OPINION AND ORDER
The Court currently has before it co-Defendants Anibal Torres Rivera,José Fuentes Agostini and Angel Rotger Sabat's Motion for SummaryJudgment (docket No. 143). Since more than ten days have elapsed andPlaintiff has not filed an opposition thereto, both motions standunopposed. See Local Rule 311.5. Therefore, all uncontested facts in thetwo motions are deemed and accepted as true.1
Co-Defendants allege that summary judgment should be granted intheir favor on all counts, and in addition, allege that they areentitled to qualified immunity. For the reasons herein stated, andbecause the Court finds that no outstanding questions of fact remainso as to create a genuine issue of material fact, co-Defendants'Motion for Summary Judgment is hereby GRANTED, and the federal causesof action against them are DISMISSED WITH PREJUDICE.
II. FACTUAL CONTENTIONS
Based on the record and the parties' contentions, and after havingcompleted discovery in the instant matter, the Court finds the followingfacts to be undisputed.
1. The Plaintiff in this case is Marta I. Torres Rosado, a Special Agent of the Special Investigations Bureau (hereinafter SIB) of the Puerto Rico Justice Department.
2. Said division investigated public employees suspected of being engaged in public corruption.
3. Plaintiff worked for the SIB for a period of approximately fifteen years.
4. Plaintiff occupied a career position and was classified as "Agent III".
5. On October 23, 1998, Plaintiff was the supervisor of a public integrity squad, a designation given to Agent III's who held the trust of the Director of the SIB.
6. Co-Defendant Anibal Torres named Plaintiff to this position.
7. Plaintiff Torres did not compete for this supervisory position.
8. Plaintiff's immediate supervisor until October 21, 1998, was Nolan Pérez.
9. Senator Anibal Marrero Pérez was being investigated by the SIB during the month of and prior to October 1998.
10. Plaintiff Rosado was in charge of this investigation.
11. On October 16, 1998, Plaintiff wrote a memorandum to co-Defendant Torres Rivera in which she expressed concern about the paralyzed status of the investigation.
12. Plaintiff states that co-Defendant Torres Rivera did not ask her to stop or paralyze the investigation.
13. Plaintiff states that this memo was for co-Defendant Torres Rivera's knowledge, that she did not intend this memo to be known to others.
14. As a result of the October 16, 1998 memorandum, Defendant Torres Rivera held a meeting with Plaintiff Torres on the afternoon of October 23, 1998.
15. Also present at the meeting on October 23, 1998, was José Ramos Román.
16. At that meeting, co-Defendant Torres Rivera gave Plaintiff a memorandum in response to her memo of October 16, 1998.
17. At the October 23, 1999 meeting, co-Defendant Torres Rivera handed Plaintiff a memorandum stating, "In the face of your assertion, I have no other alternative but to withdraw my trust as a supervisor of Section 3, GID".
18. Co-Defendant Torres Rivera also re-assigned her and removed her from the Pérez Marrero investigation.
19. At said meeting, Plaintiff Torres requested vacation leave, and filed a request.
20. CO-Defendant Torres Rivera told Plaintiff she could have the vacation leave subject to her handing in a report concerning case NIE-98-111, the case that had prompted the October 16, 1998 memo.
21. Mr. José Ramos signed the form recommending the vacation leave.
22. On October 26, 1998, co-Defendant Torres Rivera went to José Ramos' office, and inquired if Plaintiff had filed the report.
23. Co-Defendant Torres Rivera denied Plaintiff's vacation leave, writing on the vacation leave request that Plaintiff could not enjoy her vacation until she handed in the report.
24. Co-Defendant Torres Rivera had not seen or spoken with Plaintiff Torres since October 23, 1998 until he saw her in depositions or hearings related with the events of this lawsuit.
25. On October 26, 1998, co-Defendant Torres Rivera wrote a memo to Plaintiff Torres where he again placed her in charge of investigation NIE 98-111.
26. That same day after lunch, Mr. José Ramos received a telephone call from Plaintiff, and she informed him that her son was sick and that she could not come in to meet with Co-Defendant Deputy Attorney General Angel Rotger Sabat, or draft the report.
27. Sometime after October 26, 1998, Plaintiff Torres delivered a medical certificate dated October 25, 1998.
28. This certification stated that the patient was under medical treatment on October 25, 1998, due to chicken pox.
29. On November 4, 1998, El Vocero published nine articles related to Senator Anibal Marrero Pérez.
30. Plaintiff stated she never spoke to the press or to Javier Maymi, a reporter from El Vocero, concerning the articles published by that paper which Plaintiff claims were the basis of a retaliation claim.
31. November 16, 1998 was co-Defendant Torres Rivera's last day as Director of the SIB.
32. On November 16, 1998, co-Defendant Torres Rivera wrote a memo to co-Defendant Attorney General José Fuentes Agostini requesting an investigation and evaluation of Plaintiff's conduct to determine if disciplinary action should be taken against her.
33. Co-Defendant Torres Rivera has never seen or spoken to co-Defendant José Fuentes Agostini since Torres Rivera left the SIB on November 17, 1998.
34. Inspector General Inés Carrau recused herself from the internal administrative investigation because of her friendship with Plaintiff.
35. On November 17, 1998, co-Defendant José Fuentes Agostini instructed Itala Rivera Buonomo to intervene as Inspector General in carrying out an administrative investigation regarding the conduct of Plaintiff Torres Rosado.
36. On November 20, 1998, Plaintiff returned to work, and submitted medical evidence regarding her and her son's condition.
37. On that same day, Plaintiff submitted the report requested by former Director Torres Rivera regarding the investigation of Senator Pérez Marrero.
38. On November 20, 1998, Plaintiff Torres received a hand-delivered letter from Itala Rivera Buonomo, notifying her of the administrative complaint that had been lodged against her for insubordination and leave of absence from work.
39. Plaintiff was absent from work between October 26, 1998 and November 20, 1998.
40. Plaintiff's first report regarding the status of the case was unsatisfactory.
41. Plaintiff presented a second report regarding the status of Senator Marrero's investigation on November 24, 1998.
42. While Plaintiff was away from the office, a newspaper article appeared in El Vocero newspaper that allegedly discredited Plaintiff.
