Grajales v. Puerto Rico Ports Authority

United States Court of Appeals
For the First Circuit

No. 11-1404

DANIEL GRAJALES ET AL.,

Plaintiffs, Appellants,

v.

PUERTO RICO PORTS AUTHORITY ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Selya and Lipez,
Circuit Judges.

Eugenio W.A. Géigel-Simounet, with whom Géigel-Simounet Law
Offices C.S.P. was on brief, for appellants.
José Vázquez García, with whom Maza & Green, P.S.C. was on
brief, for appellee Puerto Rico Ports Authority.
Luis R. Román-Negrón, Acting Solicitor General, with whom
Jeanette M. Collazo-Ortiz, Acting Deputy Solicitor General, Zaira
Z. Girón-Anadón, Deputy Solicitor General, and Susana I.
Peñagarícano-Brown, Assistant Solicitor General, were on brief, for
individual appellees.

June 13, 2012
 SELYA, Circuit Judge. This case requires us to revisit

the plausibility threshold that a complaint must cross in order to

survive a motion to dismiss. See, e.g., Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

(2007). After careful consideration of a scumbled record, we

reverse the judgment of dismissal and remand for further

proceedings.

I. BACKGROUND

We briefly rehearse the background of the case, reserving

salient details for our discussion of the merits. Because this

appeal follows the granting of a motion for judgment on the

pleadings, we glean the facts from the operative pleading (in this

instance, the second amended complaint). See R.G. Fin. Corp. v.

Vergara-Nuñez, 446 F.3d 178, 182 (1st Cir. 2006). For purposes of

this appeal, we accept those facts as true.

At all times relevant hereto, plaintiff-appellant Daniel

Grajales worked for the Puerto Rico Ports Authority (PRPA).1 On

June 19, 2006, Fernando Bonilla, the PRPA's executive director,

named the plaintiff to a trust position within the PRPA.2 At the

1
Grajales's wife and their conjugal partnership also appear
as plaintiffs and appellants. Since their claims are wholly
derivative, we opt for simplicity and focus our ensuing discussion
on Grajales qua plaintiff and appellant.
2
In Puerto Rico, "career" positions are akin to civil service
positions. "'Career' employees must be selected and terminated
based on merit, not politics." Uphoff Figueroa v. Alejandro, 597
F.3d 423, 430 n.7 (1st Cir. 2010). By contrast, "trust" positions

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time of his appointment, the Popular Democratic Party (PDP) held

the reigns of power in Puerto Rico. In 2008, the plaintiff

voluntarily resigned this post in order to accept a career position

at the Luis Muñoz Marín International Airport in Carolina. Within

a matter of months, he transferred to another career position as a

security supervisor at the Aguadilla airport (a facility located in

his hometown).

The PDP lost the general election held in November of

2008, and its main rival, the New Progressive Party (NPP), assumed

office. In early 2009, the plaintiff began experiencing workplace

harassment. Some of the most notable affronts included his

banishment from the Aguadilla airport, his transfer to the

Mercedita airport in Ponce (which was far from his home), the

removal of his sidearm, a series of negative performance

evaluations, and threats of suspension and termination. No

legitimate reason supported any of these actions.

Dismayed by these events, the plaintiff sued the PRPA and

six of his tormentors (defendants-appellees Alvaro Pilar-Vilagrán,

Elmer Emeric, Carlos Travieso, Manuel Villazán Lig-Long, Gonzalo

González-Santini, and Miguel Alcover). The centerpiece of his suit

was a claim of political discrimination. This claim asserted in

do not enjoy comparable protections. Thus, employees who occupy
positions of trust serve at the pleasure of the appointing
authority and are subject to selection and dismissal on, inter
alia, political grounds. See id.

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substance that the individual defendants had engaged in a campaign

of harassment against him because of his ties to the PDP.

We fast-forward past a melange of discovery and other

pretrial proceedings to the point at which the plaintiff filed his

second amended complaint. After filing their answers, the

defendants moved for judgment on the pleadings, arguing that the

complaint failed, in the words of the Supreme Court, to "state a

claim to relief that is plausible on its face." Iqbal, 556 U.S. at

678 (quoting Twombly, 550 U.S. at 570) (internal quotation marks

omitted). The district judge referred the motion to a magistrate

judge, see 28 U.S.C. § 636(b)(1)(B), who recommended granting it.

