Valdizan v. Rivera

Full title: KEVIN VALDIZAN, ET AL., Plaintiffs, v. VICTOR RIVERA, ET AL., Defendants

Court: United States District Court, D. Puerto Rico

Date published: Aug 14, 2006

CIVIL NO. 02-2162 (GAG) (D.P.R. Aug. 14, 2006)

Opinion

CIVIL NO. 02-2162 (GAG).

August 14, 2006

REPORT AND RECOMMENDATION

CAMILLE VELEZ-RIVE, Magistrate Judge

This case was referred to the undersigned Magistrate Judge for an Elrod-Branti¹ hearing after the Court of Appeals for the First Circuit issued its mandate on May 11, 2006 (Docket No. 86). Under said doctrine, First Amendment protection extends against political discrimination of public employees who occupy neither policymaking positions nor positions of unusual confidence. See Vázquez Ríos v. Hernández Colón, 819 F.2d 319, 322-326 (1^st Cir. 1987).

1 Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507 (1980).

A perusal of the record shows the appeals' decision granted qualified immunity as to the defendant, Víctor Rivera Hernández, Secretary of Labor, as to the only surviving claim² of plaintiff Kevin Valdizan on First Amendment grounds.³ The Court of Appeals also found Valdizan, the only plaintiff who had filed an appeal, was an Executive II, a trust position, and the inspection of his duties under the Branti-Elrod doctrine would sanction patronage dismissal because he held a policymaking position.

2 The Opinion and Order issued by the Court granted summary judgment for lack of a prima facie case as to claims by co-plaintiffs Maria Cedeño Rijos and Loyda López Rosario. Likewise, due process claims by plaintiff Valdizan were dismissed and the only remaining claim that was appealed after entry of partial judgment was Valdizan's First Amendment claim (Docket No. 70).

3 Partial judgment dismissing claims against co-defendants Nitza Jiménez and Carmen D. Rosario-Morales was entered upon plaintiff's request for voluntary dismissal (Docket No. 35).

Having granted qualified immunity to defendant Rivera-Hernández, plaintiff Valdizan's claim for money damages would not prosper. Insofar as the only possible remaining relief, injunctive relief to reinstallment to his position, that may survive qualified immunity, the Court of Appeals' decision also concluded that plaintiff Valdizan was holding a trust position as Executive II, and upon relying on the official job description, loyalty should be considered an appropriate qualification for employment. These determinations lead only to the conclusion that plaintiff Valdizan's dismissal from employment is not governed by the Elrod-Branti rationale. Thus, Valdizan would not be entitled to injunctive relief for reinstatement to his position as requested in the complaint and no further action by this Magistrate Judge on the referral is warranted.

As such, on the Court of Appeals' decision and the above report, it is recommended the appropriate course of action in this case is to enter judgment dismissing the complaint in its entirety and plaintiff Valdizan's remaining claim in the instant case.

Succinctly, the matter referred should be returned to the Clerk's Office for entry of final judgment closing this case.

IT IS SO RECOMMENDED.

The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1^st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1^st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1^st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").