United States Court of Appeals
For the First Circuit
No. 04-1967
CENTRO MEDICO DEL TURABO, INC., ET AL.,
Plaintiffs, Appellants,
v.
CARMEN FELICIANO DE MELECIO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Fernando E. Agrait, with whom Orlando H. Martínez-Echeverría
was on brief, for appellants.
Doraliz E. Ortiz-de-León, Assistant Solicitor General, with
whom Roberto J. Sánchez Ramos, Solicitor General, Kenneth Pamias
Velázquez, Deputy Solicitor General, and Camelia Fernández-Romeu,
Office of the Solicitor General, were on brief, for appellee.
April 19, 2005
SELYA, Circuit Judge. In this appeal, the plaintiffs
challenge the district court's dismissal of their complaint,
brought under 42 U.S.C. § 1983, for failure to state a claim upon
which relief might be granted. After careful consideration of the
briefs and the record, we conclude that the most recent incident
described in the complaint was not actionable; that the earlier
incidents fell outside the limitations period; and, therefore, that
the district court properly dismissed the complaint.
I.
Background
Beginning in 1993, the Commonwealth of Puerto Rico
embarked on a process of privatizing its extensive network of
public health facilities. That effort provides the backdrop for
this litigation.
On November 22, 1999, plaintiffs-appellants Centro Medico
del Turabo, Inc., Turabo Medical Center Partnership, Hospital
Interamericano de Medicina Avanzada de Humacao, and Joaquín
Rodríguez García (Rodríguez) filed a civil action against Carmen
Feliciano de Melecio (the Commonwealth's Secretary of Health). The
complaint charged that, between 1993 and 1999, the Secretary had
refused to grant certificates of necessity and convenience required
to develop certain medical facilities at two of the plaintiffs'
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hospitals,1 denied them permission to transfer a license from one
hospital to another, and awarded contracts for the purchase, lease,
and/or administration of various public health facilities to
entities not affiliated with the plaintiffs. The complaint further
alleged that these acts and omissions were discriminatory,
transgressed due process, denied the plaintiffs the equal
protection of the laws, and were taken in retaliation for the
plaintiffs' exercise of their First Amendment rights (i.e., their
persistent challenges to various of the Secretary's actions in the
local courts). The suit sought both damages and injunctive relief
to redress these alleged constitutional harms.
The Secretary filed a motion to dismiss, arguing, inter
alia, that the statute of limitations had run. The plaintiffs
rejoined that the described incidents comprised an interrelated
series of constitutional violations, one of which occurred within
the limitations period, and, thus, that the "continuing violation"
doctrine salvaged all of their claims. The district court
disagreed and granted the motion to dismiss. See Centro Medico del
Turabo v. Feliciano de Melecio, 321 F. Supp. 2d 285 (D.P.R. 2004).
In pertinent part, the district court concluded that the
complaint, on its face, demonstrated that the plaintiffs were aware
as early as 1996 of the need to assert their rights in response to
1
The plaintiffs are related parties, controlled in the final
analysis by Rodríguez. The precise relationships among them are
not relevant to the issues on appeal.
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the Secretary's actions, but nevertheless failed seasonably to
invoke section 1983. See id. at 292. The court then focused on
the one timeous incident described in the complaint — the
Secretary's contractual assignment of the Caguas Regional Hospital
(CRH) to the control of a medical school, Escuela de Ciencias
Medícas San Juan Bautista (San Juan Bautista), in July of 1999 —
and concluded that the circumstances there were neither
sufficiently similar to those underlying the time-barred claims to
justify treating it as a continuation of the earlier episodes nor
independently sufficient to ground a cognizable constitutional
claim. See id. at 292-94. This appeal ensued.
II.
