OPINION AND ORDER
Plaintiffs filed this lawsuit on November 7, 2002, pursuant to42 U.S.C. § 1983, alleging violations of their constitutionalrights pursuant to the Fifth, Thirteenth and Fourteenth Amendmentof the United States Constitution, for deprivation of the rightto due process, the imposition of involuntary servitude andretaliation for having accessed the courts (Docket No. 1). Theplaintiffs also raise supplemental claims under Puerto Rico law.The plaintiffs seek declaratory and injunctive relief, as well ascompensatory and punitive damages. An amended complaint was filedon March 5, 2003 (Docket No. 18). The parties have consented tothe jurisdiction of a Magistrate-Judge (Docket No. 36).
Plaintiff José Luis Ramírez-De León (hereafter "Ramírez")is an attorney who practices in the area of environmental law andCarmen M. Rivera-Pagán is his spouse. Ramírez contends that:(a) the defendants deprived him of his property without dueprocess of law; (b) he was deprived of his dignity and honorwithout due process of law; (c) he is being deprived of hisprotected liberty interest in pursuit of his occupation; (d) hewas forced into involuntary servitude; and (e) is the victim ofretaliation for exercising his right to access the courts. Theplaintiffs move for partial summary judgment anddefendants1 also move for summary judgment (Docket Nos.60, 62). Responses, replies and exhibits in support have alsobeen filed (Docket Nos. 61, 63, 67, 68, 72, 73, 78, 79).
Ramírez complains that when he submitted his resignation tothe Puerto Rico Environmental Quality Board, the decision toaccept or reject his resignation was postponed and thispostponement deprived him of his constitutional right to pursuehis occupation. To date his resignation has not been accepted. Healso alleges that the failure to accept the resignation causedhim to be held in involuntary servitude in violation of theThirteenth Amendment of the United States Constitution. Ramírezfurther alleges that he has been deprived, without due process,of property in the form of accrued vacation and sick leave pay.Finally, he alleges that the defendants retaliated against himfor exercising his right to access the courts.
Plaintiffs recently filed a motion to clarify nature of trialin this case asserting that this matter is to be tried before ajury (Docket No. 89). The undersigned notes that no jury demandwas made in the original complaint; however, a jury demand wasmade in the amended complaint. There appears to be an issue ofwhether the jury demand was made in compliance with the FederalRules of Civil Procedure, that is, Rules 38 and 39. As a result,at the present time the case will remain set as a non-jury trial.
I. The Facts
The basic facts in this matter are not in dispute. In 1989plaintiff José Luis Ramírez-De León began working as anattorney in the Legal Affairs Division at the Puerto RicoEnvironmental Quality Board (hereafter "EQB"). In 1992 he waspromoted to the position of Senior Staff Attorney, a careerposition. In March 2001 he was promoted to Legal Counsel of theGoverning Board of the EQB, a trust position. In September 2001he was reinstated to the position of Senior Staff Attorney.Plaintiff Carmen M. Rivera-Pagán (hereafter "Rivera") is thespouse of Ramírez.
Defendant Esteban Mujica-Cotto (hereafter "Mujica") is thePresident of the Puerto Rico EQB. Mujica, as the President of theEQB, is the nominating authority of the same. In that capacity itis he who accepts or rejects the resignation of an employee.Defendant José Ramos-Fuentes (hereafter "Ramos") is the Directorof the Management Affairs Area of the EQB. His job duties do notconsist of supervising the legal division of the EQB. DefendantMagdalena Vázquez (hereafter "Vázquez") is the Chief of HumanResources of EQB. Both Ramos and Vázquez are supervised byMujica. Defendant Zoraida Samó-Maldonado (hereafter "Samó") isthe Director of the Legal Affairs Division of the EQB and wasRamírez's supervisor at the time he submitted his resignation.
On March 13, 2002, Ramírez authored a letter of resignation tohis position within the EQB, effective March 31, 2002. The letterwas given to Mujica, the President of EQB. As March 13, 2002,there were no pending investigations regarding Ramírez's work atEQB.
Prior to the time in which Ramírez presented his resignationletter, the EQB Legal Division was informed by attorney MiguelMorales of alleged improper conduct in which Ramirez hadallegedly incurred. The former director of the Legal Division,Marta Martínez, did not inform Mujica of the matter in light ofRamírez's pending resignation. Thereafter, Samó, whosubstituted Attorney Martinez as Director of the Legal AffairsDivision, informed Attorney Martínez that she had an obligationto inform Mujica of the allegations against Ramírez beforeRamírez's resignation could be accepted.
On March 19, 2002, after Ramírez submitted his resignationletter, Ramos, Mujica, and Samó did meet. During the meetingSamó showed and provided to Mujica a memorandum authored byAttorney Miguel Morales in which it was alleged that Ramírez hadprovided confidential EQB information to Attorney RafaelToro-Ramírez (hereafter "Attorney Toro-Ramírez). It is to benoted that Attorney Toro-Ramírez was the legal representative ofRedondo Waste System, a company regulated by the EQB. At themeeting and in the presence of Samó, Mujica discussed with Ramosavailable information regarding monetary donations made byRedondo Waste Systems, Inc. and Fundación Fonalledas, Inc.Mujica then told Ramos that he had decided to refer the matter tothe Office of Internal Audit to conduct an administrativeinvestigation. Mujica also requested Samó to conduct an internallegal investigation but she declined as the investigationinvolved an attorney of the legal division of the EQB. Mujicalater delegated the internal legal investigation to externallegal counsel of the EQB, Gerardo Fernández-Amy (hereafter"Attorney Fernández).
At a later point in time, also in March, Mujica met with Ramos,Virgilio Vega-Vega (hereafter "Vega"), the then Director ofInternal Audit of the EQB, and Attorney Fernández, outsidecounsel of the EQB. Mujica ordered Vega to conduct anadministrative investigation and asked Attorney Fernández toprovide his legal opinion on the evaluation of the allegationsagainst Ramírez. Additionally, Mujica requested the Departmentof Justice, the Office of the Governmental Ethics, and theComptroller's Office to investigate and evaluate the incidentsrelated to Ramirez's conduct while a member of the EQB's LegalDivision.
The record reflects that Mujica made written requests regardingthe petitions for investigation. By memorandum dated March 20,2002, Mujica requested that Vega and Attorney Fernández conductan investigation regarding the complaint filed by Redondo WasteSystems, Inc. and the alleged disclosures of confidentialinformation by Ramírez. On the same date he also correspondedwith the Interim Secretary of the Department of Justice, PedroGerónimo Goyco, and requested the Department of Justice toinvestigate and evaluate the allegations of improper conduct inwhich Ramírez had allegedly incurred. Mujica also requested thathe promptly be notified if there was a justified basis to rejectRamírez's resignation.
On March 25, 2002, Mujica sent to the Director of the Office ofGovernmental Ethics and to the Comptroller's Office, a copy ofthe letter he had sent to the Interim Secretary of the Departmentof Justice for their review and corresponding action. Mujicadelegated on the legal advisor and the Legal Division Office ofthe EQB to follow-up on the referrals he had made.
