Del-Toro-Pacheco v. Pereira et al, No. 3:2008cv01133 - Document 45 (D.P.R. 2009)

Court Description: OPINION AND ORDER granting re 28 MOTION for Summary Judgment and Memorandum in Support Therein filed by Miguel A. Pereira, Roberto Izquierdo-Ocasio Clerk to enter judgment.Signed by Chief Mag. Judge Justo Arenas on 10/7/2009.(nydi)

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 JULIO F. DEL TORO-PACHECO, 5 6 Plaintiff 7 v. 8 9 10 11 12 13 14 CIVIL 08-1133 (FAB) (JA) MIGUEL A. PEREIRA-CASTILLO, Secretary of Correction and Rehabilitation Administration, ROBERTO IZQUIERDO-OCASIO, Director of Special Arrest Unit, Defendants OPINION AND ORDER This matter is before me on a motion for summary judgment filed by 15 16 defendants Roberto Izquierdo-Ocasio (Izquierdo-Ocasio) and Miguel A. Pereira 17 (Pereira) on June 30, 2009. (Docket No. 28.) Plaintiff Julio F. del Toro-Pacheco 18 (del Toro) filed a motion in opposition on July 31, 2009 (Docket No. 33) to which 19 defendants replied on August 14, 2009. (Docket No. 40.) For the reasons set 20 21 22 23 24 forth below defendants motion for summary judgment is GRANTED. I. FACTUAL BACKGROUND On December 20, 1993, plaintiff started to work for the Department of Corrections and Rehabilitation ( DCR ), and in 1996 plaintiff became part of the 25 26 escort assigned to protect dignitaries within the DCR. In 2000, plaintiff became 27 part of the Special Arrest Unit ( SAU ) of the DCR. (Docket No. 31-2, Docket No. 28 36, at 5, ¶ 2 & Docket No. 41, at 3, ¶ 2.) 1 CIVIL 08-1133 (FAB) (JA) 2 2 3 Defendant Pereira was appointed by the Governor as Secretary of the DCR. 4 5 (Docket No. 1, at 6, ¶ 31 & Docket No. 13, at 4, ¶ 31.) Defendant Izquierdo- 6 Ocasio was plaintiff s immediate supervisor from 2000 to 2007 and was also the 7 Director of the SAU at the DCR. (Docket No. 1, at 6, ¶ 31, Docket No. 13, at 4, 8 ¶ 31, Docket No. 36, at 5, ¶ 3 & Docket No. 41, at 3, ¶ 3.) 9 10 On March 27, 2006, the wife of one of plaintiff s friends was the victim of an 11 alleged sexual assault. Authorities suspected plaintiff was the assailant after the 12 victim filed a formal criminal complaint before the Puerto Rico Police Department 13 against him. (Docket Nos. 31-3 & 31-4.) 14 15 On March 29, 2006, after finding out of the criminal complaint filed against 16 plaintiff, defendant Izquierdo-Ocasio notified defendant Pereira. (Docket No. 31- 17 7.) After defendant Pereira was informed of the criminal complaint that was filed 18 against plaintiff, an internal investigation ensued. (Docket No. 27, at 4, ¶ 15 & 19 20 Docket No. 36, at 2, ¶ 15.) 21 On February 22, 2007, after the DCR conducted its investigation, defendant 22 Pereira notified plaintiff of the agency s intention to discharge him. (Docket No. 23 27, at 7, ¶ 27, Docket No. 31-12 & Docket No. 36, at 3, ¶ 27.) The notification 24 explained to plaintiff the charges that were filed against him. (Docket No. 27, at 25 26 7, ¶ 28, Docket No. 31-12 & Docket No. 36, at 3, ¶ 28), and the statutes that had 27 been allegedly breached. (Docket No. 27, at 8, ¶ 29, Docket No. 31-12 & Docket 28 1 CIVIL 08-1133 (FAB) (JA) 3 2 3 No. 36, at 3, ¶ 29.) Plaintiff was informed that if he did not agree with the 4 5 charges that were being notified against him, he had the right to request an 6 informal administrative hearing. (Docket No. 27, at 8, ¶ 30, Docket No. 31-12 & 7 Docket No. 36, at 3, ¶ 30.) Plaintiff was also explained that the purpose of the 8 hearing was to give him the chance to present the necessary evidence before a 9 10 hearing officer, who would then make recommendations. Id. Accordingly, plaintiff 11 requested an informal administrative hearing. (Docket No. 27, at 8, ¶ 31, Docket 12 No. 31-13 & Docket No. 36, at 3, ¶ 31.) The hearing was held on January 2007. 13 Plaintiff attended the hearing accompanied by his attorney. (Docket No. 27, at 8, 14 15 ¶ 32, Docket No. 31-13 & Docket No. 36, at 4, ¶ 32.) However, plaintiff decided 16 not to give his side of the story. (Docket No. 27, at 8, ¶ 33, Docket No. 31-14 & 17 Docket No. 36, at 4, ¶ 33.) 18 On January 24, 2007, the agency informed plaintiff that they had decided 19 20 to discharge him from the DCR. (Docket No. 27, at 9, ¶ 35, Docket No. 31-16 & 21 Docket No. 36, at 4, ¶ 35.) Plaintiff then filed an appeal before the Investigative, 22 Procedure and Appellative Commission ( CIPA ), where he challenged the 23 discharge. (Docket No. 27, at 9, ¶ 36, Docket No. 31-17 & Docket No. 36, at 4, 24 ¶ 36.) 25 26 On April 2008, an evidentiary hearing was held at CIPA. After listening to 27 the evidence submitted by the plaintiff and the agency, CIPA confirmed the 28 1 CIVIL 08-1133 (FAB) (JA) 4 2 3 administrative decision discharging plaintiff from the DCR. (Docket No. 27, at 9, 4 5 ¶ 37, Docket No. 31-18 & Docket No. 36, at 4, ¶ 37.) II. PROCEDURAL BACKGROUND 6 7 8 On January 30, 2008, plaintiff filed a complaint against defendants pursuant to 28 U.S.C. §§ 1331, 1343(3)(4), 42 U.S.C. § 1983, and the First, Fifth and 9 10 Fourteenth Amendments to the Constitution of the United States. Plaintiff also 11 brought several claims under the laws of Puerto Rico alleging violations of his 12 rights under Personnel Law of Puerto Rico, P.R. Laws Ann. tit. 3, § 130 et seq., 13 sections 1, 4, 6 and 7 of Article II of the Constitution of the Commonwealth of 14 15 Puerto Rico, Law No. 382 of 1950, P.R. Laws Ann. tit. 29, §§ 136-138 and Law 16 No. 100 of 1959, as amended, P.R. Laws Ann. tit. 29, § 146. (Docket No. 1, at 17 1-3, ¶¶ 1-14.) 