Camacho-Morales v. Pesquera et al

2014 | Cited 0 times | D. Puerto Rico | December 18, 2014


Plaintiff, v. JOSÉ CALDERO, et al., Defendants.

Civil No. 12-01533 (BJM)

OPINION AND ORDER In an amended complaint, plaintiff Alvin Camacho- brought this action under 48 U.S.C. § 1983 against Puerto Rico Police Department D Superintendent José Caldero,

in his official capacity; 1

former Superintendents 2

Emilio Díaz and Jo in their personal and official capacities; Associate Superintendent José L and official capacity; Officers and Digno Cartagena, 3

in their personal and official capacities; Human Resources Department employee Yadira Rivera Pabón in her personal and official capacity; and the Commonwealth of Puerto , alleging violations of his rights under the First and Fourteenth Amendments to the United States Constitution, as well as under the laws and Constitution of Puerto Rico. ).

Defendants moved to dismiss the complaint for failure to state a claim. Docket Nos. 28, 32. The court denied the motion. Docket No. 40. Camacho then moved for partial 1

The amended complaint named Hector Pesquera, Superintendent at the time of filing, as a defendant in his personal and official capacities. The parties stipulated to the dismissal with prejudice of all claims against Pesquera, and to the substitution of José Caldero, the current Superintendent, as a defendant in his official capacity. Docket No. 105; see Fed. R. Civ. P. 25(d).

2 Unless otherwise specified, all titles, positions, and offices are with the PRPD. 3 The case was stayed as to defendant Cartagena pending bankruptcy proceedings. Docket No. 102.

also filed a reply. Docket No. 84. The parties consented to proceed before a magistrate

judge. Docket Nos. 77, 80.

denied, and d granted as to the federal claims.

SUMMARY JUDGMENT STANDARD dispute as to any material fact and the movant is entitled to judgment

Anderson v. Liberty Lobby, Inc. favor of either party. Calero-Cerezo v. U.S.

, 355 F.3d 6, 19 (1st Cir. 2004). The court does not weigh the facts, but for the nonmoving part Leary v. Dalton, 58 F.3d 748, 751 (1st Cir. 1995).

informing the district court of the basis for its motion, and identifying those portions of the

[evidence] . . . which i Crawford-El v. Britton, 523 U.S. 574, 600 n.22 (1998) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986)); Fed. R. Civ. P. 56(c)(1). If this threshold is met, the opponent Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 claim. Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). Still, the


probability and likelihood (no matter how reasonable those ideas may be) upon the facts of Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987).

BACKGROUND uncontested facts. 4

See Docket Nos. 54- - OSMF -

Camacho worked as a PRPD officer from 1996 until July 2011. Pl. SUMF ¶ 1. He first developed a relationship with the FBI in 1999, when he was put in contact with the agency after reporting his observations of illegal conduct within the PRPD to a supervisor Spanish acronym ¶¶ 1 2. From 1999 to 2006, Camacho covertly collected information about corruption inside

the force and relayed it to the FBI SUMF ¶¶ 3, 6 7. He testified that, during this period, he viewed himself as acting as a sort of undercover agent for the FBI, though technically, because he was still a PRPD officer, he was really actin 9. He stopped regularly providing the FBI with information in 2006, but for the next two years, the FBI contacted him every six months to ask whether he had witnessed any corrupt activi 10. In November 2009, Camacho was approached at a CompUSA store, where he worked part-time as a loss prevention manager, by an NIE agent, whom he had known since 14. At the time, Camacho ¶ 14. The agents asked him to participate in an ongoing FBI investigation into police

4 Local Rule 56 requires parties at summary judgment to supply brief, numbered statements of facts, supported by citations to admissible evidence. It responsibility to ferret through the record to discern whether any material fact is genuinely in CMI Capital Market Inv. v. González-Toro, 520 F.3d 58, 62 (1st Cir. 2008), and prevents litigants Mariani- , 511 F.3d 216, 219 (1st Cir. 2007). The when not properly opposed, and litigants ignore it Id.

corruption, later known as Operation Guard Shack, by posing as a corrupt officer himself; he agreed 4 For about 10 months, until September 2010, he took part in illegal activities with other PRPD officers and reported his observations , 27. The FBI did not instruct Camacho to take any particular actions or

5. Although Camacho did not know it at the time, at least four other PRPD officers were providing the FBI with information in the

In October 2010, almost 100 Puerto Rico law enforcement officers were arrested, at least in part For security reasons, Camacho took leave from the PRPD UMF Soon after the arrests, while Camacho was still on leave, he learned that he had been transferred from his current unit, the Tactical Operations Division in F ¶ 29. Camacho testified that he does not know precisely who was responsible for his transfer to the SUMF ¶ 30. Specifically, as far as he knows, his transfer was not ordered by Rivera Alicea or Rivera Dí -33. He never actually worked a day at his new post; while he was still on leave, he received notice of another transfer, this time to the Joint Operations Division , located General Headquarters in San Juan, effective April 6, 2011 SUMF ¶ 37, 39. The JOD is responsible for coordinating and integrating the efforts of the PRPD and the federal government; it is divided into task forces that work with various federal law SUMF ¶ 51. Starting in May 2011, Rivera As with his first transfer to the Academy, Camacho testified that he lacks personal knowledge as to who assigned him to the JOD. He does not know whether any of Figueroa, Rivera Díaz, Vásquez, Bermúdez, or Rivera 44. However, he

s, which provide that the Superintendent and Associate Superintendent have ¶ 21. In any case, it is uncontested that in February 2011, the FBI asked Figueroa, then

Superintendent, to transfer Camacho to the JOD, along with other officers who had served as informants in not actually want to be transferred to the JOD, because of threats against his life that had been received at General Headquarters 20 At his new post, Camacho had very little to do; Rivera Alicea testified that the office did not generate enough administrative work to fully occupy Camacho and the two other s Id. Generally, officers are assigned to task he never received a

While at General Headquarters, Camacho never complained about harassment by his coworkers, UMF ¶¶ 62 63 On May 13, 2011, Camacho met with Bermúdez, and two other PRPD officers who

SUMF ¶ 72. The meeting was ordered by Superintendent Figueroa to address concerns that had been expressed by officers who had, like Camacho, covertly participated in Operation Guard Shack. officers had appeared on a radio show and made statements critica

At the meeting, Bermúdez proposed that Camacho and the other two officers make a formal complaint to the Cuerpo de Investigación Criminal regarding the death threats that ¶ 74 . Camacho and the other officers declined; they told Bermúdez that the FBI was independently looking into the threats and

declined to be provided with security details because of concerns that they could be

79. The minutes of the meeting, which Camacho signed, also indicate that the PRPD provided Camacho with a more powerful handgun, a rifle, and a portable radio for his protection. 5

¶¶ 76 78. After the meeting, Camacho whatever reason, if you're not going to help, then tell the superintendent that I want to leav equested a personal meeting with Superintendent

On two occasions, the FBI gave Camacho money, totaling between $50,000 and 86, 109. According to Camacho, the money was for security purposes, prompted by threats against his life, and he 86, 109. Camacho denies that the m OSMF ¶ 66. On June 8, 2011, Camacho submitted a letter of resignation, effective June 28, to the Department of Human Resources. that he was resigning because he was upset with the system, and that he planned to leave On June 27, Camacho submitted another letter changing the effective date of his resignation to September 5. Pl ¶ to approval by Figueroa; if Figueroa did not accept the new terms, the resignation would

have no effect. On July 5, Camacho signed a third letter, drafted by Rivera Alicea,

5 Camacho o facts. See Fed. R. Evid. 802; Garside v. Osco Drug, Inc. But Camacho

signed the minutes, certifying that they were true. The minutes are therefore nonhearsay when offered against Camacho as the adopted statements of an opposing party. See Fed. R. Evid. 801(d)(2).

rescinding Rivera Alicea forwarded the letter ntly forwarded the letter to

Superintendent Díaz, who had assumed office on July 6, with a recommendation that he . Section 14.8 of the PRPD Staff Bylaws provides:

Any employee may resign his position freely through written notification to the Superintendent. This notification will be made with not less than fifteen (15) days prior to his last day of work, except that the Superintendent may accept resignations presented in a shorter period of time. The Superintendent must within the term of fifteen (15) days of having said resignation been submitted, notify the employee if he accepts the same or if he rejects it because there are reasons to justify investigating the conduct of the employee. In cases of rejection, the Superintendent, within the shortest time possible, must conduct the investigation and determine if he accepts the resignation or proceeds with the formulation of charges. -2. The procedures for resignation are governed more particularly by PRPD General Order No. 79-6, which provides that an employee must submit his notice of resignation for endorsement to his immediate supervisor, who must then have the employee fill out Form PPR-210, certifying that he has no remaining obligations to the PRPD. -11. The form and a copy of the resignation notice are then to be submitted to the Director of Personnel and forwarded by him to the Superintendent for his signature -11. General Order No. 79-6 states that the Director of Personnel must not process any resignation not accompanied by a completed Form PPR- -11. On July 8, after investigating an irregularity in his June paycheck, Camacho learned effective June ¶ SUMF ¶ 97. In mid-July, before Camacho received any official notice from the

Superintendent about the status of his resignation, Rivera Alicea took possession of pursuant to PRPD policy, behind the CompUSA store where Camacho worked part-

Camacho that his resignation had been accepted effective testified that he did not sign the letter and that he does not recognize SUMF ¶ 46. Díaz was present in office at the time the letter was issued. Pl.'s SUMF ¶ 49.

