Maldonado-Gonzalez v. Puerto Rico Aqueduct & Sewer Authority

• Court: Court of Appeals for the First Circuit
• Decided: October 24, 2025
• Docket: 23-1388
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1388

CARMEN MALDONADO-GONZÁLEZ; MUNICIPALITY OF MOROVIS; GENOVEVA LÓPEZ; JUSTINIANO CALDERÓN; SHIRLEY SOTO; AUREA CASTELLANO; SONIA OTERO; PABLO RIVERA-BURGOS; and MIGUEL A. SEPÚLVEDA,

Plaintiffs, Appellants,

v.

PUERTO RICO AQUEDUCT & SEWER AUTHORITY; DORIEL I. PAGÁN-CRESPO, in her personal capacity and official capacity as Executive Director; and JOSÉ A. RIVERA ORTIZ, in his official capacity as Regional Executive Director,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]

Before

Barron, Chief Judge, Thompson and Rikelman, Circuit Judges.

Andrés C. Gorbea-Del Valle for appellants.

Omar Andino-Figueroa, Deputy Solicitor General of Puerto Rico, with whom Mariola Abreu-Acevedo, Assistant Solicitor General, and Fernando Figueroa-Santiago, Solicitor General of Puerto Rico, were on brief, for appellee Pagán-Crespo.

Germán A. Rieckehoff, with whom Arlyn González-Díaz and Cancio, Nadal & Rivera, L.L.C. were on brief, for appellee Puerto Rico Aqueduct & Sewer Authority. October 24, 2025

- 2 - RIKELMAN, Circuit Judge. For many years, there has been

a water crisis in the Municipality of Morovis in Puerto Rico: on

most days, there is no water service. The plaintiffs, who are

residents of Morovis and subscribers of the Puerto Rico Aqueduct

and Sewer Authority (PRASA), sued PRASA and its officials for

conduct that they claim perpetuated the water service crisis. The

district court dismissed their case in full, before any discovery.

The plaintiffs appealed, and we agree that the district

court erred in dismissing their substantive due process claim on

the ground that they failed to allege government conduct that

shocks the conscience. Thus, we vacate the district court's order

and remand for further proceedings.

I. BACKGROUND

A. Relevant Facts

In reviewing the district court's grant of the

defendants' motions to dismiss for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6), we draw the facts from

the complaint, "taking the well-pleaded facts as true and

construing all reasonable inferences in [the plaintiffs'] favor."

Doe v. City of Boston, 145 F.4th 142, 146 (1st Cir. 2025) (quoting

Lawrence Gen. Hosp. v. Cont'l Cas. Co., 90 F.4th 593, 595 (1st

Cir. 2024)).

This case concerns the provision of water service in

Morovis, a municipality in central Puerto Rico that is home to

- 3 - just under 30,000 residents. The primary drinking water supply

source for Morovis is the Rio Grande de Manatí ("the river").

Water is pumped from PRASA's intake facility, located on the river,

to its treatment plant in Morovis, where the raw water is treated

before distribution to PRASA subscribers. According to the

plaintiffs, however, there are serious infrastructure issues with

PRASA's Morovis facilities.

PRASA is an instrumentality of the Puerto Rico

government and the sole provider of water service in Puerto Rico.

For several years, PRASA has not provided Morovis with adequate

water service. The lack of water has been particularly acute since

2017: early that year, Carmen Maldonado González began her term as

mayor and later that year, Hurricane María struck Puerto Rico.

Each day, on average, at least three of the fourteen wards in

Morovis have no water service.

Between 2017 and the filing of this lawsuit, Morovis

spent more than one million dollars addressing the water service

crisis. For example, it bought water tanks for residents,

purchased and distributed water, and hired experts to advise on

potential solutions to the crisis. In 2018, the municipality

entered into an agreement with the United States Army Corps of

Engineers to "plan the necessary actions to improve the performance

and capacity" of PRASA's facilities in Morovis. The Army Corps

then issued a report with recommendations, which was submitted to

- 4 - PRASA in December 2019. As of the date of the plaintiffs'

complaint,1 PRASA had taken no action on the report.

During this time, Mayor Maldonado2 and her staff

regularly contacted and met with PRASA officers, including

defendants Doriel Pagán Crespo, PRASA's Executive Director, and

José A. Rivera Ortiz, PRASA's Regional Executive Director for

Morovis. During their interactions, Mayor Maldonado repeatedly

asked Pagán to connect the water infrastructure in Morovis to

PRASA's "superaqueduct," a pipeline with a production capacity of

approximately 100 million gallons of water per day. But Pagán

insisted that PRASA must exhaust all other alternatives before it

would consider connecting the Morovis water system to the

superaqueduct. Mayor Maldonado's team also asked Rivera why a

200,000-gallon water tank located in Morovis was not being used.

In response, Rivera claimed to be unaware that the tank existed.

