum of no less than $300,000 to Wiscovitch of damages for their violation of Wiscovitch s Puerto Rico Constitutional Rights (f) Granting such other and further relief as may be just and proper. RESPECTFULLY SUBMITTED. In San Juan, Puerto Rico, this 18 th of January, 2018. Prado, Nunez & Associates, PSC 403 Calle del Parque, 8th Fl. Santurce, PR 00907 Tel. (787) 977-1411 Fax. (787) 977-1410 Email: pradolaw10@gmail.com S/ EDWIN PRADO GALARZA USDC No. 208804 11
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