18 On August 22, 2008, and on June 29, 2009, defendants Izquierdo-Ocasio 19 20 and Pereira respectively filed their answer to plaintiff s complaint. (Docket Nos. 21 13 & 25.) On April 2, 2008, defendants filed a motion to dismiss pursuant to Rule 22 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that plaintiff s 23 complaint should be dismissed for the following reasons: (1) it was time-barred; 24 (2) plaintiff failed to state a claim under section 1983, and (3) they were 25 26 protected from liability under the Eleventh Amendment and qualified immunity. 27 (Docket No. 7.) 28 1 CIVIL 08-1133 (FAB) (JA) 5 2 3 On November 21, 2008, I entered an order granting and denying in part 4 5 defendants motion to dismiss. I held that plaintiff s complaint was not time 6 barred; that plaintiff did not fail to state a claim under section 1983 and that 7 defendants were not entitled to either qualified or the Eleventh Amendment 8 immunity. Also, plaintiff s Equal Protection, Fifth Amendment, and Puerto Rico Law 9 10 No. 100 claims were dismissed with prejudice. (Docket No. 23.) 11 On June 30, 2009, defendants filed a motion for summary judgment and 12 memorandum of law in support. Defendants argue that plaintiff (a) failed to state 13 a cause of action under 42 U.S.C. § 1983; (b) failed to establish a prima facie 14 15 case of political discrimination; and (c) that since he failed to allege any cause of 16 action under federal law, the claims brought forth under supplemental jurisdiction 17 should also be dismissed. Also, in the alternative, defendants claim that they 18 would be entitled to qualified immunity if the court were to find that plaintiff s 19 20 rights have been violated. (Docket No. 28.) 21 On August 4, 2009, plaintiff filed his opposition to summary judgment. 22 Plaintiff claims that he has a valid cause of action since he has proffered sufficient 23 evidence that shows that defendants intentionally and under color of authority, 24 personally and/or by means of other officials acted to deprive him of his rights 25 26 under the First and Fourteenth Amendments, and under 42 U.S.C. § 1983. Plaintiff 27 also states that defendants are not entitled to qualified immunity since the facts 28 1 CIVIL 08-1133 (FAB) (JA) 6 2 3 presented in the complaint demonstrate that they acted maliciously and 4 5 intentionally. (Docket No. 35.) 6 On August 14, 2009, defendants replied claiming that plaintiff did not meet 7 the burden of showing there were genuine issues in controversy that were trial 8 worthy. Defendants argue that plaintiff only objected to their statements of 9 10 11 12 13 uncontested facts for evidentiary reasons and/or on unsupported grounds. (Docket No. 40.) III. STANDARD OF REVIEW A. Summary Judgement 14 15 Summary judgment is appropriate when the pleadings, the discovery and 16 disclosure materials on file, and any affidavits show that there is no genuine issue 17 as to any material fact and that the movant is entitled to judgment as a matter 18 of law. Fed. R. Civ. P. 56(c). The intention of summary judgment is to pierce 19 20 the pleadings and to assess the proof in order to see whether there is a genuine 21 need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 22 587 (1986) (quoting Fed. R. Civ. P. 56(e)). Once the moving party has properly 23 supported [its] motion for summary judgment, the burden shifts to the nonmoving 24 party, with respect to each issue on which [it] has the burden of proof, to 25 26 27 28 demonstrate that a trier of fact reasonably could find in [its] favor. Santiago- 1 CIVIL 08-1133 (FAB) (JA) 7 2 3 Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting 4 5 DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). 6 [T]he mere existence of some alleged factual dispute between the parties 7 will not defeat an otherwise properly supported motion for summary judgment; 8 the requirement is that there be no genuine issue of material fact. Anderson v. 9 10 Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Carrol v. Xerox Corp., 11 294 F.3d 231, 236-37 (1st Cir. 2002) (quoting J. Geils Band Employee Benefit 12 Plan v. Smith Barney Shearson. Inc., 76 F.3d 1245, 1251 (1st Cir. 1996)) 13 ( [N]either conclusory allegations [nor] improbable inferences are sufficient to 14 15 defeat summary judgment. ). The nonmoving party must produce specific facts 16 showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. 17 Zenith Radio Corp., 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)); see also 18 López Carrasquillo v. Rubianes, 230 F.3d 409, 413 (1st Cir. 2000). 19 20 A genuine issue exists when there is evidence sufficient to support rational 21 resolution of the point in favor of either party. 22 Delgado, 990 F.2d 701, 703 (1st Cir. 1993) (citing Anderson v. Liberty Lobby, 23 Inc., 477 U.S. at 248; United States v. One Parcel of Real Prop., 960 F.2d 200, 24 Nereida González v. Tirado 204 (1st Cir. 1992)). In this context, genuine means that the evidence about 25 26 27 28 the fact is such that a reasonable jury could resolve the point in favor of the 1 CIVIL 08-1133 (FAB) (JA) 8 2 3 nonmoving party. . . . Burke v. Town of Walpole, 405 F.3d 66, 75 (1st Cir. 4 5 2005) (quoting United States v. One Parcel of Real Prop., 960 F.2d at 204). 