Despite frequent -- sometimes daily -- communication

with Mayor Maldonado and her team about the water crisis, PRASA

has done little to address the lack of water in Morovis. During

most water outages, PRASA has not provided an alternative source

1 For simplicity's sake, we will refer to the July 2022 amended

complaint as "the complaint."

2 We follow the parties' lead and Spanish naming conventions and refer to the appellant as "Maldonado." See United States v. Rosa-Borges, 101 F.4th 66, 68 n.1 (1st Cir. 2024). We follow the same convention for other parties in this case.

- 5 - of water to the plaintiffs, although occasionally PRASA has sent

water trucks to Morovis. And, PRASA has not adjusted water service

invoices for its Morovis subscribers despite the water service

problems.

Although there are infrastructure issues with PRASA's

intake facility and treatment plant in Morovis, sometimes fixing

the water outage is as simple as flipping a switch: turning on the

pumps and/or power generators located in those facilities. For

example, after Morovis hired former PRASA employee Tony La Luz to

help it understand its ongoing water service problems, La Luz

visited the Morovis water treatment plant on February 5, 2022, to

find out why there was no water service that day. PRASA employees

told La Luz that the treatment plant was out of service because

there was no electricity and the power generator at the Morovis

intake facility was not working. La Luz then proceeded to the

intake facility to verify the problem with the power generator.

At the intake facility, a PRASA employee solved the problem within

five minutes by turning on the generator. Still, the pumps at the

intake facility did not turn on, even though they should have done

so automatically when power returned. The PRASA employee who was

present contacted a supervisor who dispatched another employee to

the site to turn on the pumps. That employee eventually arrived

and told La Luz that the pumps had been turned off. The employee

then simply turned them back on. When the PRASA employee and La

- 6 - Luz then inspected the Morovis intermediate tank at the treatment

facility, they discovered that the pumps were also turned off

there, even though they too should have turned on automatically

with power. Again, the PRASA employee easily turned on the pumps.

After La Luz reported the troubling incident with the

pumps to Mayor Maldonado, she called Rivera to relay what she had

learned. Although Rivera was incredulous, a PRASA supervisor

confirmed that the information was correct. Mayor Maldonado then

requested that Rivera check surveillance video from the facilities

to uncover who had turned off the power generator and pumps. As

of the filing of the complaint in this case in July 2022, Rivera

had not responded to this request.

Mayor Maldonado and her staff have also received

"tipoffs" that PRASA's management instructed employees to close

the water passage keys that supply water to Morovis and to turn

off pumps and power generators at the Morovis facilities in order

to damage Maldonado's image as Mayor. Although Mayor Maldonado

requested that PRASA investigate these allegations, PRASA has not

done so.

B. Procedural History

Mayor Maldonado, the Municipality of Morovis, and

several residents who are subscribers of PRASA sued PRASA, Pagán,

and Rivera in federal court seeking damages under 42 U.S.C. § 1983,

as well as equitable and declaratory relief. Each plaintiff has

- 7 - a valid registered account with PRASA and has paid the required

bond for their account as well as their monthly water service

invoices. The plaintiffs seek to represent a class of up to 28,000

similarly situated subscribers in Morovis. Their purported class

includes "people of old age," people "with diseases," and people

with children. According to the plaintiffs, the defendants have

violated their substantive due process rights under the Fourteenth

Amendment by depriving them of their protected property interest

in water service.

PRASA and Pagán, in her personal capacity, each moved to

dismiss the complaint for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6).3 The district court granted both

motions and dismissed the complaint as to all defendants and all

forms of relief.

The plaintiffs timely appealed.

II. STANDARD OF REVIEW

"We review de novo a district court's decision to grant

a motion to dismiss under Rule 12(b)(6), reversing the dismissal

only if the combined allegations, taken as true . . . state a

plausible, not a merely conceivable, case for relief." Doe, 145

3 The plaintiffs originally sued Rivera in both his official capacity and his personal capacity but later agreed to voluntarily dismiss their personal-capacity claims against him. Because only the official-capacity claims against him remained, Rivera did not file his own motion to dismiss before the district court, separate from PRASA's motion.

- 8 - F.4th at 149 (internal quotation marks omitted) (quoting Lawrence

Gen. Hosp., 90 F.4th at 598). "To determine whether the

plaintiff[s'] allegations are plausible, we 'separate factual

allegations from conclusory ones.'" Id. (quoting Lawrence Gen.

Hosp., 90 F.4th at 598). And, as we previewed above, we "accept

as true all well-pleaded facts alleged in the . . . complaint and

draw all reasonable inferences therefrom in [the plaintiffs']

favor." Id. (quoting Lawrence Gen. Hosp., 90 F.4th at 598).

Although the plaintiffs included a number of claims in

their complaint, on appeal, they pursue only their substantive due

process claim.