On March 26, 2002, Mujica authored a letter to Ramírezindicating that he was postponing his decision on whether toaccept his [Ramírez's] resignation until the conclusion of theadministrative investigation which related to monetary donationsallegedly made by Redondo Waste and Fundación Fonalledas, Inc.and some other allegations made by Attorney Miguel Morales.Ramírez was advised that the EQB was unable to accept hisresignation until the completion of the investigation andsubsequent submission of a report and recommendation to the EQB.The letter further indicated that the administrativeinvestigation was to be conducted by the Office of Internal Audit(i.e., Vega) and by external legal counsel (i.e., AttorneyFernández). The letter was hand delivered to Ramírez by Ramos.The record reflects that Ramírez then discussed the letter withSamó and Samó advised Ramírez to continue working until theconclusion of the investigation. Samó also informed Ramírezthat she had no objection to recommending and approving him for aleave of absence and for the use of his annual leave. She furtheradvised Ramírez that if he failed to work after March 31, 2002,such action could constitute an abandonment of service that couldresult in taking disciplinary actions against him.
The last day that Ramírez worked at the EQB was March 29,2002. On or about April 8, 2002, Ramírez provided to Samó aletter wherein he included a motion to withdraw as legalrepresentative in all cases involving the EQB. Beginning in April2002 Ramírez engaged in the private practice of law, in his ownoffice, and by October 2002 he was sharing office space withanother attorney, Lourdes Pagán.
Thereafter, Mujica informed Ramírez via a letter dated April16, 2002, that the administrative investigation had not yetconcluded, but that the report of the Office of Internal Auditwas expected by no later than April 19, 2002. The letter was handdelivered to Ramírez by Samó. Also, Ramírez received a letterfrom Samó, dated April 16, 2002, in which Ramírez was apprisedof the fact he was to be considered an employee of the EQB untilthe acceptance of his resignation, that he was absent from workwithout authorization, and that the matter was being referred tothe Offices of the President and Human Resources foradministrative or disciplinary action. Meanwhile, the internaladministrative investigation was ongoing. As part of thatadministrative investigation, Ramírez was interviewed on May 2,2002. At that time Ramírez was given notice of the fact thatMujica had requested an investigation and evaluation from theDepartment of Justice, the Office of Governmental Ethics and theComptroller's Office.
On May 7, 2002, Attorney Fernández provided his evaluationreport and legal opinion to Mujica regarding the allegedincidents surrounding Ramirez's resignation. He recommendedMujica to await for the determination and recommendation of theOffice of Governmental Ethics and the Department of Justicebefore taking any action regarding the acceptance or rejection ofRamírez's resignation. Next, on May 9, 2002, Vega of the Officeof Internal Audit rendered his investigative report. Within thissecond report Mutica was recommended, among other things, to senda copy of the report to the Office of Governmental Ethics for itto determine whether Ramírez had incurred in violations of theethic's laws or regulations.
During the latter part of May 2002, the Division of PublicIntegrity from the Commonwealth Department of Justice requestedSamó for additional information in order to conduct therequested investigation. In May or June 2002, Samó provided saidinformation. It is alleged that later on, an agent of theDivision of the Public Integrity recommended or suggested toSamó that Mujica should not accept Ramírez's resignation untilthe conclusion of the requested investigation. In September 2002,Samó informed Mujica that the Division of Public Integrity ofthe Department of Justice had instructed that no decision was tobe made with respect to Ramírez's resignation until theconclusion of its investigation. Samó, however, never receivedany written instructions or recommendations from the CommonwealthDepartment of Justice, the Office of Governmental Ethics or theOffice of the Comptroller instructing that Ramírez's resignationwas not to be accepted. Samó advised Mujica that he should awaitthe Department of Justice's determination before making hisdecision to accept or reject Ramírez's resignation. However,Samó has testified that as of November 2002 she believed that areasonable amount of time had lapsed without accepting orrejecting Ramirez's resignation.
On August 20, 2002, plaintiffs filed a cause of action in thePuerto Rico State Court in the Court of First Instance2seeking relief as a result of the above stated facts, said reliefincluding a claim regarding the accrued vacation and sick leavepay. On November 7, 2002, the plaintiffs filed this parallelaction based upon the same set of facts, but alleging violationsof the United States Constitution.
According to Ramos, as Director of Management Affairs for EQBhe had nothing to do with the decision to request anadministrative investigation. Also, Ramos claims he did notparticipate in or endorsed the letter drafted and sent by Mujicato the Office of Governmental Ethics, nor did Ramos recommend toMujica that he request said investigation. Additionally, Ramosasserts he does not have the authority to accept or denyRamírez's resignation nor can he approve the liquidation ofaccumulated vacation days for an employee. According to Ramos henever read the memorandum authored by Miguel Morales until thedate he received the investigative report submitted by Vega, theDirector of the Internal Audit Office for the EQB.
To date, November 2004, Mujica has not accepted Ramírez'sresignation. Ramírez has requested payment of his accruedvacation and sick leave days3 as of the date of hisresignation but no payment has been received. Mujica has notgiven instructions to liquidate the balance of Ramírez'saccumulated vacations days alleging that Ramirez's resignationhas not been accepted and that, until then, there is not a totalseparation of service.
As of the date of the filing of the motions for summaryjudgment Mujica has not received information or reports on theinvestigation conducted by the Department of Justice, the Officeof Governmental Ethics and Comptroller's Office or arecommendation as to Ramírez's resignation.4
II. Requisites of § 1983 Claim
Plaintiffs bring this civil rights action pursuant to42 U.S.C. § 1983. Section 1983 provides in relevant part as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .As is well established, § 1983 creates no independentsubstantive rights, but rather provides a cause of action bywhich individuals may seek money damages for governmentalviolations of rights protected by federal law. See, e.g.,Albright v. Oliver, 510 U.S. 266, 271 (1994). Therefore, tostate a cause of action under 42 U.S.C. § 1983, plaintiffs mustallege: (1) that the defendants acted under color of state law;and 2) that their actions deprived the plaintiffs of aconstitutional right. Parratt v. Taylor, 451 U.S. 527, 535(1981).
A. Standing — § 1983 Claim
The undersigned turns first to the issue of the standinginasmuch as it disposes of certain claims. The defendants arguethat Carmen M. Rivera-Pagán, Ramírez's spouse, and the ConjugalPartnership of Ramírez and Rivera-Pagán lack standing to suethe defendants under 42 U.S.C. § 1983. Ramírez relies uponPuerto Rico law to argue that his spouse has a vested interest inhis accrued vacation and sick leave pay.