Discussion
In this venue, the plaintiffs argue that the 1999 grant
to San Juan Bautista of the right to administer CRH was one in a
series of discriminatory actions taken against them by the
Secretary; that the 1999 incident falls within the limitations
period; and that the events underlying the time-barred claims are
so substantially related to that incident that the entire series of
claims should be deemed timely filed under the continuing violation
doctrine. We limn the standard of review, chart the contours of
the pertinent legal landscape, and then turn to the plaintiffs'
argument.
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A.
Standard of Review
The court below dismissed the plaintiffs' action for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). We review
that determination de novo, adhering to the same criteria that
bound the lower court. In re Colonial Mortg. Bankers Corp., 324
F.3d 12, 15 (1st Cir. 2003). The tools of this trade include the
complaint, documents annexed to it or fairly incorporated into it,
and matters susceptible to judicial notice. Rodi v. S. New Eng.
Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004).
In a civil rights case, there is no heightened pleading
standard. Educadores Puertorriqueños en Acción v. Hernández, 367
F.3d 61, 66-67 (1st Cir. 2004). Therefore, a district court
charged with the adjudication of a motion to dismiss under Rule
12(b)(6) must apply the notice pleading requirements of Fed. R.
Civ. P. 8(a)(2). Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir.
2005); Educadores, 367 F.3d at 66. A complaint satisfies that
standard if it contains "a short and plain statement of the claim
showing that the pleader is entitled to relief," Fed. R. Civ. P.
8(a)(2), and "give[s] the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests," Conley
v. Gibson, 355 U.S. 41, 47 (1957).
In measuring a complaint against this benchmark, a
reviewing court must "assume the truth of all well-pleaded facts
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and indulge all reasonable inferences that fit the plaintiff's
stated theory of liability." Colonial Mortg. Bankers, 324 F.3d at
15. Still, such a court is not bound to credit "bald assertions,
unsupportable conclusions, periphrastic circumlocutions, and the
like." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).
Once the court has performed this tamisage, dismissal for
failure to state a claim will be appropriate if the pleadings fail
to set forth "factual allegations, either direct or inferential,
respecting each material element necessary to sustain recovery
under some actionable legal theory." Berner v. Delahanty, 129 F.3d
20, 25 (1st Cir. 1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d
513, 515 (1st Cir. 1988) (internal quotation marks omitted)). We
will affirm a dismissal only if it is transparently clear that the
complaint, in light of the facts alleged, engenders no viable
theory of liability. Educadores, 367 F.3d at 66; Blackstone Realty
LLC v. FDIC, 244 F.3d 193, 197 (1st Cir. 2001).
Under this rubric, it is sometimes permissible to grant
a motion to dismiss based on an affirmative defense, such as the
statute of limitations. That happens "when the pleader's
allegations leave no doubt that an asserted claim is time-barred."
LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.
1998). This is the test that we apply here.
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B.
The Limitations Period
Section 1983 creates a private right of action for
redressing abridgments or deprivations of federally assured
rights.2 Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004); McIntosh
v. Antonino, 71 F.3d 29, 33 (1st Cir. 1995). Because it does not
contain a built-in limitations period, a federal court adjudicating
a section 1983 action must borrow the forum state's general statute
of limitations for personal injury actions. Owens v. Okure, 488
U.S. 235, 240-41, 249-50 (1989); Nieves v. McSweeney, 241 F.3d 46,
51 (1st Cir. 2001). In Puerto Rico, the limitations period for
injuries to the person is one year. See 31 P.R. Laws Ann. §
5298(2). Accordingly, that term applies here. See Rodríguez-
Garcia v. Municipality of Caguas, 354 F.3d 91, 96 (1st Cir. 2004);
Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 353 (1st Cir.
1992).
2
That statute provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983.
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Puerto Rico's one-year limitations period begins to run
one day after the date of accrual. See Carreras-Rosa v. Alves-
Cruz, 127 F.3d 172, 175 (1st Cir. 1997) (per curiam). The accrual
date, however, is determined in accordance with federal law.
