United States Court of Appeals
For the First Circuit
No. 05-1534
ANTONIO APONTE-TORRES ET AL.,
Plaintiffs, Appellants,
v.
UNIVERSITY OF PUERTO RICO 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
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Juan P. Rivera-Román for appellants.
Roberto Ariel Fernández, with whom José Luis González-Castañer
and González Castañer & Morales Cordero were on brief, for
appellees.
April 14, 2006
SELYA, Circuit Judge. In this case, several employees of
the University of Puerto Rico (U.P.R.) complain that their employer
maintained "suspicious" files about their activities and used those
files to inform employment decisions. The district court dismissed
their action. After careful review, we conclude, as did the court
below, that the plaintiffs' amended complaint fails to articulate
a cognizable federal claim. We also conclude that the district
court did not err either in denying the plaintiffs leave to file a
second amended complaint or in staying discovery for a brief
interval pending its decision on the defendants' dispositive
motion. Consequently, we affirm.
I. THE FACTS ALLEGED
For reasons that shortly shall become apparent, we glean
the relevant facts from the plaintiffs' amended complaint.
The fourteen plaintiffs are full-time employees at
U.P.R.'s Mayaguez campus. Within the last decade, they all have
worked in the Cooperative State Research Education and Extension
Service, which is connected with U.P.R.'s College of Agricultural
Science and, more particularly, its Agricultural Extension Service
Program (AESP). The defendants include U.P.R. and its president,
the Mayaguez campus and its chancellor, and the interim deans of
both the College of Agricultural Science and the AESP.1 The
1
Ironically, José R. Diaz-Alamo, an original defendant in this
case, is not a party to this appeal. Although Diaz-Alamo appears
to have spearheaded the conduct complained of, the district court
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individual defendants are sued in their official and personal
capacities.
The plaintiffs allege in substance that the AESP has, for
the last ten years, gathered information about eighty to ninety
employees without their consent and "in a suspicious manner." The
plaintiffs are part of that complement. Though saved, the
information is not part of the plaintiffs' official personnel
records.2 These "illegal files" have the ostensible purpose "of
identifying and/or classifying plaintiffs based on their membership
in" some unidentified "professional association[s]" and/or the
plaintiffs' "expressions against the [d]efendants" (not otherwise
described). The files supposedly "contain[] information about
alleged complaints against [p]laintiffs" and have been "used to
deny hiring [and] promotions," as well as to shape employment
termination decisions.
II. TRAVEL OF THE CASE
The plaintiffs filed suit in the United States District
Court for the District of Puerto Rico on December 16, 2002. The
following April, the court held a status conference, arranged for
the plaintiffs to inspect the "suspicious" files, and directed them
granted his motion to dismiss for insufficient service of process
on July 6, 2004. See Fed. R. Civ. P. 4(m). The plaintiffs have
not challenged that order.
2
The original complaint averred that, despite at least two
requests, the plaintiffs had been refused access to the
"suspicious" files prior to instituting suit.
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to inform the court by the end of May whether they wished to
continue prosecuting the case. On June 11, the plaintiffs stated
that they had reviewed the files and wished to go forward. They
proceeded to file an amended complaint.
The amended complaint supplemented the original complaint
by confirming that the plaintiffs had accessed the files and adding
some general allegations about their contents and use.
Significantly, the amended complaint offered no specifics; for
example, it neither limned any identified employment action nor
related the files to the plaintiffs in any particularized way.
After the defendants seasonably answered the amended complaint, the
district court approved a discovery plan.
On July 9, 2004 — nine months after the filing of the
amended complaint — the defendants moved to dismiss for, inter alia,
failure to state an actionable claim. See Fed. R. Civ. P. 12(b)(6).
Approximately one month later, they served the plaintiffs with hard
copies of the disputed files. Then, on August 25, the defendants
filed a motion to stay discovery. The plaintiffs opposed the motion
to dismiss and sought leave to file a second amended complaint.
Shortly thereafter, they filed an opposition to the requested stay
of discovery.