6 Rule 56(e) requires the nonmoving party to go beyond the pleadings and 7 by her own affidavits, or by depositions, answers to interrogatories, and 8 admissions on file, designate specific facts showing that there is a genuine issue 9 10 for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). However, a 11 moving party may move for summary judgment with or without supporting 12 affidavits. Id. at 323 (quoting Rules 56(a) and (b)). The evidence of the non- 13 movant is to be believed, and all justifiable inferences are to be drawn in his 14 15 favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255 (citing Adickes v. S. H. 16 Kress & Co., 398 U.S. 144, 158-59 (1970)); see also Patterson v. Patterson, 306 17 F.3d 1156, 1157 (1st Cir. 2002) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 18 115 (1st Cir. 1990)) ( [the court] must view the entire record in the light most 19 20 21 22 23 24 hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party s favor. ). B. Puerto Rico Local Rule 56 In the District of Puerto Rico, Local Rule 56(b), previously Local Rule 311 (12), imposes additional requirements on the party filing for summary judgment 25 26 as well as the party opposing the motion. A motion for summary judgment has 27 to be accompanied by a separate, short, and concise statement of material facts, 28 1 CIVIL 08-1133 (FAB) (JA) 9 2 3 set forth in numbered paragraphs, as to which the moving party contends there 4 5 is no genuine issue of material fact to be tried. 6 statement shall be supported by a record citation as required by subsection (e) 7 of this rule. Local Rules of the United States District Court for the District of 8 Each fact asserted in the Puerto Rico, Local Rule 56(b) (2004). When filing a motion in opposition, the 9 10 opposing party must include a separate, short, and concise statement admitting, 11 denying or qualifying each fact set out by the moving party. Local Rules 56(c); 12 see Morales v. A.C. Orssleff s EFTF, 246 F.3d 32, 33 (1st Cir. 2001); Ruiz Rivera 13 v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000); Domínguez v. Eli Lilly & Co., 958 F. 14 15 16 17 18 Supp. 721, 727 (D.P.R. 1997); see also Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43 (1st Cir. 2001). These facts must be supported by specific reference to the record, thereby pointing out to the court any genuine issues of material fact and eliminating the 19 20 problem of the court having to ferret through the Record. Domínguez v. Eli Lilly 21 & Co., 958 F. Supp. at 727; see Carmona Ríos v. Aramark Corp., 139 F. Supp. 2d 22 210, 214-15 (D.P.R. 2001) (quoting Stepanischen v. Merch. Despatch Transp. 23 Corp., 722 F.2d 922, 930-31 (1st Cir. 1983)); Velázquez Casillas v. Forest Lab., 24 Inc., 90 F. Supp. 2d 161, 163 (D.P.R. 2000). Any statement of fact provided by 25 26 any party which is not supported by citation to the record may be disregarded by 27 the court, and any supported statement which is not properly presented by the 28 1 CIVIL 08-1133 (FAB) (JA) 10 2 3 other party shall be deemed admitted. See Local Rule 56(e). Failure to comply 4 5 with this rule may result, where appropriate, in judgment in favor of the opposing 6 party. Morales v. A.C. Orssleff s EFTF, 246 F.3d at 33; Stepanischen v. Merch. 7 Despatch Transp. Corp., 722 F.2d at 932. 8 Defendants submitted their statement of uncontested material facts on 9 10 June 30, 2009. (Docket No. 27), and on July 31, 2009, plaintiff submitted its own 11 statement of uncontested facts. (Docket No. 33-3.) Defendants filed a reply 12 statement on August 14, 2009. (Docket No. 41.) Thus, parties have complied 13 with the district court s local anti-ferret rule. 14 15 16 17 18 IV. DISCUSSION A. Evidentiary Issues Plaintiff has countered several of defendants statements of uncontested facts on the grounds that the documents supporting said statements: (1) have 19 20 not been authenticated as required by Rule 56(e) of the Federal Rules of Civil 21 Procedure and Rule 901(a) of the Federal Rules of Evidence; (2) the documents 22 contain hearsay statements pursuant to Federal Rule of Evidence 802; and (3) 23 that defendant Izquierdo-Ocasio s sworn statement is not properly authenticated 24 since he lacks competence to testify as required by Federal Rule of Civil Procedure 25 26 27 28 56 (e)(1). (Docket No. 35, at 1-2, ¶¶ 2-4.) 1 CIVIL 08-1133 (FAB) (JA) 11 2 3 Defendants on the other hand request that plaintiff s unsworn statement 4 5 submitted in support of the response to defendants motion for summary 6 judgment be stricken from the record since it contains conclusory allegations. 7 (Docket No. 40, at 8-9, ¶¶ 20-21.) 8 Defendants also argue that plaintiff has waived any objection regarding defendants statement of uncontested facts since 9 10 11 12 13 he has admitted them in the alternative. (Docket No. 40, at 9, ¶ 22.) 1. Plaintiff requests that the following exhibits be stricken: a. Plaintiff s deposition transcript (Docket No. 31, Exhibits 1-2, 4-5, 7, 12-14, 16-17, and 19-23) 14 Recently this court reaffirmed the long standing principle which requires 15 that [d]ocuments supporting or opposing summary judgment must be properly 16 authenticated. Rivera Maldonado v. Hosp. Alejandro Otero López, 614 F. Supp. 17 18 2d 181, 185 n.1 (D.P.R. 2009) (quoting Carmona v. Toledo, 215 F.3d 124, 131 19 (1st Cir. 2000) (citing Fed. R. Civ. P. Rule 56(e))). The court emphasized that 20 [t]he failure to authenticate a document properly precludes its consideration on 21 a motion for summary judgment. Id. (quoting Robinson v. Bodoff, 355 F. Supp. 22 23 2d 578, 582 (D. Mass. 2005)). In United States v. Ventura-Meléndez, 275 F.3d 24 9, 14 (1st Cir. 2001) the court stated that Rule 902 of the Federal Rules of 25 Evidence provides, in relevant part, for the self-authentication of: 26 27 28 A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama 1 CIVIL 08-1133 (FAB) (JA) 12 2 3 Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. 