Pandolfi De Rinaldis v. Llavona

• Decision Date: 16 August 1999
• Docket Number: No. Civ. 97-2699(DRD).,Civ. 97-2699(DRD).
• Citation: 62 F.Supp.2d 426
• Parties: Guiseppe PANDOLFI DE RINALDIS, Plaintiff, v. Angie Varela LLAVONA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 426

62 F.Supp.2d 426

Guiseppe PANDOLFI DE RINALDIS, Plaintiff, v. Angie Varela LLAVONA, et al., Defendants.

No. Civ. 97-2699(DRD).

United States District Court, D. Puerto Rico.

August 16, 1999.

COPYRIGHT MATERIAL OMITTED

John E. Mudd, Ortiz Toro & Ortiz Brunet, San Juan, PR, for Plaintiff.

Marie L. Cortes-Cortes, Dept. of Justice of Puerto Rico, Federal Litigation Div., San Juan, PR, Jose R. Gaztambide-Aneses, Gaztambide & Plaza, Hato Rey, PR, Frank Gotay-Barquet, Feldstein, Gelpi & Gotay, San Juan, PR, Pedro Soto-Rios, San Juan, PR, William Vazquez-Irizarry, Municipality of San Juan Office of Legal Affairs, San Juan, PR, for Defendants.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Before the Court is a Motion to Dismiss presented by the defendant, Ms. Belarmina Morales, pursuant to Fed.R.Civ.P. 12(b)(6); (Docket No. 33). Plaintiff, Mr. Guiseppe Pandolfi de Rinaldis ("Pandolfi"), alleged violations of the First, Fifth and Fourteenth Amendments and 42 U.S.C. § 1983 (1995). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(3), (4). (Docket No. 1). Additionally, Pandolfi has invoked the Court's supplemental jurisdiction over his state claims. See 28 U.S.C. § 1367; (Docket No. 1). For the reasons set-forth herein, the Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

I

THE STANDARD UNDER FED.R.CIV.P. 12(b)(6)

When deciding a Motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) the Court must accept as true all well-pleaded factual claims, and indulge all reasonable inferences in the plaintiff's favor. Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996); Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). Dismissal is appropriate only when the facts alleged, taken as true, do not justify recovery for the plaintiff. Fed.R.Civ.P. 12(b)(6). Thus, in order to survive a motion to dismiss, plaintiffs must set forth "factual allegations, either direct or inferential, regarding each material element necessary to sustain recovery." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988). Although all inferences must be made in the plaintiffs' favor, this court need not accept "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like." Aulson, 83 F.3d at 3.

Moreover, when considering a motion to dismiss under Rule 12(b)(6) "our focus [must be] limited to the allegations of the complaint." Litton Indus., Inc. v. Colon, 587 F.2d 70, 74 (1st Cir.1978) (internal quotations omitted). Specifically, the inquiry should be "whether a liberal reading of [the complaint] can reasonably admit of a claim...." Id.; see also Doyle, 103 F.3d at 190. Recently, in Wagner v. Devine, 122 F.3d 53 (1st Cir.1997) the First Circuit held that a Court must "affirm a dismissal for failure to state a claim only if it clearly appears that, on the facts alleged, the plaintiff cannot recover on any viable theory." Id. at 55. The Supreme Court decades ago explained in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957), that

[i]n appraising the sufficiency of the complaint we follow, of course, the accepted rule 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.

Id. at 45-46, 78 S.Ct. 99. With this standard in mind, all of the facts alleged in the complaint are accepted as true. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989); Gooley, 851 F.2d at 514.

II THE FACTUAL ALLEGATIONS

The key facts, as Mr. Pandolfi states them in his complaint, are as follows: On May 16, 1996, the General Council on Education of Puerto Rico (hereinafter "GCE" or "Council") appointed the plaintiff, Mr. Pandolfi, as its Executive Director for a period of five years, pursuant to P.R.LAWS ANN. tit. 3, § 397g (Supp.1993-94). Mr. Pandolfi was to serve as the Council's "administrative officer" and remain in office "at the Council's volition." (Docket No. 1, p. 3).

