Romero-Barcelo v. Hernandez-Agosto

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1235

CARLOS ROMERO-BARCELO,

Plaintiff, Appellant,

v.

MIGUEL HERNANDEZ-AGOSTO, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Selya, Cyr and Lynch,

Circuit Judges.

Michael J. Rovell, with whom Lisa I. Fair, Hilary A. Higgins,

Carlos G. Latimer and Latimer, Biaggi, Rachid, Rodriguez, Suris &

Godreau were on brief for appellant.

Marcos A. Ram rez-Lavandero, with whom Eduardo A. Vera-Ram rez

and Marcos A. Ram rez-Lavandero & Associates were on brief for

appellees.

January 31, 1996

CYR, Circuit Judge. This appeal involves the most
CYR, Circuit Judge.

recent installment in the ongoing Cerro Maravilla political

scandal, which has engaged public attention in the Commonwealth

of Puerto Rico for more than fifteen years, and enlisted our

attention on several occasions since 1981. In this latest

sequel, plaintiff Carlos Romero-Barcelo (or "appellant") chal-

lenges a district court judgment dismissing various civil rights

claims, with prejudice, based on absolute legislative immunity

and failure to state a claim, and dismissing, without prejudice,

certain pendent claims under Puerto Rico law. We affirm the

district court judgment in all respects.

I
I

BACKGROUND1
BACKGROUND

On February 22, 1981, the Puerto Rico Senate, then

controlled by the Popular Democratic Party ("PDP"), authorized an

investigation into the brutal ambush and murders of two pro-

independence youths, Arnaldo Dario-Rosado and Carlos Soto-

Arrivi, by Commonwealth police officers at Cerro Maravilla in the

mountains of Puerto Rico during the summer of 1978. At the time

of the murders, appellant Romero-Barcelo was the Governor of

Puerto Rico, and headed the New Progressive Party ("NPP") which

controlled the Senate. As part of the Senate investigation,

subpoenas were issued for documents in the possession of the

1Rule 12(b)(6) dismissals are reviewed under the rubric that
"all reasonable inferences from well-pleaded facts are to be
drawn in appellant['s] favor." Calero-Colon v. Betancourt-

Lebron, 68 F.3d 1, 2 n.1 (1st Cir. 1995).

3

Puerto Rico Justice Department. In due course, this court

vacated a district court order quashing the subpoenas, In re San

Juan Star Co., 662 F.2d 108, 111, 118-20 (1st Cir. 1981), while

noting that a state legislature might be enjoined "in a proper

case." Colon Berrios v. Hernandez Agosto, 716 F.2d 85, 88 (1st

Cir. 1983) (internal quotation marks omitted).

Following the San Juan Star decision, the Senate

Judiciary Committee (or "Committee") gained access to materials

which together with other documents and testimony gathered in

executive session formed the basis for televised Committee

hearings (or "Hearings") which began June 15, 1983. The Senate

voted to pay to televise the Hearings on a commercial station and

"the hearings were apparently widely viewed." Id. at 87.

Thereafter, we reversed a district court order enjoining Commit-

tee members and their agents from compelling some of the defen-

dants in a separate civil rights action arising out of the

murders of Dario-Rosado and Soto-Arrivi (the "Soto" litigation),

see Soto v. Romero Barcelo, 559 F. Supp. 739, 740-41 (D.P.R.

1983), to appear and testify publicly at the Hearings; and, "from

publishing documents in the [Committee members'] possession that

are covered by the protective order issued in [the Soto litiga-

tion] or that are transcripts of testimony before the Committee

by [some of the Soto defendants]." Colon Berrios, 716 F.2d at

86, 87.

The Hearings were reconvened in October 1984, prepara-

tory to the November 1984 gubernatorial elections in which

4

Romero-Barcelo ran for reelection and lost. Following a break in

the political action, the most recent round of Hearings began in

October 1991, as a prelude to a PDP-sponsored referendum in

December 1991 on the future intergovernmental relationship

between Puerto Rico and the United States. Once Romero-Barcelo

announced his candidacy for Resident Commissioner, these Hearings

were extended through May 1992. During the latter phases of the

Hearings, while the PDP controlled the Senate, defendant-appellee

Miguel Hernandez-Agosto served as Senate President, defendant-

appellee Marco Antonio-Rigau headed the Senate Judiciary Commit-

tee, and defendant-appellee Edgardo Perez-Viera, chief counsel,

directed Committee investigative efforts.

