Rosado-Quiñones v. Toledo

United States Court of Appeals
For the First Circuit

No. 07-1425

RAMÓN ROSADO-QUIÑONES; LILLIAM RODRÍGUEZ-LÓPEZ,

Plaintiffs, Appellants,

v.

PEDRO A. TOLEDO, Superintendent of the Police of Puerto Rico;
INSPECTOR ANDRÉS ROSA-RODRÍGUEZ, Former Director of the C.I.C. in
Mayagüez; LT. JORGE VELÁZQUEZ-ALMODÓVAR, Director of the Robbery
Unit of the C.I.C. of Mayagüez; COLONEL JOSÉ L. CALDERO-LÓPEZ,
Auxiliary Superintendent for Criminal Investigation for the
Island of Puerto Rico; COMMANDER HÉCTOR AGOSTO-RODRÍGUEZ, In
charge of the Police of Mayagüez,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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

Before

Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.

Raúl Barrera-Morales with whom Jesús M. Hernández Sánchez
and Hernández Sánchez Law Firm were on brief for appellants.
Irene S. Soroeta-Kodesh, Assistant Solicitor General, with
whom Salvador J. Antonetti Stutts, Solicitor General, and Mariana
D. Negrón Vargas, Deputy Solicitor General, Department of
Justice, were on brief for appellees.
June 4, 2008
 LYNCH, Circuit Judge. Ramón Rosado-Quiñones, an officer

in the Puerto Rico Police Department ("PRPD" or "Department"),

brought an action against Department officials under 42 U.S.C.

§ 1983 seeking over $10 million in damages. He claimed that his

superiors violated his First Amendment rights when they assigned

him to new job duties, allegedly in retaliation for his having

filed a lawsuit against them in a local court. Rosado also

asserted a due process claim that he was denied notice and a

hearing about his changed job responsibilities, as well as pendent

claims under Puerto Rico law. The defendants moved for summary

judgment, which the district court allowed as to all federal

claims; the Puerto Rico law claims were dismissed without

prejudice. Rosado appeals. We affirm.

I.

The undisputed record shows the following. Rosado was a

veteran of the Puerto Rico Police Department, having been assigned

since 1985 to the specialized, plainclothes Criminal Investigation

Corps ("CIC") in Mayagüez. The Department transferred Rosado in

February 2005 to an assignment as a uniformed beat officer on the

undesirable 4:00-a.m.-to-noon shift, which produced this lawsuit.

This transfer followed several events.

In December 2002, criminal charges of disturbing the

peace were filed against Rosado. Pursuant to PRPD policy, Rosado

was forced to surrender temporarily his firearm. A Commonwealth

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judge found probable cause for the criminal charges and, in January

2003, scheduled Rosado for trial. Rosado was found not guilty in

August 2003. The PRPD continued to employ Rosado during the period

of the pending charges, his disarmament, and all times relevant to

this suit.

Rosado, despite requests that his firearm be returned,

was not rearmed by the Department until July 2004. On September

14, 2004, Rosado told the Superintendent of Police he intended to

sue the Department over his prolonged period of disarmament.

Following Rosado's notice, the Department initiated an internal

inquiry. On November 10, 2004, Rosado's superiors at the CIC

submitted a report to the PRPD commander of the Mayagüez region.

On November 17, 2004, Rosado filed suit in the

Commonwealth courts against the Commonwealth, the Department of

Justice, and a number of police officials. These officials

included the commander, three lieutenants and two sergeants. In

his Superior Court complaint, Rosado alleged a "pattern of labor

harassment" by the PRPD against him. Rosado alleged that after he

had been charged with disturbing the peace and his firearm had been

confiscated, the sergeant who took the gun "claimed that [Rosado]

had an emotional condition that was affecting the performance of

his duties." After Rosado was acquitted of the charges, two

separate sergeants in the Department reiterated their concerns

about his emotional condition, and one informed him that only the

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police psychiatrist could return Rosado's firearm. According to

Rosado's Superior Court complaint, the latter sergeant "opposed his

being rearmed deliberately in order to do damage to [Rosado],

requiring for no reason at all that [Rosado] be evaluated by the

Puerto Rico Police psychiatrist, which is an action that in and of

itself is illegal." The complaint goes on to acknowledge that

Rosado eventually did undergo a psychiatric evaluation on June 28,

2004, and was rearmed in July.

