UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1235
CARLOS ROMERO-BARCELO,
Plaintiff, Appellant,
v.
MIGUEL HERNANDEZ-AGOSTO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Selya, Cyr and Lynch,
Circuit Judges.
Michael J. Rovell, with whom Lisa I. Fair, Hilary A. Higgins,
Carlos G. Latimer and Latimer, Biaggi, Rachid, Rodriguez, Suris &
Godreau were on brief for appellant.
Marcos A. Ram rez-Lavandero, with whom Eduardo A. Vera-Ram rez
and Marcos A. Ram rez-Lavandero & Associates were on brief for
appellees.
January 31, 1996
CYR, Circuit Judge. This appeal involves the most
CYR, Circuit Judge.
recent installment in the ongoing Cerro Maravilla political
scandal, which has engaged public attention in the Commonwealth
of Puerto Rico for more than fifteen years, and enlisted our
attention on several occasions since 1981. In this latest
sequel, plaintiff Carlos Romero-Barcelo (or "appellant") chal-
lenges a district court judgment dismissing various civil rights
claims, with prejudice, based on absolute legislative immunity
and failure to state a claim, and dismissing, without prejudice,
certain pendent claims under Puerto Rico law. We affirm the
district court judgment in all respects.
I
I
BACKGROUND1
BACKGROUND
On February 22, 1981, the Puerto Rico Senate, then
controlled by the Popular Democratic Party ("PDP"), authorized an
investigation into the brutal ambush and murders of two pro-
independence youths, Arnaldo Dario-Rosado and Carlos Soto-
Arrivi, by Commonwealth police officers at Cerro Maravilla in the
mountains of Puerto Rico during the summer of 1978. At the time
of the murders, appellant Romero-Barcelo was the Governor of
Puerto Rico, and headed the New Progressive Party ("NPP") which
controlled the Senate. As part of the Senate investigation,
subpoenas were issued for documents in the possession of the
1Rule 12(b)(6) dismissals are reviewed under the rubric that
"all reasonable inferences from well-pleaded facts are to be
drawn in appellant['s] favor." Calero-Colon v. Betancourt-
Lebron, 68 F.3d 1, 2 n.1 (1st Cir. 1995).
3
Puerto Rico Justice Department. In due course, this court
vacated a district court order quashing the subpoenas, In re San
Juan Star Co., 662 F.2d 108, 111, 118-20 (1st Cir. 1981), while
noting that a state legislature might be enjoined "in a proper
case." Colon Berrios v. Hernandez Agosto, 716 F.2d 85, 88 (1st
Cir. 1983) (internal quotation marks omitted).
Following the San Juan Star decision, the Senate
Judiciary Committee (or "Committee") gained access to materials
which together with other documents and testimony gathered in
executive session formed the basis for televised Committee
hearings (or "Hearings") which began June 15, 1983. The Senate
voted to pay to televise the Hearings on a commercial station and
"the hearings were apparently widely viewed." Id. at 87.
Thereafter, we reversed a district court order enjoining Commit-
tee members and their agents from compelling some of the defen-
dants in a separate civil rights action arising out of the
murders of Dario-Rosado and Soto-Arrivi (the "Soto" litigation),
see Soto v. Romero Barcelo, 559 F. Supp. 739, 740-41 (D.P.R.
1983), to appear and testify publicly at the Hearings; and, "from
publishing documents in the [Committee members'] possession that
are covered by the protective order issued in [the Soto litiga-
tion] or that are transcripts of testimony before the Committee
by [some of the Soto defendants]." Colon Berrios, 716 F.2d at
86, 87.
The Hearings were reconvened in October 1984, prepara-
tory to the November 1984 gubernatorial elections in which
4
Romero-Barcelo ran for reelection and lost. Following a break in
the political action, the most recent round of Hearings began in
October 1991, as a prelude to a PDP-sponsored referendum in
December 1991 on the future intergovernmental relationship
between Puerto Rico and the United States. Once Romero-Barcelo
announced his candidacy for Resident Commissioner, these Hearings
were extended through May 1992. During the latter phases of the
Hearings, while the PDP controlled the Senate, defendant-appellee
Miguel Hernandez-Agosto served as Senate President, defendant-
appellee Marco Antonio-Rigau headed the Senate Judiciary Commit-
tee, and defendant-appellee Edgardo Perez-Viera, chief counsel,
directed Committee investigative efforts.
