United States Court of Appeals
For the First Circuit
No. 99-2137
JUAN A. LOPEZ-CARRASQUILLO,
Plaintiff, Appellant,
v.
WANDA RUBIANES, ARCILIO ALVARADO, MARLENE CINTRON and DIANA
ROCA
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fusté, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Ernesto G. López-Soltero on brief for appellant.
Gustavo A. Gelpi, Solicitor General of the Commonwealth of
Puerto Rico, Rosa N. Russe-Garcia, Deputy Solicitor General and
Leticia Casalduc-Rabell, Assistant Solicitor General on brief
for appellees.
October 23, 2000
LIPEZ, Circuit Judge. In a case with a procedural
twist, the district court terminated the plaintiff's claims by
entering summary judgment in favor of three defendants sua
sponte without providing the plaintiff notice and an opportunity
to be heard. This was impermissible in the circumstances of
this case, and we vacate the judgment dismissing those claims.
However, we affirm the district court's decision to grant
summary judgment in favor of a fourth defendant.
I. BACKGROUND
Beginning in 1986, Juan A. López-Carrasquillo worked
as a migration specialist at the immigration office of the
Puerto Rico Department of Labor in New York. On April 15, 1993,
this office was merged into the Puerto Rico Federal Affairs
Administration ("FAA"). Arcilio Alvarado was Secretary of the
Puerto Rico Community Affairs Department of the FAA from January
2, 1993 to June 30 of that year, and in that capacity he
supervised López. That supervisory authority ended on July 1,
1993 when Alvarado became the Associate Director of Regional
Offices at the Puerto Rico Federal Affairs Administration.
Alvarado's position with the FAA ended on June 6, 1994.
López is a member of the Popular Democratic Party
("PDP"), and he alleges that his political affiliation was well
known throughout his department at the FAA. His father, Juan
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López-Hernandez, was also a prominent member of the PDP, as well
as a delegate to the Puerto Rico House of Representatives for 16
years. On November 4, 1992, the president of the New
Progressive Party ("NPP"), Pedro Rossello Gonzalez, was elected
governor of Puerto Rico. López claims that this shift in
political power "established [him] as a primary target of the
newly named directors and secretary." López was formally
dismissed from his position at the FAA on June 19, 1996.
On December 10, 1996, he filed a claim pursuant to 42
U.S.C. § 1983 against the FAA and seven government officials,
including Alvarado, Pedro Rossello Gonzalez, Governor of Puerto
Rico, Wanda Rubianes, Director of the FAA, John Sota, Deputy
Director of the FAA, Marlene Cintrón, Director of the New York
City office of the FAA, Diana Roca, Director of the Philadelphia
office of the FAA, and Cesar Almodovar Marchany, Secretary of
Labor. On September 2, 1998, the district court accepted an
amended complaint by López that added additional facts about
three of the defendants. In both pleadings, but more
specifically in the amended complaint, he alleges that the
defendants discriminated against him because of his political
affiliation. López states that his name was eliminated from
department directories, important documents were removed from
his office, and trash was kept on his desk. He also claims that
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he was denied keys to an office "of a program that supposedly
was under his responsibility," and that he was left out of
important decisions regarding employees under his supervision.
López contends that these incidents constituted attacks on his
self-esteem and caused physical symptoms, including elevated
blood pressure and chest pains. He further alleges that this
discrimination culminated in the termination of his job.
II. DISMISSAL OF CLAIMS AGAINST ROCA, RUBIANES, AND CINTRÓN
To explain the error in the court's dismissal of
López's claims against Diana Roca, Wanda Rubianes, and Marlene
Cintrón, we must recount the procedural posture of this case at
the time of the court's ruling. On June 2, 1997, the district
court dismissed the claims against the FAA on Eleventh Amendment
grounds, finding that the FAA was "an arm of the government" of
Puerto Rico. In the same order, the court also dismissed
Lopez's claims against all of the individual defendants except
Alvarado because liability under § 1983 cannot rest on a theory
of respondeat superior. 1 López then sought to amend his
complaint pursuant to Fed. R. Civ. P. 15(a), alleging additional
1Although the court dismissed the case against all but one
of the defendants, only three of the seven defendants--the FAA,
the Governor of Puerto Rico, and Cesar Almodovar-Marchany--filed
the motion to dismiss.
