Full opinion text
OPINION AND ORDER GARCIA-GREGORY, District Judge. The original complaint in this case was filed on June 28, 2006 (Docket No. 1). Amended Complaints were filed on July 10, 2006, on November 14, 2006 and on January 23, 2007. (Docket Nos. 3, 23, 45). In the Second Amended Complaint (of January 23, 2007), plaintiffs Emilio Orria-Medina, Emilio R. Orria-Cruz, Agnes L. Repullo, Iliana Rivera Reyes, Violeta Albino, Alba Toro, Aileen G. Curas-Negron, Jose J. Oeasio-Rodriguez, Jose M. Nieves-Rios, Wanda D. Diaz-Gomez and Vanessa Delgado-Rodríguez (collectively “plaintiffs”) seek compensation for economic, emotional and moral damages and injunc-tive relief from certain actions allegedly performed by defendants (1) the Metropolitan Bus Authority (“MBA”); (2) the Puer-to Rico Department of Transportation and Public Works (“DTPW”); (3) the Commonwealth of Puerto Rico (“Commonwealth”); (4) Mr. Gabriel Alcaraz-Emanu-elli (“Alcaraz-Emanuelli”), in his official capacity as Secretary of the DTPW and in his personal capacity, his spouse “X” and the conjugal legal partnership constituted between them; (5) Ms. Adaline Torres-Santiago (“Torres-Santiago”), in her personal capacity only; (6) Mr. Evans Gonzalez-Baker (“Gonzalez-Baker”) in his official capacity as President of the MBA and in his personal capacity, his spouse “Y” and the conjugal legal partnership constituted between them; (7) Mr. Manuel Mira-bal (“Mirabal”) in his official capacity as Administrator of the “Llame y Viaje” (“Call & Ride”) program of the MBA and in his personal capacity, his spouse “Z” and the conjugal legal partnership constituted between them; and (8) John Doe, Jane Roe, and insurance companies A, B, C, D & E (collectively “defendants”), under (1) the First, Fifth and/or Fourteenth Amendments to the U.S. Constitution, (2) Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12165, (3) Section 504 of the Rehabilitation Act, 29 U.S.C.A. § 794, (4) the Civil Rights Remedies Equalization Act, 42 U.S.C. § 2000d-7 (“CRREA”), (5) 42 U.S.C. §§ 1981 and/or 1981a, 1983, 1985 and 1988 (“Sections 1981, 1981a, 1983, 1985 and 1988” respectively) and (6) several provisions of the Code of Federal Regulations. Also, plaintiffs invoke the Court’s supplemental jurisdiction alleging violations to §§ 1, 4, 6-8 and 16 of Article II of the Constitution of the Commonwealth of Puerto Rico; Act No. 238 of August 31, 2004 (Bill of Rights for Persons with Disabilities), P.R. Laws Ann. tit. 1, §§ 512(a)-512(k); Act No. 170 of August 12, 1988 (Uniform Administrative Procedures Act), P.R. Laws Ann. tit. 3, §§ 2101-2201 (“UAPA”); Act No. 21 of May 31, 1985 (Uniform Rate Revision and Modification Act), P.R. Laws Ann. tit. 27, §§ 261-261(e) (“URRMA”); and Art. 1802 of the Puerto Rico Civil Code (the Commonwealth’s general tort statute), P.R. Civil Code, P.R. Laws Ann. tit. 31, § 3151. On October 2, 2006, the MBA, González-Baker, Mirabal and the Commonwealth filed a Motion to Dismiss under Fed. R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). (Docket No. 9). On October 13, 2006, the DTPW and Alcaraz-Emanuelli requested leave to join the Motion to Dismiss and the Court granted said request. (Docket Nos. 18, 19). On December 13, 2006, plaintiffs filed a “Response in Opposition to Motion to Dismiss.” (Docket No. 33). On January 2, 2007, Commonwealth, the MBA, Gonzalez-Baker and Mirabal filed a motion replying to the Opposition to Motion to Dismiss. (Docket No. 36). On April 4, 2007, the MBA filed another Motion to Dismiss the complaint under Fed.R.Civ.P. 12(b)(6). (Docket Nos. 58, 59). On April 30, 2007, plaintiffs responded in opposition to this Motion to Dismiss. (Docket No. 73). The MBA replied to plaintiffs’ response on May 7, 2007. (Docket No. 76). On April 4, 2007, plaintiffs filed a Motion Requesting Temporary Restraining Order and/or Preliminary Injunction. (Docket No. 61). On April 5, 2007, the Court denied plaintiffs’ motion for temporary restraining order and referred the motion for preliminary injunction to Magistrate-Judge Marcos Lopez. (Docket No. 62). The Court also referred to the Magistrate-Judge all pending motions in this case for Report and Recommendation, where appropriate. On May 16, 2007, the Magistrate-Judge issued his Report and Recommendation on the two Motions to Dismiss (Docket Nos. 9,18, 58, 59). On May 31, 2007, the MBA filed objections to the Report and Recommendation (Docket No. 80) and so did plaintiffs (Docket No. 81). For the reasons discussed below, the Court ADOPTS in PART and REJECTS in PART the Magistrate-Judge’s Report and Recommendation. FACTUAL BACKGROUND This suit involves the Call and Ride program administered by the MBA. The MBA is a public corporation and instrumentality of the Commonwealth of Puerto Rico created by the Metropolitan Bus Authority Act, Act No. 5 of May 11, 1959, as amended. P.R. Laws Ann. tit. 23, §§ 601-620 (“MBA’s enabling act”). The MBA’s primary goal is to provide, develop, maintain and administer a public mass transportation system to residents and visitors of the San Juan Metropolitan area. P.R. Laws Ann. tit. 23, § 606. As part of its services, the MBA created the Call and Ride program to provide paratransit transportation services to persons with physical and/or mental disabilities that are not able to benefit from the MBA’s regular services. Users must be subscribed to the Call and Ride program and make reservations in order to receive transportation services from said program. All plaintiffs in this case claim to be participants and regular users of the Call and Ride program. According to the Second Amended Complaint, until June 2005, the rates for the Call and Ride services had been held constant at around $0.50 per trip per customer, up to a maximum of $1.50. These rates were twice the rates paid by users of the “regular” bus service. However, on or around June 2005, the MBA determined to revise its tariff schedule for all its services, including the Call and Ride program. The MBA published advertisements announcing the holding of public hearings with the purpose of revising the MBA’s tariff system, without making a specific indication that the rates for the Call and Ride program were going to be revised as well. In particular, plaintiffs claim that the MBA did not specifically inform the users of the Call and Ride program that it was considering raising the rates, and that a reasonable person would have thought, based on the announcements, that only the rates for the MBA’s regular routes, not the Call and Ride program’s rates, would be revised. These actions, plaintiffs assert, constitute a violation of the procedures set forth by 49 C.F.R. § 37.137(c), the UAPA, the URRMA and the Bill of Rights for Persons with Disabilities, inasmuch the notices of the public hearings on the proposed rate increase were not specific enough and did not allow those affected by the increase to become aware that any opposition to the raise had to be presented at the hearings. On November 10, 2005, defendant Torres-Santiago, the MBA’s then-president, mailed a letter to the users of the Call and Ride program informing that on November 16, 2005, the rates for the program would be increased. Plaintiffs claim that this notification was defective, as any change in the program has to be notified no less than 10 days before the scheduled