United States Court of Appeals
For the First Circuit
No. 08-2530
SEGUNDO MELÉNDEZ-GARCÍA,
Plaintiff, Appellant,
v.
JORGE L. SÁNCHEZ; GEORGE V. HILLYER;
CARLOS G. RAMOS-BELLIDO; JIMMY TORRES;
ARTEMIO DE JESÚS; JOHN DOE; A-Z INS. CO.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Barbadoro,* District Judge.
Luis A. Meléndez-Albizu, with whom Gerardo De Jesús-Annoni and
Law Offices of Luis A. Meléndez-Albizu were on brief, for
appellant.
Efraín Maceira-Ortiz, for appellees.
December 10, 2010
*
Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. On April 30, 2001, Segundo
Meléndez-García ("Meléndez"), a Reserve Officers' Training Corps
("ROTC") officer, was assaulted during a student protest on the
University of Puerto Rico's Río Piedras campus ("the UPR-RP
campus"). Due to the university's non-confrontation policy, Puerto
Rico Police Department ("PRPD") officers were unable to come to his
aid. In April 2002, Meléndez sued various university officials
pursuant to 42 U.S.C. § 1983, alleging, among other things, that
they had violated the equal protection and due process clauses of
the Fourteenth Amendment by failing to protect him from injury. He
also asserted various state-law claims. After protracted
discovery, the district court granted the defendants' motion for
summary judgment on the federal-law claims and dismissed the state-
law claims because it concluded that the parties were not diverse.
Meléndez now contends that the district court (1) abused
its discretion twice when ruling on discovery motions -- first, by
refusing to issue sanctions under Fed. R. Civ. P. 37 for the
defendants' alleged "massive discovery misconduct," and second, by
failing to grant Meléndez's motion to set aside summary judgment
based on the same discovery misconduct; (2) improperly dismissed
Meléndez's federal civil rights claims on the ground of qualified
immunity; and (3) committed clear error in determining that there
was no diversity jurisdiction. For the reasons stated hereinafter,
we affirm all of the district court's rulings.
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I. Background
A. Facts
1. The Non-Confrontation Policy
Historically, relations between ROTC members and some
non-ROTC students at UPR have been marked by conflict and tension.
For example, during a 1969 protest sparked by the imposition of a
one-year sentence on a defendant who refused to submit to induction
into the armed forces, students at UPR-RP marched into an ROTC
building and proceeded to burn and otherwise destroy doors,
windows, and glass display cabinets, among other things. During
subsequent days, multiple ROTC cadets were assaulted and
threatened. As a result of this violence, the university suspended
Army ROTC classes for approximately three months. After one
protest in 1971, an ROTC cadet was killed. In 1984, a bomb was
discovered in the ROTC facility.
In response to the violence and confrontation on the UPR-
RP campus, former chancellor Dr. Juan R. Fernández issued a
statement encapsulating what came to be known as the "non-
confrontation policy" ("NCP"). The policy evolved over time, and
was eventually issued in written form in 2005. The translation of
the preamble to the written NCP notes,
The University of Puerto Rico, and
particularly the Río Piedras Campus,
historically has been the reflection and
participant of [sic] the fundamental duties
and conflicts of the Puerto Rican society. In
some cases[,] events happened that generated
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tragic results for the University and the
country. These events led us as university
members to the introspection and search of
[sic] some understanding as to how to avoid
violence, the entrance of the Police to [sic]
the University and the external improper
intervention in the University affairs.
The body of the policy explains that the university community is
committed to avoiding confrontation by, among other things,
establishing as "institutional policy" a practice of "us[ing] all
available resources to avoid the intervention of the Puerto Rico
Police in university affairs." Although the NCP was not issued in
written form until 2005, the parties agree that the unwritten NCP
that was in force in 2001 prohibited PRPD officers from entering
the campus without the permission of a university administrator.1
2. The Assault on Meléndez
During the months leading up to Meléndez's assault, the
tensions between non-ROTC students and ROTC members were evident.
The Navy's use of Vieques for weapons testing sparked many anti-
Navy demonstrations on campus. In February 2001, the President of
UPR-RP's student government wrote a letter demanding that ROTC
members not be allowed to wear uniforms on campus. In April 2001,
two non-commissioned officers ("NCOs") who went to the UPR-RP
campus to pick up mail were harassed and threatened by ROTC
1
Defendants claim that the chancellor of UPR-RP was the only
person authorized to call the PRPD to campus; Meléndez claims that
the President of UPR could override the determination of a
chancellor on this issue.
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opponents. ROTC officers and NCOs were regularly harassed and
threatened when they wore their uniforms on campus.
On April 30, 2001, the day of the assault, defendant Dr.
George Hillyer, who was then the chancellor of UPR-RP, had planned
to be away from the campus. He had confirmed with a student group
before leaving that no demonstrations were planned for that day.
At 5:30 that morning, several ROTC cadets and NCOs began to perform
physical training exercises in the UPR track and field area. A
number of protesters began demonstrating on a bridge that leads to
this area. In response, the officers in charge, Major Jorge Más
and Lt. Col. José Martínez, decided to move the exercises to the
ROTC compound. The protesters, however, also moved. As a result,
cadets and officers were prohibited from entering or leaving the
compound.2 Protesters intercepted and beat up one cadet who
attempted to flee through a hole in a fence. The demonstrators
also hurled rocks, eggs, and mangoes at the compound.
At some point, Sgt. José L. González arrived on the
scene. As he stood inside a gazebo near a parking lot, a group of
demonstrators spotted him and proceeded to push and shove him. Lt.
Col. José Miguel Pizarro, who believed that one of his men was in
danger, moved toward the gazebo to provide assistance. At that
point, Meléndez entered the fray to assist Pizarro, his commanding
officer. González was able to get into his car and drive away, but
2
One ill cadet, however, was permitted to leave.