According to defendants, the letter was signed by Associate Superintendent Rivera Díaz. OSMF ¶ 53. In any case, in December, Camacho filled out Form PPR-210 and went through

the other procedures necessary to effect his separation from the PRPD, including handing s SUMF ¶¶ 51 52; Defs Id.

DISCUSSION Camacho alleges that defendants retaliated against him for his participation in Operation Guard shack in violation of the First Amendment by transferring him twice, subjecting him to harassment, failing to provide him with adequate protection, and accepting his resignation. He also alleges that the acceptance of his resignation violated his right to due process under the Fourteenth Amendment, characterizing his separation from the PRPD as a de facto termination for which some degree of process was required. His claims under the laws and Constitution of Puerto Rico are based on the same conduct and grounded in similar theories. He seeks monetary relief, including punitive damages, and injunctive relief in the form of reinstatement. He moves for summary judgment as to whether his communications retaliation, and as to the entirety of his due process claim.

Defendants argue for summary judgment on several grounds. As to both the First and Fourteenth Amendment claims, they contend that Camacho has failed to personally connect any individual defendant to the conduct alleged, that the claims are partially barred by the Eleventh Amendment, and that they are protected by the doctrine of qualified immunity. As to the First Amendment claim in particular, they argue that Camacho did not suffer any adverse employment action; that even if there were a constitutional deprivation, Camacho has failed to produce evidence sufficient to connect any individual defendant to that deprivation; and protected speech. They argue that the due process claim must fail because Camacho

resigned from the PRPD voluntarily. Finally, they urge that the court should, if it dismisses 1983 claims, decline to exercise supplemental jurisdictions over the claims founded in state law. I. Eleventh Amendment

Commonwealth of Puerto Rico and the individual defendants in their official capacities are barred by the Eleventh Amendment. 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

language of the amendment, this immunity extends to states sued by their own citizens as well as by citizens of other states. Seminole Tribe of Fla. v. Florida, 17 U.S. 44, 54 (1996). of the Eleventh Amendment. See Metcalf & Eddy, Inc. v. P.R. Aqueduct & Sewer Auth.,

991 F.2d 935, 939 n.3 (1st Cir. 1993) (collecting cases). The sovereign immunity established by the Eleventh Amendment is not absolute, but may be waived by a state or abrogated by Congress. See , 521 U.S. 261, 267 (1997); Metcalf & Eddy, 991 F.2d at 938. But Congress did not abrogate the immunity by

adopting § 1983, Quern v. Jordan, 440 U.S. 332, 340 42 (1979), and Camacho makes no suggestion that the Commonwealth has specifically consented to be sued in this case. Accordingly, all of must be dismissed. As for his claims against PRPD employees: the Eleventh Amendment extends not only to states themselves, but also to public entities that function as arms or alter egos of the state. See Ainsworth Aristocrat Intern. Pty. Ltd. v. Tourism Co. of P.R., 818 F.2d 1034, 1036 (1st Cir. 1987) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). It is well-settled that the PRPD is considered an alter ego of the Commonwealth. Nieves Cruz v. Puerto Rico, 425 F. Supp. 2d 188, 192 (D.P.R. 2006). And because suits against state officers in their official capacities pleading an action against an entity of which an officer is Servs., 436 U.S. 658, 690 n.55 official-capacity claims.

However, those official-capacity claims premised on federal law are barred only to o impose a liability which must be paid from public funds in the state treasury. Edelman v. Jordan, 415 U.S. 651 (1974). Under the doctrine of Ex Parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not preclude Camacho from seeking prospective declaratory or injunctive relief from state officers in their official capacities for a violation of federal law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984); Mills v. Maine, 118 F.3d 37, 54 (1st Cir. 1997) (citing Seminole Tribe, 517 U.S. at 73). This exception does not apply to official-capacity claims grounded in state law; such claims are barred no matter the relief sought. Halderman, 465 U.S. at 106. Camachos Commonwealth law claims against the individual defendants in their official capacities are therefore dismissed. In his First Amendment claim under § 1983, Camacho seeks $3,000,000 in compensatory damages, apparently from each defendant, an unspecified amount in punitive damages, back pay, and front pay. In his due process claim under § 1983, he seeks only back

pay and front pay. 6

As against the individual defendants in their official capacities, the requested relief is wholly barred by the Eleventh Amendment. An award of damages, whether compensatory or punitive, would obviously require the Commonwealth to open its coffers. Back pay, which compensates plaintiffs for lost wages and benefits between the time of the discharge and the trial court judgment, Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st Cir. 2004), would have the same effect, and the First Circuit has accordingly held that the Eleventh Amendment bars an award of back pay against a state or an alter ego of the state, Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1044 (1st Cir. 1988). Front pay is an equitable remedy consisting of money awarded for lost compensation during the period between judgment and reinstatement or in lieu of reinstatement. Johnson, 364 F.3d at 379 (quoting Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001)). Though the First Circuit has not addressed whether front pay is precluded by the Eleventh Amendment despite its function as an alternative to reinstatement, a permissible form of prospective relief under Ex Parte Young, see Whalen v. Mass. Trial Court, 397 F.3d 19, 30 (1st Cir. 2005), those courts of appeals to have considered the issue have found that it is. See Campbell v. Ark. Dep t of Corr., 155 F.3d 950, 962 (8th Cir. 1998); Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1996); Freeman v. Mich. Dep t of State, 808 F.2d 1174, 1179 (6th Cir. 1987). An award of front pay would require the Commonwealth to compensate Camacho using public funds. Accordingly, Camachos request for front pay is barred by the Eleventh Amendment. In sum, all claims against the Commonwealth and against the individual defendants

6 In his amended complaint, Camacho requested, in both § 1983 claims, preliminary and permanent injunctive relief for reinstatement, in the form of monies lost and any applicable benefits, immediate reinstatement and prohibiting defendants from taking additional adverse employment actions because of his public statements. Amend. Compl. ¶¶ IV.4, V.3. He subsequently informed the court that he seeks back pay and front pay but not reinstatement. Docket No. 108. Because he no longer seeks reinstatement, his request for injunctive relief prohibiting the defendants from engaging in future retaliatory conduct is moot.

in their official capacities are dismissed. The Eleventh Amendment does not preclude the claims against the individual defendants in their personal capacities. 7 II. First Amendment Claim To make out a valid First Amendment retaliation claim under § 1983, a public employee such as Camacho must make a three-part showing. , 994 F.2d 905, 912

Id. at 912 (quoting Connick v. Myers, 461 U.S. 138, 147 48 (1983)). Second, his First Id. (citing

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); Brasslett v. Cota, 761 F.2d 827, 839 adverse employment action taken against him. Id. at 913 (citing Mt. Healthy City Sch. Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). If the public employee plaintiff is able to satisfy this third prong, through direct or circumstantial evidence from which a jury could reasonably infer a causal link between his protected speech and the allegedly retaliatory conduct by his employer, he has met his initial burden. Diaz-Bigio v. Santini, 652 F.3d 45, 51 52 (1st Cir. 2011) (quoting Acevedo-Diaz v. Aponte, 1 F.3d 62, 67 (1st Cir. 1993)). The employer may then rebut the claim by proving, by a preponderance of the evidence, that it

Guilloty Perez v. Pierluisi, 339 F.3d 43, 51 (1st Cir. 2003) (quoting Mt. Healthy, 429 U.S. at 287)).

7 ommonwealth and those seeking damages from the individual defendants in their official capacities must be dismissed because neither states may be brought under § 1983. , 491 U.S. 58, 71 (1989).