date of implementation of such change and therefore, even if the rate increase had been properly authorized, it could not become effective until November 20, 2005, at the earliest. After users of the Call and Ride program became aware of the proposed increase, they began to publicly complain about the decision. As a result of said complaints, the Puerto Rico House of Representatives’ Committee on Consumer Affairs (“Committee”) decided to hold public hearings between mid-December 2005 and February 2006 on how the rates had been increased and on whether the proceedings for raising the rates were conducted in compliance with the law. The Committee scheduled hearings for December 7, 2005, and its chairman, Representative Jorge Navarro-Suarez, publicly announced the holding of hearings to investigate the matter. Several users of the Call and Ride program, including plaintiff Emilio Orria-Medina, upon learning of the hearing, called to make reservations to be transported to the Capitol building in San Juan to participate in the hearings, instead of their usual routes. The reservations were entered in the system normally. However, around December 6, 2005, Torres-Santiago became aware that many users of the program wanted to attend the hearings held by the Committee to complain about the rate increase, as well as about other problems and alleged abuses. Plaintiffs assert that Torres-Santiago became enraged at the prospect of clients of the Call and Ride program complaining. Furthermore, plaintiffs allege that Torres-Santiago was well aware of who these clients were and what they would complain about since she had personally met with some of them. Plaintiffs not only wanted to complain about the rate increase, but also about the continuous mistreatment they are subjected to, including rude comments by bus drivers, bus drivers of the regular service who do not want to activate ramps for users who need them to enter the buses, and other types of verbal and psychological abuse. Plaintiffs claim that in order to minimize criticism of the Call and Ride program and avoid plaintiffs’ participation in the hearings, Torres-Santiago pressured the then-director of the program, Mrs. Maria Cordero-Rodríguez, to make those reservations “disappear.” Allegedly, Torres-Santiago specifically indicated that she did not want those customers to attend the hearing to express their complaints. Torres-Santiago allegedly told Ms. Cordero-Rodríguez something like “these [people] want to speak badly about us and they expect us to transport them there.” Plaintiffs also state that defendant Mirabal, who was the administrator of the Call and Ride program, actively participated in this scheme. Plaintiffs claim that Torres-Santiago’s actions constitute an infringement of their First Amendment rights and a direct violation to 49 C.F.R. § 31.131(d), which prohibits the imposition of restrictions or priorities based on the purpose of the trip. According to the Second Amended Complaint, Torres-Santiago imposed the cancellation of the trips solely because of the purpose of the customers to complain about the program. Plaintiffs further assert that Torres-Santiago invited other users of the Call and Ride program to attend the hearings to testify favorably about the MBA and ordered arrangements to be made to provide them transportation to the hearings. Plaintiffs also allege that Alcaraz-Emanuelli was aware of Torres-Santiago’s scheme and that he did not take any action on the matter until the situation became public. Furthermore, the Second Amended Complaint states that the MBA officials have also diverted buses from the Call and Ride program to official and/or political activities, such as the 2003 and 2004 celebrations of the Commonwealth Constitution. Some buses assigned to the Call and Ride program were used to transport people without physical limitations to those activities, which were held in areas outside the coverage areas of the program. To cover up the illegal use of the buses, plaintiffs claim that the drivers were ordered not to report the use given to the buses on those days. Plaintiffs request through the Second Amended Complaint that the rate increase be declared null and void since it was illegally approved and implemented by the MBA. Plaintiffs also assert that defendants’ actions resulted in “economic, emotional and moral” damages to all plaintiffs. They claim to have experienced “great distress and anxiety, thinking that the defendants can attempt to take advantage of their disadvantaged position to retaliate against them for their vocal criticism of what they genuinely feel are deficiencies in the Call [and] Ride program.” In particular, plaintiffs claim to have suffered dire economic consequences from the rate increase. Therefore, plaintiffs claim to be entitled to reimbursement for the moneys they have been paying and continue paying daily since the allegedly illegal increase went into effect. Plaintiffs estimate this amount “at much more than $100,000.00 per user of the program.” Plaintiffs also request compensation in the amount at least $500,000.00 per user of the program for the moral damages they claim to have suffered, including anxiety, depression, continuous fear, insomnia and post-traumatic stress disorder and damages to their self esteem. Plaintiffs further request punitive damages in the amount of at least $1,000,000.00 per defendant, in light of the “seriousness of the situation, and to set an example so that abuses like this against our most vulnerable citizens don’t happen again.” Additionally, plaintiffs request that in the case of the individual defendants, punitive damages be paid out of their own resources and not from the resources of the people of Puerto Rico. Finally, plaintiffs request the Court to prohibit the MBA (1) from taking reprisals against plaintiffs and the users of the program, and (2) from charging the increased rates until this Court determines if the process for its increase was done in compliance with applicable federal and state laws and regulations. It is also requested that the MBA, its officers, agents, drivers and employees be enjoined (1) from mistreating plaintiffs and (2) from mistreating disabled persons who wish to travel in the “regular” buses and require their assistance. DISCUSSION A. Motion to Dismiss Standard Pursuant to Fed.R.Civ.P. Rule 12(b)(6), under which a defendant may move to dismiss for failure to state a claim upon which relief can be granted, a complaint may not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Brown v. Hot, Sexy, and Safer Prods., Inc., 68 F.3d 525, 530 (1st Cir.1995). The Court accepts all well-pleaded factual allegations as true, and draws all reasonable inferences in plaintiffs favor. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). The Court need not credit, however, “bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like” when evaluating the Complaint’s allegations. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). When opposing a Rule 12(b)(6) motion, “a plaintiff cannot expect a trial court to do his homework for him.” McCoy v. Massachusetts Institute of Tech., 950 F.2d 13, 22 (1st Cir.1991). Plaintiffs are responsible for putting their best foot forward in an effort to present a legal theory that will support their claim. Id. at 23 (citing Correa-Martinez, 903 F.2d at 52). Plaintiffs must set forth “factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery under some actionable theory.” Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). Pursuant to Fed.R.Civ.P. 12(b)(1), a defendant may move to dismiss an action for lack of subject matter jurisdiction. As courts of limited jurisdiction, federal courts have the duty of narrowly construing jurisdictional grants. See e.g., Alicea-Rivera v. SIMED, 12 F.Supp.2d 243, 245 (D.P.R.1998). Since federal courts have limited jurisdiction, the party asserting jurisdiction has the burden of demonstrating the existence of federal jurisdiction. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995); Droz-Serrano v. Caribbean Records Inc., 270 F.Supp.2d 217 (D.P.R.2003). When deciding whether to dismiss a complaint for lack of subject matter jurisdiction, the Court “may consider whatever evidence has been submitted, such as ... depositions and exhibits.” See Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir.1996). Motions brought under Rule 12(b)(1) are subject to the same standard of review for Rule 12(b)(6) motions. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994); Torres Maysonet v. Drillex, S.E., 229 F.Supp.2d 105, 107 (D.P.R.2002). Under Rule 12(b)(6), dismissal is proper “only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory.” Gonzalez-Morales v. Hemandez-Arencibia, 221 F.3d 45, 48 (1st Cir.2000) (quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990)). Under Rule 12(b)(1) dismissal would be proper if the facts alleged reveal a jurisdictional defect not otherwise remediable. B. Standard for Reviewing a Magistrate-Judge’s Report and Recommendation A District Court may, on its own motion, refer a pending motion to a U.S. Magistrate-Judge for a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Local Civ. Rule 72(a). Pursuant to Fed.R.Civ.P. 72(b) and Local Civ. Rule 72(d), the adversely affected party may contest the Magistrate-Judge’s Report and Recommendation by filing written objections “[wjithin ten days of being served” with a copy of the order. See 28 U.S.C. § 636(b)(1). Since both, plaintiffs and defendants have filed timely objections to the Magistrate-Judge’s Report and Recommendation in this case, the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which specific objection is made. See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Lopez v. Chater, 8 F.Supp.2d 152, 154 (D.P.R.1998). C. The MBA’s Objections to the Report and Recommendation The MBA objects to the Magistrate-Judge’s conclusion that it does not enjoy Eleventh Amendment immunity and is therefore not immune from suit in federal court. The Eleventh Amendment of the U.S. Constitution provides that: “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State.” U.S. Const. Amend XI. The Eleventh Amendment bars a suit brought in federal courts for monetary damages against a state, unless the state being sued has waived its immunity or consents to be sued. Moreover, Eleventh Amendment protection extends to the instrumentalities of the state. See Maysonet-Robles v. Cabrero, 323 F.3d 43, 48-49 (1st Cir.2003). As such, the Eleventh Amendment offers a protection that renders states themselves and “arms” of states immune from claims brought in federal courts. Metcalf & Eddy v. Puerto Rico Aqueduct & Sewer Authority, 991 F.2d 935, 939 (1st Cir.1993). The entity asserting immunity bears the burden of showing that it is an arm of the state. Fresenius Medical Care Cardiovascular Res., Inc. v. Puerto Rico and the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1 Cir.2003) citing Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 99 (1st Cir.2002). The question of whether a certain entity is considered an arm of the state for Eleventh Amendment purposes is one of federal law. Fresenius, 322 F.3d at 61 citing Regents of the University of Cal. v. Doe, 519 U.S. 425, 429 n. 9, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997). In Fresenius, the Circuit Court decidedly reshaped its arm-of-state test in light of Supreme Court precedent since Metcalf & Eddy. The arm-of-state analysis is governed by the twin goals of the Eleventh Amendment, as established by the Supreme Court: (1) protection of the state’s treasure and (2) protection of the state’s dignitary interests. Fresenius, 322 F.3d at 61 (citing Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 39-41, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994)). Furthermore, courts are cautioned that “[i]t would be every bit as much an affront to the state’s dignity and fiscal interests were a federal court to find erroneously that an entity was an arm of the state, when the state did not structure the entity to share its sovereignty” since “[t]he consequences of an arm-of-the-state finding are considerable.” Fresenius, 322 F.3d at 63. The test set forth in Fresenius is two-pronged: First, the court must examine whether the state has clearly structured the entity to share its sovereignty, and second, if the structural indicators point in different directions and the first prong cannot be answered in the affirmative, the court must ascertain “the risk that money-damages will be paid from the public treasury” if the entity is found liable, that is, “whether the state has obligated itself to pay the entity’s indebtedness.” Id. at 68. In examining the first prong, the court in Fresenius considered (1) whether the entity’s enabling act and other relevant statutes make the entity an arm of the state, or whether it was structured as a separate entity that can sue and be sued and has a budget independent from the state’s, (2) whether the state has claimed or disclaimed responsibility over the entity’s debts, (3) how the state courts have treated the entity, (4) whether the entity’s functions are governmental in nature, and (5) the degree of control exerted by the state over the entity. Regarding the second prong, if “it is clear that the state treasury is not at risk, then the control exercised by the state over the entity does not entitle the entity to Eleventh Amendment immunity.” Fresenius, 322 F.3d at 65. The Magistrate-Judge determined that the first prong of the Fresenius test proved inconclusive because some factors point towards a structure that is independent of the state and its sovereignty and others point in the opposite direction. However, the Magistrate-Judge found that the second prong of the Fresenius test conclusively points to a finding the MBA is not an arm of the state. The MBA sustains that the first prong of the Fresenius test is met because “the factors pointing toward a structure in which the [MBA] shares the Commonwealth’s sovereignty outweigh the factors pointing toward a structure with certain degree of autonomy.” The MBA listed in its Motion to Dismiss the following factors as pointing toward a structure in which it shares the Commonwealth’s sovereignty: (i) the MBA is required to submit annual financial statements and status reports to the Governor and Legislature; (ii) the MBA is exempt from payment of Commonwealth and municipal taxes, duties and fees; (iii) the MBA is only authorized to deposit its funds in institutions approved by the Commonwealth; (iv) the MBA is ascribed to the DTPW; (v) the MBA does not have a Board of Directors, and reports