Filed: Jul. 13, 2007
Latest Update: Feb. 21, 2020
Summary: JOHN V. RULLáN, in his personal capacity and in his official, capacity as Secretary of Health;the district court dismissed Sepúlveda's claims.for this position.1, Sepúlveda has not argued that the fee award was improper, because of Rullán's failure to move for summary judgment on this, basis.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 05-2808
JAIME NOEL SEPÚLVEDA-CARRERO,
Plaintiff, Appellant,
v.
JOHN V. RULLÁN, in his personal capacity and in his official
capacity as Secretary of Health; Commonwealth of Puerto Rico,
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,
Lynch and Howard, Circuit Judges.
Francisco R. González-Colon and F.R. Gonzalez Law Office, on
brief, for appellant.
Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negrón-Vargas, Deputy Solicitor General, Maite D. Oronoz-
Rodríguez, Deputy Solicitor General and Leticia Casalduc-Rabell,
Assistant Solicitor General, on brief, for appellees.
July 13, 2007
Per Curiam. Jaime Noel Sepúlveda-Carrero appeals the
entry of an award of attorney fees under 42 U.S.C. § 1988 in favor
of Puerto Rico Secretary of Health John V. Rullán in his individual
capacity. The award followed a finding that Sepúlveda's political
discrimination suit against Rullán was frivolous. We affirm.
In 2001, Sepúlveda sued the Commonwealth of Puerto Rico
and Rullán, in his official and personal capacities. Sepúlveda
alleged that unlawful political discrimination prompted his removal
from the positions of Regional Medical Director, Aguadilla Sub-
Region (“Sub-Regional Director”) and Regional Medical Director,
Aguadilla-Mayaguez Region (“Regional Director”), in violation of 42
U.S.C. § 1983.
Except for the individual capacity claim against Rullán,
the district court dismissed Sepúlveda's claims. Later, the court
granted Rullán summary judgment on the remaining claim insofar as
it pertained to the Regional Director position because “party
affiliation [was] an appropriate requirement for the effective
performance of the office.” But the court denied Rullán summary
judgment insofar as the claim pertained to the Sub-Regional
Director position on the ground that there was a material dispute
over whether political affiliation was an appropriate requirement
for this position.
Sepúlveda’s claim concerning the Sub-Regional Director
position went to trial. At the close of Sepúlveda’s case, Rullán
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moved for judgment as a matter of law. See Fed. R. Civ. P. 50.
The court granted Rullán’s motion, concluding that there was no
evidence that Rullán knew of Sepúlveda’s political affiliation
before firing him. The court subsequently awarded Rullán $16,235
in attorney’s fees on the ground that Sepúlveda’s claim was
frivolous. Sepúlveda appeals from the fee ruling.
We review an appeal of an award of attorney’s fees for an
abuse of discretion. See Foley v. City of Lowell, 948 F.2d 10, 18
(1st Cir. 1991). Under 42 U.S.C. § 1988, a district court may
award a defendant attorney’s fees only “upon a finding that the
plaintiff's action was frivolous, unreasonable, or without
foundation, even though not brought in subjective bad faith.” Tang
v. State of R.I., Dept. of Elderly Affairs,
163 F.3d 7, 13 (1st
Cir. 1998) (quoting Christiansburg Garment Co. v. EEOC,
434 U.S.
412, 421 (1978)). A claim on which a plaintiff cannot present a
prima facie case at the time she files a complaint may be
frivolous. See Andrade v. Jamestown Hous. Auth.,
82 F.3d 1179,
1192 (1st Cir. 1996). To establish a prima facie case of political
discrimination, a plaintiff must show that the official who took
the adverse action was aware of the plaintiff's political
affiliation. See Gonzalez-Pina v. Rodriguez,
407 F.3d 425, 431
(1st Cir. 2005).
Sepúlveda makes two arguments for overturning the
district court’s ruling. First, he contends that the district
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court abused its discretion in awarding attorney’s fees because he
“survived” Rullán’s dismissal and summary judgment motions.
Alternatively, he contends that a serious medical condition
affected his ability to testify at trial and prevented him from
fully articulating the evidence supporting his claim.
That Rullán’s motion to dismiss was partially denied is
irrelevant because the district court was required to accept all
“allegations in the plaintiff's pleadings as true and [to] make all
reasonable inferences in favor of the plaintiff.” Rivera v. Rhode
Island, 402 F.3d 27, 33 (1st Cir. 2005). Sepúlveda’s “survival” of
the motion to dismiss means only that he had sufficiently pleaded
at least one viable cause of action, not that he had any
evidentiary support for his position. At summary judgment, Rullán
argued only that he was entitled to judgment because the Regional
and Sub-Regional Director jobs were trust positions. There was no
argument at that time that Rullán did not know Sepúlveda’s party
affiliation before firing him.1 Thus, that Sepúlveda’s claim was
not terminated at summary judgment does not mean that he had a
foundation to establish the prima facie elements of his claim.
Sepúlveda’s argument that a serious medical condition
adversely affected his ability to testify at trial fails because he
did not properly present it for appellate review. Sepúlveda did
1
Sepúlveda has not argued that the fee award was improper
because of Rullán's failure to move for summary judgment on this
basis.
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not provide a transcript of the trial as required by Fed. R. App.
P. 10(b) or any other evidence to support his claim of poor health.
We will therefore not analyze this argument. See Ramirez v. P.R.
Fire Servs., 757 F.2d 1357, 1358 (1st Cir. 1985) (“Where an
appellant raises issues that are factually dependent yet fails to
provide a transcript of the pertinent proceedings in the district
court, this circuit has repeatedly held that we will not review the
allegations.”).
Affirmed.
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