On December 1, 2004, the district court stayed discovery
pending a ruling on the motion to dismiss. It granted that motion
on February 14, 2005. Treating the motion to dismiss as a motion
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for judgment on the pleadings, see Fed. R. Civ. P. 12(c) —
apparently because the defendants already had answered the amended
complaint — the court held that the plaintiffs had failed to state
an actionable federal claim. The court simultaneously denied the
plaintiffs' request to file a second amended complaint, reasoning
that they had been "afforded discovery precisely to supplement their
allegations and [had] failed to adequately do so"; thus, the court
found "no reason [to] expend scarce judicial resources" in a
situation in which the plaintiffs had "already twice failed to state
a claim." This timely appeal followed.
III. ANALYSIS
In this venue, the plaintiffs challenge the dismissal of
the amended complaint, the refusal to allow a second amended
complaint, and the stay of discovery. We address these points
sequentially.
A. Dismissal of the Action.
Because the defendants previously had answered the amended
complaint, the district court appropriately treated their motion to
dismiss as one for judgment on the pleadings. See Fed. R. Civ. P.
12(c). This conversion does not affect our analysis inasmuch as the
two motions are ordinarily accorded much the same treatment. See
Collier v. City of Chicopee, 158 F.3d 601, 602 (1st Cir. 1998);
Lanigan v. Vill. of E. Hazel Crest, 110 F.3d 467, 470 n.2 (7th Cir.
1997). We view the facts contained in the pleadings in the light
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most flattering to the nonmovants (here, the plaintiffs) and draw
all reasonable inferences therefrom in their favor. Rivera-Gomez
v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988). Like Rule
12(b)(6), Rule 12(c) does not allow for any resolution of contested
facts; rather, a court may enter judgment on the pleadings only if
the uncontested and properly considered facts conclusively establish
the movant's entitlement to a favorable judgment. Rivera-Gomez, 843
F.2d at 635.
There is, of course, a modest difference between Rule
12(c) and Rule 12(b)(6) motions. A Rule 12(c) motion, unlike a Rule
12(b)(6) motion, implicates the pleadings as a whole. See 5C
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1368 (3d ed. 2004). Here, however, the parties agree
that the source of the pertinent facts is the plaintiffs' amended
complaint. We turn, then, to that document, affording the district
court's assessment of it de novo review. See Gulf Coast Bank &
Trust Co. v. Reder, 355 F.3d 35, 37 (1st Cir. 2004).
There is no heightened pleading standard in civil rights
cases. Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d
61, 66-67 (1st Cir. 2004). Consequently, we ask whether the amended
complaint satisfies the basic notice pleading requirements of the
Civil Rules. See Centro Medico del Turabo, Inc. v. Feliciano de
Melecio, 406 F.3d 1, 5 (1st Cir. 2005). To meet those requirements,
a complaint must contain "a short and plain statement of the claim
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showing that the pleader[s are] entitled to relief," Fed. R. Civ.
P. 8(a)(2), and must "give the defendant[s] 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). For this purpose, we may draw
upon documents annexed to the amended complaint or incorporated into
it, as well as matters subject to judicial notice. Centro Medico,
406 F.3d at 5. We ought not, however, credit "bald assertions,
unsupportable conclusions, periphrastic circumlocutions, and the
like." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996).
In this instance, the plaintiffs shape their central cause
of action around 42 U.S.C. § 1983. To state a viable section 1983
claim, a plaintiff first must identify "an act or omission
undertaken under color of state law." Rogan v. City of Boston, 267
F.3d 24, 27 (1st Cir. 2001). That precondition is easily satisfied
here: Puerto Rico is considered equivalent to a state for section
1983 purposes, Redondo-Borges v. U.S. Dep't of Hous. & Urban Dev.,
421 F.3d 1, 7 (1st Cir. 2005), and the amended complaint alleges
actions attributed to U.P.R. and its functionaries. Since the case
law establishes that U.P.R. is an arm of the Commonwealth, see Pinto
v. Universidad de P.R., 895 F.2d 18, 18 (1st Cir. 1990), the amended
complaint adequately alleges state action.
The next precondition presents more of an obstacle. A
plaintiff seeking to recover under section 1983 must allege what is
colloquially known as "constitutional injury," that is, he or she
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must identify a deprivation of some federally secured right. Rogan,
267 F.3d at 27. In this case, the plaintiffs put forward three
theories of constitutional injury. As we shall see, the same
factual inadequacies plague them all.