III. DISCUSSION

The plaintiffs allege that the defendants deprived them

of their property interest in water service, a property interest

that they contend exists under both Puerto Rico law and their

contracts with PRASA, and thereby violated their substantive due

process rights under the Fourteenth Amendment. The Fourteenth

Amendment prohibits the government from depriving any person of

"life, liberty, or property, without due process of law." U.S.

Const. amend. XIV, § 1. Due process has both procedural and

substantive components. The right to procedural due process

"guarantee[s] . . . that, before a significant deprivation of

liberty or property takes place at the state's hands, the affected

individual must be forewarned and afforded an opportunity to be

- 9 - heard at a meaningful time and in a meaningful manner."

González-Droz v. González-Colón, 660 F.3d 1, 13 (1st Cir. 2011)

(internal quotation marks omitted) (quoting Amsden v. Moran, 904

F.2d 748, 753 (1st Cir. 1990)). The right to substantive due

process "safeguards individuals against certain offensive

government actions, notwithstanding that facially fair procedures

are used to implement them." DePoutot v. Raffaelly, 424 F.3d 112,

118 (1st Cir. 2005) (citing Daniels v. Williams, 474 U.S. 327, 331

(1986)).

To analyze the plaintiffs' substantive due process

claim, we begin by asking "whether the challenged government

conduct 'is legislative or executive in nature'" because

"[c]hallenges to executive versus legislative conduct garner

different judicial examinations." Foote v. Ludlow Sch. Comm., 128

F.4th 336, 345-46 (1st Cir. 2025) (quoting DePoutot, 424 F.3d at

118). The line between executive and legislative conduct "is not

always well-defined" and "some government conduct can even

straddle the line." Id. at 345. Ordinarily, however, statutes

and generally applicable governmental policies, even when those

policies are made by executive agencies, qualify as legislative

conduct. See id. Executive conduct, by contrast, typically

involves "individual acts of government officials . . . untethered

from any policy." Id.

- 10 - Just like the district court, we understand the

challenged conduct here to be executive action, and the parties do

not argue otherwise. Although the plaintiffs allege that "PRASA

has a pattern, custom, policy[,] or practice of leaving its

[Morovis] subscribers . . . without water," they primarily

attribute the water crisis to the conduct of individual PRASA

officers who are aware of the crisis yet, repeatedly, have failed

to take steps within their power to "fix the problem."4 Because

the plaintiffs challenge executive action, they must establish

that "they suffered the deprivation of an established life,

liberty, or property interest, and that such deprivation occurred

through governmental action that shocks the conscience." Clark v.

Boscher, 514 F.3d 107, 112 (1st Cir. 2008).

The district court held that the plaintiffs' substantive

due process claim failed because, it concluded, the plaintiffs did

not plausibly allege conduct that shocks the conscience. See

Maldonado-Gonzalez v. P.R. Aqueduct & Sewer Auth., No. 22-cv-1250,

2023 WL 2601940, at *6 (D.P.R. Mar. 22, 2023). It then also held

that the plaintiffs' contracts with PRASA could not be the basis

of their substantive due process claim. See id. at *10.5 But the

4 We describe this conduct in more detail below, infra Section III.A.

We affirm this holding, given the plaintiffs' failure to 5

develop an argument for concluding otherwise. See United States

- 11 - court left open the question of whether Puerto Rico law gives rise

to a property interest in adequate water service for paying

subscribers for substantive due process purposes. See id. at *9

("Neither party cites authority addressing whether PRASA's

enabling act or its regulations give rise to a property interest

for the purpose of substantive due process and I decline to make

that determination here."). Finally, because it found that the

plaintiffs failed to state any legally valid claim, the court did

not reach the defendants' alternative bases for dismissal, such as

the defendants' various immunity arguments. See id. at *4.

After de novo review, we hold that the district court

erred in concluding that the plaintiffs did not plausibly allege

conscience-shocking conduct, including because it failed to

account for the possibility that deliberate indifference could

shock the conscience. Because the district court did not resolve

whether the plaintiffs have a protected property interest in

adequate water service for the purposes of a substantive due

process claim, we decline to make that determination in the first

instance. Thus, we vacate the district court's ruling dismissing

the plaintiffs' substantive due process claim and remand for

further proceedings.

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

- 12 - A. Conscience-Shocking Conduct

"If executive conduct does not shock the conscience, the

plaintiff has failed to state a constitutional violation and the

inquiry ends." Foote, 128 F.4th at 346. The district court

concluded as much in its ruling. See Maldonado-Gonzalez, 2023 WL

2601940, at *6.

The plaintiffs argue, however, that the district court

erred in its legal analysis of the shocks-the-conscience standard.

First, they claim that the court failed to view their factual

allegations in the light most favorable to them in concluding that

those allegations "paint a picture of mere negligence, and not of

conscience-shocking behavior." Second, they contend that the

court put too much emphasis on whether they had alleged conduct

that was physically intrusive. As we will explain, we agree with

the plaintiffs that the district court erred under our modern

substantive due process precedent and that they have plausibly

alleged conscience-shocking conduct.

