United States Court of Appeals
For the First Circuit
No. 05-1760
ALEJANDRO MIRANDA OTERO,
Plaintiff, Appellant,
v.
COMMONWEALTH OF PUERTO RICO INDUSTRIAL COMMISSION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Hansen, Senior Circuit Judge*,
and Lynch, Circuit Judge.
Mauricio Hernández Arroyo, with whom Law Offices of Mauricio
Hernández Arroyo was on brief, for appellant.
Sarah Y. Rosado-Morales, Assistant Solicitor General, with
whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana D.
Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-
Rodríguez, Deputy Solicitor General, were on brief, for appellees.
March 22, 2006
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
LYNCH, Circuit Judge. The district court dismissed this
purported First Amendment political discrimination claim brought by
Alejandro Miranda-Otero ("Miranda") seeking a million dollars in
damages from his employer, the Commonwealth of Puerto Rico
Industrial Commission; the Commission's president, Gilberto
Charriez-Rosario ("Charriez"); and several co-workers. The co-
worker defendants were Ayxa Rey-Díaz ("Rey"), the Director of the
Commission's Legal Division, and Adalberto Pantojas-Fonseca
("Pantojas"). For good measure, Miranda also sued one Juan Rivera-
Lomeño ("Rivera"), whom the complaint alleged was not a
Commonwealth employee at all, but an employee of a private
contractor who worked as a security guard at the Commission.
The original motion to dismiss, although captioned a Rule
12(b)(6) motion, attached evidentiary materials and was filed after
there had been discovery. The plaintiff did not, in opposition,
file a Rule 56(f) affidavit or move to strike the materials. The
court allowed the motion to dismiss.1 Plaintiff subsequently moved
for reconsideration and attached evidentiary materials of his own.
The court denied the reconsideration motion in a brief opinion and
order.
1
The court's initial order granting the motion to dismiss did not
make reference to the evidentiary materials submitted by the
defendants, but instead relied entirely on plaintiff's complaint
and analyzed the dismissal request under Rule 12(b)(6) standards.
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Miranda appeals, saying his complaint stated a claim and
survives even if one considers the evidentiary facts relied on by
the district court in denying his motion for reconsideration. It
does not and we affirm.2
I.
We review the district court's order of dismissal de novo
and may affirm on any ground supported by the record. Platten v.
HG Berm. Exempted Ltd., 437 F.3d 118, 127 (1st Cir. 2006). We
accept as true all well-pleaded facts alleged by plaintiff in his
complaint and draw in his favor all reasonable inferences fitting
his stated theories of liability. Id.
A. Dismissal of Defendants Charriez, Pantojas, and Rivera
Miranda's complaint stated that he began working at the
Commission while the New Progressive Party was in power in Puerto
Rico, and that he was a supporter of then-Commission President
Basilio Torres Rivera. During the spring and summer of 2003, the
complaint alleged, Charriez, Pantojas, and Rivera took a variety of
actions against him. Pantojas, a co-worker, allegedly told Miranda
not to make photocopies in the Commission president's office,
ordered him not to go to the bank during working hours, and
prohibited him from using his laptop.
2
The district court dismissed the Commission as a defendant on
grounds of Eleventh Amendment immunity. This ruling is not
contested on appeal.
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The complaint alleged that on August 19, 2003, Rivera,
the security guard, yelled at Miranda and threatened to attack him.
The complaint also alleged that in September 2003, Charriez
suspended Miranda from work for thirty days "for alleged acts of
. . . disturbing the peace and insubordination." The district
court dismissed Miranda's claims against these three defendants on
the ground that Miranda had failed to allege they acted under color
of state law, as required in § 1983 actions. See Cepero-Rivera v.
Fagundo, 414 F.3d 124, 129 (1st Cir. 2005).
We disagree with the district court's color of state law
analysis, at least as to Pantojas and Charriez.3 See
Redondo-Borges v. U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 7
(1st Cir. 2005) (holding that the color of state law requirement
was satisfied where the complaint challenged actions attributed to
a state agency and its functionaries); see also West v. Atkins, 487
U.S. 42, 50 (1988) ("[G]enerally, a public employee acts under
color of state law while acting in his official capacity or while
exercising his responsibilities pursuant to state law.").
3
The district court was on somewhat firmer ground as to Rivera,
who was not a government employee. See Logiodice v. Trs. of Me.
Cent. Inst., 296 F.3d 22, 26 (1st Cir. 2002) (noting that
"[b]roadly speaking, the Fourteenth Amendment protects individuals
only against government . . . [though] under several doctrines,
acts by a nominally private entity may comprise state action").
Plaintiff's theory was that Rivera was performing a government
function, and so became a state actor. We need not resolve the
color of state law question on the face of the complaint, for the
reasons discussed below.
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The district court nonetheless was correct to dismiss the
complaint. The complaint failed to plead other elements of a
political discrimination claim, whether or not the attached
evidentiary materials are considered. It is true, as Miranda
argues, that there are no elevated pleading standards for civil
rights cases. See Educadores Puertorriqueños en Acción v.