directly to the Secretary of the DTPW; (vi) the MBA’s powers are vested in and exercised by the Secretary of the DTPW; (vii) the DTPW is the central organization for planning, promoting and coordinating all governmental activities in the field of transportation; (viii) the Secretary of the DTPW has the faculty to adjust the operations of the MBA to the objectives, planning and programming adopted by the DTPW; and (ix) the President and General Manager of the MBA, as well as all the officials participating in the operation policy making and overall management of the MBA are appointed by the Secretary of the DTPW. The factors pointing toward a structure in which the MBA has autonomy are, according to the MBA, contained in the statutory provisions indicating that the Commonwealth is not liable for the MBA’s debts, that it has a legal existence and personality separate from the Commonwealth’s and that it can enter into leases and acquire property on its own. We embark on the analysis of the factors relevant to the first part of the Fre-senius test, turning first to the MBA’s enabling act. The MBA’s enabling act defines the MBA as an entity which “shall, for constitutional purposes, operate as a private enterprise or business.” P.R.Laws Ann. tit. 23, § 602. Furthermore, it creates the MBA as “[a] body corporate and politic constituting a public body and governmental instrumentality of the Commonwealth of Puerto Rico ... to act on its own authority ... [as] a public corporation having legal existence and personality separate and apart from those of the Government and from any of the officers thereof.” Id. § 603. The enabling act also specifically grants the MBA the power to sue and be sued, and to raise its own revenue by charging fees for its services, borrowing money and issuing bonds. Id. § 606. The MBA does not need legislative approval do to so. On the other hand, the enabling act exempts the MBA from payment of taxes on its revenues and properties. Id. § 619. Second, we turn to ascertaining whether the Commonwealth has claimed or disclaimed responsibility for the MBA’s debts. Clearly, the enabling act disclaims the Commonwealth’s responsibility over the MBA’s debts: “[t]he debts, obligations, contracts, bonds, notes, debentures, receipts, expenditures, accounts, funds, undertakings and property of the Authority, its officers, agents or employees shall be deemed to be those of said government-controlled corporation and not to be those of the Commonwealth Government or of any office, bureau, department, commission, dependency, municipality, branch, agent, officer or employee thereof.” Id. Moreover, the enabling act specifically states that the Commonwealth will not assume as debt the bonds issued by the MBA and that the bonds will not be payable out of funds other that those of the MBA. Id. §§ 614, 616. The third factor is how state courts have treated the entity. The parties have not provided the Court with any state court opinions discussing this matter. It is the moving parties’ burden to do so and so we move on to the fourth factor, which considers whether an entity’s functions are governmental in nature. We find Morrison-Knudsen Co., Inc. v. Massachusetts Bay Transp., 573 F.Supp. 698, 704 (D.C.Idaho, 1983) particularly helpful in determining the MBA’s nature. In Morrison-Knudsen, the court found that since the Massachusetts Bay Transportation Authority only served the greater Boston area, it could not be said to be executing a governmental purpose. The fact that the Authority serves a public purpose does not mean that it functions in a governmental capacity on behalf of the Commonwealth of Massachusetts. Id. Similarly, the MBA was created to provide public transportation to the metropolitan area of the island of Puerto Rico and not the entire Commonwealth. The MBA’s purpose it to “develop and improve, own, operate and manage any and all types of overland passenger transportation facilities and services in and through the territory comprising the Capital of Puerto Rico and the Metropolitan Area.” P.R.Laws Ann. tit. 23, § 606. Since the MBA was created to further a local interest, it can be said to be performing a proprietary rather than a governmental function. Lastly, we must consider the extent of the Commonwealth’s control over the MBA. The following facts demonstrate the control exerted by the Commonwealth over the MBA: (1) the MBA is required to submit annual financial statements and status reports to the Governor and Legislature; (2) the MBA is only authorized to deposit its funds in institutions approved by the Commonwealth; (3) the MBA is ascribed to the DTPW; (4) the MBA does not have a Board of Directors, and reports directly to the Secretary of the DTPW; (5) the MBA’s powers are vested in and exercised by the Secretary of the DTPW; (6) the Secretary of the DTPW has the faculty to adjust the operations of the MBA to the objectives, planning and programming adopted by the DTPW; and (7) the President and General Manager of the MBA, as well as all the officials participating in the operation policy making and overall management of the MBA are appointed by the Secretary of the DTPW. These circumstances show that the MBA’s finances are subject to the supervision of the Legislature and the Governor and that its operations are subject to the supervision of the DTPW. The MBA gives much weight to the fact that the Secretary of the DTPW, and not a Board of Directors, is now in charge of overseeing the MBA. It should be pointed out, however, that the Supreme Court of Puerto Rico has stated that in spite of the fact that the Board of Directors of the MBA was abolished and replaced by the authority of the Secretary of the DTPW, the MBA’s nature as a private business is not deemed to have changed. See Union de Empleados Carreteras v. J.R.T., 119 P.R.Dec. 116, 128, n. 15 (1987). Most of the factors considered in the first prong of the Fresenius test weigh in favor of finding that the MBA is not structured to share the Commonwealth’s sovereignty. To be sure, however, the Court turns to analyze the second prong of the Fresenius test, which considers the risk that the damages suffered by a plaintiff suing the entity will be paid from the public treasury. The Magistrate-Judge determined that the Commonwealth has no obligation to pay for the MBA’s debts. He based his conclusion upon a finding that the MBA’s enabling act does not bind the Commonwealth to subsidizing the MBA’s services but instead establishes that the MBA’s “debts, obligations ... shall be deemed to be those of said government-controlled corporation and not to be those of Commonwealth Government.” This wording led the Magistrate-Judge to conclude that the MBA is fiscally autonomous and the Commonwealth has no obligation to pay the MBA’s debts. As such, the Magistrate-Judge found that the MBA is not an arm of the Commonwealth and is therefore not entitled to Eleventh Amendment immunity. The analysis however, should not end here. In conducting the inquiry of whether the state is responsible for an entity’s debts, courts should examine “what is said by state law on the topic and what in fact has happened.” Fresenius, 322 F.3d at 72 (emphasis ours). As such, a court’s analysis of whether a state is liable for a public corporation’s debts is not complete after looking at