106 F. Supp.2d 276 (2000) | Cited 0 times | D. Puerto Rico | July 6, 2000


Before the Court is a motion for summary judgment filed byDefendants the Municipality of Arecibo, its mayor Ángel RománVélez ("Román"), his wife ElenaMocoroa, and their conjugal partnership (collectively"Defendants") in this action brought pursuant to section1983.1 Plaintiff Wehran-Puerto Rico, Inc., is a PuertoRico corporation. It brings this action for money damages,alleging that Defendants violated its right to free speech underthe First Amendment and its due process rights under theFourteenth Amendment. It also brings claims under Puerto Ricocontract law, pursuant to the Court's supplementaljurisdiction.2

The Court reviews the record in the light most favorable toWehran and draws all reasonable inferences in its favor. SeeLeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). In April 1994, the Municipality contracted Wehran toadminister the town's landfill.3 In May 1998, the contractwas amended and the Municipality took over the day-to-dayoperations of the landfill; prior to this amendment, AtlanticWaste System, Inc. had been operating it. Under this amendment,Wehran's monthly fees were reduced from $90,000 to $40,000.Wehran provided technical supervision and monitored thelandfill's compliance with environmental laws and regulations.As such, Wehran was responsible for informing the Municipalityof any potential violations of these laws.4

The record indicates that the landfill has had a history ofproblems. In January 1996, Wehran, through its general managerJaime Jaén, sent a letter to Román informing him of deficienciesin the operation of the landfill. These problems included a lackof equipment; inadequate control of lixiviating liquids; failureto cover waste with back fill, resulting in an excessive amountof uncovered waste; poorly transitable roads within the fill;and improper control of erosion, standing water, and sediments.Wehran further informed Román that it had met with officialsfrom the Environmental Quality Board ("EQB") and the Solid WasteManagement Authority; that these officials had toured the fill;and that they were disturbed by the fill's problems. Wehraninformed Román that the fill was in a critical situation andthat it was imperative that the Municipality meet with AtlanticWaste to ensure that these problems be remedied.5

There has been a steady stream of communications on thesethemes. In November 1996, Wehran wrote a letter to the EQB onbehalf of the Municipality. In the letter, Wehran referred to ameeting it had with EQB officials to discuss the Municipality'scompliance plan and the fill's operational deficiencies. Wehraninformed the EQB that Atlantic Waste had taken some correctivemeasures, but that the company lacked adequate equipment andpersonnel.6 In August 1997, Wehran wrote to Román. Románhad written Wehran regarding a letter he had received from theEQB pointing out deficiencies in the fill's operation and givingthe Municipality thirty days to correct the problems. In itsresponse, Wehran informed Román that the deficiencieshighlighted by the EQB — lack of heavy equipment, failure tocover waste, lack of control of lixiviates, erosion-were theresponsibility of Atlantic Waste. Wehran also informed Románthat it had scheduled a meeting with the EQB to discuss possiblemeans of compliance.7 One week later Wehran and AtlanticWaste wrote jointly to the EQB on behalf of the Municipality. Inthe letter they addressed a corrective plan that the EQB haddevised for the fill and explained the measures that were beingtaken to comply with the plan. They asked the EQB for anadditional thirty days to bring the fill into compliance.8

In May 1998 the Municipality took over as the fill's operator.During the first week after this transition, Wehran wrote Románto inform him that the fill had approximately 1,000 tons ofuncovered and uncompacted waste. Wehran warned that the EQBmight be inspecting the fill some time soon; that its conditioncould be found to be in violation of a number of EQBregulations; and that the Municipality risked being fined forthese transgressions. Additionally, the improper operation ofthe fill created a malodorous situation and threatened to be abreeding ground for flies. Wehran urged the Municipality to takesteps before the situation became an environmentalemergency.9 Four days later, Wehran again wrote to Románinforming him that there had been a fire at the fill; that therewere five acres of exposed and uncompacted waste; that therecontinued to be a problem with the odors and flies; and thatthis constituted an emergency situation. Wehran recommended thatthe Municipality immediately contract additional heavy equipmentto compact the waste and purchase 3,000 cubic meters of fill tocover it.10