Appellant Romero-Barcelo claims, inter alia, that
Committee members slanted and manipulated the Committee testimony
and evidence to suggest that he had been involved in the planning
and shooting of the two youths at Cerro Maravilla, and in subse-
quent attempts to cover up the murders. He alleges that witness-
es were interviewed in private, without legal assistance; subpoe-
nas were issued without notifying all Committee members; only one
Committee investigator was appointed and he reported exclusively
to the PDP majority; access to all documents, transcripts of
testimony, evidence, and reports was restricted to PDP members,
their aides and assistants; the Committee violated a Puerto Rico
Supreme Court order that the documents and other materials be
made available to the NPP minority; witnesses were not allowed
access to transcripts of their prior testimony before testifying;
5
an investigative report finding no wrongdoing by Romero-
Barcelo was covered up; the witness microphone was turned off
when testimony did not suit defendants Hernandez-Agosto and
Antonio-Rigau, or other PDP members.
Romero-Barcelo alleges that from the late 1970s the
defendants and the Committee continuously labelled him as an
assassin or murderer, even though no evidence was ever submitted
to substantiate the charge; that defendant Perez presented
information at the Hearings, and subsequently through press
releases and television and radio interviews, knowing it to be
false or misleading; that the defendants continually disseminated
false information outside the legislative chambers, through
television broadcasts made at government expense, press releases
and interviews arranged and conducted at the Legislature in
public areas and at television studios, political speeches
delivered in various municipalities, press releases distributed
to news media within and beyond Puerto Rico, as well as written
and oral communications to the United States Senate and House of
Representatives, federal departments, and agencies. Appellant
complains that the defendants held press conferences at radio and
television stations and other public forums after the Hearings,
publicly passing judgment on statements made before the Committee
regarding the credibility of witnesses, the strength or weakness
of the evidence, and publicly accusing witnesses and third
parties, including Romero-Barcelo, of perjury before the Commit-
tee. This campaign allegedly was carried out through public
6
speechmaking and political campaign rallies, as well as televi-
sion and radio broadcasts, newspapers,and by other public means.
In September 1992, appellant brought suit in federal
district court under 42 U.S.C. 1983, asserting violations of
his First, Fifth, and Fourteenth Amendment rights under the
United States Constitution, and under 42 U.S.C. 1985(3), for
conspiracy to deprive him of these constitutional rights. He
demanded compensatory and punitive damages, costs, and attorney
fees. See 28 U.S.C. 1331 (federal question) and 1343 (civil
rights and elective franchise). Finally, he alleged supplemental
claims for libel and slander under Puerto Rico law. See 28
U.S.C. 1367. The defendants moved to dismiss under Fed. R.
Civ. P. 12(b)(6), asserting absolute legislative immunity, and
failure to state a claim. The district court dismissed all
federal claims, with prejudice, and the libel and slander claims,
without prejudice. Romero-Barcelo appealed.
II
II
DISCUSSION2
DISCUSSION
We first consider the alleged conduct that the district
court found to be protected under the doctrine of absolute
2We review Rule 12(b)(6) dismissals de novo. Clarke v.
Kentucky Fried Chicken of Cal., Inc., 57 F.3d 21, 22 n.1 (1st
Cir. 1995). "The pleading requirements, though 'minimal,' are
not 'non-existent.'" Rumford Pharmacy, Inc. v. City of East
Providence, 970 F.2d 996, 998 (1st Cir. 1992) (quoting Gooley v.
Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988) ("Modern
notions of 'notice pleading' notwithstanding, a plaintiff . . .
is nonetheless required to set forth factual allegations, either
direct or inferential, respecting each material element necessary
to sustain recovery under some actionable legal theory.")).
7
legislative immunity. Next, we determine whether the remaining
conduct in which defendants are alleged to have engaged gave rise
to any actionable claim under either section 1983 or section
1985(3).