Rivera-Muriente, 959 F.2d at 353. In a section 1983 case, a claim
ordinarily accrues "when the plaintiff knows, or has reason to
know, of the injury on which the action is based." Id.; see also
Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 119-20 (1st Cir. 2003)
(noting that a claim accrues "when facts supportive of a civil
rights action are or should be apparent to a reasonably prudent
person similarly situated" (citation and internal quotation marks
omitted)).
Here, the plaintiffs do not dispute that they knew, or
had reason to know, of their injuries immediately following the
occurrence of each of the various incidents. It is likewise
undisputed that the only stand-alone claim of injury that falls
chronologically within the limitations period is the claim relating
to the Secretary's July 1999 transfer of administrative
responsibility over CRH to San Juan Bautista. The plaintiffs
nevertheless seek to salvage their earlier claims by bringing them
under the umbrella of the continuing violation doctrine. To that
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end, they allege that the CRH contretemps was part of a long-
running serial violation.3
Under the serial violation branch of the continuing
violation doctrine, a plaintiff may link a number of discriminatory
acts emanating from the same discriminatory animus, even though
each act constitutes a separate wrong. See Provencher v. CVS
Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998); Jensen v. Frank, 912 F.2d
517, 522 (1st Cir. 1990). If the plaintiff can forge that link and
can also show that at least one act in the series occurred within
the limitations period, the suit may be considered timely as to all
the acts. See Lawton v. State Mut. Life Assur. Co., 101 F.3d 218,
221-22 (1st Cir. 1996); Kassaye v. Bryant Coll., 999 F.2d 603, 606
(1st Cir. 1993).
In order for the serial violation theory to apply, the
act that falls within the limitations period must itself constitute
an actionable violation. Lawton, 101 F.3d 222 ("Common sense
teaches that a plaintiff cannot resuscitate time-barred acts, said
to be discriminatory, by the simple expedient of linking them to a
non-identical, non-discriminatory, non-time barred act."); Muniz-
Cabrero v. Ruiz, 23 F.3d 607, 610-11 (1st Cir. 1994) (refusing to
3
The continuing violation doctrine encompasses both serial
violations and systemic violations. Jensen v. Frank, 912 F.2d 517,
522 (1st Cir. 1990). The plaintiffs have not alleged a systemic
violation. See Centro Medico del Turabo, 321 F. Supp. 2d at 292;
see also Appellants' Br. at 10 (accepting the district court's
determination that no systemic violation was alleged).
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apply the serial violation theory when the plaintiff had failed to
show that the timely acts were "separate and actionable § 1983
violations"); Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 183
(1st Cir. 1989) (stating that the plaintiff "retain[s] the burden
of demonstrating that some discriminatory act transpired within the
appropriate time frame"). It follows inexorably that if the
plaintiffs have failed to state an independently actionable claim
based on the CRH incident, they cannot rely on that incident to
anchor the rest of their claims (each of which arose out of events
that occurred well prior to November 21, 1998 — the earliest day
within the limitations period). Consequently, we examine that
claim before proceeding further.
C.
The July 1999 Incident
In their complaint and their brief, the plaintiffs have
proposed, without meaningful elaboration, that the assignment to
San Juan Bautista of the right to administer CRH's affairs
contravened their due process, equal protection, and First
Amendment rights. We address each of these suggested bases for
liability.
1. Procedural Due Process. The plaintiffs have made a
general suggestion that the Secretary's failure to award them the
right to purchase, lease, or manage CRH violated due process. To
the extent that they hope to maintain a procedural due process
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claim, they must first point to a protected liberty or property
interest. Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972) ("The
requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment's
protection of liberty and property."). There is no liberty
interest implicated here,4 so the plaintiffs' claim stands or
falls, in the first instance, on the existence of a
constitutionally protected property interest.
In order to establish a constitutionally protected
property interest, the plaintiffs must identify a "legitimate claim
of entitlement" to the property in question — a claim of
entitlement created and defined by "existing rules or
understandings that stem from an independent source such as state
law." Id. at 577. For this purpose, "an abstract need or desire"
or a "unilateral expectation" are not sufficient to cement a
constitutionally protected interest. Id.
