United States Court of Appeals
                     For the First Circuit

No. 09-2531

                     GIL A. RODRÍGUEZ-RAMOS,

                      Plaintiff, Appellant,

                               v.

     RUBÉN A. HERNÁNDEZ-GREGORAT; SANTOS M. DELGADO-MARRERO;
           GLADYS FUENTES-CRUZ; JUDITH MORALES-MORALES,

                     Defendants, Appellees,

                   INSURANCE COMPANY A, B, C,

                           Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpí, U.S. District Judge]


                             Before

                        Lynch, Chief Judge,
                Lipez and Howard, Circuit Judges.


     Carlos A. Del Valle Cruz, with whom Eileen Landrón
Guardiola, Eduardo Vera Ramirez and Landrón & Vera, L.L.P. were
on brief, for appellant.
     Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Irene S. Soroeta-Kodesh,
Solicitor General, Leticia Casalduc-Rabell, Deputy Solicitor
General and Zaira Z. Girón-Anadón, Deputy Solicitor General were
on brief, for appellee Rubén A. Hernández-Gregorat and for
appellees Santos M. Delgado-Marrero, Gladys Fuentes-Cruz and
Judith Morales-Morales in their individual capacities.
     Francisco J. Amundaray, with whom Eric R. Ronda and Mercado
& Soto, PSC, were on brief, for appellees Santos M. Delgado-
Marrero, Gladys Fuentes-Cruz and Judith Morales-Morales in their
official capacities.



                          July 12, 2012
          HOWARD,    Circuit   Judge.     Plaintiff-appellant    Gil   A.

Rodríguez-Ramos, a former trust employee of the Metropolitan Bus

Authority of Puerto Rico ("MBA"), sued various public officials

under 42 U.S.C. § 1983, alleging that a decision not to install him

in a career attorney position in the MBA was politically motivated

and was effected without due process of law, in violation of his

First and Fourteenth Amendment rights.      The district court granted

the defendants' motion to dismiss all claims.          For the reasons

discussed below, we affirm in part and reverse in part.        We affirm

the dismissal of the due process claim as to all defendants, and as

well, dismissal of the First Amendment claim as to all defendants,

save for defendant Delgado.         As to the First Amendment claim

against   Delgado,   we    vacate   the   dismissal   and   remand   with

instructions to grant plaintiff leave to amend the complaint.

                          I. FACTUAL BACKGROUND

          On review of this motion to dismiss, we recount the

relevant facts based upon the well-pleaded allegations in the

complaint.   See S.E.C. v. Tambone, 

, 438 (1st Cir.

2010) (en banc).     We supplement that account with reference to

Puerto Rico statutes and facts susceptible to judicial notice, as

necessary to place the allegations in context.              See Haley v.

Boston, 

, 44 (1st Cir. 2011).

          In asserting an entitlement to a position as an "Attorney

I within the MBA," the complaint alleges that Rodríguez is a long-


                                    -2-
standing and active member of the Popular Democratic Party ("PDP").

He began his public employment with the Commonwealth of Puerto Rico

in 1991 and for the next decade he held career positions in various

government   agencies.1   He   maintained   his   career   status   while

attending law school, and he was admitted to practice law in early

2000.

          That spring, after taking the pertinent competitive exam,

Rodríguez was appointed to the career position of "Attorney I" in

the Administration of Corrections ("AOC"), where he had previously

worked in non-lawyer capacities.    Approximately nine months later,

in January 2001, he was appointed to the trust position of Director

of the Office of Legal Affairs of the AOC.           According to the

plaintiff's translation, his appointment letter stated:

          This designation [to the Director of the Office
          of Legal Affairs] does not excuse you from
          complying    with    all    the    duties    and
          responsibilities of the position you presently
          occupy as Attorney I in the Office of Legal
          Affairs, position in the career service to which
          you were promoted last March 1, 2000.       Your



     1
       Under Puerto Rico's civil service laws, "career" employees
are "[t]hose employees who have been admitted into the public
service in faithful compliance with the [guidelines] established by
the body of laws in effect and which appl[y] to the recruitment and
selection processes of the career service at time of their
appointment," including the merit principle. P.R. Laws Ann. tit.
3, § 1465(1). Such employees are removable for "just cause" only.

employees, in contrast, are "employees
that substantially intervene or collaborate in the formulation of
public policy, or those who directly advise or render direct
services to the head of the agency."        

employees "can be selected and removed at will." 

shall not be interrupted
          while you prevail in this designation.