A. Absolute Legislative Immunity
A. Absolute Legislative Immunity
A defense of absolute legislative immunity for state
legislators has been recognized since 1951. Colon Berrios, 716
F.2d at 89 (citing Tenney v. Brandhove, 341 U.S. 367 (1951)). Of
course, absolute immunity affords protection not only from
liability but from suit. Agromayor v. Colberg, 738 F.2d 55, 57
(1st Cir.), cert. denied, 469 U.S. 1037 (1984) (citing Helstoski
v. Meanor, 442 U.S. 500, 506-08 (1979)). State legislative
immunity is "'similar in origin and rationale to that accorded
Congressmen under the Speech or Debate Clause'" of the United
States Constitution. Negron-Gaztambide v. Hernandez-Torres, 35
F.3d 25, 27 (1st Cir. 1994), cert. denied, 115 S. Ct. 1098 (1995)
(quoting Supreme Court of Va. v. Consumers Union of the United
States, Inc., 446 U.S. 719, 732 (1980)). Although not based on
the doctrine of separation of powers, as is the constitutional
immunity accorded Members of Congress, the state legislative
immunity defense nonetheless implicates "principles of comity and
federalism . . . ." Agromayor, 738 F.2d at 58-59 (citing United
States v. Gillock, 445 U.S. 360, 370-73 (1980)). See also
National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 628
(1st Cir. 1995).
8
The immunity defense in this case protects only conduct
within the "sphere of legitimate legislative activity." Colon
Berrios, 716 F.2d at 89 (citing Doe v. McMillan, 412 U.S. 306,
320 (1973); Tenney, 341 U.S. at 376-77). Absolute legislative
immunity "is justified and defined by the functions it protects
and serves, not by the person to whom it attaches." Negron-
Gaztambide, 35 F.3d at 27 (quoting Forrester v. White, 484 U.S.
219, 227 (1988)). "[I]t is the nature of the particular act
rather than the title of the office which governs whether immuni-
ty attaches." Acevedo-Cordero v. Cordero-Santiago, 958 F.2d 20,
21 (1st Cir. 1992); see also Agromayor, 738 F.2d at 59. "Acts .
. . that are administrative in nature do not 'give rise to
absolute immunity from liability in damages under 1983.'"
Negron-Gaztambide, 35 F.3d at 28 (quoting Forrester, 484 U.S. at
229); see also Agromayor, 738 F.2d at 59-60; Cutting v. Muzzey,
724 F.2d 259, 261-62 (1st Cir. 1984).
The scope of state legislative immunity from suit under
section 1983 is "essentially coterminous" with the absolute
immunity accorded members of Congress under the Speech or Debate
Clause of the United States Constitution (or "the Clause").
Harwood, 69 F.3d at 629 (citing Supreme Court of Va., 446 U.S. at
732-33). For the Clause to apply, the activity must be "'an
integral part of the deliberative and communicative processes by
which Members participate in committee and House proceedings with
respect to the consideration and passage or rejection of proposed
legislation or with respect to other matters which the Constitu-
9
tion places within the jurisdiction of either House.'" Agromay-
or, 738 F.2d at 59 (quoting Gravel v. United States, 408 U.S.
606, 625 (1976)). It does not cover "actions that are only
'casually or incidentally related to legislative affairs,'"
Harwood, 69 F.3d at 630 (quoting United States v. Brewster, 408
U.S. 501, 528 (1972)), "or which fall outside the 'legitimate
legislative sphere.'" Id. (quoting Eastland v. United States
Servicemen's Fund, 421 U.S. 491, 503 (1975)).
"While the core protection conferred by the Clause
concerns speech or debate by a member of Congress on the floor of
either the Senate or the House", id. (citing Gravel, 408 U.S. at
625), "the penumbra of the Clause sprawls more broadly." Id.
For example, the Clause covers voting; id. (citing Kilbourn v.
Thompson, 103 U.S. 168, 204 (1880)); "conduct at legislative
hearings," but not "private publication by a Senator on his own
behalf of documents submitted at a hearing . . . "; Colon
Berrios, 716 F.2d at 90 (citing Gravel, 408 U.S. at 624-27);
"members . . . and their staffs" for preparation of "an allegedly
defamatory report"; id.; and members in "voting for its publica-
tion," but not "general public dissemination [of the report] by
legislative functionaries." Id. (citing Doe, 412 U.S. at 313-
14). The Clause covers "a committee hearing or report designed
to inform the [legislative] membership," but not an individual
"Senator's publication of press releases or news letters," id.
(citing Hutchinson v. Proxmire, 443 U.S. 111, 123-33 (1979)), nor
individual "political" activities, such as are involved in
10
"legitimate 'errands' performed for constituents, the making of
appointments with Government agencies, [and] assistance in
securing Government contracts." Harwood, 69 F.3d at 631 (alter-
ation in original) (quoting Brewster, 408 U.S. at 512) (internal
quotation marks omitted).