43. The article mentioned that some spiritism or witchcraft (in Spanish, "santeria") material had been found in her car, and that it was evident that Plaintiff was "doing spiritual jobs" against some members of the government, including co-Defendant Torres Rivera.
44. Plaintiff was receiving confidential information from a source regarding alleged unlawful activities of Senator Marrero Pérez.
45. Plaintiff reported to the State Insurance Fund on November 25, 1998.
46. On December 9, 1998, Itala Rivera Buonomo handed in her preliminary report regarding the administrative investigation of Agent Marta Torres Rosado.
47. The report concluded that Plaintiff Torres Rosado had incurred in insubordination and leave of absence from work.
48. On January 28, 1999, co-Defendant José Fuentes Agostini informed Plaintiff through a letter that beginning that day, she was suspended from her job with pay.
49. Said letter also advised her of her right to appeal the decision.
50. On April 9, 1999, an administrative hearing was held where Plaintiff Torres, accompanied by her lawyer, was able to present evidence and testimony in her favor.
51. Plaintiff claims that the administrative hearing was a sham.
52. The hearing officer, Pablo Montaner, Esq., stated under penalty of perjury, that he based his decision on the law and the evidence presented.
53. The hearing officer rendered his report on May 19, 1999, and concluded that Plaintiff Torres had incurred in an act of insubordination and leave of absence from work.
54. On June 30, 1999, a certified letter was sent to Plaintiff Torres informing her of her destitution and her right to appeal the decision.
55. On November 15, 1999, Plaintiff sued her supervisor, Anibal Torres Rivera in the Puerto Rico Court of First Instance, San Juan Part, for defamation and money damages.
56. As a result of the lawsuit filed in the Commonwealth court, Plaintiff was reinstated to her job with back pay in or around June, 2001.
57. Plaintiff is a practicing Catholic.
58. Agents for the SIB must name their sources to their supervisors, to the Director of the SIB, and to the Attorney General, if so requested. Not naming their source could jeopardize and investigation.
Rule 56(c) of the Federal Rules of Civil Procedure provides for theentry of summaryjudgment where "the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law." Fed. R.Civ. P. 56(c); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993);Lipsett v. University of Puerto Rico, 864 F.2d 881, 894 (1st Cir. 1988).Summary judgment is appropriate where, after drawing all reasonableinferences in favor of the non-moving party, there is no genuine issue ofmaterial fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if, based onthe substantive law at issue, it might affect the outcome of the case.Id. at 248, 2509; Mack v. Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179,181 (1st Cir. 1989). A material issue is "genuine" if there is sufficientevidence to permit a reasonable trier of fact to resolve the issue in thenon-moving party's favor. See Anderson, 477 U.S. at 248, 106 S.Ct. 2509;Boston Athletic Ass'n v. Sullivan, 867 F.2d 22, 24 (1st Cir. 1983).
The party filing a motion for summary judgment bears the initial burdenof proof to show "that there is an absence of evidence to support thenon-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325,109 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The burden then shifts tothe non-movant to show that "sufficient evidence supporting the claimedfactual dispute [exists] to require a jury or judge to resolve theparties' differing versions of truth at trial." See First Nat'l Bank ofAriz. v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592-93,20 L.Ed.2d 569 (1968). The party opposing summary judgment may not restupon mere allegations or denials of the pleadings, but must affirmativelyshow, through filing of supporting affidavits or otherwise, that there isa genuine issue for trial. Id. see also Goldman v. First Nat'l Bank ofBoston, 985 F.2d 1113, 1116 (1st Cir. 1992). On issues where thenon-movant bears the ultimate burden of proof, he must present definite,competent evidence to rebut the motion. Anderson, 477 U.S. at 256-57, 106S.Ct. at 1514-15.
Plaintiff has brought forth a barrage of claims under a variety ofstatutes. As far as the Court has been able to discern from the confusingallegations in the Amended Complaint, they are: under the 1st amendment,for freedom of speech, whistleblower protection, retaliation, religiousbelief and/or religious expression; procedural due process under the 14thAmendment; conspiracy to violate civil rights; and for confiscation ofsalary without due process. Plaintiff has also brought claims underarticles 1802 and 1803 of the Civil Code of Puerto Rico, 31 P.R. LawsAnn. §§ 5141 and 5142, which this Court is empowered to hear undersupplemental jurisdiction pursuant to 28 U.S.C. § 1336. The Court nowproceeds to analyze the claims brought forth by Plaintiff.
A. First Amendment claims for freedom of speech
It has been held that "absolute First Amendment protection is notaccorded to any grievance a public employee files against an employer,without regard to content". See Tang v. State of R.I., Dept. of ElderlyAffairs, 163 F.3d 7, 11-12 (1st Cir. 1998). If it did, anything anyonesaid "would plant the seed of a constitutional case". Id. The standardfor analyzing civil rights when the parties contend that they have beendismissed for exercising their First Amendment rights is the one espousedin Pickering v. Board of Educ. of Township High Sch. Dist. 205, WillCounty,Ill., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and itsprogeny, and more recently restated in the landmark case of Connick v.Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In both ofthese cases, the Supreme Court made it very clear that public employeesdid not relinquish their rights to comment on matters of public concernby virtue of the fact that they are government employees. Id. at 139, 103S.Ct. 1686, citing Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. At thesame time, however, they also recognized that the state had a vestedinterest in regulating the speech of its employees, and that thatinterest differed from the interest the state possessed in regulating thespeech of the citizenry in general. Id. The balance that the Court mustundertake, then, is between the interests of the citizens in commentingon matters of public concern, and of the state, as an employer, inproviding efficient services through those employees. Id.