Only behavior that is "so egregious, [and] so

outrageous . . . may fairly be said to shock the contemporary

conscience." Foote, 128 F.4th at 346 (quoting González-Fuentes v.

Molina, 607 F.3d 864, 880 (1st Cir. 2010)). That is because the

shocks-the-conscience requirement serves to separate

constitutional substantive due process claims focused on executive

- 13 - action from tort law. See Cnty. of Sacramento v. Lewis, 523 U.S.

833, 848 (1998).

To determine whether an official's action rises to a

conscience-shocking level, it is helpful to consider a continuum

of government conduct, "the bookends of which present the easier

cases." Guertin v. Michigan, 912 F.3d 907, 923 (6th Cir. 2019)

(cleaned up) (quoting Range v. Douglas, 763 F.3d 573, 590 (6th

Cir. 2014)). On one end of the continuum is negligent conduct,

which is "categorically beneath the threshold of constitutional

due process." Lewis, 523 U.S. at 849. By contrast, "conduct

intended to injure in some way unjustifiable by any government

interest is the sort of official action most likely to rise to the

conscience-shocking level." Id. In the middle is government

conduct that is "more than negligence but 'less than intentional

conduct, such as recklessness or gross negligence.'" Id. (quoting

Daniels, 474 U.S. at 334 n.3). Such cases represent "closer

calls." Id.

Whether government action in this middle range shocks

the conscience is "necessarily fact-specific and unique to the

particular circumstances." Doucette v. Jacobs, 106 F.4th 156, 172

(1st Cir. 2024) (quoting González-Fuentes, 607 F.3d at 881)

(evaluating whether government officials had been deliberately

indifferent to a child's medical needs in the school context in

determining whether plaintiffs had created a dispute of material

- 14 - fact over whether the challenged conduct shocked the conscience).

For example, "[w]here government officials must act in haste,"

only actions intended to cause harm will shock the conscience.

Id. (quoting Coyne v. Cronin, 386 F.3d 280, 288 (1st Cir. 2004)).

But "[i]n situations where actors have an opportunity to reflect

and make reasoned and rational decisions, deliberately indifferent

behavior may suffice to 'shock the conscience.'" Rivera v. Rhode

Island, 402 F.3d 27, 36 (1st Cir. 2005) (citing Lewis, 523 U.S. at

851-52).

We begin with the plaintiffs' argument that the district

court incorrectly concluded that they had alleged only negligent

conduct as opposed to deliberate indifference. "To establish

deliberate indifference, the plaintiff must show 'at a bare

minimum,' that the defendant 'actually knew of a substantial risk

of serious harm' but 'disregarded that risk.'" Doucette, 106 F.4th

at 172 (quoting Coyne, 386 F.3d at 288) (concluding that plaintiffs

had failed to show genuine dispute of material fact about whether

school officials had acted with deliberate indifference); see also

Guertin, 912 F.3d at 924 ("[T]he type of harm, the level of risk

of the harm occurring, and the time available to consider the risk

of harm are all necessary factors in determining whether an

official was deliberately indifferent." (quoting Range, 763 F.3d

at 591)). As the district court rightly noted, because the alleged

conduct here took place over several years, the defendants "had

- 15 - significant time for deliberation." Maldonado-Gonzalez, 2023 WL

Taking the allegations in the complaint as true and

drawing all reasonable inferences in the plaintiffs' favor, we

conclude that they plausibly alleged that the defendants knew of

the water crisis and yet failed to act. The plaintiffs alleged

that they had no clean, potable water on most days for over four

years, despite raising the alarm to the defendants about the water

crisis on an almost daily basis. According to the plaintiffs, at

times, all that PRASA needed to do to restore water service to

Morovis was to turn on the pumps and/or power generators at PRASA's

Morovis facilities. And, on at least one occasion, there was no

water service because someone had affirmatively turned off the

generator and pumps.6 Despite the years-long water crisis, the

6 We note that the plaintiffs have waived any claim based on political retaliation. As a reminder, they alleged that PRASA's management instructed employees to shut off water to Morovis in order to sabotage Mayor Maldonado. The district court concluded that although this allegation was troubling, it could not be the basis of a substantive due process claim because a claim of political retaliation must be brought under the First Amendment. See Maldonado-Gonzalez, 2023 WL 2601940, at *5. The plaintiffs did not challenge this ruling on appeal nor did they dispute Pagán's assertion that they waived any such challenge. Given the plaintiffs' waiver, we express no opinion on whether the alleged sabotage could be the basis of a substantive due process claim. See Redondo-Borges v. U.S. Dep't of Hous. & Urb. Dev., 421 F.3d 1, 6 (1st Cir. 2005). That said, because we "assume the truth of all well-pleaded facts" in the complaint, we consider the allegation that PRASA employees intentionally turned off water service to Morovis in our deliberate indifference analysis. Id. at 5 (quoting In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003)).