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Pizarro and Meléndez were left in the middle of a group of
demonstrators, who began to kick and hit them. As the two men
walked across the parking lot, a distance of about 150 meters,
demonstrators continued to punch and kick them. According to
Meléndez, the protesters dissipated after he threatened to press
federal charges.
After the protest, Meléndez asked a PRPD officer why he
had not intervened, and the officer responded that the university
had not authorized entry. Although neither the Campus Guard nor
the PRPD arrested or detained any of the protesters, federal
authorities eventually arrested Pedro Colón Almenas. Colón Almenas
was charged with, and found guilty of, assaulting a federal
officer.
B. Procedural History
Meléndez filed suit in federal court on April 30, 2002.
In October 2004, after two years had passed without any reports to
the court on the status of the case, the court ordered Meléndez to
show cause as to why his case should not be dismissed for lack of
prosecution. After Meléndez complied, the court decided not to
dismiss the case but warned Meléndez that he had to keep the court
apprised of the status of the case and bring any discovery disputes
to the court without delay. On January 10, 2005, the parties
submitted a discovery plan, proposing to coordinate discovery in
the present case and a parallel state court action. The court
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rejected this plan, and set the discovery deadline for May 15,
2005. The discovery deadline was later extended until August 15,
2005.
On September 7, 2005, the defendants filed for summary
judgment. On November 28, 2005, as part of discovery in the
parallel state case, the defendants informed Meléndez that
approximately 390,390 pages of documents were available for review.
Believing that these documents were relevant to his federal suit,
Meléndez filed a motion requesting that the court enter a default
judgment against the defendants, or else impose other "severe
sanctions" under Rule 37. The court declined, without explanation,
to take either action. Meléndez now argues that the district court
abused its discretion in denying his motion. See Section II.A.ii,
infra.
On August 23, 2007, the court filed its order granting
summary judgment to the defendants on their federal claims. See
Meléndez-García v. Sánchez, No. 02-1646, slip op. at 32 (D.P.R.
filed Aug. 23, 2007) ("Meléndez I"). Meléndez appeals this
judgment. See Section II.B, infra.
The court declined to rule on the state-court claims in
its August 23, 2007 order, instead ordering Meléndez to provide
evidence of his domicile as of April 30, 2002 so that the court
could determine whether it had diversity jurisdiction. After
Meléndez produced the required evidence, the court concluded that
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he was not a Texas domiciliary as of the date he filed his
complaint, and thus that there was no diversity of citizenship
between him and the defendants. See Meléndez-García v. Sánchez,
No. 02-1646, Doc. No. 243, slip op. at 1 (D.P.R. Sept. 30, 2008)
("Meléndez III"). Meléndez appeals this dismissal. See Section
II.C, infra.
The same day that it ruled on the jurisdiction issue, the
court denied Meléndez's motion for reconsideration of the summary
judgment order. See Meléndez-García v. Sánchez, No. 02-1646, Doc.
No. 242, slip op. at 1 (D.P.R. Sept. 30, 2008) ("Meléndez II").
Meléndez now claims that the district court erred in refusing to
set aside its summary judgment ruling and allow the parties to
continue discovery given the alleged discovery abuse. See Section
II.A.iii, infra.
II. Discussion
A. Discovery Abuse
Meléndez makes two related claims regarding discovery:
(1) the district court abused its discretion in refusing to grant
a Rule 37 sanction -- either an entry of default or another
exclusionary remedy -- after the defendants failed to produce
certain documents in a timely fashion, and (2) the district court
abused its discretion in refusing to set aside its summary judgment
given the defendants' failure to produce those same documents.
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After a brief discussion of the facts upon which these claims are
based, we address, and reject, each of them in turn.
1. Background
Pursuant to a state court order, the defendants informed
Meléndez on November 28, 2005 that approximately 390,390 pages of
new documents were available for review. This set of documents,
produced in response to a state discovery request that was
apparently broader than the federal request, see Meléndez II, slip
op. at 5 n.4, included a 1970 Report by the Puerto Rico Civil
Rights Commission on the ROTC program at UPR.3 The 1970 Report
documents various incidents of harassment of and violence against
ROTC members. Meléndez argues that this document, as well as the
remainder of the 390,390 pages of documents in the set, should have
been disclosed both as part of the defendants' Rule 26 mandatory
disclosures and in response to Meléndez's August 15, 2005 federal
discovery request, which asked for "[a]ll documents, objects or
things evidencing communications between the ROTC and the UPR or
UPR-RP regarding incident[s] of harassment at the UPR-RP against
ROTC-RP cadets, officers and non-commissioned officers from 1965
until the present." Although he opened only one of the boxes that
the defendants had made available to him, Meléndez claims that it
3
Previously, in December 2004 and January 2005, the defendants
informed Meléndez that large numbers of ROTC-related documents were
available for inspection at the UPR archives. Meléndez II, slip
op. at 5 n.4. These documents were apparently produced in response
to the state court discovery request. Id.
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was "clear that [the] boxes contained evidence of the historic
discrimination suffered by the ROTC at the UPR-RP Campus,[4] that
Defendants knew long ago about the existence of all these
documents," and that they therefore should have been disclosed
earlier as part of the federal discovery process. Meléndez filed
his opposition to the defendants' motion for summary judgment on
January 5, 2006.
2. Refusal to Grant Rule 37 Sanctions
On December 19, 2005, Meléndez filed a motion requesting
an entry of default or severe sanctions based upon the defendants'
"massive discovery misconduct." The court denied this request,
without explanation, on January 20, 2006. Meléndez now claims that
the district court erred in refusing to grant the request.
District court determinations regarding the "selection and
imposition" of sanctions are reviewed for abuse of discretion.
Barreto v. Citibank, N.A., 907 F.2d 15, 16 (1st Cir. 1990) (per
curiam).