On de novo review, the district judge accepted the recommendation

and dismissed all of the plaintiff's federal claims with prejudice.

For ease in exposition, we do not distinguish between the two

judicial officers but take an institutional view and refer to the

decision as that of the district court.

The district court concluded that the second amended

complaint failed to cross the plausibility threshold because it did

not allege sufficient facts to support a prima facie case of

political discrimination. Grajales v. P. R. Ports Auth., No. 09-

2075, 2011 WL 1742972, at *2-6 (D.P.R. Jan. 25, 2011).

Specifically, the complaint failed to allege facts demonstrating

that the defendants knew of the plaintiff's political affiliation.

Id. at *2. Moreover, the plaintiff failed to demonstrate a "causal

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connection between the challenged employment action . . . and any

conduct protected by the First Amendment that would have amounted

to political discrimination." Id. at *3.

Elaborating further, the court noted that the only

indication of political animus was the plaintiff's conclusory

statement to that effect. See id. at *6. In the court's

estimation, the facts alleged reflected no political undercurrents.

See id. This timely appeal followed.

II. ANALYSIS

When, as now, a motion for judgment on the pleadings

under Federal Rule of Civil Procedure 12(c) is employed as a

vehicle to test the plausibility of a complaint, it must be

evaluated as if it were a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6). See Remexcel Manag'l Consultants, Inc.

v. Arlequín, 583 F.3d 45, 49 n.3 (1st Cir. 2009); Gray v. Evercore

Restruc. L.L.C., 544 F.3d 320, 324 (1st Cir. 2008); see also Fed.

R. Civ. P. 12(h)(2). It follows that the grant or denial of such

a motion engenders de novo review. SEC v. Tambone, 597 F.3d 436,

441 (1st Cir. 2010) (en banc). In conducting this review, we

accept the truth of all well-pleaded facts and draw all reasonable

inferences therefrom in the pleader's favor. Nisselson v. Lernout,

469 F.3d 143, 150 (1st Cir. 2006). "We may augment these facts and

inferences with data points gleaned from documents incorporated by

reference into the complaint, matters of public record, and facts

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susceptible to judicial notice." Haley v. City of Boston, 657 F.3d

39, 46 (1st Cir. 2011).

It is a truism that a complaint need contain only "a

short and plain statement of the claim showing that the pleader is

entitled to relief." Fed. R. Civ. P. 8(a)(2). Plausibility

determinations must be evaluated in light of this truism. See

Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 8 (1st Cir. 2011).

In order "[t]o survive a motion to dismiss for failure to state a

claim, the complaint must contain sufficient factual matter to

state a claim to relief that is plausible on its face." Katz v.

Pershing, LLC, 672 F.3d 64, 72-73 (1st Cir. 2012) (alterations and

internal quotation marks omitted).

A determination of plausibility is "a context-specific

task that requires the reviewing court to draw on its judicial

experience and common sense." Iqbal, 556 U.S. at 679. To cross

the plausibility threshold a claim does not need to be probable,

but it must give rise to more than a mere possibility of liability.

Id. at 678.

The plausibility standard implicates a two-step pavane.

See id. at 678-79. First, "the court must separate the complaint's

factual allegations (which must be accepted as true) from its

conclusory legal allegations (which need not be credited)."

Morales-Cruz v. Univ. of P. R., ___ F.3d ___, ___ (1st Cir. 2012)

[No. 11-1589, slip op. at 7]. Second, the court must determine

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whether the factual content permits "the reasonable inference that

the defendant is liable for the misconduct alleged." Id. (internal

quotation marks omitted); see Sepúlveda-Villarini v. Dep't of Educ.

of P. R., 628 F.3d 25, 29 (1st Cir. 2010) (Souter, J.) ("The make-

or-break standard . . . is that the combined allegations, taken as

true, must state a plausible, not a merely conceivable, case for

relief.").

Before us, the plaintiff focuses single-mindedly on the

viability of his political discrimination claim under 42 U.S.C.

§ 1983.3 He marshals both procedural and substantive attacks on

the district court's rejection of that claim. Procedurally, he

contends that the district court abused its discretion when it

entertained a Rule 12(c) motion for judgment on the pleadings,

based on a supposed failure to state a plausible claim, after nine

months of discovery. Substantively, he contends that, in all

events, his second amended complaint states a plausible political

discrimination claim.