The plaintiffs allege that, on two occasions, they wrote
to the Secretary to express an interest in purchasing, leasing, or
managing CRH. That is not enough: they have wholly failed to
identify any legally cognizable property interest in acquiring a
4
To invoke a liberty interest, the plaintiffs would have to
identify "a right or status previously recognized by state law
[that] was distinctly altered or extinguished" by state action.
Paul v. Davis, 424 U.S. 693, 711 (1976); see also Johnson v.
Rodriguez, 943 F.2d 104, 109 (1st Cir. 1991). They have made no
effort to convince us that any such right or status is implicated
here, and we can think of none.
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right to purchase, lease, manage, or otherwise participate in the
privatization of CRH. Puerto Rico law governing the Department of
Health's authority to grant contracts for the privatization of
publicly-owned health care facilities dispels any doubt. The
statutory scheme not only explicitly allows the Secretary to award
such contracts to medical schools without following the usual
bidding protocol but also directs that she prefer such
institutions. See 24 P.R. Laws Ann. §§ 3322, 3306. These statutes
make it pellucid that the plaintiffs had no legally cognizable
right to vie for the CRH contract on an equal footing with San Juan
Bautista, let alone an entitlement to have that contract awarded to
them rather than to a medical school. The short of it is that the
plaintiffs had nothing more than a unilateral desire to secure a
stake in CRH's privatization. The frustration of such a subjective
desire is a far cry from the deprivation of a constitutionally
protected property interest. For this reason, the plaintiffs'
procedural due process claim fails.
2. Substantive Due Process. Next, the plaintiffs
contend that the Secretary's awarding of a contract to San Juan
Bautista was "[a]rbitrary, capricious, unfounded, and
discriminatory," thus violating their right to substantive due
process. This contention rings hollow.
The Fourteenth Amendment protects against deprivation of
life, liberty, or property without due process of law. See U.S.
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Const. amend XIV. The substantive component of this guarantee
guards against "certain government actions regardless of the
fairness of the procedures used to implement them." Daniels v.
Williams, 474 U.S. 327, 331 (1986). In the substantive due process
context (as in the procedural due process context), a plaintiff, as
a condition precedent to stating a valid claim, must exhibit a
constitutionally protected interest in life, liberty, or property.
See Washington v. Glucksberg, 521 U.S. 702, 722 (1997); Rivera, 402
F.3d at 33-34; Macone v. Town of Wakefield, 277 F.3d 1, 9 (1st Cir.
2002). As explained above, see supra Part II(C)(1), the plaintiffs
have failed to identify such an interest. Consequently, their
substantive due process claim founders.
3. Equal Protection. The plaintiffs asseverate that the
Secretary's grant of the CRH contract to San Juan Bautista denied
them a fair shake in the potentially lucrative process of
privatization of public health facilities, in violation of the
Equal Protection Clause. This asseveration is frivolous. The
plaintiffs failed, even when pressed at oral argument, to position
their claim within the familiar equal protection framework: they
have not claimed membership in a protected class or demonstrated
that other entities, similarly situated, were treated differently
concerning the award of hospital contracts. Their inability to
identify these doctrinal rudiments is fatal to their equal
protection challenge. See Barrington Cove Ltd. P'ship v. R.I.
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Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7-10 (1st Cir. 2001);
Hennessy v. City of Melrose, 194 F.3d 237, 244 (1st Cir. 1999);
Gilbert v. City of Cambridge, 932 F.2d 51, 66 (1st Cir. 1991).
4. First Amendment. The plaintiffs' last-gasp claim is
that the award of the CRH contract to an unrelated entity was part
of a "punitive campaign" to retaliate against them for availing
themselves of commonwealth court remedies following the Secretary's
denial of their applications for certain hospital permits. The
Supreme Court has made it plain that "even though a person has no
'right' to a valuable governmental benefit and even though the
government may deny him the benefit for any number of reasons,
there are some reasons upon which the government may not rely."
