HOFFMAN v. MERCADO

02-2561(DRD).

392 F.Supp.2d 148 (2005) | Cited 0 times | D. Puerto Rico | September 14, 2005

OPINION AND ORDER

The instant case is a Civil Rights action brought forth byRoberto Bird Hoffman ("plaintiff") pursuant to 42 U.S.C. § 1983,and P.R. Laws Ann. § 5141. In sum, plaintiff is seeking severalremedies, to wit: (1) compensatory damages, (2) punitive damages,(3) costs, interests, and attorney's fees. At the time of thefiling of the complaint, plaintiff was the Registrar of theCopyright Registry of Puerto Rico. He later resigned the positionin August 2003. Plaintiff brought the instant suit againstFerdinand Mercado (then Secretary of the Department of State ofPuerto Rico), his wife, their Conjugal Partnership; AnabelleRodriguez (then Secretary of the Department of Justice), herhusband, and their Conjugal Partnership; Sila Maria Calderon(then Governor of Puerto Rico), her husband, and their ConjugalPartnership; and Cesar R. Miranda (then Chief of Staff to theGovernor of Puerto Rico), his wife, and their ConjugalPartnership for having violated his First, and Fourth Amendmentrights, and having deliberately defamed him through the localpress due to his political affiliation. See Third AmendedComplaint, Docket No. 59 at 12-14. Now, pending before the Courtis Defendants' Motion for Summary Judgment. (Docket Nos. 65,66, 67, and 72). Said motion was duly opposed by plaintiff.(Docket Nos. 89, and 93).

I. SUMMARY JUDGMENT STANDARD The framework of Fed.R.Civ.P. 56 provides that it isappropriate to enter summary judgment when "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to judgment as a matter of law." FED. R. CIV. P. 56©.See Celotex Corp v. Catrett, 477 U.S. 317, 324-25,106 S.Ct. 2548, 2553-54 (1986); Abbadessa v. Moore Business Forms, Inc.,987 F.2d 18, 22 (1st Cir. 1993). Pursuant to the language ofthe rule, the moving party bears the two-fold burden of showingthat there is "no genuine issue as to any material facts," andthat he is "entitled to judgment as a matter of law."Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1stCir. 1997). When the moving party asserts that the competentevidence clearly demonstrates that it is entitled to judgment andafter the moving party has satisfied this burden, the onus shiftsto the resisting party to show that there still exists "a trialworthy issue as to some material fact." Cortes-Irizarry v.Corporacion Insular, 111 F.3d 184, 187 (1st Cir. 1997).

To determine whether these criteria have been met, a court mustpierce the boilerplate of the pleadings and carefully review theparties' submissions to ascertain whether they reveal a trialworthy issue as to any material fact. See Perez v. Volvo CarCorporation, 247 F.3d 303, 310 (1st Cir. 2001); Grant'sDairy-Me., LLC v. Comm'r of Me. Dep't of Agric., Food & RuralRes., 232 F.3d 8, 14 (1st Cir. 2000); Cortes-Irizarry v.Corporacion Insular, 111 F.3d 184, at 187; McIntosh v.Antonino, 71 F.3d 29, 33 (1st Cir. 1995) (the Court mustlook behind the facade of the pleadings alleged in the complaint,in this case the Third Amended Complaint (Docket No. 59) andexamine the parties proof in order to determine whether a trialis required.). Furthermore, a fact is "material" if itpotentially could affect the suit's outcome. See Id. An issueconcerning such a fact is "genuine" if a reasonable fact finder,examining the evidence and drawing all reasonable inferenceshelpful to the party resisting summary judgment, could resolve the disputein that party's favor. See Id. The Court must review therecord "taken as a whole," and "may not make credibilitydeterminations or weigh the evidence." Reeves v. SandersonPlumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110(2000).

This is so, because credibility determinations, the weighing ofthe evidence, and the drawing of legitimate inferences from thefacts are jury functions, not those of a judge. See Reeves,id. There is "no room for credibility determinations, no roomfor the measured weighing of conflicting evidence such as thetrial process entails, [and] no room for the judge to superimposehis own ideas of probability and likelihood[.]" Greenburg v.Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). "The Court should give credence to the evidence favoringthe non-movant as well as the evidence supporting the movingparty that is contradicted and unimpeached, at least to theextent that evidence comes from disinterested witnesses." Id.An absence of evidence on a critical issue weighs against theparty — be it the movant or the non-movant — who would bear theburden of proof on that issue at trial. See Perez v. VolvoCorporation, 247 F. 3d at 310; see also Torres Vargas v.Santiago Cummings, 149 F.3d 29, 35-36 (1st Cir. 1998);Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). Accordingly, "speculation and surmise, even when coupledwith effervescent optimism that something definite willmaterialize further down the line, are impuissant on the face ofa properly documented summary judgment motion." Ayale-Gerena v.Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996)(citations omitted).

At the summary judgment stage, the trial court examines theentire record "in the light most flattering to the non-movant andindulges all reasonable inferences in that party's favor. Only ifthe record, viewed in the manner and without regard tocredibility determinations, reveals no genuine issue as to any material fact may the court enter summaryjudgment." Cadle Company v. Hayes, 116 F.3d 957 at 959-60(1st Cir. 1997). In other words, the court must construe therecord and all reasonable inferences from it in favor of thenon-movant (the party opposing the summary judgment motion).See Suarez v. Pueblo Int'l, Inc. 229 F.3d 49, 53 (1stCir. 2000); Cortes-Irizarry, 111 F. 3d at 187; see alsoUnited States v. Diebold, Inc., 369 U.S. 654, 655 (1962).Moreover, "[i]f the adverse party does not [file an opposition],summary judgment, if appropriate, shall be entered against theadverse party." Fed.R.Civ.P. 56(e) (emphasis added). The FirstCircuit Court of Appeals has made clear that failure to timelyoppose a motion for summary judgment, does not, in itself,justify entry of summary judgment against the party; therefore, aDistrict Court is nonetheless "obliged to consider the motion onthe merits, in light of the record as constituted, in order todetermine whether judgment would be legally appropriate." Kellyv. United States, 924 F.2d 355, 358 (1st Cir. 1991); seealso Lopez v. Corporacion Azucarera de Puerto Rico, 938 f.2d1510, 1517 (1st Cir. 1991) (holding that before granting anunopposed summary judgment motion, the court must inquire whetherthe moving party has met its burden to demonstrate undisputedfacts entitling it to summary judgment as a matter of law). Inthe case of failure to oppose a motion for summary judgment, theconsequence "is that the party may lose the right to file anopposition." Mullen v. St. Paul Fire & Marine Ins. Co.,972 F.2d 446, 451-52 (1st Cir. 1991) (discussing unopposed motionfor summary judgment). Notwithstanding, a party that fails tooppose a motion for summary judgment, does so at its own risk andperil. See e.g. Corrada Betances v. Sea-Land Services, Inc.,248 F.3d 40, 43 (1st Cir. 2001); Herbert v. Wicklund,744 F.2d 218, 233 (1st Cir. 1994). However, even though thatthere is no opposition on file to a summary judgement, the Courtmust entertain the motion on the merits and may not grant thesame as a sanction to the party who fails to oppose. See De la Vega v. San Juan Star, 377 F. 3d 111(1st Cir., 2004).

II. FACTUAL & PROCEDURAL BACKGROUND

The Court must analyze the factual scenario in this caseconstruing the facts, the record, and all reasonable inferencesin the light most favorable to the party opposing summaryjudgment. See Reeves v. Sanderson Plumbing Products, Inc.,530 U.S. 133, 150, 120 S.Ct. 2097, 2110 (2000) (". . . the Courtmust draw all reasonable inferences in favor of the nonmovingparty . . ."); see also, Leahy v. Raytheon Company,315 F.3d 11, 17 (2002) (". . . the court must take the record `in thelight most hospitable to the party opposing summary judgment,indulging all reasonable inferences in that party's favor'.")(quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990); see also, Plumley v. Southern Container Inc.,303 F.3d 364, 368-69 (1st Cir. 2002)).

Before becoming Registrar of the Copyright Registry of PuertoRico, plaintiff labored as the Deputy Secretary of Commerce underthe administration of ex-governor Luis A. Ferre. He then was theDirector of the Municipality of San Juan's Legal Department underthe ex-mayor (and later, ex-governor) Carlos Romero Barcelo.Both, Mr. Ferre, and Mr. Barcelo held office under the NPP party.Subsequently, between 1976 and 1991, plaintiff served as SuperiorCourt Judge. All in all, plaintiff has been serving thegovernment for over thirty (30) years. However, he did not worksolely under NPP administrations. Plaintiff was also employed forabout two (2) years by former PDP governor Rafael Hernandez Colonto provide legal services under various contracts with the Rightto Work Administration.

Plaintiff was appointed Registrar of the Copyright Registry ofPuerto Rico on July 1st, 1993 under NPP former governor Dr.Pedro Rossello. As Registrar, plaintiff enjoys employmentbenefits analogous to those of a Superior Court Judge from theCommonwealth of Puerto Rico. Such public servant's hierarchy, salary, and term are the same. The Registraris appointed by the Governor for a term of twelve (12) years, butonly with the consent and approval of the Senate of Puerto Rico.The Copyright Registry is attached to the Department of State.Albeit, regardless of said attachment, the Registrar is empoweredto acquire services and equipment, and to adopt all rulespertaining to the registration, deposit, reproduction, and feesfor all intellectual property presented for inscription.Furthermore, the registrar has full authority to adopt all rulesregarding the acquisition and control of the equipment obtainedfor the Copyright Registry and the accounting of funds. 31 P.R.Laws Ann. §§ 1402b et seq. However, the Registrar of theCopyright Registry never took any steps to create his own budgetso as to financially separate his office from the Department ofState because "that would have entailed that [the Registry . . .]create ? an Accounting Office inside the Registry ? and [theRegistry] did not have the personnel to do it." Plaintiff'sCounter Statement of Material Facts ("PCSMF"), Exhibit 6.Consequently, the Registry's budget was under the jurisdiction ofthe Finance and Budget Office of the Department of State. Id.,Exhibit 2. Thus, registration fees collected would then be placedin the general fund of the Department of Sate to be used if theRegistry had a need for equipment. Notwithstanding, if theRegistry was in need of materials, said request would have to gothrough the process of requisition and it had to be approved bythe Budget Office of the Department of State. Id., Exhibit 6.

The general elections of November 2000 resulted in the PDPtaking office in January 2001. Accordingly, co-defendant, andthen governor, Calderon appointed co-defendant Ferdinand Mercadoas Secretary of the Department of State. On February 27, 2001,only about a month and a half into his incumbence, co-defendantMercado issued a letter wherein co-defendant Mercado referred tothe Department of Justice, particularly to co-defendant AnabelleRodriguez, then Secretary of Justice, "the possible illegal use by the Copyright Registry of theInternet System." See Defendants' Statement of UncontestedFacts ("DSUF"), Exhibit 2. Said letter also indicated thatco-defendant Mercado had received information from systemspersonnel explaining that the computers assigned to said registryhad been utilized to access pornographic material, and that theaccess password that reflected this activity corresponded to theRegistrar of the Copyright Registry. Co-defendant Mercadoemphasized to Rodriguez that, pursuant to Administrative Order99-003, as issued by then NPP appointed Secretary of State NormaBurgos, unauthorized usage of the computers and Internet servicesconstituted the unofficial usage of the Internet forentertainment or for personal benefit, as well as access tounofficial material, immoral, offensive, or pornographic. Id.Finally co-defendant Mercado expressed his concern regardingpossible violations to state and/or federal statutes concerningthe traffic of pornographic material. Plaintiff then proceeded tooffer his services to "provide additional information that, dueto the nature of this communication, I have not included." Id.Furthermore, also during the beginning months of 2001,plaintiff's personal secretary, Nancy Zayas, was transferred outof his office. His request for a replacement went unattended.Plaintiff's parking space, space which he had been utilizingsince he was first appointed, was taken away from him.Notwithstanding, after plaintiff complained to the EqualEmployment Opportunity Commission, and the EEOC notifyingco-defendant Mercado that said action would potentiallyconstitute a violation under the Americans with Disabilities Act,Mercado ordered the parking space be reinstated to plaintiff.PCSMF, Exhibit 2. The Court notes, however, that there is norecord whatsoever of plaintiff having requested a parking spacefor any reason within the Department of State. DSUF, Exhibit 5.