An understanding of the travel of the case is needed to

put the plaintiff's procedural contention into perspective. The

plaintiff commenced suit on October 16, 2009. The defendants moved

3
Although the district court dismissed with prejudice all of
the plaintiff's federal claims, the plaintiff has presented
developed argumentation only on this one claim. His other federal
claims are, therefore, deemed abandoned, see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990), and may not be resurrected
on remand.

-7-
to dismiss under Rule 12(b)(6). The district court did not rule on

the motion but, rather, allowed the plaintiff to file an amended

complaint. It then denied the defendants' Rule 12(b)(6) motion as

"moot," and the defendants proceeded to answer the amended

complaint.

On April 22, 2010, the district court granted the

plaintiff leave to amend yet again. Although the proposed second

amended complaint (which was nearly identical to its predecessor)

was attached to the motion for leave to amend, it was not formally

docketed until September 27, 2010. The defendants served their

answers in October and, on December 9, the individual defendants

filed a Rule 12(c) motion. By then, both the deadline for filing

a motion for judgment on the pleadings (May 7, 2010) and the

discovery closure date (November 18, 2010) had passed.4 The court

below nonetheless entertained the motion and granted it.

Under ordinary circumstances, a court may measure the

plausibility of a complaint by means of a motion for judgment on

the pleadings. See, e.g., Elena v. Municipality of San Juan, ___

F.3d ___, ___ (1st Cir. 2012) [No. 10-1849, slip op. at 8-11 &

n.6]; Estate of Bennett v. Wainwright, 548 F.3d 155, 162-64 (1st

Cir. 2008); Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29-31 (1st

4
The deadline for filing a motion for judgment on the
pleadings was established by the court in its initial scheduling
order. See Fed. R. Civ. P. 16(b)(1). That order also set a
discovery closure date, which the court subsequently extended to
November 18, 2010. See Fed. R. Civ. P. 16(b)(4).

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Cir. 2008). We have not, however, spoken to the question of

whether it is appropriate to apply the plausibility standard after

substantial pretrial discovery has taken place. An obvious anomaly

arises in such a situation because a court attempting to determine

whether a complaint should be dismissed for implausibility must

decide, on the basis of the complaint alone, if the complaint lacks

enough factual content to allow a "reasonable inference that the

defendant is liable for the misconduct alleged." Iqbal, 556 U.S.

at 678. This is, by its nature, a threshold inquiry, and logic

strongly suggests that it occur prior to discovery. Ignoring the

entire panoply of facts developed during discovery makes little

sense.

An artificial evaluation of this sort seems especially

awkward because one of the main goals of the plausibility standard

is the avoidance of unnecessary discovery. See Twombly, 550 U.S.

at 556-58; Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir.

2011). Applying the plausibility standard to a complaint after

discovery is nearly complete would defeat this core purpose. Cf.

Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3 (8th Cir. 2010)

(expressing concern about entertaining a Rule 12(c) motion to test

the plausibility of a complaint following a preliminary injunction

hearing that generated an extensive record). Thus, while district

courts enjoy broad discretion in managing their dockets, we think

that, once the parties have invested substantial resources in

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discovery, a district court should hesitate to entertain a Rule

12(c) motion that asserts a complaint's failure to satisfy the

plausibility requirement.

Here, however, we need not decide the difficult question

of whether the district court's decision to entertain the

defendants' Rule 12(c) motion after nine months of pretrial

discovery was an abuse of discretion. As we explain below, this

case can readily be resolved on the merits of the plausibility

claim. We turn, therefore, to the plaintiff's substantive

contention.

The PRPA is "a public corporation and government

instrumentality of the Commonwealth of Puerto Rico." P.R. Laws

Ann. tit. 23, § 333(a). Non-policymaking public employees are

protected by the First Amendment from adverse employment actions

based on political affiliation. See Padilla-Garcia v. Guillermo

Rodriguez, 212 F.3d 69, 74 (1st Cir. 2000).