The EQB subsequently expressed its concerns to Wehran and theMunicipality regarding the fill. In June 1998, theMunicipality's city administrator and Wehran met with EQBofficials to avoid any fines or penalties. As a result of thesenegotiations, a compliance plan which Wehran had prepared wasagreed upon for the Municipality.11 By August 1998,however, the Municipality had not complied with this plan.Wehran wrote to Román to inform him that there wereapproximately eight acres, or 9,000 tons, of uncompacted anduncovered garbage at the fill; that there was a shortage ofheavy equipment to handle this waste; and that there continuedto be a problem with odors, flies, and potential public healthrisks. Wehran warned that the Municipality risked being finedfor violating EQB regulations and urged that action be taken toprevent the situation from becoming an environmentalemergency.12 In September 1998, the EQB entered a ceaseand desist order against the Municipality and proposed a $25,000fine for violation of environmental laws at the fill.13

In January 1999, Jaén took aerial photographs of the fill andshowed them to Román and other officials of the Municipality. OnFebruary 2, 1999, the EQB inspected the fill. The Wehranemployee who accompanied an EQB official on the inspection toldthem that the Municipality had not compacted waste for the lasttwo weeks, that it had not covered waste for over a month, andthat the Municipality could not handle this problem. The EQBofficial indicated that he would refer the case to his agency'slegal department. That same day, Jaén informed theMunicipality's city administrator and other officials about theEQB visit and about the comments the Wehran employee had made tothe EQB.14

On February 5, 1999, Jaén took more aerial photographs of thefill and showed them to Román. Jaén told him that the fill'ssituation was getting worse and that the Municipality was inviolation of the law. Wehran also sent Román a confidentialmemorandum on February 5, 1999, in which it pointed out thatthere were now20 acres of uncompacted garbage, that there were 25,000 tons ofuncovered garbage, that a bulldozer used for the compacting wasnot working, and that there continued to be a problem with odorsand flies. The memorandum further informed Román that theMunicipality risked fines for being in violation of EQBregulations and that the EQB official who had visited the sitewas referring the case to his legal division.15 OnFebruary 8, an official from the Solid Waste ManagementAuthority inspected the landfill. A Wehran employee informed theofficial of the problems that the Municipality was having. Jaéntold Municipality officials about what transpired during thisinspection.16

On February 16, 1999, Wehran received a letter from Romaninforming the company that, due to the inefficient operation andadministration of the landfill and due to the Municipality'sfinancial situation, Wehran's contract was being terminatedeffective immediately.17 Wehran claims that it had noindication prior to receiving this letter that the Municipalitywas considering terminating the contract.18

Wehran claims that the contract was terminated in retaliationfor its speaking out on the landfill's condition. In theirmotion for summary judgment, Defendants claim that Wehran'sspeech on this subject was not constitutionally protected andthat the contract was terminated for purely financial reasons.Defendants argue that therefore there was no First Amendmentviolation and that Wehran suffered no due process violationeither. They also claim that Román is entitled to qualifiedimmunity and that the claim against his wife should bedismissed. For the reasons set forth below, the Court grants inpart and denies in part the motion for summary judgment.


Summary judgment is appropriate if "there is no genuine issueas to any material fact and . . . the moving party is entitledto a judgment as a matter of law." See Fed.R.Civ.P. 56(c). Theparty moving for summary judgment bears the initialresponsibility of demonstrating the absence of a genuine issueof material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the movingparty has satisfied this requirement, the nonmoving party hasthe burden of presenting any facts that demonstrate a genuineissue for trial. Fed.R.Civ.P. 56(e); LeBlanc, 6 F.3d at 841.The nonmovant must do more than show "some metaphysical doubt asto the material facts." Matsushita Elec. Indus. Co., Ltd. v.Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89L.Ed.2d 538 (1986). An issue is genuine when, based on theevidence, a reasonable jury could return a verdict for thenonmoving party. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "The mereexistence of a scintilla of evidence in support of theplaintiffs position will be insufficient; there must be evidenceon which the jury could reasonably find for the plaintiff."Id. at 252, 106 S.Ct. at 2512.

1. First Amendment claim

A claim under section 1983 has two essential elements: (1) theconduct complained of must have been committed under color ofstate law, and (2) the conduct must have worked a denial ofrights that are protected by the Constitution or laws of theUnited States. Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.1995). With regard to the first element, the parties do notdispute that Defendants acted under color of state law. Thesecond element has two aspects: (i) there must have been adeprivation of federal rights and (ii)there must have been a causal connection between the conductcomplained of and the deprivation of rights.Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir.1989); Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985).