Even assuming that at least some of the 390,390 pages
were responsive to Meléndez's federal discovery request, we
conclude that the district court did not abuse its discretion in
failing to grant Meléndez's request for a Rule 37 sanction. The
plain language of Rule 37(b) provides that before a court can
impose sanctions, the offending party must "fail[] to obey an order
4
A number of the boxes in the collection were labeled "ROTC."
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to provide or permit discovery." Fed. R. Civ. P. 37(b)(2)(A); see
also Local Union No. 251 v. Town Line Sand & Gravel, Inc., 511 F.2d
1198, 1199 (1st Cir. 1975) ("Federal Rule 37 empowers a district
court to make such orders as 'are just' when a party fails to
comply with a discovery order . . . .").5 Here, Meléndez cannot
5
Meléndez cites a leading treatise for the proposition that "Rule
37(d) allows the imposition of sanctions against a party for
especially serious disregard of the obligations imposed by the
discovery rules even though it has not violated any court order."
8B Charles Alan Wright et al., Federal Practice and Procedure
§ 2291, at 630 (3d ed. 2010). The First Circuit has
recognize[d] that in Rule 37(d) jurisprudence . . . ,
there are differences of opinion as to whether an award
of sanctions is proper only where there has actually been
a total failure to respond or whether sanctions might be
imposed where a response has eventuated, but is so flawed
as to be tantamount to no response at all.
R.W. Int'l Corp. v. Welch Foods, Inc., 937 F.2d 11, 18 n.7 (1st
Cir. 1991) (citations omitted). We need not resolve this dispute,
however, because even under the more expansive view of Rule 37(d),
the defendants' delay was not an "especially serious disregard of
the obligations imposed by the discovery rules" such that it was
tantamount to a total failure to produce discovery. 8B Wright et
al., supra, § 2291, at 630.
In addition, Meléndez argues that the district court could
have issued an order excluding the defendants' evidence under Rule
37(c) despite the fact that the district court never issued an
order to compel the production of the documents. Rule 37(c)
provides as follows:
(1) . . . If a party fails to provide information
. . . as required by Rule 26(a) or (e), the party is not
allowed to use that information . . . to supply evidence
on a motion, at a hearing, or at a trial, unless the
failure was substantially justified or is harmless. In
addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:
. . .
(C) may impose other appropriate sanctions, including any
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point to any "order to provide or permit discovery" that could form
the basis of a Rule 37 sanction.6 Thus, the district court's
decision to deny Meléndez's motion was correct.
of the orders listed in Rule 37(b)(2)(A)(i)-(vi).
Fed. R. Civ. P. 37(c)(1). It is not clear why Meléndez is arguing
that the district court should have excluded the documents; his
concern is that he was not given enough time to examine possibly
helpful evidence, not that the defendants were able to use evidence
that he had not had an adequate opportunity to examine. Even
assuming, however, that Meléndez is invoking Rule 37(c) in order to
argue that the sanctions listed in Rule 37(b) should have been
available to him despite the lack of a court order because of the
provision in Rule 37(c)(1)(C) that allows Rule 37(b) sanctions when
a party fails to make the required automatic disclosures under Rule
26(a), he still cannot prevail. In light of the 2000 amendments to
Rule 26(a), a party need only turn over "material that the
possessing party might intend to use to support its claims or
defenses." Gillespie v. Sears, Roebuck & Co., 386 F.3d 21, 34 n.10
(1st Cir. 2004). Meléndez has not provided any evidence that the
390,390 pages of documents included material that the defendants
"might intend to use to support [their] claims or defenses." Id.
Therefore, any claim relying on the assertion that the defendants
failed to disclose materials whose automatic disclosure was
required by Rule 26(a) will fail.
6
Although Meléndez does not point to any such order in his
appellate brief, his motion requesting a Rule 37 sanction does cite
an order, dated September 15, 2005, that he believes fulfills the
requirements of Rule 37. In this order, the district court denied
the defendants' motion for an extension of time to answer or
otherwise object to the plaintiff's first set of interrogatories
and first and second requests for admission. In addition, the
district court denied the plaintiff's request to deem as admitted
his first and second requests for admission. The docket notes that
the court "grant[ed] ten (10) additional days for Defendants to
produce interrogatories and requests for admissions." This order
is not sufficient to serve as a basis for relief under Rule 37(b)
because it does not address production of documents and cannot be
construed as an order compelling such production.
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3. Refusal to Set Aside Summary Judgment
Meléndez next attacks the district court's September 30,
2008 order denying the plaintiff's request for reconsideration of
its previous summary judgment determination (i.e., Meléndez II).7
Meléndez claims that he was not given an adequate opportunity to
discover facts supporting his claim because the defendants did not
inform him of the existence of the 390,390 pages of new documents
until November 28, 2005. We review a district court's denial of a
plaintiff's motion to reconsider for abuse of discretion. See
Douglas v. York County, 360 F.3d 286, 290 (1st Cir. 2004).
The essential problem with this claim is that the law
upon which Meléndez bases his claim is not applicable to the
circumstances of his case. Meléndez cites Carmona v. Toledo, 215
F.3d 124, 133-35 (1st Cir. 2000), and Resolution Trust Corp. v.
North Bridge Associates, Inc., 22 F.3d 1198, 1202-09 (1st Cir.
1994), for the proposition that this court may reverse summary
judgment and order further discovery where discovery was not
completed due to a moving party's misconduct. It is true that we
may do so. These cases, however, involve situations where (1) a
party believed it needed to conduct further discovery to marshal
7
To the extent that Meléndez is simply arguing that Meléndez II
was incorrect because the district court failed to conclude that
the court's January 20, 2006 ruling was in error, we reject that
claim. As explained above, we conclude that the January 2006
ruling was proper because Meléndez cannot point to any court order
that the defendants disobeyed.