Rosado's complaint in the Puerto Rico court also alleged

that in spite of his past job performance and his acquittal of the

criminal charges, the Department's Office of Public Integrity

advised that Rosado be suspended without pay for ninety days,

although that suspension did not actually occur.1 Rosado's

complaint requested damages of $500,000.

Defendants put into evidence three reports about Rosado's

inappropriate conduct that were written before Rosado filed suit in

late 2004. There had been an incident on January 24, 2003, which

was memorialized in a January 28, 2003 memo from Lieutenant Nelson

Fonseca Rossy, Deputy Director of the Mayagüez CIC, to Captain

Héctor Agosto Rodríguez, Director of that unit. The memo reported

that Rosado defied the CIC's official start time. When admonished,

Rosado questioned the authority of his superior and said he was

1
The CIC informed Rosado on December 8, 2004 that he would
be suspended without pay for fifteen days. On December 20, Rosado
objected to the suspension, and the suspension never took place.

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being persecuted. Fonseca informed Rosado that he must get his

"persecution complex out of his head" since he was not being

persecuted.

Fonseca reported another instance of Rosado's

inappropriate conduct that occurred on December 3, 2003. Fonseca

described both a specific incident in which Rosado addressed

Fonseca "disrespectfully, arrogantly, and defiantly," and a

continuing pattern of disrespect by Rosado toward his superior.

The report noted that "this officer suffers from a persecution

complex and his conduct rebuffs supervision."

Sergeant Pedro Matos Fortuna, Head of Administration for

the Mayagüez CIC, also reported Rosado's actions on December 3,

2003. Matos complained that Rosado had addressed him "in a

hostile, disrespectful and derogatory manner, in contempt of the

position I hold at the agency and especially towards the criminal

investigation corps." The report concluded that based on this and

two prior incidents in January 2003, Rosado lacked respect for his

superiors and would not tolerate discipline. The report

recommended sending Rosado to professional improvement courses.

Internal disciplinary reports regarding Rosado's conduct

continued to be made after Rosado filed his first lawsuit and were

consistent in theme with the prior reports. A report dated January

26, 2005 and entitled "Act of Insubordination" was written by

Lieutenant Jorge Velázquez Almodóvar, the Head of the Robbery

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Section of the Mayagüez CIC. The report recounted a specific

incident in which Rosado objected to signing a receipt reflecting

the fact that he possessed a bulletproof jacket. Rosado also

refused to answer questions from Velázquez regarding a shooting

incident. Velázquez reported that Rosado disobeyed legal orders

and questioned authority. The report concluded that Rosado had

disqualified himself from working in the CIC. The report further

noted that Rosado's attitude spread unease among the department and

prevented other officers "from doing their job to the best of their

abilities." Velázquez requested an administrative investigation

into Rosado and further requested that Rosado be transferred out of

the CIC.2

The CIC Director, on February 1, 2005, agreed with the

recommendation that Rosado be transferred to another office.

On February 9, 2005, the Department transferred Rosado

from the CIC to the Field Operations unit. Rosado's new assignment

was that of uniformed police officer, the lowest rank in the

Department. Rosado's salary was not reduced. Rosado intended to

retire from the PRPD once he became eligible in January 2007.

On January 27, 2006, Rosado filed a damages suit in

federal court in Puerto Rico. Rosado's federal complaint alleged

2
The January 26 memo also complained that Rosado solved
crimes at a lower rate than others and cited an intra-departmental
minimum case-resolution rate. Rosado disputes that rate. In our
view, this dispute is immaterial.