4 5 6 7 United States v. Ventura-Meléndez, 275 F.3d at 14. 8 On the other hand, Rule 56 of the Federal Rules of Civil Procedure does not 9 10 provide that an affidavit of authentication is required as to pleadings, depositions, 11 answer to interrogatories and admissions. Fed. R. Civ. P. 56. On the contrary, 12 the rule states that a party may move, with or without supporting affidavits, for 13 14 a summary judgment on all or any part of the claim. Fed. R. Civ. P. 56(a). 15 However, Rule 30(f)(1) deals with authentication of depositions by certification 16 of the officer taking the deposition. The rule states that [t]he officer must certify 17 in writing that the witness was duly sworn and that the deposition accurately 18 19 records the witness testimony. Fed. R. Civ. P. 30(f)(1). 20 Defendants Exhibits 1-2, 4-5, 7, 12-14, 16-17, and 19-23, which contain 21 excerpts of plaintiff s deposition transcript, were properly authenticated since the 22 officer taking the deposition certified that the plaintiff was duly sworn and that the 23 24 deposition accurately records his testimony. (Docket No. 40-2.) Besides, plaintiff 25 made use of the deposition in his opposition to defendants motion for summary 26 judgment in order to support the statement of uncontested facts. (Docket No. 33- 27 28 3.) 1 CIVIL 08-1133 (FAB) (JA) 13 2 3 b. 4 Investigative Reports (Docket No. 31, Exhibits 6 and 8-10) 5 6 Exhibits 6 and 8-10, regarding the investigative interviews conducted by 7 several agents, are not self-authenticated since (1) the documents do not bear the 8 proper seal of the Department of Corrections and Rehabilitation, and (2) because 9 their contents were not properly attested since they were not signed by officials 10 11 authorized to authenticate. 12 admissible pursuant to Federal Rule of Evidence 803(8). I explain. 13 I find that the aforementioned documents are Generally, evidence that constitutes hearsay is not admissible at trial. 14 15 Remington Inv., Inc. v. Quintero & Martínez Co., 961 F. Supp. 344, 351 (D.P.R. 16 1997). Rule 803(8) of the Federal Rules of Evidence provides a general exception 17 to the hearsay rule. The rule states that: 18 19 20 21 22 23 24 Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report . . . , or (C) in civil actions and proceedings . . . , factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. 25 26 27 28 Fed. R. Evid. 803(8). 1 CIVIL 08-1133 (FAB) (JA) 14 2 3 Nonetheless, public records such as investigatory reports, may be 4 5 admissible if they are based on a factual investigation and the report, and any 6 portion that is admitted, is sufficiently trustworthy. See Beech Aircraft Corp. v. 7 Rainey, 488 U.S. 153, 170 (1998). Trustworthiness in this context refers to 8 matters such as whether the evidence is self-authenticating or contemporaneously 9 10 compiled by a person of adequate skill and experience. Blake v. Pellegrino, 329 11 F.3d 43, 48 (1st Cir. 2003). In determining whether an investigative report is 12 trustworthy, a court may consider, among other factors, (1) the timeliness of the 13 investigation; (2) the investigator's skill or experience; (3) whether a hearing was 14 15 16 17 held; and (4) possible bias when reports are prepared with a view to possible litigation. Beech Aircraft Corp. v. Rainey, 488 U.S. at 167 n.11. Based on the foregoing, it is clear that the DCR s investigative reports fall 18 19 under the exception of Rule 803(8) since they were prepared in a timely fashion 20 by public officials during the course of their duties. Thus, it can be reasonably 21 inferred that they are sufficiently trustworthy and comply with the standards 22 established by the Court in Beech Aircraft. 23 24 c. Defendant Izquierdo-Ocasio s sworn statement (Exhibit 24) 25 26 Plaintiff objects to defendants statement of uncontested fact number 49 27 since it is supported by defendant Izquierdo-Ocasio s sworn statement, which 28 1 CIVIL 08-1133 (FAB) (JA) 15 2 3 according to plaintiff is not properly authenticated since defendant Izquierdo4 5 Ocasio lacks competence to testify as required by Federal Rule of Civil Procedure 6 56(e)(1). (Docket No. 33-3, at 5, ¶ 49.) 7 Federal Rule of Civil Procedure 56(e)(1) states: [a] supporting or opposing 8 9 affidavit must be made on personal knowledge, set out facts that would be 10 admissible in evidence, and show that the affiant is competent to testify on the 11 matters stated. Fed. R. Civ. P. 56(e)(1). Additionally, the document must 12 concern facts as opposed to conclusions, assumptions, or surmise, not conclusory 13 14 allegations. Celta Agencies, Inc. v. Denizcilksanayi Ve Ticaaret, A.S., 396 F. 15 Supp. 2d 106, 111 (D.P.R. 2005) (quoting Pérez v. Volvo Car Corp., 247 F.3d 303, 16 316 (1st Cir. 2001), and citing López-Carrasquillo v. Rubianes, 230 F.3d at 414). 