Wehran claims that Defendants' conduct violated his FirstAmendment rights. In the case of government employees, anindividual does not lose his First Amendment rights merelybecause he is a government employee. Tang v. Rhode Island,163 F.3d 7, 11 (1st Cir. 1998); Guilloty Perez v. FuentesAgostini, 37 F. Supp.2d 103, 108 (Puerto Rico 1999). Agovernment employee's claim that the government, acting as anemployer, violated his First Amendment rights is analyzed with athree-part balancing test. See Padilla-Garcia v. Rodriguez,212 F.3d 69, 78 (1st Cir. 2000); Hennessy v. City of Melrose,194 F.3d 237, 245-46 (1st Cir. 1999); Tang, 163 F.3d at 12;O'Connor v. Steeves, 994 F.2d 905, 912-13 (1st Cir. 1993).Government contractors are entitled to the same type ofbalancing. Bd. of County Comm'rs, Wabaunsee County v. Umbehr,518 U.S. 668, 685, 116 S.Ct. 2342, 2352, 135 L.Ed.2d 843 (1996).In Umbehr, the Supreme Court outlined the standard forreviewing the First Amendment claims of government contractorsas follows:

To prevail, [a plaintiff] must show that the termination of his contract was motivated by his speech on a matter of public concern, an initial showing that requires him to prove more than the mere fact that he criticized the [government] before [it] terminated him. If he can make that showing, the [government] will have a valid defense if it can show, by a preponderance of the evidence, that, in light of [its] knowledge, perceptions, and policies at the time of the termination, the [government] would have terminated the contract regardless of his speech. The [government] will also prevail if it can persuade the District Court that the [government's] legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake.

Id. at 685, 116 S.Ct. at 2352 (internal citation omitted). Inmaking this analysis, a court should grant deference to thegovernment's reasonable evaluations of its interest as acontractor. Id. at 678, 116 S.Ct. at 2349. In the spectrum ofFirst Amendment interests, government contractors "lie somewherebetween the case of government employees" and other individualswith "less close relationships with the government." Id. at680, 116 S.Ct. at 2350. For an independent contractor case, boththe speaker's and the government's interests will generally —but not always — be less strong. Id. at 684, 116 S.Ct. at2352.

At the first part of this analysis, the plaintiff must showthat the termination of the contract was motivated by thecontractor's speech on a matter of public interest. Id. at685, 116 S.Ct. at 2352. The question of what is a matter ofpublic interest is a legal, not a factual, determination.Hennessy, 194 F.3d at 246; Burnham v. lanni, 119 F.3d 668,679 (8th Cir. 1997). In determining whether a topic was a matterof public concern, a court must determine, based on the form,context, and content of the speech, as indicated by the wholerecord, whether the contractor was speaking as a citizen upon amatter of public concern, or merely upon a topic of personalinterest. Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct.1684, 1690, 75 L.Ed.2d 708 (1983); O'Connor, 994 F.2d at 912.If the issue is a personal matter and not one of public concern,the contract termination will generally not be subject tochallenge in federal court. Connick, 461 U.S. at 147, 103S.Ct. at 1690; O'Connor, 994 F.2d at 912. Speech dealing withthe government's mismanagement or lack of compliance withregulations is a matter of public concern. See Padilla-Garcia,212 F.3d at 79; Moran v. Washington, 147 F.3d 839, 849 (9thCir. 1998); Chappel v. Montgomery County Fire Protection,131 F.3d 564, 576 (6thCir. 1997); Propst v. Bitzer, 39 F.3d 148, 152 (7th Cir.1994); O'Connor, 994 F.2d at 915; Conaway v. Smith,853 F.2d 789, 796 (10th Cir. 1988); Guilloty Perez, 37 F. Supp.2d at109.

In the present case, Wehran claims it was terminated becauseof its speech on the alleged operational deficiencies that theMunicipality was having with its landfill. This speech has to dowith allegations of the Municipality's alleged mismanagement andfailure to comply with environmental laws. These are issues ofpublic concern. Moreover, the adequacy of a landfill is aquestion of public health. Thus, Wehran's speech was a matter ofpublic concern. See Padilla-Garcia, 212 F.3d at 79; Moran,147 F.3d at 849; Chappel, 131 F.3d at 576; Propst, 39 F.3dat 152; O'Connor, 994 F.2d at 915; Conaway, 853 F.2d at 796;Guilloty Perez, 37 F. Supp.2d at 109; cf. Mid-American Wastev. City of Gary, Ind., 49 F.3d 286, 291 (7th Cir. 1995) (Notingthat waste disposal is a highly regulated industry).