- 16 - defendants made no effort to implement any long-term solutions and

provided water to the plaintiffs through alternative sources only

"a few times." Further, Rivera failed even to investigate who had

turned off the power generator and pumps at the Morovis facilities

in February 2022.

In addition to plausibly alleging that the defendants

were aware of the water crisis, the plaintiffs also plausibly

alleged that the defendants knew of the substantial risks of harm

that could follow from a sustained lack of water and disregarded

those risks. The risks posed by long-term deprivation of potable

water are severe and indisputable: water is essential to life,

health, and sanitation. See Memphis Light, Gas & Water Div. v.

Craft, 436 U.S. 1, 18 (1978) ("Utility service is a necessity of

modern life; indeed, the discontinuance of water or heating for

even short periods of time may threaten health and safety.").

Indeed, it is universally recognized that water and sanitation are

critical to human life and health. See G.A. Res. 70/169, The Human

Rights to Safe Drinking Water and Sanitation (Dec. 17, 2015)

(recognizing, in a resolution adopted by the United Nations General

Assembly, human rights to water and sanitation because both are

essential to health, life, and human dignity); see also Comm. on

Econ., Soc. & Cultural Rts., General Comment No. 15, U.N. Doc.

E/2003/22, annex IV (2002) (recognizing a human right to water

based in articles 11 and 12 of the International Covenant on

- 17 - Economic, Social, and Cultural Rights); Comm. on Econ., Soc. &

Cultural Rts., Rep. on the Forty-Fourth and Forty-Fifth Sessions,

U.N. Doc. E/2011/22, supp. no. 2, annex VI (2011) (similarly

recognizing a human right to sanitation). The risk of harm to the

plaintiffs is enhanced by the fact that PRASA is the only provider

of water service in Puerto Rico. And that risk is particularly

severe for the most vulnerable members of the alleged class,

including the elderly, people with diseases, and those with

children.

In light of the defendants' knowledge of the water crisis

in Morovis and the obvious and severe consequences to the

plaintiffs, their failure to act over several years is enough to

support a claim of conduct that is "so egregious[] [and]

outrageous[] that it may fairly be said to shock the contemporary

conscience." Foote, 128 F.4th at 346 (quoting González-Fuentes,

607 F.3d at 880). We have previously applied the deliberate

indifference framework to evaluate whether government conduct

shocks the conscience, even outside of a custodial setting. See

Doucette, 106 F.4th at 173-74. And we have previously stated that

"[i]t is the effect on the person from the deprivation of the

interest in . . . property which may be 'shocking to the

conscience,' and perhaps beyond the constitutional pale."

Maldonado v. Fontanes, 568 F.3d 263, 272-73 (1st Cir. 2009). The

harmful effects of deliberate indifference to an entire

- 18 - community's lack of clean, potable water for years plausibly

qualify as "beyond the pale."

Of course, should this case proceed to discovery, the

facts may show that the allegation of inaction by the defendants

is untrue or that, in context, the facts amount to at most

negligent mismanagement. But, at this stage of the litigation, we

conclude that the plaintiffs' allegations support a reasonable

inference that the defendants were deliberately indifferent to the

risks to the plaintiffs' lives and health. See Guertin, 912 F.3d

at 927 (holding that the defendant's decision to turn down

opportunities to reconnect the city's water supply to a safe source

"after he knew of the significant problems with the [city's]

water . . . plausibly allege[d] deliberate indifference").

To the extent the district court concluded that the

alleged conduct was negligent and thus "categorically insufficient

to shock the conscience," it failed to draw all reasonable

inferences in the plaintiffs' favor. Maldonado-Gonzalez, 2023 WL

2601940, at *6. And, to the extent it concluded that only action

"intended to injure in some way unjustifiable by any government

interest" could qualify as conscience-shocking, the district court

misstated the applicable law. Id. (emphasis added) (quoting Lewis,

523 U.S. at 849). As we set out here, we have recognized that

less than intentional conduct (i.e., deliberate indifference) may,

in context, shock the conscience, even outside a custodial setting.

- 19 - See, e.g., Rivera, 402 F.3d at 36; see also Lewis, 523 U.S. at

851, 853.

To be clear, we do not suggest that any allegation of

interruption in water or utility service would amount to

conscience-shocking conduct. Instead, we emphasize that the

shocks-the-conscience inquiry is fact intensive. See Pagán v.