Appellant Romero-Barcelo claims, inter alia, that

Committee members slanted and manipulated the Committee testimony

and evidence to suggest that he had been involved in the planning

and shooting of the two youths at Cerro Maravilla, and in subse-

quent attempts to cover up the murders. He alleges that witness-

es were interviewed in private, without legal assistance; subpoe-

nas were issued without notifying all Committee members; only one

Committee investigator was appointed and he reported exclusively

to the PDP majority; access to all documents, transcripts of

testimony, evidence, and reports was restricted to PDP members,

their aides and assistants; the Committee violated a Puerto Rico

Supreme Court order that the documents and other materials be

made available to the NPP minority; witnesses were not allowed

access to transcripts of their prior testimony before testifying;

5

an investigative report finding no wrongdoing by Romero-

Barcelo was covered up; the witness microphone was turned off

when testimony did not suit defendants Hernandez-Agosto and

Antonio-Rigau, or other PDP members.

Romero-Barcelo alleges that from the late 1970s the

defendants and the Committee continuously labelled him as an

assassin or murderer, even though no evidence was ever submitted

to substantiate the charge; that defendant Perez presented

information at the Hearings, and subsequently through press

releases and television and radio interviews, knowing it to be

false or misleading; that the defendants continually disseminated

false information outside the legislative chambers, through

television broadcasts made at government expense, press releases

and interviews arranged and conducted at the Legislature in

public areas and at television studios, political speeches

delivered in various municipalities, press releases distributed

to news media within and beyond Puerto Rico, as well as written

and oral communications to the United States Senate and House of

Representatives, federal departments, and agencies. Appellant

complains that the defendants held press conferences at radio and

television stations and other public forums after the Hearings,

publicly passing judgment on statements made before the Committee

regarding the credibility of witnesses, the strength or weakness

of the evidence, and publicly accusing witnesses and third

parties, including Romero-Barcelo, of perjury before the Commit-

tee. This campaign allegedly was carried out through public

6

speechmaking and political campaign rallies, as well as televi-

sion and radio broadcasts, newspapers,and by other public means.

In September 1992, appellant brought suit in federal

district court under 42 U.S.C. 1983, asserting violations of

his First, Fifth, and Fourteenth Amendment rights under the

United States Constitution, and under 42 U.S.C. 1985(3), for

conspiracy to deprive him of these constitutional rights. He

demanded compensatory and punitive damages, costs, and attorney

fees. See 28 U.S.C. 1331 (federal question) and 1343 (civil

rights and elective franchise). Finally, he alleged supplemental

claims for libel and slander under Puerto Rico law. See 28

U.S.C. 1367. The defendants moved to dismiss under Fed. R.

Civ. P. 12(b)(6), asserting absolute legislative immunity, and

failure to state a claim. The district court dismissed all

federal claims, with prejudice, and the libel and slander claims,

without prejudice. Romero-Barcelo appealed.

II
II

DISCUSSION2
DISCUSSION

We first consider the alleged conduct that the district

court found to be protected under the doctrine of absolute

2We review Rule 12(b)(6) dismissals de novo. Clarke v.

Kentucky Fried Chicken of Cal., Inc., 57 F.3d 21, 22 n.1 (1st

Cir. 1995). "The pleading requirements, though 'minimal,' are
not 'non-existent.'" Rumford Pharmacy, Inc. v. City of East

Providence, 970 F.2d 996, 998 (1st Cir. 1992) (quoting Gooley v.

Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988) ("Modern

notions of 'notice pleading' notwithstanding, a plaintiff . . .
is nonetheless required to set forth factual allegations, either
direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory.")).

7

legislative immunity. Next, we determine whether the remaining

conduct in which defendants are alleged to have engaged gave rise

to any actionable claim under either section 1983 or section

1985(3).

