
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          April 15, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -2-                                         -2-            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            _______________________________            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                                                           ______________            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.                                         -3-                                         -3-            (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                                         -4-                                         -4-            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.                 ________                                         -5-                                         -5-
