United States Court of Appeals
For the First Circuit
No. 06-1567
JUSTINO ACEVEDO-LUIS,
Plaintiff, Appellant,
v.
MERCEDES PAGÁN, in her personal capacity and in her official
capacity as Aguadilla Regional Director, Family Department,
Defendant, Appellee,
YOLANDA ZAYAS, in her personal capacity and in her official
capacity as Secretary, Department of the Family,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Israel Roldán González on brief for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Salvador J. Antonetti-Stutts, Solicitor General, Mariana D.
Negrón-Vargas, Deputy Solicitor General, Maite D. Oronoz-
Rodríguez, Deputy Solicitor General, on brief for appellee.
February 21, 2007
LYNCH, Circuit Judge. Plaintiff Justino Acevedo-Luis
brought suit pursuant to 42 U.S.C. § 1983, claiming a violation of
his First Amendment rights. The case was tried before a jury, and
there was testimony that Mercedes Pagán, an official in the Puerto
Rico Family Department, transferred Acevedo-Luis to a new job where
he had very little to do. Throughout, the Family Department
retained plaintiff on its payroll. Based on these and other facts,
the jury concluded that Pagán had engaged in political
discrimination against Acevedo-Luis, see Rutan v. Republican Party
of Ill., 497 U.S. 62, 75 (1990), but it also concluded that
Acevedo-Luis had suffered no compensatory damages. The jury did
award punitive damages in the amount of $5,000.
Unhappy with this outcome, Acevedo-Luis appeals,
contending that there were three different errors which led to the
paucity of the jury award. He argues that the district court1
erred: (1) in failing to give a proffered jury instruction that any
injury to First Amendment rights must be deemed to be "irreparable
injury" for purposes of determining a compensatory damages award;
(2) in instructing the jurors that they may consider the financial
resources of the defendant in fixing the amount of punitive
damages; and (3) in denying his motion for a new trial for damages
under Rule 59 of the Federal Rules of Civil Procedure.
1
With the consent of the parties, the case was tried before
a magistrate judge; we shall use the term "district court."
-2-
In an opinion and order dated February 28, 2006, the
district court explained its reasons for rejecting each of these
claims. We affirm.
I.
A brief statement of the background facts suffices.
Testimony at trial established that Acevedo-Luis was a member of
the New Progressive Party. He started working at the Family
Department in July 1978 as a career employee. He gradually worked
his way up through the ranks, ultimately assuming the position of
Local Director in the San Sebastián, Puerto Rico, office.
Plaintiff had about 90 to 98 people working under him, and he
supervised the work of other local supervisors, as well as the work
of service providers to the public.
Acevedo-Luis was not the only Family Department official
at his level in San Sebastián. In fact, the Family Department
maintained two local offices there: San Sebastián I and San
Sebastián II. Plaintiff was in charge of San Sebastián II and Juan
Sotomayor was head of San Sebastián I. Sotomayor had been placed
in his position by virtue of a court order requiring his
reinstatement.
The two offices were integrated in April 2002 as a result
of a departmental reorganization. Sotomayor became head of the
integrated San Sebastián office. On May 6, 2002, Acevedo-Luis
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learned that defendants Mercedes Pagán and Yolanda Zayas2 had
ordered that he be transferred to the office in Aguadilla. Both
Pagán and Zayas were members of the Popular Democratic Party. At
the time Acevedo-Luis was transferred, there was at least one
vacant director position available in a nearby area.
Before his arrival in Aguadilla, Acevedo-Luis had been
informed that he would receive new orders and be assigned new
duties in the Aguadilla office. But after he reported to his new
job, he was assigned no substantive tasks, had no one to supervise,
was given no office space, and had only a few menial duties. Other
witnesses confirmed this. Acevedo-Luis testified that he felt
humiliated and useless, but he offered no medical or expert
testimony as to his emotional distress. He also did not offer
evidence of any economic damages.
On October 14, 2005, after spending approximately three
and one-half years at the Aguadilla office, plaintiff was relocated
to an office in Aguada. There he apparently performed real work.
He testified that, during the time he was assigned to Aguadilla, he
2
By the time this case went to trial, both Pagán and Zayas
were defendants only in their personal capacities, as the district
court had dismissed the case against them in their official
capacities on the grounds of Eleventh Amendment immunity.
Additionally, before submitting the case to the jury, the court
granted defendant Zayas's Rule 50 motion for judgment as a matter
of law, with the result that the personal capacity case against her
was dismissed as well. On appeal, Acevedo-Luis does not challenge
any of these dismissals. His appeal is concerned only with his
claim against defendant Pagán in her personal capacity. That was
the sole claim submitted to the jury.
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had been doing nothing because he was a member of the New
Progressive Party.
We turn to his appeal.
II.
A. The Jury Instructions on First Amendment Damages
Acevedo-Luis requested a jury instruction stating that
any violation of his First Amendment rights constituted irreparable
injury. He believed this would have aided the jurors in their
calculation of compensatory damages. To support his claim,
Acevedo-Luis cited language in Elrod v. Burns, 427 U.S. 347 (1976),
stating that "[t]he loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable
injury." Id. at 373.
The district court rejected the instruction. It noted
that while the language accurately described one of the
requirements for a preliminary injunction in a First Amendment
case, see id., it would not be helpful to a jury in determining the
compensatory damages for a First Amendment violation.