17 Furthermore, in order to be admissible, the proffered statements must be specific 18 19 and adequately supported with particularized factual information. Celta 20 Agencies, Inc. v. Denizcilksanayi Ve Ticaaret, A.S., 396 F. Supp. 2d at 112 21 (quoting Perez v. Volvo Car Corp., 247 F.3d at 316.) 22 Plaintiff s argument is unavailing since it fails to set forth facts that would 23 24 cast a shadow over the defendant Izquierdo-Ocasio s personal knowledge of the 25 facts, or his competency to testify nor that the statements made would be 26 inadmissible. 27 28 In other words, plaintiff does not point out the deficiencies in defendant Izquierdo-Ocasio s sworn statement if any. In essence, plaintiff claims 1 CIVIL 08-1133 (FAB) (JA) 16 2 3 that defendant s statement is not properly authenticated since he lacks 4 5 competence to testify as required by Federal Rule of Civil Procedure 56(e)(1). 6 Thus, defendant s statement fully complies with the requirements set out in Rule 7 56(e) since it was made under oath and sets out facts based on his personal 8 knowledge that would be admissible in evidence. 9 10 11 12 2. Defendants request that the following exhibit be stricken: a. Plaintiff s unsworn statement (Docket No. 35, Exhibit 1) 13 14 Defendants request that plaintiff s unsworn statement be stricken from the 15 record since it does not meet the requirements set out in Rule 56 of the Federal 16 Rules of Civil Procedure. (Docket No. 40, at 8, ¶ 20.) 17 18 This court has held that a party can rely on . . . self-serving affidavits 19 containing relevant information to oppose a motion for summary judgment. 20 Rivera-Santiago v. Abbott Pharm. P.R. Ltd., 609 F. Supp. 2d 167, 174 (D.P.R. 21 2009) (citting Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d at 53. 22 Nevertheless, the affidavits must contain specific factual information based on the 23 24 party's personal knowledge. Id. Thus, affidavits submitted in opposition to a 25 motion for summary judgment that merely reiterate allegations made in the 26 complaint, without providing specific factual information made on the basis of 27 28 personal knowledge are insufficient. Id. 1 CIVIL 08-1133 (FAB) (JA) 17 2 3 Although plaintiff s sworn statement is self serving, it provides sufficient 4 5 specific factual information based on his personal knowledge. As such, plaintiff s 6 statement shall not be stricken. 7 3. Relevancy 8 9 Plaintiff objects to defendants statement of uncontested facts number 47 10 due to relevancy. (Docket No. 33-3, at 5, ¶ 47.) Defendants statement reads 11 as follows: 12 13 14 15 A cursory reading of the complaint number 02-2524 (HL) establishes that Julio del Toro Pacheco did not sue Lt. Roberto Izquierdo Ocasio. The only defendants in that lawsuit were Víctor Rivera, Ana Batalla, Héctor Fontánez, José Fellicier and Ramón Díaz. 16 17 (Docket No. 27, at 10, ¶ 47.) 18 19 Under Rule 401 [r]elevant evidence means evidence having any tendency 20 to make the existence of any fact that is of consequence to the determination of 21 the action more probable or less probable than it would be without the evidence. 22 Fed. R. Evid. 401. In determining if certain relevant evidence must be excluded, 23 the court has considerable discretion. See Santos v. Sunrise Med., Inc., 351 F.3d 24 25 26 27 28 587, 592 (1st Cir. 2003). Plaintiff essentially claims that defendant knew he was a member of the New Progressive Party (1) because defendant knew that he used to belong to the 1 CIVIL 08-1133 (FAB) (JA) 18 2 3 escort, a trust position, and (2) because in 2002 he had sued defendant for 4 5 political discrimination. (Docket Nos. 31-22 & 31-23. ) Defendant on the other 6 hand claims he was not sued and that the only people sued were Víctor Rivera, 7 Ana Batalla, Héctor Fontánez, José Fellicier and Ramón Díaz. (Docket No. 27, at 8 10, ¶ 47.) Defendant additionally states he did not know of plaintiff s political 9 10 affiliation until he was summoned and given a copy of the complaint in the present 11 case on February 12, 2008. (Docket No. 27, at 11, ¶ 49.) It is clear then that 12 defendant s statement relates to plaintiff s claim since in order to establish a prima 13 facie case for political discrimination plaintiff has to prove first that defendants 14 15 knew about his political affiliations, and second that his political views were the 16 reason for defendants adverse employment action. It is unquestionable then that 17 defendants statement number 47 is relevant pursuant to Rule 401 of the Federal 18 Rules of Evidence. 19 20 21 22 B. Failure to State a Claim Under Section 1983 Plaintiff brings a claim under section 1983, which creates a private cause of action for persons who have had their civil rights violated by state actors. 42 23 24 U.S.C. § 1983. There is no heightened pleading standard in civil rights cases. 25 Rosario Rivera v. Aqueduct & Sewer Auth. of P.R., 472 F. Supp. 2d 165, 168 26 (D.P.R. 2007). Even so, plaintiffs must plead enough for a necessary inference 27 28 to be reasonably drawn. Marrero-Gutiérrez v. Molina, 491 F.3d 1, 9 (1st Cir. 1 CIVIL 08-1133 (FAB) (JA) 19 2 3 2007) (quoting Torres-Viera v. Laboy-Alvarado, 311 F.3d 105, 108 (1st Cir. 4 5 2002)). 