In cases of this nature, the Pickering, and later the Connick Court,established a three part test to determine whether Plaintiff could have avalid, actionable First Amendment freedom of speech claim. First, theCourt must determine whether Plaintiff Torres made her statement —in this instance, whether the content of her memorandum — was amatter of public concern. Connick, 461 U.S. at 147, 103 S.Ct. 1684. Onthe other hand, if the speech involved is not a matter of publicconcern, but is instead of "personal interest, a federal court is not theappropriate forum in which to review the wisdom of a personnel decisiontaken by a public agency allegedly in reaction to the employee'sbehavior". Id. Second, the Court must weigh the strength of theemployee's and the public's First Amendment interests against thegovernment's interest in the efficient performance of the workplace. SeePickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. If the first two prongsof the test are met — if the employee's and the public's FirstAmendment interests outweigh a legitimate governmental interest incurbing the employee's speech — Plaintiff Torres must then showthat the protected expression was a substantial or motivating factor inthe adverse employment action at issue. See O'Connor v. Steeves,994 F.2d 905, 913 (1st Cir. 1993); see also Tang, 163 F.3d at 11.
Having examined Plaintiff Torres' claims, the Court can only concludethat they fail at the first step because she has not demonstrated thather speech involved matters of public concern. In assessing whetherPlaintiff's speech implicates public concern, the Court must analyze "thecontent, form, and context of [the speech], as revealed by the wholerecord." Connick, 461 U.S. at 147-48, 103 S.Ct. at 1684.
The Court now turns to the landmark case of Connick v. Myers, since thefacts of the case before it are very much akin to those in Connick.Connick involved an Assistant District Attorney in New Orleans who workedin the criminal division. When Connick, the District Attorney, proposedto transfer her to prosecute cases in a different section of the criminalcourt, she strongly opposed the transfer, expressing said opposition toseveral of her supervisors, including Connick. Shortly thereafter, sheprepared a questionnaire that she distributed to the other AssistantDistrict Attorneys in the office concerning office transfer policy,office morale, the need for a grievance committee, the level ofconfidence in supervisors, and whether employees felt pressured to workin political campaigns. Connick then informed Myers that she was beingterminated for refusal to accept the transfer, and also told her that herdistribution of the questionnaire was considered an act ofinsubordination.
Myers filed suit in federal district court under 42 U.S.C. § 1983,alleging that she was wrongfully discharged because she had exercised herconstitutionally protected right of free speech. The district courtagreed, ordered her reinstated, and awarded backpay, damages, andattorney's fees. Upon finding that the questionnaire, not the refusal toaccept the transfer, was the real reason for Myers' termination, thecourt held that the questionnaire involved matters of public concern andthat the State had not "clearly demonstrated" that the questionnaireinterfered with the operation of the District Attorney's office. TheCourt of Appeals affirmed, yet the Supreme Court reversed, and held thatMyers' discharge did not violate the First Amendment.
The Court, citing to Pickering, attempted to determine a publicemployee's rights of free speech, arriving "at a balance between theinterests of the [employee], as a citizen, in commenting on matters ofpublic concern and the interest of the State, as an employer, in promotingthe efficiency of the public services it performs through its employees."Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. The Court opined that inConnick, except for the question regarding pressure upon employees towork in political campaigns, the questions posed did not fall under therubric of matters of public concern. Rather, they involved only the innerworkings of the office of the District Attorney, and were thus matters ofa more personal nature.
The Court further held that Myers, because she was not commenting onmatters of public concern, had a limited First Amendment interest whichdid not require the District Attorney to tolerate actions that hereasonably believed would disrupt the office, undermine his authority,and destroy the close working relationships within the office. Toconclude, the Court found that the fact that the questionnaire emergedimmediately after a dispute between Myers, Connick and his deputies,required that additional weight be given to Connick's view that Myersthreatened his authority to run the office.
Turning to the case at hand, and in much the same fashion, the Courtfinds that Plaintiff Torres' concerns expressed to her superior in hermemorandum of October 16, 1998, were not matters of public concern, butmore of Plaintiff's individual, personal concerns about her work and theinvestigation, that only concerned her and her supervisor. See alsoTang, 163 F.3d at 12. Specifically, the memorandum at issue read:
My informant related to the case of public functionary BSI-980111, told me that with regard to this investigation, phone calls should be made to the Honorable Ramón Luis Rivera, for him to contribute information regarding the case, since according to another source, he is willing to cooperate in everything, because he is aware of all the `misdeeds' which this functionary is performing.
It is my concern that at present this investigation is paralyzed due to lack of communication with you, since it is you who are authorized to give us instructions whether to proceed or not regarding this case with the aforesaid debriefings.
At the last meeting held with you, you indicated you would make efforts to verify with the federal agencies whether there was an investigation into this matter to thus know what course of action to follow.
It should be stated that the agent who has this matter assigned was given a photograph of the persons who are under investigation, and in addition, the CI gave him a photocopy of a check payable to the public functionary in question for the sum of $750.00, which is in the case file.
As far as the Court can ascertain, these are not matters of publicconcern, but Plaintiff's personal concerns about the status of aninvestigation, which is an internal affair. Indeed, Plaintiff herself, inher Second Amended Complaint, admits that "she merely expressed herworries concerning the confidential case under investigation assigned toher". Second Amended Complaint at 26 (docket No. 2). The Court agreeswith the Supreme Court in that ". . . the First Amendment does notrequire a public office to be run as a roundtable for employee complaintsover internal office affairs." Connick, 461 U.S. at 149, 104 S.Ct. 1684.
Much like in Connick, the Court perceives the matters in the case atbar relate to the fundamental inner workings of an office — thatPlaintiff perceived the investigation was proceeding too slowly. Whilecorruption in the Puerto Rican senate are certainly matters of publicconcern, the investigation itself, or how it is progressing, is entirelyan internal matter, and not of public concern. That is to say, while theend result might be a matter of public concern, the means to that end, isnot. Therefore, it is evident that Plaintiff's speech did not pertain tomatters of public concern. The Court therefore holds that the contents ofPlaintiff's memorandum were not matters of public concern, and thus, notprotected speech. Consequently, her claims of free speech stemming fromthe memorandum must fail, since they do not surpass the constitutionalhurdle of protected speech. Therefore, co-Defendants' request for summaryjudgment on this issue is hereby GRANTED, and Plaintiff's First Amendmentclaims regarding free speech against all co-Defendants are herebyDISMISSED WITH PREJUDICE.