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that the PRPD violated his due process rights when it demoted him

without a hearing. The complaint also alleged that the transfer

violated the First Amendment because it was ordered in retaliation

for Rosado's previous filing of a complaint in Puerto Rico court.

The complaint also included a claim under Puerto Rico law. Rosado

sought damages of $10 million for his constitutional claims and

$100,000 for his state law claim.

Defendants moved for summary judgment on December 7,

2006. Rosado filed an affidavit in opposition, in which he denied

the conclusion in the January 26, 2005 report that he was

insubordinate and said he "was only exercising my right to free

speech." As proof that he was not insubordinate, Rosado claimed he

was not actually investigated. He did not dispute that his

supervisors had concluded he was insubordinate and documented their

concerns to the command staff. Nor did Rosado dispute the facts

stated in the internal disciplinary memoranda detailing his

actions, although he disputed the contention that he had been

insubordinate.

The district court granted the defendants' motion on

February 5, 2007. Rosado Quiñones v. Toledo Davila, No. 06-1113,

2007 WL 438770 (D.P.R. Feb. 5, 2007).

II.

We review the district court's ruling de novo, taking the

facts and all reasonable inferences in the light most favorable to

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Rosado. Hoyos v. Telecorp Commc'ns, Inc., 488 F.3d 1, 5 (1st Cir.

2007).

As to the federal due process claim, the district court

correctly held that because Puerto Rico law does not recognize any

property interest in the performance of particular job functions in

the course of an employee's continued employment, there was no

constitutionally protected interest requiring a due process

hearing. Rosado Quiñones, 2007 WL 438770, at *5 (citing Rosado de

Velez v. Zayas, 328 F. Supp. 2d 202, 212 (D.P.R. 2004)). We affirm

the district court's conclusion on the due process claim.

The district court's opinion then treated Rosado's First

Amendment claim as a free speech claim by a public employee and

analyzed the claim under a three-part test:

(1) whether the speech involves a matter of
public concern; (2) whether, when balanced
against each other, the First Amendment
interests of the plaintiff and the public
outweigh the government's interest in
functioning efficiently; and (3) whether the
protected speech was a substantial or
motivating factor in the adverse action
against the plaintiff.

Jordan v. Carter, 428 F.3d 67, 72 (1st Cir. 2005) (quoting Mihos v.

Swift, 358 F.3d 91, 102 (1st Cir. 2004)). See generally Connick v.

Myers, 461 U.S. 138 (1983); Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274 (1977); Pickering v. Bd. of Educ., 391

U.S. 563 (1968). This test has since been refined, in ways not

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germane here, in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

See Curran v. Cousins, 509 F.3d 36, 44-45 (1st Cir. 2007).

The district court did not reach the second and third

prongs of the test, because it found that Rosado's November 2004

complaint in Puerto Rico Superior Court did not address a matter of

public concern. The court held that the complaint (which alleged

harassment by fellow employees and delay in rearmament) was "a

classic example of speech concerning internal working conditions

affecting only the speaker and co-workers." Rosado Quiñones, 2007

WL 438770, at *5. We agree.

"Whether an employee's speech addresses a matter of

public concern must be determined by the content, form, and context

of a given statement, as revealed by the whole record." Connick,

461 U.S. at 147-48. The content of Rosado's speech, as embodied by

the allegations in his original Superior Court complaint, is

dispositive here. That complaint, replete with implications that

PRPD personnel held personal animosity toward Rosado, does not even

approach matters of inherent public concern in the context of law

enforcement, such as "official malfeasance, abuse of office, and

neglect of duties." Curran, 509 F.3d at 46. Rosado's claims of

"labor harassment" do not implicate the ability of PRPD personnel

to carry out their responsibility to the public, i.e., the

provision of competent law enforcement services. Cf. Davignon v.

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Hodgson, --- F.3d ----, 2008 WL 1822375, at *6-8 (1st Cir. Apr. 24,

2008).