A. Absolute Legislative Immunity
A. Absolute Legislative Immunity

A defense of absolute legislative immunity for state

legislators has been recognized since 1951. Colon Berrios, 716

F.2d at 89 (citing Tenney v. Brandhove, 341 U.S. 367 (1951)). Of

course, absolute immunity affords protection not only from

liability but from suit. Agromayor v. Colberg, 738 F.2d 55, 57

(1st Cir.), cert. denied, 469 U.S. 1037 (1984) (citing Helstoski

v. Meanor, 442 U.S. 500, 506-08 (1979)). State legislative

immunity is "'similar in origin and rationale to that accorded

Congressmen under the Speech or Debate Clause'" of the United

States Constitution. Negron-Gaztambide v. Hernandez-Torres, 35

F.3d 25, 27 (1st Cir. 1994), cert. denied, 115 S. Ct. 1098 (1995)

(quoting Supreme Court of Va. v. Consumers Union of the United

States, Inc., 446 U.S. 719, 732 (1980)). Although not based on

the doctrine of separation of powers, as is the constitutional

immunity accorded Members of Congress, the state legislative

immunity defense nonetheless implicates "principles of comity and

federalism . . . ." Agromayor, 738 F.2d at 58-59 (citing United

States v. Gillock, 445 U.S. 360, 370-73 (1980)). See also

National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 628

(1st Cir. 1995).

8

The immunity defense in this case protects only conduct

within the "sphere of legitimate legislative activity." Colon

Berrios, 716 F.2d at 89 (citing Doe v. McMillan, 412 U.S. 306,

320 (1973); Tenney, 341 U.S. at 376-77). Absolute legislative

immunity "is justified and defined by the functions it protects

and serves, not by the person to whom it attaches." Negron-

Gaztambide, 35 F.3d at 27 (quoting Forrester v. White, 484 U.S.

219, 227 (1988)). "[I]t is the nature of the particular act

rather than the title of the office which governs whether immuni-

ty attaches." Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20,

21 (1st Cir. 1992); see also Agromayor, 738 F.2d at 59. "Acts .

. . that are administrative in nature do not 'give rise to

absolute immunity from liability in damages under 1983.'"

Negron-Gaztambide, 35 F.3d at 28 (quoting Forrester, 484 U.S. at

229); see also Agromayor, 738 F.2d at 59-60; Cutting v. Muzzey,

724 F.2d 259, 261-62 (1st Cir. 1984).

The scope of state legislative immunity from suit under

section 1983 is "essentially coterminous" with the absolute

immunity accorded members of Congress under the Speech or Debate

Clause of the United States Constitution (or "the Clause").

Harwood, 69 F.3d at 629 (citing Supreme Court of Va., 446 U.S. at

732-33). For the Clause to apply, the activity must be "'an

integral part of the deliberative and communicative processes by

which Members participate in committee and House proceedings with

respect to the consideration and passage or rejection of proposed

legislation or with respect to other matters which the Constitu-

9

tion places within the jurisdiction of either House.'" Agromay-

or, 738 F.2d at 59 (quoting Gravel v. United States, 408 U.S.

606, 625 (1976)). It does not cover "actions that are only

'casually or incidentally related to legislative affairs,'"

Harwood, 69 F.3d at 630 (quoting United States v. Brewster, 408

U.S. 501, 528 (1972)), "or which fall outside the 'legitimate

legislative sphere.'" Id. (quoting Eastland v. United States

Servicemen's Fund, 421 U.S. 491, 503 (1975)).

"While the core protection conferred by the Clause

concerns speech or debate by a member of Congress on the floor of

either the Senate or the House", id. (citing Gravel, 408 U.S. at

625), "the penumbra of the Clause sprawls more broadly." Id.

For example, the Clause covers voting; id. (citing Kilbourn v.

Thompson, 103 U.S. 168, 204 (1880)); "conduct at legislative

hearings," but not "private publication by a Senator on his own

behalf of documents submitted at a hearing . . . "; Colon

Berrios, 716 F.2d at 90 (citing Gravel, 408 U.S. at 624-27);

"members . . . and their staffs" for preparation of "an allegedly

defamatory report"; id.; and members in "voting for its publica-

tion," but not "general public dissemination [of the report] by

legislative functionaries." Id. (citing Doe, 412 U.S. at 313-

14). The Clause covers "a committee hearing or report designed

to inform the [legislative] membership," but not an individual

"Senator's publication of press releases or news letters," id.

(citing Hutchinson v. Proxmire, 443 U.S. 111, 123-33 (1979)), nor

individual "political" activities, such as are involved in

10

"legitimate 'errands' performed for constituents, the making of

appointments with Government agencies, [and] assistance in

securing Government contracts." Harwood, 69 F.3d at 631 (alter-

ation in original) (quoting Brewster, 408 U.S. at 512) (internal

quotation marks omitted).