1. The First Amendment Theory. Although not well
elucidated in the amended complaint, the plaintiffs' First Amendment
theory, read charitably, focuses on adverse employment actions that
supposedly were taken in response to protected associations or
expressions (as documented in the "suspicious" files). While it is
beyond cavil "that a State may not discharge an employee on a basis
that infringes that employee's constitutionally protected interest
in freedom of speech," Rankin v. McPherson, 483 U.S. 378, 383
(1987), the amended complaint does not sufficiently allege any such
action here.
To state an actionable claim of this kind, an employee's
complaint would have to give some concrete indication that the
interdicted conduct was both constitutionally protected and a
substantial or motivating factor in the adverse employment decision.
See Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996). The
amended complaint fails to meet either part of this binary
requirement.
In the first place, the amended complaint wholly fails to
identify the associations or expressions about which the defendants
gathered information. This shortcoming is all the more glaring
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because the plaintiffs had court-ordered access to the "suspicious"
files prior to the framing of their amended complaint. Despite this
review, the plaintiffs have given us no factual basis — not even a
skeletal one — on which to determine whether the defendants targeted
any constitutionally protected expressive or associational conduct.
In the second place, the amended complaint utterly fails
to identify any particular adverse employment action(s). It is,
therefore, impossible to determine whether the defendants took any
impermissible steps at all. The short of it is that the amended
complaint contains a manifestly insufficient factual foundation to
support a First Amendment claim.
2. The Due Process Theory. The plaintiffs' remaining two
theories of constitutional injury are grounded in the Fourteenth
Amendment. Initially, the plaintiffs argue that, by basing adverse
employment actions on information contained in the "suspicious"
files, the defendants deprived them of due process.
This theory is replete with problems. First, the amended
complaint does not indicate whether the due process claim is of a
procedural or substantive stripe. The plaintiffs' appellate brief
is equally inscrutable on this point. There is obviously no
grounding in the amended complaint for a substantive due process
claim. Thus, following the district court's lead, we treat the
claim as a procedural one.
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To establish a procedural due process violation, a
plaintiff must identify a protected liberty or property interest,
Redondo-Borges, 421 F.3d at 7, and allege "that the defendants,
acting under color of state law, deprived [them] of that . . .
interest without constitutionally adequate process," PFZ Props.,
Inc. v. Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991). Assuming,
without deciding, that the amended complaint identifies a protected
property interest in employment, it nonetheless fails adequately to
allege a deprivation. This is so because, as we already have
emphasized, the amended complaint contains only general allusions
to adverse employment actions, without a glimmer of specificity
about particular actions taken against particular plaintiffs. That
degree of extreme generality renders the amended complaint
susceptible to dismissal. See, e.g., Educadores, 367 F.3d at 68.
Nor is this all. The amended complaint is devoid of any
information about the process afforded to the plaintiffs at the time
any adverse actions were taken. Without this rudimentary factual
underpinning, no cognizable due process claim can be culled from the
meanderings of the amended complaint. See Zinermon v. Burch, 494
U.S. 113, 126 (1990) (explaining that a court undertaking a section
1983 inquiry must "ask what process the State provided, and whether
it was constitutionally adequate").
3. The Equal Protection Theory. The plaintiffs' final
theory — which invokes the Equal Protection Clause — suffers a
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similar fate. In effect, the plaintiffs claim that they were
treated differently than other, similarly situated employees because
the AESP compiled "suspicious" files about them and used those files
in making employment decisions. The legal premise on which this
claim rests is impeccable: under the Equal Protection Clause,
similarly situated persons are entitled to receive similar treatment
at the hands of government actors. See City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985). The amended complaint,
however, lacks a factual foundation adequate to bring this premise
into play.
To plead a viable equal protection claim, a plaintiff must
allege facts indicating selective treatment "compared with others
similarly situated . . . based on impermissible considerations such
as race, religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person." Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin.
Corp., 246 F.3d 1, 7 (1st Cir. 2001) (emphasis omitted). The
amended complaint fails to satisfy this requirement.
