Morales-Tañon v. Puerto Rico Elec. Power Auth.

• Decision Date: 17 April 2008
• Docket Number: No. 07-1774.,07-1774.
• Citation: 524 F.3d 15
• Parties: Luis MORALES-TAÑON, Plaintiff, Appellant, v. The PUERTO RICO ELECTRIC POWER AUTHORITY; Héctor Rosario; Edwin Rivera; Valeriano Otero; Luis Avilés; Wilfredo Pantojas; Ramón Burgos; Luis Jiménez-Pagán; John Doe; Richard Doe; Jorge Rodríguez; Aníbal Hernández-Ramos, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

524 F.3d 15

Luis MORALES-TAÑON, Plaintiff, Appellant, v. The PUERTO RICO ELECTRIC POWER AUTHORITY; Héctor Rosario; Edwin Rivera; Valeriano Otero; Luis Avilés; Wilfredo Pantojas; Ramón Burgos; Luis Jiménez-Pagán; John Doe; Richard Doe; Jorge Rodríguez; Aníbal Hernández-Ramos, Defendants, Appellees.

No. 07-1774.

United States Court of Appeals, First Circuit.

Submitted March 7, 2008.

Decided April 17, 2008.

Julio César Alejandro Serrano and Nicolás Nogueras Cartagena on brief for appellant.

Marie L. Cortés Cortés and Llovet Zurinaga & López, PSC on brief for appellees the Puerto Rico Electric Power Authority and Jorge Rodríguez, Edwin Rivera, Valeriano Otero, Ramón Burgos, Luis Jiménez-Pagán, and Luis Avilés in their official capacities.

Irene S. Soroeta-Kodesh, Assistant Solicitor General, Salvador J. Antonetti-Stutts, Solicitor General, Mariana D. Negrón-Vargas, Deputy Solicitor General, and Maite D. Oronoz-Rodríguez, Deputy Solicitor General, on brief for appellees Edwin Rivera, Valeriano Otero, Luis Avilés, Wilfredo Pantojas, Ramón Burgos, and Luis Jiménez-Pagán in their individual capacities.

Before TORRUELLA and LYNCH, Circuit Judges, and KEENAN^*, Senior District Judge.

LYNCH, Circuit Judge.

Luis Morales-Tañon appeals the dismissal of his political discrimination and due process claims against his employer, the Puerto Rico Electric Power Authority ("PREPA"), and various of its representatives. Morales-Tañon brought suit under 42 U.S.C. § 1983, claiming violations of his First, Fifth, and Fourteenth Amendment rights; he also alleged violations of Puerto Rico law. The district court dismissed all of plaintiff's claims, and we affirm.

Because plaintiff's claims were dismissed under Federal Rule of Civil Procedure 12(b)(6), we accept the well-pleaded allegations in plaintiff's complaint as true and draw all reasonable inferences in his favor. Parker v. Hurley, 514 F.3d 87, 90 (1st Cir.2008).

Morales-Tañon, an attorney, has held a career position as a member of PREPA's Auction Committee since 1997. The complaint gives no information about what the Auction Committee does. He is an active member of the New Progressive Party ("NPP"), which controlled the government in Puerto Rico at the time of his appointment. The 2000 elections, however, brought the Popular Democratic Party ("PDP") into power. The new administration in 2002 increased the size of PREPA's Auction Committee from three to five members, with the two new members being PDP adherents. PREPA officials then ceased appointing Morales-Tañon to temporary terms as acting president of the Auction Committee, appointing the new PDP committee members instead. They did this even though the two new individuals were not yet (according to Morales-Tañon) full permanent members of the committee.