The Department of Justice inquired into the computer use matterregarding Mercado's letter concerning immoral material found in the Copyright Registrycomputers and, on September 12, 2001, co-defendant Rodriguezreplied to Mercado's letter. Through said letter, then Secretaryof Justice Rodriguez informed Mercado that the Department hadcorroborated, through its independent investigation, that thecomputer situated in the Registrar's office, while utilizing thepassword assigned to the Registrar — both belonging to plaintiffBird — had accessed, through the Internet, pages exhibitingmaterial of pornographic, and child pornographic,content.1 DSUF, Exhibit 3. However, Rodriguez explainedthat, pursuant to the Governmental Code of Ethics, 3 P.R. LawsAnn. § 1801, et seq., said findings were not sufficient at lawto prove, beyond a reasonable doubt, the elements required underArticle 3.2(c) related to the use of public property to obtainadvantages, privileges, or benefits not allowed by law.Notwithstanding, provided that Articles 6 and 5 of the Rules ofGovernmental Ethics, Rule No. 4827 of November 23, 1992, werepotentially applicable to this situation, Rodriguez informed thatshe was referring this issue to the Office of GovernmentalEthics. Id. Pursuant to the letter signed by Vilmary SolerSuarez, Assistant District Attorney, and Felix Fumero Pugliessi,Director of the Public Integrity Office, on September 19, 2001,it was recommended that the complaint of illegal use of theInternet (the alleged pornographic materials accessed) againstplaintiff be dismissed. DSUF, Exhibit 11. Notwithstanding thisrecommendation, on October 22, 2001, a news article was reportedin El Nuevo Dia wherein plaintiff was named as being underinvestigation by the Government Ethics Office and the Departmentof Justice for allegedly having accessed pornographic materialsthrough the Internet.

Plaintiff Bird, understanding that he had been discriminatedagainst because of his political affiliation by allegedly having been stripped of responsibilitiesthat were previously legitimately his, of his supervisory statusand his right to work independently on projects of significance,and having had to endure a sustained and significant generalworsening of employment conditions, filed the present claim onOctober 18, 2002 in an effort to vindicate his rights under deFirst and Fourth Amendments of the Constitution of the UnitedStates. As explained above, he also seeks relief under allegeddefamation pursuant to the common law of the Commonwealth ofPuerto Rico based on the newspaper publications. Plaintiff lateramended (on three different occasions) the complaint to add otherdefendants and a claim for constructive discharge. (Docket No.59)

Only three and a half months after plaintiff filed his suit, hedelivered a letter to co-defendant, then governor, Calderon onJanuary 31, 2003. Through said letter, plaintiff advised Calderonas to the position of the Registrar of the Copyright Registry,summarized his previous work experience, and requested herposition as to the possibility of him leaving his position asRegistrar before his term expired. He explained the reason behindhis consideration of retirement was the fact that his functionshad been obstructed by the political persecution, anddiscriminatory work environment created by co-defendant Mercadoagainst him and his personnel. This, in turn, had negativelyaffected his health, as well as that of his employees. SeeLetter, Docket No. 32, Exhibit 1. The described letter was neveranswered, and, ultimately, on or about July 15, 2003, plaintifftendered his formal resignation to co-defendant Calderon,effective August 31, 2005. DSUF at 3, #10, and accepted byplaintiff in PSCMF at 2, #10.

III. § 1983 CLAIMS

To succeed on a claim under 42 U.S.C. § 1983, plaintiff mustestablish, first, that the rights, privileges and immunitiesgranted to him by the Constitution or the laws of the UnitedStates were violated; and second, that the violation was committed by aperson acting under color of state law.2 See e.g.Daniels v. Williams, 474 U.S. 327, 196 S.Ct. 662 (1986). TheCourt examines first plaintiff's First Amendment argumentsbrought under § 1983.

A. First Amendment Claims

Plaintiff insists that his rights were violated when theDefendants discriminated against him when Mercado, under color ofstate law, orchestrated and set in motion a chain of separate anddistinct actions intended to harm and humiliate him on the solebasis of his political affiliation. Bird further complains thatthe actions taken against him have been severe and adverse enoughto place him in a situation unreasonably inferior to the norm ofhis position amounting to a constructive discharge.

Before analyzing these claims, it is important to emphasizethat the tests and legal standards in the First Amendment contextare "notoriously fuzzy," essentially "because the cases dealunder the same head with very different problems and`justifications.'" Flynn v. City of Boston, 140 F.3d 42, 46(1st Cir. 1998). Therefore, it is of vital importance to parseout the cognizable First Amendment issues present in the instantcase: The Supreme Court has developed two lines of cases to address the First Amendment rights of public employees. One line of cases involves the extent to which the government can take adverse action against an employee because of her political affiliation. The second line involves government employees who claim to be victims of retaliation taken against them as reprisals for their having spoken out on matters of public concern.Mendoza Toro v. Gil, 110 F.Supp.2d 28, 34 (D.P.R. 2000)(citations omitted). Currently before the Court are claims onlyunder the first category mentioned — political discrimination.Accordingly, the Court will proceed to analysis of plaintiff'spolitical discrimination claim.

1) "Political Discrimination" Claim

I) Generally:

It has consistently been held that the First Amendment protectsnon-policymaking public employees form adverse employmentactions based on their political affiliation. See Rutan v.Republican Party of Ill., 497 U.S. 62, 75-76, 110 S.Ct. 2729,111 L.Ed.2d 52 (1993); Mercado Alicea v. P.R. Tourism Company,396 F.3d 46, 51 (1st Cir. 2005); Padilla Garcia v.Rodriguez, 212 f.3d 69, 74 (1st Cir. 2000). It is settledlaw that when a plaintiff institutes a claim of politicaldiscrimination, he or she, undoubtedly, bears the burden ofproducing sufficient evidence, be it through direct orcircumstantial means, that he or she engaged in aconstitutionally protected conduct and that his or her politicalaffiliation was the substantial or motivating factor behind thechallenged adverse employment action. See Mt. Healthy City Bd.of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568,50 L.Ed.2d 471 (1977); Guzman Ruiz v. Hernandez Colon, 406 F.3 31, 34(1st Cir. 2005); Gonzalez de Blasini v. Family Department,377 F.3d 81, 85 (1st Cir. 2004); Cosme Rosado v. SerranoRodriguez, 360 F.3d 42, 47 (1st Cir. 2004). Accordingly,said plaintiff is obligated to point "to evidence on the recordwhich, if credited, could permit a rational fact finder toconclude that the challenged personnel action occurred andstemmed form a politically based discriminatory animus." LaRouv. Ridlon, 98 F.3d 659, 661 (1st Cir. 1996) (quotingRivera Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir. 1994)); see also, Cruz Baez v. Negron Irizarry,360 F.Supp.2d 326 (D.P.R. 2005). Furthermore, even thoughcircumstantial evidence may be sufficient to support a finding ofpolitical discrimination, a plaintiff must make a fact specificshowing that a causal connection exists between the adverseemployment action and their political affiliation. See AvilesMartinez v. Monroig, 963 F.3d 2, 5 (1st Cir. 1992).

However, the First Circuit has established that knowledge ofpolitical affiliation cannot be merely established throughtestimony of having been seen, or, for that matter, met duringroutine campaign activity participation, having been visited bythe now incumbent defendant while said defendant was a candidateto the position he now holds, by having held a trust position inthe outgoing administration, by having political propagandaadhered to plaintiff's car and/or house, or through the knowledgeof third parties. See Gonzalez Pina v. Rodriguez,407 F.3d 425, 432 (1st Cir. 2005); Gonzalez de Blasini, supra at85-86 (affirming the dismissal of a complaint concluding that,even though plaintiff was alleged to be a well known supporter ofthe NPP, had held a trust position under the previous NPPadministration, and defendant had expressed interest in givingher position to a PDP member, this fell short of evidence thatdefendant knew of plaintiff's political affiliation); VazquezValentin, supra; Cosme Rosado v. Serrano Rodriguez, supraat 48; Camilo Robles v. Zapata, 175 F.3d 41, 43-44 (1stCir. 1999) (holding that evidence must be presented thatdefendant was either the primary actor involved in, or a primemover behind, the underlying violation); Acevedo Diaz v.Aponte, 1 F.3d 62, 69 (1st Cir. 1993) (holding the fact thatplaintiffs were conspicuous targets for discriminatory employmentaction by defendants because they played prominent roles inpublicly and vocally supporting a former mayor was not enough).Thus, asserting inequity and tacking on a self-serving conclusionthat defendant was motivated by discriminatory animus does not suffice as the prima facie-fact specificshowing that a plaintiff was a victim of politicaldiscrimination. Id.

Finally, if a plaintiff succeeds in making a prima facie-factspecific showing of political discrimination, judgment as amatter of law cannot be entered against said plaintiff fordefendant is allowed to prove, by preponderance of the evidence,that the adverse employment action would have been maderegardless of the employee's political affiliation. Id. Thisparticular defense commonly referred to as the Mt. Healthydefense requires, thus, that defendant show, by a preponderanceof the evidence, that the adverse employment decision would havebeen made regardless of the employee's political beliefs.Defendants must also establish that they would have taken saidcorrective action against all employees in similar position toplaintiffs' — or otherwise show that they would have taken thecorrective action either way — regardless of politicalaffiliation. See Sanchez Lopez v. Fuentes Pujols,375 F.3d 121, 131 (1st Cir. 2004). If said evidence is credible andnondiscriminatory, the burden is shifted, once again, toplaintiff where he or she must make a showing that politicalaffiliation "was more likely than not a motivating factor."Padilla Garcia v. Rodriguez, 212 F.3d 69, 74 (1st. Cir.2000). Logically, then, a plaintiff may still prevail if it isfound he or she would not have received the same treatment `butfor' his or her political affiliation. See Acosta Sepulveda v.Hernandez Purcell, 889 F.2d 9, 13 (1st Cir. 1989).

Notwithstanding all of the above, the Court, for purposes ofthis case, shall accept that defendants knew the politicalaffiliation of plaintiff Bird Hoffman because of the appointmentsmade to him as director of the legal department of theMunicipality of San Juan and Deputy Secretary of Commerce underNPP administrations.

ii) "Short of Dismissal"/Constructive Discharge: Plaintiff claims that he was discriminated against, placed in aposition unreasonably inferior to the norm, and eventuallyconstructively discharged from his position as Registrar of theCopyright Registry because of his affiliation with the NPP. Heargues that this discrimination and the adverse employmentactions taken against him deprived him of fundamental FirstAmendment rights. See Rutan v. Republican Party of Ill.,497 U.S. 62, 110 S.Ct. 2729 (1990); Branti v. Finkel, 445 U.S. 507,100 S.Ct. 1287 (1980); Elrod v. Burns, 427 U.S. 347,96 S.Ct. 2673 (1976).

Indeed, the First Amendment protects government employees fromshort of dismissal treatment in the workplace. In essence, in"short of dismissal" causes of actions, as is one of theallegations brought forth by plaintiff, a plaintiff has to show,through preponderance of the evidence, that the diminution in hisor her duties was motivated by discrimination based on politicalaffiliation; and, by clear and convincing evidence, that thechallenged actions resulted in a work environment "unreasonablyinferior" to the norm for the position. See Gonzalez Pina v.Rodriguez, 407 F.3d at 431-32; Ortiz Garcia v. ToledoFernandez, 405 F.3d 21 (1st Cir. 2005); Acosta Orozco v.Rodriguez de Rivera, 132 F.3d 97 (1st Cir. 1997); Agosto v.Agosto de Feliciano, 889 F.2d 1209, 1218-20 (1st Cir. 1989);Agosto v. Aponte Roque, 800 F.Supp. 1033, 1037 (D.P.R. 1992).Furthermore, in guiding district courts as to the application ofthe "unreasonably inferior" prong of the prima facie analysis,the First Circuit Court has explained that this determinationrests upon whether "the government's actions are sufficientlysevere to cause reasonably hardy individuals to compromise theirpolitical beliefs and associations in favor of the prevailingparty." Agosto de Feliciano, 889 F.2d at 1217. Again, if thistwo-pronged showing is met, then judgment as a matter of law isinapposite for defendant would have the right to contestplaintiffs' prima facie claim of "short of dismissal" due topolitical discrimination by demonstrating that the adverseemployment action would have been made regardless of the employee's politicalaffiliation or by showing that the "short of dismissal" thresholdof "reasonably inferior position" to a "hardy individual tocompromise their political beliefs" had not been met.