Perry v. Sindermann, 408 U.S. 593, 597 (1972). The exercise of
First Amendment rights is among the constitutionally proscribed
reasons for the denial of a government benefit. Id. Thus, we have
recognized, as a general matter, that "[c]laims of retaliation for
the exercise of First Amendment rights are cognizable under §
1983." Powell v. Alexander, 391 F.3d 1, 16 (1st Cir. 2004).
It is an open question, however, whether First Amendment
retaliation claims presented by disappointed bidders or applicants
for new government contracts are cognizable. In Board of County
Commissioners v. Umbehr, 518 U.S. 668, 673 (1996), the Court held
that First Amendment protections extend to independent contractors
alleging termination or prevention of automatic renewal of at-will
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government contracts in retaliation for the exercise of the freedom
of speech. On that basis, the Court held that a person so situated
could state a valid cause of action under section 1983. See id. at
686. In so holding, the Justices "emphasize[d] the limited nature
of [their] decision," which concerned only "the termination of a
pre-existing commercial relationship with the government," and,
accordingly, declined to address "the possibility of suits by
bidders or applicants for new government contracts who cannot rely
on such a relationship." Id. at 685.
Following Umbehr and a closely related decision
recognizing similar protections for independent contractors
alleging politically motivated discrimination, see O'Hare Truck
Serv., Inc. v. City of Northlake, 518 U.S. 712, 714-15 (1996), we
have acknowledged this uncertainty, observing that "[t]he next area
of contest appears to revolve around those who wish for the first
time to bid for government contracts." Prisma Zona Exploratoria v.
Calderon, 310 F.3d 1, 7 (1st Cir. 2002). In Prisma Zona, however,
we found it unnecessary to resolve that question, see id. — and we
have the same luxury today.
Even assuming, for argument's sake, that an entity that
has no preexisting contractual relationship with the Commonwealth
can state a claim under section 1983 for an allegedly retaliatory
denial of a bid, we nevertheless find that the plaintiffs have
failed to state a valid retaliation claim because they have not
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identified any action taken against them by the Secretary in
connection with the privatization of CRH, whether in the form of an
actual denial of a bid or an improper refusal to consider an
application. To the contrary, the Secretary, in accordance with
her authority under 24 P.R. Laws Ann. §§ 3306, 3322, never issued
an invitation for bids. Consequently, the plaintiffs' status does
not rise to that of disappointed bidders, and the grant of the CRH
contract to San Juan Bautista cannot be characterized as an action
taken against them so as to satisfy the threshold requirement of
alleging a retaliatory decision. We explain briefly.
If the protections recognized in Umbehr were to extend to
unsolicited bids for new government contracts — a matter on which
we take no view — establishing a First Amendment retaliation claim
would necessitate a showing "that [the plaintiff's] conduct was
constitutionally protected, and that this conduct was a
'substantial factor' [or] . . . a 'motivating factor'" driving the
allegedly retaliatory decision. Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977). Even so, the defendant
could then avoid a finding of liability by way of the so-called Mt.
Healthy defense, which requires a showing that "it would have
reached the same decision . . . even in the absence of the
protected conduct." Id.; see also Umbehr, 518 U.S. at 685.
In this case, the plaintiffs have alleged that, on three
occasions occurring in 1996 and 1997, they successfully appealed
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denials of applications for hospital licenses. As a general
matter, this type of conduct — seeking to avail oneself of judicial
remedies — is constitutionally protected. See Powell, 391 F.3d at
17. Thus, we assume that the plaintiffs have stated the first
material element of a retaliation claim.
That is about as far as the allegations of the complaint
take the plaintiffs. Although they have shown constitutionally
protected conduct, they have failed to identify any retaliatory
decision made by the Secretary, within the limitations period, in
response to that conduct.