A. Substantial or Motivating Factor in Adverse Employment Action 1. Substantial or Motivating Factor Camacho moves for summary judgment only on the third issue, asserting that he has proven that his protected speech was a substantial or motivating factor in the adverse employment actions allegedly taken against him. Puzzlingly, however, he fails utterly to argument on the first two elements of the c

Because it is difficult to prove what even at trial, with the opportunity to present and examine witnesses where summary judgment is sought on Hahn v. Sargent,

523 F.2d 461, 468 (1st Cir. 1975) (citing Poller v. Columbia Broad. Sys., 368 U.S. 464 (1962)); , 929 F.2d 881, 889 ary judgment is to be used sparingly when intent or motive is at issues; it is not designed to appraise credibility or determine the weight properly afforded to

competing versions of the facts. See Anderson the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge . . . ruling on a motion for summary judgment accord Poller, 368 U.S. at 473; 10B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2730 (3d ed. 1998). Camacho thus faces a hard row to hoe in arguing that there is no genuine issue regarding the defen this stage because his motion is bereft of any developed argumentation on that point. See Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.

finding that the theory was not adequately placed in issue before the magistrate was

2. Adverse Employment Action Defendants deny that Camacho was ever subjected to an adverse employment action. Camacho is far from clear in describing precisely what alleged conduct his First Amendment claim is premised on. Construed liberally, the amended complaint alleges at least five acts or non-acts that might potentially be characterized as adverse employment actions: (1)

adequate protection, and (5) the events surrounding his unsuccessfully withdrawn

resignation. Defendants squarely address only the two transfers and the lack of protection. 8 Even if, as they argue, neither the transfers nor the lack of protection amount to adverse employment actions forbidden by the First Amendment, summary judgment solely on this ground would thus be inappropriate. Defendants have not shown that there is no genuine

actions. 9

I will nevertheless address the arguments that defendants do make. In the First Amendment context, the adverse employment action inquiry is a broad 8

As discussed more particularly below, defendants argue that the evidence shows that none of the individual defendants contributed to any alleged harassment. This is not the same, however, as arguing that there was no harassment at all, or that whatever harassment there may have been was not de facto dismissal) only in addressing the Fourteenth Amendment claim; they do not argue that there is no adverse employment action for First

9 I give no opinion as to whether these other allegations in fact amount to adverse employment actions.

s Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011) (quoting Bergeron v. Cabral, 560 F.3d 1, 8 (1st Cir. ions short of outright

deter speech. Rosario-Urdaz v. Velazco, 433 F.3d 174, 178 (1st Cir. 2006) (quoting Rutan v. Republican Party of Ill., 497 U.S. 62, 75 76 (1990)). This standard is met when such actions Id. (quoting Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218 19 (1st Cir. 1989) (en banc)). The plaintiff bears the burden of demonstrating that an alleged adverse employment action resulted in unreasonably inferior conditions by clear and convincing evidence. Agosto-de- Feliciano, 889 F.2d at 1220. Camacho has not adduced any competent evidence, or made any coherent claim, that description of his post-transfer duties. That transfer cannot, then, serve as an adverse

employment action upon which to base a viable retaliation claim. His second transfer is a closer question. Camacho argues that conditions were inferior at his new post at General Headquarters because he was not placed on a task force, as he expected, or given a sufficient amount of work. While it is true that depriving an employee of all or almost all his work environment, Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 22-23 (1st Cir. 2006),

Camacho has not produced sufficient evidence to carry his burden. He has provided no specific information about the amount of work he was assigned or the amount someone in his position is normally assigned. And while he apparently expected to be assigned to a task force, the mere fact that he was not is insufficient to establish that he was treated unreasonably; officers assigned to the JOD are placed on task forces at the request of federal agencies, and Rivera Alicea never received a request for Camacho. From the evidence in the

record, a reasonable jury could not find that Camacho established unreasonably inferior conditions by clear and convincing evidence, and his second transfer therefore also fails to qualify as an adverse employment action. Camacho has also failed to show that the PRPDs alleged failure to provide him with protection was meaningful enough to have a chilling effect on the speech of a reasonable employee. As defendants point out, when Camacho and the other similarly situated officers voiced concerns about their security, Figueroa, then Superintendent, ordered Bermúdez to plemental weapons. At the meeting, the PRPD offered to provide Camacho and the other officers with a protective detail, an offer they declined. The PRPD also offered to investigate the death threats received by the officers, but this offer was also declined, as they were more comfortable letting the FBI investigate independently. Based on these facts, I cannot say that Figueroa, or the PRPD as a whole, was derelict Whatever other punitive measures the PRPD may have taken, it does not appear that it failed

to take necessary protective action. Camacho was provided with extra arms, as he requested, and would have taken further protective steps had Camacho agreed to the proposed course of action. Camacho was apparently unsatisfied with the outcome of the meeting and requested an audience with Figueroa himself; that meeting never occurred. But it is unclear what security measures Camacho hoped to receive as a result of speaking with Figueroa. He e death threats and arrange for a protective detail out of concerns perhaps valid, perhaps not that whatever help the PRPD provided would be tainted by corruption. If Camacho did not trust the PRPD, it is difficult to imagine what he hoped to gain from the follow- therefore, does not constitute an adverse protection action for which Camacho may seek

redress under the First Amendment. To recap: Camacho may not succeed based on the allegations that he was transferred

to the Police Academy, that he was transferred to General Headquarters, or that the PRPD failed to provide him with sufficient protection. Any claim against a particular defendant premised solely on those alleged acts (or non-acts) will be dismissed. However, defendants have failed to show that the two other alleged adverse employment actions are not viable. To prevail on their motion for summary judgment, defendants must demonstrate some other infirmity when it comes to claims based on the transfer to General Headquarters, workplace haras B. Personal Involvement of Individual Defendants

under section 1983 must be gauged in terms of their Welch v. Ciampa, 542 F.3d 927, 936 (1st Cir. 2008) (quoting Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.

connection between [his] conduct and the [alleged] Gutierrez-Rodriguez v. Cartagena locates deprivations in his two transfers, in harassment he faced at General Headquarters, in

easures, and in the handling of his resignation and attempt to rescind it. qualify as valid adverse employment actions. Accordingly, for any individual defendant to

be liable in his personal capacity actions and at least one of the two alleged adverse employment actions that do so qualify.

For several of the individual defendants, there is insufficient evidence, even when viewed in the light most favorable to Camacho, to establish such a link. 1. Officers The amended complaint connects Vázquez, Bermúdez, and Rivera Alicea to only one

alleged adverse employment action: harassment. 10

But as defendants point out, the uncontested facts reveal that none of those officers personally harassed Camacho. The only harassment evidenced in the record is the series of death threats against Camacho received, at some point, by General Headquarters. There is no suggestion that any of the individual defendants made those threats. Nor is there evidence that the threats came from officers subordinate to any of the individual defendants (or, indeed, from still-employed PRPD officers at all), such that it might be appropriate to hold the individual defendants liable on a supervisory liability theory. Accordingly, because it is not possible to infer from the facts that they personally contributed to any adverse employment action, Vázquez, Bermúdez, and

2. Associate Superintendent and Former Superintendents Like the officer defendants, Associate Superintendent Rivera Díaz is named explicitly in the amended complaint only as a perpetrator of harassment, and Camacho admits that Rivera Díaz did not in fact personally harass him. However, it appears that Rivera Díaz signed the letter informing Camacho that his resignation had been accepted. adverse employment action a question defendants fail to address it remains a genuine

summary judgment based on the lack of a causal connection would be inappropriate. Camacho does not personally connect Figueroa to any instance of harassment, and, as discussed, Figueroa cannot be held liable for harassment in a supervisory capacity because there is no evidence that the death threats made against Camacho came from active PRPD officers under Figueroas control. Figueroa also has no connection to the handling of

10 The complaint also alleges that Bermú rescinding his resignation. Amend. Compl. ¶¶ III.46 s

does not appear to connect Bermúdez with the conduct actually complained of that is, with the refusal to allow Camacho to rescind his resignation.

no longer in power when the PRPD notified Camacho that his resignation had been accepted. his personal capacity is therefore dismissed. Former Superintendent Díaz assumed office on July 6, 2011, one day after Camacho signed the letter rescinding his resignation. Díaz could not have been personally involved in appropriate to hold him liable for those potential adverse employment actions in a

supervisory capacity. Camacho has failed to provide evidence that Díaz was personally involved. Díaz did not sign the acceptance letter. See Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 156 (1st Cir. 2006) that Agosto canceled his contract. However, . . . the letter terminating his contract was not

signed by Agosto. . . . Peña has not alleged any facts to substantiate his claim that Agosto Díaz be held liable under a theory of supervisory liability, as Camacho has not shown an affirmative link between his conduct and that of Rivera Díaz or any other subordinate. The First Amendment claim against Díaz in his personal capacity is therefore dismissed. 3. Rivera Pabón -Defendant Col.