B. First Amendment claim for whistleblower protection
When addressing First Amendment claims brought forth forwhistleblowing, the Court must use the three part test set forth by theFirst Circuit in O'Connor v. Steeves, 994 F.2d 905 (1st Cir. 1993). InO'Connor, the First Circuit held that in order to determine whether apublic employee's First Amendment right to speak has been infringed uponrequires: 1) a determination of whether the employee was speaking as acitizen upon a matter of public concern; 2) whether the employee's rightto speak out and the information of public interest which the employeesought to impart outweigh the governmental interest in promoting theefficient performance of public service; and 3) whether the governmentwould have reached the same decision even in absence of the protectedconduct. O'Connor, 994 F.2d at 911. However, the Court's analysis neednot even get to this point since it concludes, as a matter of law, thatPlaintiff has not made out a valid claim for whistleblower protection.
Retaliation for whistleblowing is not a foreign practice, and Congressspecifically passed a statute in response to such behavior, seeWhistleblower Protection Act of 1989, 5 U.S.C. § 1213 (West 2001), ashave numerous states. Generally speaking, in order for a claim to fallunder the whistleblowing rubric, a plaintiff must generally assert adesire to publicly denounce or reveal illegal conduct. See Id.,; see alsoLarch v. Mansfield Mun. Elec. Dept., 272 F.3d 63, 67 (1st Cir. 2001)(plaintiff has a cause of action under Massachusetts Whistleblower Statutewhen he objects to, or refuses to participate in any activity, policy orpractice which the employee reasonably believes is in violation of a law,or a rule or regulation promulgated pursuant to law, orwhich theemployee reasonably believes poses a risk to public health, safety or theenvironment); Higgins v. New Balance Athletic Shoe, Inc., 94 F.3d 252,261 (1st Cir. 1999) (Maine Whistleblowers' Protection Act protects anemployee from discrimination when he has complained to the employer ingood faith about a workplace-related condition or activity that hereasonably believes is illegal, unsafe, or unhealthy); Marqués v.Fitzgerald, 99 F.3d 1, 4 (1st Cir. 1996) (Rhode Island statute kicks inwhen an employee [. . .] reports or is about to report to a public body,verbally or in writing, a violation which the employee knows orreasonably believes has occurred or is about to occur, of a law orregulation, or rule promulgated under the law of this state, a politicalsubdivision of this state, or the United States).
Puerto Rico does not have a whistleblowing statute per se, but ratherwhistleblowing protection is attached to the statute granting relief foremployees discharged without just cause, which is the exclusive remedyfor wrongful termination under Puerto Rico law. 29 P.R. Laws Ann. §185(a)-185(1) (West, 2001); Rodriguez v. Eastern Air Lines, Inc.,816 F.2d 24 (1st Cir. 1987); Weatherly v. International Paper Co.,648 F. Supp. 872, 877 (D. Puerto Rico 1986); Vargas v. Royal Bank ofCanada, 604 F. Supp. 1036 (D. Puerto Rico 1985). It is for that reasonthat the law was amended to specifically allow some remedy forwhistleblowers. 29 P.R. Laws Ann. § 185(b); In Re: El San Juan HotelCorp., 149 B.R. 263 (D. Puerto Rico 1992).
In much the same fashion as the federal and state statutes, however,the Puerto Rico whistleblower statute provides that some type of publicdisclosure of information either be imminent or have actually occurred inorder for a valid cause of action under this statute to exist.
"A discharge made by the mere whim of the employer or without cause relative to the proper and normal operation of the establishment shall not be considered as a discharge for good cause. Neither shall it be considered just cause for discharging an employee, his/her collaboration or expressions made by him/her pertaining to his/her employer's business before any administrative, judicial or legislative forum in Puerto Rico when said expressions are not of a defamatory character nor constitute disclosure of privileged information according to law. In this last case, in addition to any other corresponding adjudication, the employee thus discharged shall have the right to have an order issued for immediate restitution in his/her employment and to be compensated for an amount equal to the salaries and benefits not received from the date of discharge until a court orders reinstatement in his/hers employment".
29 P.R. Laws Ann. § 185b (West 2002).
In the case at bar, Plaintiff has not complained to a public body, oranyone else for that matter, about any illegal, unsafe activities thathave occurred or that were about to occur in her workplace. Plaintiffmerely wrote a memorandum, to her supervisor, regarding a concern she hadabout the status of an investigation. The most important aspect of awhistleblowing claim — the actual public exposure, or threatthereof, of an illegal or unsafe act — simply was not presenthere. Plaintiff herself admits she did not speak to the press about it.Therefore, under these facts, the Court cannot hold that a whistleblowingcause of action has been alleged. Therefore, the Court GRANTS SummaryJudgment in favor of all co-Defendants regarding this cause of action,and DISMISSES WITH PREJUDICE Plaintiff's First Amendment claims forwhistleblowing.
C. First Amendment claim for retaliation
In retaliation claims, the standard is the one espoused in Pickeringv. Board of Education, supra, and Connick v. Myers, supra, as previouslydiscussed. In essence, the Court must determine whether Plaintiff Torres'statement (the contents of her memorandum), were matters of publicconcern, and must then weigh the strength of her as well as the public'sFirst Amendment interests, against the government's interest in theefficient performance of the workplace. Pickering, 391 U.S. at 568, 88S.Ct. at 1734.
However, the Court's analysis regarding this cause of action is brief,since, as in the analysis performed regarding Plaintiff's right to freespeech, the Court finds that the matters in the memorandum was not mattersof public concern. Therefore, the Court's analysis stops here, and holdsthat Plaintiff has not alleged a valid claim for retaliation under thefirst Amendment, and consequently, GRANTS Summary Judgment for allco-Defendants regarding the retaliation claim. Plaintiff's claim underthis statute is DISMISSED WITH PREJUDICE.
Plaintiff also brought forth claims alleging First Amendment violationswhen she refused to reveal confidential information to her superiors,specifically the name of her source. The Court is at a loss to understandhow a reluctance to reveal something could ever violate anyone's freespeech rights. The Court can find no case that holds that refusing to namea confidential source violates a person's First Amendment rights.However, if Plaintiff's claim is that retaliation occurred because sherefused to name this source, the Court can likewise find no case thatholds that the name of a confidential source is a matter of publicconcern. Therefore, as in its previous analysis, the Court finds thatthis is not a matter of public concern — it relates solely to theinner workings of the Justice Department, particularly to the progress ofthis investigation, and is therefore not protected speech. Therefore, theclaims against all co-Defendants regarding this cause of action areDISMISSED WITH PREJUDICE.