For claims of political discrimination by state actors —

and Puerto Rico is, for this purpose, the functional equivalent of

a state, Santiago v. Puerto Rico, 655 F.3d 61, 69 (1st Cir. 2011)

— section 1983 is the customary vehicle through which relief is

sought. See Martinez-Vélez v. Rey-Hernández, 506 F.3d 32, 39 (1st

Cir. 2007). "There are two essential elements of an action under

section 1983: (i) that the conduct complained of has been committed

under color of state law, and (ii) that this conduct worked a

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denial of rights secured by the Constitution or laws of the United

States." Martinez v. Colon, 54 F.3d 980, 984 (1st Cir. 1995)

(internal quotation marks omitted). Within this rubric, an

actionable claim of political discrimination must encompass four

elements: that the protagonists are members of opposing political

parties; that the defendant knows of the plaintiff's political

affiliation; that an adverse employment action occurred; and that

political affiliation was a substantial or motivating factor behind

the adverse action. See Ocasio-Hernández, 640 F.3d at 13. In the

case at hand, we look to these four elements as a backdrop for

determining the plausibility of the claim. See, e.g., id. at 13-

19.

A formal adverse action (such as a discharge or the

denial of a promotion) is not a sine qua non for a claim of

political discrimination. See Rojas-Velázquez v. Figueroa-Sancha,

___ F.3d ___, ___ (1st Cir. 2012) [No. 11-1447, slip op. at 8].

Political discrimination claims may be based on harassment as long

as the "acts are sufficiently severe to cause reasonably hardy

individuals to compromise their political beliefs and associations

in favor of the prevailing party." Welch v. Ciampa, 542 F.3d 927,

937 (1st Cir. 2008) (internal quotation marks omitted).

We add a caveat. As a general matter, liability for

public officials under section 1983 arises only if "a plaintiff can

establish that his or her constitutional injury resulted from the

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direct acts or omissions of the official, or from indirect conduct

that amounts to condonation or tacit authorization." Ocasio-

Hernández, 640 F.3d at 16 (internal quotation marks omitted).

Moreover, supervisory liability under section 1983 cannot arise

solely on the basis of respondeat superior. Leavitt v. Corr. Med.

Servs., Inc., 645 F.3d 484, 502 (1st Cir. 2011). Such liability

requires that the supervisor's conduct (whether action or inaction)

constitutes "supervisory encouragement, condonation or

acquiescence[,] or gross negligence of the supervisor amounting to

deliberate indifference." Welch, 542 F.3d at 937 (alterations,

internal quotation marks, and emphasis omitted). Finally, the case

law requires a separate assessment of the potential liability of

each of the defendants. Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.

1999).

With these principles in place, we first address the

district court's suggestion that the second amended complaint does

not sufficiently show that the protagonists belonged to different

political parties. The second amended complaint alleges that each

of the defendants "belong[s] to a different [political] party than

[the plaintiff]." This is a specific factual allegation which, in

itself, is adequate for pleading purposes. In connection with a

threshold plausibility inquiry, a high degree of factual

specificity is not required. See Twombly, 550 U.S. at 570.

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 We previously have upheld the sufficiency of an

allegation "that the defendants all belong to the NPP." Ocasio-

Hernández, 640 F.3d at 13 (alterations and internal quotation marks

omitted). The relevant allegation in the instant case is not

materially different.

It is equally plausible to infer that the defendants, all

of whom work for the PRPA, had knowledge of the plaintiff's

political allegiance. While the second amended complaint contains

only a conclusory averment of knowledge, we believe that, for

pleading purposes, knowledge is inferable from other allegations.

The complaint alleges that, in 2006, the plaintiff was designated

as the PRPA's interagency coordinator for emergency management.

This is, as the defendants conceded at oral argument, a trust

position. After serving in this highly visible trust position for

well over a year, the plaintiff — with a general election on the

horizon — arranged to be transferred into a career position at the

Aguadilla airport.

For purposes of a plausibility analysis, the allegations

of a complaint must be assessed in light of "judicial experience

and common sense." Iqbal, 556 U.S. at 679. Bonilla, in addition

to being the executive director of the PRPA and the appointing

authority for the plaintiff's trust position, was a high-ranking

member (Secretary of State) in the PDP administration. It is no

secret that political leaders most often choose political allies to

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fill important policymaking positions. When examining the factual

allegations of the second amended complaint in context, we think

that a plausible inference can be drawn that the plaintiff, who was

named to a prestigious trust position by a PDP hierarch under a PDP

administration, was a member of the PDP and that the defendants

knew as much. Nothing about the plausibility standard requires a

court to blind itself to what is obvious.

This leads to the question of whether the conduct

described in the complaint comprises an adverse employment action.