Bermúdez), and to make his resignation effective retroactively on June 28, 2011 based on the fact that the [S ¶¶ II.1.1, III.47. In his Local Rule 56 statement, Camacho states that Rivera Pabón

ceeded to keep [his] resignation effective retroactively [sic actions on two grounds. First, they assert that at the relevant time she was not the Director of

Human Resources, but rather merely an analyst in that department. Second, they assert that the record materials cited by Camacho do not support the conclusion that Rivera Pabón acted

on her own authority rescind his resignation and instead accept it precise position is a

objection, I agree that Camacho has not cited admissible evidence to support the assertion that Rivera Pabón was responsible for accepting his resignation. The material cited the deposition of Rivera Alicea supports only the inference that Rivera Pabón declined to by some other, presumably higher-ranking authority, that it would not be accepted, and that

his initial resignation would be. See Docket No. 54-11, at 12. Camacho does not link Rivera Pabón to any other alleged adverse employment action. His First Amendment claim against her in her personal capacity therefore fails and is dismissed. C. Protected Speech constitute protected speech. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme

what it means for a public employee to speak on matters Curran v. Cousins, 509 F.3d 36, 44 45 (1st Cir. 2007), effectively restricting the protection afforded to public employees by the First Amendment. See Dahlia v. Rodriguez, 735 F.3d 1060, 1068 (9th Cir. 2013) (noting that Garcetti Reilly v. City of Atlantic City employees do not surrender all their First Amendment rights by reason of their

Garcetti, 547 U.S. at 417. But those rights must be qualified, because employee in his Id. at 422. Accordingly, the Court held that

not speaking as citizens for First Amendment purposes, and the Constitution does not

i Id. at 421.

Here, then, the question is whether law that the c Foley v. Town of Randolph, 598 F.3d 1, 5 n.8 (1st Cir. 2010) (citing

Gagliardi v. Sullivan, 513 F.3d 301, 306 n.8 (1st Cir. 2008); Curran v. Cousins, 509 F.3d 36, 45 (1st Cir. 2007)). Since there was no dispute in Garcetti Id. at 424. In trying to flesh out a more specific standard, the First

Circuit has found guidance in phrases used by the Court throughout its opinion to describe the relevant class of speech. See Decotiis v. Whittemore, 635 F.3d 22, 30 (1st Cir. 2011).

Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 27 n.9 (1st Cir. 2010) (quoting Garcetti, 547 U.S. at 421 23) (alteration and omission in original) (citations omitted). The Court also addressed certain factors that did not, at least individually, settle the issue. See Foley, 598 F.3d at 6 (citing Garcetti, 547 U.S. at 420 25). The fact that the Garcetti Id. at 421. The Court also explicitly rejected the

at his job description; were that the case, employers would be able to unduly limit their

sition of overbroad internal guidelines. Id. at 424.

written job description is neither necessary nor sufficient to demonstrate that conducting the

Id. at 424 25. Because the Garcetti Decotiis, 635 F.3d at 26, my analysis of the issue is guided primarily by the several First

facts. See Alberti v. Carlo-Izquierdo, 548 F. 25 (1st Cir. 2013), cert. denied, No. 13-

1337 (U.S. Oct. 6, 2014); -Recio, 724 F.3d 117 (1st Cir. 2013); Decotiis, 635 F.3d 22; Mercado Berrios, 611 F.3d 18; Chamberlin v. Town of Stoughton, 601 F.3d 25 (1st Cir. 2010); Foley, 598 F.3d 1; Curran, 509 F.3d 36. Though I have already discussed some general lessons drawn from these decisions, it is useful to examine further

In Curran v. Cousins Department suspended him in retaliation for threatening statements he made to supervisors

during an inquiry into a questionable sick day he had taken about a month earlier. 509 F.3d at 39 40, 44 46. The court held, without much discussion, that the threats were not n

Id. at 45 46. In Foley v. Town of Randolph unprotected. 598 F.3d at 8

he was suspended for criticizing the department during a press conference he held at the scene of a fatal fire. Id. at 2 required in order to determin Id. at 6 Case 3:12-cv-01533-BJM Document 111 Filed 12/18/14 Page 22 of 52 Id. a

Id. (quoting Garcetti, 547 U.S. at 422) (alteration spoke while in uniform and on duty; he spoke from the scene of a fire where he had been in

command as the Chief of the Fire Department; and his comments were bookended by those of another official Id. Id.

The issue in Chamberlin v. Town of Staughton, as here, was the cooperation by a police officer with an external investigation into police misconduct. 601 F.3d at 27 28. While serving as interim police chief, Chamberlin received information that several officers had engaged in criminal activity; in the course of investigating the allegations, he and his co- plaintiff Wohlgemuth, another high-ranking officer, conferred with the district attorney and a special prosecutor. Id. at 28. The court noted at the outset that Garcetti could be read to preclude virtually all First Amendment claims brought by police officers who spoke out Garcetti Id. at 30 31. But the Chamberlin court explicitly left open the question whether

any police whistleblower claim could survive Garcetti, focusing only on the facts before it. he district

attorney and the special prosecutor in investigating the alleged criminal activity within the police department. Wohlgemuth shared responsibility for internal investigations, and Chamberlin had launched the investigation as part of his duties Id. at 35. Stressing the context- and fact-specific nature of its finding, however, the court cautioned that it was Garcetti applies every time a police officer has conversations with a prosecutor. What constitutes official duties will necessarily vary with the circumstances

including the rank of the officer, his areas of responsibility and the nature of the Id. The court again emphasized the importance of context in Mercado-Berrios v. Cancel- Alegria, separating the Garcetti 611 F.3d at 26. Mercado-Berrios worked for the Puerto Rico Tourism Company, a public

corporation responsible for regulating and disciplining providers of tourism-related ground transportation. Id. at 20. After her supervisors instructed her to stop issuing citations to luxury vehicles not in compliance with safety regulations, she complained about the policy to co-workers, shift supervisors, and an attorney. Id. at 21. As in Chamberlin, the court observed that it was unclear how broadly Garcetti should be interpreted. It might be read . . - Id at 27 (alteration in original)

(quoting Garcetti, 547 U.S. at 421). Indeed, the Garcetti that it meant to sweep more broadly and include, for example, all speech that relates to, Id. At the same time, Garcetti that government employers must be afforded latitude in employment decisions, a motivation

that would support a less restrictive view. Other courts of appeals, the court noted, have construed Garcetti Id. (alteration in original) (quoting Brammer-Hoelter v. Twin Peaks

Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007)) (citing Williams v. Dall. Indep. Sch. Dist. ts like Mercado- ould be said to facilitate job Id. The D.C. Circuit took

protection when he reports conduct that interferes with his job responsibilities, even if the Id. (quoting Winder v. Erste, 556 F.3d 209, 215 (D.C. Cir. 2009)). The court concluded that both parties had a strong argument as to the official character of the speech. Id. Because the defendant failed to brief the issue, however, - deciding the issue.

The First Circuit next applied Garcetti in Decotiis v. Whittemore, reviewing the Decotiis, a speech and language therapist, expressed to parent clients that her public

employer, Child Development Services, was not in compliance with state regulations, and encouraged the parents to seek the aid of advocacy organizations. 635 F.3d at 26 27. After considering several factors gleaned from a close reading of Garcetti, the court held that s complaint plausibly alleged that the speech was made in her capacity as a citizen. Id. Id. at 32 (quoting Mercado-Berrios, 611 F.3d at 27). Though her communications with parents concerned the general subject matter of her job, it was clear that her employer Garcetti or the decisions interpreting it can fairly be read to suggest that all speech tangentially or broadly relating to the wor Id. at 32 33. The court then attempted to put the speech in context, asking whether Decotiis spoke to the parents in her office, whether the speech was made during work hours, whether the id. at 33, and whether the Id. at 34 (quoting Williams, 480 F.3d at 694). Given the posture of the case, the court could consider only the allegations in the complaint, which did not clearly provide an answer to those questions. Id. Viewing the alleged facts in Case 3:12-cv-01533-BJM Document 111 Filed 12/18/14 Page 25 of 52 with parents in her office or while on the job, that parents were led to believe that she spoke Id. at 33 34. Finally, the court

Id. (citing Garcetti, 547 U.S. at 423). Again drawing inferences in speech was sufficiently

associations, and lawyer Id. at 34. Id. at 34 35.

In -Recio Puerto Rico Permits and Regulation Administration, told her superiors that she refused to engage in personnel actions she viewed as illegal and unethical. 724 F.3d at 120 123. The exclusively to fulfill her [official] responsibilities . . . . This type of communication is the

quintessential example of speech that owes its existence to a public employ Id. at 123 (citing

Garcetti, 547 U.S. at 421 22; Foley, 598 F.3d at 7 8). Garcetti Alberti v. Carlo-Izquierdo. Alberti was a professor at the University of Puerto Rico and the director of F. Medical Science Campus complaining about one of her students, who she claimed had

fellow faculty members, who she claimed were interfering with her work as director of the

FNP program. Id. official duties. Id. Case 3:12-cv-01533-BJM Document 111 Filed 12/18/14 Page 26 of 52 student], as her teacher, and in her capacity as FNP program directory, concerning the Id. The court found particularly relevant the fact that Id. at 639.