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acts by Alvarado and three of the previously dismissed
government officials--Rubianes, Cintrón, and Roca. The court
initially denied the motion to amend the complaint, and López
moved for reconsideration.
While this motion was pending, Alvarado, the sole
remaining defendant, moved for summary judgment on the basis of
the original complaint. Before acting on the summary judgment
motion, the district court allowed the amended complaint against
Alvarado, Rubianes, Cintrón and Roca. The court then granted
summary judgement in favor of Alvarado, first on the basis of
the original complaint, and then, upon reconsideration, on the
basis of the amended complaint as well. The court also entered
judgment against López, asserting that there were no longer any
defendants remaining in the case. That statement was incorrect
because of the court's decision to allow López to file his
amended complaint.
The amended complaint identified Rubianes, Cintrón and
Roca (as well as Alvarado) as defendants and it added to the
allegations of the original complaint. The district court's
allowance of this amended complaint reinstated López's claims
against the three previously dismissed defendants. With these
defendants back in the case, the district court could not enter
a judgment against López on the basis of granting summary
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judgment to Alvarado without disposing of the claims it had
allowed in the amended pleading against Rubianes, Cintrón, and
Roca. See 6 Wright, Miller & Kane, Federal Practice and
Procedure § 1476, 556-57 (1990) (noting that once an amended
pleading is filed it "supercedes the pleading it modifies" and
that "any subsequent motion . . . should be directed at the
amended pleading").
Moreover, before disposing of claims against the
reinstated defendants, the court had to provide López with
notice and an opportunity to be heard. See Futura Development
of Puerto Rico, Inc. v. Estado Libre Asociado de Puerto Rico,
144 F.3d 7, 14 (1st Cir. 1998) (sua sponte dismissal requires
notice and opportunity to be heard); see also Rogan v. Menino,
175 F.3d 75, 79 (1st Cir. 1999) (sua sponte summary judgment
requires notice and opportunity to be heard). The notice
requirement could not be ignored simply because the district
court had previously dismissed the claims against Rubianes,
Cintrón, and Roca in the original complaint. See Reese v.
Sparks, 760 F.2d 64, 66 (3d Cir. 1985) (error for district court
to grant sua sponte summary judgment on the amended complaint
without notice, notwithstanding that the court had previously
granted summary judgment on the basis of the original
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complaint);2 accord Reflectone, Inc. v. Farrand Optical Co.,
Inc., 862 F.2d 841, 845 (11th Cir. 1989); United States Dev.
Corp. v. People's Fed. Sav. & Loan Ass'n, 873 F.2d 731, 735 (4th
Cir. 1989).
López had no such notice here. Rubianes, Cintrón and
Roca never filed a motion to dismiss or a motion for summary
judgment once the amended complaint was permitted. The district
court provided no notice to López that it was considering sua
sponte dismissal or summary judgment. Instead, the district
court granted summary judgment to Alvarado on the basis of his
pending motion and then simply asserted that the rest of the
case had also been terminated, ignoring the fact that Rubianes,
2 Reese v. Sparks, 760 F.2d 64 (3d Cir. 1985), a case
relied upon by López, is arguably distinguishable on two
grounds, but neither difference is significant for our purposes.
