Montanez-Allman et al v. Garcia-Padilla et al
Filing
77
OPINION AND ORDER granting 66 Motion to Dismiss for Failure to State a Claim. Signed by Judge Juan M. Perez-Gimenez on 03/26/2018. (NNR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
AGUSTIN MONTAÑEZ-ALLMAN, ET AL.,
Plaintiffs,
CIVIL NO. 13-1683 (PG)
v.
ALEJANDRO GARCIA-PADILLA, ET AL.,
Defendants.
OPINION AND ORDER
Pending before the court is the unopposed motion to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(6) filed by Defendants Alejandro
Garcia-Padilla (“Garcia-Padilla), Elizabeth Lopez-Cabrera (“Lopez-Cabrera”),
Eduardo
Bhatia-Gautier
(“Bhatia”),
(collectively, “Defendants”).
1
and
Miguel
Pereira-Castillo
(“Pereira”)
Docket No. 66. After carefully considering the
Defendants’ arguments, the court grants the motion for the reasons explained
below.
I. BACKGROUND
Since the facts of this case have been stated in previous decisions, the
court only briefly recapitulates them here. See e.g. Docket Nos. 18 and 36.
In
March
of
2010,
former
Puerto
Rico
Governor
Luis
Fortuño-Burset
(“Fortuño”), of the New Progressive Party (“NPP”), appointed Augustin MontañezAllman (“Montañez” or “Plaintiff”) as Veteran’s Advocate pursuant to Law No.
57-1987. During Fortuño’s administration, the Puerto Rico Legislature enacted
Reorganization Plan No. 1-2011, known as the Advocate Office Reorganization Plan
(“Plan No. 1”), which consolidated the administrative functions and duties of
four existing ombudsmen offices, including the Veteran’s, under the Advocate
Office Administration (“AOA” or “OAP” for its Spanish acronym). Plan No. 1
created the “Office of the Veteran’s Advocate;” vested the Agency’s head with
rule-making
and
decision-making
authority;
established
a
fixed
term
of
1 Garcia-Padilla and Lopez filed the motion in their personal and official capacities,
while the remaining defendants did so only in their official capacities. See Docket No. 66 at
page 1. Co-defendant Col. Hector Lopez has neither joined Defendants’ motion nor moved for
dismissal of the individual and official capacity claims brought against him in the amended
complaint.
Civil No. 13-1683
Page 2
appointment for the Advocate position, and placed limitations on the governor’s
removal power. In June 2011, Fortuño reappointed Montañez as Veteran’s Advocate
for a ten-year term, to expire in 2021.
After the November 2012 General Elections, Garcia-Padilla, of the Popular
Democratic Party (“PDP”), became governor. In July of 2013, the Legislature
enacted Law 75-2013 (“Law 75”) and Law No. 79-2013 (“Law 79”). 2 The former
repealed Plan No. 1, and the latter purported to create a new VA Office, now
called the “Office of the Veterans Advocate of the Commonwealth of Puerto Rico.” 3
The
second
amended
complaint
states
that
the
new
Advocate
position
was
undistinguishable to that supposedly eliminated: the governor’s pick would have
nearly
identical
functions,
duties
and
responsibilities,
enjoy
similar
privileges and remain term-limited. See Docket No. 12 at ¶¶ 23-26.
Plaintiff alleges that in August of 2013, he received several letters from
Garcia-Padilla pertaining to the transition process between the “extinct” VA
Office and the “new” one. Id. at ¶¶ 31-35. During this time, Plaintiff worked
on the transition alongside members of Garcia-Padilla’s Transition Committee.
Id. at ¶¶ 31-35. Apparently, he was never advised of his imminent removal. Id.
However, on August 28, 2013, Plaintiff received written notice of co-defendant
Lopez-Cabrera’s appointment as Acting Veteran’s Advocate under Law 79. See id.
at ¶ 38. On that same date, Garcia-Padilla’s Chief of Staff, Ingrid Vila, asked
Montañez to surrender control of the VA Office. The instant action soon followed.
Procedural Background
On October 6, 2013, Montañez filed the second amended complaint (or the
“amended complaint”) against Garcia-Padilla and other PDP Defendants alleging
violations of his rights under the First, Fifth and Fourteenth Amendments to
the United States Constitution and Puerto Rico law. See Docket No. 12. Montañez’s
wife and their children joined as plaintiffs for purposes of the state law
claims. See id. at 2. The complaint included a preliminary injunction request,
which the court granted on Fourteenth Amendment grounds. See Docket No. 36.