In essence, Acevedo-Luis's argument is that he is
entitled to an instruction that compensatory damages must be
awarded whenever a jury finds a First Amendment violation. But the
law is exactly the opposite. It is usually the case that "no
compensatory damages may be awarded in a § 1983 suit absent proof
of actual injury." Farrar v. Hobby, 506 U.S. 103, 112 (1992); see
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also Carey v. Piphus, 435 U.S. 247, 264 (1978). The Supreme Court
has held that in § 1983 actions, such as this, "damages based on
the abstract 'value' or 'importance' of constitutional rights are
not a permissible element of compensatory damages." Memphis Cmty.
Sch. Dist. v. Stachura, 477 U.S. 299, 310 (1986). We have
similarly rejected any argument that the importance of the
interests at stake requires that there be an award of damages. See
Azimi v. Jordan's Meats, Inc., 456 F.3d 228, 234 (1st Cir. 2006).
To the extent plaintiff is making an argument that he is
entitled to at least nominal damages, he did not request a nominal
damages instruction from the district court and did not raise the
issue until after the jury was discharged. Plaintiff thus
forfeited,3 and most likely waived, any claim for nominal damages.
See id. at 240; see also Fed. R. Civ. P. 51(c).
The district court was also correct in concluding that
the elements of compensatory damages, including emotional distress
damages, were adequately covered by other instructions on the
manner in which damages were to be considered and determined. As
3
The failure to issue a nominal damages instruction was not
plainly erroneous. See Azimi, 456 F.3d at 239 (explaining that,
thus far, this circuit has only required nominal damages for
procedural due process claims). Moreover, in this case a nominal
damages award does not affect rights important enough to require
reversal under plain error review. See Alexander v. Riga, 208 F.3d
419, 429 (3d Cir. 2000) (holding that a court's failure to rectify
an error on nominal damages would not result in a "miscarriage of
justice" because only one dollar was at stake); cf. Barnett v.
Luther, 2 F. Cas. 879, 880 (C.C.D. Mass. 1853) (No. 1,025).
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to pain and suffering, the court instructed the jury that no
evidence of monetary value of such intangible things needed to be
introduced into evidence. The plaintiff's proffered instruction
about irreparable injury could have caused confusion or misled the
jury, and the court properly declined to give it. See White v.
N.H. Dep't of Corrs., 221 F.3d 254, 263 (1st Cir. 2000).
B. The Jury Instructions on Punitive Damages
The court also committed no error in instructing the
jurors that they could consider Pagán's financial resources, in her
personal capacity, in fixing the amount of punitive damages. The
plaintiff's argument is that this instruction was misleading
because it was possible that Puerto Rico would indemnify the
defendant under a statute commonly referred to as "Law 9." See
P.R. Laws Ann. tit. 32, §§ 3085-3092.
It was entirely proper to instruct the jury that it could
consider the defendant's financial worth in assessing punitive
damages. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
269 (1981); see also 4 L. Sand et al., Modern Federal Jury
Instructions, Instruction 77-5 & n.21 (collecting cases).
Additionally, here the court correctly rejected
plaintiff's argument on the ground that indemnity under Law 9 is
neither required nor always available. Indeed, the Commonwealth is
not required to pay indemnity when there is a punitive damages
award or judgment. See Ortiz-Feliciano v. Toledo-Davila, 175 F.3d
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37, 39 (1st Cir. 1999); id. at 40 n.1 (discussing the narrow
circumstances, inapplicable here, in which Law 9 says it requires
indemnification); Ortiz Feliciano v. Estado Libre Asociado de P.R.,
158 P.R. Dec. 62, 72 (P.R. 2002) (per curiam) (stating that Law 9
gives the Secretary of Justice discretion to indemnify officials);
see also P.R. Laws Ann. tit. 32, § 3085 (stating that a
Commonwealth employee "may request the Commonwealth of Puerto Rico
. . . to subsequently assume the payment of any judgment that may
be entered against his person" (emphasis added)); id. § 3087
(stating that the Secretary of Justice "shall determine whether it
is in order to pay the full judgment imposed"). Further,
indemnification is not allowed at all where there is inexcusable
negligence or certain other conditions. Ortiz-Feliciano, 175 F.3d
at 40 n.1; see also P.R. Laws Ann. tit. 32, § 3088.
C. The Motion for a New Trial
This leaves the contention that the district court erred
in denying a new trial on damages. We review the district court's
ruling on the new trial motion only for clear abuse of discretion.
Azimi, 456 F.3d at 235; Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir.
1996). The district court may grant such a motion only if "the
verdict is against the clear weight of the evidence, such that
letting it stand would result in a miscarriage of justice."
Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85, 104
(1st Cir. 2006).
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The district court's refusal to grant a new trial was
entirely understandable. Plaintiff suffered no out-of-pocket-loss
during his three and one-half years of exile into a make-work job.
Further, as to mental and emotional distress, non-economic damages
must be proven, and the proof of such damages is distinct from the
proof required to show discrimination. See Azimi, 456 F.3d at 235.
The only testimony plaintiff offered regarding emotional distress
damages was his own testimony about feeling useless and humiliated.
The jury was not required to accept his uncorroborated testimony.
Id. at 235-37.4
Acevedo-Luis points out that no evidence was offered as
to Pagán's ability to pay. Nonetheless, in this case the
conservative damages award of $5,000 against a public official was
reasonable.
The judgment is affirmed. No costs are awarded on
appeal.
4
Acevedo-Luis does not argue that the jury verdict was
inconsistent insofar as it awarded punitive damages while
simultaneously awarding zero compensatory damages.
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