The district court concluded that the Cerro Maravilla
hearings "fell well within the legitimate legislative sphere" and
"that the defendants are therefore immune from any civil or
criminal prosecution based on conduct directly related to the
Cerro Maravilla investigations." Barcelo v. Agosto, 876 F. Supp.
1332, 1342-43 (D.P.R. 1995). The court relied on our earlier
analysis of the Hearings:
The hearings were properly authorized by
Puerto Rico Senate Resolution 91 (February
22, 1981), which provides a specific mandate
to the Senate Judiciary Committee to inquire
into the activities of the police and other
agencies of the government leading up to and
during the Cerro Maravilla incident as well
as the behavior of the executive branch in
response to the incident.
Investigations such as this Senate Judi-
ciary Committee investigation constitute an
essential component of the legislative pro-
cess. . . .
Id. (quoting Colon Berrios, 716 F.2d at 90).
The district court then held that all of Romero-Barce-
lo's "claims regarding allegedly unconstitutional procedures
employed by the Committee relating to the issuance of subpoenas,
the examination of witnesses, and the gathering of evidence, as
well as his claims regarding the allegedly unlawful use of public
funds to broadcast the hearings and regarding slanderous comments
11
allegedly made by the defendants must be DISMISSED." Id. at
1343. The court dismissed the claims against Hernandez-Agosto
and Antonio-Rigau, members of the Puerto Rico Legislature, as
well as the claim against Perez-Viera, chief counsel and investi-
gator for the Committee. Id. at 1343 n.8 (citing Eastland v.
United States Servicemen's Fund, 421 U.S. at 507 (Speech or
Debate Clause immunity for issuance by investigative subcommittee
extends to its chief counsel)). The court also rejected Romero-
Barcelo's claim "that the defendants abused their positions and,
solely [for] political reasons, slanted or manipulated the
testimony offered during the hearings to portray the plaintiff in
a negative light." Id. at 1343 (citing Tenney, 341 U.S. at 377
("The claim of an unworthy purpose does not destroy the privi-
lege.")). The district court ruled, however, that "defendants'
alleged dissemination of false, defamatory, and slanderous
information about the plaintiff through press releases, inter-
views, and speeches occurring outside the strict scope of their
legislative duties" was not protected by legislative immunity.
Id. (citing Hutchinson, Gravel, and Doe).
1. Allegations of Criminal Misconduct
1. Allegations of Criminal Misconduct
Appellant argues that the defendants are liable in
damages under section 1983 for their alleged criminal conduct
including subornation of perjury, intimidation of witnesses and
obstruction of justice during the Hearings even assuming the
Hearings were a proper legislative function. Citing to Brewster,
408 U.S. at 526, he relies for further support on the reasoning
12
in Gravel, 408 U.S. at 626: "While the Speech or Debate Clause
recognizes speech, voting, and other legislative acts as exempt
from liability that might otherwise attach, it does not privilege
either Senator or aide to violate an otherwise criminal law in
preparing for or implementing legislative acts."
Romero-Barcelo's reliance on Gravel and Brewster is mis-
placed, however, as those cases concerned whether a legislative
immunity defense based on the Speech or Debate Clause protected
Members of Congress from federal criminal prosecution. In
Gillock, the Supreme Court carefully distinguished a State
legislator's narrower right to absolute legislative immunity from
private civil actions, which does not include immunity from
federal criminal prosecution.
First, Tenney was a civil action brought by a
private plaintiff to vindicate private
rights. Moreover, the cases in this Court
which have recognized an immunity from civil
suit for state officials have presumed the
existence of federal criminal liability as a
restraining factor on the conduct of state
officials. . . . Thus, in protecting the
independence of state legislators, Tenney and
subsequent cases on official immunity have
drawn the line at civil actions.
445 U.S. 372-73. Absolute immunity from suit for civil damages
under section 1983 allegedly based on criminal conduct does not
necessarily immunize the legislator or his aide from federal
13
criminal prosecution.3 But the legislator is immunized from
suit for damages under section 1983.
3As the district court dictum concerning immunity from
criminal prosecution "based on conduct directly related to the
Cerro Maravilla investigations," Barcelo, 876 F. Supp. at 1343,
is not necessary to its holding, nor to ours, we do not endorse
it.