6 requirements. First, he must identify an act or omission undertaken under color 7 of state law. Calderón-Garnier v. Sánchez-Ramos, 439 F. Supp. 2d 229, 236 8 To state a claim under section 1983, a plaintiff must satisfy two (D.P.R. 2006), aff d, 506 F.3d 22 (1st Cir. 2007) (quoting Aponte-Torres v. Univ. 9 10 of P.R., 445 F.3d 50, 55 (1st Cir. 2006)). This prong is easily satisfied. Puerto 11 Rico is considered a state for Section 1983 purposes and the complaint alleges 12 actions attributed to Puerto Rican officials. Calderón-Garnier v. Sánchez-Ramos, 13 439 F. Supp. 2d at 236 (citing Redondo-Borges v. United States Dep t of Hous. & 14 15 Urban Dev., 421 F.3d 1, 7 (1st Cir. 2005); Aponte-Torres v. Univ. of P.R., 445 16 F.3d at 55). Second, the plaintiff must allege he was deprived of a federally 17 secured right. Calderón-Garnier v. Sánchez-Ramos, 439 F. Supp. 2d at 236 18 (citing Aponte-Torres v. Univ. of P.R., 445 F.3d at 55). 19 20 I previously held that under the standard for a Rule 12(b)(6) motion, 21 plaintiff stated a claim under section 1983. However, now I must determine if 22 plaintiff can state a claim under the summary judgment standard, which requires 23 the court to indulge in favor of the non-moving party all reasonable inferences 24 25 arising from such facts as may have been established by affidavit, deposition, or 26 other such reliable method. For the reasons set forth below, I find that plaintiff 27 fails to state a claim under section 1983. 28 1 CIVIL 08-1133 (FAB) (JA) 20 2 3 1. Fourteenth Amendment Due Process 4 5 To establish a procedural due process claim under section 1983, a plaintiff 6 must allege first that it has a property interest as defined by state law and, 7 second, that the defendants, acting under color of state law, deprived it of that 8 9 property interest without constitutionally adequate process. Marrero-Gutiérrez 10 v. Molina, 491 F.3d at 8 (quoting PFZ Props., Inc. v. Rodríguez, 928 F.2d 28, 30 11 (1st Cir. 1991)). In order to establish a constitutionally-protected property 12 interest, a plaintiff must demonstrate that [he] has a legally recognized 13 14 expectation that [he] will retain [his] position. Santana v. Calderón, 342 F.3d 18, 15 24 (1st Cir. 2003), cited in González-de-Blasini v. Family Dep t, 377 F.3d 81, 86 16 (1st Cir. 2004); Marrero-Gutiérrez v. Molina, 491 F.3d at 8. 17 18 Although it has not been made explicit, I infer that plaintiff was a career 19 employee at DCR. Moreover, defendants do not dispute the point. (Docket No. 20 7, at 8-10.) Under Puerto Rico law, a tenured public employee has a property 21 interest in his continued employment. Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 22 1173 (1st Cir. 1988); Soto González v. Rey Hernández, 310 F. Supp. 2d 418, 425 23 24 (D.P.R. 2004). As such, plaintiff had a property interest in his continued 25 employment and his termination required procedural due process. See Cleveland 26 Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-40 (1985). 27 28 1 CIVIL 08-1133 (FAB) (JA) 21 2 3 The Due Process Clause of the Fourteenth Amendment guarantees those 4 5 public employees who possess a property interest in continued employment the 6 right to notice and a hearing prior to the termination of their employment. 7 Febus-Cruz v. Sauri-Santiago, 2009 WL 2195779, at *6 (D.P.R. July 23, 2009) 8 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 542-44; González-de- 9 10 Blasini v. Family Dep t, 377 F.3d at 86; Kauffman v. P.R. Tel. Co., 841 F.2d at 11 1173). The notice may be oral and/or written and must inform the tenured public 12 employee of the charges against him. Also it must contain an explanation of the 13 employer s evidence, and the employee must have the opportunity to present his 14 15 side of the story. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 546. 16 Defendants argue that plaintiff s claim must be dismissed since he was not 17 deprived of his procedural due process rights. (Docket No. 28, at 16, ¶ 2.) I 18 19 agree. First, plaintiff s procedural rights were not violated since plaintiff was 20 notified of the statutes that he had apparently violated as well of the charges that 21 were made against him. Second, plaintiff was informed that if he did not agree 22 with the charges he could request an informal administrative hearing where he 23 could present the necessary evidence before an officer who would then make 24 25 recommendations. Plaintiff requested the hearing and attended the same 26 accompanied by 27 statement. Plaintiff appealed to the CIPA in order to challenge his discharge. 28 his attorney. However, plaintiff decided not to make a 1 CIVIL 08-1133 (FAB) (JA) 22 2 3 After the evidentiary hearing, CIPA confirmed the agency s decision to discharge 4 5 plaintiff from DCR. In sum, plaintiff was notified of the charges against him, he 6 was given an explanation of the charges as well as the evidence supporting them, 7 and he was given a hearing. Furthermore, defendants request to dismiss the 8 present claim was unopposed by plaintiff. Plaintiff failed to provide any evidence 9 10 11 12 that would show that his procedural due process rights were violated. Thus, plaintiff s claim is dismissed since it fails to state a procedural due process claim. 2. First Amendment Political Discrimination 13 14 Defendants claim that plaintiff s political discrimination claim should be 15 dismissed because plaintiff has failed to state a prima facie case. 16 Amendment protects non-policymaking public employees from The First adverse 17 18 employment actions based on their political opinions. See Rutan v. Republican 19 Party of Ill., 497 U.S. 62, 75-76 (1990); Padilla-García v. Guillermo Rodríguez, 20 212 F.3d 69, 74 (1st Cir. 2000). 