Garcetti, as well as the approaches of other courts genuine issue of material fact, and defendants therefore have failed to show th

speech was unprotected as a matter of law. The record does not conclusively establish whether Camacho had a duty, as a PRPD officer, to report corruption within the police force to an outside law enforcement agency such as the FBI. Defendants rely on the Puerto Rico L.P.R.A. § 3102. As they see it, that statute imposed

on Camacho the duty to take steps necessary to rid the PRPD of corruption, including, if necessary, reporting the corruption to an appropriate outside agency. Camacho, for his part, points to two more specific descriptions of his duties: internal PRPD bylaws, which make no mention of any duty to report crime or otherwise cooperate with external agencies, and a PRPD general order reciting the basic responsibilities of members of the Tactical Operations Division, which again does not address the issue of cooperation. Both parties thus draw inferences in their own favor from sources that do not explicitly say that there is or is not a duty to cooperate with or inform the FBI of police

entitled to all reasonable favorable inferences. I therefore conclude that these various job descriptions do not affirmatively establish a formal duty to refer police misconduct to the FBI. At the same time, however, they do not establish, as Camacho urges, that there is no such duty. It is not reasonable to infer from the material cited by Camacho that PRPD officers generally, or members of the Tactical Operations Division in particular, have absolutely no affirmative responsibilities beyond those expressly enumerated.

descriptions often bear little resemblance to the duties an employee is actually expected to

perform. Foley, 598 F.3d at 6 (quoting Garcetti, 547 U.S at 424 25). The parties have provided no more specific evidence as to whether Camacho, or any other PRPD officer, was Compare, e.g., Livingston v. Bartis, No. 4:06-CV-1574 (JCH), 2008 WL 185791, at *8 (E.D. Mo. Jan 18, 2008) (finding genuine issue as to official duties given, first, written policy prohibiting officers from sharing with persons outside department any information learned in connection with employment and, second, evidence that no officer other than plaintiff had reported misconduct to an external agency in 22 years), and Batt v. City of Oakland, No. C 02-04975 MHP, 2006 WL 1980401, at *4 (N.D. Cal. July 13, 2006) (plaintiff officer presented evidence demonstrating an unwritten institutional policy not to report police misconduct, contrary to the letter of his job description), with Watts v. City of Jackson, 827 F. Supp. 2d 724, 730 (S.D. Miss. 2011) job description requiring cooperation with outside agencies), and Cheek v. City of

Edwardsville establishes that the Edwardsville police department routinely sought assistance from outside

agencies Decotiis, 635 F.3d at 32, in that he was not

ordered to make them. But neither that fact nor the lack of evidence regarding PRPD policy puts an end to the inquiry. I must determine whether the facts before me show that Camacho was speaking pursuant to an official duty notwithstanding the lack of direct evidence on that point. See id. at 32 (citing Foley made pursuant to official responsibilities, the Court must take a hard look at the context of the sp

Decotiis, 635 F.3d at 33. Unlike the media in Foley,

f of his employer. On the contrary, Camacho appeared to be decidedly off-message. Not only was he reporting the misconduct of his fellow officers, but by speaking with the FBI directly, he was bypassing the normal chain of command. And though going over the heads of direct supervisors does not necessarily result in First Amendment protection, see Alberti, 11 548 F. 39, the fact that a public employee broke protocol suggests that he was not acting according to the mandates of his employer. Indeed, the court in Decotiis 635 F.3d at 32 (citing Garcetti, 547 U.S. at 420), and in Curran, the court found no First

Amendment protection in part because the pl 509 F.3d at 46. See also Dahlia, 735 F.3d at

employment setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuan Decotiis But they tend to overlap when, as here, the audience knows that the speaker is not following

standard procedure. Surely the FBI, which has its own task force at the PRPD and could Id. at 34. Operation Guard Shack was, for the most

See 57. The

11 Even in Alberti, though the plaintiff claimed to have bypassed the chain of command, apparently by skipping over her immediate superiors, she still addressed her complaints to the Chancellor of her university.

FBI simply could not have considered Camacho, secretly recruited off the books to supplement the joint investigation, to be a mouthpiece for the PRPD. At least with respect to his initial meeting and communication with the FBI at CompUSA (as opposed to the regular reports that followed), it is true that Camacho did not exactly bypass the chain of command; rather, he told the FBI about police corruption in response to an unsolicited inquiry from non-PRPD agents. Nevertheless, the fact that this first instance of speech was prompted by a request from an outside agency that came while Camacho was off the job rather than an official inquiry directed at Camacho through the PRPD also suggests that the speech was not pursuant to a formal PRPD-imposed duty. Watts v. City of Jackson is not, as defendants contend, to the contrary. There, the court noted that the fact that the plaintiff officer was approached by the FBI, rather than reporting police Garcetti in the context of whistle-blowers who discover maleficence and externally report it with no official du Davis v. McKinney, 518 F.3d 304, 314 (5th Cir. 2008)). But the Watts job requirement to cooperate with, and provide information to, the FBI when Id.

Because the evidence here does not show an equivalent requirement, the fact that the FBI initiated the relationship does not support the proposition that Camacho spoke pursuant to an official duty. There is no suggestion in the record Mercado- Berrios, 611 F.3d at 27, as was the case in , Alberti, and, arguably, Mercado Berrios. It does not appear that Camacho informed the FBI of PRPD corruption because the transgressions of his fellow officers were preventing him from effectively performing his duties. While Camacho may have been motivated to participate in Operation Guard Shack as blameless protector, defendants can point to no evidence that he believed his own efficacy

to be in jeopardy. This is not a case where speech, though not directly required by an official duty, is brought within the Garcetti exception as necessary to the proper performance of duties that are in fact required. It is unclear, for example, where and when Camacho communicated with the FBI after their

initial meeting. See Decotiis, 635 F.3d at 33 (identifying as relevant factors whether the urs).


that is, his

actual speech as well as the acts required to uncover information he reported. As in Decotiis, I draw the inferences most favorable to Camacho. See id. at 33 34. It is eminently plausible (indeed, likely, considering that he worked with the subjects of his reports) that Camacho relayed to the FBI the information he uncovered during his off hours, and that he did not do so from his office. In any case, there is no question that the initial meeting, when Camacho informed the FBI of PRPD corruption and agreed to participate in Operation Guard Shack, took place CompUSA while Camacho was working there part-time (and therefore not while he was on duty as a police officer). Decotiis ormation she

Id. at 34 (quoting Williams, 480 F.3d at 694). The parties agree that Camacho had access to the information he reported to the FBI at least in part because of his job as a police officer. But to find unprotected all speech involving matters known to the speaker by virtue of his employment would be to read Decotiis and Garcetti too broadly. At issue in Decotiis was the em 12

OSMF ¶ 21.

regulations, id. at 26, information that the plaintiff clearly became aware of by virtue of her consternation . . . throughout the state. In light of this, it is reasonable to infer that such

Id. at 34.

The question, then, is not merely whether Camacho knew of police misconduct by virtue of his position; it is, rather, whether only he or someone with the same job could possibly possess that particular knowledge. This narrow reading is consistent with Garcetti, where not necessarily speech made pursuant to an official duty. 547 U.S. 421. A rule denying First

Amendment protection to all render this distinction toothless.

Here, the uncontested facts do not reveal the precise information conveyed by [Camacho] had of illegal activities taken by fellow police officers at the PRPD, to which [he]

inferred that Camacho told the agents about specific acts of misconduct (as opposed to, more

generally, that he was in fact aware of illegal activities). The parties do not identify those acts, or explain how Camacho knew of them, but they were likely similar to the activities that Camacho subsequently participated in and reported to the FBI. Camacho reported kilos of cocaine in the PRPD, offering fellow PRPD officers large sums of money on behalf

of local drug-dealers in exchange for assistance in transporting the drug and providing armed While it appears that these particular drug transactions were shams, controlled exchanges set up and monitored by the FBI, see Docket No. 54-5, at 13, it is reasonable to assume, at this stage, that Camacho initially informed the FBI of instances where his fellow officers participated in similar activities with

actual criminals. At least some of the information conveyed outside CompUSA, then, was likely known by persons outside the PRPD corrupt colleagues. If so, the information at issue was, as in Decotiis, .

Similarly, the facts permit the inference t has Id. In Decotiis

professional associations, and lawy Id. information similar to Ca non-police informants. speech has a citizen analogue the typical, non-police informant or cooperator further saps

rank provides further context for his speech. Though the facts do not specify exactly what rank he held, it does not appear that he possessed any supervisory power, and this lack of authority distinguishes the instant case from Chamberlin. There, one plaintiff was serving as interim police chief when he began looking into allegations of police misconduct; the other, a lieutenant, was responsible for internal investigations. 601 F.3d at 28, 35. It is reasonable to find that high-ranking officers with supervisory responsibilities have an implicit duty to investigate and report the transgressions of their coworkers. See id. But Camacho, apparently, was not such an officer. Even assuming, for the sake of argument, that Camacho had a comparable duty, it is unlikely, given his rank, that he was bound to report misconduct to the FBI, as opposed merely to his superiors. The interim police chief in Chamberlin was the highest authority within the police department, so it was appropriate for him to report his findings externally. individuals or entities outside the police, rather than up the chain of command, was pursuant

to an official duty. See Patterson v. City of Earlington, 650 F. Supp. 2d 674, 680 (W.D. Ky.