Assuming for the sake of argument that the amended
complaint sufficiently pleads that other non-surveilled employees
constitute a similarly situated group — and that is by no means
clear — it certainly fails adequately to allege the other
prerequisites of a valid equal protection claim. Without a more
specific account of the associations and expressions about which
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information supposedly was gathered, no court conceivably could
determine whether the plaintiffs received differential treatment
based on either their membership in a sheltered class or their
protected expressions. And even if the "suspicious" files did
classify the plaintiffs on prohibited bases, the utter absence of
any specific instances of discriminatory conduct sounds the death
knell for this claim. Given the paucity of hard facts in the
amended complaint, there is simply no way to ascertain whether
intentional discrimination occurred or, if it did, whether there was
any link between that conduct and the allegedly unconstitutional
classification.
To sum up, notice pleading imposes minimal requirements
on the pleader — but minimal requirements are not the same as no
requirements at all. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514
(1st Cir. 1988). The plaintiffs' pleading must "at least set forth
minimal facts as to who did what to whom, when, where, and why."
Educadores, 367 F.3d at 68. As to the federal civil rights claims,
the amended complaint fails to surpass even that relatively low bar.
4. The Regulatory Claim. The plaintiffs also advance an
additional federal cause of action in the form of a regulatory claim
under 5 C.F.R. § 293.302. That sortie need not detain us for long.
The regulation requires that an "agency" maintain only one
official personnel folder for each employee. See 5 C.F.R. §
293.302. For purposes of this rule, the term "agency" is defined
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as "each executive department and independent establishment of the
Federal Government, each corporation wholly owned or controlled by
the United States, and with respect to positions subject to civil
service rules and regulations, the legislative and judicial branches
of the Federal Government." Id. § 293.301.
That definition does not fit this case: U.P.R. is an
instrumentality of the Commonwealth of Puerto Rico, not a part of
the federal government. It is, therefore, not an agency within the
ambit of the regulation. See id. By the same token, the individual
defendants, none of whom is alleged to be a federal civil servant,
are beyond the regulation's reach. See id. The regulation is,
therefore, inapposite.
B. Leave to Amend.
The plaintiffs also challenge the lower court's denial of
their request for leave to file a second amended complaint. This
challenge lacks merit.
By way of background, it is important to note that the
plaintiffs amended their complaint once without incident. In the
absence of consent, their subsequent request to file a second
amended complaint needed leave of court, which as a general
proposition will be "freely given when justice so requires." Fed.
R. Civ. P. 15(a).
This does not mean, however, that a trial court must
mindlessly grant every request for leave to amend. When a proffered
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amendment comes too late, would be an exercise in futility, or
otherwise would serve no useful purpose, the district court need not
allow it. See Steir v. Girl Scouts, 383 F.3d 7, 12 (1st Cir. 2004);
Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59 (1st Cir.
1990); Quaker State Oil Ref. Corp. v. Garrity Oil Co., 884 F.2d
1510, 1517 (1st Cir. 1989).
We review the denial of a motion to amend for abuse of
discretion and will defer to the district court's hands-on judgment
so long as the record evinces an adequate reason for the denial.
Grant v. News Group Boston, Inc., 55 F.3d 1, 5 (1st Cir. 1995). We
find an adequate basis for the district court's order in this case.
In their opposition to the defendants' dispositive motion,
the plaintiffs made no attempt to supplement their bare request for
leave to amend, nor did they preview what additional facts or legal
claims might be included in a second amended complaint (should one
be allowed). The absence of supporting information may, in and of
itself, be a sufficient reason for the denial of leave to amend.
See Twohy v. First Nat'l Bank, 758 F.2d 1185, 1197 (7th Cir. 1985)
(acknowledging "the normal procedure" for requesting leave to amend
"is for the proposed amendment or new pleading to be submitted with
the . . . motion"); see also 3 James Wm. Moore et al., Moore's
Federal Practice ¶ 15.17 (3d ed. 2005).
Here, the court had an even sounder reason to deny the
plaintiffs' request. Over a year earlier, it had arranged for
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access to the "suspicious" files and ordered the plaintiffs to
inspect them and decide whether they wished to move forward with the
case. The plaintiffs canvassed those files, presumably took note
of their contents, decided to stay on the offensive, and composed
an amended complaint. That pleading failed to state any viable
federal cause of action. See supra Part III(A). Having afforded
the plaintiffs an ample opportunity to put their best foot forward,
the district court was not obliged to grant them yet another
opportunity to state a claim. Plaintiffs must exercise due
diligence in amending their complaints. As a corollary of that
principle, busy trial courts, in the responsible exercise of their
case management functions, may refuse to allow plaintiffs an endless
number of trips to the well.