The First Circuit has determined that actions under § 1983 arepersonal in the sense that the plaintiff must have himselfsuffered the alleged deprivation of constitutional or federalrights. Judge v. City of Lowell, 160 F.3d 67, 76 n. 15 (1stCir. 1998); Valdivieso-Ortiz v. Burgos, 807 F.2d 6 (1st Cir.1986); Caraballo-Cordero v. Banco Financiero de Puerto Rico,91 F.Supp.2d 484, 488 (D.P.R. 2000); Rodríguez-Oquendo v.Toledo-Dávila, 39 F.Supp 2d 127, 131 (D.P.R. 1999. "Only theperson toward whom the state action was directed, and not thoseincidentally affected, may maintain a section 1983 claim."Guzmán-Rosa v. de Alba, 671 F.Supp. 882, 883 (D.P.R. 1987).Additionally, a person may not sue or recover for the deprivationof the civil rights of another. Quiles ex rel. Proj. Head Startv. Hernández-Colón, 682 F.Supp. 127, 129 (D.P.R. 1988)).Finally, "[f]amily members do not have an independent claim under§ 1983 unless the constitutionally defective conduct or omissionwas directed at the family relationship." Rodríguez-Oquendo,39 F.Supp.2d at 131 (citing Torres v. United States,24 F.Supp 2d 181, 183 (D.P.R. 1998)); See also Cortés-Quiñones v.Jiménez-Nettleship, 842 F.2d 556, 563 (1st Cir. 1988).
The case law is clear that only Ramírez, and not co-plaintiffsRivera-Pagán and the Conjugal Partnership of Ramírez andRivera-Pagán, may recover damages for a § 1983 violation.Therefore, the causes of action under § 1983 of co-plaintiffsRivera-Pagán and the Conjugal Partnership of Ramírez andRivera-Pagán must be and are DISMISSED, with prejudice.
III. Summary Judgment
Plaintiff Ramírez moves for partial summary judgment. He seeksjudgment on his due process claim on the basis that there is nogenuine issue of material fact regarding the issue that thedefendants refused to accept his resignation and failed to allowhim to collect monies he is owed. More particularly, Ramírezargues that his constitutional rights were violated when thedefendants refused to accept or reject his resignation thusdepriving him of his liberty right to freely choose and/or resignfrom a job and his property right in accrued vacation and sickleave pay, all without due process of law.
Defendants Mujica, Ramos, Vázquez and Samó move for summaryjudgment in their official and personal capacities under avariety of theories including claims to the effect that Ramírezfailed to: (a) demonstrate that the defendants were personallyinvolved in the alleged constitutional violations; (b) state aclaim for deprivation of property without due process of lawunder the Fourteenth Amendment; and that (c) Ramirez failed tostate a claim for violation of the provision of involuntaryservitude under the Thirteenth Amendment. The defendants furtherassert, in their individual capacity, they are entitled toqualified immunity, and that plaintiff Rivera-Pagán (Ramirez'swife) lacks standing to sue under § 1983. The defendants move theCourt to dismiss the federal and state claims, without prejudice,for want of jurisdiction.
Neither party moved for summary judgment as to the claim thatthe defendants, acting under color of state, took retaliatoryactions against Ramírez for exercising his protectedconstitutional right to access the courts. See AmendedComplaint, para. 23, Docket No. 18. Plaintiffs advise the Courtthat they withdraw these claims (Docket No. 91). Accordingly,this claim, as to all defendants, is considered WIHDRAWN.
A. Legal Standard: Summary Judgment
A motion for summary judgment is appropriate when "thepleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to a judgment as a matter of law."Fed.R. Civ. P. 56(c); Wolf v. Gruntal & Co., 45 F.3d 524, 527(1st Cir. 1995); National Amusements, Inc., v. Dedham,43 F.3d 731, 735 (1st Cir. 1995). The First Circuit delineatedthe manner in which Federal Rule of Civil Procedure 56,functions: Once a properly documented motion has engaged the gears of Rule 56, the party to whom the motion is directed can shut down the machinery only by showing that a trialworthy issue exists. As to issues on which the summary judgment target bears the ultimate burden of proof, she cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be "material" and the dispute over it must be" genuine." In this regard, "material" means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. By like token, "genuine" means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1stCir. 1995) (citations and some internal punctuation marksomitted).
The Court "must view the entire record in the light mosthospitable to the party opposing summary judgment, indulging allreasonable inferences in that party's favor." Griggs-Ryan v.Smith, 904 F.2d 112, 115 (1st Cir. 1990). While carrying outthat task, the Court safely can ignore "conclusory allegations,improbable inferences, and unsupported speculation." Suárez v.Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)(quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,8 (1st Cir. 1990)).
Once a movant has made a preliminary showing that there existsno genuine issue of material fact, and that the movant isentitled to judgment as a matter of law, the nonmovant bears theburden to show the existence of a genuine material issue, J.Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc.,76 F.3d 1245, 1251 (1st Cir. 1996), and must "producespecific facts, in suitable evidentiary form, to establish thepresence of a trialworthy issue." Triangle Trading Co. v. RobroyIndus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation andinternal punctuation omitted); Fed.R.Civ.P. 56(e). The non-movantcannot meet this burden by mere allegation or denial of thepleadings. Fed.R. Civ. P. 56(e). Nor can the nonmoving partyavoid summary judgment by relying on conclusory allegations,improbable inferences, unsupported speculation, or "[b]rashconjecture coupled with the earnest hope that something concretewill materialize." J. Geils Band Employee Benefit Plan,78 F.3d at 1251 (quoting Dow v. United Bhd. of Carpenters, 1 F.3d 56,58 (1st Cir. 1993)). "As to any essential factual element ofits claim on which the nonmovant would bear the burden of proofat trial, its failure to come forward with sufficient evidence togenerate a trialworthy issue warrants summary judgment to themoving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001)(citation and internal punctuation omitted). "If no genuine issueof material fact emerges from this perscrutation, then the casemay be ripe for summary adjudication." Suárez, 229 F.3d at 53.
B. Personal Involvement
Defendants also move for summary judgment asserting that Ramosand Samó lack the requisite personal involvement to invokeliability under § 1983. Defendants argue that the evidence in therecord proves that Ramos and Samó were not personally involvedin the personnel action taken against Ramírez.
An element of a § 1983 claim is that defendant must bepersonally and directly involved in causing the violation of theplaintiff's federally protected rights. Voutour v. Vitale,761 F.2d 812, 819 (1st Cir. 1985). This element requires ashowing of a causal connection between the specific defendant andplaintiff's federal rights deprivation. See: Lipsett v.University of Puerto Rico, 864 F.2d 881, 902 (1st Cir. 1988).This may consist of direct acts by the defendant, certain actsperformed at defendant's direction, or his knowledge and consent.In other words, the defendant must have personal involvement inthe alleged constitutional deprivation. Under this scenario, eachdefendant individually responds for his own acts and omissions inthe light of his own duties. Rizzo v. Goode, 423 U.S. 362, 370(1976); Monell v. Department of Social Services of City of NewYork, 436 U.S. 658 (1978). Additionally, as there is norespondeat superior liability under § 1983, liability in damagescan only be imposed upon officials who were involved personallyin the deprivation of constitutional rights. See Kostka v.Hogg, 560 F.2d 37, 40 (1st Cir. 1977).
Defendants contend that it is undisputed that Ramos and Samóare not and were not the nominating authority of the EQB and thatthey have no authority in the EQB to provide any "official"remedy to Ramirez's claims. Ramos and Samó further argue thatneither of them made a decision or took any adverse personnelaction against Ramírez for the claims raised by plaintiff in theamended complaint. Finally, they contend that there were notpersonally or directly involved in the actions that Ramirezcontends violated his constitutional rights and, as such, theyare not liable for the alleged wrongdoings.