Mantle v. City of Country Club Hills, No. 4:07-CV-055 (CEJ), 2008 WL authority to whom to make a report. Being the Chief of Police, plaintiff had no departmental

supervisor to who the misconduct of his fellow officers to his superiors within the PRPD. To the extent his general obligations as a police officer required him to take some action, it is not reasonable to conclude, given his rank, that he was also required to sidestep the chain of command. Citing Watts, defendants make three final were other police agents who were also FBI informants at the time [Camacho] did his

Watts JPD officers in this investigation demonstrates that the duty to cooperate and disclose

827 F. Supp. 2d at 731. But the fact that Camacho was not alone does not help defendants.

Not only were there far fewer officers involved here than in Watts, there is no explicit policy of cooperation that the participation of other officers might serve to corroborate. between $50,000 and $60,000 from the FBI demonstrates that he acted pursuant to an official duty. The Watts court indeed based its decision in part on the fact that at least some of the officers involved were compensated for their cooperation. See id. And Garcetti tuting the performance of official duties.

Mercado-Berrios, 611 F.3d at 27 n.9 (quoting Garcetti, 547 U.S. at 422). It makes perfect sense to classify paid speech as speech made pursuant to an official duty but only when the

speaker is compensated by his employer. 13

It is immaterial that the FBI gave Camacho money, even if, as Camacho denies, it was intended as compensation for the information he provided. Finally, defendants latch onto Garcetti

like the language in Decotiis asking

stretched to its theoretical limit. It cannot be that all speech that would not exist unprotected by the First Amendment. Such a standard would make it impossible for a plaintiff to prevail on a retaliation claim when his speech even remotely concerns his job. That is manifestly not what the Garcetti Court had in mind. In context, Garcetti language duties without using those words. The question remains whether Camacho had an official duty to speak to the FBI in the manner he did, and the answer remains uncertain. D. Qualified Immunity Notwithstanding their failure to prevail on the issue of protected speech, all individual defendants are entitled to qualified immunity claim in their personal capacities. Government conduct does not violate clearly established statutory or constitutional rights of which a Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This immunity is available only to officials sued in their personal capacity. Hafer v. Melo,

13 Admittedly, Watts did not make clear whether the officers were compensated by the police department or by the FBI. To the extent that it stands for the proposition that compensated speech is likely pursuant to an official duty no matter who paid for it, I find Watts unpersuasive.

immunity is properly resolved at summary judgment or an earlier stage of litigation.

Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009) (citing Hunter v. Bryant, 502 U.S. 635, 640 n.2 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). There are two parts to the qualified immunity inquiry. Id. at 269 (citing Pearson v. Callahan, 129 S. Ct. 808, 815 Id.

Id. must be clear Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The


Id. Considering both these aspects together, the ultimate question is dant fair Id. (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). The two steps of the qualified immunity analysis need not necessarily be tackled in sequence. Pearson rts have discretion to decide whether, on the facts of a particular case, it is worthwhile to address first whether the facts alleged make out Maldonado, 568 F.3d at 270. It may be inefficient to decide whether a v Id. (quoting Pearson, 129 S. Ct. at 818). This is especially likely where the

constitutional violation issue is particularly fact-dependent, diminishing the potential precedential value of a full-fledged analysis. Id. (citing Pearson, 129 S. Ct. at 819).

Id. (citing Pearson, 129 S. Ct. at 819; Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir. 2006)). Here, it is appropriate to proceed directly to the second step: whether the right was clearly established at the time of the alleged violation. A decision as t First Amendment rights were in fact violated would be heavily fact-dependent, and many of

the facts at issue are less than perfectly clear. And because I conclude that defendants did not have fair warning that their conduct was unconstitutional, they would be entitled to qualified immunity whether or not there was a constitutional violation at all. does not need to be a prior case with factually iden Decotiis, 635 F.3d at 37 (citing Mosher v. Nelson, 589 F.3d 488, 493 (1st Cir. 2009)). The

conduct is unconstitutional eve Id. (quoting Mosher, 589 F.3d at 493). But the burden

existin Id. (citing Wilson v. Layne, 526 U.S. 603, 617 (1999)).

Camacho has not met this burden. As apparent from the discussion above, the contours of Garcetti are not clearly defined; they were murkier still in 2011, when the relevant conduct occurred. Of course, Garcetti clearly established that public employers generally may not retaliate against an employee for speech made as a citizen on a matter of publ Id. Garcetti did

not articulate a clear standard for determining whether an employee spoke as a citizen or, instead, pursuant to his official duties. Though subsequent decisions in this circuit and others applied the Garcetti analysis to their particular facts, the resulting body of case law was still too fragmented to have signaled uneq Case 3:12-cv-01533-BJM Document 111 Filed 12/18/14 Page 37 of 52 protected. Garcetti five times. As discussed, in Curran, Foley, and Chamberlin, the court found the speech at issue unprotected as made pur Mercado-Berrios, the

failed to properly brief the issue on appeal. The court did not express a view on the merits; instead, it noted that Garcetti arguments. In Decotiis, the court held that the complaint alleged facts plausibly setting forth

citizen speech, but was careful to note that it did not conclusively find protected. Its holding was a product of its obligation to view the facts alleged in the light

most favorable to the plaintiff. The First Circuit had thus never applied Garcetti and concluded decisively that the speech at issue was protected, and defendants therefore had no clear example of speech not made pursuant to official duties. Nor did they have a broad, easy-to-apply standard; because of the intensely fact-specific nature of the Garcetti s were of limited utility the further one strayed from their particular facts. Take, for example, Chamberlin, the First Circuit case factually closest to this one. There, the court declined to ide agency could ever qualify 601 F.3d at 35. A police department considering retaliation against an employee could be

ed only if the relevant facts were more or less the same as in Chamberlin. Change one of the three factors identified by the court and the outcome is uncertain. At the relevant time, the majority of other courts applying Garcetti to similar facts had also found -department speech unprotected. E.g., Garner v. City of Cuyahoga Falls Huppert v. City of Pittsburg, 574 F.3d

696, 707 (9th Cir. 2009), overruled by Dahlia, 735 F.3d 1060; Morales v. Jones, 494 F.3d 590 (7th Cir. 2007); Patterson, 650 F. Supp. 2d 674; Guthrie v. Bradley, Civil Action No. 06-0619, 2008 WL 4279805 (W.D. Pa. Sept. 15, 2008); Wiess v. Vill. of Brooklyn, No. 08-cv-473-JPG, 2008 WL 4200610 (S.D. Ill. Sept. 9, 2008); Mantle, 2008 WL 3853432; Cheek, 514 F. Supp. 2d 1220. But see, e.g., Livingston, 2008 WL 185791 (partially denying summary judgment because there remained a genuine issue of material fact as to whether There was thus ainst Camacho would violate his First Amendment rights.

Decotiis, 635 F.3d at 37. constitutional violation. Regardless, defendants are entitled to summary judgment on the

ground of qualified immunity. The First Amendment claims against the individual defendants in their personal capacities are dismissed. III. Due Process Claim The Due Process Clause of the Fourteenth Amendment provides that a state may not amend. XIV, § 1. Puerto Rico is considered a state for Fourteenth Amendment purposes.

, 426 U.S. 572, 599 (1976). While the Due Process Cl Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006), only the latter is implicated here. To

property interest and allege that the defendants, acting under color of state law, deprived

González-Droz v. González-Colón, 660 F.3d 1, 13 (1st Cir. 2011) (alteration in original) (quoting Aponte- Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st Cir. 2006)).

Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 577 (1972). A plaintiff whose due process claim is Santana v. Calderón, 342 F.3d

18, 24 (1st Cir. 2003). Id. (citing Perry v. Sindermann, 408 U.S.

593, 601 02 (1972)). ho possesses a Id. at 23 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985)). Generally, due process is satisfied if the plaintiff is provided with notice and a meaningful opportunity to be heard. See Loudermill, 470 U.S. at 542. A. Personal Involvement of Individual Defendants As discussed above in the context of his First Amendment claim, Camacho has failed to produce evidence connecting all individual defendants except Associate Superintendent Rivera Díaz to what he characterizes as his termination. According to defendants, Rivera Díaz signed the letter informing Camacho of his effective resignation, but there is no evidence that any other individual defendants were personally involved in the decision to system. Accordingly, dividual defendants in their personal capacities are dismissed on this ground, with the exception of the claim against Rivera Díaz. B. Deprivation of a Protected Property Interest Defendants do not deny that Camacho had a protected property interest in his job. Under Puerto Rico law, see 3 Costa-Urena v. Segarra, 590 F.3d 18, 27 (1st Cir. 2009). 25 L.P.R.A. § 3102.