D. First Amendment claim for free exercise of religion
Plaintiff Torres claims her first amendment rights "to religious beliefand expression" (Amended Complaint, Par. 34), were violated when hersuperior informed the newspaper El Vocero that she was engaged inspiritism or witchcraft (in Spanish, "santeria").
After a careful examination of the facts, the Court can find noviolation of the establishment clause. See generally, Abington SchoolDistrict v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)(Goldberg, J. concurring), Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct.2105, 29 L.Ed.2d 745 (1970) (detailing the analysis involved in anestablishment clause claim). The Court therefore turns its analysis tothe free exercise clause.
In order to prevail in a claim based on a violation of the FirstAmendment right under the free exercise clause, a claimant must show thatgovernment action either forbids conduct which is dictated by a person'sreligious beliefs or compels conduct which is forbidden by that person'sreligious beliefs. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10L.Ed.2d 965 (1963); see also Lyng v. Northwest Indian Cemetery ProtectiveAss'n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988).
In the case at bar, the Court fails to see how an allegation to anewspaper that Plaintiff Torres was practicing "santería"couldhave possibly interfered with whatever religion she practices. Plaintiffhas not shown that the comment forbids conduct which is dictated by herreligious beliefs or how the comment compelled her to act in a way thatis forbidden by her religious beliefs. Therefore, co-Defendants TorresRivera, Fuentes Agostini and Rotger Sabat's request for summary judgmenton this issue is hereby GRANTED, and Plaintiff's First Amendment claimsfor the free exercise of religion are also hereby DISMISSED WITHPREJUDICE.
E. Procedural Due Process under the 14th Amendment
The due process clause of the Fifth and Fourteenth Amendments forbidany state from "depriv[ing] any person of life, liberty, or propertywithout due process of law." To prevail in a § 1983 action allegingdeprivation of procedural due process, a plaintiff must prove "that theconduct complained of deprived the plaintiff of a cognizable propertyinterest," see Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68L.Ed.2d 420; Lowe v. Scott, 959 F.2d 323, 334 (1st Cir. 1992), withoutdue process.
Plaintiff Torres alleges that her procedural due process rights wereviolated in four instances: when she was stripped of her supervisoryduties and functions; when she was suspended with pay from her positionat the Bureau of Special Investigations on January 28, 1999; when thepre-termination hearing was held; and when she was finally permanentlydischarged in June 1999. In order to prevail on this claim, Plaintiffmust show (1) that she had a cognizable, protected property interest inher employment; (2) that the co-Defendants deprived her of that protectedproperty interest in that employment; and (3) that the deprivation wasworked without due process.
Under the due process clause of the Fourteenth Amendment, persons whopossess a property interest in continued public employment cannot bedeprived of that interest without due process of law. See U.S. Const.Amd. XIV; Kaufmann v. Puerto Rico Tel. Co., 674 F. Supp. 952 (D. PuertoRico 1987). At a minimum, due process rights entitle such individuals to"notice and a meaningful opportunity to respond" prior to termination.Kercado-Meléndez v. Aponte-Roque, 829 F.2d 255, 263 (1st Cir.1987). The Constitution does not create property interests; instead,"they are created and their dimensions are defined by existing rules orunderstandings that stem from an independent source such as state law. . . ." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701,33 L.Ed.2d 548 (1972).
Puerto Rican law grants a property interest in employment to careeremployees. See Kauffman v. Puerto Rico Tel. Co., 841 F.2d 1169, 1173 (1stCir. 1988). Therefore, Plaintiff Torres had a cognizable propertyinterest which she claims to have been deprived of, since she was acareer employee at the SIB. Plaintiff has also successfully cleared thesecond prong of the due process analysis — that co-Defendantsdeprived her of a protected property interest in her employment when theydismissed her, since the heart of her Complaint is that she wasdismissed. The Court finds, however, that Plaintiff has not successfullyalleged that she was deprived of said property interest without dueprocess.
As previously stated, an essential principle of due process is that adeprivation of life, liberty and property be "preceded by notice and anopportunity for a hearing appropriate to the nature of the case". Mullanev. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652,656, 94 L.Ed. 865 (1950). The most basicrequirement of due process isthe opportunity for the employee to present evidence before he isdeprived of any significant property interest. Boddie v. Connecticut,401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971); see alsoBell v. Burson, 402 U.S. 535, 542, 91 S.Ct. 1586, 1591, 29 L.Ed.2d 90(1971). This principle requires "some kind of a hearing" prior to thedischarge of an employee who has a constitutionally protected propertyinterest in his employment. Roth, 408 U.S. at 569-570, 92 S.Ct., at2705; Perry v. Sindermann, 408 U.S. 593, 599, 92 S.Ct. 2694, 2698, 33L.Ed.2d 570 (1972). The Court now analyzes Plaintiff's claims againstthis backdrop.
1. Supervisory duties
Plaintiff's first claim is that her due process rights were violatedwhen she was stripped of her supervisory duties as a supervisor for GroupII of the Government Corruption Section of the SIB. However, under Perryand Boddie, an essential element of the due process clause is "that anindividual be given an opportunity for a hearing before he is deprived ofany significant property interest". See also Loudermill, 470 U.S. at544-45, 105 S.Ct. at 1494-95 (emphasis added).
In the case at bar, Plaintiff was merely told she would no longer be asupervisor. Her salary and job title and investigatory functions remainedintact; only her supervisory function changed. In fact, she was evenre-assigned to the Senator Marrero investigation two days later. TheCourt finds a significant property interest was not at stake here. SeeRoth, 408 U.S. at 569-570, 92 S.Ct. at 2705 (a hearing is required priorto the discharge of an employee); see also generally Brasslett v. Cota,761 F.2d 827 (1st Cir. 1985). Here, Plaintiff was not discharged or evensuspended — her position and salary remained unchanged — onlyher functions were altered. The Court sees no error in this.