Calderón, 448 F.3d 16, 32 (1st Cir. 2006). Here, the plaintiffs

alleged that the defendants took no action over several years to

address a municipality-wide water crisis that left residents

without drinkable water, despite near daily outreach by the

municipality's residents and leaders and numerous proposed

solutions for either mitigating or resolving the crisis.7 And,

they alleged that Rivera failed to investigate whether a PRASA

employee deliberately turned off the power generator and pumps in

the Morovis facilities despite credible evidence that someone had

done so. "When such extended opportunities to do better are teamed

with protracted failure even to care, indifference is truly

shocking." Lewis, 523 U.S. at 853; cf. Doucette, 106 F.4th at

Despite Pagán's argument to the contrary, the allegation 7

that Pagán told the plaintiffs that "prior to considering [connecting Morovis to the superaqueduct], all other alternatives to try to fix the [water service problem] have to be exhausted" does not cut against finding deliberate indifference. Viewed in the context of the complaint, which alleged that Pagán made no effort to exhaust any alternative, this allegation supports the plaintiffs' contention that Pagán was indifferent to the serious risks posed by inaction.

- 20 - 172-75 (reasoning that school administrators were not deliberately

indifferent to a student's risk of seizure because the school was

consistently prompt in correcting issues and addressing his

parents' safety concerns).

Next, we address whether the plaintiffs had to identify

"physically intrusive" conduct to plausibly allege actions that

shock the conscience. See Maldonado-Gonzalez, 2023 WL 2601940, at

*6. While acknowledging that there has been inconsistency in our

older precedent on this issue, we conclude that the district court

erred in its analysis on this point.

Our case law does not require that conduct be "highly

physically intrusive" to shock the conscience. Id. at *5.

Instead, we have suggested that conduct such as requiring bribes,

making threats, or acting on racial animus could amount to

government action that shocks the conscience. See Clark, 514 F.3d

at 113; Mongeau v. City of Marlborough, 492 F.3d 14, 19-20 (1st

Cir. 2007) (citing Nestor Colón Medina & Sucesores, Inc. v.

Custodio, 964 F.2d 32, 47 (1st Cir. 1992)). At the same time, we

have made clear that government officials who simply make wrong

decisions or act in excess of statutory authority do not engage in

conduct that "crosse[s] the constitutional threshold." Amsden,

904 F.2d at 757 (holding that a state's imposition of a condition

on a land surveyor's license did not constitute a substantive due

process violation solely because the condition was unlawful under

- 21 - state law). Rather, to shock the conscience, government conduct

must "run counter to 'the concept of ordered liberty'" or

"transgress[]" "some basic and fundamental principle." Id. at 754

(quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). Thus,

depending on the facts, non-physical conduct could qualify as

conscience-shocking.8

In conducting its substantive due process analysis and

contrasting the alleged conduct here with the alleged conduct in

Guertin, the district court focused on the issue of physical

intrusion. As the court set out, Guertin addressed the Flint water

8In reaching its ruling, the district court relied on our decision in Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 622 (1st Cir. 2000). See Maldonado-Gonzalez, 2023 WL 2601940, at *5. We pause to note that the theory for the substantive due process claim alleged in that case is no longer legally valid. At the time, we allowed a plaintiff to establish a substantive due process violation without showing any deprivation of liberty or property if they could demonstrate that the conduct at issue shocked the conscience. See Cruz-Erazo, 212 F.3d at 622. Applying that standard in Cruz-Erazo, we explained that "the cases in which we have found governmental conduct to shock the conscience have often involved state action that was highly physically intrusive," although we did not foreclose the possibility that non-physical conduct could shock the conscience. Id. But under modern substantive due process jurisprudence, plaintiffs bringing substantive due process claims based on executive action "must establish both that [the official's] conduct was conscience shocking and that it violated [the plaintiff's property or liberty interest]." Wadsworth v. Nguyen, 129 F.4th 38, 52 (1st Cir. 2025). And, as we have explained, conduct need not be physically intrusive to meet the first requirement.

- 22 - crisis. See 912 F.3d at 915.9 In that case, the U.S. Court of

Appeals for the Sixth Circuit concluded that the plaintiffs had

plausibly alleged a Fourteenth Amendment Due Process violation of

their right to bodily integrity because the alleged conduct

resulted in the plaintiffs ingesting contaminated water. See id.

at 932. In distinguishing Guertin, the district court reasoned:

The Guertin court found a substantive due process violation because [the alleged conduct] amounted to a forced, involuntary invasion of bodily integrity. Here, no such invasion occurred because PRASA, instead of supplying contaminated water, allegedly has failed to provide any water at all. And, as mentioned, the Guertin court specifically distinguished the failure to provide water from the provision of contaminated water stating that the former did not invade bodily integrity and thus did not violate substantive due process.

Maldonado-Gonzalez, 2023 WL 2601940, at *6 (citations omitted).

The district court's analysis merged the

shocks-the-conscience inquiry with the deprivation inquiry,

although they are two separate requirements under the substantive

9 In short, the Flint water crisis involved the decision of "public officials [to] switch[] the City of Flint municipal water supply from the Detroit Water and Sewerage Department (DWSD) to the Flint River to be processed by an outdated and previously mothballed water treatment plant" and to "dispens[e] drinking water to its customers without adding chemicals to counter the river water's known corrosivity." Guertin, 912 F.3d at 915. "[W]ithout corrosion-control treatment, lead leached out of the lead-based service lines at alarming rates and found its way to the homes of Flint's residents," resulting in harmful and severe long-term health effects. Id.