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facts necessary to oppose summary judgment, (2) that party filed a
Rule 56(f) motion requesting additional time,8 and (3) the court
did not grant the party's request. See Carmona, 215 F.3d at 133
("Despite plaintiffs' Rule 56(f) motion and repeated references to
the incompleteness of discovery, the district court did not make
findings or hold a hearing as to the diligence and sufficiency of
the [defendants'] responses."); Resolution Trust, 22 F.3d at 1204
("The main battleground between the parties is the [appellants']
third . . . Rule 56(f) motion, which rested on a claim of delayed
discovery still outstanding.").
Meléndez's facts do not fit into this framework because
the district court did not deny any Rule 56(f) motion that he
filed, or anything that could be construed as sufficient to invoke
the protections of Rule 56(f). See Paterson-Leitch Co. v. Mass.
Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988). He
did file three motions for extensions of time after he was alerted
to the existence of the 390,390 pages of documents, but the court
8
"Fed. R. Civ. P. 56(f) describes a method of buying time for a
party who, when confronted by a summary judgment motion, can
demonstrate an authentic need for, and an entitlement to, an
additional interval in which to marshal facts essential to mount an
opposition." Resolution Trust, 22 F.3d at 1203. In general, a
party seeking additional time to conduct discovery under Rule 56(f)
must "show[] by affidavit that, for specified reasons, it cannot
present facts essential to justify its opposition." Fed. R. Civ.
P. 56(f). In "the absence of a formal Rule 56(f) affidavit[,]"
however, an "alternative proffer" may be an adequate substitute if
certain prerequisites are met. See Paterson-Leitch Co. v. Mass.
Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988).
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granted these extensions. Meléndez ultimately had more than a
month to review the documents before filing his opposition to the
motion for summary judgment. The only motion that the district
court denied that related to Meléndez's allegedly inadequate
opportunity to conduct discovery was Meléndez's order requesting
default judgment or other severe sanctions. That motion, however,
did not request more time, and therefore cannot justify a reversal
under the case law that Meléndez cites.
B. Section 1983 Violations
1. The Substantive Due Process Claim
Meléndez argued below that the defendants violated his
right to substantive due process by increasing his risk of danger
on campus and then failing to protect him against that risk. The
defendants replied by arguing, among other things, that they were
entitled to qualified immunity from suit under section 1983. The
district court, in accordance with Saucier v. Katz, 533 U.S. 194,
200-01 (2001), overruled in part by Pearson v. Callahan, 129 S. Ct.
808, 818 (2009), began its qualified immunity analysis by assessing
whether, when viewed in the light most favorable to Meléndez, "the
facts alleged show the [defendants'] conduct violated a
constitutional right." Id. at 201. It concluded that they did
not, and that the defendants were entitled to qualified immunity,
because neither the defendants' actions surrounding the April 30,
2001 demonstration nor their implementation of the NCP constituted
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conduct that would "shock the conscience." Meléndez I, slip op. at
23-24.
We review the lower court's qualified immunity
determination de novo. Walden v. City of Providence, 596 F.3d 38,
52 (1st Cir. 2010). Because this is an appeal from a denial of
summary judgment, we review the evidence, to the extent necessary,
in the light most favorable to Meléndez. See, e.g., Asociación de
Periodistas de P.R. v. Mueller, 529 F.3d 52, 55 (1st Cir. 2008).
"We may affirm . . . on any basis apparent in the record." Chiang
v. Verizon New England, Inc., 595 F.3d 26, 34 (1st Cir. 2010).
"Officials are entitled to qualified immunity unless (1)
'the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right' and (2) 'the right at issue
was "clearly established" at the time of [the defendants'] alleged
misconduct.'" Walden, 596 F.3d at 52 (quoting Pearson, 129 S. Ct.
at 816). In light of Pearson, we may now address the second prong
of the qualified immunity test first. See 129 S. Ct. at 818. We
follow that course here.
This second prong has "two aspects": (1) "whether, based
on the 'clarity of the law at the time of the alleged civil rights
violation,' '"[t]he contours of the right . . . [were] sufficiently
clear that a reasonable official would understand that what he is
doing violates that right,"'" Walden, 596 F.3d at 52 (alteration in
original) (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st
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Cir. 2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987))), and (2) "whether, based on the 'facts of the particular
case,' a 'reasonable defendant would have understood that his
conduct violated the plaintiffs' constitutional rights.'" Id.
(quoting Maldonado, 568 F.3d at 269). The "'relevant, dispositive
inquiry'" in determining whether a right was "clearly established"
is "'whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.'" Id. at 53
(quoting Saucier, 533 U.S. at 201).
We conclude that it would not have been clear to a
reasonable UPR official that the conduct at issue here was
unlawful. "As a general matter, . . . a State's failure to protect
an individual against private violence simply does not constitute
a violation of the Due Process Clause." DeShaney v. Winnebago
Cnty. Dep't of Soc. Servs., 489 U.S. 189, 197 (1989). "The
DeShaney Court . . . recognized a limited exception to this rule
which applies to circumstances in which the government has a
'special relationship' with the individual because government
action has deprived that individual of the liberty needed to
protect himself." Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71, 79
(1st Cir. 2005). This exception may apply "'when the individual is
incarcerated or is involuntarily committed to the custody of the
state.'" Id. at 80 (quoting Rivera v. Rhode Island, 402 F.3d 27,
34 (1st Cir. 2005)). "In addition to the special 'custodial'
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relationships, the DeShaney Court suggested, but never expressly
recognized, the possibility that liability might arise where the
state creates or substantially contributes to the creation of a
danger." Id.9 Regardless of whether a plaintiff proceeds under
the theory that the defendants are liable because they limited his
ability to protect himself (the "limitation" theory), or under the
theory that they are liable because they created or substantially
contributed to the danger he faced and then failed to protect him
from it (the "state-created danger" theory), the defendants'
actions must also "shock the conscience of the court," Rivera, 402
F.3d at 35, in order for the plaintiff to prevail. See Lockhart-
Bembery v. Sauro, 498 F.3d 69, 77 (1st Cir. 2007) (applying "shock
the conscience" standard to a state-created danger claim); J.R. v.