2. Discharge with pay
Plaintiff's second argument is that her discharge with pay was effectedwithout due process. However, it has been held that suspension with payoftentimes does not raise due process concerns. See generally Bennett v.City of Boston, 869 F.2d 19 (1st Cir. 1989); and Loudermill, 470 U.S. at544-545, 105 S.Ct. at 1495; (The Supreme Court has held that "in thosesituations when the employer perceives a significant hazard in keepingthe employee on the job, it can avoid the problem by suspending withpay"). And there are of course, situations even where a post-deprivationhearing satisfies the constitutional due process requirements. See Ewingv. Mytinger & Casselberry. Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed.1088 (1950); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29S.Ct. 101, 53 L.Ed. 195 (1908). The question in the case at bar thenbecomes what kind of deprivation was effected.
It is clear that the significance of the private interest in retainingemployment cannot be gainsaid, and the Supreme Court has frequentlyrecognized the severity of depriving a person of the means oflivelihood. See Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct. 533,539, 42 L.Ed.2d 521 (1975); Goldberg v. Kelly, 397 U.S. 254, 264, 90S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970); Sniadach v. Family FinanceCorp., 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969). InLoudermill, supra, Justice Marshall, concurring with the majority,commented on the importance of a hearing "before the decision is made toterminate an employee's wages . . ." Id. at 1496. However, PlaintiffTorres was not stripped of her livelihoodwithout a hearing, since she was suspended with pay — she was notterminated.
A claimant has not been deprived of process merely because he wassuspended with pay. See generally, Arnett v. Kennedy, 416 U.S. 134, 94S.Ct. 1633, 40 L.Ed.2d 15 (1974), Loudermill, 470 U.S. at 544-545, 105S.Ct. at 1495. In the end, as discussed in Loudermill, Plaintiff wassuspended with pay, pending the hearing where she could espouse her viewsand present evidence in her favor. The Court sees no error in thiseither, and, having determined that no due process deprivation was workedby suspending Plaintiff with pay, the question then becomes whether thehearing Plaintiff was afforded prior to being finally discharged wasprocedurally adequate.
3. Pre-termination hearing
As previously discussed, both Roth, Perry and their progeny haveclearly held that "some kind of hearing" prior to the discharge of anemployee with a constitutionally protected interest in his employment isnecessary, Roth 408 U.S. at 569-750, 92 S.Ct. at 2057, Perry, 408 U.S. at599, 92 S.Ct. at 2698, and further, that the hearing must be held "at ameaningful time". Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187,1191, 14 L.Ed.2d 62 (1965). The opportunity to present reasons, either inperson or in writing, why a proposed action should not be taken, is afundamental due process requirement. See also Friendly, "Some Kind ofHearing," 123 U. Pa. L. Rev. 1267, 1281 (1975). The tenured publicemployee is entitled to oral or written notice of the charges againsthim, an explanation of the employer's evidence, and an opportunity topresent his side of the story. See Arnett, 416 U.S. at 170-171, 94 S.Ct.,at 1652-1653 (opinion of Powell, J.); Id., at 195-196, 94 S.Ct., at1664-1665 (opinion of White, J.). "To require more than this prior totermination would intrude to an unwarranted extent on the government'sinterest in quickly removing an unsatisfactory employee". Loudermill, 470U.S. at 546, 105 S.Ct. at 1495.
In the case at bar, a full investigation was launched into thecircumstances surrounding Plaintiff's absences. In November 1998, she wassupplied with a copy of the Complaint filed against her, a copy of thegeneral by-laws of the Justice Department regarding the procedures thatwould be followed, and notification of the aforementioned investigation.In January 1999, a letter was sent to Plaintiff regarding the decision tosuspend her with pay, and also informing her of her right to request ahearing to present evidence in support of her contentions. In April1999, a timely hearing was held where Plaintiff assisted accompanied byher attorney, where she was allowed to present evidence. Shortlythereafter, the Report of the Examining Officer ensued, which wasunfavorable to Plaintiff. In June 1999, Secretary of Justice FuentesAgostini adopted the hearing examiner's recommendations in his report andPlaintiff received a letter notifying her she was discharged. Said letteralso informed Plaintiff of her right to appeal before the AdministrationSystem Board of Appeals ("JASAP"), which she did.
The Court finds no error in this exchange. Plaintiff had an opportunityto, and did present evidence at the hearing before the hearing examiner.Therefore, the Court cannot conclude, as a matter of law, that Plaintiffwas deprived of her procedural due process rights. It can only concludethat the process afforded to Plaintiff before she was deprived of herlivelihood — her salary — was procedurally adequate. Inaddition, the fact that she appealed the final determination of thehearing examiner before JASAP effectivelyserves to trump her claim forlack of procedural due process for her permanent discharge. The Court canfind no violation of Plaintiff's procedural due process rights, findingthat she had a timely pre-termination hearing, and an opportunity toappeal the final determination. The Court therefore DISMISSES WITHPREJUDICE Plaintiff's claims for procedural due process against allco-Defendants.
F. Conspiracy claims under 42 U.S.C. § 1985
Plaintiff has brought forth claims of conspiracy under both § 1985and § 1983 against all of the co-Defendants. The statute in its mostpertinent portion describes conspiracy as follows:
[I]f two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly, or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . .
42 U.S.C. § 1985 (3) (West 2001). The Supreme Court has written onthis very section and has found that the language requiring the intent to"deprive of equal protection or equal privileges and immunities, meansthat there must be some racial, or perhaps otherwise class-based,invidiously discriminatory animus behind the conspirators' action."(Emphasis added.) Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct.1790, 1798, 29 L.Ed.2d 338 (1971); see also Kush v. Rutledge, 460 U.S. 719,103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Santana v. Calderón,188 F. Supp.2d 160 (D. Puerto Rico 2002) (Pieras, J.); Mass. v.McClenahan, 893 F. Supp. 225 (S.D.N.Y. 1995).