That ends this aspect of the matter. We conclude, without
serious question, that the district court did not abuse its
discretion in denying the plaintiffs' request for leave to file a
second amended complaint.
C. Stay of Discovery.
In a last-ditch effort to uncover error, the plaintiffs
challenge the court-imposed stay of discovery. This challenge is
impuissant. The plaintiffs' notice of appeal refers only to the
district court's order of dismissal, entered February 14, 2005. It
makes no mention of the separate order staying discovery, entered
December 1, 2004.
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That is game, set, and match. By rule, a notice of appeal
must specify the particular order to which the appeal is addressed.
See Fed. R. App. P. 3(c)(1)(B) (mandating that a notice of appeal
"designate the judgment, order, or part thereof being appealed").
Failure to identify a given order undermines an appellant's ability
to dispute that order in the court of appeals. See, e.g., Shelby
v. Superformance Int'l, Inc., 435 F.3d 42, 45 (1st Cir. 2006);
Kotler v. Am. Tobacco Co., 981 F.2d 7, 10-11 (1st Cir. 1992). The
plaintiffs offer no persuasive reason why the denominate-or-waive
rule should not be enforced in this instance.
We add, moreover, that even if this assignment of error
were preserved, it would fail. The plaintiffs' attack focuses on
the sequence of events, noting that the defendants filed their
dispositive motion, then turned over the "suspicious" files, and
within a matter of weeks thereafter moved to stay discovery. This
chronology, however, is incomplete and tells only a part of the
story.
For one thing, discovery in this case was not stayed until
the defendants' dispositive motion had been fully briefed by all
parties and taken under advisement by the district court. Thus, any
matters disclosed by further discovery would have been irrelevant
to the district court's ruling on the defendants' dispositive
motion. Cf. Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 12 (1st
Cir. 2004) (noting that, in "ruling on whether a plaintiff has
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stated an actionable claim," the district court's consideration is
limited to "the complaint, documents annexed to it, and other
materials fairly incorporated within it").
For another thing, before the staying of discovery, the
plaintiffs had twice examined the "suspicious" files — once prior
to composing the amended complaint and again before serving their
opposition to the defendants' dispositive motion. The discovery
rules are not intended as a broad license to mount serial fishing
expeditions. Where, as here, a party has had an adequate
opportunity to conduct discovery, it is well within the district
court's province, at least in the absence of a showing of changed
circumstances or particularized need, to stay further discovery
pending the determination of a dispositive motion. See E. Food
Servs., Inc. v. Pontifical Catholic Univ. Servs. Ass'n., 357 F.3d
1, 9 (1st Cir. 2004); Corwin v. Marney, Orton Invs., 843 F.2d 194,
200 (5th Cir. 1988).
To say more on this point would be to paint the lily.
Trial courts have broad discretion in shaping the parameters of
pretrial discovery, and an appellate court should not interfere with
the exercise of that discretion "unless it clearly appears that a
discovery order was plainly wrong and resulted in substantial
prejudice to the aggrieved party." Dynamic Image Techs., Inc. v.
United States, 221 F.3d 34, 38 (1st Cir. 2000) (quoting Mack v.
Great Atl. & Pac. Tea Co., 871 F.2d 179, 186 (1st Cir. 1989))
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(internal quotation marks omitted). No such extenuating
circumstances are present here.
IV. CONCLUSION
We need go no further.3 For the reasons elucidated above,
we reject the plaintiffs' appeal in all its permutations. We add,
however, that to the extent any local-law claims may be deemed to
have been pleaded in the amended complaint, we understand them to
have been dismissed without prejudice. See Martinez v. Colon, 54
F.3d 980, 991 n.12 (1st Cir. 1995).
Affirmed.
3
Like the district court, we have no occasion to reach the
immunity issues raised in the defendants' dispositive motion. Cf.
Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 230 (1st Cir.
1992) ("Courts are without jurisdiction to address academic
questions.").
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