The district court concluded that the Cerro Maravilla

hearings "fell well within the legitimate legislative sphere" and

"that the defendants are therefore immune from any civil or

criminal prosecution based on conduct directly related to the

Cerro Maravilla investigations." Barcelo v. Agosto, 876 F. Supp.

1332, 1342-43 (D.P.R. 1995). The court relied on our earlier

analysis of the Hearings:

The hearings were properly authorized by
Puerto Rico Senate Resolution 91 (February
22, 1981), which provides a specific mandate
to the Senate Judiciary Committee to inquire
into the activities of the police and other
agencies of the government leading up to and
during the Cerro Maravilla incident as well
as the behavior of the executive branch in
response to the incident.
Investigations such as this Senate Judi-
ciary Committee investigation constitute an
essential component of the legislative pro-
cess. . . .

Id. (quoting Colon Berrios, 716 F.2d at 90).

The district court then held that all of Romero-Barce-

lo's "claims regarding allegedly unconstitutional procedures

employed by the Committee relating to the issuance of subpoenas,

the examination of witnesses, and the gathering of evidence, as

well as his claims regarding the allegedly unlawful use of public

funds to broadcast the hearings and regarding slanderous comments

11

allegedly made by the defendants must be DISMISSED." Id. at

1343. The court dismissed the claims against Hernandez-Agosto

and Antonio-Rigau, members of the Puerto Rico Legislature, as

well as the claim against Perez-Viera, chief counsel and investi-

gator for the Committee. Id. at 1343 n.8 (citing Eastland v.

United States Servicemen's Fund, 421 U.S. at 507 (Speech or

Debate Clause immunity for issuance by investigative subcommittee

extends to its chief counsel)). The court also rejected Romero-

Barcelo's claim "that the defendants abused their positions and,

solely [for] political reasons, slanted or manipulated the

testimony offered during the hearings to portray the plaintiff in

a negative light." Id. at 1343 (citing Tenney, 341 U.S. at 377

("The claim of an unworthy purpose does not destroy the privi-

lege.")). The district court ruled, however, that "defendants'

alleged dissemination of false, defamatory, and slanderous

information about the plaintiff through press releases, inter-

views, and speeches occurring outside the strict scope of their

legislative duties" was not protected by legislative immunity.

Id. (citing Hutchinson, Gravel, and Doe).

1. Allegations of Criminal Misconduct
1. Allegations of Criminal Misconduct

Appellant argues that the defendants are liable in

damages under section 1983 for their alleged criminal conduct

including subornation of perjury, intimidation of witnesses and

obstruction of justice during the Hearings even assuming the

Hearings were a proper legislative function. Citing to Brewster,

408 U.S. at 526, he relies for further support on the reasoning

12

in Gravel, 408 U.S. at 626: "While the Speech or Debate Clause

recognizes speech, voting, and other legislative acts as exempt

from liability that might otherwise attach, it does not privilege

either Senator or aide to violate an otherwise criminal law in

preparing for or implementing legislative acts."

Romero-Barcelo's reliance on Gravel and Brewster is mis-

placed, however, as those cases concerned whether a legislative

immunity defense based on the Speech or Debate Clause protected

Members of Congress from federal criminal prosecution. In

Gillock, the Supreme Court carefully distinguished a State

legislator's narrower right to absolute legislative immunity from

private civil actions, which does not include immunity from

federal criminal prosecution.

First, Tenney was a civil action brought by a

private plaintiff to vindicate private
rights. Moreover, the cases in this Court
which have recognized an immunity from civil
suit for state officials have presumed the
existence of federal criminal liability as a
restraining factor on the conduct of state
officials. . . . Thus, in protecting the
independence of state legislators, Tenney and

subsequent cases on official immunity have
drawn the line at civil actions.

445 U.S. 372-73. Absolute immunity from suit for civil damages

under section 1983 allegedly based on criminal conduct does not

necessarily immunize the legislator or his aide from federal

13

criminal prosecution.3 But the legislator is immunized from

suit for damages under section 1983.

3As the district court dictum concerning immunity from
criminal prosecution "based on conduct directly related to the
Cerro Maravilla investigations," Barcelo, 876 F. Supp. at 1343,

is not necessary to its holding, nor to ours, we do not endorse
it.