On May 1, 2001, the AOC Secretary favorably evaluated Rodríguez and

approved his completion of the one-year probationary period for the

Attorney I position, effective April 1.2

          Two months later Rodríguez was appointed to the trust

position of Deputy Administrator of Management and Administration

in the AOC.   He was subsequently appointed to a number of other

trust positions in various agencies, including Assistant Secretary

of   Investigations   of        the    Department    of   Corrections     and

Rehabilitation, Sub-Administrator of the AOC, Deputy Chief of

Administration and later Chief of the Medical Emergency Corps, and

Administrator of the General Services Administration (GSA).              With

the exception of a brief two-week interlude in September 2005

during which he was reassigned to a career position as Attorney I,

Rodríguez held trust positions continuously from July 2001 until

December 2008.

          This   period    of    the   plaintiff's   employment   in    trust

positions coincided with PDP control of the governorship.                In

November 2008, however, the candidate of the New Progressive Party

("NPP") was elected governor. With the resulting transfer of power

impending, the outgoing administration moved Rodríguez on December


     2
       There is a discrepancy in the plaintiff's pleadings between
the March 1, 2000 appointment date referenced in the appointment
letter and the April 1, 2000 date elsewhere in the complaint. This
discrepancy is not, however, material to our disposition.

                                       -4-
15, 2008 from his trust position as Chief of the Medical Emergency

Corps to a career attorney position within the GSA.3      Two days

later, on December 17, 2008, Rodríguez was appointed to the trust

position of Special Assistant to the President in the Metropolitan

Bus Authority, an agency of roughly 1,000 employees in which he had

never previously worked. This was the position that Rodríguez held

when the NPP government was installed two weeks later.

          The political shift in the executive branch brought with

it changes in trust position personnel throughout the government.

The president of the NPP and new governor of Puerto Rico, Luis

Fortuño-Burset, appointed Ruben Hernández-Gregorat as Secretary of

Transportation and Public Works.   Hernández, in turn, named Santos

M. Delgado-Marrero as President and General Manager of the MBA.

          Upon Delgado's appointment, and allegedly at Delgado's

request, Rodríguez submitted a letter of resignation from his trust

position as Special Assistant on January 7, 2009.   In his letter,

citing a provision of the Puerto Rico civil service law that

entitles a departing trust employee to reclaim a career position


     3
        This move was in apparent violation of the so-called
"electoral moratorium period." The Public Service Human Resource
Administration Act prohibits government authorities "from making
any personnel transaction which includes the essential areas of the
merit principle . . . [within] two (2) months before and two (2)
months after the holding of the General Elections of Puerto Rico."
P.R. Laws Ann. tit. 3, § 1462h. The Act provides that "[f]ailure
to comply with this measure shall entail the voiding of the
transaction thus carried out."       

of the
litigation, the parties make no arguments about the impact, if
any, of this illegal 2-day appointment on the plaintiff's claims.

                               -5-
equivalent to the last career position that the employee had held,

Rodríguez also requested that he be reinstated to an Attorney I

career    position.       See    P.R.    Laws      Ann.   tit.    3,   §     1465a.

Contemporaneously with submitting this letter, Rodríguez requested

a meeting with Delgado to discuss the matter.               Not having received

a reply, three weeks later Rodríguez submitted a second written

reinstatement       request     to   Delgado.        This   request        also   went

unanswered.

            Over the next few months, although remaining in his trust

position, Rodríguez was gradually relieved of the duties and

functions    that    he   had    performed    as     Special     Assistant.        The

complaint alleges that Delgado ordered Rodríguez's internet access

removed, excluded him from meetings, and severed his workload. The

complaint lists numerous days between January and the end of June

on which Rodríguez neither performed nor was assigned any job

function    whatsoever.          Although       he   occasionally      was        given

assignments to do legal work, in May when a union attorney referred

to the plaintiff a sexual harassment dispute that had arisen in the

MBA, Delgado issued orders preventing Rodríguez from handling the

matter.     Instead, it is alleged, throughout this period Delgado

engaged outside counsel to handle this and most other legal matters

at a cost of approximately $30,000 per month.

            Rodríguez's request to be placed in a career position

remained pending for most of the first half of 2009, although the


                                        -6-
complaint    alleges that       in   April     Delgado    did   attempt    to   have

Rodríguez transferred to another agency. In early March, Delgado's

executive secretary had told Rodríguez "not to worry" because his

request had been approved, but he remained in the Special Assistant

position into June.          On June 15, Rodríguez inquired about his

status with Gladys Fuentes-Cruz, the MBA's Vice President of

Management    and    Human      Capital,       in   the   presence    of     Judith

Morales-Morales, Special Aide to Delgado in personnel matters.