21 To establish a prima facie case, the plaintiff must show that (1) the plaintiff 22 23 and the defendant belong to opposing political affiliations; (2) the defendant has 24 knowledge of the plaintiff's affiliation; (3) a challenged employment action 25 occurred; and (4) political affiliation was a substantial or motivating factor behind 26 the challenged employment action. Febus-Cruz v. Sauri-Santiago, 2009 WL 27 28 2195779, at *4 (citing Martínez-Vélez v. Rey-Hernández, 506 F.3d 32, 39 (1st Cir. 1 CIVIL 08-1133 (FAB) (JA) 23 2 3 2007); Peguero-Moronta v. Santiago, 464 F.3d 29, 48 (1st Cir. 2006)). Once 4 5 plaintiff has established a prima facie case, [t]he burden then shifts to the 6 defendant, who must articulate a nondiscriminatory basis for the adverse 7 employment action and establish by a preponderance of the evidence that he 8 would have taken the same employment action regardless of the plaintiff's political 9 10 affiliation. Febus-Cruz v. Sauri-Santiago, 2009 WL 2195779, at *4 (citing 11 Padilla-García v. Guillermo Rodríguez, 212 F.3d at 74); Rodríguez-Ríos v. Cordero, 12 138 F.3d 22, 24 (1st Cir. 1998)). 13 14 Evidence of a highly-charged political environment coupled with the parties' 15 competing political persuasions may be sufficient to show discriminatory animus, 16 especially where a plaintiff was a conspicuous target for political discrimination. 17 Febus-Cruz v. Sauri-Santiago, 2009 WL 2195779, at *4 (citing Rodríguez-Ríos v. 18 19 Cordero, 138 F.3d at 24); see also Padilla-García v. Guillermo Rodríguez, 212 F.3d 20 at 75-76. However, [e]vidence that a plaintiff held a trust position under a 21 previous administration of opposing political affiliation, and that plaintiff is a well- 22 known supporter of a different political party . . . may not suffice to show that a 23 challenged employment action was premised upon political affiliation. Febus-Cruz 24 25 26 27 28 v. Sauri-Santiago, 2009 WL 2195779, at *4 (citing González-de-Blasini v. Family Dep t, 377 F.3d at 85-86). 1 CIVIL 08-1133 (FAB) (JA) 24 2 3 Plaintiff has alleged all four elements of a prima facie case: (1) that 4 5 defendants are members of the PDP while plaintiff is a member of the NPP; (2) 6 that defendants know of plaintiff s party membership; (3) that plaintiff was 7 terminated from his employment; and (4) that defendants terminated plaintiff 8 because of his political affiliation. Defendants argue that plaintiff s claims are 9 10 based on conclusory allegations and unfounded speculation. Specifically, 11 defendants state two things, first that plaintiff cannot establish a prima facie case 12 because they did not know of plaintiff s political affiliation, and second that 13 plaintiff s political affiliation was not a substantial or motivating factor in his 14 15 termination. (Docket No. 28, at 7-13.) 16 Plaintiff relies on the following allegations to establish the second element 17 of his prima facie case, that defendants know he is a member of the NPP. Plaintiff 18 19 claims that he is an active member of the NPP, and actively participated in the 20 elections of November 2004. (Docket No. 1, at 7, ¶ 34.) Also, plaintiff states that 21 when defendants took office they initiated a purge of employees that were 22 politically identified with the NPP, removing them from their positions, harassing 23 them, taking away their responsibilities, duties and functions all under subterfuge 24 25 discharging or demoting them. (Docket No. 1, at 7, ¶ 34.) Furthermore, plaintiff 26 argues that before he was dismissed defendant Izquierdo-Ocasio began a 27 systematical persecution and harassment telling him that he was going to be 28 1 CIVIL 08-1133 (FAB) (JA) 25 2 3 dismissed and that his letter of dismissal was already signed by defendant Pereira, 4 5 and that the only way he could keep his job was if he switched to the PDP. 6 (Docket No. 1, at 9, ¶ 43.) Finally, plaintiff states that after being discharged 7 defendants have appointed, retained and contracted new employees identified 8 with the PDP either as career employees, transitory employees or employees 9 10 under contract and/or under federal state funded programs to perform the duties 11 and responsibilities that were previously performed by him. (Docket No. 1, at 10, 12 ¶ 44.) 13 14 Plaintiff s assertion that defendants knew that he was affiliated with the NPP 15 and that he was fired because of his political views are conclusory. The evidence 16 on the record shows that plaintiff (1) did not know defendant Pereira; (2) had 17 never spoken to him; (3) had never spoken about politics with him; (4) had never 18 19 told him of his political preference; (5)was never told by defendant Pereira to vote 20 for the PDP; and (6) that the only reason he is suing defendant Pereira is because 21 he is the Administrator of the DCR. (Docket Nos. 31-20 & 31-21.) Also, the 22 evidence demonstrates that plaintiff was not sure if in fact defendant Izquierdo- 23 Ocasio knew of his political affiliation to the NPP. Plaintiff admitted that he 24 25 26 27 28 believed defendant Izquierdo-Ocasio knew he was affiliated to the NPP because he had belonged to the escort, a trust position. (Docket No. 31-22.) 