In turn, Ramírez concedes that Samó and Ramos do not have theauthority to make decisions regarding the acceptance or rejectionof his resignation. Nevertheless, he contends that these twodefendants could still be liable given their participation in theprocess pursuant to which Mujica decided not to accept Ramírez'sresignation. In support of his contention, Ramírez points to thefollowing facts: prior to the time he submitted his resignationthere were no investigations pending against him; once Ramírezsubmitted his resignation Samó and Ramos were the two EQBofficials who brought to Mujica's attention his allegedwrongdoings. More so, it was Samó and Ramos who provided adviceto Mujica regarding the administration and operation of the EQB.Also, it was Samó who recommended to Mujica not to take anyaction regarding the acceptance of Ramirez's resignation untilcompletion of the investigation by the Commonwealth Department ofJustice. Ramírez concludes that these facts support his avermentthat Ramos and Samó had an important role in the personnelactions taken against him.
The facts before the Court indicate that Ramos lacks therequisite personal involvement necessary to establish liabilityunder a § 1983 claim. It is undisputed that Ramos did notsupervise the legal division of the EQB. More so, he had nothingto do with the decision to request an administrativeinvestigation, but rather that decision was made by Mujica. Infact, Ramos did not read the memorandum of Attorney Morales whichdepicted the allegations being made against Ramírez, until afterthe Office of Internal Audit submitted its investigative report.More so, it was Mujica who advised Ramos of other allegationsbeing simultaneously made against Ramírez. Also, Ramos did notparticipate in the drafting of the letter sent by Mujica to theOffice of Governmental Ethics requesting an investigation, nordid Ramos recommend to Mujica to request said investigation.Finally, the evidence on record shows that Ramos does not havethe authority to accept or deny Ramírez's resignation fromemployment nor could he approve the liquidation of accumulatedvacation days for an employee. Even viewing the facts in thelight most favorable to Ramírez, they simply fail to establishRamos' personal involvement as required so as to impose liabilityunder § 1983. Therefore, the Motion for Summary Judgment on thebasis that Ramos lacks personal involvement and thus is notliable under plaintiffs' § 1983 claim is GRANTED.
Now we turn to consider Samo's actions in light of the § 1983standard. Samó also asserts that she lacks the personalinvolvement for the personnel action taken against Ramírez.Unlike Ramos, the facts before the Court indicate that Samó hadinvolvement in the actions taken against Ramírez, sufficient todefeat summary judgment. Samó was Ramírez's supervisor prior tothe time he submitted his resignation. It was Samó whodetermined to inform Mujica of the allegations against Ramírezeven though the prior Director of the Legal Division haddetermined such action was not necessary in light of Ramírez'sresignation. It was Samó who provided to Mujica the informationthat triggered the administrative investigation process. It wasSamó who advised Ramírez to continue working until theadministrative investigation was concluded. It was Samó who toldRamírez that if he did not work after March 31, 2002, such anaction could constitute an abandonment of service that couldresult in disciplinary actions against him. It was Samó who senta letter to Ramírez informing that he would be considered anemployee of the EQB until the acceptance of his resignation andthat the matter was being referred to the Office of the Presidentand the Office of Human Resources. Finally, it was Samó whoadvised Mujica to await for the decision of the Department ofJustice before making any determination to accept or rejectRamírez's resignation.
When viewing these actions in their totality it is evident thatSamó is implicated in the alleged deprivation of Ramírez'sconstitutional rights. Accordingly, Samó's Motion for SummaryJudgment on the basis of lack of personal involvement isDENIED.
C. Due Process
Most of the claims raised by Ramírez fall under the auspicesof due process. Indeed, the parties have filed cross-motions forsummary judgment on the issue. Ramírez contends that his rightto due process was violated in that he was denied the right tofreely choose a job and to resign from it and to liquidatevacation and sick leave accrued upon termination of employment.Ramirez further argues that this due process right was triggeredthe moment the defendants, in not accepting his resignation,failed to comply with personnel regulations, particularly PuertoRico Personnel Regulation 2186,5 §§ 9.2 and 9.4.
The defendants argue that in order for Ramírez to trigger dueprocess concerns, he must have sufficient evidence to establishthat under Puerto Rico law he has an entitlement or propertyright to the lump sum of money for the leaves of absences he mayhave accumulated. Defendants posit that because Mujica has notaccepted Ramírez's resignation, he has not been completely andabsolutely separated from public service and as such has notacquired a property interest in the lump payment of accumulatedleave. They further argue that with regard to the decision withrespect to Ramírez's resignation and the liquidation ofaccumulated vacation and sick leave benefits, same is not anadverse decision of "such severity of harm" to warrant reliefunder § 1983.
In response to Ramírez's motion for summary judgment,defendants also argue that there is no protected property orliberty interest in resigning a position. They contend that thePuerto Rico Personnel Regulations for Career Employees, Section8.3, obliged them to refer for investigation the case andRamirez's alleged misconduct to the Puerto Rico Office ofGovernment Ethics and Justice Department, and to await theresults of the investigations before making a final determinationon whether to accept or not Ramírez's resignation. More so, theyargue that Ramírez has no procedural due process right to befree from pending administrative investigations, and thatRamírez has no liberty right to be free of the administrativeinvestigations that may damage his reputation. Finally, thedefendants argue that plaintiffs have adequate state remedies toprotect their individual due process rights and, as such, this §1983 claim cannot stand. In support, defendants point to the factthat plaintiffs filed a parallel legal action in Puerto RicoCourt of First Instance to recover the amounts Ramírez claims heis owed based on accrued vacation and sick leave benefits.
The Fourteenth Amendment provides that "[n]o State shall . . .deprive any person of life liberty or property without dueprocess of law." U.S. Const. amend XIV. The substantivecomponent of due process protects against "certain governmentactions regardless of the fairness of the procedures used toimplement them." Daniels v. Williams, 474 U.S. 327, 331 (1986).There are two theories under which a plaintiff may bring asubstantive due process claim. Under the first, a plaintiff mustdemonstrate a deprivation of an identified liberty or propertyinterest protected by the Fourteenth Amendment. Pittsley v.Warish, 927 F.2d 3, 6 (1st cir. 1991) (citing Meyer v.Nebraska, 262 U.S. 390, 399 (1923)). Under the second, aplaintiff is not required to prove the deprivation of a specificliberty or property interest, but rather, he must prove that thestate's conduct "shocks the conscience."6 Pittsley,927 F.2d at 6 (quoting Rochin v. California, 342 U.S. 165, 172(1952)). In the case at bar, Ramírez does not allege that thestate's conduct shocks the conscience, but rather he asserts hehas identifiable liberty or property interests; those being theliberty interest in his right to resign from employment andpursue an occupation and his property interest in his accruedvacation and sick leave pay.