Defendants appealed. On April 1, 2015, the First Circuit Court of Appeals
2
As noted in previous decisions, Law 75 established a thirty-day transition period during
which the AOA’s resources would be transferred to the different ombudsmen offices under the advice
of the Office of Management and Budget (“OGP” for its Spanish acronym).
3 Given the statutory name changes made to the Office of the Veteran’s Advocate and to the
ombudsman position itself, for ease of reference, the court will use the term “VA Office” when
referring to the employing agency, and “Advocate” when referring to the agency’s director.
Civil No. 13-1683
Page 3
remanded the case with instructions to vacate the preliminary injunction so that
Plaintiff could file suit in Puerto Rico court. See Montanez-Allman v. GarciaPadilla, 782 F.3d 42, 46 (1st Cir. 2015). The First Circuit explained that in
light of the Puerto Rico Supreme Court’s opinion in Díaz–Carrasquillo v. García–
Padilla, 2014 TSPR 75, 2014 WL 3013335 (P.R. 2014) (certified translation
provided by the court), Plaintiff would not suffer irreparable injury if denied
federal injunctive relief. See Montanez-Allman, 782 F.3d at 45-46. On April 28,
2015, this court dismissed the Fourteenth Amendment claims. 4 See Dockets Nos.
56 and 57.
The Pending Claims
Mainly, Plaintiff alleges that Defendants conspired among themselves to
deprive him of his civil rights under 42 U.S.C. §§ 1983 and 1985 by removing
him from the Advocate post solely because of his political affiliation to the
NPP. See Docket No. 12 at ¶¶ 49 and 54. Defendants move for dismissal of the
amended complaint in its entirety under Rule 12(b)(6). See Docket No. 66.
Defendants
mostly
argue
that
Plaintiff’s
claim
fails
because
political
affiliation is an appropriate requirement for the Advocate position. Id. at 1116. In addition, Defendants (save for Col. Lopez) have raised official, qualified,
absolute or Eleventh Amendment immunity. 5 Id. at 27-34.
Against this background, the court parses the legal standard applicable to
the matter at hand.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of a
complaint that fails to state a claim upon which relief could be granted. “To
avoid dismissal, a complaint must provide ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Garcia-Catalan v. U.S.,
734 F.3d 100, 102 (1st Cir. 2013) (quoting FED.R.CIV.P. 8(a)(2)). When ruling on
a motion to dismiss under this rule, the court must “ask ‘whether the complaint
“states a claim to relief that is plausible on its face,” accepting the
plaintiff’s factual allegations and drawing all reasonable inferences in the
4 Although Plaintiff has kept mum as to the success of his state court endeavors, the court
is aware that Montañez was reinstated to the Advocate position.
5 Lopez-Cabrera and Garcia-Padilla raise qualified and Eleventh Amendment immunity. GarciaPadilla also raises official immunity. Bhatia and Gautier raise absolute immunity.
Civil No. 13-1683
Page 4
plaintiff’s favor.’” Cooper v. Charter Communications Entertainments I, LLC,
760 F.3d 103, 106 (1st Cir. 2014) (citing Maloy v. Ballori–Lage, 744 F.3d 250,
252 (1st Cir. 2014)). The court “may augment these facts and inferences with data
points gleaned from documents incorporated by reference into the complaint,
matters of public record, and facts susceptible to judicial notice.” A.G. ex rel.
Maddox v. v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (citing Haley v.
City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)).
“To cross the plausibility threshold, the plaintiff must ‘plead[ ] factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.’” Cooper, 760 F.3d at 106 (citing Maloy,
744 F.3d at 252). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is,
“[f]actual allegations must be enough to raise a right to relief above the
speculative level, … , on the assumption that all the allegations in the complaint
are true (even if doubtful in fact) … .” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citation omitted).
In deciding a motion to dismiss, courts employ a two-pronged analysis.
First, we identify and disregard statements in the complaint that consist of
legal conclusions couched as facts. See Ocasio-Hernandez v. Fortuno-Burset, 640
F.3d 1, 12 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see also Maldonado
v. Fontanes, 568 F.3d 263, 266 (1st Cir. 2009) (citing Iqbal, 556 U.S. at 678)
(court “need not accept as true legal conclusions from the complaint or naked
assertions
devoid
of
further
factual
enhancement”).