Defendants argue that because Wehran communicated to Román andother officials of the Municipality in private, thiscommunication was a private matter and not one of publicconcern. A plaintiffs use of private channels to makeexpressions will not preclude the expression from beingconsidered a matter of public concern. Rankin v. McPherson,483 U.S. 378, 386 n. 11, 107 S.Ct. 2891, 2898 n. 11, 97 L.Ed.2d315 (1987); Givhan v. Western Line Consolidated Sch. Dist.,439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619(1979); Lee v. Nicholl, 197 F.3d 1291, 1295-96 (10th Cir.1999) (Internal memo on traffic safety and snow removal,although addressed only to employee's supervisors, held to be ona matter of public concern); Dill v. City of Edmond, OK,155 F.3d 1193, 1202 (10th Cir. 1998); Schultea v. Wood,27 F.3d 1112, 1119 (5th Cir. 1994); Conaway, 853 F.2d at 797; seealso Hennessy, 194 F.3d at 242-43, 246 (Comments made inone-on-one private conversations with a co-worker and with asupervisor were considered to be on matters of public concern);O'Connor, 994 F.2d at 917 n. 10 (A government employee may beacting responsibly by taking steps to minimize disruption bylimiting dissemination of his comments to the public officialsmost directly involved). Thus, the fact that Wehran'scommunications were made privately or through confidentialmemoranda does not prevent them from being expressions onmatters of public concern.19

In addition to showing that its speech was on a matter ofpublic concern, Wehran must also show that the contract'stermination was motivated by the speech on this matter. SeeUmbehr, 518 U.S. at 685, 116 S.Ct. at 2352; Mt. Healthy CitySch. Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50L.Ed.2d 471 (1977). Circumstantial evidence may be sufficient tomake this showing. See Padilla-Garcia, 212 F.3d at 75-76;Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991). Closechronological order between a plaintiff's protected speech and adefendant's alleged retaliatory conduct may warrant an inferenceof retaliation. See Ferranti v. Moran, 618 F.2d 888, 892 (1stCir. 1980);McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979); GuillotyPerez, 37 F. Supp.2d at 111.

In the present case, there is evidence that in early Februarya Wehran employee told an EQB official that the landfill wasfacing serious problems and that the Municipality could nothandle these problems; that Wehran informed the Municipalityboth orally and in writing about the landfill's condition; andthat Jaén personally told Municipality officials about thelandfill's problems and about the Wehran employee's comments tothe EQB official. The evidence further indicates thatapproximately one week later, the Municipality terminated itscontract with Wehran. The timing of the termination of thecontract, following closely upon Wehran's expressions on thelandfill's condition, is sufficient to raise an inference thatthe termination was done in retaliation for Wehran's exercisingof its First Amendment rights. Thus, there is a genuine issue offact that as to whether the contract's termination was motivatedby Wehran's speech.

Even when a plaintiff can show that the termination of hiscontract was motivated by his speech on a matter of publicconcern, the state actor will have a valid defense if it canshow by a preponderance of the evidence that, in light of itspolicies and knowledge at the time of the termination, thecontract would have been terminated regardless of the speech.Umbehr, 518 U.S. at 685, 116 S.Ct. at 2352; Mt. Healthy, 429U.S. at 287, 97 S.Ct. at 576. In the present case Defendants areunable to successfully make this showing. The thrust of theirargument on this point is that the contract with Wehran wasterminated because the Municipality was suffering financialhardship and that the landfill did not generate enough funds topay Wehran's fees. They have submitted the statements of Románand the city administrator in support of this assertion.20These statements constitute evidence that the Municipality wouldhave terminated Wehran's contract regardless of its speech onthe landfill.