the corporation’s enabling act or other statutory provisions that establish its funding structure or sources. The court must look at other factors to determine whether as a practical matter, and in spite of statutory provisions to the contrary, the Commonwealth would end up paying for the public corporation’s debts. In sum, the analysis to be followed in considering the second prong of the Fresenius test is: “If the expenditures of the enterprise exceed receipts, is the State in fact obligated to bear and pay the resulting indebtedness of the enterprise? When the answer is ‘No’ — both legally and practically — then the Eleventh Amendment’s core concern is not implicated.” Fresenius, 322 F.3d at 72 citing Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 51, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). The MBA sustains that “at least for the last decade, the Commonwealth annually funded [the MBA] with substantial amounts from the public treasury” and that “[t]his is enough to conclude that the Commonwealth in fact assumed the obligation to provide all the funds needed by [the MBA] to balance its budget and to maintain its operation.” According to the MBA, the Commonwealth has an interest in maintaining its operation because the MBA is governmental in nature. Since the MBA’s real cost of operation is much higher than the revenue it receives from fares, the Commonwealth has “assumed” the obligation of funding the MBA in order for it to balance its budget. Because of this, the MBA argues, the Commonwealth anticipates budget shortfalls and the MBA is constantly dependent on the state. This in turn creates a risk that the damages will be paid from the public treasury. Accordingly, in spite of the statutory provision stating that the Commonwealth is not liable for the MBA’s debts, the MBA sustains that it has been structured in a way that renders it dependent on the Commonwealth. In analyzing the second prong of the Fresenius test, we must first turn to state law, which is clear on the matter. As stated above, the MBA is a public corporation and instrumentality of the Commonwealth of Puerto Rico created by Act No. 5 of May 11, 1959, as amended. P.R. Laws Ann. tit. 23, § 601 et seq. Pursuant to said enabling act, the Commonwealth is not responsible for paying the MBA’s debts. However, notwithstanding the statutory provision, the Commonwealth could, as a practical matter, end up paying the MBA’s debts. The MBA sustains that the Commonwealth has been subsidizing the MBA for years because its fee structure does not cover its operating costs and that this renders the MBA constantly dependent on the Commonwealth. Specifically, the MBA alleges that in the fiscal year 2005-2006, the Commonwealth granted $19,955,835.00 to subsidize its operating costs and expenses, which amounted to $79,006,242.00. These figures translate to a subsidy by the Commonwealth of around 25% of the MBA’s cost and expenses in that fiscal year. The question then becomes whether these circumstances are sufficiently significant to cancel the Commonwealth’s express disclaimer of responsibility over the MBA’s debts and lead the Court to conclude that as a practical matter, the Commonwealth will end up paying for damages imposed on the MBA. The Court finds that they are not. The MBA cites In re San Juan Dupont Plaza Hotel Fire Litigation, 888 F.2d 940 (1st Cir.1989). In that case, the District Court found that the Tourism Company, a public corporation, was an arm of the Commonwealth and therefore protected by Eleventh Amendment immunity. On appeal, the appellant argued that “the Eleventh Amendment should not apply, because Puerto Rico law provides that the Commonwealth will not be liable for the debts of the Tourism Company.” Id. at 943. The Circuit Court, however determined that “[n]otwithstanding the statutory provision stating that the Commonwealth is not responsible for the debts of the Tourism Company, the district court found that roughly 70-75 percent of the funds available to the Tourism Company are provided by the taxpayers of the Commonwealth” and concluded that “[t]o that extent, a judgment enforced against the Tourism Company is effectively a liability of the Commonwealth.” Id. at 943-44. (citations omitted). Like in the case of the Tourism Company, there is a statutory provision in the case of the MBA that states that the Commonwealth will not respond for the debts of the MBA. However, the case of the Tourism Company is significantly different from the case at hand the Commonwealth offered a subsidy of 70-75% to the Tourism Company, while it allegedly offers around 25% to the MBA. (See also De Romero v. Institute of Puerto Rican Culture, 466 F.Supp.2d 410 (D.P.R.2006), where Institute’s enabling act did not contain any provision either claiming or disclaiming the Commonwealth’s responsibility for the entity’s debts, the Commonwealth’s subsidy of 96% of the Institute’s funds established the Institute’s entitlement to Eleventh Amendment Immunity.) The Court does not ignore the MBA’s allegation that it is constantly dependent on the state because it operates on a deficit. In this regard, the MBA cites Hess, in which the Supreme Court considered, in determining whether a money judgment would be satisfied with state funds, whether as a practical matter, the entity is “constantly dependent on funds from the government to meet its sizable operating deficits.” Hess, 513 U.S. at 50-51, 115 S.Ct. 394. The court in Hess stated: “[Wjhere an agency is so structured that, as a practical matter, if the agency is to survive, a judgment must expend itself against state treasuries, common sense and the rationale of the eleventh amendment require that sovereign immunity attach to the agency.” Id. In discussing the matter of budget shortfalls and satisfaction of judgments by the state, Hess cited Morris v. Washington Metropolitan Area Transit Authority, 781 F.2d 218 (D.C.Cir.1986) and Alaska Cargo Transport, Inc. v. Alaska R.R. Corp., 5 F.3d 378 (9th Cir.1993). These cases presented very different circumstances than those of this case. In Morris, the court concluded that any judgment against the entity would be paid by the state because the fare revenues “never came close” to covering the costs and that the budget shortfall was anticipated. However, the court gave much weight to the fact that the entity’s enabling act provided that any remaining costs were to be paid by the local governments. This is not the case with the MBA, which has been structured to be financially independent. In Alaska R.R.Corp., the convincing factor in the determination that the entity was entitled to Eleventh Amendment immunity was that its enabling act stated that it could, with the permission of the governor, directly ask the legislature for a grant to help it carry out the provisions of its statutory mandate. The court interpreted this as a requirement to seek funds to maintain service. Accordingly, the court concluded that “if faced with a large money judgment, ARRC would be compelled to turn to legislative appropriation in order to remain in business, and the legislature would have to respond favorably so that the ‘essential’ transportation function would continue to be performed and to protect the state’s very substantial investment in the Alaska Railroad.” Alaska R.R. Corp., 5 F.3d at 