Once a liberty or property interest is established the Courtproceeds to examine what process is due under particularcircumstances. Reardon v. United States, 947 F.2d 1509, 1517-18(1st Cir. 1991). In this respect the due process referred tois procedural due process. Procedural due process requires thatthe procedures provided by the state in effecting the deprivationof life, liberty or property are adequate in light of theaffected interest. Pittsley, 927 F.2d at 6. The Courtdetermines if there is available an adequate remedy undercommonwealth law. If there is, it is fatal to Ramírez'sprocedural due process claim. Smith v. Massachusetts Dep't ofCorrection, 936 F.2d 1390, 1402 (1st Cir. 1991); see alsoAlbright v. Oliver, 975 F.2d 343, 347 (7th Cir. 1992) ("Themultiplication of remedies for identical wrongs, while gratifyingfor plaintiffs and their lawyers, is not always in the bestinterest of the legal system or the nation."), aff'd,510 U.S. 266 (1994). Quite simply, "a procedural due process claim may notbe redressed under section 1983 where an adequate state remedyexists." Reid v. New Hampshire, 56 F.3d 332, 341 (1st Cir.1995). In order to ascertain the adequacy of the proceduresavailable to plaintiffs "`'it is necessary to ask what processthe State provided, and whether it was constitutionally adequate.This inquiry would examine the procedural safeguards built intothe statutory or administrative procedure . . . effecting thedeprivations, and any remedies for erroneous deprivationsprovided by statute or tort law.'" Licari v. Ferruzzi,22 F.3d 344, 347 (1st Cir. 1994) (citing Zinermon v. Burch,494 U.S. 113, 126 (1990)).
The laws of Puerto Rico create a right for a public employee toappeal an adverse employment decision to an administrative board,as well as a right to subsequent judicial review in the statecourts. 3 P.R. Laws Ann. §§ 1394-1396. Section 1394 specificallyrefers to cases when an employee "alleges that an action ordecision affecting him violates any right granted" to him byvirtue of the provisions of the Puerto Rico Public ServicePersonnel Act. Ramírez fails to allege or provide any facts tosupport or establish that there was no post-deprivationopportunity to remedy the decisions made by the EQB, or that theprocedure provided by Puerto Rico law in and of itself violatedconstitutional due process. Plaintiff makes no mention of whetherhe availed himself of any administrative procedures. Indeed, itappears that Ramírez bypassed the remedies available to him infavor of the civil action he filed in the Puerto Rico localcourt.
1. Right to Pursue an Occupation and/or Resign from anOccupation
Even though Ramírez has available an administrative adequateremedy, the Court will address the specifics of plaintiff's dueprocess claims. Ramírez argues that when defendants did notaccept his resignation they violated his right to due process bynot complying with the regulations and in doing so they areviolating his right to freely resign and chose other professionalpursuits in life. Ramírez relies heavily upon his allegationsthat the defendants departed from the applicable Puerto RicoRegulations with regard to his resignation, particularlyRegulation 2186, Sections 9.27 and 9.4.8 However,"[a]n agency's failure to follow its own rules may be significantin administrative law, but the federal Due Process Clause doesnot incorporate the particular procedural structures enacted bystate or local governments; these claims should be pursued, if atall, under Puerto Rico law." Torres-Rosado v. Rotger-Sabat,335 F.3d 1, 10 (1st Cir. 2003).
Ramírez takes further exception to the fact that aninvestigation continues with no finality in sight. In responsethe defendants refer to Section 8.3 of the Puerto Rico PersonnelRegulations for Career Employees, amended on December 15, 1995.Section 8.3 made it obligatory that "prior to making any officialdetermination regarding the violation or non-violation of[ethical] norms, [the agency] shall consult in writing with theOffice of Government Ethics and the latter shall state itsposition before a final decision is made." The defendants explainthat as a result the EQB can take no action on Ramírez'sresignation until a decision from the investigation is made bythe Office of Government Ethics.
It is clear that there has been no adjudication of theallegations leveled against Ramírez. Without an adjudication oflegal rights the Due Process Clause does not require that "thefull panoply of judicial procedures be used." Aponte v.Calderón, 284 F.3d 184, 193 (1st Cir. 2002) (citationsomitted). Indeed, the First Circuit recognized that "thatinvestigations conducted by administrative agencies, even whenthey may lead to criminal prosecutions, do not trigger dueprocess rights." Aponte, 284 F.3d at 193. This means thatinvestigations, alone, do not trigger due process rights; theremust also be an adjudication. Id.
With regard to Ramírez's right to freely choose hisprofession, the United States Supreme Court recognized early on"that the liberty component of the Fourteenth Amendment's DueProcess Clause includes some generalized due process right tochoose one's field of private employment." Conn v. Gabbert,526 U.S. 286, 291-92 (1999) (citations omitted); see also Board ofRegents v. Roth, 408 U.S. 564, 572 (1972) (the liberty interestguaranteed by the Fourteenth Amendment includes the right "toengage in any of the common occupations of life") (citation andinternal quotation marks omitted). The Puerto Rico Constitutionalso recognizes "the right of every employee to choose hisoccupation freely and to resign therefrom." P.R. Const. art. II,§ 16. Nevertheless, the United States Supreme Court alsoobserved that case law establishing a liberty interest in theFourteenth Amendment right to practice one's profession "deal[t]with a complete prohibition of the right to engage in a calling,"and not merely a "brief interruption" in one's ability to pursuean occupation or profession. Conn v. Gabbert, 526 U.S. at 287.
Ramírez argues that the decision of Mujica to postponeacceptance of his resignation deprives him of his libertyinterest to pursue an occupation with due process of law.Ramírez also argues that the failure to accept his resignationhas restrained his liberty as he is limited in his law practice.He explains that since his resignation was not accepted he cannotengage in the practice of law before the EQB on behalf of clientswho may need representation before said agency. He furtherexplains that there is a one-year waiting period before he canappear before the board and that the one-year period does notcommence until his resignation is accepted. In spite of the facthe tendered his resignation in 2002, as of today, that is, twoyears later, the one-year term has technically not beentriggered. The defendants contend that they are entitled tosummary judgment as to this issue as Ramírez fails to show anydeprivation of his rights and has not presented any factsindicating a specific objective harm or injury.
In light of the above-stated facts, it is considered thatRamírez's due process claim does not rise to the level of aprotected liberty interest. It is undisputed that Ramírezcontinues to practice law, albeit not in every forum he wishes.His restriction, however, does not rise to the level of a"complete prohibition" of the right to engage in his calling. Hecontinues to practice his profession as a lawyer. Therefore, asto this issue plaintiffs' Motion for Summary Judgment is DENIEDand defendants' Motion for Summary Judgment is GRANTED.
2. Accrued Vacation and Sick Leave Time
Ramírez also claims a due process violation as a result of thedefendants' failure to pay him for his accrued vacation and sickleave time. Constitutional procedural due process protects onlythose aspects of public employment recognized as propertyinterests. Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 9(1st Cir. 2003). Accordingly, the Court looks to Puerto Ricolaw to determine if Ramírez has a protected interest in hisright accrued vacation and sick leave pay.
Puerto Rico law provides that for governmental employees "thereshall be paid a lump sum of money for the leaves of absence hemay have accumulated . . . and for sick leave he may haveaccumulated . . . on his removal from service." 3 P.R. Laws Ann.§ 703a. Said statute further provides that "upon ceasing therendering of services, the office which has been held by theofficer or the employee shall be considered vacant, and theperiod subsequent to the date on which the rendering of theservices ceased shall not be considered as equivalent in leavetime to said final payment." Id.