The Court finds that Plaintiff's allegations are simply insufficient tosupport a claim of conspiracy under the auspices of 42 U.S.C. § 1985(3). Plaintiff has failed to clear the first hurdle, since she failed toallege any racial or other class-based, discriminatory animus behind thealleged conspirators' actions, which is a necessary prerequisite in orderto bring forth a claim under this statute. Therefore, Summary Judgment isGRANTED in favor of all co-Defendants regarding Plaintiff's claims under42 U.S.C. § 1985 (c), and they are hereby DISMISSED WITH PREJUDICE.
G. Conspiracy claims under 42 U.S.C. § 1983
The First Circuit has defined a civil rights conspiracy as,
"a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties `to inflict a wrong against or injury upon another,' and `an overt act that results in damages.'"
Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988) (citing Hamptonv. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev'd in part onother grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980).See also Adickes v. Kress, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d142 (1970).
However, in an effort to control frivolous conspiracy suits under§ 1983, "federal courts have come to insist that the complaint statewith specificity the facts that, in the plaintiff's mind, show theexistence and scope of the alleged conspiracy. It has long been the lawin this and other circuits that complaints cannot survive a motion todismiss if they contain conclusory allegations of conspiracy but do notsupport their claims with references to material facts." Slotnick v.Staviskey, 560 F.2d 31, 33 (1st Cir. 1977) (citing Dunn v. Gazzola,216 F.2d 709, 711 (1st Cir. 1954)); Kadar Corp. v. Milbury, 549 F.2d 230(1stCir. 1977); Fletcher v. Hook, 446 F.2d 14 (3rd Cir. 1971); Johnsonv. Stone, 268 F.2d 803 (7th Cir. 1959); Ellingburg v. King, 490 F.2d 1270(8th Cir. 1974); Powell v. Jarvis, 460 F.2d 551 (2nd Cir. 1972).
Bare conclusory allegations of conspiracy are insufficient, and acomplaint that fails to "plead in some detail, through reference tomaterial facts, the relationship or nature of the cooperation between thestate actors and the private individuals," Tauvar v. Bar HarborCongregation of the Jehovah's Witnesses, Inc., 633 F. Supp. 741, 74 (D.Maine 1986), including how the conspiracy was made or "hatched", does notstate a valid claim for conspiracy. Slotnick, 560 F.3d at 33. Forconspiracy purposes, simply alleging that defendants acted jointly and inconcert and under color of law is insufficient. McGillicuddy v.Clements, 746 F.2d 76 (1st Cir. 1984); see also Smith v. Butler,507 F. Supp. 952 (D. Pa. 1981) (proof of conspiracy is an essentialelement); Morgan v. District of Columbia, 550 F. Supp. 465, aff'd,725 F.2d 125 (D. D.C. 1982) (there must be a concerted effort to deprivesomeone of his civil rights); Taliaferro v. Voth, 774 F. Supp. 1326 (D.Kan. 1991) (plaintiff must establish specific facts which show a meetingof the minds).
While it is clear that Plaintiff has alleged that she was deprived ofher constitutional rights, see Landrigan v. City of Warwick, 628 F.2d 736(1st Cir. 1980), the Court finds that Plaintiff has not allegedconspiracy with enough specificity to create a cause of action forconspiracy under § 1983 against any of the co-Defendants.
Against co-Defendant Torres Rivera, who was Plaintiff's supervisor, thefacts alleged are as follows:
1. That he retaliated against plaintiff with actions and omissions that culminated in her unlawful dismissal. Amended Complaint, Par. 6.
2. That the retaliation included defaming her with the purpose of undermining her credibility before her confidential sources, colleagues and potential witnesses in a court of law, to "create a pre-emptive strike" that would cause the investigation of Senator Aníbal Marrero Pérez to be "derailed". Amended Complaint, Par. 6.
3. That he ordered Plaintiff not to proceed with the investigation until it was cleared with the federal authorities. Amended Complaint, Par 38.
4. That there were rumors that Torres Rivera was close friends with high ranking members of the Puerto Rico House of Representatives. Amended Complaint, Par. 39.
5. That Torres Rivera called Plaintiff into a meeting with several people on October 23, 1998. Amended Complaint, Par. 39.
6. That Plaintiff went into a second meeting with Torres Rivera and José Ramos at the end of the same day. Amended Complaint, Par. 39.
7. That at said meeting, Torres Rivera stripped Plaintiff of her supervisory duties and assigned her to a new position. Amended Complaint, Pars. 47, 48.
8. That Plaintiff asked Torres Rivera for vacation time, and he in turn asked that Plaintiff prepare a written report of the status of the investigation. Amended Complaint, Par. 50.
9. That Torres Rivera re-assigned Plaintiff to the Senator Marrero investigation 2 days after he had suspended her, on October 26, 1998. Amended Complaint, Par. 58.
10. That Torres Rivera opened an investigation into Plaintiff's absences from work, and so notified Secretary of Justice José Fuentes Agostini. Amended Complaint, Pars. 61, 65.
11. That upon information and belief, Torres Rivera pressured the hearing officer into submitting a report adverse to Plaintiff. Amended Complaint, Par. 79.
Based on these facts, by themselves, the Court cannot possibly concludethat there was a conspiracy against Plaintiff. Notably absent are thespecific allegations of a meeting of the minds and overt acts that arenecessary in order to bring forth a conspiracy claim. "Upon informationand belief", and "that there are rumors" is simply insufficient, underthe case law, to properly allege a conspiracy claim under § 1983.Tauvar, 633 F. Supp. at 746; Slotnick, 560 F.3d at 33. The Court likewisefinds regarding to co-Defendants Fuentes Agostini, Rotger Sabat, andRiestra Cortés, whose factual allegations are fewer and even moreremote.
Regarding co-Defendant Fuentes Agostini, the Attorney General,the Amended Complaint states:
1. That he "took the decision" (sic) to suspend Plaintiff from work with pay, and to later dismiss Plaintiff without due process, and who also "took the decision" (sic) to infringe on Plaintiff's liberty and First Amendment rights, equal protection and due process rights. Amended Complaint, Par. 24.
2. That he signed a letter suspending Plaintiff from work in January 1999, and that he did so based on an allegedly frivolous disciplinary request made by co-Defendant Torres Rivera. Amended Complaint, Par. 76.
3. That said letter did not include any allegations that would warrant a suspension with pay. Amended Complaint, Par. 77.