Then,
all
the
“[n]on-
conclusory factual allegations in the complaint must then be treated as true,
even if seemingly incredible.” Ocasio-Hernandez, 640 F.3d at 12 (citing Iqbal,
556 U.S. at 681). “Determining whether a complaint states a plausible claim for
relief will … be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 664-664.
III. DISCUSSION
A. Section 1983
In the instant case, Montañez’s federal claims are based on Section 1983,
which “provides a remedy for deprivations of rights secured by the Constitution
and laws of the United States when that deprivation takes place ‘under color of
any
statute,
ordinance,
regulation,
custom,
or
usage,
of
any
State
or
Territory.’” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 924 (1982) (quoting
Civil No. 13-1683
Page 5
42 U.S.C. § 1983). Moreover, “Section 1983 is the conventional vehicle through
which
relief
is
sought
for
claims
of
political
discrimination
by
state
actors.” Garcia-Gonzalez v. Puig-Morales, 761 F.3d 81, 92 (1st Cir. 2014)
(quoting Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013)).
To prevail in a Section 1983 claim, a plaintiff must plausibly plead three
elements: deprivation of a right, a causal connection between the actor and the
deprivation, and state action. See 42 U.S.C. § 1983; Sanchez v. Pereira–Castillo,
590 F.3d 31, 41 (1st Cir. 2009). To establish the second (or causation) element,
plaintiff must sufficiently allege: (1) that the actions of the defendant
deprived him or her of a protected right, and (2) “that the defendant's conduct
was intentional, grossly negligent, or amounted to a reckless or callous
indifference
to
the
plaintiff's
constitutional
rights.”
Concepcion
v.
Municipality of Gurabo, 558 F. Supp. 2d 149, 162 (D.P.R. 2007). Furthermore,
the complaint’s allegations must show the link between each particular defendant
and the federal right violation. See González–Piña v. Rodríguez, 407 F.3d 425,
432 (1st Cir. 2005). A plaintiff may do so by indicating any “personal action
or inaction [by the defendants] within the scope of [their] responsibilities
that would make [them] personally answerable in damages under Section 1983.”
Pinto v. Nettleship, 737 F.2d 130, 133 (1st Cir. 1984).
B. First Amendment
1.
Political Discrimination
Montañez alleges he was the victim of political discrimination. As we know,
the
First
Amendment
“insulates
public
employees
who
hold
non-policymaking
positions from the vicissitudes of personnel decisions rooted in partisan
political concerns.” Bergeron v. Cabral, 560 F.3d 1, 7 (1st Cir. 2009) (citing
Rutan v. Repub. Party of Ill., 497 U.S. 62, 74–76 (1990)). Basically, government
officials cannot take adverse employment action based on “a person’s political
affiliation, ‘unless political affiliation is an appropriate requirement for
the position.’” Garcia–Gonzalez, 761 F.3d at 92 (quoting Méndez–Aponte v.
Bonilla, 645 F.3d 60, 64 (1st Cir. 2011)).
In the motion to dismiss, Defendants adduce that the Veteran’s Advocate
“is a high ranking political official” with policymaking powers and duties, and
therefore, political loyalty is an appropriate consideration for the position.
See Docket No. 66 at 12-16. Without the benefit of Plaintiff’s response or
Civil No. 13-1683
Page 6
opposition, the court must determine whether the position here at issue falls
within the exception to the First Amendment’s bar on political dismissals
recognized in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445
U.S. 507 (1980).
In
“reserved
a
nutshell,
for
the
instances
Elrod-Branti
where
exception
political
invoked
affiliation
by
is
Defendants
an
is
appropriate
requirement for the effective performance of the public office involved.” Galloza
v. Foy, 389 F.3d 26, 28 (1st Cir. 2004) (quoting Branti, 445 U.S. at 518 (1980));
see also Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 239 (1st Cir. 1986)
(en banc) (drawing several propositions in support of the party-affiliation
exception). Ultimately, whether political loyalty is an appropriate basis for
the challenged action or conduct is a question of law for the court. See MendezAponte v. Bonilla, 645 F.3d 60, 65 (1st Cir. 2011). The First Circuit has
developed a two-step approach to make this determination, focusing first on the
political nature of the employing agency, and second, on the position at issue
and its specific features. See id. (citing Ruiz–Casillas v. Camacho–Morales,
415 F.3d 127, 132 (1st Cir. 2005) and Hadfield v. McDonough, 407 F.3d 11, 16
(1st Cir. 2005)).