The Puerto Rico Supreme Court has held that "payment of theaccumulated vacation leave is only in order when the resignationor separation results in the definite severance from service."Rodríguez-Cruz v. Padilla-Ayala, 125 D.P.R. 486, 25 P.R.Offic. Trans. 486 (1990). Indeed, the Justice Secretaryinterprets 3 P.R. Laws Ann. § 703a) as follows: Although this section includes resignation among the reasons for leaving the service, for purposes of the lump sum payment authorized, one can reasonably read that given the general meaning of said section, the resignation referred therein is that resulting from the severance, not of the transfer from one position to another, but the total and absolute severance of the employee from governmental service; a prior and indispensable requirement for such payment.Secretary of Justice's Opinion No. 6 of 1971; See also, Op. Sec.Just. Nos. 1 and 6 of 1978; Op. Sec. Just. No. 22 of 1979; Op.Sec. Just. No. 16 of 1982.
The defendants contend that Ramírez has no property interestin his accrued vacation and sick leave days, arguing that caselaw supports he is not definitely and completely removed from thepublic service. In turn they argue, this supports their positionthat because he has no property interest, he has no right to dueprocess in obtaining such payment. Defendants further argue thatsaid decision regarding the accrued benefits does not rise to thelevel of or is of such severity as to warrant § 1983 relief.
Ramírez argues that he is entitled to the lump sum payment ofvacation and sick leave due him, inasmuch as the defendantscompletely disregarded their own regulations, particularly thedispositions of Section 9.2 and Section 9.4 regarding the timeframe or reasonable time during which a decision must be made inregards. To that extent, he argues, that he has been deprived ofthe enjoyment of vacation and sick leave pay in the amount of$18,517. According to Ramírez, this constitutes a harm severeenough to amount to a cause of action pursuant to § 1983.Ramírez argues that the defendants' position that he has failedto show a harm severe enough to assert a cause of action under §1983 is ludicrous and untenable.
The facts do not support Ramirez's position that the EQBdisregarded its rules and regulations. The evidence shows itattempted to comply with said rules. Here, Ramírez submitted hisresignation on March 13, 2002, and he was advised by Mujica onMarch 26, 2002, that the decision to accept his resignation wasbeing postponed pending an investigation. Although Section 8.6does not provide the option of "postponement" but rather itrequires that the employee be notified that the resignation isnot either accepted or rejected due to reasons that justify aninvestigation. Although Mujica does not specifically state it,the inference to be drawn in regards to the purpose of the March26th letter is that Mujica was rejecting Ramírez'sresignation, and this implied rejection of Ramírez's resignationwas made within the 15-day period set forth in Section 8.6. Thefact that Ramírez's resignation was not being accepted isfurther corroborated by Samó's actions who on March 26, 2002,after having provided Ramírez copy of Mujica's letter, advisedRamírez that he was to continue working at the EQB.
Regardless, there remains a question of fact as to whetherRamírez has a property interest in his accrued vacation and sickleave. The defendants have a valid point while arguing thatRamírez is not completely severed from his former position as aninvestigation remains pending and Ramírez's resignation hasnever been accepted. Conversely, Ramírez has a valid point whileasserting that defendants have not acted reasonably and in atimely manner in completing their investigation; more so, if weare to consider that two years after having tendered hisresignation and being referred for investigation, neither the EQBnor the Commonwealth Department of Justice can assess the statusof such referral and/or certify whether the investigation inongoing. These respective positions, however divergent, lendlittle to the Court's analysis in light of the fact that theproperty interests at issue are insignificant.
An essential element of the due process clause is that "anindividual be given an opportunity for a hearing before he isdeprived of any significant property interest." See ClevelandBd. of Educ. v. Loudermill, 470 U.S. 532, 544-45 (1985). Courtshave long recognized, however, that de minimis property interestsdo not trigger procedural due process protections. See Goss v.López, 419 U.S. 565, 575 (1975). Several courts have appliedthis principle to minor infringements upon property interests.See Germano v. City of Mayfield Heights, 648 F.Supp. 984, 985(N.D.Ohio 1986), aff'd 833 F.2d 1012 (1987) (property right insick leave and clothing allowance deemed insignificant,therefore, no pretermination hearing required as long as thereexist postdeprivation procedures under state law); Pitts v. Bd.of Educ. of U.S.D. 305, 869 F.2d 555, 556 (10th Cir. 1989) (atwo-day suspension with pay does not deprive an employee of any"measurable property interest"); Sewell v. Jefferson CountyFiscal Court, 863 F.2d 461, 467 (6th Cir. 1988) (no due processviolation where the plaintiff was demoted without a hearing butsubsequently reinstated with full back pay); Hardiman v.Jefferson County Bd. of Educ., 709 F.2d 635, 638 (11th Cir.1983) (one-week suspension with pay was de minimis and did nottrigger procedural due process). In the present case, theundersigned finds that there is not a significant propertyinterest at stake in the accrued vacation and sick leave. Theproperty interest at stake consists merely of a lump sum paymentfor accrued vacation and sick leave days, that according toRamírez totals approximately the sum of $18,517. In this regard,it is to be noted that some courts have found that employeebenefits are minor or insignificant and, as such, do not rise toa § 1983 claim, while other courts have found that the issuearises under contract law rather than § 1983. See: Balzano v.Township f North Bergen, 649 F.Supp. 807 (D.N.J. 1986) (no dueprocess violation where plaintiff not reimbursed for unused sickleave because adequate post-deprivation hearing provided by statecourts); Ramsey v. Board of Education, 844 F.2d 1268, 1272(6th Cir. 1988) (property interest in accumulated sick leaveshould be protected under state breach of contract action ratherthan § 1983); Diederick v. County of Rockland, 999 F.Supp. 568(S.D.N.Y. 1998) (alleged loss without compensation of vacationtime, personal holiday and sick leave time accruals did not riseto level of constitutionally protectable property interest);Gendalia v. Gioffre, 606 F.Sup. 363 (S.D.N.Y.) (even ifemployee had property interest in payment for unused vacation andsick leave, where adequate postdeprivation state remediesprovided requisite due process, complaint failed to state a claimunder § 1983).
Even assuming Ramirez has a property interest in his accruedvacation and sick leave, the same does not rise to the level of asignificant property interest. As discussed above, case lawsupports these findings. More so, as previously discussed, PuertoRico statutes provide Ramírez with an adequate postdeprivationremedy to contest the withholding of the accrued benefits.Therefore, the undersigned finds no due process violation withregard to the accrued vacation and sick leave time. Accordingly,as to this issue plaintiffs' Motion for Summary Judgment isDENIED and defendants' Motion for Summary Judgment isGRANTED.
3. Deprivation of Dignity and Honor
Defendants also move for summary judgment on Ramírez's claimthat he was deprived of his right to due process when thedefendants used false information or allegations to defame himand communicated these false allegations to other people and/orentities. The defendants seek to dismiss Ramírez's claims thatdefamatory statements deprived him of liberty interest in hisdignity, good name and reputation. The defendants argue that theundisputed facts in this case show no serious harm has befallenRamírez with respect to his employment.