381. The MBA’s enabling act does not grant it the power to require the legislature an endowment in order to stay afloat. Any subsidy afforded to the MBA has been voluntarily supplied by the Commonwealth. The Commonwealth’s subsidy of the MBA’s operation has not only been voluntary but also not particularly substantial. The Commonwealth has not, either legally or practically, obligated itself to pay for the MBA’s debts. This leads us to conclude that damages are not likely to be paid out from the public treasury. Accordingly, the second prong of the Fresen-ius test has not been met. Having failed to prove that it is an arm of the Commonwealth of Puerto Rico, the MBA is not entitled to share the Commonwealth’s Eleventh Amendment immunity. D. Plaintiffs’ Objections to the Report and Recommendation Plaintiff objects to two of the Magistrate-Judge’s recommendations: (1) that the DTPW’s request for dismissal of the claims under the Rehabilitation Act on Eleventh Amendment immunity grounds be granted and (2) that the MBA’s request for dismissal of all claims under sections 1983 and 1988 be granted. (1) Rehabilitation Act claims Plaintiffs argue that the DTPW does not enjoy Eleventh Amendment immunity under the Rehabilitation Act because it receives federal funding from the United States Department of Transportation and because the scope the concept of “programs and activities” in the Rehabilitation Act causes the DTPW to have waived its sovereign immunity under said act. Specifically, plaintiffs sustain that the MBA is a DTPW program or activity, which has received federal funding, directly or indirectly. Eleventh Amendment immunity is not absolute and may be waived or “stripped away” by Congress. Metcalf & Eddy, 991 F.2d at 938. There are four circumstances in which Eleventh Amendment immunity unravels: (1) when a state consents to be sued in a federal forum; (2) when a state waives its own immunity by statute or the like; (3) when Congress abrogates state immunity; and (4) when, provided that circumstances allow, other constitutional imperatives take precedence over the Eleventh Amendment’s protection. Id. at 938 (citations omitted); see Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir.2006). Specifically, a waiver of immunity by the Commonwealth can occur in three ways: “(1) by a clear declaration that it intends to submit itself to the jurisdiction of a federal court ...; (2) by consent to or participation in a federal program for which waiver of immunity is an express condition; or (3) by affirmative conduct in litigation.” Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 33 (1st Cir.2006) citing New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir.2004). The Rehabilitation Act, provides in relevant part the following: No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794. The Magistrate-Judge found that plaintiffs’ allegation that the MBA (not the DTPW or the Commonwealth) receives federal funding but could only establish that the MBA waived its sovereign immunity, does not go so far as to compromise the DTPW’s or the Commonwealth’s immunity with respect to the claims under the Rehabilitation Act. Plaintiffs contest the basis for the Magistrate-Judge’s conclusion: that they only assert that the MBA, not the DTPW or the Commonwealth, receives federal funding. Plaintiffs state that the Second Amended Complaint does allege that both the DTPW and the MBA receive federal funding from the United States Department of Transportation. Since the DTPW receives this funding, plaintiffs contend, it has waived its Eleventh Amendment immunity under the Rehabilitation Act. Further, plaintiffs argue that the DTPW has also waived its Eleventh Amendment immunity under the Rehabilitation Act because it receives funds which are allocated to the MBA’s Call & Ride Program, and the MBA is a program or activity of the DTPW’s. The Court has reviewed the Second Amended Complaint and has found the allegation plaintiffs point to, corroborating that they do allege that both the MBA and the DTPW waived immunity by accepting funds from the U.S. Department of Transportation. Accordingly, the Magistrate-Judge’s finding to the contrary is mistaken. We start with plaintiffs’ uncontested allegation that the DTPW receives federal funds. The acceptance of federal funds by the DTPW operates as a waiver of Eleventh Amendment immunity from the claims under the Rehabilitation Act. See 42 U.S.C. § 2000d-7(a)(1); Diaz-Fonseca, 451 F.3d at 33; Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 127-30 (1st Cir.2003). 42 U.S.C. § 2000d-7(a)(l) provides that “[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act ... or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” This statutory provision was the basis for the First Circuit’s holding in Nieves-Marquez that the Commonwealth of Puerto Rico waived any Eleventh Amendment immunity to a Rehabilitation Act claim based on violations to the Individuals with Disabilities Education Act (“IDEA”) by accepting federal educational funding. Similarly, in Diaz-Fonseca, the First Circuit held that the Commonwealth defendants did not have Eleventh Amendment immunity against the federal IDEA and Rehabilitations Act claims because they had waived such immunity by accepting federal funds. Accordingly, the DTPW waived any possibility invoking the Commonwealth’s Eleventh Amendment immunity by accepting federal funds. As such, plaintiffs’ objection on this issue is sustained. DTPW does not enjoy Eleventh Amendment immunity under the Rehabilitation Act. (2) Section 1988 claims Regarding the recommendation to dismiss the 1983 and 1988 claims against the MBA, plaintiffs sustain that contrary to what the Magistrate-Judge concluded, the MBA is a “person” under 1983 and 1988. Plaintiffs argue that this is so because the MBA is a subdivision of a state that is not covered by Eleventh Amendment immunity. They sustain that they have an actionable claim under section 1983 because the MBA violated the Equal Protection Clause of the Fourteenth Amendment. In support of their allegations, plaintiffs cite Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in which the Supreme Court determined that local governments not covered by the state’s Eleventh Amendment immunity are “persons” within the meaning of section 1983, and Jinks v. Richland County, 538 U.S. 456, 466, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003), in which our highest court determined that a political subdivision of a state is subject to the mandate of 28 U.S.C. § 1367(d), which tolls the statute of limitations of actions pending in federal court. Plaintiffs invite the court to read these two cases together and arrive at the conclusion that the MBA is a political subdivision of the Commonwealth not included within its Eleventh Amendment immunity and should therefore be “considered covered by sections 1983 and 1988, for violation of the plaintiffs [sic] constitutional rights.” Under section 1983, an aggrieved individual may sue persons who, acting under color of state law, abridge rights, immunities, or privileges created by the Constitution or laws of the United States. See Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir.1991). “It is settled beyond peradventure, however, that neither a state agency nor a state official acting in his official capacity may be sued for damages in a section 1983 action.” Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir.1991) (citations omitted). Additionally, an arm-of-state is an inappropriate defendant in a section 1983 lawsuit. Id. The Magistrate-Judge’s conclusion that the MBA is not a “person” within the meaning of section 1983, was based on the holding in Nadal v. Puerto Rico Tourist Development Co., 399 F.Supp. 1222 (D.P.R.1975). In Nadal, the court held that the Puerto Rico Tourist Development Company, a public corporation and instrumentality of the Commonwealth of Puerto Rico, was not a “person” under section 1983. See also Rosado Maysonet v. Solis, 409 F.Supp. 576 (D.P.R.1975). Nadal was decided under the authority of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which established that a municipal corporation is not a “person” under the meaning of section 1983. The Court in Nadal conceded that the Monroe doctrine had been “expressly held applicable not only to the states but also to many of their political subdivisions including counties, towns, townships, school districts, boards of education, housing authorities, police departments, municipally owned hospitals and state colleges.” Id. at 1224. As such, Nadal held that since the Puerto Rico Tourist Development Company was created as a public corporation and instrumentality of the Commonwealth, it was not a person under section 1983. However, the holding in Monroe was overruled by Mo-nell, where the Supreme Court held that municipalities and other local government units or political subdivisions of a state are “persons” under section 1983. Accordingly, Monroe is no longer good law in this matter and the holding in Nadal cannot be applied today. See e.g., Ainsworth Aristocrat Intern. Pty. Ltd. v. Tourism Co. of Com. of Puerto, 818 F.2d 1034, 1039 n. 24 (1st Cir.1987). As plaintiffs correctly state, Monell established that municipalities and local government units not considered part of the State for Eleventh Amendment purposes are “persons” subject to suit under section 1983. Specifically, the Court in Monell held that municipal corporations and similar government entities are “persons.” Monell, 436 U.S. at 669, 98 S.Ct. 2018; see also Howlett By and Through Howlett v. Rose, 496 U.S. 356, 376, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). Monell is premised upon the indications in the legislative history of section 1983 that local governments were meant to be within its reach. The boundaries of the holding in Monell “establish that the most important inquiry in determining whether a governmental entity is a ‘person’ within the meaning of § 1983 is whether the entity is an ‘arm[ ] of the State’ for Eleventh Amendment purposes” since arms of state are not persons for those purposes. Independent Enterprises Inc. v. Pittsburgh Water and Sewer Authority, 103 F.3d 1165, 1173 (3rd Cir.1997) (citations omitted). Applying the case law cited above to the case at hand leads the Court to conclude that the MBA is a “person” subject to suit under section 1983. First, we have already determined that the MBA is not cloaked by the Commonwealth’s Eleventh Amendment immunity and is therefore not an arm of the state. This Court’s analysis of whether the MBA enjoys Eleventh Amendment immunity, above, shows that the MBA is more akin to a municipal corporation than to an agency of the Commonwealth. Indeed, it was created as a public corporation or instrumentality of the Commonwealth, so it is clearly a political subdivision of the state. It is logical to conclude that the MBA is the kind of political subdivision Monell intended to make susceptible to suit under section 1983; it is not the type of structure meant to be excluded from section 1983’s applicability. E. Unobjected Recommendations In addition to the recommendations objected to by the MBA and plaintiffs, the Magistrate-Judge made the following recommendations, which were not objected by any party: (1) that the Commonwealth’s and DTPW’s request for dismissal of the claims under Title II of ADA on Eleventh Amendment immunity grounds be DENIED; (2) that the Commonwealth’s request for dismissal of the claims under the Rehabilitation Act on Eleventh Amendment immunity grounds be GRANTED; (3) that the Commonwealth’s and DTPW’s request for dismissal of all claims under Sections 1981 and/or 1981a, 1983, 1985 and 1988 be GRANTED; (4) that the Commonwealth’s and DTPW’s request for dismissal of all claims under Commonwealth law on Eleventh Amendment immunity grounds be GRANTED; (5) that the MBA’s request for dismissal of all claims under Sections 1981 and/or 1981a and 1985 be GRANTED; (6) that the MBA’s request for dismissal of all claims under Commonwealth law be DENIED; (7) that defendants Alcaraz-Emanuel-li’s, Gonzalez-Baker’s and Mirabal’s request of dismissal of the claims asserted against them under ADA and the Rehabilitation Act in their individual capacity be GRANTED; (8) that defendants Alcaraz-Emanuel-li’s, Gonzalez-Baker’s and Mirabal’s request of dismissal of the Section 1983 claims for injunctive relief asserted against them in their official capacity be DENIED (unless the Court is willing to take judicial notice of the fact that Alearaz-Emanuelli is not DTPW’s Secretary at the present); (9) that defendants Alcaraz-Emanuel-li’s, Gonzalez-Baker’s and Mirabal’s request of dismissal of the Section 1983 monetary claims asserted against them in their official capacities be GRANTED; (10) that defendants Alcaraz-Emanuel-li’s, Gonzalez-Baker’s and Mirabal’s request of dismissal of the monetary Section 1983 claims asserted against them in their individual capacities on respondeat superi- or and qualified immunity grounds be DENIED; and (11) that defendants’ request for dismissal of the punitive damages be GRANTED with respect to ADA and the Rehabilitation Act, but DENIED with respect to Section 1983. After reviewing the record, the Court agrees with the arguments, factual and legal conclusions regarding the above-listed unopposed recommendations, except for the one having to do with the section 1985 claims against the MBA. The Magistrate-Judge recommended the these claims be dismissed based on the rationale that the MBA is not a “person” under 1985. As he correctly stated, courts are in agreement that the analysis of the word “person” for purposes of section 1983 applies to the analysis of the word person for purposes of section 1985. See, e.g. Santiago v. N.Y. St. Dept. Of Correctional Services, 725 F.Supp. 780, 783-84 (S.D.N.Y.1989), rev’d on other grounds, 945 F.2d 25 (2d Cir.1991). The Court has determined that the MBA is a “person” under section 1983. For the same reasons, the Court determines that the MBA is a “person” under section 1985. As such, the Court shall not dismiss the claims against the MBA under section 1985. CONCLUSION For the foregoing reasons, the Court ADOPTS in PART and REJECTS in PART the Magistrate-Judge’s Report and Recommendation. Accordingly, the Court rules as follows: (1) the Commonwealth’s and DTPW’s request for dismissal of the claims under Title II of ADA on Eleventh Amendment immunity grounds is DENIED; (2) the Commonwealth’s request for dismissal of the claims under the Rehabilitation Act on Eleventh Amendment immunity grounds is GRANTED; (3) the DTPW’s request for dismissal of the claims