14
2. Contemporaneous Telecasting of Hearings
2. Contemporaneous Telecasting of Hearings
Appellant argues that defendants' decision to use
public funds to finance live telecasts of these Hearings was not
protected by absolute legislative immunity. The Supreme court
made clear, in Doe, 412 U.S. at 313-14, that the introduction of
documents at an open legislative hearing is protected conduct but
a private republication of the documents by a Member of Congress
is not. We hold that the legislative decision to sponsor live
telecasts of the open Committee hearings authorized a legislative
disclosure rather than a private republication which
clothed defendants with absolute legislative immunity from suit
under section 1983.4 But even assuming the contemporaneous
"publication" of the open Hearings went beyond the reasonable
requirements of the legislative function, a matter we do not
decide, defendants' determination that the Hearings should be
televised at public expense constituted legislative conduct
absolutely immune from civil suit. Doe, 412 U.S. at 315 ("Mem-
bers of Congress are themselves immune for ordering or voting for
4In Hutchinson, 443 U.S. at 116 n.3, the Supreme Court said:
"we assume, without deciding, that a speech printed in the
Congressional Record carries immunity under the Speech or Debate
Clause as though delivered on the floor." Accordingly, the Court
did not take issue with a district court suggestion that "a
television or radio broadcast of [a Senator's] speech from the
Senate floor" would receive the protection of the Speech or
Debate Clause. Id. at 119. But the Court did not agree with the
suggestion that such a broadcast is analogous to a Senator
issuing a press release relating to a floor speech. Id. See
also Cable News Network v. Anderson, 723 F. Supp. 835 (D.D.C.
1989) (Speech or Debate Clause bars judicial review of House rule
regulating television coverage of hearings).
15
a publication going beyond the reasonable requirements of the
legislative function . . . .").5
3. Immunity of Committee Counsel
3. Immunity of Committee Counsel
Next, appellant argues that the immunity of a legisla-
tive aide is less broad than that available to a legislator.
Consequently, says appellant, the chief counsel to the Committee,
defendant-appellee Perez-Viera, is not immune from suit. Appel-
lant relies on Dombrowski v. Eastland, 387 U.S. 82, 85 (1967)
(per curiam), wherein the Supreme Court affirmed a grant of
summary judgment for the Chairman of a Senate subcommittee but
reversed a summary judgment order in favor of subcommittee
counsel, explaining that the "doctrine [of legislative] immunity
is less absolute, although applicable, when applied to officers
or employees of a legislative body, rather than to legislators
themselves." Eight years later, the Supreme Court considered
whether the absolute immunity of the same Senate Subcommittee
Chairman extended to the same subcommittee counsel. Eastland v.
United States Serviceman's Fund, 421 U.S. at 506-508. The Court
5Appellant argues that it was improper to grant judgment for
defendants under Rule 12(b)(6), because further factfinding was
required to determine whether their decision to use public funds
to finance live telecasts is protected by absolute legislative
immunity. Appellant relies on dicta in Colon Berrios, declining
to reach "the issue of whether the Senate's expenditure of funds
for live television broadcast of the hearings falls within the
legitimate legislative sphere" because, inter alia, it "would
involve extensive fact-finding" relating to First Amendment
issues regarding prior restraint. 716 F.2d 90 n.3. In this
case, however, there is no need to reach the First Amendment
matters which loomed in Colon Berrios, since we are not reviewing
a Rule 12(b)(6) denial of injunctive relief, but a dismissal of a
civil rights action for damages based in part on a broadcast
which has already occurred.
16
"[drew] no distinction between the Members and the Chief Coun-
sel," id. at 507, stating that "the day-to-day work of [legisla-
tive] aides is so critical to the Members' performance that they
must be treated as [the Members'] alter egos . . . ." Id.
(alteration in original) (quoting Gravel, 408 U.S. at 616-17)
(internal quotation marks omitted). It noted, however, that
"[t]he complaint . . . does not distinguish between the activi-
ties of the Members and those of the Chief Counsel," thereby
distinguishing Dombrowski v. Eastland. Id. Appellant
argues that his complaint does distinguish between the activities
of Hernandez-Agosto and Antonio-Rigau, on the one hand, and
Perez-Viera on the other. Nevertheless, the relevant allegation
in the complaint that chief counsel Perez-Viera presented
information at the Committee hearings, knowing it to be false and
misleading is part and parcel of the parallel allegation that
all legislator-defendants used the Hearings to disseminate
information about Romero-Barcelo, knowing it to be false or
misleading. Thus, in applying the doctrine of absolute legisla-
tive immunity to these facts, we draw no distinction between the
legislator-defendants and Committee counsel.