The second amended complaint names the PRPA and six individual

defendants. We summarize the relevant factual allegations against

each individual defendant. See Rogan, 175 F.3d at 77. We do not

make a similar analysis with respect to the PRPA because the

defendants have not made any meaningful attempt to distinguish the

PRPA's liability, at least for equitable relief, from the putative

liability of the individual defendants. Cf. Domegan v. Fair, 859

F.2d 1059, 1065 (1st Cir. 1988) (declining to engage in such an

analysis when the defendants made "[n]o meaningful attempt at

individuation").

C Alvaro Pilar-Vilagrán (Pilar).

Pilar, an appointee of the NPP regime, became the

executive director of the PRPA following the 2008 election. On two

separate occasions in early 2009, the plaintiff notified Pilar of

"political persecution, discrimination[,] and harassment by other

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employees of the PRPA." Pilar referred the complaints to a

subordinate for investigation but did not follow up, and no

investigation took place. For no apparent reason, Pilar later

banished the plaintiff from the Aguadilla airport and transferred

him involuntarily to an airport approximately ninety minutes from

his home. This was done without any provision to reimburse the

plaintiff for the additional travel involved.

C Elmer Emeric.

Emeric served as the PRPA's director of general security.

On two occasions, the plaintiff notified Emeric of the rampant

harassment that was taking place. Emeric dismissed these

complaints as "unimportant" and never investigated them. In

addition, Emeric insisted that the plaintiff clock-in at the

distant Mercedita airport instead of at the conveniently located

Aguadilla airport, thus adding roughly ninety minutes to the

plaintiff's work day. Other PRPA employees who worked at a

considerable remove from their homes were allowed to clock-in at

airports nearer to where they lived.

C Carlos Travieso.

Travieso, who was the interim security supervisor at the

Aguadilla airport, assumed the plaintiff's position after the

plaintiff was transferred. Prior to the transfer, he consistently

opposed the plaintiff's continuation as security supervisor,

charging that the plaintiff had received the position through

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political patronage. As part of his campaign, Travieso falsely

reported to the PRPA's director of general security that a private

citizen had videotaped the plaintiff driving recklessly while on

official business. In reality, Travieso himself had done the

videotaping and no private citizen had complained. When requested,

Travieso refused to hand over the tape that he had made.

C Manuel Villazán Lig-Long (Villazán).

Villazán was the manager of general security at the PRPA.

He colluded with Travieso by falsely claiming that a private

citizen had reported and recorded the plaintiff's reckless driving.

Around this same time, Villazán urged that Travieso replace the

plaintiff as security supervisor at the Aguadilla airport.

Villazán also directed an underling to file false charges against

the plaintiff for offensive behavior. The charges were later

dismissed for lack of evidence.

C Gonzalo González-Santini (González).

González manages the Aguadilla airport. In that

capacity, he encouraged Pilar both to investigate the plaintiff and

to abolish the security office at the Aguadilla airport. These

actions clearly jeopardized the plaintiff's job. Moreover, PRPA

policy did not allow for the abolition of the Aguadilla airport's

security office.

This was only the tip of the iceberg. González

undermined the plaintiff's authority as security supervisor,

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falsely reported supposed wrongdoing by the plaintiff to the Office

of Personnel and Management, engaged in verbal taunts, and tried to

have the plaintiff's wife transferred from her job at the Aguadilla

airport.

C Miguel Alcover.

Alcover was an internal security officer at the Aguadilla

airport and, as such, worked under the plaintiff's supervision.

His behavior toward the plaintiff was insubordinate, disrespectful,

and hostile. He filed false charges against the plaintiff for

supposedly offensive behavior. The charges were later dismissed.

Alcover made other bogus accusations, such as an untrue statement

that the plaintiff had used an official vehicle while on personal

business.

Taking these allegations as true, we think that their

combined effect, culminating in the plaintiff's involuntary

transfer to a remote and inconvenient work station, qualifies as an

adverse employment action. See Agosto-de-Feliciano v. Aponte-

Roque, 889 F.2d 1209, 1217-20 (1st Cir. 1989) (en banc). Fairly

read, the second amended complaint alleges sufficient facts to hold

each of the individual defendants liable for political

discrimination. At the same time, the second amended complaint

alleges sequential facts constituting a pattern of discrimination.

All of the individual defendants actively contributed to this

pattern, and the plaintiff's superiors (Pilar and Emeric)

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deliberately ignored the plaintiff's repeated complaints about the

harassment.