Albeit, the First Circuit has translucently upheld that anemployee who has lost merely the perks of his position; whose jobhas been substantially narrowed, but retains supervisoryauthority over matters of comparable significance to those takenaway; who had been a supervisor and had worked independently andlost said independence, or vice versa; and who is given one ortwo short-term assignments that are below his rank do not meetthe unreasonably inferior standard. On the contrary, he who wasleft with only a few routine and technical assignments, or nosignificant assignments at all; whose job functions remainlargely the same, but is excluded from policymaking sessions; whoretains her job duties, but is criticized harshly and on a nearlydaily basis and never provided with guidance on how to improve,and/or transferred to an undesirable office space do meet thethreshold of unreasonably inferior standard. See Gonzalez Pinav. Rodriguez, 407 F.3d at 431-32; Ortiz Garcia v. ToledoFernandez, 405 F.3d 21 (1st Cir. 2005); Acosta Orozco v.Rodriguez de Rivera, 132 F.3d 97 (1st Cir. 1997); Agosto v.Agosto de Feliciano, 889 F.2d 1209, 1218-20 (1st Cir. 1989);Agosto v. Aponte Roque, 800 F.Supp. 1033, 1037 (D.P.R. 1992).

Similarly, in order for a plaintiff to prove that he or shesuffered short of termination or was constructively discharged, aplaintiff must show that the new working conditions imposed bythe employer had become so onerous, abusive, and/or unpleasantthat a reasonable person in the employee's position would havefelt compelled to resign. See Mercado Alicea, 396 F.3d at 52;Suarez v. Pueblo Intern., Inc., 229 F.3d 49, 54 (1st Cir.2000); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1stCir. 1993) (holding that constructive discharge occurs when"working conditions [are] so intolerable? that a reasonable person would feel compelled toforsake his job rather than to submit to looming indignities");Aviles Martinez v. Monroig, 963 F.3d 2, 6 (1st Cir. 1992).Although resignation is ordinarily not a discriminatory act, whena resignation constitutes a constructive discharge, it isconsidered a discriminatory act. See Gonzalez Garcia v. P.R.Elec. Power Auth., 214 F.Supp.2d 194, 204 (D.P.R. 2002)."Alleging constructive discharge presents a `special wrinkle'that amounts to an additional prima facie element." Sanchez v.Puerto Rico Oil, Co., 37 F.3d 712, 719 (1st Cir. 1994).Accordingly, plaintiff must establish a prima facie case thathe or she (1) was within a protected class; (2) met theemployer's legitimate performance expectations; (3) wasactually or constructively discharged; and (4) was replaced byanother with similar skills and qualifications. See St. Mary'sCtr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742,125 L.Ed.2d 407 (1993); see also Landrau Romero v. Banco Popular de P.R.,212 F.3d 607, 613 (1st Cir. 2000).

However, "[i]f a plaintiff does not resign within a reasonabletime period after the alleged harassment, he was notconstructively discharged." Gonzalez Garcia,214 F.Supp.2d at 204 (quoting and following Landrau Romero, 212 F.3d at 613(holding that seven month gap between the alleged employmentdiscrimination and plaintiff's resignation was too long a periodto find that plaintiff had been constructively discharged)); seealso Smith v. Bath Iron Works Corp., 943 F.2d 164, 167(1st Cir. 1991) (holding that no constructive dischargeoccurred where plaintiff quit six months after the lastreported incident of discrimination).

iii) Analysis:

First and foremost, the Court must undoubtedly conclude thatplaintiff does not have a First Amendment right to politicalaffiliation claim actionable under 42 U.S.C. § 1983. From a clearreading of the above cited case law, there is no question thatSection 1983 was instilled to provide a vehicle for non-policymaking public employees to demandrespect for their rights against their employers. There is alsono doubt that, from a comprehensive reading of the CopyrightRegistry Statute, and its legislative history, notwithstandingthe fact that the Registry is ascribed to the Department of Statefor financial reasons, there is absolutely nothing in thatstatutory body that moves the Court to even so much as assumethat the Registrar, or the Registry for that matter, is asubordinate to either the Secretary of State, the Secretary ofJustice, or the Governor of Puerto Rico. On the contrary, asexplained above, the statute categorically delineates theRegistrar's position as one of equal standing to that of a Judgeof the Court of First Instance of Puerto Rico — an independentposition that does not respond to any of the defendants herein —and as one that provides the Registrar with the full authority tocreate and implement rules, regulations, and policies regardingthe registry of intellectual property materials in Puerto Rico,unquestionably a quasi-legislative and quasi-judicialposition.3 See 31 P.R. Laws Ann. §§ 1402(b), 1402(g),1402(l). Finally, even, in arguendo, if the Court were toaccept as true without any proof whatsoever that the Registraris, in fact, subordinate to the defendants herein, his claimswould still fail to reach the required threshold.

Citing to case law, plaintiff briefs the Court anent therelevant political discrimination standards, but he fails tooppose adequately Defendants' arguments with more than general,unsupported assertions and conclusory allegations. Indeed, in hismemorandum, he only juxtaposes his political affiliation to thatof the defendants. He further attempts to contest defendants'request for summary judgment by alleging unreasonably inferior workingconditions because his requisitions for materials and requestsfor employee reclassification went unattended by co-defendantMercado, that his secretary was transferred and never replaced,his parking space taken away, was stripped of hisresponsibilities, and his authority over the Registry undermined.

But, notwithstanding that his secretary, Ms. Doris Soto,retired at her own request, he remained with his regular otherstaff allowing him to comply with his duties. Further his parkingrights, assuming that he originally possessed said rights, werereinstated. Moreover, in not a single one of the Exhibits broughtforth by plaintiff does he show what requisitions were made andunattended, how he was stripped of his responsibilities bysomeone who, pursuant to the Copyright Registry Act, does nothave the authority to do so, or how his authority over theRegistry was undermined. More telling still is the fact that hewaited years since the alleged discriminatory acts to resign hisposition. Furthermore, plaintiff's assertion that he was leftwithout a secretary is a toothless tiger when juxtaposed to thefact that plaintiff still had two assistants working under him inthe Registry — Mr. David Maysonet Castro, and Ms. Alicia RiveraGonzalez. See PSCMF, Docket No. 93, Exhibits 3, and 4.Plaintiff Bird fails to present any evidence which surpasses merepolitical affiliation. Also, the facts he outlines throughout hismemorandum and the evidence proffered, without additional, hard,documented evidence of discrimination, merely constitute astrained attempt to connect the alleged political affiliation ofhis co-workers with the fact that he feels he was treatedunfairly. Facing brevis disposition, the plaintiff is requiredto show more than "speculation and surmise even coupled witheffervescent optimism." Ayala Gerena v. Brystol Myers-Squibb,Co., 95 F.3d at 95, more was required from him. More so when he,himself, explained in his deposition how support had been lackingfor the Registry since its origination even under the control of the NPP. Furthermore, the First Circuit has consistently heldthat an employee who has lost merely the perks of his positiondoes not meet the threshold of unreasonably inferior standard.See Gonzalez Pina v. Rodriguez, 407 F.3d at 431-32; OrtizGarcia v. Toledo Fernandez, 405 F.3d 21 (1st Cir. 2005);Acosta Orozco v. Rodriguez de Rivera, 132 F.3d 97 (1st Cir.1997); Agosto v. Agosto de Feliciano, 889 F.2d 1209, 1218-20(1st Cir. 1989); Agosto v. Aponte Roque, 800 F.Supp. 1033,1037 (D.P.R. 1992).

It is axiomatic that the plaintiff has an affirmativeresponsibility to put his best foot forward by presentingevidence that will support his claim, but has failed. SeeMcCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22(1st Cir. 1991). Plaintiff has only proffered self servingaverments in a vacuum surrounded by unsupporting depositions andletters. Plaintiff has not complied with his affirmativeresponsibility, and "[he] cannot expect a trial court to do hishomework for him." Id. at 23.

Plaintiff Bird's failure to bear the initial burden ofdemonstrating a political animus, compels the Court to grantdefendants' motion for summary judgment in that plaintiff Birdhas failed to properly respond to brevis disposition of summaryjudgment challenge. In light of these circumstances, the Courtdeems that plaintiff has failed to make out a prima facie caseof First Amendment political discrimination, and the CourtGRANTS summary judgment as to the claim of "short oftermination" and of "constructive discharge" allegations.

Furthermore, the Court deems pertinent a clarificationinvolving a critical issue. Pursuant to historically establishedSupreme Court case law, the President's absolute power of removalhas been confined by federal courts to the removal of purelyexecutive officers. See Humphrey's Ex'r v. United States,295 U.S. 602, 624-28, 55 S.Ct. 869 (1935), 79 L.Ed. 1611;Santana v. Calderon, 342 F.3d 18, 27 (1st Cir. 2003). Accordingly, it is Congresswho may limit the removal power — and this Court harbors seriousdoubts that said removal may be effectuated through constructivedischarge — of the President with respect to officers performingquasi judicial or quasi-legislative functions. Id. As theSupreme Court concluded in Wiener v. United States,357 U.S. 349, 354, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) the War ClaimsCommission "was established as an adjudicating body with all theparaphernalia by which legal claims are put to the test ofproof," the Court makes such a finding herein regarding theCopyright Registry. Consequently, [j]udging the matter in all the nakedness in which it is presented, namely, the claim that the [Governor] could remove a [Registrar] of an adjudicatory body like the [Copyright Registry] merely because he wanted his own appointees on such a [position], [the Court is] compelled to conclude that no such power is given to the President [Governor] directly bye the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about it. The philosophy of Humphrey's Executor, in its explicit language as well as its implications, precludes such a claim.Id.

Subsequently, the Court noted that in order to absolutelydetermine if the officer occupies a purely executive position, itmust be evaluated whether the removal restriction are of such anature that they impede the President's ability to perform hisconstitutional duty, and the functions of the official inquestion must be analyzed in that light. See Morrison v.Olson, 487 U.S. 654, 689-90, 108 S.Ct. 2597, 101 L.Ed.2d 569(1988); Santanta, 342 F.3d at 27. In other words, onceMorrison was decided, the removal powers of the President[Governor] were clearly limited to purely executive officers ifthe removal implicates the President's [Governor's] power toperform his constitutional duty to assure that the laws arefaithfully executed. Id. A priori, it follows, thus, thatplaintiff, the Registrar of the Copyright Registry of PuertoRico, is not an executive position in that plaintiff's position does not entail merely classic policymaking oradministrative authority such that the Governor's obligation toexecute the laws would be hindered by her inability to controlthe occupant of the position of Registrar to the CopyrightRegistry. That said, the Court understands and concludes thatthe only manner in which plaintiff may be removed from hisposition is through legislative impeachment seeing that thestatute does not provide for a procedure of removal overplaintiff's position which, unquestionably, has quasi-judicialfunctions,4 and is, by law, a position with a fixed termof office equal to that of a Judge of the Court of First Instance— twelve years, 31 P.R. Laws Ann. § 1402a. Finally, seeing thatthe Act does not provide for a procedure of removal, the Court isleft with no choice, but to turn to the Puerto Rico's PoliticalCode, 3 P.R. Laws Ann § 1 et seq. in order to determine howthe Registrar, a public official with quasi-legislative andquasi-judicial faculties, may be removed from his position, ofcourse, in light of Humphrey's Ex'r.

Pursuant to article 167 of the Political Code, a publicofficial is "[e]very officer, the mode of whose appointment isnot prescribed by the Constitution of the Commonwealth, or thelaws of Puerto Rico, shall be appointed by the Governor by andwith the advice an consent of the Senate." 3 P.R. Laws Ann. §541. Accordingly, plaintiff herein is, unquestionably, a publicofficer due to the Copyright Act specifically providing that the Registrar shall beappointed by the Governor with the advice and consent of theSenate. By the same token, once appointed as public officer, eachand every person occupying said position, be it within theexecutive, administrative, legislative or judicial spheres, saidofficer must take the Oath of Office and Official Bonds. 3 P.R.Laws Ann. § 601. Failure to comply or violation of this oath, inturn, results sufficient just cause to remove an officer fromhis position. 3 P.R. Laws Ann. § 6. Consequently, the nominatingauthority has the full faculty to remove any officer that it hadappointed with the express exception of those whose removal isproscribed in another fashion by the Constitution. Id. "In thismanner, it is statutorily recognized that the Governor'snominating power implies the power to remove." Calderon v.Garcia Garcia, KLRA 2002-00267, 2002 P.R. App. LEXIS 1970,*18-19 (P.R. Cir. Jun. 28, 2002).