The Veteran’s Advocate Office
The VA Office is the main agency within the Executive Branch in charge of
safeguarding the rights of Puerto Rican veterans and their families. It was
created for the purpose of advising, assisting and providing comprehensive
services to the veteran population, and to that end, the Legislature has
conferred upon the VA Office power to process, manage and investigate veterans’
claims and obtain benefits on their behalf. 6 See Plan No. 1, Art. 2, 24 (Docket
No. 36-1 at 3, 20); Law 79, Art. 4 (Docket No. 34-1 at 2). Among others, the VA
6 Out of an abundance of caution, the court has considered the text of Plan No. 1 and Law
79, as they reflect what the law was at the time of Plaintiff’s appointment in June 2011 and his
removal in August 2013. In so doing, the court takes note that both laws are sufficiently referred
to in the second amended complaint (Docket No. 12), there is no dispute as to the authenticity of
the certified translations on record, and alternatively, they are matters susceptible to judicial
notice. Accordingly, the court may consider both of them under the Rule 12(b)(6) standard. See
Rodriguez-Ramos v. Hernandez-Gregorat, 685 F.3d 34, 37 (1st Cir. 2012) (supplementing the wellpleaded facts found in the complaint with reference to Puerto Rico statutes and facts susceptible
to judicial notice in order to place the allegations in context); Berrios-Romero v. Estado Libre
Asociado de Puerto Rico, 641 F.3d 24, 27 (1st Cir. 2011)(noting that the court “may take judicial
notice of law at any time”); Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir.
2009).
The certified translation of Plan No. 1 can be found at Docket No. 36-1, and the certified
translation of Law 79, at Docket No. 34-1.
Civil No. 13-1683
Page 7
Office has authority to: develop assistance and advisory programs; represent
veterans before any administrative, judicial or legislative body; participate
in the formulation of public policy; oversee and enforce compliance with
applicable laws and regulations; serve as a liaison between veterans and other
government agencies; and receive and administer funds (from both public and
private sources) to carry out its operations. See Plan No. 1, Art. 24, 26 (Docket
No. 36-1 at 20-22); Law 79, Art. 6 (Docket No. 34-1 at 3-4).
Plan No. 1 authorized the Advocate “[t]o adopt the rules and regulations
[] needed to implement projects and programs … and discharge the functions
expressly delegated to him/her by virtue of th[e] Plan.” See Plan No. 1, Art.
27(e) (Docket No. 36-1 at 23). Law 79, on the other hand, delegated similar
rulemaking powers to the VA Office. See Law 79, Art. 6(d) (Docket No. 34-1 at
4) (authorizing the VA Office to prepare and recommend legislative measures to
the Legislature); Art. 13 (Docket No. 34-1 at 9) (conferring power of regulation
to the VA Office in accordance with Law No. 170-1998, as amended known as the
“Uniform Administrative Procedure Act of the Commonwealth of Puerto Rico”).
The First Circuit has set a low bar for the first prong, stating that it
is satisfied as long as the employing agency “handle[s] matters potentially
subject to partisan political differences….” Galloza, 389 F.3d at 29 (emphasis
added) (citing Mendez–Palou v. Rohena–Betancourt, 813 F.2d 1255, 1258 (1st Cir.
1987)). Here, the court finds that the VA Office’s functions entail decisionmaking on issues where there could be room for political disagreement on goals
or
their
implementation.
See
Jimenez–Fuentes, 807
F.2d
at
241–42.