In response, Wehran has adduced evidence that the landfill didgenerate enough funds to cover its expenses.21 Moreover,in his deposition, Román testified that prior to cancelling thecontract, he discussed this issue with the city administrator,the director of finance, and the municipal clerk.22 Thedirector of finance, however, stated in her deposition that shedid not participate in the decision to terminate Wehran'scontract, that no one ever discussed with her the Municipality'sfinancial problems in general, and that she was unaware ofproblems in being able to pay Wehran.23 The municipalclerk also contradicted Román's testimony; she testified thatshe was unaware of why the contract was terminated.24 Theevidence adduced by Wehran is sufficient to create a genuineissue of fact as to whether the Municipality actually terminatedthe contract for economic reasons. Accordingly, there is agenuine issue as to whether the contract would have beenterminated regardless of Wehran's speech.

A state actor has a second line of defense in these cases. Itmay also prevail if it can show that its legitimate interests ascontractor outweigh the free speech interests of the plaintiff.Umbehr, 518 U.S. at 685, 116 S.Ct. at 2352; Pickering v. Bd.of Educ. of Township High Sch., 391 U.S. 563, 568, 88 S.Ct.1731, 1734-35, 20 L.Ed.2d 811 (1968). The court must balance theinterests of the plaintiff's speech against the government'sinterests in avoiding disruptions and inefficiencies in itsoperations. O'Connor, 994 F.2d at 915;Guilloty Perez, 37 F. Supp.2d at 110. In the present case,Defendants have not availed themselves of this defense in theirmotion for summary judgment. Thus, at this stage it isunnecessary to balance Wehran's free speech interests againstthe Municipality's interest in avoiding disruptions andinefficiencies.

In conclusion, Wehran speech concerned a matter of publicconcern; there is sufficient evidence to infer a causal linkbetween the speech and the termination; and there is a genuineissue of fact as to Defendants' proffered reason that thecontract was terminated for economic reasons. There is a genuineissue as to the motivation for the termination of the contract.Thus, the Court denies the motion for summary judgment onWehran's First Amendment claim.

2. Qualified immunity

Defendants argue that Román is entitled to qualified immunity.The qualified immunity doctrine protects state officials fromcivil liability under section 1983 so long as their conduct doesnot violate a clearly established constitutional right of whicha reasonable official would have been cognizant. Harlow v.Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d396 (1982); Ringuette v. City of Fall River, 146 F.3d 1, 5(1st Cir. 1998). A state actor claiming qualified immunity mustdo so either under a theory that the asserted constitutionalright was not clearly established or under the theory that hisconduct satisfies the test of objective legal reasonableness.Camilo-Robles v. Hoyos, 151 F.3d 1, 5-6 (1st Cir. 1998). Thequestion in this analysis is not whether the right is clearlyestablished at a highly abstract level; rather, the question iswhether, under the circumstances at hand, a reasonable officerwould understand that his conduct was violating a constitutionalright. Berthiaume v. Caron, 142 F.3d 12, 15 (1st Cir. 1998).This test is purely an objective one. Crawford-El v. Britton,523 U.S. 574, 587-91, 118 S.Ct. 1584, 159193, 140 L.Ed.2d 759(1998); Brown v. Ives, 129 F.3d 209, 211 (1st Cir. 1997).

It has long been clearly established that government actiontaken in retaliation for an individual's exercise of his FirstAmendment rights is a constitutional violation. SeeCrawford-El, 523 U.S. at 592-93, 118 S.Ct. at 1594; Mt.Healthy, 429 U.S. at 283-84, 97 S.Ct. at 574; Ferranti, 618F.2d at 892 n. 4; McDonald, 610 F.2d at 18. Additionally, itis clearly established that the government may not terminate anindependent contractor in retaliation for the contractor'sexercise of its First Amendment rights. El Dia, Inc. v.Rossello, 165 F.3d 106, 110 (1st Cir. 1999). In the presentcase, there are factual issues as to Román's motives forterminating the contract with Wehran. Defendants have adducedevidence to show that the motivation for the termination waspurely economic. Wehran has presented evidence to show thatthere was a retaliatory motivation behind the termination. Thequalified immunity standard is an objective one. Crawford-El,523 U.S. at 587-91, 118 S.Ct. at 1591-93. However, grantingqualified immunity at the summary judgment stage may not beappropriate where there is a factual issue as to an essentialelement of the plaintiffs claim. Swain v. Spinney, 117 F.3d 1,10 (1st Cir. 1997). An essential element to Wehran's FirstAmendment claim is whether there was a retaliatory motive forthe termination of the contract. In part 1., above, of thisopinion and order, the Court denied Defendants' motion forsummary judgment on the merits because there is a factual issueas to Román's motive. Because of this same factual issue, theCourt also denies the request for qualified immunity.