The speech for which Rosado claims protection here

recalls the Supreme Court's admonition that:

when a public employee speaks not as a citizen
upon matters of public concern, but instead as
an employee upon matters only of personal
interest, absent the most unusual
circumstances, a federal court is not the
appropriate forum in which to review the
wisdom of a personnel decision taken by a
public agency allegedly in reaction to the
employee's behavior.

Connick, 461 U.S. at 147. It is clear on this record that Rosado's

first lawsuit did not constitute speech on a matter of public

concern, and as such, he has no First Amendment free speech

challenge to his transfer out of the CIC.

Rosado's brief on appeal argues summarily that the cases

on which the district court relied are distinguishable and that

this case is different because "the area of free speech involved is

the filing of a law suit." Rosado merely recites language from

NAACP v. Button, 371 U.S. 415, 429 (1963) ("[T]he First Amendment

also protects vigorous advocacy, certainly of lawful ends, against

governmental intrusion."), and United Mine Workers, District 12 v.

Illinois State Bar Ass'n, 389 U.S. 217, 222 (1967) ("[T]he rights

to assemble peaceably and to petition for a redress of grievances

are among the most precious of the liberties safeguarded by the

Bill of Rights."). However, he presents no further arguments to

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suggest how these broad principles could or should alter the

established Pickering/Connick/Mt. Healthy framework for assessing

public employees' claims of retaliation for First Amendment

activity. Rosado has not even attempted to argue that the right to

file a court complaint is entitled to more protection under the

First Amendment than other methods of expressing grievances with

public employers.

The cases cited by Rosado do not carry the weight he

assigns them. United Mine Workers involved the different issue of

whether members of a union "had a right, protected by the First and

Fourteenth Amendments, to join together and assist one another in

the assertion of their legal rights by collectively hiring an

attorney to handle their claims." 389 U.S. at 221. Button

involved a similar issue about the right of NAACP staff attorneys

to provide legal services to litigants whose cases comported with

the association's institutional goals. 371 U.S. at 419-26. Both

cases involved attempts by a state to interfere with the rights of

organizations under the First and Fourteenth Amendments to employ

attorneys for purposes of vindicating legal rights related to their

associational purposes. Those interests are simply not involved in

this case.

If there is a question of law about whether there is

added First Amendment protection for public employees' filing of

lawsuits against their employers on matters in which the public has

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no interest, resolution of that question will await a different

case. In the absence of any developed argument on the point, the

question is not before us. United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed

waived.").

Even if this argument were not waived -- and it was -- it

would likely fail on the merits. We have examined our precedent in

Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004), and Fabiano v.

Hopkins, 352 F.3d 447 (1st Cir. 2003), not cited by plaintiff to

either the district court or this court. Powell acknowledges, in

the public employment context, that under the First Amendment,

there is both a free speech aspect and a right to petition aspect

to claims of retaliation against the filing of lawsuits. Id. at

16-17. Rosado never made that distinction clear to the district

court. Notwithstanding the presence of a right to petition claim

in Powell, this court applied the classic Pickering/Connick/Mt.

Healthy analysis. 391 F.3d at 17. In Fabiano, this court applied

Pickering and its progeny to a claim of retaliation for exercising

the right to petition by a former city employee who sued a city

agency. 352 F.3d at 453.

In Powell, we upheld an award against a public employer

found to have retaliated against an employee who filed lawsuits

alleging race discrimination. 391 F.3d at 5-7. The subject matter

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of the civil rights suit there was plainly a matter of public

concern. Further, statutory policy under Title VII prohibits

retaliation for the filing of race discrimination claims.

Significantly, the defendants in Powell never argued either that

the plaintiff's complaints alleging race discrimination were

frivolous or that they did not address matters of public concern.

See 391 F.3d at 17, 20.

By contrast here, the matter of the timing or manner by

which the PRPD rearmed Rosado raises no constitutional or public

policy concerns. And there is no apparent statutory protection

against retaliation for the filing of Rosado's lawsuit. Rosado's

lawsuit does not involve matters of interest to the public.