14

2. Contemporaneous Telecasting of Hearings
2. Contemporaneous Telecasting of Hearings

Appellant argues that defendants' decision to use

public funds to finance live telecasts of these Hearings was not

protected by absolute legislative immunity. The Supreme court

made clear, in Doe, 412 U.S. at 313-14, that the introduction of

documents at an open legislative hearing is protected conduct but

a private republication of the documents by a Member of Congress

is not. We hold that the legislative decision to sponsor live

telecasts of the open Committee hearings authorized a legislative

disclosure rather than a private republication which

clothed defendants with absolute legislative immunity from suit

under section 1983.4 But even assuming the contemporaneous

"publication" of the open Hearings went beyond the reasonable

requirements of the legislative function, a matter we do not

decide, defendants' determination that the Hearings should be

televised at public expense constituted legislative conduct

absolutely immune from civil suit. Doe, 412 U.S. at 315 ("Mem-

bers of Congress are themselves immune for ordering or voting for

4In Hutchinson, 443 U.S. at 116 n.3, the Supreme Court said:

"we assume, without deciding, that a speech printed in the
Congressional Record carries immunity under the Speech or Debate
Clause as though delivered on the floor." Accordingly, the Court
did not take issue with a district court suggestion that "a
television or radio broadcast of [a Senator's] speech from the
Senate floor" would receive the protection of the Speech or
Debate Clause. Id. at 119. But the Court did not agree with the

suggestion that such a broadcast is analogous to a Senator
issuing a press release relating to a floor speech. Id. See

also Cable News Network v. Anderson, 723 F. Supp. 835 (D.D.C.

1989) (Speech or Debate Clause bars judicial review of House rule
regulating television coverage of hearings).

15

a publication going beyond the reasonable requirements of the

legislative function . . . .").5

3. Immunity of Committee Counsel
3. Immunity of Committee Counsel

Next, appellant argues that the immunity of a legisla-

tive aide is less broad than that available to a legislator.

Consequently, says appellant, the chief counsel to the Committee,

defendant-appellee Perez-Viera, is not immune from suit. Appel-

lant relies on Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)

(per curiam), wherein the Supreme Court affirmed a grant of

summary judgment for the Chairman of a Senate subcommittee but

reversed a summary judgment order in favor of subcommittee

counsel, explaining that the "doctrine [of legislative] immunity

is less absolute, although applicable, when applied to officers

or employees of a legislative body, rather than to legislators

themselves." Eight years later, the Supreme Court considered

whether the absolute immunity of the same Senate Subcommittee

Chairman extended to the same subcommittee counsel. Eastland v.

United States Serviceman's Fund, 421 U.S. at 506-508. The Court

5Appellant argues that it was improper to grant judgment for
defendants under Rule 12(b)(6), because further factfinding was
required to determine whether their decision to use public funds
to finance live telecasts is protected by absolute legislative
immunity. Appellant relies on dicta in Colon Berrios, declining

to reach "the issue of whether the Senate's expenditure of funds
for live television broadcast of the hearings falls within the
legitimate legislative sphere" because, inter alia, it "would

involve extensive fact-finding" relating to First Amendment
issues regarding prior restraint. 716 F.2d 90 n.3. In this
case, however, there is no need to reach the First Amendment
matters which loomed in Colon Berrios, since we are not reviewing

a Rule 12(b)(6) denial of injunctive relief, but a dismissal of a
civil rights action for damages based in part on a broadcast
which has already occurred.

16

"[drew] no distinction between the Members and the Chief Coun-

sel," id. at 507, stating that "the day-to-day work of [legisla-

tive] aides is so critical to the Members' performance that they

must be treated as [the Members'] alter egos . . . ." Id.

(alteration in original) (quoting Gravel, 408 U.S. at 616-17)

(internal quotation marks omitted). It noted, however, that

"[t]he complaint . . . does not distinguish between the activi-

ties of the Members and those of the Chief Counsel," thereby

distinguishing Dombrowski v. Eastland. Id. Appellant

argues that his complaint does distinguish between the activities

of Hernandez-Agosto and Antonio-Rigau, on the one hand, and

Perez-Viera on the other. Nevertheless, the relevant allegation

in the complaint that chief counsel Perez-Viera presented

information at the Committee hearings, knowing it to be false and

misleading is part and parcel of the parallel allegation that

all legislator-defendants used the Hearings to disseminate

information about Romero-Barcelo, knowing it to be false or

misleading. Thus, in applying the doctrine of absolute legisla-

tive immunity to these facts, we draw no distinction between the

legislator-defendants and Committee counsel.

B. Civil Rights Claims
B. Civil Rights Claims

We next consider the claims not barred by absolute

legislative immunity.