Instead, defendants argue that Camacho suffered no deprivation because he was not dismissed. As defendants see it, the story is simple: Camacho voluntarily tendered his resignation, and the PRPD accepted it. Camacho apparently does not dispute that the letter he received on August 31, 2011, functioned as an acceptance of his initial resignation. He takes issue, however, with the fact that it was not signed by Díaz himself. Camacho argues acceptance of his resignation was defective, and that his removal from the PRPD system

therefore amounted to a dismissal without constitutionally adequate process. 1. Failure to Comply with Regulations

handling his resignation, to comply with state law and its own regulations. He points to § 14.8 of the PRPD Staff Bylaws, which provides that the Superintendent must accept or reject resignation within 15 days. Docket No. 93-2, at 4. Strangely, Camacho takes no issue with the fact that it took well over 15 days for his resignation to be accepted, arguing only that the acceptance was defective because it did not come from the Superintendent. Under § 14.8, Camacho reasons, only the Superintendent may accept or reject resignations, and though the Associate Superintendent is empowered by statute to disabled, 25 L.P.R.A. § 3106(a), Díaz was present and fully able to perform his duties when

the acceptance letter issued. There are two probl Camacho has failed to read in full the statute defining the powers and duties of the Associate Superintendent. It provides that the Superintendent has broad discretion to delegate his duties to the It is not explicit in the record but may be

properly delegated authority.

Second, Camacho would not necessarily be entitled to summary judgment even if his resignation was accepted in a manner not authorized by state law and PRPD regulations. It is not a constitutional mandate that only the PRPD Superintendent accept or reject

Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 10 (1st Cir. 2003) (citing , 210 F.3d 41, 49 n.9 (1st Cir. 2000)). Camacho , 210 F.3d at 49 n.9.

As discussed more particularly below, either Camacho voluntarily resigned or he was, in effect, fired. In neither case does it make a difference whether his resignation was accepted by the Superintendent or by a janitor. his property interest voluntarily him of it

Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 (4th Cir. 1988), cited with approval in Monahan v. Romney, 625 F.3d 42, 47 (1st Cir. 2010). And if he did not voluntarily resign, he suffered a deprivation no matter who decided to accept his resignation. Camacho also argues that the PRPD failed to comply with regulations when it considered his resignation despite his own failure to follow the convoluted procedures set forth in General Order No. 79-6. He did not submit his notice of resignation to his immediate supervisor for approval, fill out Form PPR-210 certifying that he had no ongoing obligations to the PRPD, and submit the approved notice and completed form to the Director of the Personnel Bureau to be forwarded to the Superintendent. Instead, he simply wrote a letter to the Superintendent and delivered it to Human Resources. But these regulations are

discretion waive the requirements of General Order No. 79-6 and consider a resignation submitted in a technically improper manner. In any case, because t comply with its own regulations does not by itself implicate the Due Process Clause,

Camacho may not rely on this procedural irregularity to show that he was deprived of his property interest in continued employment. Summary judgment for Camacho on that ground is therefore denied. 2. Resignation or Dismissal? As defendants see it, because Camacho resigned voluntarily, he was not entitled to any process before being separated from his employment. It is true that a voluntary resignation does not constitute a constitutional deprivation. Monahan, 625 F.3d at 47. But neither party squarely addresses what seems to me the most important question surrounding effectively rescind his resignation prior to its acceptance? On June 8, 2011, he wrote to the Superintendent that he was resigning effective June 28. On June 27, he wrote another letter changing the effective date to September 5. This letter also provided that if the Superintendent did not accept the new effective date, the original notice of resignation was to be disregarded; essentially, then, the June 27 letter functioned as both a withdrawal of the initial resignation and a new notice of resignation with a new effective date. Finally, on July 5, Camacho submitted a third letter rescinding his resignation without qualification. If Camacho properly rescinded his resignation, there was no resignation for the PRPD to accept, and removing Camacho from the system constituted a dismissal for which constitutionally adequate process was required. Defendants suggest that Camacho had no unilateral right to rescind his resignation, subject to acceptance by the PRPD. See Whether an employee, public or otherwise, has a right to rescind his resignation is a matter of state law. See, e.g., Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 975 (9th Cir. 2002) (under California law, employee may rescind resignation prior to acceptance); Koltonuk v. Borough of Laureldale, 443 F. Supp. 2d 685, 693 (E.D. Pa. 2006) (same under Pennsylvania law). But defendantsreference to Puerto Rico law on rescinding resignations; they do not explain why Camacho was not entitled to rescind his resignation unilaterally. Citing five out-of-circuit cases, they state

simply that that resignation and subsequent termination without process does not constitute a violation. (citing Brammer-Hoelter v. Twin Peaks Charter Acad. (Brammer-Hoelter II), 602 F.3d 1175 (10th Cir. 2010); Cross v. Monett R-I Bd. of Educ., 431 F.3d 606 (8th Cir. 2005); Ulrich, 308. F.3d 968; Graehling v. Village of Lombard, 58 F.3d 295 (7th Cir. 1995); Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546 (11th Cir. 1992)). Not one of the cases upon which defendants rely supports this proposition. In Cross, Graehling, and Ulrich, the plaintiffs attempted to rescind only after their resignations had been officially accepted. While those cases found no constitutional violations on their particular facts, they did not hold that an employee may never unilaterally rescind his resignation. Indeed, in Ulrich, as noted above, the court suggested that if the plaintiff had rescinded his resignation prior to its acceptance, his employer could not have terminated him without due process. 308 F.3d at 975. Hardy was § 1983 claim had been dismissed by the district court, and the sole issue on appeal was claims. In a footnote, however, the court noted that the plaintiff had resigned from his job

but subsequently rescinded his resignation. 954 F.2d at 1546 n.2. Far from stating that an employee may not rescind his resignation without his empl to take as given that resignations are not set in stone. Defendants submit that the rescission in Hardy resignation before its effective date, but there is no basis whatsoever for such a reading. In fact, the plaintiff was told of the possibility of rescinding his resignation by his union representative, not his employer. Id. And while it is likely reasonable to assume that he rescinded his resignation before its effective date, the opinion does not specify the timing of the resignation and rescission. In Brammer-Hoelter II, the court noted it had held in a previous disposition that the rescin Brammer-Hoelter v. Twin Peaks Charter Acad. (Brammer-Hoelter I), 492 F.3d 1192 (10th Cir. 2007)). In that previous opinion, the court found no due process violation because the plaintiffs were at-will employees and also denied the plaintiffs breach of contract claim. Because the plaintiff employment contracts did not require their effective, the court reasoned, their resignations were effective immediately upon being tendered, and they were therefore not entitled to rescind them without their acquiescence. Brammer-Hoelter I, 492 F.3d at 1211.

resignation was at least arguably not effective upon receipt. Puerto e Human Resources Administration Act provides that, upon written notice to the employee of whether it accepts or refuses the same for there being

grounds which warrant an investigation of the con § 1462e(13). becomes effective. Per the implicit logic of Brammer-Hoelter I, then, Camacho was entitled

to rescind his resignation unilaterally at least prior to its acceptance. Such a rule would be consistent with that described in Ulrich and Koltonuk and would, moreover, make a great it could be rescinded before acceptance.

However, defendants also , and thus presumably irrevocable, 15 days after he submitted it, before it was formally accepted 8. This argument is based on a misreading of Candelario Muniz v. Tribunal Superior, 1 P.R. Offic. Trans. 37 (1973). There, the question was when a public employee who had not specified an effective date for his resignation ceased to be employed. Then-applicable law required that resignations be explicitly required by the employer for the resignation to take effect. Id. at 43. The Puerto Rico Supreme Court

noted that t is not logical to presume that a person who resigns a position . . . is bound to who resigns ceases in the job at the expiration of 15 days after filing the resignation since

his last working day Id. at 43 44 (emphasis in original). Candelario effect automatically after 15 days; rather, the court held that, absent any communication from that case did not set an effective date for his resignation, so his last working day was

determined by reference to the law providing that resignations must be tendered at least 15 days before they are to take effect. Here, though, Camacho did specify an effective date: June 28, later changed to September 5. It would make no sense to consider his employment ended automatically after 15 days when his notice of resignation plainly stated his last working day. Such an interpretation of Candelario would eradicate the significance of a g not less than 3 L.P.R.A. § 1462e(13) (emphasis added), and from the PRPD Staff Bylaws, which are

identical but for requiring at least -2, at 4, that employees may designate the effective date of their resignations. Camacho was thus still employed when he rescinded his resignation on July 5, and the PRPD had not yet accepted it on that date. If public employees in Puerto Rico have the right to rescind their resignations prior to acceptance a question that neither party has addressed

Because I conclude, as discussed below, that Camac due process claim fails even if he successfully rescinded his resignation, I do not decide whether public employees enjoy the right to rescind their resignations under Puerto Rico law. If the rescission was ineffective, Camacho resigned and, at least if the resignation was voluntary, was not entitled to process upon his departure from the PRPD. To the extent he makes the argument that his

resignation was not voluntary that he was constructively discharged that argument fails. And if the rescission was effective, Parrat- Hudson doctrine. C. Constructive Discharge At least one federal court of appeals has recognized that a due process claim may succeed on a constructive discharge theory. In Stone v. University of Maryland Medical System Corp. involuntary that it amounted to a constructive discharge, it must be considered a deprivation by state action triggering the protections of t

difficult or unpleasant that a reasonable person in [his] shoes would have felt compelled to Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d 41, 50 (1st Cir. 2008) (quoting De La Vega v. San Juan Star, Inc. key; it is not enough to demonstrate that a reasonable person would have wanted to quit.