The defendants are entitled to summary judgment on this issue.Ramírez brings this claim solely under the Constitution of theCommonwealth of Puerto Rico which in and of itself is notactionable under § 1983. Additionally, as the First Circuitrecently noted and has held: damage to one's reputation alonedoes not trigger the protections of the Due Process Clause.Aponte v. Calderón, 284 F.3d 184, 195-196 (1st Cir. 2002)(citing Paul v. Davis, 424 U.S. 693, 701 (1976)). More so,"reputational harms must be attached to some other alteration instatus in order to raise a valid due process claim." Aponte,284 F.3d at 195-196. This means that there must be a legalalteration in plaintiff's position before the courts willrecognize a procedural due process claim. Id. The First CircuitCourt of Appeals specifically noted that the Constitution of theCommonwealth of Puerto Rico does include a specific protectionfor reputation, however, it concluded that the Puerto Ricancourts have not afforded greater protections to reputation thanstateside jurisdictions. Aponte, 284 F.3d at 196; P.R. Const.art. II, § 8. Most important is that the facts before the Courtdo not support a determination that Ramírez has lost any legalrights because of the alleged defamation by government actors.Ramírez has not asserted a constitutionally protected interestin his reputation. Accordingly, defendants' Motion for SummaryJudgment is GRANTED as to this issue.
D. Involuntary Servitude
The defendants seek summary judgment on Ramírez's claim thatthe failure to accept his resignation forced him into involuntaryservitude with the EQB. The defendants argue that they have notforced Ramírez to work for the EQB by the use or threat ofphysical restraint or physical injury or by the use or threat ofcoercion through law or legal process. The defendants point tothe undisputed fact that Ramírez has not worked at the EQBsubsequent to March 31, 2002. They argue that since Ramírez wasnot forced to stay and work at the EQB, there was no involuntaryservitude; hence no violation of the Thirteenth Amendment.
Ramírez argues that he was subjected to legal coercion in thathe was notified that his resignation would not be accepted and hewas further advised that his failure to report to work couldsubject him to charges for abandonment of work. Plaintiff arguesthat he is unable to freely engage in the practice of law, moreso in the area of environmental law, since he cannot representclients before the EQB or other governmental agencies in PuertoRico.
Involuntary service means a condition in which the victim isforced to work for the defendant by the use or threat of physicalrestraint or injury, or by legal coercion. United States v.Kozminski, 487 U.S. 931 (1988). It is an action by the masterthat causes the servant to have, or to believe he has, no way toavoid continued service or confinement, of a "superior andoverpowering force, constantly present and threatening." Hodgesv. United States, 203 U.S. 1, 34 (1906). "It is not a situationwhere the servant knows he has a choice between continued serviceand freedom, even if the master has led him to believe that thechoice may entail consequences that are exceedingly bad."Kozminski, 487 U.S. at 938. There must be "law or force" that"compels performance or a continuance of the service." UnitedStates v. Shackney, 333 F.2d 475, 486-87 (2d Cir. 1964).
Unless a plaintiff alleges that he does not have the option ofleaving his job, his claim under the Thirteenth Amendment must bedismissed. Rogers v. American Airlines, Inc., 527 F.Supp. 229,231 (S.D.N.Y. 1981). Also, the Thirteenth Amendment does not comeinto play "whenever an employee asserts that his will to quit hasbeen subdued by a threat which seriously affects his futurewelfare but as to which he still has a choice, however painful."Shackney, 333 F.2d at 487. Finally, a claim under theThirteenth Amendment cannot be sustained unless plaintiff provesthat he was compelled to continue his employment or that he wasprohibited from working elsewhere. Cf. Brooks v. George County,Mississippi, 84 F.3d 157, 162 (5th Cir. 1996).
While Ramírez argues the he was subject to legal coercion,nothing can escape the fact that he no longer works at EQB, andhe is not being forced to work there. It is undisputed thatRamírez continues to and is engaged in the practice of law,albeit not before the EQB. More so, Ramírez is not prohibitedfrom working elsewhere nor was he compelled to continue hisemployment at the EQB. Accordingly, Ramírez has not satisfied anessential element of the cause of action of involuntaryservitude. Therefore, the defendants' Motion for Summary Judgmenton the issue of involuntary servitude is GRANTED.
E. Qualified Immunity
Mujica argues that he is entitled to qualified immunity fromliability for civil damages.9 He argues that his conduct,if found to fall under § 1983, did not violated Ramírez'sclearly established statutory or constitutional rights of which areasonable person would have known. Plaintiff Ramirez, of course,argues that qualified immunity is inapplicable in the case atbar. He contends that the officials knew that his rights wereviolated at the earliest by April or May 2002 when theinvestigations at the EQB were concluded and at the latest byNovember 2002, when Samó admitted to Ramos and to Mujica that areasonable period of time had lapsed without any action havingbeen taken on whether to accept or reject his resignation.
Qualified immunity shields government officers performingdiscretionary functions from civil damages insofar as theirconduct does not violate a clearly established statutory orconstitutional right which should have been known. See Harlow v.Fitzgerald 457 U.S. 800, 818 (1982); Ringuette v. City of FallRiver, 146 F.3d 1, 5 (1st Cir. 1998). In deciding whether anofficer is entitled to qualified immunity, the Court must firstdetermine whether the officer's alleged conduct violated aconstitutional right. Chavez v. Martínez, 535 U.S. 1111 (2003)(citing Saucier v. Katz, 533 U.S. 191, 201 (2001). "If not, theofficer is entitled to qualified immunity, and [the Court] neednot consider whether the asserted right was "clearlyestablished." Id.
The First Circuit Appellate Court has identified a three stepprocess for evaluating qualified immunity claims. These are: (1) whether the claimant has alleged the deprivation of an actual constitutional right; (2) whether the right was clearly established at the time of the alleged action or inaction; and (3) if both of these questions are answered in the affirmative, whether an objectively reasonable official would have believed that the action taken violated that clearly established constitutional right. Nelson v. Kline, 242 F.3d 33, (1st Cir. 2001); Abreu-Guzmán v. Ford, 241 F.3d 69, 73 (1st Cir. 2001); see Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999).Starlight Sugar, Inc., v. Soto, 253 F.3d 137, 141 (1st Cir.2001).
As the First Circuit Court of Appeals notes, "[t]his particularorder of analysis `is designed to "spare a defendant not onlyunwarranted liability, but unwarranted demands customarilyimposed upon those defending a long drawn-out lawsuit."'" Id.(citations omitted). Addressing the constitutional question first"promotes clarity in the legal standards for official conduct, tothe benefit of both the officers and the general public." Id.In the present case even if the first two questions are answeredin the affirmative,10 then it must be determined whetherMujica believed that the action taken violated that clearlyestablished constitutional right.