Upon close examination of all the norms statutorily providedand further explained by case law, and, upon application to thecase at bar, the Court concludes that the Copyright RegistryRegistrar is, in fact, a quasi-judicial public official havingthe Governor named him with the advice and consent of the Senatefor a fixed term of twelve years (the Legislature making afinding that he is equal in standing to a Superior Court Judge asto his term in office). By virtue of this critical fact, he is,thus, subject to the removal faculty inherent to the nominatingauthority (the Political Code is not, to this Court'sunderstanding, open to said removal taking effect throughconstructive discharge). Notwithstanding, as explained above,provided that the Registrar does not occupy a "purely executive",policymaking position, particularly his quasi-judicial functions,the nominating authority's removal power is subjected to thelimits set forth by the Senate, and, in the absence of particulardisposition by the Senate to the effect — as is the case herein —the nominating authority must abide by that established inHuphrey's Ex'r (person with a quasi-judicial function may notbe removed except by filing of charges and subject to senatorialfindings of just cause). Therefore, if the nominating authoritywished to remove the Registrar, it may only do so for just causerelated to the performance of his functions. Otherwise, thenominating authority is prohibited from said removal — more sowhen plaintiff's position does not entail purely policymaking oradministrative authority such that the Governor's obligation toexecute the laws would be hindered by her inability to controlthe occupant of the position of Registrar to the CopyrightRegistry.

The fact that plaintiff can be removed because of hisquasi-judicial functions only with the consent of the senatesuccinctly means that the allegations of constructive dischargeallegedly carried on by co-defendants are severely undermined andvirtually non-existent further strengthening the reasoning setforth above as to the lack of elements for a constructivedischarge to materialize.

B. Fourth Amendment Claim

Plaintiff purports to request relief against defendants forviolations to his right to be free form malicious prosecution andunreasonable searches and seizures — violations which, hecontends, are actionable under 42 U.S.C. § 1983. In essence, heargues that the defendants sought the commencement of criminalproceedings against him, at the behest of co-defendant Mercadoafter conspiring with co-defendant Rodriguez, without probablecause and with actual malice to deprive him of his federallyprotected Fourth Amendment rights. Plaintiff sustains thatco-defendant Rodriguez ordered a search an seizure of Bird'soffice to further politically harass him and to force him torelinquish the Registrar position. The seizing officers removedhis computer from his office, only after having acquired a CourtOrder to act. However, plaintiff alleges that said order did notidentify any criminal material to be seized, no search protocolwas involved, the request for information was not tailored as totime, place, or subject matter — all constituting, according to plaintiff, an impermissible fishing expedition. Notwithstanding,plaintiff himself, states that there was no sufficient evidenceto pursue charges, thus, criminal charges were never filed.Defendants sustain that the plaintiff has failed to state amalicious prosecution claim pursuant to the Fourth Amendment.Hence, defendants purport that, since there is no constitutionalviolation, plaintiff has failed to state a claim pursuant to §1983.

Pursuant to 28 U.S.C. § 1331, the federal courts "shall haveoriginal jurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States." Moreover,section 1983's purpose "[i]s to provide a remedy in federal courtin protection of federal rights." Ramos Bonilla v. Vivoni delValle, 336 F.Supp.2d 159,166 (1st Cir. 2004) (quotingBirnbaum v. Trusell, 371 F. 2d 672 (2nd Cir. 1966)).Section 1983 was particularly created to "[d]eter? state actorsfrom using [the] badge of their authority to deprive individualsof their federally guaranteed rights and provide relief tovictims whenever such deterrence fails." Id.; see also Wyattv. Cole, 504 U.S. 158, 112 S.Ct. 1827 (1992); City of Newportv. Fact Concerts Inc., 453 U.S. 247, 101 S.Ct. 2748 (1981);Rueben Corp. v. Brauer, 655 N.E. 2d 1162 (1995).

Section 1983 authorizes actions for equitable relief and/ordamages against "every person who under color of any [. . .]custom or usage, of any State or Territory [. . .] subjects orcauses to be subjected any citizen of the United States or otherperson [. . .] to the deprivation of any rights, privileges, orimmunities secured by the Constitution and laws."42 U.S.C. § 1983. Thus, as explained above in detail, in order to state aclaim cognizable under Section 1983, Plaintiff must allege "thatsome person has deprived him of a [constitutional or a] federal[statutory] right." Gomez v. Toledo, 446 U.S. 635, 640 (1980).To prevail in an action brought under 42 U.S.C. § 1983, plaintiffmust satisfy two prongs. First, he must prove that he wasdeprived of a right, immunity, or privilege secured by the Constitution or laws of the UnitedStates. Parratt v. Taylor, 451 U.S. 527, 535 (1981); Baker v.McCollan, 443 U.S. 137, 140 (1979); Voutour v. Vitale,761 F.2d 812, 819 (1st Cir. 1985). Second, he must have been deprivedof his right, immunity or privilege, by a person acting undercolor of state law. Id. Accordingly, two distinct elements areto be addressed. First, there must have been a violation ofrights secured by the Constitution or laws of the United Statesand, defendants' conduct must have caused the deprivation ofplaintiff's rights. Id.; see also Soto v. Carrasquillo,878 F.Supp. 324, 326-327 (D.P.R. 1995).

"The law is settled that a garden variety claim of maliciousprosecution garbed in the regalia of § 1983 must fail. There isno substantive due process right5 under the FourteenthAmendment to be free from malicious prosecution and theavailability of a plainly adequate remedy under the [state] lawdefeats the possibility of a procedural due process claim" in theinstant case. See Perez Ruiz v. Crespo Guillen, 25 F.3d 40,43 (1st Cir. 1994) (holding that the adequate state remedyfor malicious prosecution is under 31 P.R. Laws Ann. § 5141 isfatal to a claimant's claim); see also Meehan v. Town ofPlymouth, 167 F.3d 85, 88 (1st Cir. 1999) (citing Rochev. John Handcock, 81 F. 3d 249 (1st Cir. 1996) (internalcitations omitted)); Ramos Bonilla, 336 F.Supp.2d at 166.Consequently, in order to transform a malicious prosecution claiminto a claim cognizable pursuant to § 1983, the plaintiff mustdemonstrate a deprivation of a constitutional right. SeeNieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). Particularly,in the specific case of malicious prosecution, the First CircuitCourt of Appeals has established that, in order to determinewhether a federal protected right has been violated, theplaintiff has to establish that the criminal charges at issuemust have imposed some depravation of liberty consistent with theconcept of seizure. Britton v. Maloney, 196 F.3d 24, 28-29(1st Cir. 1999) (citations omitted).

Section 1983 "is not in itself a source of substantive rights"but "a method for vindicating federal rights elsewhereconferred." Albright v. Oliver, 510 U.S. 266, 271 (1994).Hence, the plaintiff has to identify the constitutional rightallegedly infringed. Id. (citations omitted). The FourteenthAmendment, in its procedural due process aspect, as is clearlyplaintiff Bird's claim, cannot serve as the vehicle forplaintiff's assertion of the infringement of his constitutionalrights, pursuant to the alleged malicious prosecution he wassubjected to, since the plaintiff has an adequate remedy formalicious prosecution pursuant to state law. See 31 L.P.R.A. §5141; see also Nieves v. McSweeney, 241 F.3d at 53 ("[n]oprocedural due process claim can flourish in this soil because[Puerto Rico] provides an adequate remedy for maliciousprosecution."). Furthermore, the malicious prosecution claim alsofails the substantive due process aspect of the FourteenthAmendment since the "`substantive due process may not furnish aconstitutional peg on which to hang' a federal maliciousprosecution tort." Id. (quoting Albright v. Oliver,510 U.S. at 271 n. 4.) However, "[w]here a particular Amendment`provides and explicit textual source of constitutionalprotection' against a particular sort of government behavior,`that Amendment, not the more generalized notion of substantivedue process must be the guide for analyzing these claims."Albright v. Oliver, 510 U.S. at 273 (quoting Graham v.O'Connor 490 U.S. 386 at 395 (1989)). Therefore, the FourthAmendment could potentially constitute an adequate `constitutional peg' where a plaintiffsubjected to a malicious prosecution may `hang' his § 1983 claim.See Ramos Bonilla 336 F.Supp.2d at 166-67; Nieves v.McSweeney, 241 F.3d at 54; Meehan v. Town of Plymouth,167 F.3d at 88 (citing Albright v. Oliver 510 U.S. at 371).

The First Circuit has established that "[f]or a public officialto transgress the Fourth Amendment through the initiation andpursuit of criminal charges, the prosecution of said chargesmust, at a bare minimum, have occasioned a deprivation ofliberty consistent with the concept of a seizure." Id. at 54(citing Britton v. Maloney, 196 F.3d 24, at 28 (citingSinger v. Fulton County Sheriff, 63 F.3d 110, 116 (2nd Cir.1995)) (emphasis added). In other words, a seizure actionableunder the Fourth Amendment only occurs when a state official,under color of authority, restrains the liberty of a citizen.See Nieves v. McSweeney, 241 F.3d at 55. For example, a legalobligation to appear in court does not impose any restrictions ona person's liberty and is insufficient to establish a seizurewithin the meaning of the Fourth Amendment. Nieves v.McSweeney, 241 F.3d at 56; Britton v. Maloney,196 F.3d at 29-30.

The malicious prosecution cause of action permits damages for adeprivation of liberty pursuant to a legal process.6

The Court, thus, proceeds to address the seizure of plaintiff'scomputer as the basis of plaintiff's malicious prosecution claim.The seizure in the instant case, was not a warrantless seizure.In fact, a Court Order had been issued for said computer.However, as the First Circuit concluded in Meehan that awarrantless arrest could not "bring a malicious prosecutionclaim based upon his arrest because his arrest [did] not constitute the`initiation of the proceedings' against Meehan" nor did itconstitute legal process, Meehan, 167 F.3d at 89-90. Theseizure of plaintiff's computer in the instant case cannotconstitute the initiation of the proceedings (furthermore, itmust be noted, the computer is property of the government, andnot of plaintiff). Accordingly, he is barred from bringing amalicious prosecution claim based on the seizure of his computer.Hence, absent plaintiff's malicious prosecution claim, plaintifffails to establish his seizure claim under the Fourth Amendment.Plaintiff, therefore, lacks the `constitutional peg' `to hang'his § 1983 claim — more so when criminal charges were neverfiled. See Nieves v. McSweeney, 241 F.3d at 54 (citingMeehan, 167 F.3d at 89-90).

In sum, the Court finds that plaintiff has failed to allegefacts to sustain a Fourth Amendment violation, pursuant to hismalicious prosecution claim, as such, plaintiff failed the veryfirst prong of any claim pursuant to § 1983 which is to establishan infringement of a federal right, and summary judgment on thismatter must be GRANTED in favor of defendants.

IV. SUPPLEMENTAL CLAIMS

Plaintiff also brought forth causes of action under state lawrequesting indemnification of damages suffered due to defamationand under Article 1805 of the Puerto Rico Civil Code, 31 P.R.Laws Ann. § 5141. Nevertheless, a Court in a non-diversity case,such as this, must have the presence of at least one substantialfederal claim as to at least one defendant in the lawsuit inorder to hear and determine pendent stat law claims. SeeUnited Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130,16 L.Ed.2d 218 (1966); Aviles Martinez v. Jimenez Monroig,764 F.Supp. 240 (D.P.R. 1991). As the Court must enter judgmentagainst plaintiff Bird's federal claims, the Court no longer hasthe power to adjudicate his pendent state claims. Id.Therefore, the Court, in its discretion, declines to exercise its supplemental jurisdictiondefamation and tort claims as to Bird's claims against Defendant,and must dismiss them without prejudice. See Rodríguez v.Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995)."As a general principle, the unfavorable disposition of aplaintiff's federal claim at the early stages of a suit, wellbefore the commencement of trial, will trigger the dismissalwithout prejudice of any supplemental state-law claims." Id.(citations omitted). Accordingly, plaintiff's claims under PuertoRico Law are DISMISSED WITHOUT PREJUDICE.

V. CONCLUSION

Accordingly, and for the reasons aforementioned, the CourtGRANTS defendants motion for summary judgment (Docket No. 66)and DISMISSES WITH PREJUDICE all plaintiff's federal claims.Since the Court dismissed plaintiff's federal action, pursuant to28 U.S.C. § 1367 (c) as interpreted in González de Blasini v.Family Department, 377 F.3d 81, 89 (1st Cir. 2004); ClaudioGotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 105(1st Cir. 2004); and Rodríguez v. Doral Mortgage,57 F.3d 1168, 1177 (1st Cir, 1995) all claims pursuant to state laware hereby DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED.