9
This circuit has expressed uncertainty about whether these
exceptions constitute two separate exceptions or just one. Vélez-
Díaz noted that "'it is not clear from the "creation of danger"
language in DeShaney whether a state action which enhances or
creates danger to an individual would provide a separate exception
to the general rule of no duty to protect, or whether the language
is simply in service of the special relationship exception and
provides a set of circumstances where the state's actions might
create a "special relationship" and thus a duty to protect.'"
Vélez-Díaz, 421 F.3d at 80 n.3 (quoting Rivera, 402 F.3d at 35
n.5). Recently, however, this court suggested that (1) the "state-
created danger" theory and (2) what might be termed the
"limitation" theory (i.e., that if the state limits an individual's
ability to protect himself, it may be held liable for harm caused
by a third party) are two separate exceptions to the general rule
that the state's failure to protect does not constitute a due
process violation. See J.R. v. Gloria, 593 F.3d 73, 79 & n.3 (1st
Cir. 2010).
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Gloria, 593 F.3d 73, 79 (1st Cir. 2010) (applying same standard in
discussing a "limitation" theory claim).
Even if Meléndez were able to establish that the
officials here (1) either (a) created a danger and then failed to
protect him from it or (b) limited his ability to protect himself
or receive protection from outside sources, and (2) engaged in
conscience-shocking conduct, he would still need to prove that it
would have been clear to a reasonable UPR official that the
relevant behavior here was unlawful. He cannot do so.
In order to "shock the contemporary conscience," state
action must be "egregious" and "outrageous." Rivera, 402 F.3d at
36 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8
(1998)). "In situations where actors have an opportunity to
reflect and make reasoned and rational decisions, deliberately
indifferent behavior may suffice to 'shock the conscience.'" Id.
(citing County of Sacramento, 523 U.S. at 851-52). "'[D]eliberate
indifference,'" however, "'that shocks in one environment may not
be so patently egregious in another.'" Ramos-Piñero v. Puerto
Rico, 453 F.3d 48, 53 (1st Cir. 2006) (quoting County of
Sacramento, 523 U.S. at 850). "The burden to show state conduct
that 'shocks the conscience' is extremely high, requiring
'stunning' evidence of 'arbitrariness and caprice' that extends
beyond '[m]ere violations of state law, even violations resulting
from bad faith' to 'something more egregious and more extreme.'"
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J.R., 593 F.3d at 80 (quoting DePoutot v. Raffaelly, 424 F.3d 112,
119 (1st Cir. 2005)).
Meléndez argues that the university has been deliberately
indifferent to the ROTC's security needs and that this alleged
deliberate indifference shocks the conscience. He does not attempt
to explain why he believes the relevant law was "clearly
established." We conclude that it would not have been clear to a
reasonable official that the conduct about which Meléndez complains
was unlawful.
The district court concluded that the continued
implementation of the NCP was not conscience-shocking because it
was "an attempt, however imperfect, to balance the competing rights
of free speech, safety and use of university property by different
student groups on campus." Meléndez I, slip op. at 23. In light
of the evidence that the NCP was established to balance these
rights and goals, we conclude that it would not have been clear to
a reasonable official that continuing to implement the NCP was
unlawful. Meléndez argues, however, that other acts of alleged
deliberate indifference substantially increased the risk of harm to
ROTC members. These acts, according to Meléndez, included failure
to (1) punish those who harassed ROTC members, (2) take a public
stand about the rights of ROTC members, and (3) train the Campus
Guard to protect ROTC members. Even all of these omissions, taken
together, are not so egregious as to make it clear to a reasonable
-20-
official that such conduct would constitute a violation of the due
process clause.
Furthermore, we have recognized that "[e]ven where the
government is aware of specific dangers . . . it must perform a
triage among competing demands." Ramos-Piñero, 453 F.3d at 54.
Although some of the omissions that Meléndez alleges contributed to
the dangerous atmosphere at UPR-RP might have been relatively easy
to remedy (e.g., not taking a public stand about the rights of ROTC
members), others may have been more expensive or time-consuming to
address (e.g., not training the Campus Guard to protect ROTC
members during protests) or involved trade-offs (e.g., not calling
in PRPD officers, given that allowing the officers to enter might
have led to increased violence). Because a university, like a
local government, must choose how to use limited resources, it
would not have been clear to a reasonable official that the choices
that were made here violated the plaintiff's right to substantive
due process.
For all these reasons, we affirm the grant of qualified
immunity on the due process claim.10
10
Meléndez also claims that the district court erred procedurally
when it failed to credit his evidence regarding "numerous acts of
violence, shootings and murder against the ROTC" over the last
forty years. It appears, however, that the district court did
consider this evidence. The district court mentioned that an ROTC
cadet was killed after a protest in 1971. See Meléndez I, slip op.
at 9. It also noted that "problems for the ROTC program continued"
in the 1980s, citing the 1984 discovery of a bomb at the ROTC
facility. Id. at 10. In addition, the district court noted a
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2. The Equal Protection Claim
Meléndez claims that the district court improperly
applied equal protection jurisprudence in concluding that there was
no evidence that the defendants intentionally discriminated against
ROTC members. Again, we review the lower court's qualified
immunity determination de novo. Walden, 596 F.3d at 52. We
conclude that the defendants were entitled to qualified immunity
because there was insufficient evidence to establish that they
violated Meléndez's right to equal protection.
It is true that "[t]he [s]tate may not . . . selectively
deny its protective services to certain disfavored minorities
without violating the Equal Protection Clause." DeShaney, 489 U.S.
at 197 n.3; see also Hayden v. Grayson, 134 F.3d 449, 452 (1st Cir.