- 23 - due process test for executive action.10 The analysis of whether

"the failure to provide water" could "invade bodily integrity"

would be relevant only if the plaintiffs here had brought a

substantive due process claim based on the violation of their right

to bodily integrity -- but they did not. Thus, even if long-term

deprivation of water could not plausibly be viewed as physically

intrusive, that fact alone should not have been dispositive to the

shocks-the-conscience analysis.

Finally, we turn to several waiver arguments raised by

Pagán and reject them. Pagán contends that the plaintiffs waived

any challenge to the district court's ruling dismissing the claims

against her by failing to develop an argument on appeal that either

her conduct or the conduct of the defendants generally amounted to

10 We respectfully disagree with the concurring opinion that we should avoid the overarching issue of whether the plaintiffs have plausibly alleged conduct that shocks the conscience and decide only the narrower issue of whether the plaintiffs have plausibly alleged deliberately indifferent conduct. Notably, PRASA agreed at oral argument that the plaintiffs squarely put before us the question of whether the conduct alleged was conscience-shocking and even urged us to decide the case on that ground, instead of resolving whether the plaintiffs had alleged a protected property interest. Thus, it is appropriate for us to decide the overarching issue on appeal. In reaching our decision, however, we do not tackle other issues that were never raised, either to the district court or to us, including any argument based on Lewis related to the potential role of historical analysis in the shocks-the-conscience inquiry as opposed to the deprivation-of-right inquiry. We note that our current precedent does not require any such historical analysis, nor did PRASA urge us to modify our precedent by incorporating such an analysis, even though Lewis was decided nearly thirty years ago. Thus, we leave that question for another day.

- 24 - deliberate indifference. But in their appeal brief, the plaintiffs

pointed us to allegations in their complaint that Pagán

specifically knew of the water crisis and delayed taking any

action. And their argument as to why the alleged conduct was

conscience-shocking -- i.e., that the lack of water is connected

to "essential need[s]" -- applies with equal force across all the

defendants. Thus, we conclude the plaintiffs did not waive their

substantive due process claim against Pagán.

Similarly, we cannot agree with Pagán's broader

assertion that the plaintiffs failed to brief, "and, indeed [did]

not even mention" deliberate indifference on appeal. The

plaintiffs cited the applicable standard for deliberate

indifference, stating that "[i]n situations where actors have an

opportunity to reflect and make reasoned and rational decisions,

deliberately indifferent behavior may suffice to 'shock the

conscience.'" (Quoting Rivera, 402 F.3d at 36.) And, relying on

a case involving allegations that the deprivation of sufficient

water to prisoners constituted deliberate indifference that

shocked the conscience, the plaintiffs argued that the "hygiene

issues associated [with] the lack of water" could amount to a

constitutional violation. (Citing Hardeman v. Cnty. of Lake, No.

17-cv-8729, 2018 WL 3533254 (N.D. Ill. July 23, 2018), aff'd sub

nom., Hardeman v. Curran, 933 F.3d 816 (7th Cir. 2019).) Of

course, the plaintiffs at several points also made the more general

- 25 - argument that the alleged conduct was so egregious as to shock the

conscience, and they could have done even more to apply our

deliberate indifference case law to the facts here. Still, the

plaintiffs' claim that the defendants' conduct shocked the

conscience is clearly before us, and thus we must apply the correct

legal standard in resolving that claim. See Foote, 128 F.4th at

347 n.13.

Because we conclude that the district court erred in its

shocks-the-conscience analysis, we vacate its ruling dismissing

the plaintiffs' substantive due process claim. In doing so, we do

not reach issues unaddressed by the district court. Thus, we leave

the second inquiry required to evaluate the plaintiffs'

substantive due process claim -- whether the plaintiffs were

deprived of a protected property interest -- to be decided by the

district court in the first instance, with the benefit of focused

argumentation on this potentially dispositive issue.11

11As a reminder, the plaintiffs argue that Puerto Rico law creates a constitutionally protected property interest in adequate water service for paying subscribers, relying primarily on procedural due process cases. In response, the defendants argue that Puerto Rico law does not create a property interest for substantive due process purposes, and they urge this defense as an alternative ground for affirming the district court's judgment dismissing the complaint. As the plaintiffs acknowledge, substantive due process does not "embrace all state-created property interests entitled to procedural due process protection." Santiago de Castro v. Morales Medina, 943 F.2d 129, 131 (1st Cir. 1991). Accordingly, procedural due process cases may be relevant to whether a property interest exists under state law, but they are not dispositive of whether that property interest creates

- 26 - B. Qualified Immunity

Pagán urges us to affirm the district court's ruling

dismissing all claims against her in her personal capacity on other

grounds, arguing that she is entitled to qualified immunity. The

district court did not reach Pagán's qualified immunity defense

because it ruled that the plaintiffs had failed to state a claim

under Rule 12(b)(6). See Maldonado-Gonzalez, 2023 WL 2601940, at

*4. We decline to resolve Pagán's qualified immunity claim in the

first instance and remand to the district court to evaluate her

arguments.