B. Civil Rights Claims
B. Civil Rights Claims
We next consider the claims not barred by absolute
legislative immunity.
1. Section 1983
1. Section 1983
"An actionable section 1983 claim must allege facts
sufficient to support a determination '(i) that the conduct
17
complained of has been committed under color of state law, and
(ii) that [the alleged] conduct worked a denial of rights secured
by the Constitution or laws of the United States.'" Rumford
Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 998 (1st
Cir. 1992) (quoting Chongris v. Board of Appeals, 811 F.2d 36, 40
(1st Cir.), cert. denied, 483 U.S. 1021 (1987)).
a. Procedural Due Process
a. Procedural Due Process
A viable procedural due process claim must demonstrate
a "deprivation by state action of a constitutionally protected
interest in 'life, liberty, or property' . . . without due
process of law." Lowe v. Scott, 959 F.2d 323, 340 (1st Cir.
1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990))
(internal quotation marks omitted).6
i. Deprivation of Liberty Interest
i. Deprivation of Liberty Interest
Romero-Barcelo alleges that the defamatory statements
by defendants deprived him of a "liberty" interest in his good
name and reputation. Barcelo, 876 F. Supp. at 1344. The Supreme
Court has made it clear that an actionable deprivation of a
liberty interest in one's reputation "must be accompanied by a
change in the [victim's] status or rights (under substantive
state or federal law), perhaps as a touchstone (or concrete
evidence) of the fact that the injury to reputation was inflicted
as part of a conscious government policy and is serious enough to
interfere with other liberties of the sort suggested in Meyer [v.
6Of course, if the challenged conduct constitutes "state
action," the "color of state law" requirement is met as well.
Lugar v. Edmonson Oil Co., 457 U.S. 922, 935 (1982).
18
Nebraska, 262 U.S. 390 (1923)]," Beitzell v. Jeffrey, 643 F.2d
870, 878 (1st Cir. 1981) (citing Paul v. Davis, 424 U.S. 693,
706, 708, 710 (1976) (in the absence of more tangible interests
such as employment, reputation alone is neither a "property"
interest nor a "liberty" interest sufficient to require procedur-
al due process)), such "as the right 'to engage in any of the
common occupations of life,' or 'to marry, to establish a home
and bring up children.'" Id. at 877 (citing Meyer, 262 U.S. at
399). As this court indicated in Beitzell, no constitutionally
protected "liberty" interest in reputation is infringed unless
the reputational harm is "unusually serious . . . as evidenced by
the fact that employment (or some other right or status) is
affected." Id. at 878.
The district court concluded that no serious harm had
befallen Romero-Barcelo. Barcelo, 876 F. Supp at 1345. It
observed that he had been elected Resident Commissioner in 1992,
"immediately after the last barrage of allegedly libelous state-
ments." Id. The district court noted as well that Romero-
Barcelo had lost the gubernatorial election in 1984, but it ruled
that any claim based on that "serious harm," some eight years
earlier, was time-barred. Id. at 1346 (citing Wilson v. Garcia,
471 U.S. 261, 276 (1985) (in section 1983 action, court borrows
local limitation period applicable to personal injury actions);
Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 2-3 (1st Cir. 1995)
19
(citing to P.R. Laws Ann. tit. 31, 5298(2) (1991)) (one-year
limitation on personal injury actions).7
ii. The Process Due
ii. The Process Due
Romero-Barcelo claims a deprivation of his right to be
free from "'abusive attacks on his honor, reputation and private
or family life' as established by Article II, Section 8, of the
Puerto Rico Constitution." Barcelo, 876 F. Supp. at 1346.8
Although the Section 8 claim is based in commonwealth law, hence
not directly actionable under section 1983, Quintero de Quintero
v. Aponte-Roque, 974 F.2d 226, 230 (1st Cir. 1992), Section 8 may
give rise to a constitutionally protected "liberty interest."
Assuming arguendo, as did the district court, that Section 8
creates a constitutionally protected "liberty" interest, we
consider whether Romero-Barcelo received the process due.