OPINION AND ORDER

The instant case is a Civil Rights action brought forth byRoberto Bird Hoffman ("plaintiff") pursuant to 42 U.S.C. § 1983,and P.R. Laws Ann. § 5141. In sum, plaintiff is seeking severalremedies, to wit: (1) compensatory damages, (2) punitive damages,(3) costs, interests, and attorney's fees. At the time of thefiling of the complaint, plaintiff was the Registrar of theCopyright Registry of Puerto Rico. He later resigned the positionin August 2003. Plaintiff brought the instant suit againstFerdinand Mercado (then Secretary of the Department of State ofPuerto Rico), his wife, their Conjugal Partnership; AnabelleRodriguez (then Secretary of the Department of Justice), herhusband, and their Conjugal Partnership; Sila Maria Calderon(then Governor of Puerto Rico), her husband, and their ConjugalPartnership; and Cesar R. Miranda (then Chief of Staff to theGovernor of Puerto Rico), his wife, and their ConjugalPartnership for having violated his First, and Fourth Amendmentrights, and having deliberately defamed him through the localpress due to his political affiliation. See Third AmendedComplaint, Docket No. 59 at 12-14. Now, pending before the Courtis Defendants' Motion for Summary Judgment. (Docket Nos. 65,66, 67, and 72). Said motion was duly opposed by plaintiff.(Docket Nos. 89, and 93).

I. SUMMARY JUDGMENT STANDARD The framework of Fed.R.Civ.P. 56 provides that it isappropriate to enter summary judgment when "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to judgment as a matter of law." FED. R. CIV. P. 56©.See Celotex Corp v. Catrett, 477 U.S. 317, 324-25,106 S.Ct. 2548, 2553-54 (1986); Abbadessa v. Moore Business Forms, Inc.,987 F.2d 18, 22 (1st Cir. 1993). Pursuant to the language ofthe rule, the moving party bears the two-fold burden of showingthat there is "no genuine issue as to any material facts," andthat he is "entitled to judgment as a matter of law."Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1stCir. 1997). When the moving party asserts that the competentevidence clearly demonstrates that it is entitled to judgment andafter the moving party has satisfied this burden, the onus shiftsto the resisting party to show that there still exists "a trialworthy issue as to some material fact." Cortes-Irizarry v.Corporacion Insular, 111 F.3d 184, 187 (1st Cir. 1997).

To determine whether these criteria have been met, a court mustpierce the boilerplate of the pleadings and carefully review theparties' submissions to ascertain whether they reveal a trialworthy issue as to any material fact. See Perez v. Volvo CarCorporation, 247 F.3d 303, 310 (1st Cir. 2001); Grant'sDairy-Me., LLC v. Comm'r of Me. Dep't of Agric., Food & RuralRes., 232 F.3d 8, 14 (1st Cir. 2000); Cortes-Irizarry v.Corporacion Insular, 111 F.3d 184, at 187; McIntosh v.Antonino, 71 F.3d 29, 33 (1st Cir. 1995) (the Court mustlook behind the facade of the pleadings alleged in the complaint,in this case the Third Amended Complaint (Docket No. 59) andexamine the parties proof in order to determine whether a trialis required.). Furthermore, a fact is "material" if itpotentially could affect the suit's outcome. See Id. An issueconcerning such a fact is "genuine" if a reasonable fact finder,examining the evidence and drawing all reasonable inferenceshelpful to the party resisting summary judgment, could resolve the disputein that party's favor. See Id. The Court must review therecord "taken as a whole," and "may not make credibilitydeterminations or weigh the evidence." Reeves v. SandersonPlumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110(2000).

This is so, because credibility determinations, the weighing ofthe evidence, and the drawing of legitimate inferences from thefacts are jury functions, not those of a judge. See Reeves,id. There is "no room for credibility determinations, no roomfor the measured weighing of conflicting evidence such as thetrial process entails, [and] no room for the judge to superimposehis own ideas of probability and likelihood[.]" Greenburg v.Puerto Rico Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.1987). "The Court should give credence to the evidence favoringthe non-movant as well as the evidence supporting the movingparty that is contradicted and unimpeached, at least to theextent that evidence comes from disinterested witnesses." Id.An absence of evidence on a critical issue weighs against theparty — be it the movant or the non-movant — who would bear theburden of proof on that issue at trial. See Perez v. VolvoCorporation, 247 F. 3d at 310; see also Torres Vargas v.Santiago Cummings, 149 F.3d 29, 35-36 (1st Cir. 1998);Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). Accordingly, "speculation and surmise, even when coupledwith effervescent optimism that something definite willmaterialize further down the line, are impuissant on the face ofa properly documented summary judgment motion." Ayale-Gerena v.Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996)(citations omitted).

At the summary judgment stage, the trial court examines theentire record "in the light most flattering to the non-movant andindulges all reasonable inferences in that party's favor. Only ifthe record, viewed in the manner and without regard tocredibility determinations, reveals no genuine issue as to any material fact may the court enter summaryjudgment." Cadle Company v. Hayes, 116 F.3d 957 at 959-60(1st Cir. 1997). In other words, the court must construe therecord and all reasonable inferences from it in favor of thenon-movant (the party opposing the summary judgment motion).See Suarez v. Pueblo Int'l, Inc. 229 F.3d 49, 53 (1stCir. 2000); Cortes-Irizarry, 111 F. 3d at 187; see alsoUnited States v. Diebold, Inc., 369 U.S. 654, 655 (1962).Moreover, "[i]f the adverse party does not [file an opposition],summary judgment, if appropriate, shall be entered against theadverse party." Fed.R.Civ.P. 56(e) (emphasis added). The FirstCircuit Court of Appeals has made clear that failure to timelyoppose a motion for summary judgment, does not, in itself,justify entry of summary judgment against the party; therefore, aDistrict Court is nonetheless "obliged to consider the motion onthe merits, in light of the record as constituted, in order todetermine whether judgment would be legally appropriate." Kellyv. United States, 924 F.2d 355, 358 (1st Cir. 1991); seealso Lopez v. Corporacion Azucarera de Puerto Rico, 938 f.2d1510, 1517 (1st Cir. 1991) (holding that before granting anunopposed summary judgment motion, the court must inquire whetherthe moving party has met its burden to demonstrate undisputedfacts entitling it to summary judgment as a matter of law). Inthe case of failure to oppose a motion for summary judgment, theconsequence "is that the party may lose the right to file anopposition." Mullen v. St. Paul Fire & Marine Ins. Co.,972 F.2d 446, 451-52 (1st Cir. 1991) (discussing unopposed motionfor summary judgment). Notwithstanding, a party that fails tooppose a motion for summary judgment, does so at its own risk andperil. See e.g. Corrada Betances v. Sea-Land Services, Inc.,248 F.3d 40, 43 (1st Cir. 2001); Herbert v. Wicklund,744 F.2d 218, 233 (1st Cir. 1994). However, even though thatthere is no opposition on file to a summary judgement, the Courtmust entertain the motion on the merits and may not grant thesame as a sanction to the party who fails to oppose. See De la Vega v. San Juan Star, 377 F. 3d 111(1st Cir., 2004).

II. FACTUAL & PROCEDURAL BACKGROUND

The Court must analyze the factual scenario in this caseconstruing the facts, the record, and all reasonable inferencesin the light most favorable to the party opposing summaryjudgment. See Reeves v. Sanderson Plumbing Products, Inc.,530 U.S. 133, 150, 120 S.Ct. 2097, 2110 (2000) (". . . the Courtmust draw all reasonable inferences in favor of the nonmovingparty . . ."); see also, Leahy v. Raytheon Company,315 F.3d 11, 17 (2002) (". . . the court must take the record `in thelight most hospitable to the party opposing summary judgment,indulging all reasonable inferences in that party's favor'.")(quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990); see also, Plumley v. Southern Container Inc.,303 F.3d 364, 368-69 (1st Cir. 2002)).

Before becoming Registrar of the Copyright Registry of PuertoRico, plaintiff labored as the Deputy Secretary of Commerce underthe administration of ex-governor Luis A. Ferre. He then was theDirector of the Municipality of San Juan's Legal Department underthe ex-mayor (and later, ex-governor) Carlos Romero Barcelo.Both, Mr. Ferre, and Mr. Barcelo held office under the NPP party.Subsequently, between 1976 and 1991, plaintiff served as SuperiorCourt Judge. All in all, plaintiff has been serving thegovernment for over thirty (30) years. However, he did not worksolely under NPP administrations. Plaintiff was also employed forabout two (2) years by former PDP governor Rafael Hernandez Colonto provide legal services under various contracts with the Rightto Work Administration.

Plaintiff was appointed Registrar of the Copyright Registry ofPuerto Rico on July 1st, 1993 under NPP former governor Dr.Pedro Rossello. As Registrar, plaintiff enjoys employmentbenefits analogous to those of a Superior Court Judge from theCommonwealth of Puerto Rico. Such public servant's hierarchy, salary, and term are the same. The Registraris appointed by the Governor for a term of twelve (12) years, butonly with the consent and approval of the Senate of Puerto Rico.The Copyright Registry is attached to the Department of State.Albeit, regardless of said attachment, the Registrar is empoweredto acquire services and equipment, and to adopt all rulespertaining to the registration, deposit, reproduction, and feesfor all intellectual property presented for inscription.Furthermore, the registrar has full authority to adopt all rulesregarding the acquisition and control of the equipment obtainedfor the Copyright Registry and the accounting of funds. 31 P.R.Laws Ann. §§ 1402b et seq. However, the Registrar of theCopyright Registry never took any steps to create his own budgetso as to financially separate his office from the Department ofState because "that would have entailed that [the Registry . . .]create ? an Accounting Office inside the Registry ? and [theRegistry] did not have the personnel to do it." Plaintiff'sCounter Statement of Material Facts ("PCSMF"), Exhibit 6.Consequently, the Registry's budget was under the jurisdiction ofthe Finance and Budget Office of the Department of State. Id.,Exhibit 2. Thus, registration fees collected would then be placedin the general fund of the Department of Sate to be used if theRegistry had a need for equipment. Notwithstanding, if theRegistry was in need of materials, said request would have to gothrough the process of requisition and it had to be approved bythe Budget Office of the Department of State. Id., Exhibit 6.

The general elections of November 2000 resulted in the PDPtaking office in January 2001. Accordingly, co-defendant, andthen governor, Calderon appointed co-defendant Ferdinand Mercadoas Secretary of the Department of State. On February 27, 2001,only about a month and a half into his incumbence, co-defendantMercado issued a letter wherein co-defendant Mercado referred tothe Department of Justice, particularly to co-defendant AnabelleRodriguez, then Secretary of Justice, "the possible illegal use by the Copyright Registry of theInternet System." See Defendants' Statement of UncontestedFacts ("DSUF"), Exhibit 2. Said letter also indicated thatco-defendant Mercado had received information from systemspersonnel explaining that the computers assigned to said registryhad been utilized to access pornographic material, and that theaccess password that reflected this activity corresponded to theRegistrar of the Copyright Registry. Co-defendant Mercadoemphasized to Rodriguez that, pursuant to Administrative Order99-003, as issued by then NPP appointed Secretary of State NormaBurgos, unauthorized usage of the computers and Internet servicesconstituted the unofficial usage of the Internet forentertainment or for personal benefit, as well as access tounofficial material, immoral, offensive, or pornographic. Id.Finally co-defendant Mercado expressed his concern regardingpossible violations to state and/or federal statutes concerningthe traffic of pornographic material. Plaintiff then proceeded tooffer his services to "provide additional information that, dueto the nature of this communication, I have not included." Id.Furthermore, also during the beginning months of 2001,plaintiff's personal secretary, Nancy Zayas, was transferred outof his office. His request for a replacement went unattended.Plaintiff's parking space, space which he had been utilizingsince he was first appointed, was taken away from him.Notwithstanding, after plaintiff complained to the EqualEmployment Opportunity Commission, and the EEOC notifyingco-defendant Mercado that said action would potentiallyconstitute a violation under the Americans with Disabilities Act,Mercado ordered the parking space be reinstated to plaintiff.PCSMF, Exhibit 2. The Court notes, however, that there is norecord whatsoever of plaintiff having requested a parking spacefor any reason within the Department of State. DSUF, Exhibit 5.