We note there is no absolute First Amendment right to

file lawsuits. See Bill Johnson's Rests., Inc. v. NLRB, 461 U.S.

731, 743 (1983) ("[S]ham litigation . . . does not come within the

first amendment right to petition."). The filing of a meritless

lawsuit is subject to sanctions, including the award of attorneys'

fees. See, e.g., Fed. R. Civ. P. 11.

We have reviewed the summary judgment papers. Even if we

were to assume there was some form of First Amendment interest in

protecting the mere filing of Rosado's lawsuit, which did not

address a matter of public concern, such an interest is outbalanced

by the PRPD's interests. Those interests here include ensuring the

emotional stability of officers to whom the Department gives arms,

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curbing insubordination, and being able to respond to a request

from an officer's superiors that he be transferred because of a

pattern of repeated disrespect for and refusal to take commands

from his supervisors. The decision to transfer, made by the

command staff in light of reports it received, outweighs any First

Amendment interest in filing a lawsuit the content of which is not,

under Connick, protected by the First Amendment.

The judgment is affirmed.

Dissenting Opinion Follows

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 TORRUELLA, Circuit Judge (Dissenting in part). Finding

that Rosado-Quiñones waived his argument that the First Amendment

protects his filing of a lawsuit, the majority affirms the grant of

summary judgment to appellees. I cannot agree. Rosado-Quiñones

sufficiently developed his argument alleging a violation of his

First Amendment right of access to the courts. I would therefore

decide the issue that the majority refuses to confront, and would

hold that Rosado-Quiñones raised it with sufficient clarity and

correctness to survive the appellee's motion for summary judgment.

First of all, Rosado-Quiñones did not waive the argument

that he has a First Amendment right of access to the courts for

redress of his grievances. He argued in his original complaint

that he was transferred and demoted "due to the fact that [he] had

filed a damage claim." This is clearly an argument that the First

Amendment protects his right of access to the courts. His argument

was in no way perfunctory. Rosado-Quiñones did not "merely . . .

mention a possible argument in the most skeletal way." United

States v. Zannino, 895 F.2d 1, 17 (1990). He passed the threshold

of fulfilling his "obligation 'to spell out [his] arguments

squarely and distinctly.'" Rivera-Gómez v. de Castro, 843 F.2d

631, 635 (1st Cir. 1988) (quoting Paterson-Leitch Co. v. Mass. Mun.

Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988)).

In the brief he filed with this court, Rosado-Quiñones

renews the argument he made in his opposition to summary judgment.

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In distinguishing his case from Pickering v. Board of Education,

391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983),

among others, Rosado-Quiñones makes clear that "the area of free

speech involved is the filing of a law suit." He quotes NAACP v.

Button, 371 U.S. 415, 429 (1963), for the proposition that "[t]he

right to file a law suit is a form of communication embraced by the

First Amendment." He makes the same argument in the brief he filed

before this court. He cites Button and United Mine Workers of

America, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 222

(1967), for no other reason than to argue that he has a First

Amendment right to file a lawsuit. While I agree with the majority

that Button and United Mine Workers also involved other issues,

those other issues are not germane to his argument. The majority

attempts to cast aside these cases by saying that the cases "do not

carry the weight [Rosado-Quiñones] assigns them." Slip op. at 12.

I disagree. That they dealt with other issues does not take away

from the fact that they, and we, have held that the First Amendment

encompasses the right of access to courts. See Fabiano v. Hopkins,

352 F.3d 447, 453 (1st Cir. 2003) ("As an initial matter, every

citizen has the right 'to petition the Government for a redress of

grievances.' U.S. Const. amend. I. The right of access to the

courts is an established aspect of this right." (citing Bill

Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741 (1983))).