1998). In order to prevail on an equal protection claim based upon
alleged selective denial of protection, "plaintiffs must adduce
competent evidence of 'purposeful discrimination.'" Hayden, 134
F.3d at 453 (quoting Washington v. Davis, 426 U.S. 229, 244
(1976)). A plaintiff must show that "'the decisionmaker
. . . selected or reaffirmed a course of action at least in part
number of more recent incidents of harassment. See id. at 11-12.
Finally, the court phrased one of the relevant questions as whether
"continued application of the NCP to the ROTC program amounted to
such a deliberate indifference to the safety of ROTC officers and
cadets so as to shock the conscience of the court," "given the
history of violence and threats against the ROTC program." Id. at
22 (emphasis added). Because it is clear that the district court
considered this evidence, we reject the plaintiff's argument.
-22-
'because of,' not merely 'in spite of[,]' its adverse effects upon
an identifiable group.'" Soto v. Flores, 103 F.3d 1056, 1067 (1st
Cir. 1997) (quoting Pers. Adm'r v. Feeney, 442 U.S. 256, 279
(1979)) (applying standard in context of allegedly discriminatory
treatment of complaints regarding domestic violence against women).
There is no evidence that the NCP is discriminatory on
its face or has been applied in a discriminatory manner. The
policy has never, either in its written or unwritten form, applied
specifically to ROTC-related protests. There is no evidence that,
in the years since the inception of the NCP, the UPR administration
has ever asked the PRPD for assistance during a protest, either
related to ROTC or not. Where failure to act is the result of a
"neutral nonintervention policy," it cannot form the basis of an
equal protection claim. Hayden, 134 F.3d at 454.
Furthermore, there is not sufficient evidence that the
other alleged omissions that might potentially constitute denials
of equal protection -- the Campus Guard's failure to chase culprits
and perform civil arrests, the university's failure to investigate
the assault and identify additional culprits, and the failure to
punish the convicted culprit with something more severe than a
simple reprimand -- were the result of discriminatory animus.
Indeed, the deposition of Samuel Molina, one of the members of the
Campus Guard present when Meléndez was attacked, suggests that
Molina failed to execute arrests because his priority during the
-23-
attack was to get people off of Meléndez, and after the attack, he
could not reach the culprits. Guard Director Artemio De Jesús
explained during his deposition that the culprits were not arrested
in part because the Campus Guard officers were focused on
preventing an even larger confrontation, protecting Meléndez and
Pizarro from continuing attack, and providing medical assistance to
them.11 Former Associate Dean Jimmy Torres Rodríguez also explained
that neither he, nor former Dean Carlos C. Ramos Bellido, nor
former Chancellor Hillyer proposed disciplining any of the students
involved in the Meléndez attack because the victims "didn't want to
file any complaint [and] said they wanted to file complaints at the
. . . federal level."12
11
De Jesús also said during his deposition that the Campus Guard
did not make any arrests because the victims did not ask them to do
so. Although this explanation alone might seem illogical and
pretextual given that a member of the Campus Guard can arrest any
person whom he sees committing a felony or any person he believes,
based on probable cause, has committed a felony, this deposition
testimony, in combination with the rest of the evidence, does not
suggest discriminatory intent.
12
Meléndez cites additional facts as evidence of discriminatory
intent. First, he claims that the 1970 Special Report of the
Puerto Rico Civil Rights Commission is clear evidence of a
"historic discriminatory policy of unequal law enforcement."
Although that report documents various acts of violence against
ROTC members and recommends that the university take certain
actions to avoid violent protests and sanction those who engage in
them, it does not include evidence that university officials failed
to protect ROTC staff and cadets because of their ROTC
affiliations.
Second, Meléndez cites Hillyer's statement, recounted in Brig.
Col. Armbrister's deposition, that he did not "personally support"
the ROTC program. Meléndez, however, neglects to mention that,
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In light of these facts, we conclude that Meléndez has
failed to demonstrate that the defendants acted with discriminatory
intent. Accordingly, Meléndez's right to equal protection was not
violated, and the defendants are entitled to qualified immunity on
the equal protection claim.
3. The Uniformed Services Employment and Reemployment
Rights Act ("USERRA") Claim
Meléndez argued below that he could bring a section 1983
claim predicated on a violation of the USERRA, 38 U.S.C. §§ 4301-
4335, which prohibits employment discrimination against individuals
based upon their service in the uniformed services. Specifically,
he claimed that the defendants' failure to provide protection
against attacks by ROTC opponents constituted a denial of a
"benefit of employment by an employer" based upon his membership in
the armed forces. 38 U.S.C. § 4311(a). The district court noted
that it was not "clear whether the individual Defendants could
according to Armbrister, Hillyer said that he would support the
ROTC program in his official capacity.
Third, Meléndez claims that ROTC officers requested that the
university issue a clear statement about the ROTC's right to be a
part of the university, and that the university failed to make any
such pronouncement. We cannot infer, from the fact that the
university decided not to issue this statement, that administrators
chose their course of action "'because of,' and not merely 'in
spite of[,]' its adverse effects upon" ROTC staff and cadets.
Soto, 103 F.3d at 1067 (quoting Feeney, 442 U.S. at 279). Rather,
it appears from Bellido's deposition testimony that the school
declined to issue a written statement regarding the ROTC's right to
be on campus, and instead chose to meet with ROTC members off
campus, because administrators were "trying to avoid conflict on
campus."
-25-
properly be considered 'employers' as defined by the statute,"
Meléndez I, slip op. at 28 n.25, but, rather than dismissing the
plaintiff's argument on that ground, dismissed it based upon its
conclusion that Congress "implicitly precluded enforcement of
[USERRA] violations through § 1983," id. at 31. Meléndez now
argues that the district court's conclusion that the USERRA was not
enforceable through a section 1983 claim was in error. We review
this challenge to the district court's order de novo both because
the district court resolved the matter on summary judgment and
because this is an issue of law. See Bristol West Ins. Co. v.