In
so
concluding, the court takes into account the discharging agency’s functions,
especially those related to the formulation of public policy, the development
of government funded programs, and the fact that it provides important (health,
legal,
technical)
services
to
the
veteran
population,
by
itself
or
in
coordination with other government agencies. See e.g. Foote v. Town of Bedford,
642 F.3d 80, 86 (1st Cir. 2011) (holding that town commission was a policymaking
body since its main function was to advise the town’s legislative branch, had
been delegated broad powers related to the formulation and implementation of
park policy, and had duty to coordinate recreational activities with other
governmental actors). 7
7 For additional First Circuit cases regarding Puerto Rico or other government agencies
that satisfy the first prong of the test, see O’Connell v. Marrero-Recio, 724 F.3d 117, 126 (1st
Civil No. 13-1683
Page 8
The Veteran’s Advocate Position
For the second element of the test, the court considers the specific
features of the Advocate position occupied by Montañez. By statute, the Advocate
has
authority
to
adjudicate
complaints;
conduct
investigations
and
obtain
information or evidence relevant to the complaints and all other issues handled
by the VA Office; preside over administrative hearings; appear on behalf of
veterans and their families in different forums; and enforce or order compliance
with the applicable laws and regulations in any case in which a person or entity,
public or private, denies or in any way affects their interests, rights and
privileges. See Plan No. 1, Art. 27 (Docket No. 36-1 at 22-24); Law 79, Art. 710 (Docket No. 34-1 at 4-7). Administratively speaking, the Advocate appoints
personnel, and under Law 79, determines the internal organization of the VA
Office. See Plan No. 1, Art. 27(d) (Docket No. 36-1 at 22); Law 79, Art. 7(a)(d) (Docket No. 34-1 at 4-5).
Also, the Advocate has the duty to advise the Governor and the Legislature,
so naturally, the individual in that position could potentially influence matters
subject to differences of opinions on policy grounds. Taking into account the
Advocate’s
broad
investigative,
regulatory,
and
supervisory
powers,
administrative or managerial-like responsibilities, and involvement in policy,
even if only as an implementer or representative, the court finds that the
position is one for which political affiliation is an appropriate consideration.
See Olmeda v. Ortiz-Quiñones, 434 F.3d 62, 66-67 (1st Cir. 2006) (so holding in
case where the plaintiff occupied position within Puerto Rico agency with policymaking functions, at least as an adviser, expected on occasion to serve as a
representative of the agency itself); Duriex–Gauthier v. Lopez–Nieves, 274 F.3d
4, 10 (1st Cir. 2001) (holding that the personnel officer in Puerto Rico's
Ombudsman's Office was a policymaking position, notwithstanding a number of
“technical and administrative” duties); see also Torres Lopez v. Garcia-Padilla,
209 F.Supp. 3d 448, 458-59 (D.P.R. 2016) (holding that chairperson of the
Telecommunications
Regulatory
Board
of
Puerto
Rico
had
sufficient
administrative, discretionary, and policy-making authority to render position
one for which political affiliation was an appropriate consideration); Torres-
Cir. 2013) (Puerto Rico Permits and Regulation Administration and Puerto Rico Buildings
Authority); Mendez-Aponte, 645 F.3d at 65 (Puerto Rico State Department); Rosenberg v. City of
Everett, 328 F.3d 12, 18 (1st Cir. 2003) (community television station administered by city
government, but funded by private company); Jimenez–Fuentes, 807 F.2d at 244 (Puerto Rico Urban
Development and Housing Corporation).
Civil No. 13-1683
Page 9
Rivera v. Garcia-Padilla, 156 F.Supp. 3d 237, 242 (D.P.R. 2016) (holding that
head of Puerto Rico agency lacked First Amendment protection against political
dismissal
in
light
of
office-holder’s
broad
discretionary
functions
in
overseeing compliance with statutory policy, hiring personnel, as well as its
rule-making authority, notwithstanding quasi-judicial functions performed by
agency). 8
For the foregoing reasons, the court finds that Plaintiff has failed to
plausibly
state
a
First
Amendment
claim
of
political
discrimination.
Consequently, that claim is DISMISSED WITH PREJUDICE. Having so ruled, the court
need not address Defendants’ alternative grounds for dismissal, including their
claims of official, qualified, absolute or Eleventh Amendment immunity.
2.
Free Speech
Montañez advances another First Amendment claim, alleging that Defendants
harassed and removed him from the Advocate position as punishment for exercising
his right to free speech. See Docket No. 12 at ¶¶ 50, 53. Defendants request
dismissal of this claim, arguing that the amended complaint fails to allege
Plaintiff indeed spoke out as a citizen on a matter of public concern. See
Docket No. 66 at 219-20.
The First Circuit has crafted a three-part test to determine whether a
public employee has an actionable free speech claim under the First Amendment.