3. Due process claim

Procedural due process

Wehran also claims that the termination of the contractviolated its substantive and procedural due processrights.25 A court's initial inquiry in a due process claimis to determine whether the plaintiff has been deprived of aprotected property or liberty interest. Am. Mfr. Mut. Ins. Co.v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 989, 143 L.Ed.2d130 (1999); Hennessy, 194 F.3d at 249. In the case before theCourt, Wehran claims that its contract gave it a propertyinterest. Property interests entitled to constitutionalprotection are generally defined by extra-constitutional sourcessuch as state law. Bd. of Regents of State Colleges v. Roth,408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972);Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 53 (1stCir. 1990). In Perry v. Sindermann, 408 U.S. 593, 92 S.Ct.2694, 33 L.Ed.2d 570 (1972), a companion case to Roth, theSupreme Court held that the concept of property "denotes a broadrange of interests that are secured by `existing rules orunderstandings.'" 408 U.S. at 601, 92 S.Ct. at 2699 (quotingRoth, 408 U.S. at 577, 92 S.Ct. at 2709). Thus, a writtencontract with the government may create a property interest.Perry, 408 U.S. at 601, 92 S.Ct. at 2699.

Notwithstanding the Supreme Court's expansive language inPerry and Roth regarding what constitutes property, thelower courts have been hesitant to find that every governmentcontract is, by itself, sufficient to create a protectedproperty interest. See Mid-American Waste, 49 F.3d at 289-90;Linan-Faye Constr. Co. v. Hous. Auth. of City of Camden,49 F.3d 915, 931-32 (3rd Cir. 1995); S & D Maintenance Co. v.Goldin, 844 F.2d 962, 965-69 (2nd Cir. 1988); San BernardinoPhysicians' Services Med. Group v. County of San Bernardino,825 F.2d 1404, 1407-10 (9th Cir. 1987). Courts have found aproperty interest arising out of a contract only when thecontract confers a special status such as employment or anentitlement to welfare payments. See S & D Maintenance, 844F.2d at 96667; San Bernardino, 825 F.2d at 1408-09. Commercialcontracts, however, will generally not create a propertyinterest. S & D Maintenance, 844 F.2d at 966-67 ("An interestin enforcement of an ordinary commercial contract with a stateis qualitatively different from the interests the Supreme Courthas thus far viewed as `property' entitled to procedural dueprocess protection."); San Bernardino, 825 F.2d at 1409-10("[T]he farther the purely contractual claim is from an interestas central to the individual as employment, the more difficultit is to extend it constitutional protection without subsumingthe entire state law of public contracts.").

The First Circuit has been similarly reluctant to find dueprocess violations in breach of contract claims against thegovernment. See Boston Envtl. Sanitation Inspectors Ass'n v.City of Boston, 794 F.2d 12, 13 (1st Cir. 1986) (per curiam);Cloutier v. Town of Epping, 714 F.2d 1184, 1191 n. 4 (1st Cir.1983); Arena Del Rio, Inc. v. Gonzalez, 704 F.2d 27, 28 (1stCir. 1983) (per curiam); Casey v. Depetrillo, 697 F.2d 22, 23(1st Cir. 1983) (per curiam); Jimenez v. Almodovar,650 F.2d 363, 370 (1st Cir. 1981) ("A mere breach of contractual right isnot a deprivation of property without constitutional due processof law."); Bleeker v. Dukakis, 665 F.2d 401, 403 (1st Cir.1981). The proper remedy for a plaintiff is a state law suit forbreach of contract. Bleeker, 665 F.2d at 403.

This aversion by the courts to permit due process claims foran alleged breach of contract is understandable. If everydisgruntled government contractor were allowed to allege aconstitutional violation for perceived breaches by thegovernment,the federal courts would be awash in state law contract claims.Linan-Faye, 49 F.3d at 932; Christ Gatzonis Elec. v. New YorkCity Sch. Constr. Auth., 23 F.3d 636, 641 (2nd Cir. 1994);Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 782 (2ndCir. 1991); Reich v. Beharry, 883 F.2d 239, 242 (3rd Cir.1989). Just as the Fourteenth Amendment should not be a "`fontof tort law,'" see Daniels v. Williams, 474 U.S. 327, 332, 106S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (quoting Paul v. Davis,424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976)),neither should it be a font of contract law.