1 CIVIL 08-1133 (FAB) (JA) 26 2 3 Plaintiff s belief that defendant Izquirdo-Ocasio knew he was a member of 4 5 the NPP because he had held a trust position under a previous administration of 6 opposing political affiliation is insufficient to show that a challenged employment 7 action was premised upon political affiliation. Plaintiff s general allegations do not 8 suffice in order to carry his burden of establishing the element of knowledge. 9 10 Moreover, assuming that plaintiff was able to establish a prima facie case, there 11 is still no evidence in the record that would show plaintiff was terminated because 12 of his political affiliation to the NPP. On the contrary the evidence demonstrates 13 that plaintiff was discharged as a result of the administrative investigation that 14 15 ensued after a criminal complaint was presented against him. It is clear then that 16 plaintiff s discharge was nor discriminatory. Therefore, plaintiff s claim is 17 dismissed since it fails to state a prima facie case for political discrimination. 18 19 20 21 22 C. Qualified Immunity Drawing on Supreme Court precedent and its own case law, the First Circuit assesses claims of qualified immunity under a three-part test: (1) whether plaintiff's allegations, if true, establish a constitutional violation; (2) whether that 23 24 right was clearly established at the time of the alleged violation; and (3) whether 25 a similarly situated reasonable official would have understood that the challenged 26 action violated the constitutional right at issue. Mihos v. Swift, 358 F.3d 91, 102 27 28 (1st Cir. 2004) (citing Suboh v. Dist. Attorney's Office of Suffolk Dist., 298 F.3d 1 CIVIL 08-1133 (FAB) (JA) 27 2 3 81, 90 (1st Cir. 2002)); see also Harlow v. Fitzgerald, 457 U.S. 800, 818-19 4 5 (1982). In order to overcome a qualified immunity defense, plaintiff must lead 6 the court to answer all three prongs of this test in the affirmative. Mihos v. Swift, 7 358 F.3d at 98-99. 8 9 Plaintiff failed to overcome the qualified immunity defense since his rights 10 under the First and Fourteenth Amendment have not been violated. As stated 11 earlier, plaintiff was not able to state a procedural due process claim nor a prima 12 facie case for political discrimination. Seeing that plaintiff s constitutional rights 13 14 15 16 have not been violated, I find there is no necessity for further consideration of the defense of qualified immunity. D. Supplemental Jurisdiction Claims 17 18 Pursuant to 28 U.S.C. § 1367, a district court may decline to exercise 19 supplemental jurisdiction if it has dismissed all claims over which it has original 20 jurisdiction. 28 U.S.C. § 1367(c)(3); see Gonzalez-de-Blasini v. Family Dep t, 21 377 F.3d at 89; Claudio-Gotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 104 22 23 (1st Cir. 2004). Also, it is common for district courts not to exercise supplemental 24 jurisdiction over a plaintiff's state law claims when all of its federal claims have 25 been dismissed. See Educadores Puertorriqueños v. Rey Hernández, 508 F. Supp. 26 2d 164, 186 (D.P.R. 2007) (citing McBee v. Delica Co., 417 F.3d 107, [116] (1st 27 28 Cir. 2005); González-de-Blasini v. Family Dep t, 377 F.3d at 89); Camelio v. Am. 1 CIVIL 08-1133 (FAB) (JA) 28 2 3 Fed n, 137 F.3d 666, 672 (1st Cir. 1998) (quoting United Mine Workers v. Gibbs, 4 5 383 U.S. 715, 726 (1966)) ( Certainly, if the federal claims are dismissed before 6 trial, . . . the state claims should be dismissed as well. ); Rodríguez v. Doral 7 Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995) ( As a general principle, the 8 unfavorable disposition of a plaintiff's federal claims at the early stages of a suit 9 10 11 12 . . . will trigger the dismissal without prejudice of any supplemental state-law claims. ). Furthermore, if the federal claims are properly dismissed, the District Court 13 14 does not abuse its discretion in declining to exercise supplemental jurisdiction over 15 the state-law claims asserted in the case. Rodríguez Rivas v. Police Dep t of P.R., 16 483 F. Supp. 2d 137, 140 (D.P.R. 2007) (citing Ramos-Piñero v. Puerto Rico, 453 17 F.3d 48, 55 (1st Cir. 2006)). Accordingly, plaintiff will be at the liberty to bring 18 19 his unadjudicated claims before the Commonwealth courts. Gonzalez-de-Blasini 20 v. Family Dep t, 377 F.3d at 89. Having dismissed all of plaintiff s federal claims 21 against defendants, the court will not exercise supplemental jurisdiction. 22 Therefore, the court dismisses without prejudice plaintiffs supplemental claims. 23 24 25 26 V. CONCLUSION Plaintiff has failed to establish that defendants had knowledge about his political affiliation to the NPP. Plaintiff also failed to establish that his political 27 28 affiliation was a substantial or motivating factor in his termination. Thus, plaintiff 1 CIVIL 08-1133 (FAB) (JA) 29 2 3 has no First Amendment claim since he failed to state a prima facie case for 4 5 political discrimination. I also find that plaintiff does not have a Fourteenth 6 Amendment claim since he failed to establish a violation of his procedural due 7 process rights. Therefore, summary judgment is granted and all federal claims 8 are DISMISSED WITH PREJUDICE. The state law claims are DISMISSED WITHOUT 9 10 11 PREJUDICE. The Clerk is directed to enter judgment accordingly. At San Juan, Puerto Rico, this 7th day of October, 2009. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge

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