The complaint provides no support for the contention that
the Secretary's grant of a contract to administer CRH to San Juan
Bautista was connected in any way to the plaintiffs, let alone to
their earlier court activities. The Secretary, pursuant to a
statutory preference that the plaintiffs do not challenge, elected
to award the contract to an accredited medical school without
conducting an open application process. At no point did she deny
any application or bid submitted by the plaintiffs. By like token,
the grant to San Juan Bautista did not involve any omission on the
part of the Secretary: she was not required to extend a request
for bids; the plaintiffs had no constitutionally protected interest
in participating in such a process; and, therefore, the failure to
respond to the plaintiffs' unsolicited notices of interest cannot
plausibly be characterized as the neglect of an obligation owed to
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the plaintiffs. In the absence of some action directed against the
plaintiffs or some omission that diminishes a constitutionally
protected interest or entitlement, the Secretary's conduct cannot
be said to have been taken against the plaintiffs. See LaRou v.
Ridlon, 98 F.3d 659, 662-63 (1st Cir. 1996) (finding that the
decision to post a job listing without first making offer to
plaintiff was not retaliatory because defendant had no obligation
to give preference to the plaintiff).
Even if the Secretary's action could, by some
thaumaturgical feat, be characterized as one directed against the
plaintiffs (rather than one that merely has an incidental effect on
an unprotected interest), the plaintiffs would have to show that
the adverse action was substantially attributable to the exercise
of their rights of appeal and not to some other (unrelated) reason.
See Mihos v. Swift, 358 F.3d 91, 108 (1st Cir. 2004). Other than
making a vague mention of the "timing of the acts" and a conclusory
reference to the defendant's "hostility," the plaintiffs have not
made any allegation that their earlier recourse to the Puerto Rico
courts was a substantial or motivating factor in the Secretary's
decision to award the CRH contract to San Juan Bautista.5
5
In point of fact, the lapse of time between the exercise of
the plaintiffs' rights of appeal and the Secretary's allegedly
retaliatory action (roughly two years) undercuts rather than
supports the plaintiffs' effort to demonstrate a causal connection.
Although close temporal proximity between two events may give rise
to an inference of causal connection, see, e.g., Lewis v. City of
Boston, 321 F.3d 207, 219 (1st Cir. 2003), intervals similar to the
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Moreover, the record establishes that, even without the
protected activity, the same result would have obtained. After
all, the Secretary, on this occasion, took no action against the
plaintiffs. She was mandated by law to prefer medical schools in
the awarding of hospital contracts — and that is precisely what she
did.
To recapitulate, we conclude that the plaintiffs have
failed to state a constitutionally cognizable claim related to the
July 1999 contract award. Because that incident cannot support an
actionable claim under section 1983, it cannot anchor the remainder
of the plaintiffs' (time-barred) claims. See Muniz-Cabrero, 23
F.3d at 610-11. Thus, we do not reach the question of whether the
other criteria necessary for a serial violation claim are satisfied
here.
III.
Conclusion
We need go no further. Concluding, as we do, that the
complaint fails to state a cause of action upon which section 1983
one involved here are simply too long to support such an inference,
see, e.g., id. (noting that the passage of eighteen months between
the protected conduct and the allegedly retaliatory action undercut
the temporal proximity argument); Dressler v. Daniel, 315 F.3d 75,
79-80 (1st Cir. 2003) (finding causal connection tenuous because of
passage of two years); Lewis v. Gillette Co., 22 F.3d 22, 25 (1st
Cir. 1994) (finding that lapse of two years undermined inference);
see also Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir.
1991) (holding that nine-month period between relevant events
weakened any inference of causation).
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relief can be granted, we affirm the district court's order of
dismissal.
Affirmed.
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Centro Medico Del Turabo, Inc. v. Feliciano De Melecio
Court: Court of Appeals for the First Circuit
Date filed: 2005-04-19
Citations: 406 F.3d 1
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