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 The Pickering/Connick/Mt. Healthy line of cases is the

wrong analytical framework in which to view Rosado-Quiñones's

claim. As he made clear in his brief and at oral arguments, those

cases dealt with free speech; his claim deals with the First

Amendment right to file a lawsuit. This right is distinct from the

right to distribute a questionnaire at work, Connick, 461 U.S. at

140-41; the right to comment on a radio station about the substance

of a memorandum issued by a public school principal, Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 274 (1977); or

the right of a teacher to send a letter to a local newspaper

criticizing the school board, Pickering, 391 U.S. at 564. Those

claims involved a different kind of First Amendment right than the

one asserted by Rosado-Quiñones. In Powell v. Alexander, 391 F.3d

1 (1st Cir. 2004), we said that the plaintiff's "filing of his 1991

lawsuit was an exercise of his First Amendment right to petition

the government for redress, and that in retaliating against him for

the filing of that lawsuit [the City Solicitor] risked violating

his right under the Constitution." Id. at 20. Rosado-Quiñones

claims that he was retaliated against for the same reason. "'[O]ur

constitutional system gives every citizen the right to seek redress

in the courts . . . without fear that recourse to the law will make

that citizen a target for retaliation." Id. at 16 (citation

omitted) (second alteration in original).

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 Rosado-Quiñones filed a lawsuit because he claimed that

he was wronged by a governmental actor. "'[G]oing to a judicial

body for redress of alleged wrongs . . . stands apart from other

forms of action directed at the alleged wrongdoer.'" Bill

Johnson's Restaurants, 461 U.S. at 741 (citation omitted) (second

alteration in original). Were we to require governmental employees

to demonstrate that their lawsuits were matters of public concern

as a prerequisite to constitutional protection against retaliation

for exercising this right, we would be placing an unwarranted and

unconstitutional burden on them that is not placed on other

citizens, merely by virtue of their status as public employees.

Cf. id. at 742 ("If the Board is allowed to enjoin the prosecution

of a well-grounded state lawsuit, it necessarily follows that any

state plaintiff subject to such an injunction will be totally

deprived of a remedy for an actual injury.").

I agree with the majority that the First Amendment does

not protect against sham lawsuits. See slip op. at 14. Indeed,

"[t]he first amendment interests involved in private litigation

. . . are not advanced when the litigation is based on intentional

falsehoods or on knowingly frivolous claims." Bill Johnson's

Restaurants, 461 U.S. at 743. But there is a difference between

frivolous litigation and a lawsuit that has a "reasonable basis in

fact or law." Id. at 748. The correct legal framework in which to

view Rosado-Quiñones's lawsuit is to look at whether his suit has

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such a reasonable basis. At the summary judgment stage, courts

should merely examine whether or not a plaintiff is "able to

present the [court] with evidence that shows his lawsuit raises

genuine issues of material fact." Id. at 745-46. Summary judgment

for a case such as this one should not be granted unless the

"plaintiff's position is plainly foreclosed as a matter of law or

is otherwise frivolous." Id. at 747. The district did not make

either finding below, nor can we reach such a conclusion on the

record before us.

Rosado-Quiñones filed his original lawsuit in the

Commonwealth courts on November 17, 2004, and he was transferred

and demoted on February 5, 2005. He argues that he was transferred

and demoted because he filed a lawsuit against the Superintendent

of Police of Puerto Rico and other defendants. His lawsuit is not

frivolous on its face, nor is it plainly foreclosed as a matter of

law. There is enough temporal proximity between those events that

a reasonable jury could determine that Rosado-Quiñones was

retaliated against because he filed a lawsuit against the Police

Department. See Mariani-Colón v. Dep't of Homeland Sec. ex rel.

Chertoff, 511 F.3d 216, 224 (1st Cir. 2007) ("'[T]emporal

proximity' between appellant's allegations of discrimination in

June 2002 and his termination in August 2002 is sufficient to meet

the relatively light burden of establishing a prima facie case of

retaliation." (citing Pomales v. Celulares Telefónica, Inc., 446

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F.3d 79, 85 (1st Cir. 2006))). His allegation that he was

retaliated against because he filed a lawsuit against the Police

Department presents a genuine issue of material fact that should be

decided by a jury. Accordingly, I would reverse the grant of

summary judgment and give Rosado-Quiñones his day in court.

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