Mr. Pandolfi's duties and functions, inter alia, included:

(3) Select the personnel he/she deems is needed to perform the functions of the Council and recommend their appointment without being subject to section 1301 et seq. of this title, known as the `Puerto Rico Public Service Personnel Act.' The officials and employees of the General Council and its Executive Director shall be subject to the provisions of sections 862 et seq. [sic] of this title, known as the `Commonwealth of Puerto Rico Government Ethics Act.'¹

Id. § 397g(3).² Plaintiff contends that according to this subsection (3), every member of the GCE, including the Members of the Council that appointed him, as well as all other officials and employees of the GCE were subject to the provisions stated in P.R.LAWS ANN. tit. 3, § 1822 (1992) of the "Ethics in Government Act of the Commonwealth of Puerto Rico" (hereinafter "Ethics in Government Act").³

In June of 1997, Mr. Pandolfi began reporting to his superiors several violations to the Ethics in Government Act as well other laws of the Commonwealth of Puerto Rico committed by Members of the GCE. In August of 1997, two Members of the Council demanded that Mr. Pandolfi provide them with evidence "of their alleged wrongdoings, which was provided in September [of 1997]."%⁴ (Docket No. 1, p. 4). Then, on October 17, 1997, "the Council met and in a five to two vote, decided to fire Mr. Pandolfi." (Docket No. 1, pp. 2, 4). Mr. Pandolfi was not given any explanation. The day before Plaintiff's removal, he was preparing yet another report "denouncing irregular use of Council funds and equipment by members of the Council." (Docket No. 1, p. 4).

Following Pandolfi's termination, the Council Members began denying Mr. Pandolfi access to his office without providing justification. Moreover, the Council hired a security guard in order to deny Pandolfi entrance to his office and his personal property found therein. In response, plaintiff refused to return the Council's property he had until he was granted access to his office and property. To this effect, the Council and plaintiff agreed to meet on several occasions with the purpose of mutually exchanging property, but these efforts were repeatedly unsuccessful. On one occasion, Mr. Pandolfi called the press to denounce the Council's course of action. Although the press was allowed to enter his office, Mr. Pandolfi was not. On another occasion, the Council informed the Police of Pandolfi's refusal to return the official assigned vehicle. When Police officers spoke to Mr. Pandolfi, he proceeded to fully explain the situation. As a result the Police agreed not to repossess the vehicle.

The GCE allegedly prepared a notarized list of all of Mr. Pandolfi's belongings the day they were stored in boxes. Eventually, the parties met on November 6, 1997 to exchange property, but since the Council refused to show proof of the alleged notarized list, they agreed to meet again on November 10, 1997. The next day, on November 7, 1997, three Special Agents from the Special Investigations Bureau of Puerto Rico⁵ visited Mr. Pandolfi at his home, allegedly, with a warrant from a District Attorney to seize the Council's property. Mr. Pandolfi promptly complied. Plaintiff's property was returned the next day (November 8) without the alleged notarized list of his belongings. Ten days later, on November 18, 1997, Mr. Pandolfi brought this suit against five (5) Members of the GCE, all in their personal and official capacity.⁶ Plaintiff first claims that his termination violated both the property interest rights he had over his employment, and his due process rights (procedural and substantive), under the Fifth and Fourteenth Amendments. As his second cause of action, Mr. Pandolfi claims that his discharge constituted a retaliation for his continued denunciations of Council Members' illegal activities, which he argues, are protected by the First and Fourteenth Amendments of the Constitution of the United States since they are "subjects ... of clear public interest...." (Docket No. 1, p. 6). Furthermore, Mr. Pandolfi requested injunctive relief pursuant to 42 U.S.C. § 1983, seeking reinstatement to his position as Executive Director of the GCE. Then, on August 18, 1998, codefendant Belarmina Morales ("Ms. Morales" or "defendant"), moved to dismiss all claims against her, pursuant to Fed.R.Civ.P. 12(b)(6).

After examining the complaint, and indulging every reasonable inference in the plaintiff's favor, the Court finds that Mr. Pandolfi's first cause of action (the alleged procedural and substantive due process violations) is unsustainable. As such, codefendant's motion to dismiss plaintiff's first cause of action is GRANTED. However, because the statements purported by plaintiff are the type of "speech" the First Amendment protects, the Court finds that plaintiff's cause of action under the First Amendment is viable. Moreover, defendant has asserted that due to the doctrine of qualified immunity she is not liable for monetary damages. Nevertheless, the Court finds that the complaint discloses insufficient facts to adequately resolve the qualified immunity issue at this motion to dismiss stage. Accordingly, defendant's Motion to Dismiss plaintiff's First Amendment claim is DENIED.

III PLAINTIFF'S CLAIM OF ENTITLEMENT

To support a claim under 42 U.S.C. § 1983,⁷ plaintiff must establish, first, that the rights, privileges and immunities granted to him by the Constitution or laws of the United States were violated; and second, that the violation was committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also Erwin Chemerinsky, Federal Jurisdiction 422 (2d ed., 1994). The Court examines first plaintiff's due process arguments...