In January 2006, the president of the committee formally retired. At the time of the filing of this complaint, PREPA had yet to start the appointment process for a replacement president. This takes us to the crux of Morales-Tañon's complaint: that PREPA has not yet opened up the presidency position "for no other reason than to discriminate against Plaintiff by allowing the newly appointed members of the PDP to obtain their status as permanent members of the Auction Committee and thus[ ] qualify for an appointment as President ..., all in retaliation for Plaintiff's political activities in support of the NPP." Plaintiff asserts that he is the only member of the committee who is currently qualified to hold the presidency. Morales-Tañon also amended his complaint to add allegations of continuing harassment and retaliation. The alleged retaliation is his receipt of a reprimand for raising his voice to a co-worker and an ethics charge for engaging in private practice outside work hours, both of which actions were taken in January 2007.

Morales-Tañon brought suit in federal district court in November 2006, alleging that defendants deprived him "of a reasonable employment promotion expectation" in violation of his First Amendment and due process rights. He sought compensatory and punitive damages and requested that the court either order PREPA to retroactively instate him as president (a position he has never held) or to start the appointment process.

Defendants moved for dismissal, arguing that Morales-Tañon had failed to state a cognizable constitutional claim under § 1983 and that many of his claims under § 1983 were also time-barred. The district court agreed. It found plaintiff's allegations regarding the 2002 change in the Auction Committee's composition barred by the statute of limitations. It ruled out the due process claim because Morales-Tañon had not identified a recognized and protected property interest of which he was deprived, and it found no First Amendment-based political discrimination claim because plaintiff had not alleged any adverse employment action. As to the amended complaint, the court found the complaint had not pled any facts from which an inference could be drawn of a connection between the reprimand and ethics charge and Morales-Tañon's political affiliation. The court thus dismissed the § 1983 claims with prejudice and, declining to exercise supplemental jurisdiction over the remaining state law claims, dismissed those claims without prejudice.

Our review of Rule 12(b)(6) dismissals is de novo. Parker, 514 F.3d at 95. The district court's unpublished opinion carefully and correctly analyzed plaintiff's claims; we thus keep our analysis brief.

To survive a motion to dismiss for failure to state a claim, a complaint must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (quoting Fed.R.Civ.P. 8(a)(2)) (alteration in original) (citations omitted).

Bell Atlantic "retire[d]" the seemingly broader language regarding pleading standards in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Bell Atl. Corp., 127 S.Ct. at 1969. Specifically, the Court cabined Conley's language that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99. The Court clarified that Conley "described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival." Bell Atl. Corp., 127 S.Ct. at 1969; see also Damon v. Moore, 520 F.3d 98, 103 (1st Cir.2008) (discussing Bell Atlantic's retirement of Conley's oft-quoted language); Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95-96 (1st Cir.2007) (same). Thus plaintiff's assertion that "all [he] needs to plead is enough facts for the Honorable Court to be able to frame a constitutional claim," is simply wrong. A plaintiff's complaint must itself frame a viable constitutional claim.

In Puerto Rico, § 1983 claims are subject to a one-year statute of limitations. Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir.2007). The statute of limitations on such claims begins to run when the injury occurs, even if the plaintiff did not know of the discriminatory animus at that time. Id. at 5-6. The district court clearly explained why the statute bars plaintiff's 2006 attack on the 2002 change in the Auction Committee composition and correctly concluded that any after-effects did not fall within the so-called continuing violation doctrine.¹ See Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 801 (7th Cir.2008) (Posner, J.) ("[T]he `continuing violation' doctrine is misnamed.... The office of the misnamed doctrine is to allow suit to be delayed until a series of wrongful acts blossoms into an injury on which suit can be brought."). Any injury to plaintiff from the 2002 actions was clear by 2003. Further, plaintiff does not provide any legal argument or case citations on appeal as to why the district court was wrong. "We have steadfastly deemed waived issues raised on appeal in a perfunctory manner, not accompanied by developed argumentation...." United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir.1997).

We turn then to plaintiff's timely claims regarding PREPA's failure to open the application process in order to fill the position of the Auction Committee presidency after January 2006. "The First...