under the Rehabilitation Act on Eleventh Amendment immunity grounds is DENIED; (4) the Commonwealth’s and DTPW’s request for dismissal of all claims under Sections 1981 and/or 1981a, 1983, 1985 and 1988 is GRANTED; (5) the Commonwealth’s and DTPW’s request for dismissal of all claims under Commonwealth law on Eleventh Amendment immunity grounds is GRANTED; (6) The MBA’s request for dismissal of all claims asserted in the Second Amended Complaint on Eleventh Amendment immunity grounds is DENIED; (7) The MBA’s request for dismissal of all claims under Sections 1981 and/or 1981a is GRANTED; (8) The MBA’s request for dismissal of all claims under Sections 1983, 1985 and 1988 is DENIED; (9) The MBA’s request for dismissal of all claims under Commonwealth law is DENIED; (10) defendants Alcaraz-Emanuelli’s, Gonzalez-Baker’s and Mirabais request of dismissal of the claims asserted against them under ADA and the Rehabilitation Act in their individual capacity is GRANTED; (11) that defendants Alcaraz-Emanuel-li’s, Gonzalez-Baker’s and Mirabais request of dismissal of the Section 1983 claims for injunctive relief asserted against them in their official capacity is DENIED; (12) defendants Alcaraz-Emanuelli’s, Gonzalez-Baker’s and Mirabal’s request of dismissal of the Section 1983 monetary claims asserted against them in their official capacities is GRANTED; (13) defendants Alcaraz-Emanuelli’s, Gonzalezr-Baker’s and Mirabal’s request of dismissal of the monetary Section 1983 claims asserted against them in their individual capacities on respondeat superior and qualified immunity grounds is DENIED; and (14) defendant’s request for dismissal of the punitive damages is GRANTED with respect to ADA and the Rehabilitation Act, but DENIED with respect to Section 1983. IT IS SO ORDERED. REPORT AND RECOMMENDATION MARCOS E. LÓPEZ, United States Magistrate Judge. I. PROCEDURAL BACKGROUND The original Complaint in this case was filed on June 28, 2006. Docket No. 1. Amended Complaints were filed on July, 10 and November 14, 2006. Dockets No. 3, 23. On January 23, 2007, plaintiffs Emilio Orria-Medina, Emilio R. Orria-Cruz, Agnes L. Repullo, Iliana Rivera Reyes, Violeta Albino, Alba Toro, Aileen G. Curas-Negrón, José J. Ocasio-Rodriguez, José M. NievesRios, Wanda D. Díaz-Gó-mez and Vanessa Delgado-Rodríguez (collectively, “Plaintiffs”), filed a “Second Amended Complaint” pursuant to (1) the First, Fifth and/or Fourteenth Amendments to the U.S. Constitution, (2) Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12165, (3) Section 504 of the Rehabilitation Act, 29 U.S.C.A. § 794, (4) the Civil Rights Remedies Equalization Act (“CRREA”), 42 U.S.C. § 2000d-7, (5) 42 U.S.C. §§ 1981a, 1983, 1985 and 1988 (“Sections 1981a, 1983, 1985 and 1988” respectively) and (6) several provisions of the Code of Federal Regulations against: (1) the Metropolitan Bus Authority (“AMA” for its Spanish acronym); (2) the Puerto Rico Department of Transportation and Public Works (“DTOP” for its Spanish acronym); (3) the Commonwealth of Puerto Rico (“Commonwealth”); (4) Mr. Gabriel Alcaraz-Emanu-elli (“Alcaraz-Emanuelli”), in his official capacity as Secretary of the DTOP and in his personal capacity, his spouse “X” and the conjugal legal partnership constituted between them; (5) Ms. Adaline Torres-Santiago (“Torres-Santiago”), in her personal capacity only; (6) Mr. Evans Gonzá-lez-Baker (“González-Baker”) in his official capacity as President of the AMA and in his personal capacity, his spouse “Y” and the conjugal legal partnership constituted between them; (7) Mr. Manuel Mira-bal (“Mirabal”) in his official capacity as Administrator of the “Llame y Viaje” (“Call & Ride”) program of the AMA and in his personal capacity, his spouse “Z” and the conjugal legal partnership constituted between them; and (8) John Doe, Jane Roe, and insurance companies A, B, C, D & E (collectively, “Defendants”). The Second Amended Complaint also alleges violations under the laws of the Commonwealth of Puerto Rico, to wit: Article II, Sections 1, 4, 6-8 and 16 of the Constitution of the Commonwealth of Puerto Rico, the Bill of Rights for Persons with Disabilities, P.R. Laws. Ann. tit. 1, §§ 512(a)-512(k), the Uniform Administrative Procedures Act (“UAPA”), P.R. Laws. Arm, tit. 3, §§ 2101-2201, the Uniform Rate Revision and Modification Act (“URRMA”), P.R. Laws. Ann. tit. 27, §§ 261-261(e) and tort claims under article 1802 of the P.R. Civil Code, P.R. Laws Ann. tit. 31, § 3151. Docket No. 45. Plaintiffs request through the Second Amended Complaint compensation for the economical, emotional and moral damages, punitive damages and injunctive relief from certain actions performed by Defendants as described below. On October 2, 2006, co-defendants AMA, González-Baker, Mirabal and the Commonwealth filed a Motion to Dismiss alleging that: (1) co-defendants AMA, the Commonwealth and the individual defendants in their official capacities are entitled to Eleventh Amendment immunity with respect to the claims asserted against them under the laws of Puerto Rico; (2) the monetary claims under 42 U.S.C. § 1983 (“Section 1983”) against the Commonwealth, AMA and the individual defendants in their official capacities must be dismissed because none of them are “persons” within the meaning of Section 1983; (3) the claims under ADA and the Rehabilitation Act against the individual defendants must be dismissed because no personal liability can attach under either of the two statutes; (4) monetary claims under Section 1983 against defendants in their individual capacities must be dismissed because no supervisory liability exists under Section 1983 and because they are entitled to qualified immunity; and (5) the claims for punitive damages must be dismissed because punitive damages are unavailable under ADA and the Rehabilitation Act. Docket No. 9. On October 13, 2006, co-defendants DTOP and Alcaraz-Emanuelli requested leave to join the Motion to Dismiss filed by the Commonwealth, AMA, González-Baker and Mira-bal, which the Court granted that same day. Dockets No. 18, 20. On April 4, 2007, co-defendant AMA filed another Motion to Dismiss (Docket No. 58), supported by a Memorandum of Law (Docket No. 59) (hereinafter referred together as “AMA’s Motion to Dismiss”), reiterating its claim of entitlement to Eleventh Amendment Immunity and adding as an additional ground for dismissal of the Second Amended Complaint that the same fails to state claims upon which relief can be granted. On April 30, 2007, Plaintiffs filed a Response in Opposition to Motion to Dismiss (“Opposition”) requesting that AMA’s Motion to Dismiss be denied on several grounds, namely that: (1) the Second Amended Complaint alleges violations to Plaintiffs rights under Title II of ADA; and (2) AMA is not entitled to Eleventh Amendment Immunity because it is not an arm of the state and, even if it were, the U.S. Congress abrogated such immunity when enacting Title II of ADA. Docket No. 73. Pursuant to the Referral Order issued by the Court on April 5, 2007 (Docket No. 62), all pending motions in this case were referred to the undersigned for disposition or for a Report and Recommendation, where appropriate. Accordingly, the undersigned Magistrate Judge submits this Report and Recommendation on the Motion to Dismiss, the Motion to Join Motion to Dismiss and AMA’s Mo