The Department of Justice inquired into the computer use matterregarding Mercado's letter concerning immoral material found in the Copyright Registrycomputers and, on September 12, 2001, co-defendant Rodriguezreplied to Mercado's letter. Through said letter, then Secretaryof Justice Rodriguez informed Mercado that the Department hadcorroborated, through its independent investigation, that thecomputer situated in the Registrar's office, while utilizing thepassword assigned to the Registrar — both belonging to plaintiffBird — had accessed, through the Internet, pages exhibitingmaterial of pornographic, and child pornographic,content.1 DSUF, Exhibit 3. However, Rodriguez explainedthat, pursuant to the Governmental Code of Ethics, 3 P.R. LawsAnn. § 1801, et seq., said findings were not sufficient at lawto prove, beyond a reasonable doubt, the elements required underArticle 3.2(c) related to the use of public property to obtainadvantages, privileges, or benefits not allowed by law.Notwithstanding, provided that Articles 6 and 5 of the Rules ofGovernmental Ethics, Rule No. 4827 of November 23, 1992, werepotentially applicable to this situation, Rodriguez informed thatshe was referring this issue to the Office of GovernmentalEthics. Id. Pursuant to the letter signed by Vilmary SolerSuarez, Assistant District Attorney, and Felix Fumero Pugliessi,Director of the Public Integrity Office, on September 19, 2001,it was recommended that the complaint of illegal use of theInternet (the alleged pornographic materials accessed) againstplaintiff be dismissed. DSUF, Exhibit 11. Notwithstanding thisrecommendation, on October 22, 2001, a news article was reportedin El Nuevo Dia wherein plaintiff was named as being underinvestigation by the Government Ethics Office and the Departmentof Justice for allegedly having accessed pornographic materialsthrough the Internet.

Plaintiff Bird, understanding that he had been discriminatedagainst because of his political affiliation by allegedly having been stripped of responsibilitiesthat were previously legitimately his, of his supervisory statusand his right to work independently on projects of significance,and having had to endure a sustained and significant generalworsening of employment conditions, filed the present claim onOctober 18, 2002 in an effort to vindicate his rights under deFirst and Fourth Amendments of the Constitution of the UnitedStates. As explained above, he also seeks relief under allegeddefamation pursuant to the common law of the Commonwealth ofPuerto Rico based on the newspaper publications. Plaintiff lateramended (on three different occasions) the complaint to add otherdefendants and a claim for constructive discharge. (Docket No.59)

Only three and a half months after plaintiff filed his suit, hedelivered a letter to co-defendant, then governor, Calderon onJanuary 31, 2003. Through said letter, plaintiff advised Calderonas to the position of the Registrar of the Copyright Registry,summarized his previous work experience, and requested herposition as to the possibility of him leaving his position asRegistrar before his term expired. He explained the reason behindhis consideration of retirement was the fact that his functionshad been obstructed by the political persecution, anddiscriminatory work environment created by co-defendant Mercadoagainst him and his personnel. This, in turn, had negativelyaffected his health, as well as that of his employees. SeeLetter, Docket No. 32, Exhibit 1. The described letter was neveranswered, and, ultimately, on or about July 15, 2003, plaintifftendered his formal resignation to co-defendant Calderon,effective August 31, 2005. DSUF at 3, #10, and accepted byplaintiff in PSCMF at 2, #10.

III. § 1983 CLAIMS

To succeed on a claim under 42 U.S.C. § 1983, plaintiff mustestablish, first, that the rights, privileges and immunitiesgranted to him by the Constitution or the laws of the UnitedStates were violated; and second, that the violation was committed by aperson acting under color of state law.2 See e.g.Daniels v. Williams, 474 U.S. 327, 196 S.Ct. 662 (1986). TheCourt examines first plaintiff's First Amendment argumentsbrought under § 1983.

A. First Amendment Claims

Plaintiff insists that his rights were violated when theDefendants discriminated against him when Mercado, under color ofstate law, orchestrated and set in motion a chain of separate anddistinct actions intended to harm and humiliate him on the solebasis of his political affiliation. Bird further complains thatthe actions taken against him have been severe and adverse enoughto place him in a situation unreasonably inferior to the norm ofhis position amounting to a constructive discharge.

Before analyzing these claims, it is important to emphasizethat the tests and legal standards in the First Amendment contextare "notoriously fuzzy," essentially "because the cases dealunder the same head with very different problems and`justifications.'" Flynn v. City of Boston, 140 F.3d 42, 46(1st Cir. 1998). Therefore, it is of vital importance to parseout the cognizable First Amendment issues present in the instantcase: The Supreme Court has developed two lines of cases to address the First Amendment rights of public employees. One line of cases involves the extent to which the government can take adverse action against an employee because of her political affiliation. The second line involves government employees who claim to be victims of retaliation taken against them as reprisals for their having spoken out on matters of public concern.Mendoza Toro v. Gil, 110 F.Supp.2d 28, 34 (D.P.R. 2000)(citations omitted). Currently before the Court are claims onlyunder the first category mentioned — political discrimination.Accordingly, the Court will proceed to analysis of plaintiff'spolitical discrimination claim.

1) "Political Discrimination" Claim

I) Generally:

It has consistently been held that the First Amendment protectsnon-policymaking public employees form adverse employmentactions based on their political affiliation. See Rutan v.Republican Party of Ill., 497 U.S. 62, 75-76, 110 S.Ct. 2729,111 L.Ed.2d 52 (1993); Mercado Alicea v. P.R. Tourism Company,396 F.3d 46, 51 (1st Cir. 2005); Padilla Garcia v.Rodriguez, 212 f.3d 69, 74 (1st Cir. 2000). It is settledlaw that when a plaintiff institutes a claim of politicaldiscrimination, he or she, undoubtedly, bears the burden ofproducing sufficient evidence, be it through direct orcircumstantial means, that he or she engaged in aconstitutionally protected conduct and that his or her politicalaffiliation was the substantial or motivating factor behind thechallenged adverse employment action. See Mt. Healthy City Bd.of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568,50 L.Ed.2d 471 (1977); Guzman Ruiz v. Hernandez Colon, 406 F.3 31, 34(1st Cir. 2005); Gonzalez de Blasini v. Family Department,377 F.3d 81, 85 (1st Cir. 2004); Cosme Rosado v. SerranoRodriguez, 360 F.3d 42, 47 (1st Cir. 2004). Accordingly,said plaintiff is obligated to point "to evidence on the recordwhich, if credited, could permit a rational fact finder toconclude that the challenged personnel action occurred andstemmed form a politically based discriminatory animus." LaRouv. Ridlon, 98 F.3d 659, 661 (1st Cir. 1996) (quotingRivera Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir. 1994)); see also, Cruz Baez v. Negron Irizarry,360 F.Supp.2d 326 (D.P.R. 2005). Furthermore, even thoughcircumstantial evidence may be sufficient to support a finding ofpolitical discrimination, a plaintiff must make a fact specificshowing that a causal connection exists between the adverseemployment action and their political affiliation. See AvilesMartinez v. Monroig, 963 F.3d 2, 5 (1st Cir. 1992).

However, the First Circuit has established that knowledge ofpolitical affiliation cannot be merely established throughtestimony of having been seen, or, for that matter, met duringroutine campaign activity participation, having been visited bythe now incumbent defendant while said defendant was a candidateto the position he now holds, by having held a trust position inthe outgoing administration, by having political propagandaadhered to plaintiff's car and/or house, or through the knowledgeof third parties. See Gonzalez Pina v. Rodriguez,407 F.3d 425, 432 (1st Cir. 2005); Gonzalez de Blasini, supra at85-86 (affirming the dismissal of a complaint concluding that,even though plaintiff was alleged to be a well known supporter ofthe NPP, had held a trust position under the previous NPPadministration, and defendant had expressed interest in givingher position to a PDP member, this fell short of evidence thatdefendant knew of plaintiff's political affiliation); VazquezValentin, supra; Cosme Rosado v. Serrano Rodriguez, supraat 48; Camilo Robles v. Zapata, 175 F.3d 41, 43-44 (1stCir. 1999) (holding that evidence must be presented thatdefendant was either the primary actor involved in, or a primemover behind, the underlying violation); Acevedo Diaz v.Aponte, 1 F.3d 62, 69 (1st Cir. 1993) (holding the fact thatplaintiffs were conspicuous targets for discriminatory employmentaction by defendants because they played prominent roles inpublicly and vocally supporting a former mayor was not enough).Thus, asserting inequity and tacking on a self-serving conclusionthat defendant was motivated by discriminatory animus does not suffice as the prima facie-fact specificshowing that a plaintiff was a victim of politicaldiscrimination. Id.

Finally, if a plaintiff succeeds in making a prima facie-factspecific showing of political discrimination, judgment as amatter of law cannot be entered against said plaintiff fordefendant is allowed to prove, by preponderance of the evidence,that the adverse employment action would have been maderegardless of the employee's political affiliation. Id. Thisparticular defense commonly referred to as the Mt. Healthydefense requires, thus, that defendant show, by a preponderanceof the evidence, that the adverse employment decision would havebeen made regardless of the employee's political beliefs.Defendants must also establish that they would have taken saidcorrective action against all employees in similar position toplaintiffs' — or otherwise show that they would have taken thecorrective action either way — regardless of politicalaffiliation. See Sanchez Lopez v. Fuentes Pujols,375 F.3d 121, 131 (1st Cir. 2004). If said evidence is credible andnondiscriminatory, the burden is shifted, once again, toplaintiff where he or she must make a showing that politicalaffiliation "was more likely than not a motivating factor."Padilla Garcia v. Rodriguez, 212 F.3d 69, 74 (1st. Cir.2000). Logically, then, a plaintiff may still prevail if it isfound he or she would not have received the same treatment `butfor' his or her political affiliation. See Acosta Sepulveda v.Hernandez Purcell, 889 F.2d 9, 13 (1st Cir. 1989).

Notwithstanding all of the above, the Court, for purposes ofthis case, shall accept that defendants knew the politicalaffiliation of plaintiff Bird Hoffman because of the appointmentsmade to him as director of the legal department of theMunicipality of San Juan and Deputy Secretary of Commerce underNPP administrations.

ii) "Short of Dismissal"/Constructive Discharge: Plaintiff claims that he was discriminated against, placed in aposition unreasonably inferior to the norm, and eventuallyconstructively discharged from his position as Registrar of theCopyright Registry because of his affiliation with the NPP. Heargues that this discrimination and the adverse employmentactions taken against him deprived him of fundamental FirstAmendment rights. See Rutan v. Republican Party of Ill.,497 U.S. 62, 110 S.Ct. 2729 (1990); Branti v. Finkel, 445 U.S. 507,100 S.Ct. 1287 (1980); Elrod v. Burns, 427 U.S. 347,96 S.Ct. 2673 (1976).

Indeed, the First Amendment protects government employees fromshort of dismissal treatment in the workplace. In essence, in"short of dismissal" causes of actions, as is one of theallegations brought forth by plaintiff, a plaintiff has to show,through preponderance of the evidence, that the diminution in hisor her duties was motivated by discrimination based on politicalaffiliation; and, by clear and convincing evidence, that thechallenged actions resulted in a work environment "unreasonablyinferior" to the norm for the position. See Gonzalez Pina v.Rodriguez, 407 F.3d at 431-32; Ortiz Garcia v. ToledoFernandez, 405 F.3d 21 (1st Cir. 2005); Acosta Orozco v.Rodriguez de Rivera, 132 F.3d 97 (1st Cir. 1997); Agosto v.Agosto de Feliciano, 889 F.2d 1209, 1218-20 (1st Cir. 1989);Agosto v. Aponte Roque, 800 F.Supp. 1033, 1037 (D.P.R. 1992).Furthermore, in guiding district courts as to the application ofthe "unreasonably inferior" prong of the prima facie analysis,the First Circuit Court has explained that this determinationrests upon whether "the government's actions are sufficientlysevere to cause reasonably hardy individuals to compromise theirpolitical beliefs and associations in favor of the prevailingparty." Agosto de Feliciano, 889 F.2d at 1217. Again, if thistwo-pronged showing is met, then judgment as a matter of law isinapposite for defendant would have the right to contestplaintiffs' prima facie claim of "short of dismissal" due topolitical discrimination by demonstrating that the adverseemployment action would have been made regardless of the employee's politicalaffiliation or by showing that the "short of dismissal" thresholdof "reasonably inferior position" to a "hardy individual tocompromise their political beliefs" had not been met.