1. Section 1983
1. Section 1983

"An actionable section 1983 claim must allege facts

sufficient to support a determination '(i) that the conduct

17

complained of has been committed under color of state law, and

(ii) that [the alleged] conduct worked a denial of rights secured

by the Constitution or laws of the United States.'" Rumford

Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 998 (1st

Cir. 1992) (quoting Chongris v. Board of Appeals, 811 F.2d 36, 40

(1st Cir.), cert. denied, 483 U.S. 1021 (1987)).

a. Procedural Due Process
a. Procedural Due Process

A viable procedural due process claim must demonstrate

a "deprivation by state action of a constitutionally protected

interest in 'life, liberty, or property' . . . without due

process of law." Lowe v. Scott, 959 F.2d 323, 340 (1st Cir.

1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990))

(internal quotation marks omitted).6

i. Deprivation of Liberty Interest
i. Deprivation of Liberty Interest

Romero-Barcelo alleges that the defamatory statements

by defendants deprived him of a "liberty" interest in his good

name and reputation. Barcelo, 876 F. Supp. at 1344. The Supreme

Court has made it clear that an actionable deprivation of a

liberty interest in one's reputation "must be accompanied by a

change in the [victim's] status or rights (under substantive

state or federal law), perhaps as a touchstone (or concrete

evidence) of the fact that the injury to reputation was inflicted

as part of a conscious government policy and is serious enough to

interfere with other liberties of the sort suggested in Meyer [v.

6Of course, if the challenged conduct constitutes "state
action," the "color of state law" requirement is met as well.
Lugar v. Edmonson Oil Co., 457 U.S. 922, 935 (1982).

18

Nebraska, 262 U.S. 390 (1923)]," Beitzell v. Jeffrey, 643 F.2d

870, 878 (1st Cir. 1981) (citing Paul v. Davis, 424 U.S. 693,

706, 708, 710 (1976) (in the absence of more tangible interests

such as employment, reputation alone is neither a "property"

interest nor a "liberty" interest sufficient to require procedur-

al due process)), such "as the right 'to engage in any of the

common occupations of life,' or 'to marry, to establish a home

and bring up children.'" Id. at 877 (citing Meyer, 262 U.S. at

399). As this court indicated in Beitzell, no constitutionally

protected "liberty" interest in reputation is infringed unless

the reputational harm is "unusually serious . . . as evidenced by

the fact that employment (or some other right or status) is

affected." Id. at 878.

The district court concluded that no serious harm had

befallen Romero-Barcelo. Barcelo, 876 F. Supp at 1345. It

observed that he had been elected Resident Commissioner in 1992,

"immediately after the last barrage of allegedly libelous state-

ments." Id. The district court noted as well that Romero-

Barcelo had lost the gubernatorial election in 1984, but it ruled

that any claim based on that "serious harm," some eight years

earlier, was time-barred. Id. at 1346 (citing Wilson v. Garcia,

471 U.S. 261, 276 (1985) (in section 1983 action, court borrows

local limitation period applicable to personal injury actions);

Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 2-3 (1st Cir. 1995)

19

(citing to P.R. Laws Ann. tit. 31, 5298(2) (1991)) (one-year

limitation on personal injury actions).7

ii. The Process Due
ii. The Process Due

Romero-Barcelo claims a deprivation of his right to be

free from "'abusive attacks on his honor, reputation and private

or family life' as established by Article II, Section 8, of the

Puerto Rico Constitution." Barcelo, 876 F. Supp. at 1346.8

Although the Section 8 claim is based in commonwealth law, hence

not directly actionable under section 1983, Quintero de Quintero

v. Aponte-Roque, 974 F.2d 226, 230 (1st Cir. 1992), Section 8 may

give rise to a constitutionally protected "liberty interest."

Assuming arguendo, as did the district court, that Section 8

creates a constitutionally protected "liberty" interest, we

consider whether Romero-Barcelo received the process due.