4. That he signed a letter dismissing Plaintiff permanently from work in June 1999. Amended Complaint, Par. 80.
Regarding co-Defendant Rotger Sabat, the Deputy Attorney General, theAmended Complaint states:
1. He was personally involved in the decision-making process and execution of unlawfully dismissing and defaming Plaintiff Torres. Amended Complaint, Par. 23.
2. That in late October, Plaintiff sought a meeting with co-Defendant Rotger Sabat with the purpose of complaining to him about co-Defendant Torres Rivera's inaction regarding Senator Marrero's investigation. Amended Complaint, Par. 74.
3. That even though Plaintiff had scheduled a meeting with co-Defendant Rotger Sabat, she was unable to attend this meeting because of her son's chickenpox condition; Id.
4. That he refused to pay Plaintiff overtime, and thus these actions constituted confiscation of property without due process. Amended Complaint, Par. 82.
Regarding all the co-Defendants, in general, the Amended Complaintalleges that:
1. Defendants Hon. Angel E. Rotger Sabat, José A. Fuentes Agostini, Anibal Torres Rivera, at all times relevant, were engaged in a pattern of conduct of unlawful actions and omissions that sought to retaliate, neutralize or discredit SIB agents that at one time were investigating elected officials and/or their supporters that were engaged in organized crime and/or public corruption activities. Amended Complaint, Par. 7.
2. That upon information and belief, the motive behind their pattern of conduct was and is to cover up acts of public corruption of these high ranking elected officials and politicians such as Senator and Vice President of the Senate, Anibal Pérez Marrero, with the purpose of preventing adverse publicity that could erode their image before the Puerto Rico electorate. Amended Complaint, Par. 8.
In sum, although the Amended Complaint asserts that the threeco-Defendants conspired to deprive Plaintiff Torres of her civil rights,it is devoid of any specific references to material facts pertaining tothe alleged conspiracy necessary to establish a valid claim against anyof the co-Defendants under § 1983. See Slotnick, 560 F.2d. at 33.Particularly, the allegations are not sufficient to prove any meeting ofthe minds, or any acts in furtherance of the conspiracy. Mere accusationsthat co-Defendants' purposes were to "cover up acts of public corruption"and to "retaliate, neutralize or discredit SIB agents" that wereinvestigating them, without more, are not enough.
Therefore, the Court finds that Plaintiff's allegations do not supportthe existence of said conspiracy between the co-Defendants. At most, theallegations brought forth have stated single occurrences that, even ifthey were taken as a whole, would not support the existence of aconspiracy against Plaintiff. Therefore, Summary Judgment is GRANTED forall co-Defendants, and the conspiracy causes of action under § 1983against them are hereby DISMISSED WITH PREJUDICE.
H. Confiscation of salary
Plaintiff also brought forth a claim for confiscation of salary,alleging that only co-Defendant Rotger Sabat confiscated her salarywithout fair compensation and without due process of law. AmendedComplaint, Par. 128. However, the Court notes that in June 2001,Plaintiff was reinstated to her previous job, and was paid salaries notreceived during the time she did not work. That is to say, Plaintiff wasmade whole regarding both her salary and her job, as if she had neverbeen dismissed. See Plaintiff's Initial Scheduling Conference Memorandum(docket No. 116 at 2), and the "Settlement Agreement" signed by theparties pertaining to Plaintiff's claims in the Commonwealth Court andbefore the Appeals Board (JASAP) (Attachments to docket Nos. 112 and130). Therefore, since Plaintiff has been made whole regarding thismatter, the Court DISMISSES WITH PREJUDICE Plaintiff's claims forconfiscation of salary against co-Defendant Rotger Sabat, and thisdismissal sounds the death knell for her federal causes of action.
However, the Court finds that Plaintiff has remaining claims underPuerto Rico law, but since these claims are not federal claims, and thereis no independent basis for federal jurisdiction over Plaintiff'ssupplemental state law claims, the Court declines to exercise pendentjurisdiction over any of Plaintiff's claims under Puerto Rico law. See28 U.S.C. § 1367 (c)(3) (West 2000). Therefore, the Court herebyDISMISSES Plaintiff's pendent claims under Puerto Rico Law WITHOUTPREJUDICE.
I. Qualified immunity
To conclude, all co-Defendants have alleged that they are protected bythe doctrine of qualified immunity. The doctrine of qualified immunityprotects government officials who perform discretionary functions fromsuit and from liability for monetary damages under 42 U.S.C. § 1983.See Roldán-Plumey v. Cerezo-Suárez, 115 F.3d 58, 65 (1stCir. 1997). This defense is designed to create a rebuttable presumptionof qualified immunity to cover all executive officers that performdiscretionaryfunctions. Id.; Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct.1683, 40 L.Ed.2d 90 (1974). However, since the Court found no validcauses of action remaining in this Court, it need not reach the questionof whether Defendants are protected by the doctrine of qualifiedimmunity.
The Court finds that no genuine issues of material fact remain in thiscase so as to create a trial worthy issue. Therefore, it GRANTS theMotion for Summary Judgment in favor of all co-Defendants. Plaintiff'sfederal claims are hereby DISMISSED WITH PREJUDICE. Regarding Plaintiff'sclaims under Puerto Rico law, the Court declines to exercise pendentjurisdiction over them, and therefore DISMISSES the same, WITHOUTPREJUDICE.
1. Co-Defendants Torres Rivera, Fuentes Agostini and Rotger Sabatfiled their Motion for Summary Judgment on April 15, 2002. According toLocal Rule 311.5, all oppositions thereto were due 10 days thereafter. OnApril 29, 2002, three days after it was due, Plaintiff requested anotherof the many extensions of time she has already requested in this case, tofile an opposition on May 6, 2002, the day trial was originally scheduledto begin. Trial is now scheduled to begin on May 10, 2002, only threedays after Plaintiff wishes to file her opposition. The Court deniedPlaintiff's Motion due to her 11th hour request, and the close proximityof the trial date. Since Plaintiff did not comply with the originaldeadline to oppose the co-Defendants' Motion for Summary Judgment, it istherefore deemed unopposed.