The process due depends in large part on the circum-
stances. Watson v. Caton, 984 F.2d 537, 540-41 (1st Cir. 1993)
(per curiam) (citing Mathews v. Eldridge, 424 U.S. 319, 335
7Appellant misplaces reliance on Limerick v. Greenwald, 666
F.2d 733 (1st Cir. 1981), wherein a timely complaint alleged that
defendants' actions threatened "unusually serious harm" to
plaintiffs' reputations, "stripping them of their responsibili-
ties as bank managers and threatening their future employabili-
ty." Id. at 735. On appeal, Romero-Barcelo claims, for the
first time, that his law practice suffered. He urges us to
assume as much based on defendants' efforts to brand him as a
"murderer" and "assassin." We decline his invitation to bypass
trial court consideration of this factual question in the first
instance. See Havinga v. Crowley Towing and Transp. Co., 24 F.3d
1480, 1483 n.5 (1st Cir. 1994).
8Article II, 8, provides: "Every person has the right to
the protection of law against abusive attacks on his honor,
reputation and private or family life." P.R. Const., art. II,
8.
20
(1976)). As noted in Watson, the "cases distinguish sharply
between deprivations caused by 'random, unauthorized' conduct of
state officials, and deprivations caused by conduct 'pursuant to
established state procedure.'" Id. at 541 (quoting Hudson v.
Palmer, 468 U.S. 517, 532 (1984)). "For the former, the state is
not automatically liable; in the latter case there may be liabil-
ity where the state policy approves or directs the conduct but
falls below constitutional standards." Id. (footnote omitted).
Romero-Barcelo does not claim, however, that defendants' unimmun-
ized actions were taken pursuant to either the Commonwealth's
direction or its established policy. Rather, he alleges that
defendants made numerous libelous statements "in television
studios, in political speeches made throughout the island, and in
political press releases." Barcelo, 876 F. Supp. at 1345. Nor
has he alleged that the actions complained of were other than
"random, unauthorized conduct" on the part of the individual
defendants.
It is rudimentary that a deprivation of procedural due
process caused by "random, unauthorized conduct" of a State offi-
cial is not actionable under section 1983 unless, amongst other
things, "no adequate 'post-deprivation remedy' is available under
state law." Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st
Cir. 1994). Romero-Barcelo neither alleged nor established that
Puerto Rico law affords no adequate remedy for whatever liberty
interest deprivation may have been sustained under Section 8 of
the Puerto Rico Constitution. Absent either an allegation
21
regarding the inadequacy of commonwealth tort remedies for
slander and libel, or even argumentation on the point, we decline
to address the question. See Rumford Pharmacy Inc., 970 F.2d at
999; Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987,
994 n.7 (1st Cir. 1992). We note further that the district
court's conclusion that Section 8 "is the main source of protec-
tion against libel and slander under Puerto Rico law," Barcelo,
876 F. Supp. at 1346 n.11 (citing Cortes Portalatin v. Hau Colon,
3 T.P.R. 1019 (1975)), is not challenged on appeal. See also
Willhauck v. Halpin, 953 F.2d 689, 704 (1st Cir. 1991) (court of
appeals may "affirm on any independently sufficient ground").
b. The First Amendment Claim
b. The First Amendment Claim
Appellant claims violations of his First Amendment
rights to freedom of speech and association. Before the district
court he claimed "that his right to free speech was chilled and
his right to associate with the NPP was adversely affected by the
[allegedly] defamatory statements made by the defendants."
Barcelo, 876 F. Supp. at 1348. The district court found, howev-
er, "that given the fact that he was elected Resident Commission-
er on the NPP ticket, [Romero-Barcelo's] claims regarding injury
to his right to associate with the NPP ring hollow." Id.
Further, the court concluded that "there [was] no indication that
the defendants compelled the plaintiff to advocate either an
unpopular or any other type of view." Id. at 1348 n.15 (con-
trasting Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (requir-
ing display of "Live Free or Die" motto on vehicle license plate
22
violates First Amendment right "to refrain from speaking."). We
agree.
On appeal, however, Romero-Barcelo contends that he
"alleged that he was singled out for . . . harassment and
deprivation of rights because of his beliefs and political
association." The crux of this argument is that defendants'
alleged conduct, both within the Hearings and without, was
undertaken because of Romero-Barcelo's association with the NPP.
The Supreme Court has held that the First Amendment "protects
nonpolicymakers from being drummed out of public service on the
basis of their political affiliation or advocacy of ideas."
Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 56-57 (1st
Cir. 1990) (citing Branti v. Finkel, 445 U.S. 507, 517 (1980);
Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality opinion)).