Albeit, the First Circuit has translucently upheld that anemployee who has lost merely the perks of his position; whose jobhas been substantially narrowed, but retains supervisoryauthority over matters of comparable significance to those takenaway; who had been a supervisor and had worked independently andlost said independence, or vice versa; and who is given one ortwo short-term assignments that are below his rank do not meetthe unreasonably inferior standard. On the contrary, he who wasleft with only a few routine and technical assignments, or nosignificant assignments at all; whose job functions remainlargely the same, but is excluded from policymaking sessions; whoretains her job duties, but is criticized harshly and on a nearlydaily basis and never provided with guidance on how to improve,and/or transferred to an undesirable office space do meet thethreshold of unreasonably inferior standard. See Gonzalez Pinav. Rodriguez, 407 F.3d at 431-32; Ortiz Garcia v. ToledoFernandez, 405 F.3d 21 (1st Cir. 2005); Acosta Orozco v.Rodriguez de Rivera, 132 F.3d 97 (1st Cir. 1997); Agosto v.Agosto de Feliciano, 889 F.2d 1209, 1218-20 (1st Cir. 1989);Agosto v. Aponte Roque, 800 F.Supp. 1033, 1037 (D.P.R. 1992).

Similarly, in order for a plaintiff to prove that he or shesuffered short of termination or was constructively discharged, aplaintiff must show that the new working conditions imposed bythe employer had become so onerous, abusive, and/or unpleasantthat a reasonable person in the employee's position would havefelt compelled to resign. See Mercado Alicea, 396 F.3d at 52;Suarez v. Pueblo Intern., Inc., 229 F.3d 49, 54 (1st Cir.2000); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1stCir. 1993) (holding that constructive discharge occurs when"working conditions [are] so intolerable? that a reasonable person would feel compelled toforsake his job rather than to submit to looming indignities");Aviles Martinez v. Monroig, 963 F.3d 2, 6 (1st Cir. 1992).Although resignation is ordinarily not a discriminatory act, whena resignation constitutes a constructive discharge, it isconsidered a discriminatory act. See Gonzalez Garcia v. P.R.Elec. Power Auth., 214 F.Supp.2d 194, 204 (D.P.R. 2002)."Alleging constructive discharge presents a `special wrinkle'that amounts to an additional prima facie element." Sanchez v.Puerto Rico Oil, Co., 37 F.3d 712, 719 (1st Cir. 1994).Accordingly, plaintiff must establish a prima facie case thathe or she (1) was within a protected class; (2) met theemployer's legitimate performance expectations; (3) wasactually or constructively discharged; and (4) was replaced byanother with similar skills and qualifications. See St. Mary'sCtr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742,125 L.Ed.2d 407 (1993); see also Landrau Romero v. Banco Popular de P.R.,212 F.3d 607, 613 (1st Cir. 2000).

However, "[i]f a plaintiff does not resign within a reasonabletime period after the alleged harassment, he was notconstructively discharged." Gonzalez Garcia,214 F.Supp.2d at 204 (quoting and following Landrau Romero, 212 F.3d at 613(holding that seven month gap between the alleged employmentdiscrimination and plaintiff's resignation was too long a periodto find that plaintiff had been constructively discharged)); seealso Smith v. Bath Iron Works Corp., 943 F.2d 164, 167(1st Cir. 1991) (holding that no constructive dischargeoccurred where plaintiff quit six months after the lastreported incident of discrimination).

iii) Analysis:

First and foremost, the Court must undoubtedly conclude thatplaintiff does not have a First Amendment right to politicalaffiliation claim actionable under 42 U.S.C. § 1983. From a clearreading of the above cited case law, there is no question thatSection 1983 was instilled to provide a vehicle for non-policymaking public employees to demandrespect for their rights against their employers. There is alsono doubt that, from a comprehensive reading of the CopyrightRegistry Statute, and its legislative history, notwithstandingthe fact that the Registry is ascribed to the Department of Statefor financial reasons, there is absolutely nothing in thatstatutory body that moves the Court to even so much as assumethat the Registrar, or the Registry for that matter, is asubordinate to either the Secretary of State, the Secretary ofJustice, or the Governor of Puerto Rico. On the contrary, asexplained above, the statute categorically delineates theRegistrar's position as one of equal standing to that of a Judgeof the Court of First Instance of Puerto Rico — an independentposition that does not respond to any of the defendants herein —and as one that provides the Registrar with the full authority tocreate and implement rules, regulations, and policies regardingthe registry of intellectual property materials in Puerto Rico,unquestionably a quasi-legislative and quasi-judicialposition.3 See 31 P.R. Laws Ann. §§ 1402(b), 1402(g),1402(l). Finally, even, in arguendo, if the Court were toaccept as true without any proof whatsoever that the Registraris, in fact, subordinate to the defendants herein, his claimswould still fail to reach the required threshold.

Citing to case law, plaintiff briefs the Court anent therelevant political discrimination standards, but he fails tooppose adequately Defendants' arguments with more than general,unsupported assertions and conclusory allegations. Indeed, in hismemorandum, he only juxtaposes his political affiliation to thatof the defendants. He further attempts to contest defendants'request for summary judgment by alleging unreasonably inferior workingconditions because his requisitions for materials and requestsfor employee reclassification went unattended by co-defendantMercado, that his secretary was transferred and never replaced,his parking space taken away, was stripped of hisresponsibilities, and his authority over the Registry undermined.

But, notwithstanding that his secretary, Ms. Doris Soto,retired at her own request, he remained with his regular otherstaff allowing him to comply with his duties. Further his parkingrights, assuming that he originally possessed said rights, werereinstated. Moreover, in not a single one of the Exhibits broughtforth by plaintiff does he show what requisitions were made andunattended, how he was stripped of his responsibilities bysomeone who, pursuant to the Copyright Registry Act, does nothave the authority to do so, or how his authority over theRegistry was undermined. More telling still is the fact that hewaited years since the alleged discriminatory acts to resign hisposition. Furthermore, plaintiff's assertion that he was leftwithout a secretary is a toothless tiger when juxtaposed to thefact that plaintiff still had two assistants working under him inthe Registry — Mr. David Maysonet Castro, and Ms. Alicia RiveraGonzalez. See PSCMF, Docket No. 93, Exhibits 3, and 4.Plaintiff Bird fails to present any evidence which surpasses merepolitical affiliation. Also, the facts he outlines throughout hismemorandum and the evidence proffered, without additional, hard,documented evidence of discrimination, merely constitute astrained attempt to connect the alleged political affiliation ofhis co-workers with the fact that he feels he was treatedunfairly. Facing brevis disposition, the plaintiff is requiredto show more than "speculation and surmise even coupled witheffervescent optimism." Ayala Gerena v. Brystol Myers-Squibb,Co., 95 F.3d at 95, more was required from him. More so when he,himself, explained in his deposition how support had been lackingfor the Registry since its origination even under the control of the NPP. Furthermore, the First Circuit has consistently heldthat an employee who has lost merely the perks of his positiondoes not meet the threshold of unreasonably inferior standard.See Gonzalez Pina v. Rodriguez, 407 F.3d at 431-32; OrtizGarcia v. Toledo Fernandez, 405 F.3d 21 (1st Cir. 2005);Acosta Orozco v. Rodriguez de Rivera, 132 F.3d 97 (1st Cir.1997); Agosto v. Agosto de Feliciano, 889 F.2d 1209, 1218-20(1st Cir. 1989); Agosto v. Aponte Roque, 800 F.Supp. 1033,1037 (D.P.R. 1992).

It is axiomatic that the plaintiff has an affirmativeresponsibility to put his best foot forward by presentingevidence that will support his claim, but has failed. SeeMcCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 22(1st Cir. 1991). Plaintiff has only proffered self servingaverments in a vacuum surrounded by unsupporting depositions andletters. Plaintiff has not complied with his affirmativeresponsibility, and "[he] cannot expect a trial court to do hishomework for him." Id. at 23.

Plaintiff Bird's failure to bear the initial burden ofdemonstrating a political animus, compels the Court to grantdefendants' motion for summary judgment in that plaintiff Birdhas failed to properly respond to brevis disposition of summaryjudgment challenge. In light of these circumstances, the Courtdeems that plaintiff has failed to make out a prima facie caseof First Amendment political discrimination, and the CourtGRANTS summary judgment as to the claim of "short oftermination" and of "constructive discharge" allegations.

Furthermore, the Court deems pertinent a clarificationinvolving a critical issue. Pursuant to historically establishedSupreme Court case law, the President's absolute power of removalhas been confined by federal courts to the removal of purelyexecutive officers. See Humphrey's Ex'r v. United States,295 U.S. 602, 624-28, 55 S.Ct. 869 (1935), 79 L.Ed. 1611;Santana v. Calderon, 342 F.3d 18, 27 (1st Cir. 2003). Accordingly, it is Congresswho may limit the removal power — and this Court harbors seriousdoubts that said removal may be effectuated through constructivedischarge — of the President with respect to officers performingquasi judicial or quasi-legislative functions. Id. As theSupreme Court concluded in Wiener v. United States,357 U.S. 349, 354, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) the War ClaimsCommission "was established as an adjudicating body with all theparaphernalia by which legal claims are put to the test ofproof," the Court makes such a finding herein regarding theCopyright Registry. Consequently, [j]udging the matter in all the nakedness in which it is presented, namely, the claim that the [Governor] could remove a [Registrar] of an adjudicatory body like the [Copyright Registry] merely because he wanted his own appointees on such a [position], [the Court is] compelled to conclude that no such power is given to the President [Governor] directly bye the Constitution, and none is impliedly conferred upon him by statute simply because Congress said nothing about it. The philosophy of Humphrey's Executor, in its explicit language as well as its implications, precludes such a claim.Id.

Subsequently, the Court noted that in order to absolutelydetermine if the officer occupies a purely executive position, itmust be evaluated whether the removal restriction are of such anature that they impede the President's ability to perform hisconstitutional duty, and the functions of the official inquestion must be analyzed in that light. See Morrison v.Olson, 487 U.S. 654, 689-90, 108 S.Ct. 2597, 101 L.Ed.2d 569(1988); Santanta, 342 F.3d at 27. In other words, onceMorrison was decided, the removal powers of the President[Governor] were clearly limited to purely executive officers ifthe removal implicates the President's [Governor's] power toperform his constitutional duty to assure that the laws arefaithfully executed. Id. A priori, it follows, thus, thatplaintiff, the Registrar of the Copyright Registry of PuertoRico, is not an executive position in that plaintiff's position does not entail merely classic policymaking oradministrative authority such that the Governor's obligation toexecute the laws would be hindered by her inability to controlthe occupant of the position of Registrar to the CopyrightRegistry. That said, the Court understands and concludes thatthe only manner in which plaintiff may be removed from hisposition is through legislative impeachment seeing that thestatute does not provide for a procedure of removal overplaintiff's position which, unquestionably, has quasi-judicialfunctions,4 and is, by law, a position with a fixed termof office equal to that of a Judge of the Court of First Instance— twelve years, 31 P.R. Laws Ann. § 1402a. Finally, seeing thatthe Act does not provide for a procedure of removal, the Court isleft with no choice, but to turn to the Puerto Rico's PoliticalCode, 3 P.R. Laws Ann § 1 et seq. in order to determine howthe Registrar, a public official with quasi-legislative andquasi-judicial faculties, may be removed from his position, ofcourse, in light of Humphrey's Ex'r.

Pursuant to article 167 of the Political Code, a publicofficial is "[e]very officer, the mode of whose appointment isnot prescribed by the Constitution of the Commonwealth, or thelaws of Puerto Rico, shall be appointed by the Governor by andwith the advice an consent of the Senate." 3 P.R. Laws Ann. §541. Accordingly, plaintiff herein is, unquestionably, a publicofficer due to the Copyright Act specifically providing that the Registrar shall beappointed by the Governor with the advice and consent of theSenate. By the same token, once appointed as public officer, eachand every person occupying said position, be it within theexecutive, administrative, legislative or judicial spheres, saidofficer must take the Oath of Office and Official Bonds. 3 P.R.Laws Ann. § 601. Failure to comply or violation of this oath, inturn, results sufficient just cause to remove an officer fromhis position. 3 P.R. Laws Ann. § 6. Consequently, the nominatingauthority has the full faculty to remove any officer that it hadappointed with the express exception of those whose removal isproscribed in another fashion by the Constitution. Id. "In thismanner, it is statutorily recognized that the Governor'snominating power implies the power to remove." Calderon v.Garcia Garcia, KLRA 2002-00267, 2002 P.R. App. LEXIS 1970,*18-19 (P.R. Cir. Jun. 28, 2002).