The process due depends in large part on the circum-

stances. Watson v. Caton, 984 F.2d 537, 540-41 (1st Cir. 1993)

(per curiam) (citing Mathews v. Eldridge, 424 U.S. 319, 335

7Appellant misplaces reliance on Limerick v. Greenwald, 666

F.2d 733 (1st Cir. 1981), wherein a timely complaint alleged that
defendants' actions threatened "unusually serious harm" to
plaintiffs' reputations, "stripping them of their responsibili-
ties as bank managers and threatening their future employabili-
ty." Id. at 735. On appeal, Romero-Barcelo claims, for the

first time, that his law practice suffered. He urges us to
assume as much based on defendants' efforts to brand him as a
"murderer" and "assassin." We decline his invitation to bypass
trial court consideration of this factual question in the first
instance. See Havinga v. Crowley Towing and Transp. Co., 24 F.3d

1480, 1483 n.5 (1st Cir. 1994).

8Article II, 8, provides: "Every person has the right to
the protection of law against abusive attacks on his honor,
reputation and private or family life." P.R. Const., art. II,
8.

20

(1976)). As noted in Watson, the "cases distinguish sharply

between deprivations caused by 'random, unauthorized' conduct of

state officials, and deprivations caused by conduct 'pursuant to

established state procedure.'" Id. at 541 (quoting Hudson v.

Palmer, 468 U.S. 517, 532 (1984)). "For the former, the state is

not automatically liable; in the latter case there may be liabil-

ity where the state policy approves or directs the conduct but

falls below constitutional standards." Id. (footnote omitted).

Romero-Barcelo does not claim, however, that defendants' unimmun-

ized actions were taken pursuant to either the Commonwealth's

direction or its established policy. Rather, he alleges that

defendants made numerous libelous statements "in television

studios, in political speeches made throughout the island, and in

political press releases." Barcelo, 876 F. Supp. at 1345. Nor

has he alleged that the actions complained of were other than

"random, unauthorized conduct" on the part of the individual

defendants.

It is rudimentary that a deprivation of procedural due

process caused by "random, unauthorized conduct" of a State offi-

cial is not actionable under section 1983 unless, amongst other

things, "no adequate 'post-deprivation remedy' is available under

state law." Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st

Cir. 1994). Romero-Barcelo neither alleged nor established that

Puerto Rico law affords no adequate remedy for whatever liberty

interest deprivation may have been sustained under Section 8 of

the Puerto Rico Constitution. Absent either an allegation

21

regarding the inadequacy of commonwealth tort remedies for

slander and libel, or even argumentation on the point, we decline

to address the question. See Rumford Pharmacy Inc., 970 F.2d at

999; Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987,

994 n.7 (1st Cir. 1992). We note further that the district

court's conclusion that Section 8 "is the main source of protec-

tion against libel and slander under Puerto Rico law," Barcelo,

876 F. Supp. at 1346 n.11 (citing Cortes Portalatin v. Hau Colon,

3 T.P.R. 1019 (1975)), is not challenged on appeal. See also

Willhauck v. Halpin, 953 F.2d 689, 704 (1st Cir. 1991) (court of

appeals may "affirm on any independently sufficient ground").

b. The First Amendment Claim
b. The First Amendment Claim

Appellant claims violations of his First Amendment

rights to freedom of speech and association. Before the district

court he claimed "that his right to free speech was chilled and

his right to associate with the NPP was adversely affected by the

[allegedly] defamatory statements made by the defendants."

Barcelo, 876 F. Supp. at 1348. The district court found, howev-

er, "that given the fact that he was elected Resident Commission-

er on the NPP ticket, [Romero-Barcelo's] claims regarding injury

to his right to associate with the NPP ring hollow." Id.

Further, the court concluded that "there [was] no indication that

the defendants compelled the plaintiff to advocate either an

unpopular or any other type of view." Id. at 1348 n.15 (con-

trasting Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (requir-

ing display of "Live Free or Die" motto on vehicle license plate

22

violates First Amendment right "to refrain from speaking."). We

agree.

On appeal, however, Romero-Barcelo contends that he

"alleged that he was singled out for . . . harassment and

deprivation of rights because of his beliefs and political

association." The crux of this argument is that defendants'

alleged conduct, both within the Hearings and without, was

undertaken because of Romero-Barcelo's association with the NPP.

The Supreme Court has held that the First Amendment "protects

nonpolicymakers from being drummed out of public service on the

basis of their political affiliation or advocacy of ideas."

Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 56-57 (1st

Cir. 1990) (citing Branti v. Finkel, 445 U.S. 507, 517 (1980);

Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality opinion)).