IV. CONCLUSION

For all these reasons, we vacate the district court's

ruling dismissing the plaintiffs' substantive due process claim

and remand to the district court for further proceedings consistent

with this opinion. The parties shall bear their own costs.

- Concurring/Dissenting Opinion Follows -

substantive due process rights. See Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 6 (1st Cir. 2000) ("The Constitution does not create property interests; instead, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .'" (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972))); see also Town of Castle Rock v. Gonzales, 545 U.S. 748, 757 (2005) ("Although the underlying substantive interest is created by an independent source such as state law, federal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause." (emphasis omitted) (internal quotation marks omitted) (quoting Memphis Light, Gas, & Water Div., 436 U.S. at 9)). We leave the district court to address the state law property interest argument on remand, if it reaches this issue.

- 27 - BARRON, Chief Judge, concurring in part and dissenting

in part. I agree that the plaintiffs have plausibly alleged that

the defendants were deliberately indifferent rather than merely

negligent in failing to respond to the persistent lack of water

service in their community. So, I agree that the District Court

erred when it dismissed the plaintiffs' substantive due process

claim on the ground that the conduct alleged in the complaint

amounted to mere negligence. I write separately to explain why I

would not go on to decide that the plaintiffs, by plausibly

alleging deliberate indifference, have also plausibly alleged

conduct that shocks the conscience. See Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998) ("[I]n a [substantive] due

process challenge to executive action, the threshold question is

whether the behavior of the governmental officer is so egregious,

so outrageous, that it may fairly be said to shock the contemporary

conscience.").

In general, it is prudent to avoid unnecessarily

resolving novel constitutional questions. Nw. Austin Mun. Util.

Dist. No. One v. Holder, 557 U.S. 193, 197 (2009). In my view,

the question of whether this alleged deliberate indifference is

conscience-shocking is both novel and unnecessary to decide at

present.

The question arises in a context that differs from the

paradigmatic one for deeming deliberate indifference to be

- 28 - conscience-shocking. See González-Fuentes v. Molina, 607 F.3d

864, 883 (1st Cir. 2010) ("The Supreme Court's hypothetical

archetype for a successful deliberate indifference claim is an

individual taken into state custody who is then denied basic human

needs . . . ."). It also arises in a context that raises issues

of first impression about the degree to which the federal

constitutional guarantee of due process requires courts to police

failures to provide municipal services.

We also could easily vacate the order of dismissal on

the ground that the complaint alleged more than mere negligence.

We thus could easily leave the question of whether the alleged

deliberate indifference is conscience-shocking to the District

Court to address in the first instance.

This wait-and-see approach seems especially prudent to

me because it is not clear that, if we were to adopt it, the

question now before us would ever need to be addressed at all.

The plaintiffs concede that they must allege a protected interest

in property for their substantive due process claim to survive a

motion to dismiss. Thus, they do not dispute that, unless they

can do so, the constitutional question at hand will have no bearing

on whether the complaint can survive the motion.

In any event, if a follow-on appeal were to present this

same question, we might have then what we now lack -- some

meaningful assistance in thinking through whether the deliberate

- 29 - indifference alleged is conscience-shocking. That assistance

would be especially welcome, given that a proper determination of

whether the alleged deliberate indifference shocks the conscience

may depend in this context on a historical inquiry that, needless

to say, has not yet been undertaken by either the parties or the

District Court. Cf. Lewis, 523 U.S. at 847 n.8 (explaining that

the "judgment" of "whether the behavior of the governmental officer

is so egregious, so outrageous, that it may fairly be said to shock

the contemporary conscience . . . . may be informed by a history

of liberty protection"); see also Hawkins v. Freeman, 195 F.3d

732, 738 n.1 (4th Cir. 1999) (noting that "[w]hat is not perfectly

clear [from Lewis] . . . is the extent to which this threshold

[shocks-the-conscience] test is to be applied independently of any

consideration of what relevant history, tradition and precedent

may have to say about the asserted right and its protection," and

ultimately "assum[ing] that courts seeking faithfully to apply the

Lewis methodology in executive act cases properly may look to

history for whatever it may reveal about traditional executive

practices and judicial responses in comparable situations by way

of establishing context for assessing the conduct at issue").

To be sure, the majority appears to hold that the

appellees have waived any such history-based argument. But I would

leave it for the District Court to take the first pass at

addressing who may have waived what in that regard, just as I would

- 30 - leave it for the District Court to do so when it comes to

determining whether the alleged deliberate indifference shocks the

conscience.

- 31 -