In the present case, Wehran entered into what appeared to be agarden variety commercial contract to provide the Municipalityof Arecibo with services related to the landfill. Wehran hasproffered no reason — and the Court cannot conceive of one — tojustify a holding that the contract created a protectableproperty interest or that Wehran otherwise has a viableprocedural due process claim for the alleged breach by theMunicipality. Therefore, the procedural due process claim isdismissed.

b. Substantive due process

Wehran also claims that it has suffered a substantive dueprocess violation. A plaintiff may bring a substantive dueprocess claim under one of two theories; he must show either (1)that he was deprived of an identifiable property or libertyinterest protected under the Fourteenth Amendment or (2) thatthe state's action shocks the conscience. Cruz-Erazo v.Rivera-Montanez, 212 F.3d 617, 621-22 (1st Cir. 2000). Asdiscussed above, Wehran does not have a protectable propertyinterest. Thus, it must show that Defendants' conduct wasshocking to the conscience. Conduct which meets this standardincludes state action which is "arbitrary and capricious;" whichruns counter to concepts of ordered liberty; which appears incontext "shocking or violative of universal standards ofdecency;" or which is egregiously unacceptable or outrageous.Id. (quoting Amsden v. Moran, 904 F.2d 748, 753-54 (1st Cir.1990) (internal quotations omitted)). The conduct complained ofmust be more than merely offensive to "`fastidious squeamishnessor private sentimentalism.'" Pittsley v. Warish, 927 F.2d 3, 7(1st Cir. 1991) (quoting Rochin v. California, 342 U.S. 165,172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952)).

In the present case, Wehran has adduced facts which may makeout a case that the Municipality's termination of the contractconstituted a breach. Even if all of Wehran's allegations andevidence are ultimately found to be credible by the factfinder,the scenario which Wehran has painted is not so egregious orconscience-shocking as to constitute a substantive due processviolation. Thus, the Court dismisses this claim. Cf.Mid-American Waste, 49 F.3d at 290-92 (Contract dispute betweenmunicipality and company contracted to operate landfill did notgive rise to a substantive due process claim); El Dia, Inc. v.Rossello, 20 F. Supp.2d 296, 307-08 (P.R. 1998), aff'd165 F.3d 106 (1st Cir. 1999) (State actor terminating governmentcontractor was entitled to qualified immunity on substantive dueprocess claim).

4. Puerto Rico law claims

Wehran also brings claims under Puerto Rico contract law,pursuant to the Court's supplemental jurisdiction. Thedetermination whether to exercise supplemental jurisdiction overlocal law claims is left to the broad discretion of the districtcourt. Vera-Lozano v. Int'l Broadcasting, 50 F.3d 67, 70 (1stCir. 1995). A district court may decline to exercisesupplemental jurisdiction if a claim raises a novel or complexissue of state law, the claim substantially predominates overthe federal question claims, or there are other exceptionalcircumstances which constitute compelling reasons to declinejurisdiction. 28 U.S.C.A. § 1367(c).The Court finds that the circumstances of the present casejustify a decision to decline to hear the local law claims.Wehran's federal law claim involves a three-part test whichinvolves a shifting of burdens and a balancing of interests todetermine whether First Amendment rights have been violated.This is a complicated test which, by itself, will notnecessarily be clear and straightforward for a jury to follow.The inclusion of the contract claims would inject yet anotherfactor into this already complicated test, substantiallyincreasing the risk of confusion to the jury. Moreover, thesecontract law claims would require an extensive analysis of theterms of the contract and the parties' alleged compliance withit. This focus on the issue of breach could substantiallypredominate over the First Amendment claims. Lastly, it appearsthat Defendants' defense to the contract law claims raisescomplex issues of Puerto Rico law.26 Thus, the Court findsthat, in the interest of clarity and justice, it should declineto hear the Puerto Rico law claims.27 They are dismissedwithout prejudice.