But Romero-Barcelo most assuredly qualified as an NPP policymak-

er. See id. at 57 n.6. Thus, the district court correctly found

no First Amendment protection for "a politician whose rights to

freedom of speech, freedom of association, and freedom 'to

disassociate [oneself] from unpopular views' have been injured by

other politicians seeking to undermine his credibility within his

own party and with the electorate." Barcelo, 876 F. Supp. at

1348 (alteration in original) (footnote omitted).

2. Section 1985(3)
2. Section 1985(3)

An actionable section 1985(3) claim must allege that

(i) the alleged conspirators possessed "some racial, or perhaps

otherwise class-based, invidiously discriminatory animus,"

23

Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), and (ii) their

alleged conspiracy was "aimed at interfering with rights . . .

protected against private, as well as official, encroachment."

United Bhd. of Carpenters & Joiners of America v. Scott, 463 U.S.

825, 833 (1983). See also Libertad v. Welch, 53 F.3d 428, 446

(1st Cir. 1995) (citing Bray v. Alexandria Woman's Health Clinic,

113 S. Ct. 753, 758 (1993)). The conspiracy allegation must

identify an overt act. See Griffin, 403 U.S. at 93; Libertad, 53

F.3d at 450 n.18. If no racial animus is charged, a discrimina-

tory class-based animus must be alleged. See Harrison v.

Brooks, 519 F.2d 1358, 1359 (1st Cir. 1975) (citing Griffin, 403

U.S. at 102). "The requirement that the discrimination be

'class-based' is not satisfied by an allegation that there was a

conspiracy which affected the interests of a class of persons

similarly situated with the plaintiffs. Rather, the complaint

must allege facts showing that the defendants conspired against

the plaintiffs because of their membership in a class and that

the criteria defining the class were invidious." Id. at 1359-60.

The complaint alleged that the three defendants "con-

spired . . . to launch a negative publicity campaign funded with

public funds and to label [him] as an assassin and murderer in

order to end his political career and enhance their own. [The]

defendants allegedly used their elected political positions to

keep the Committee investigations alive, and to reactivate those

committee hearings at politically advantageous opportunities."

Barcelo, 876 F. Supp. at 1349. The district court held these

24

allegations insufficient to support a conspiracy claim under

section 1985(3), rejecting the implicit assumption that "since

the defendants are members of the opposing political party and

had substantial control over the Committee hearings, they must

have had a conspiracy." Id. at 1350. The court further found no

allegation of an overt act, and no articulation of a "clear

class-based invidious discriminatory animus behind the alleged

actions of the alleged conspirators." Id. We agree that Romero-

Barcelo's allegations were insufficient to support a section

1985(3) claim.

On appeal, Romero-Barcelo does not address these

specific shortcomings in the complaint, choosing instead to rest

upon a conclusory statement that the allegations are sufficient

for a section 1985(3) claim,9 and the argument that the height-

ened pleading requirement for section 1985(3) conspiracy claims

under Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977),

cert. denied, 434 U.S. 1077 (1978) ("[C]omplaints cannot survive

a motion to dismiss if they contain conclusory allegations of

conspiracy but do not support their claims with references to

material facts."), is no longer good law, citing to Leatherman v.

Tarrant County Narcotics Intelligence & Coordination Unit, 113 S.

Ct. 1160 (1993). Leatherman rejected a "heightened pleading

standard" in civil rights actions claiming municipal liability

under section 1983. Id. at 1161. Even assuming Leatherman

9Although appellant argues that he should have been given an
opportunity to amend the complaint, our review of the record on
appeal discloses no indication that he made such a request below.

25

applies to the present claim, a matter we need not address, we do

not view the failure to allege essential elements of a section

1985(3) claim as any mere failure to comply with a "heightened

pleading requirement." See Griffin, 403 U.S. at 102-103.

26

III
III

CONCLUSION
CONCLUSION

For their alleged conduct within the legislative forum,

we conclude that defendants were protected by absolute legisla-

tive immunity. For their conduct outside the legislative forum,

the allegations were insufficient to state actionable claims

under sections 1983 and 1985(3). Appellant Romero-Barcelo has no

actionable procedural due process claim under section 1983,

either because he had no constitutionally protected "liberty"

interest, or because Puerto Rico law afforded whatever post-

deprivation process may have been due. Nor did appellant have an

actionable First Amendment claim, since there is no constitu-

tional ban against the alleged conduct. Finally, appellant

failed to plead all essential elements of an actionable conspira-

cy claim under section 1985(3). The district court
The district court

judgment is affirmed. Costs to appellees.
judgment is affirmed. Costs to appellees.

27