But Romero-Barcelo most assuredly qualified as an NPP policymak-
er. See id. at 57 n.6. Thus, the district court correctly found
no First Amendment protection for "a politician whose rights to
freedom of speech, freedom of association, and freedom 'to
disassociate [oneself] from unpopular views' have been injured by
other politicians seeking to undermine his credibility within his
own party and with the electorate." Barcelo, 876 F. Supp. at
1348 (alteration in original) (footnote omitted).
2. Section 1985(3)
2. Section 1985(3)
An actionable section 1985(3) claim must allege that
(i) the alleged conspirators possessed "some racial, or perhaps
otherwise class-based, invidiously discriminatory animus,"
23
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), and (ii) their
alleged conspiracy was "aimed at interfering with rights . . .
protected against private, as well as official, encroachment."
United Bhd. of Carpenters & Joiners of America v. Scott, 463 U.S.
825, 833 (1983). See also Libertad v. Welch, 53 F.3d 428, 446
(1st Cir. 1995) (citing Bray v. Alexandria Woman's Health Clinic,
113 S. Ct. 753, 758 (1993)). The conspiracy allegation must
identify an overt act. See Griffin, 403 U.S. at 93; Libertad, 53
F.3d at 450 n.18. If no racial animus is charged, a discrimina-
tory class-based animus must be alleged. See Harrison v.
Brooks, 519 F.2d 1358, 1359 (1st Cir. 1975) (citing Griffin, 403
U.S. at 102). "The requirement that the discrimination be
'class-based' is not satisfied by an allegation that there was a
conspiracy which affected the interests of a class of persons
similarly situated with the plaintiffs. Rather, the complaint
must allege facts showing that the defendants conspired against
the plaintiffs because of their membership in a class and that
the criteria defining the class were invidious." Id. at 1359-60.
The complaint alleged that the three defendants "con-
spired . . . to launch a negative publicity campaign funded with
public funds and to label [him] as an assassin and murderer in
order to end his political career and enhance their own. [The]
defendants allegedly used their elected political positions to
keep the Committee investigations alive, and to reactivate those
committee hearings at politically advantageous opportunities."
Barcelo, 876 F. Supp. at 1349. The district court held these
24
allegations insufficient to support a conspiracy claim under
section 1985(3), rejecting the implicit assumption that "since
the defendants are members of the opposing political party and
had substantial control over the Committee hearings, they must
have had a conspiracy." Id. at 1350. The court further found no
allegation of an overt act, and no articulation of a "clear
class-based invidious discriminatory animus behind the alleged
actions of the alleged conspirators." Id. We agree that Romero-
Barcelo's allegations were insufficient to support a section
1985(3) claim.
On appeal, Romero-Barcelo does not address these
specific shortcomings in the complaint, choosing instead to rest
upon a conclusory statement that the allegations are sufficient
for a section 1985(3) claim,9 and the argument that the height-
ened pleading requirement for section 1985(3) conspiracy claims
under Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir. 1977),
cert. denied, 434 U.S. 1077 (1978) ("[C]omplaints cannot survive
a motion to dismiss if they contain conclusory allegations of
conspiracy but do not support their claims with references to
material facts."), is no longer good law, citing to Leatherman v.
Tarrant County Narcotics Intelligence & Coordination Unit, 113 S.
Ct. 1160 (1993). Leatherman rejected a "heightened pleading
standard" in civil rights actions claiming municipal liability
under section 1983. Id. at 1161. Even assuming Leatherman
9Although appellant argues that he should have been given an
opportunity to amend the complaint, our review of the record on
appeal discloses no indication that he made such a request below.
25
applies to the present claim, a matter we need not address, we do
not view the failure to allege essential elements of a section
1985(3) claim as any mere failure to comply with a "heightened
pleading requirement." See Griffin, 403 U.S. at 102-103.
26
III
III
CONCLUSION
CONCLUSION
For their alleged conduct within the legislative forum,
we conclude that defendants were protected by absolute legisla-
tive immunity. For their conduct outside the legislative forum,
the allegations were insufficient to state actionable claims
under sections 1983 and 1985(3). Appellant Romero-Barcelo has no
actionable procedural due process claim under section 1983,
either because he had no constitutionally protected "liberty"
interest, or because Puerto Rico law afforded whatever post-
deprivation process may have been due. Nor did appellant have an
actionable First Amendment claim, since there is no constitu-
tional ban against the alleged conduct. Finally, appellant
failed to plead all essential elements of an actionable conspira-
cy claim under section 1985(3). The district court
The district court
judgment is affirmed. Costs to appellees.
judgment is affirmed. Costs to appellees.
27