, an employee must show that, at the time of his resignation, his employer did not Id. (quoting Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th Cir. 2004)) (internal Id. (citing Exum, 389 F.3d at 1135).

Camacho cannot meet this exacting standard. The record does not support a finding that his working conditions at the PRPD were so onerous that he had no choice but to resign. Though the amended complaint speaks of intense harassment, there is no evidence that Camacho was harassed at all. He complains of the admini with protection, but in fact he was provided with protective equipment upon request, and he

declined to accept further protective measures offered by the PRPD. His transfer to General Headquarters may have been unpleasant and even punitive, but that alone does not rise to the resignation . . . is clear evidence that [his] working conditions were not so difficult or unpleasant that a reasonable person in [his] shoes would have felt compelled to resign, and

Meuser v. Fed. Express Corp., 564 F.3d 507, 523 (1st Cir. 2009) (quoting id.; GTE Prods. Corp., 421 Mass. 22, 34 (1995)) (internal quotation marks omitted). D. Parratt-Hudson Doctrine 14 If Camacho effectively rescinded his resignation, he was entitled to due process. However, Zinermon v. Burch, 494 U.S. 113, 127 (1990). While a hearing is generally required before

the deprivation of a protected property interest, in some circumstances the Supreme Court ivation hearing, or a common-law tort Id. Such circumstances were present in Parratt v. Taylor, 451 U.S. 527 (1981), and Hudson v. Palmer, 468 U.S. 517 (1984). The First Circuit has summarized the holdings of those cases and their progeny thus: conduct by state officials, . . . the due process inquiry is limited to the issue of the adequacy

of the postdeprivation Hadfield v. McDonough, 407 F.3d 11, 19 (1st Cir. 2005) (quoting , 210 F.3d at 42). Where the deprivation was due to

remedy, state officials are shielded from a federal due process claim. Id. at 19 20 (citing Mard v. Town of Amherst, 350 F.3d 184, 193 (1st Cir. 2003); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 536 37 (1st Cir. 1995)). Under the broad view of the Parratt-Hudson doctrine taken by the First Circuit,

14 Defendants did not raise the Parrat-Hudson doctrine as a ground for summary judgment. matter of law, the particular legal argument relied on by the court need not have been suggested by the movant. Packish v. McMurtrie, 697 F.2d 23, 25 n.1 (1st Cir. 1983) (citing 10 Wright & Miller § 2730).

Id. at 20 (citing ,

210 F.3d at 50; Herwins v. City of Revere, 163 F.3d 15, 19 (1st Cir. 1998); Cronin v. Town of Amesbury, 81 F.3d 257, 260 (1st Cir. 1996) (per curiam); Brown, 68 F.3d at 536 37; Lowe v. Scott, 959 F.2d 323, 344 (1st Cir. 1992)). unauthori Parratt-Hudson when the challenged state action is a Id. Hadfield is instructive. There, the public employee plaintiff was denied a hearing upon his termination. Id. at 19. He argued that, under Massachusetts law, he could be discharged only for cause and therefore had a protected property interest in his continued employment. Id. The defendants disagreed, maintaining that state law exempted the Id. As I do here, the court declined to determine the correct interpretation of state law because even if the plaintiff had a property right in continued employment, his depr random and unauthorized acts and the state provided an adequate postdeprivation remedy.

Id. As the court explained, the the sufficiency of the statutorily provided pretermination procedures, but rather at the conduct of the government officials charged with Id. at 20 (citing Cronin, 81 F.3d at 260 & n.2). The at all) by misapplying Massachusetts civil service law. This determination was not discretionary or governed by a formal or informal policy. Rather, if error, it was simply a misapprehension of state law. Id. (citations omitted). The court then concluded that termination decision to the civil service commission and the state superior court (and, if

ion Id. at 21 (citing Cronin, 81 F.3d at

260; Herwins, 163 F.3d at 19 20). The facts in this case are nearly indistinguishable. As in Hadfield, if Camacho suffered a deprivation at all, it was du interpretation of state law here, as to whether he effectively rescinded his resignation. Camacho does not argue, nor

could he, the inadequacy of the pretermination procedures applicable to Puerto Rico career employees. The PSHR career employee for just cause, after having given written notice of the bringing of charges

3 L.P.R.A. § 1462e(4). Commonwealth law does not authorize the dismissal of a career

employee without notice and an opportunity to be heard, which is what happened here if Camacho was able to rescind his resignation unilaterally. The PRPD did not have discretion to decide whether process was due to a career employee or whether the unilateral withdrawal of a resignation was effective; these are matters determined by state law. Cf. Zinermon, 494 U.S. at 136 38 (holding that Parratt-Hudson does not apply where state law confers discretion on officials to decide what process is necessary). And though the Parratt-Hudson doctrine has no force where the unlawful conduct at issue may be chalked up to an informal policy, Hadfield, 407 F.3d at 20 (citing , 210 F.3d at 50), there is no suggestion that it legal effect of resignation revocations. within the meaning of the Parratt-Hudson doctrine.

Furthermore, Camacho was afforded an adequate postdeprivation remedy by Puerto Rico law. A any right conferred to him/her by virtue of contest that

action or decision before the Appeals Commission of the Public Service Human Resources nt and backpay, 3 L.P.R.A. § 1468h(9). The employee 3 L.P.R.A. § 1468n. Puerto Rico thus provides a postdeprivation remedy materially indistinguishable from the Massachusetts procedure found constitutionally adequate in Hadfield. See 407 F.3d at 21; see also Ramírez-De Leon v. Mujica-Cotto, 345 F. Supp. 2d 174, 186 87 (D.P.R. 2004) (finding a due process claim barred because of the postdeprivation appeals procedure provided by a substantively identical statute, since repealed). It is of no moment that Camacho did not make use of the postdeprivation remedy provided by the PSHRA; all that matters is that it was constitutionally adequate and available to him. Hadfield, 407 F.3d at 21 (citing Herwins, 163 F.3d at 19). against the individual defendants in their personal capacities are therefore barred by the Parratt-Hudson doctrine and must be dismissed. E. Qualified Immunity Because I answer the first question in the qualified immunity inquiry

Maldonado, 568 F.3d at 268 in the negative, I need not determine whether defendants are entitled, in their personal capacities, to qualified immunity because the right at issue was not clearly established at the time of its violation. IV. Remaining Claims All that remains are Camachos Commonwealth law claims against the individual defendants in their personal capacities and the claims against Cartagena, against whom the case has been stayed. After dismissing all claims conferring original jurisdiction, the court may in its discretion decline to exercise supplemental jurisdiction over pendant state-law claims. See 28 U.S.C. § 1367(c); Redondo Constr. Corp. v. Izquierdo, 662 F.3d 42, 49 (1st Cir. 2011). While the pretrial dismissal of federal-question claims will generally point toward dismissing supplemental claims without prejudice, Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), the court must take into account eschewing supplemental jurisdiction, Izquierdo, 662 F.3d

at 49, weighing these factors in a pragmatic and case-specific way, id. (quoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1996)). The parties have not addressed these considerations. With regard to Cartagena, it appears from the record that Camacho would fare no better against him than against the other individual defendants. However, Cartagena has not moved to dismiss the claims against him, and I am not at liberty to override the stay already imposed. Camacho is accordingly ORDERED TO SHOW CAUSE, at the pretrial conference set for December 19, 2014, why the Commonwealth law claims and the claims against Cartagena should not be dismissed without prejudice.

CONCLUSION For the above reasons, motion for partial summary judgment is DENIED. Defendants motion for summary judgment is GRANTED IN PART, and Camachos § 1983 claims DISMISSED WITH PREJUDICE. Resolution of Camachos Commonwealth law claims is deferred pending his compliance with the above ORDER TO SHOW CAUSE. IT IS SO ORDERED. In San Juan, Puerto Rico, this 18th day of December, 2014. S/Bruce J. McGiverin BRUCE J. MCGIVERIN

United States Magistrate Judge

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