The remaining question is whether the second amended

complaint alleges sufficient facts to support a reasonable

inference that political affiliation was a substantial or

motivating factor behind the adverse employment action. The

complaint mentions just one occasion on which the plaintiff's

political affiliation was openly discussed. This discussion was in

connection with Travieso's accusation that the plaintiff had

obtained his career position "as a political favor" prior to the

change in administration.

This paucity of direct evidence is not fatal in the

plausibility inquiry. "Smoking gun" proof of discrimination is

rarely available, especially at the pleading stage. See, e.g.,

Ocasio-Hernández, 640 F.3d at 17. Nor is such proof necessary.

When "a protean issue such as an actor's motive or intent" is at

stake, telltale clues may be gathered from the circumstances

surrounding the adverse employment action. See Anthony v. Sundlun,

952 F.2d 603, 605 (1st Cir. 1991). The plausibility threshold

"'simply calls for enough fact to raise a reasonable expectation

that discovery will reveal evidence of the illegal conduct.'"

Ocasio-Hernández, 640 F.3d at 17 (quoting Twombly, 550 U.S. at 556)

(alteration omitted).

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 Viewing the pleaded facts in the light most hospitable to

the plaintiff, the following picture emerges. In 2008, the

plaintiff — who had an exemplary record of service within the PRPA

— moved from a trust (policymaking) to a career (non-policymaking)

position. Shortly after the change in administration wrought by

the 2008 election, the plaintiff began experiencing significant

harassment at the hands of persons loyal to an opposing political

party (which controlled the new administration). This course of

harassment consisted in large part of actions for which there was

no legitimate explanation. The harassment culminated in

unjustified disciplinary threats, disparate treatment, the loss of

the plaintiff's right to carry a sidearm, his involuntary transfer

to a remote work station, the elongation of his workday, and a

denial of remuneration for the extra time and travel involved.

The scenario here is not unfamiliar. Similar claims of

political discrimination in the public workplace following a change

in administration appear to be increasingly common in the

Commonwealth of Puerto Rico. See, e.g., Rodriguez-Sanchez v.

Municipality of Santa Isabel, 658 F.3d 125, 130 (1st Cir. 2011);

Negrón-Almeda v. Santiago, 528 F.3d 15, 18-20 (1st Cir. 2008). In

this instance, the close temporal proximity between the regime

change and the onset of pervasive cross-party harassment, coupled

with the absence of any legitimate reason for much of the offending

conduct, permits a plausible inference at the pleading stage that

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political animus was a motivating factor behind the harassment.

See Ocasio-Hernández, 640 F.3d at 17-18; cf. Geinosky v. City of

Chicago, 675 F.3d 743, 746-50 (7th Cir. 2012) (explaining that

allegations of a widespread pattern of negative conduct,

perpetrated by officers belonging to a single police unit, met the

plausibility threshold for equal protection and civil conspiracy

claims under section 1983).

We hold, therefore, that the factual allegations in the

second amended complaint, taken as true and considered as a whole,

state a plausible section 1983 claim for political discrimination.

We caution, however, that a favorable plausibility determination

does not necessarily herald a likelihood of success at subsequent

stages of the litigation. Factual allegations must be proven,

evidence to the contrary must be factored into the mix, and the

merits remain entirely open.

There is one loose end. On appeal, the individual

defendants attempt to assert a defense of qualified immunity. See,

e.g., Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Goyco de

Maldonado v. Rivera, 849 F.2d 683, 684 (1st Cir. 1988). In the

circumstances of this case, any consideration of such a defense at

this time would be premature. The defendants may, of course,

reassert this defense in the district court on a more fully

developed record. See Sanchez v. Pereira-Castillo, 590 F.3d 31, 52

n.15 (1st Cir. 2009).

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III. CONCLUSION

We need go no further. For the reasons elucidated above,

we hold that the plaintiff's second amended complaint sets forth

sufficient factual content to make out a plausible claim for

relief. Accordingly, we reverse the judgment of the district court

on the plaintiff's political discrimination claim and remand for

further proceedings consistent with this opinion. The plaintiff's

local-law claims, which the lower court implicitly dismissed

without prejudice for want of supplemental jurisdiction, 28 U.S.C.

§ 1367(c), may be revisited on remand.

Reversed and remanded.

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