Hernández, 367 F.3d 61, 66-67 (1st Cir. 2004). However, that does
not mean there are no standards. "[P]laintiffs are obliged to set
forth in their complaint 'factual allegations, either direct or
inferential, regarding each material element necessary to sustain
recovery under some actionable legal theory.'" Platten, 437 F.3d
at 127 (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st
Cir. 1988)); see also Educadores, 367 F.3d at 68 ("[I]n a civil
rights action as in any other action subject to notice pleading
standards, the complaint should at least set forth minimal facts as
to who did what to whom, when, where, and why . . . .").
Here, Miranda failed to allege even the key elements of
a political discrimination claim. See Borges Colon v. Roman-Abreu,
438 F.3d 1, 14 (1st Cir. 2006) (political discrimination doctrine
shields some governmental employees "from adverse employment
decisions based on their political affiliations" (emphasis added)).
He failed to allege that any of the actions taken by Charriez,
Pantojas, or Rivera were motivated by political discrimination
against him. For that matter, plaintiff failed to allege that he
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even belonged to a particular political party, or that the
defendants knew of his political affiliation, or that the
defendants belonged to a different political party.
Further, at least as to Pantojas and Rivera, Miranda
failed to allege anything that could be termed an adverse
employment action for purposes of a political discrimination claim.
See Rosario-Urdaz v. Velazco, 433 F.3d 174, 178 (1st Cir. 2006)
("Employment actions short of outright dismissal or demotion are
redressable if improperly motivated, but only if the employment
action resulted in conditions 'unreasonably inferior' to the norm
for that position." (citations omitted) (quoting Agosto-de-
Feliciano v. Aponte-Roque, 889 F.2d 1209, 1218-19 (1st Cir. 1989)
(en banc)) (citing Rutan v. Republican Party of Ill., 497 U.S. 62,
75-76 (1990)));4 see also id. at 179 (holding that an altercation
between plaintiff and a co-worker and the later transfer of the co-
worker back into plaintiff's department did not constitute
cognizable adverse employment actions). The district court did not
err in dismissing plaintiff's complaint under Rule 12(b)(6) as to
Charriez, Pantojas, and Rivera.
4
Agosto-de-Feliciano was decided before the Supreme Court
decision in Rutan, which rejected as too stringent another court's
requirement that such actions be the "substantial equivalent of a
dismissal," 497 U.S. at 75-76, and which included broad dicta as to
what sorts of retaliatory acts in the workplace might trigger First
Amendment protection, see id. at 76. We follow earlier panels in
assuming that the "unreasonably inferior" standard is still viable.
See Rosario-Urdaz, 433 F.3d at 178 n.3.
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B. Dismissal of Defendant Rey
Miranda's complaint stated that he filed criminal charges
against Rivera after Rivera threatened him. The complaint alleged
that at a subsequent hearing on those charges, Rey appeared on
Rivera's behalf and "divulged . . . confidential and personal
information" from Miranda's personnel record.
The district court concluded that Miranda had properly
alleged that Rey acted under color of state law. It found that
Miranda's claim nonetheless failed because he did not allege the
other components of a political discrimination claim. We agree.
Just as with the other defendants, Miranda's claim against Rey
failed to allege that plaintiff engaged in constitutionally
protected political speech or association, that Rey belonged to a
different political party, or that Rey knew of plaintiff's
political beliefs. While Miranda did allege that Rey released his
personnel records "with the intention of causing harm . . . and in
retaliation of his political believes [sic]," this is the sort of
conclusory allegation, in the absence of any further facts in the
complaint, which we have found insufficient to survive motions to
dismiss under Rule 12(b)(6). See Redondo-Borges, 421 F.3d at 9.
In any event, the claim was correctly found meritless on motion for
reconsideration.
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C. Miranda's Leave-to-Amend Argument
Miranda never moved for leave to amend his complaint. He
nevertheless argues that the district court should have, sua
sponte, granted him time to amend his pleadings, and that it should
have pushed ahead with any remaining discovery.
The contention is meritless. "Absent exceptional
circumstances, a district court has no obligation to invite a
plaintiff to amend his or her complaint when the plaintiff has not
sought such amendment." United States ex rel. Karvelas v.
Melrose-Wakefield Hosp., 360 F.3d 220, 242 (1st Cir. 2004). No
such circumstances are present here. On the contrary, as
defendants point out, even after the district court dismissed the
case and Miranda moved for reconsideration, he still did not seek
to amend his complaint.
Further, discovery was conducted in the case. In
Miranda's request for reconsideration, he referred to details from
Charriez's deposition testimony and attached the full 251-page
deposition.5 The district court did explicitly consider the
evidence, which was undisputed. The court recounted the entirely
legitimate reasons, as shown by the employment record, for
5
Although the district court did not address the point, we view
the motion for reconsideration as having been decided, by
agreement, under Rule 56, given the presence of the attached
evidentiary materials and the lack of objection to their being
considered. See Fed R. Civ. P. 12(b); see also Rodi v. S. New Eng.
Sch. of Law, 389 F.3d 5, 12 (1st Cir. 2004).
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Charriez's decision to suspend plaintiff from his job and for Rey's
decision to release information at the hearing. There was no
evidence proffered to show that these were not the real reasons or
were a pretext for political discrimination.
II.
In the end, the plaintiff's case failed not just because
of loose pleading, or a failure to amend, but because the evidence
showed he has no cognizable case. The district court was correct
to end the matter.
Affirmed. Costs are awarded to defendants.
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