5. Claims against Elena Mocoroa

Lastly, Plaintiff has also named Roman's wife Elena Mocoroaand the couple's conjugal partnership as defendants. Defendantsargue that there is no basis for a suit against Mocoroa. TheCourt agrees. The spouse of a state actor may not be heldindividually liable for the section 1983 claims of the stateactor. Lensel Lopez v. Cordero, 659 F. Supp. 889, 891 (P.R.1987). Although the inclusion of the couple's conjugalpartnership as a defendant is appropriate, Mocoroa is not aproper defendant. See id. Accordingly, the Court dismisses herfrom this action.

WHEREFORE, the Court grants in part and denies in partDefendants' motion for summary judgment (docket no. 15). Partialjudgment shall be entered dismissing with prejudice Plaintiffsdue process claims and all federal law claims against ElenaMocoroa. The Puerto Rico law claims shall be dismissed withoutprejudice.


1. 42 U.S.C.A. § 1983 (West Supp. 2000).

2. 28 U.S.C.A. § 1367 (West 1993).

3. Docket no. 15, exhibit 4 of exhibit C; docket no. 26,exhibit 1.

4. Docket no. 15, exhibit A; docket no. 26, exhibit 1.

5. Docket no. 15, attachment 1 to exhibit A.

6. Docket no. 15, attachment 2 to exhibit A.

7. Docket no. 15, attachment 3 to exhibit A.

8. Docket no. 15, attachment 4 to exhibit A.

9. Docket no. 15, attachment 5 to exhibit A.

10. Docket no. 15, attachment 6 to exhibit A.

11. Docket no. 26, exhibit 1.

12. Docket no. 15, attachment 7 to exhibit A; docket no. 26,exhibit 1.

13. Docket no. 26, exhibit 1.

14. Docket no. 26, exhibit 1.

15. Docket no. 26, exhibits 1 & 2.

16. Docket no. 26, exhibit 1.

17. Docket no. 26, exhibit 3.

18. Docket no. 26, exhibit 1.

19. Defendants argue that Wehran did not intend that itscommunication be a matter of public concern and that thememorandum of February 5, 1999, was merely part of regulardiscourse over the parties' contract. Some courts haveconsidered a speaker's intent in determining whether theexpression constitutes a matter of public concern. See Davis v.Ector County, Tex., 40 F.3d 777, 780 (5th Cir. 1994): Breuerv. Hart, 909 F.2d 1035, 1038-39 (7th Cir. 1990); see alsoO'Connor, 994 F.2d at 913 n. 4. The First Circuit hasexplained, however, that when the topic is "clearly a legitimatematter of inherent concern to the electorate," the court neednot inquire into the speaker's motives. See O'Connor, 994 F.2dat 913-14 (emphasis in original). An inquiry into the speaker'ssubjective intent may be appropriate when the topic, on thebasis of the expression's content alone, is not a matter ofinherent public concern. Id. at 914. In the present case,because the landfill's condition is a topic of inherently publicconcern, an analysis into Wehran's intent is not necessary.

20. Docket no. 15, exhibits A & B.

21. Docket no. 26, exhibits 1 & 10.

22. Docket no. 26, exhibit 8, at 67-68.

23. Docket no. 26, exhibit 9, at 39, 59-60, 63.

24. Docket no. 26, exhibit 6, at 65.

25. It has not yet been decided whether due processrequirements apply to Puerto Rico under the Fifth or FourteenthAmendment. See Tenoco Oil Co. v. of Dep't of Consumer Affairs,876 F.2d 1013, 1017 n. 9 (1st Cir. 1989); Santana v. Collazo,714 F.2d 1172, 1174 n. 1 (1st Cir. 1983); Munoz Arill v. Maiz,992 F. Supp. 112, 115 n. 4 (P.R. 1998). The Court need notresolve this issue, as the analysis is the same under eitheramendment. See Santana, 714 F.2d at 1174 n. 1; Munoz Arill,992 F. Supp. at 115 n. 4.

26. Docket no. 15, exhibit G-1, para. 4.

27. The Court notes that any prejudice to Wehran is minimal,for a section 1983 plaintiff is entitled to the same generalclass of damages as is a breach of contract plaintiff. CompareMemphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307,106 S.Ct. 2537, 2543, 91 L.Ed.2d 249 (1986) (Section 1983damages are intended to compensate plaintiff for the injuriessuffered by the constitutional violation), with Noble v.Corporacion Insular de Seguros, 738 F.2d 51, 54 (1st Cir. 1984)(Noting that breach of contract plaintiff could seek recoveryfor losses actually suffered and for lost profit).

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