First, the trial court in Reese expressly vacated a previous
grant of summary judgment at the same time that it allowed the
amended complaint. See id. at 65. Here, the district court did
not expressly vacate its decision to dismiss the claims against
Rubianes, Cintrón and Roca. We see no significance in that
distinction. Whatever the status of that earlier dismissal, the
court's decision to allow an amended complaint that specifically
named Rubianes, Cintrón and Roca as defendants had the
unmistakable effect of reinstating a set of claims against
previously dismissed defendants. Second, the court noted in
Reese that the amended complaint differed materially from the
first complaint because it averred additional facts and
articulated a new legal theory. See Reese, 760 F.2d at 66.
López's amended complaint adds allegations but it is not
materially different from his original complaint. We see no
significance in that distinction. López was entitled to notice
because the court had reinstated a set of claims against the
three defendants.
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Cintrón and Roca were reinstated as defendants because of the
amended complaint it had allowed. Under these circumstances,
entering judgment in favor of these defendants was an error.
III. SUMMARY JUDGMENT IN FAVOR OF ALVARADO
The district court entered summary judgment in favor
of Alvarado on the basis of the statute of limitations. In
ruling upon a motion for reconsideration, the court stated that
the additional facts pleaded by López in his amended complaint
did not change this disposition. We review the district court's
ruling de novo. See Muniz-Cabrero v. Ruiz, 23 F.3d 607, 609
(1st Cir. 1994).
Summary judgment is appropriate when "there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c); see also Sheinkopf v. Stone, 927 F.2d 1259, 1261 (1st
Cir. 1991). As the party opposing the motion, López must set
forth facts to demonstrate that a genuine issue exists for
trial. See Fed. R. Civ. P. 56(e); Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). He has the burden
of producing "specific facts, in suitable evidentiary form" to
counter the evidence Alvarado has presented. Morris v.
Government Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.
1994). López cannot rely upon "conclusory allegations,
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improbable inferences, and unsupported speculation" regarding
Alvarado’s allegedly discriminatory acts. Id. If the facts,
taken in the light most favorable to López, do not create a
genuine issue of material fact regarding his ability to make out
a claim of political discrimination, summary judgment was
proper, and we must affirm. See Mack v. Great Atlantic &
Pacific Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
On appeal, López argues that the district court erred
in finding his claim time-barred under the statute of
limitations. He contends further that the district court should
have found the existence of a continuing violation in the
discriminatory conduct he attributes to Alvarado. We agree that
the district court properly entered summary judgment for
Alvarado, but we affirm for reasons different than those relied
upon by the district court. See Medina-Munoz, 896 F.2d at 7
(stating that a court of appeals may affirm on "any
independently sufficient ground" when reviewing a district
court’s grant of summary judgment).
The statute of limitations inquiry assumes that
Alvarado committed an act or engaged in a course of conduct that
could be the basis for a claim of political discrimination. If
Alvarado committed no such predicate act or acts, there is no
need to consider whether López’s complaint was timely filed or,
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in the alternative, whether the conduct constituted a continuing
violation such that López could still recover for some incidents
otherwise barred by the statute of limitations. Having reviewed
the summary judgment record in vain for evidence that Alvarado
committed a discriminatory act, we conclude that López has not
met his burden of demonstrating the existence of a genuine issue
of material fact on this essential point.
In support of his motion for summary judgment, Alvarado
presented evidence, properly substantiated, to refute López’s
allegations of his discriminatory conduct. In his affidavit,
Alvarado states, "I did not conspire or meet with anyone in
order to set up a plan which will lead to plaintiff’s eventual
dismissal." He also states that he did not participate in the
decision to dismiss López from his position at the FAA in 1996.
Because Alvarado properly supported his motion for summary
judgment, López had to demonstrate the existence of a
trialworthy issue regarding discriminatory conduct by Alvarado.
See Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124 F.3d
47, 50 (1st Cir. 1997) (stating, with respect to summary
judgment, "the nonmovant must identify properly substantiated
facts sufficient to establish a trialworthy issue"). In
attempting to meet this burden, López may not rest on the "mere
allegations or denials of his pleading." Borschow Hospital &
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Med. Supplies, Inc. v. Cesar Castillo Inc., 96 F.3d 10, 14 (1st
Cir. 1996) (quoting Barbour v. Dynamics Research Corp., 63 F.3d
32, 36 (1st Cir. 1995)). Rather, he must "point to evidence in
the record that would 'permit a rational factfinder to conclude
that the challenged personnel action occurred and stemmed from
a politically based discriminatory animus.'" Padilla-Garcia v.
Guillermo Rodriguez, 212 F.3d 69, 74 (1st Cir. 2000) (quoting
Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir. 1994)).
In response to Alvarado's motion for summary judgment,
López offered only a personal affidavit and two pages from the
transcript of Alvarado's deposition. Because the deposition
excerpt is in Spanish, and López did not provide an English
translation, we decline to consider it as part of the record on
summary judgment. See 1st Cir. R. 30(d); see also Gonzalez-
Morales v. Hernandez-Arencibia, 221 F.3d 45, 50 n.4 (1st Cir.
2000) (finding appellants had waived arguments premised on
documents for which they had not provided translations).3
In his affidavit, López references the "Opposition to
Motion for Summary Judgment" filed with the district court and
avers that "it is correct in all its parts to the best of my
knowledge." This statement is insufficient as a proffer of
3 We note that some of the documents submitted by Alvarado
to support his motion for summary judgment are also in Spanish,
and we decline to consider these as well.
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evidence because affidavits submitted in opposition to a motion
for summary judgment must be based on the affiant’s personal
knowledge. See Fed. R. Civ. P. 56(e); see also Carmona v.
Toledo, 215 F.3d 124, 131 (1 st Cir. 2000) (noting that such
affidavits must be made on personal knowledge and set forth
facts that would be admissible in evidence). Moreover, the
pleading to which he refers contains only legal arguments, with
the exception of one quasi-factual allegation that states,
"Defendant Arcilio Alvarado actively discriminated against
plaintiff [sic] he was responsible for taking away his
responsibilities for transferring him and was the one who
clearly identified plaintiff as a member of the Popular
Democratic Party." This assertion merely repeats the conclusory
allegations in the complaint and does not establish a genuine
issue of material fact regarding whether Alvarado treated López
differently because he was a member of the PDP. See Santiago-
Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st
Cir. 2000) ("To the extent that affidavits submitted in
opposition to a motion for summary judgment merely reiterate
allegations made in the complaint, without providing specific
factual information made on the basis of personal knowledge,
they are insufficient.").
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Finally, the only other evidence of discrimination that
might be gleaned from this record is a single line in López's
affidavit, where he states, "Mr. Alvarado in many occasions made
reference to my political affiliation." This assertion about
statements of political affiliation - unaccompanied by any
specific factual information to support this claim, and
unrelated to any employment action taken by Alvarado against
López - is patently insufficient to establish an act of
political discrimination. See, e.g., Figueroa-Serrana v. Ramos-
Alverio, 221 F.3d 1, 8 (1st Cir. 2000) (affirming summary
judgment for defendants where the only evidence offered by
plaintiffs was a sworn statement that a defendant "voiced his
intention" to rid the workplace of employees with plaintiffs'
political affiliation); Dartmouth Review v. Dartmouth College,
889 F.2d 13, 16 (1st Cir. 1989) (stating, "we have consistently
required plaintiffs to outline facts sufficient to convey
specific instances of unlawful discrimination") (emphasis
added).
In short, López has failed to offer any properly
substantiated evidence indicating that an act by Alvarado is
cognizable as a claim of political discrimination. Accordingly,
we need not reach the issue of whether a lawsuit filed to
recover for such an act would be barred by the statute of
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limitations. Because López has not met his burden of opposing
the motion for summary judgment, the court properly entered
judgment for Alvarado.
Affirmed in part, vacated in part, and remanded for
proceedings consistent with this opinion.
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