Mujica argues that he complied with Section 8.6 of the EQB'sPersonnel Manual and Regulations 2186 when he did not acceptRamírez's resignation within the term provided. He furtherargues that he referred the investigation of Ramírez andrequested a recommendation with respect to the course of actionto be followed as to Ramírez's resignation. Further Mujicaargues that Ramírez's resignation has not been accepted due tothe administrative processes followed by the Department ofJustice, the Office of Governmental Ethics and the Comptroller'sOffice and asserts there are processes over which he has nocontrol and agencies over which he has no authority to overseethe manner in which investigations are handled. Mujica notes andargues that it was recommended to him by the Office of InternalAudit and the external legal advisor (Attorney Fernández) towait for the results of the investigations being carried out bythe Department of Justice and the Office of Governmental Ethicsbefore accepting the resignation. Finally, Mujica asserts hefollowed the directives established in Section 8.3 of the PuertoRico Personnel Regulations for Career Employees which requiresthe government agency to consult, in writing, with the Office ofGovernment Ethics prior to making any official determinationregarding the violation or non violation of ethical norms.Section 8.3 further requires that the Office of Government Ethicsstate its position before a final decision is made by thegovernmental agency, here the EQB. This required the EQB to waitbefore proceeding to accept or reject Ramírez's resignation.Mujica argues that he had no reason to believe that theadministrative process he followed was not correct.
Even when viewing the facts in the light most favorable toRamírez, and giving every reasonable inference to him, we feelcompelled to conclude that the facts simply do not allow for aninference that Mujica's conduct was objectively unreasonable.Mujica relied upon the recommendations and advice of variousPuerto Rico governmental agencies and attorneys while ponderingwhether to accept or reject Ramírez's resignation. In everyinstance he was told to wait for the completion of the internaland external investigations. Also, Mujica was aware of theapplicable laws, norms and regulations he was required to follow.It is undisputed that he abided by Article 8.3 for theinvestigative determination as required. The facts of this caseevince that an objectively reasonable official would not havebelieved that the action taken at the time the decision was madeviolated a clearly established constitutional right. Therefore,Mujica's Motion for Summary Judgment as to the issue of qualifiedimmunity is GRANTED.
F. Supplemental State Claims
The defendants move to dismiss the supplemental state claimsbrought against them. As a general rule, where the district courtdismisses the federal claims before trial, the court shoulddismiss the state law claims without prejudice. United MineWorkers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); Rodríguezv. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). Todate there remains one claim pending — that is the claim found atparagraph 23 of the Amended Complaint that the defendants tookretaliatory actions against Ramírez for exercising his protectedright to access the Courts. However, plaintiffs have advised theCourt that they are withdrawing without prejudice the retaliationcause of action (Docket No. 91). Accordingly, the retaliationclaim is deemed withdrawn and, as such, there remains no federalclaims pending. Therefore, any supplemental state claims areDISMISSED, without prejudice.
Plaintiff's Motion for Summary Judgment (Docket No. 60) isDENIED. Defendants' Motion for Summary Judgment (Docket No.62) is GRANTED in part andDENIED in part as follows: • The Motion to Dismiss the causes of action under § 1983 of co-plaintiffs Rivera-Pagán and the Conjugal Partnership of Ramírez and Rivera-Pagán for lack of standing is GRANTED; • The Motion for Summary Judgment on the basis that Ramos lacks personal involvement is GRANTED; • The Motion for Summary Judgment on the basis that Samó lacks personal involvement is DENIED; • The Motion for Summary Judgment on the due process issue with regard to the right to pursue/resign from an occupation is GRANTED; • The Motion for Summary Judgment on the due process issue with regard to accrued vacation and sick leave time is GRANTED; • The Motion for Summary Judgment on the due process issue with regard to deprivation of dignity and honor is GRANTED; • the Motion for Summary Judgment on the issue of involuntary servitude is GRANTED; • The Motion for Summary Judgment as to the issue of qualified immunity as to Mujica is GRANTED; and, • The Motion to Dismiss the supplemental claims is GRANTED, and the supplemental state claims are DISMISSED, without prejudice.
The rulings made in this Opinion and Order disposes of allclaims raised by plaintiffs. Accordingly, the Clerk of the Courtis ordered to enter judgment in favor of defendants and againstplaintiffs.
1. Defendants indicate that they have been advised that theclaims against Magdalena Vázquez will be voluntarily dismissed.The docket sheet indicates that to date there has been no filingin this regard.
2. The plaintiffs advise the Court that they have filed amotion to dismiss, without prejudice, the claims brought in thestate court case (Docket No. 91). Apparently this is strategyon the part of plaintiffs to avoid a ruling by the Court on theissue of abstention. The record reflects that on October 22,2004, the Court ordered the parties to advise, no later thanOctober 29, 2004 of the status of Civil Case No.KAC-2002-5331(504) and to brief the issue of abstention andwhether it applied in this case. Plaintiffs' response, filed onOctober 29th, indicates that on October 25, 2004, they hadfiled a motion to withdraw the state court claims (Docket No.91). The plaintiffs do not advise if in fact the state courtcase has actually been dismissed.
3. Ramírez asserts that the accrued vacation and sick leavedays total $18,517. Defendants dispute this amount.
4. During the discovery process both agencies were requestedto inform on the status of the referral for investigation made byMujica or, in the alternative, to certify the status of saidinvestigations (Docket Nos. 40 and 41). No definite orpreliminary report on the status of such investigations has beeninformed to the Court.
5. Formerly Regulation No. 2663.
6. The First Circuit has found "conscience shocking" conductonly where the state actors engaged in "extreme or intrusivephysical conduct." Souza v. Piña, 53 F.3d 423, 427 (1st Cir.1995). It has not, however, foreclosed the possibility that wordsor verbal harassment may constitute "conscious shocking" behaviorin violation of substantive due process rights, see Souza,53 F.3d at 427; Pittsley, 927 F.2d at 6, but the threshold foralleging such claims is high. See Cruz-Erazo v.Rivera-Montañez, 212 F.3d 617 (1st Cir. 2000).
7. The EQB has its own set of Personnel Regulations,"Reglamento de Personal para los Empleados de Carrera, Junta deCalidad Ambiental, found at Regulation No. 4105, and datedFebruary 8, 1990. Ramírez does not refer to the EQB'sRegulations, but instead refers to the general personnelregulations for Puerto Rico government employees. Article 9.2referred to by Ramírez concerns disciplinary actions. The EQBRegulations for disciplinary actions is found at Article 8.3relied upon by Ramírez. The main difference between the tworegulations is that Section 9.2 states that the nominatingauthority will make an investigation within ten days from themoment it had official knowledge of facts and it will make adetermination as to whether it will undertake an administrativemeasure. EQB Section 8.3 provides that an investigation will bemade within a reasonable time from when there is officialknowledge of the facts.
8. See nt. 6. Section 8.6 of the EQB Regulations is almostidentical to Section 9.4 relied upon by Ramírez. It providesthat An employee may resign his position freely through written notice to the President (of the EQB). This communication will be made no less than fifteen (15) days prior to the last day of work, except that the President shall, within the term of fifteen (5) days of the resignation being submitted, notify the employee if he accepts it or rejects it due to the existence of reasons that justify the investigation of the conduct of the employee. In case of rejection, the President, within the shortest time possible, shall undertake the investigation and determine if he accepts the resignation or proceeds to bring charges.Reglamento de Personal para los Empleados de Carrera, Junta deCalidad Ambiental, Regulation No. 4105, Section 8.6.
9. Defendant Samó did not move for summary judgment on theissue of qualified immunity.
10. This presupposes that the plaintiffs alleged aconstitutional violation. Earlier in this opinion it wasdetermined that various of plaintiffs' claims did not rise to thelevel of a constitutional violation.