Wawanesa Mut. Ins. Co., 570 F.3d 461, 463 (1st Cir. 2009).
We need not reach the issue of whether Congress intended
to prohibit plaintiffs from bringing section 1983 claims predicated
on USERRA violations because the statutory language of the USERRA
does not appear to protect against the types of violations that
Meléndez alleges occurred. Meléndez provides no support for his
proposition that being protected from assault by ROTC opponents is
a "benefit of employment." The USERRA defines "benefit of
employment" as "any advantage, profit, privilege, gain, status,
account, or interest (other than wages or salary for work
performed) that accrues by reason of an employment contract or
agreement or an employer policy, plan, or practice" and then
enumerates various benefits. 38 U.S.C. § 4303(2). Courts have
concluded that "benefits of employment" include not being assigned
-26-
to a position with "drastically different" job responsibilities,
Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 306 n.4 (4th
Cir. 2006); having a "more regular working schedule," Hill v.
Michelin N. Am., Inc., 252 F.3d 307, 313 (4th Cir. 2001); and
having the opportunity to take, within a reasonable period of time,
an exam required for a promotion or other advantage, see Domínguez
v. Miami-Dade County, 669 F. Supp. 2d 1340, 1347 (S.D. Fla. 2009).
Here, Meléndez does not argue that his right to be protected by the
defendants against on-campus assaults arose from any employment
relationship; rather, he maintains that he should have been
protected against assault in the same manner that any other person,
whether employed by UPR or not, would have been protected against
assault. Because Meléndez was not deprived of any "benefit of
employment" within the meaning of the USERRA, he cannot predicate
his section 1983 claim on a USERRA violation.
C. The Jurisdictional Issue
Meléndez argued below that the district court had subject
matter jurisdiction over his state-law claims even after it
dismissed his federal claims because he was domiciled in Texas when
he filed his complaint, in April 2002, and thus there was diversity
of citizenship between him and the defendants. When the district
court dismissed Meléndez's federal-law claims in its 2007 order,
it requested that Meléndez provide evidence that he was domiciled
in Texas at the time he filed his complaint. See Meléndez I, slip
-27-
op. at 32. After holding an evidentiary hearing on the existence
of diversity jurisdiction and considering all the relevant
submissions, the district court concluded that it did not have
jurisdiction over the state-law claims and dismissed them.
When a defendant challenges the court's jurisdiction
based on lack of diversity, "'the party invoking subject matter
jurisdiction . . . has the burden of proving by a preponderance of
the evidence the facts supporting jurisdiction.'" Padilla-Mangual
v. Pavía Hosp., 516 F.3d 29, 31 (1st Cir. 2008) (quoting Bank One,
Tex., N.A. v. Montle, 964 F.2d 48, 50 (1st Cir. 1992)). A district
court's determination that an individual has "failed to meet his
burden of proving that he changed his domicile . . . at the time he
filed his federal complaint is a mixed question of law and fact and
as such may not be set aside unless clearly erroneous." Id. at 32
(internal quotation marks omitted). "'A finding is "clearly
erroneous" when, although there is evidence to support it, the
reviewing court is left with the definite and firm conviction that
a mistake has been committed.'" Id. (quoting Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985)). We conclude that the district
court's determination that Meléndez was domiciled in Puerto Rico in
April 2002 was not clearly erroneous.
"A person's domicile is the place where he has his true,
fixed home and principal establishment, and to which, whenever he
is absent, he has the intention of returning." Id. at 31 (internal
-28-
quotation marks omitted). "Domicile is determined as of the time
the suit is filed." Id. "There is, ordinarily, a presumption of
continuing domicile." Id. In order to show change of domicile, a
party must establish that he (1) was "present in the new domicile"
and (2) "intend[ed] to remain there." Bank One, 964 F.2d at 50.
Another specific presumption applies to members of the military:
"Service personnel are presumed not to acquire a new domicile when
they are stationed in a place pursuant to orders; they retain the
domicile they had at the time of entry into the services." 13E
Charles Alan Wright et al., Federal Practice and Procedure § 3617,
at 607 (3d ed. 2009); see also Chico v. P.R. Elec. Power Auth., 312
F. Supp. 2d 153, 158 (D.P.R. 2004); Rosado-Marrero v. Hosp. San
Pablo, Inc., 927 F. Supp. 576, 577 (D.P.R. 1996); Codagnone v.
Perrin, 351 F. Supp. 1126, 1129 (D.R.I. 1972). A service member
may, however, rebut this presumption by "demonstrat[ing] that
despite his involuntary presence in a state, he or she has formed
the intention to make a home in that state." 13E Wright et al.,
supra, § 3617, at 608-09. Such proof "requires clear and
unequivocal evidence." Id. at 609; see also Chico, 312 F. Supp. 2d
at 158; Rosado-Marrero, 927 F. Supp. at 577; Codagnone, 351 F.
Supp. at 1129.
The following factors are relevant in determining whether
a party intends to make his home in a given state: "'the place
where civil and political rights are exercised, taxes paid, real
-29-
and personal property (such as furniture and automobiles) located,
driver's and other licenses obtained, bank accounts maintained,
location of club and church membership and places of business or
employment.'" Padilla-Mangual, 516 F.3d at 32 (quoting Bank One,
964 F.2d at 50). "While no single factor is controlling, some
courts have presumed domicile in a state is established where a
party is registered to vote." Id. This circuit, however, "has not
recognized such a presumption," though it has "said that the place
a person is registered to vote is a 'weighty' factor in determining
domicile." Id. (quoting Lundquist v. Precision Valley Aviation,
Inc., 946 F.2d 8, 12 (1st Cir. 1991)).