First, a court must ask whether the employee spoke as a citizen on a matter of
public concern. See Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007). “If the
answer is no, the employee has no First Amendment cause of action based on his
or her employer’s reaction to the speech.” Id. (citing Garcetti v. Ceballos,
547 U.S. 410, 418 (2006)). After carefully reviewing the amended complaint, the
court is convinced that Plaintiff has failed to allege a single instance where
8 In a handful of cases, the First Circuit has “upheld political dismissals of mid- to
upper-level employees where the employee ‘merely represented the agency’s policy positions to
other entities or to the public or where important personnel functions were part of the
portfolio.’” Mendez-Aponte, 645 F.3d at 65-68 (quoting Flynn v. City of Boston, 140 F.3d 42, 45
(1st Cir. 1998)) (further holding that party affiliation was an appropriate consideration for
position of Assistant Secretary of State for Protocol Affairs). See e.g. Mendez-Aponte, 645 F.3d
at 67 (Assistant Secretary at Puerto Rico State Department); Foote, 642 F.3d at 86 (municipal
recreation commissioner); Uphoff Figueroa v. Alejandro, 597 F.3d 423, 429-30 (1st Cir. 2010)
(administrator who developed legal strategy on environmental law issues and cases for the Puerto
Rico Electric Power Authority); Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996)
(office of director of federal programs in an agency that obtained and administered federal
funding for public works projects).
Civil No. 13-1683
Page 10
he spoke out as a citizen on a matter of public concern, period. Accordingly,
Plaintiff’s free speech claim is DISMISSED WITH PREJUDICE.
C. Civil Rights Conspiracy
Plaintiff also alleges that Defendants Garcia-Padilla, Lopez-Cabrera and
Col. Lopez participated in a civil rights conspiracy to discriminate against
him on the basis of political affiliation, in violation of 42 U.S.C. § 1985.
See Docket No. 12 at ¶¶ 54-57. Defendants request dismissal of this cause of
action as well. See Docket No. 66 at 24-25.
A civil rights conspiracy is “a combination of two or more persons acting
in concert to commit an unlawful act, or to commit a lawful act by unlawful
means, the principal element of which is an agreement between the parties to
inflict a wrong against or injury upon another,' and ‘an overt act that results
in damages.” Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988) (citation
omitted). To plausibly establish a conspiracy claim, a plaintiff must allege
not only a conspiratorial agreement, but also an actual abridgment of some
federally-secured right. See Rivera–Carrero v. Rey–Hernández, Civil No. 04–1925,
2006 WL 572349, at *2 (D.P.R. 2009) (alteration in original) (citing Nieves v.
McSweeney, 241 F.3d 46, 53 (1st Cir. 2001)).
In this district, conspiracy claims of employment discrimination on the
basis of political affiliation are not actionable under Section 1985. See PerezSanchez v. Pub. Bldg. Auth., 557 F. Supp. 2d 227, 238–39 (D.P.R. 2007), aff'd
sub nom. Perez-Sanchez v. Pub. Bldg. Auth., 531 F.3d 104 (1st Cir. 2008)(citing
cases). Accordingly, that claim is, too, DISMISSED WITH PREJUDICE.
D. Supplemental Puerto Rico Law Claims
The amended complaint (Docket No. 12) includes claims grounded on Articles
1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 §§ 51415142. Defendants request dismissal of the same. See Docket No. 66 at 25-26.
Having dismissed Montañez’s federal claims, and since no other grounds for
jurisdiction exist, the court declines to exercise supplemental jurisdiction
over the remaining state law claims. See Carnegie–Mellon Univ. v. Cohill, 484
U.S. 343, 349 (1988) (explaining that the exercise of pendent jurisdiction is a
matter of the federal court’s discretion); United Mine Workers v. Gibbs, 383
Civil No. 13-1683
Page 11
U.S. 715, 725 (1966) (stating “if the federal claims are dismissed before trial,
…the state law claims should be dismissed as well”). Accordingly, Plaintiffs’
claims
brought
pursuant
to
Puerto
Rico
law
are
hereby
DISMISSED
WITHOUT
PREJUDICE.
IV. CONCLUSION
For the reasons stated above, the court hereby GRANTS Defendants’ motion
to dismiss (Docket No. 66). Accordingly, Montañez’s political discrimination
and free speech claims under the First Amended are hereby DISMISSED WITH
PREJUDICE. Plaintiffs’ claims brought pursuant to Puerto Rico law are hereby
DISMISSED WITHOUT PREJUDICE. Judgment shall be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, March 26, 2018.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
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