Upon close examination of all the norms statutorily providedand further explained by case law, and, upon application to thecase at bar, the Court concludes that the Copyright RegistryRegistrar is, in fact, a quasi-judicial public official havingthe Governor named him with the advice and consent of the Senatefor a fixed term of twelve years (the Legislature making afinding that he is equal in standing to a Superior Court Judge asto his term in office). By virtue of this critical fact, he is,thus, subject to the removal faculty inherent to the nominatingauthority (the Political Code is not, to this Court'sunderstanding, open to said removal taking effect throughconstructive discharge). Notwithstanding, as explained above,provided that the Registrar does not occupy a "purely executive",policymaking position, particularly his quasi-judicial functions,the nominating authority's removal power is subjected to thelimits set forth by the Senate, and, in the absence of particulardisposition by the Senate to the effect — as is the case herein —the nominating authority must abide by that established inHuphrey's Ex'r (person with a quasi-judicial function may notbe removed except by filing of charges and subject to senatorialfindings of just cause). Therefore, if the nominating authoritywished to remove the Registrar, it may only do so for just causerelated to the performance of his functions. Otherwise, thenominating authority is prohibited from said removal — more sowhen plaintiff's position does not entail purely policymaking oradministrative authority such that the Governor's obligation toexecute the laws would be hindered by her inability to controlthe occupant of the position of Registrar to the CopyrightRegistry.

The fact that plaintiff can be removed because of hisquasi-judicial functions only with the consent of the senatesuccinctly means that the allegations of constructive dischargeallegedly carried on by co-defendants are severely undermined andvirtually non-existent further strengthening the reasoning setforth above as to the lack of elements for a constructivedischarge to materialize.

B. Fourth Amendment Claim

Plaintiff purports to request relief against defendants forviolations to his right to be free form malicious prosecution andunreasonable searches and seizures — violations which, hecontends, are actionable under 42 U.S.C. § 1983. In essence, heargues that the defendants sought the commencement of criminalproceedings against him, at the behest of co-defendant Mercadoafter conspiring with co-defendant Rodriguez, without probablecause and with actual malice to deprive him of his federallyprotected Fourth Amendment rights. Plaintiff sustains thatco-defendant Rodriguez ordered a search an seizure of Bird'soffice to further politically harass him and to force him torelinquish the Registrar position. The seizing officers removedhis computer from his office, only after having acquired a CourtOrder to act. However, plaintiff alleges that said order did notidentify any criminal material to be seized, no search protocolwas involved, the request for information was not tailored as totime, place, or subject matter — all constituting, according to plaintiff, an impermissible fishing expedition. Notwithstanding,plaintiff himself, states that there was no sufficient evidenceto pursue charges, thus, criminal charges were never filed.Defendants sustain that the plaintiff has failed to state amalicious prosecution claim pursuant to the Fourth Amendment.Hence, defendants purport that, since there is no constitutionalviolation, plaintiff has failed to state a claim pursuant to §1983.

Pursuant to 28 U.S.C. § 1331, the federal courts "shall haveoriginal jurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States." Moreover,section 1983's purpose "[i]s to provide a remedy in federal courtin protection of federal rights." Ramos Bonilla v. Vivoni delValle, 336 F.Supp.2d 159,166 (1st Cir. 2004) (quotingBirnbaum v. Trusell, 371 F. 2d 672 (2nd Cir. 1966)).Section 1983 was particularly created to "[d]eter? state actorsfrom using [the] badge of their authority to deprive individualsof their federally guaranteed rights and provide relief tovictims whenever such deterrence fails." Id.; see also Wyattv. Cole, 504 U.S. 158, 112 S.Ct. 1827 (1992); City of Newportv. Fact Concerts Inc., 453 U.S. 247, 101 S.Ct. 2748 (1981);Rueben Corp. v. Brauer, 655 N.E. 2d 1162 (1995).

Section 1983 authorizes actions for equitable relief and/ordamages against "every person who under color of any [. . .]custom or usage, of any State or Territory [. . .] subjects orcauses to be subjected any citizen of the United States or otherperson [. . .] to the deprivation of any rights, privileges, orimmunities secured by the Constitution and laws."42 U.S.C. § 1983. Thus, as explained above in detail, in order to state aclaim cognizable under Section 1983, Plaintiff must allege "thatsome person has deprived him of a [constitutional or a] federal[statutory] right." Gomez v. Toledo, 446 U.S. 635, 640 (1980).To prevail in an action brought under 42 U.S.C. § 1983, plaintiffmust satisfy two prongs. First, he must prove that he wasdeprived of a right, immunity, or privilege secured by the Constitution or laws of the UnitedStates. Parratt v. Taylor, 451 U.S. 527, 535 (1981); Baker v.McCollan, 443 U.S. 137, 140 (1979); Voutour v. Vitale,761 F.2d 812, 819 (1st Cir. 1985). Second, he must have been deprivedof his right, immunity or privilege, by a person acting undercolor of state law. Id. Accordingly, two distinct elements areto be addressed. First, there must have been a violation ofrights secured by the Constitution or laws of the United Statesand, defendants' conduct must have caused the deprivation ofplaintiff's rights. Id.; see also Soto v. Carrasquillo,878 F.Supp. 324, 326-327 (D.P.R. 1995).

"The law is settled that a garden variety claim of maliciousprosecution garbed in the regalia of § 1983 must fail. There isno substantive due process right5 under the FourteenthAmendment to be free from malicious prosecution and theavailability of a plainly adequate remedy under the [state] lawdefeats the possibility of a procedural due process claim" in theinstant case. See Perez Ruiz v. Crespo Guillen, 25 F.3d 40,43 (1st Cir. 1994) (holding that the adequate state remedyfor malicious prosecution is under 31 P.R. Laws Ann. § 5141 isfatal to a claimant's claim); see also Meehan v. Town ofPlymouth, 167 F.3d 85, 88 (1st Cir. 1999) (citing Rochev. John Handcock, 81 F. 3d 249 (1st Cir. 1996) (internalcitations omitted)); Ramos Bonilla, 336 F.Supp.2d at 166.Consequently, in order to transform a malicious prosecution claiminto a claim cognizable pursuant to § 1983, the plaintiff mustdemonstrate a deprivation of a constitutional right. SeeNieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). Particularly,in the specific case of malicious prosecution, the First CircuitCourt of Appeals has established that, in order to determinewhether a federal protected right has been violated, theplaintiff has to establish that the criminal charges at issuemust have imposed some depravation of liberty consistent with theconcept of seizure. Britton v. Maloney, 196 F.3d 24, 28-29(1st Cir. 1999) (citations omitted).

Section 1983 "is not in itself a source of substantive rights"but "a method for vindicating federal rights elsewhereconferred." Albright v. Oliver, 510 U.S. 266, 271 (1994).Hence, the plaintiff has to identify the constitutional rightallegedly infringed. Id. (citations omitted). The FourteenthAmendment, in its procedural due process aspect, as is clearlyplaintiff Bird's claim, cannot serve as the vehicle forplaintiff's assertion of the infringement of his constitutionalrights, pursuant to the alleged malicious prosecution he wassubjected to, since the plaintiff has an adequate remedy formalicious prosecution pursuant to state law. See 31 L.P.R.A. §5141; see also Nieves v. McSweeney, 241 F.3d at 53 ("[n]oprocedural due process claim can flourish in this soil because[Puerto Rico] provides an adequate remedy for maliciousprosecution."). Furthermore, the malicious prosecution claim alsofails the substantive due process aspect of the FourteenthAmendment since the "`substantive due process may not furnish aconstitutional peg on which to hang' a federal maliciousprosecution tort." Id. (quoting Albright v. Oliver,510 U.S. at 271 n. 4.) However, "[w]here a particular Amendment`provides and explicit textual source of constitutionalprotection' against a particular sort of government behavior,`that Amendment, not the more generalized notion of substantivedue process must be the guide for analyzing these claims."Albright v. Oliver, 510 U.S. at 273 (quoting Graham v.O'Connor 490 U.S. 386 at 395 (1989)). Therefore, the FourthAmendment could potentially constitute an adequate `constitutional peg' where a plaintiffsubjected to a malicious prosecution may `hang' his § 1983 claim.See Ramos Bonilla 336 F.Supp.2d at 166-67; Nieves v.McSweeney, 241 F.3d at 54; Meehan v. Town of Plymouth,167 F.3d at 88 (citing Albright v. Oliver 510 U.S. at 371).

The First Circuit has established that "[f]or a public officialto transgress the Fourth Amendment through the initiation andpursuit of criminal charges, the prosecution of said chargesmust, at a bare minimum, have occasioned a deprivation ofliberty consistent with the concept of a seizure." Id. at 54(citing Britton v. Maloney, 196 F.3d 24, at 28 (citingSinger v. Fulton County Sheriff, 63 F.3d 110, 116 (2nd Cir.1995)) (emphasis added). In other words, a seizure actionableunder the Fourth Amendment only occurs when a state official,under color of authority, restrains the liberty of a citizen.See Nieves v. McSweeney, 241 F.3d at 55. For example, a legalobligation to appear in court does not impose any restrictions ona person's liberty and is insufficient to establish a seizurewithin the meaning of the Fourth Amendment. Nieves v.McSweeney, 241 F.3d at 56; Britton v. Maloney,196 F.3d at 29-30.

The malicious prosecution cause of action permits damages for adeprivation of liberty pursuant to a legal process.6

The Court, thus, proceeds to address the seizure of plaintiff'scomputer as the basis of plaintiff's malicious prosecution claim.The seizure in the instant case, was not a warrantless seizure.In fact, a Court Order had been issued for said computer.However, as the First Circuit concluded in Meehan that awarrantless arrest could not "bring a malicious prosecutionclaim based upon his arrest because his arrest [did] not constitute the`initiation of the proceedings' against Meehan" nor did itconstitute legal process, Meehan, 167 F.3d at 89-90. Theseizure of plaintiff's computer in the instant case cannotconstitute the initiation of the proceedings (furthermore, itmust be noted, the computer is property of the government, andnot of plaintiff). Accordingly, he is barred from bringing amalicious prosecution claim based on the seizure of his computer.Hence, absent plaintiff's malicious prosecution claim, plaintifffails to establish his seizure claim under the Fourth Amendment.Plaintiff, therefore, lacks the `constitutional peg' `to hang'his § 1983 claim — more so when criminal charges were neverfiled. See Nieves v. McSweeney, 241 F.3d at 54 (citingMeehan, 167 F.3d at 89-90).

In sum, the Court finds that plaintiff has failed to allegefacts to sustain a Fourth Amendment violation, pursuant to hismalicious prosecution claim, as such, plaintiff failed the veryfirst prong of any claim pursuant to § 1983 which is to establishan infringement of a federal right, and summary judgment on thismatter must be GRANTED in favor of defendants.

IV. SUPPLEMENTAL CLAIMS

Plaintiff also brought forth causes of action under state lawrequesting indemnification of damages suffered due to defamationand under Article 1805 of the Puerto Rico Civil Code, 31 P.R.Laws Ann. § 5141. Nevertheless, a Court in a non-diversity case,such as this, must have the presence of at least one substantialfederal claim as to at least one defendant in the lawsuit inorder to hear and determine pendent stat law claims. SeeUnited Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130,16 L.Ed.2d 218 (1966); Aviles Martinez v. Jimenez Monroig,764 F.Supp. 240 (D.P.R. 1991). As the Court must enter judgmentagainst plaintiff Bird's federal claims, the Court no longer hasthe power to adjudicate his pendent state claims. Id.Therefore, the Court, in its discretion, declines to exercise its supplemental jurisdictiondefamation and tort claims as to Bird's claims against Defendant,and must dismiss them without prejudice. See Rodríguez v.Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995)."As a general principle, the unfavorable disposition of aplaintiff's federal claim at the early stages of a suit, wellbefore the commencement of trial, will trigger the dismissalwithout prejudice of any supplemental state-law claims." Id.(citations omitted). Accordingly, plaintiff's claims under PuertoRico Law are DISMISSED WITHOUT PREJUDICE.

V. CONCLUSION

Accordingly, and for the reasons aforementioned, the CourtGRANTS defendants motion for summary judgment (Docket No. 66)and DISMISSES WITH PREJUDICE all plaintiff's federal claims.Since the Court dismissed plaintiff's federal action, pursuant to28 U.S.C. § 1367 (c) as interpreted in González de Blasini v.Family Department, 377 F.3d 81, 89 (1st Cir. 2004); ClaudioGotay v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 105(1st Cir. 2004); and Rodríguez v. Doral Mortgage,57 F.3d 1168, 1177 (1st Cir, 1995) all claims pursuant to state laware hereby DISMISSED WITHOUT PREJUDICE.

IT IS SO ORDERED.

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