Here, Meléndez argues that he became a Texas domiciliary
at some point between 1989, when he was first assigned to Fort
Bliss in El Paso, Texas, and 1998, when he returned to Puerto Rico
to serve in the ROTC program.13 He marshals the following evidence
to support his argument: (1) he lived in Texas on and off for six
years, beginning in 1984 and ending in 1998; (2) his former wife,
whom he married in 1991, was originally from El Paso, Texas, and
his oldest son was born in Texas;14 (3) between 1996 and 1998, he
13
In the evidentiary hearing on the jurisdiction issue, Meléndez
testified that he "was a resident from Texas in 1989, officially."
Much of the evidence to support his Texas domicile, however,
relates to activities in the years after 1989. Thus, his theory of
domicile appears to be that he became a domiciliary at some point
before 1998, but not necessarily in 1989.
14
Meléndez's younger son was born in Panama, where Meléndez was
temporarily stationed.
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lived in Texas with his then wife and two children, both on the
base and in private housing outside the base;15 (4) he opened a bank
account in San Antonio, Texas, in 1984, which has always been his
principal bank account; (5) he obtained a Texas driver's license in
between 1989 and 1991;16 (6) he voted in the 1992 and 1996 elections
while living in Texas, and has not voted in an election in Puerto
Rico since 1980; and (7) he paid Texas state sales taxes.17
Even assuming that these facts constitute the requisite
"clear and unequivocal" evidence of intent to "make a home" in
Texas as of 1998, the district court did not clearly err in
concluding that Meléndez was not a Texas domiciliary as of April
2002, given the countervailing deposition testimony suggesting that
he decided, at some point between 1998 and 2002, to remain in
Puerto Rico. The following colloquy took place during Meléndez's
April 12, 2005 deposition:
Q. Then, as a result of your new job, you
were forced to leave Puerto Rico and go
with the rest of the U.S. South Army to
their new offices in Texas?
A. [That is correct.]
15
During Meléndez's ROTC assignment, he lived with his family in
rented housing.
16
Meléndez also obtained a Puerto Rico driver's license at some
point between 1989 and 1991.
17
Meléndez did not pay state income taxes in Texas because the
state does not collect income taxes. Meléndez did not, however,
file Puerto Rico income tax returns between 1998 and 2003, either.
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Q. So if this incident had not happened,
is it fair to say that you would have
remained in the ROTC . . .
A. I would have retired here, and I would
have remained in the ROTC.
Q. And you would have stayed living in
Puerto Rico?
A. Living in Puerto Rico, yes.
Q. But, as a result of the incident, you
had to find a new job, which eventually
took you away from Puerto Rico?
A. [That is so.]
Shortly afterward, Meléndez reiterated that he would have stayed in
Puerto Rico for a longer period of time if not for the assault:
Q. How does it make you feel that your
plans of retiring as an ROTC instructor
never happened because of the incident
of April thirty two thousand and one?
A. It affects me a lot. My plans were to
stay in Puerto Rico with my family, my
father, my mother, my uncles. Now I am
working in a place where I am alone. I
don't have any Puerto Ricans. There's
just a handful. . . . I am working at
a job that I had to . . . Because I
can't just sit around doing nothing, I
have to work. . . . Everything is just
fine, but I'm still far from my island.
Q. Does it affect you emotionally?
A. Oh yes. That is frustrating. One of
my goals that I was unable to realize.
The parties disagreed about whether Meléndez's statement that he
intended to "retire" in Puerto Rico meant only that he intended to
complete his military career in Puerto Rico, or that he intended to
live in Puerto Rico after the end of his military service. The
district court, however, concluded that even if it assumed that
Meléndez's statement that he wished to "retire" in Puerto Rico
meant only that he intended to end his military career there, his
-32-
statement that his "plans were to stay in Puerto Rico with [his]
family, [his] mother, [his] uncles" was "an unequivocal expression
of the fact that, at some point prior to April 30, 2002, plaintiff
had formed the intention to remain in Puerto Rico." Meléndez III,
slip op. at 9. We agree. Even assuming that Meléndez became a
Texas domiciliary at some point before 1998, he did not remain a
Texas domiciliary through 2002; rather, he decided, at some point
between 1998 and 2002, to remain in Puerto Rico, where he was then
living. At that point, he became a Puerto Rico domiciliary. See
Bank One, 964 F.2d at 50 (presence in state and intent to remain in
state necessary to show domicile). The fact that Meléndez
identified himself as a citizen of Bayamón, Puerto Rico, in a state
court complaint filed simultaneously with his federal court
complaint, and failed to explain this discrepancy, see Meléndez
III, slip op. at 13, also supports the conclusion that he was a
domiciliary of Puerto Rico in April 2002. Finally, Meléndez's
evidence that he authorized his former wife to purchase a home in
Texas, and that she bought a house there at some point during
2002,18 is not sufficient to establish, in the face of the evidence
18
There is substantial uncertainty about when Meléndez's ex-wife
purchased the relevant house. In a declaration admitted into
evidence by the district court, Meléndez stated that his wife
bought a house in 2002 in Texas, and that, by April 2002, he
"considered this house . . . [his] home to which [he] returned to
in order to be with [his] children and spouse." At his evidentiary
hearing, however, when asked in what month he bought the home, he
responded, "I need to research that one, exactly, I don't remember
exactly the date." When asked whether, "[a]ccording to [his] best
-33-
to the contrary, that between 1998 and April 2002, Meléndez
continued to intend to return to Texas, rather than to remain in
Puerto Rico. Thus, we conclude that the district court did not
clearly err when it concluded that Meléndez was a Puerto Rico
domiciliary on April 30, 2002.
III. Conclusion
For the reasons stated, we affirm all of the challenged
district court orders.
Affirmed.
recollection," he bought "the house near the end of the year 2002,
or at [the] beginning of the year," he responded, "I say again, if
my recollection [is correct,] I think it was at the first of the
year 2002 [sic]. Close to the first months of the year, I need to
verify that, we are talking about a long time ago."
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