Fuentes explained that she was not working on the matter, which was

being handled directly by Delgado with no involvement of Human

Resources personnel.

            On June 22, Rodríguez received a letter from Delgado

appointing him to a career position as a Bus Terminal Administrator

within the MBA, effective the first day of July.                          Rodríguez

describes this appointment as a "demotion" to an "inferior working

position to that which he is entitled to" with a salary of "$3,000/

monthly below to that which he should have been entitled."                      Prior

to the effective date of this assignment, neither the President of

the MBA nor any member of the human resources staff met with

Rodríguez to discuss the assignment. Additionally, when on June 25

Rodríguez used the standard form to request a review of his

personnel    file,   he   was    told,     allegedly      contrary   to    standard

procedures, that he must write a letter making the request.                      The




                                         -7-
complaint states that Rodríguez complied and made such a written

request on June 30.

          The next day, July 1, when his new duties were set to

begin, Rodríguez filed this action in federal court.    Invoking 42

U.S.C. § 1983, he alleged that he was denied placement in an

Attorney I position in the MBA as a result of his political

affiliation and without due process of law, in violation of his

First and Fourteenth Amendment rights.     The complaint named as

defendants Hernández, Delgado, Morales and Fuentes, each in his or

her individual and official capacities.

          The district court dismissed the federal claims pursuant

to the defendants' motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), and this timely appeal followed.4

                           II. ANALYSIS

          We review de novo an order of dismissal for failure to

state a claim.   

.     In conducting this

review, "we disregard statements in the complaint that merely offer



     4
        The plaintiff also asserted a violation of his Fourteenth
Amendment equal protection rights and invoked supplemental
jurisdiction over various claims arising under the laws and
constitution of Puerto Rico.    The district court dismissed the
equal protection claim as indistinguishable from his First
Amendment political discrimination claim, see Pagán v. Calderón,

, 36-37 (1st Cir. 2006), and declined to exercise
supplemental jurisdiction over the Commonwealth claims.       The
plaintiff does not challenge either disposition (although in his
reply brief he belatedly urges that the supplemental claims be
reinstated if the district court's dismissal is reversed), and we
limit our review accordingly.

                               -8-
'legal conclusion[s] couched as . . . fact[]' or 'threadbare

recitals of the elements of a cause of action.'"              Ocasio-Hernández

v. Fortuño-Burset, 

, 12 (1st Cir. 2011) (quoting Ashcroft

v. Iqbal, 

, 

, 1949-50 (2009)).                  The

remaining, non-conclusory allegations are entitled to a presumption

of truth, and we draw all reasonable inferences therefrom in the

pleader's favor.      See 

. . . is

that   the   combined    allegations,     taken   as    true,   must   state   a

plausible,     not   a   merely   conceivable,         case   for   relief."

Sepúlveda-Villarini v. Dep't of Educ. of P.R., 

, 29 (1st

Cir. 2010).    To survive a motion to dismiss, a complaint must, in

other words, "allow[] the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged."               

.

A.   Political Discrimination

             It is well established that "[g]overnment officials are

forbidden by the First Amendment from taking adverse action against

public employees on the basis of political affiliation, unless

political loyalty is an appropriate requirement of the employment."

(citing, inter alia, Rutan v.

Republican Party of Ill., 

, 75-76 (1990)).               The parties

do not dispute that the plaintiff's position as Special Assistant

to the President of the MBA was a policymaking trust position for

which party affiliation was an "appropriate requirement for the


                                    -9-
effective performance of the [] office."      Branti v. Finkel, 

, 518 (1980).       Consequently, to the extent that the

plaintiff attempts to challenge the diminution of his functions and

eventual transfer from that position, his claim necessarily fails.

See Valdizán v. Rivera-Hernandez, 

, 66 (1st Cir. 2006);

Ruiz-Casillas v. Camacho-Morales, 

, 133 (1st Cir.

2005).

          The main thrust of the political discrimination claim,

however, is that the plaintiff suffered political discrimination

when he was reinstated to a particular career position, when he

wanted another.   Specifically, he challenges his assignment to the

purportedly inferior position of Bus Terminal Administrator rather

than to an Attorney I position in the MBA to which he claims

entitlement under Puerto Rico law. With respect to this employment

action,   the     First   Amendment's   prohibition   on   political

discrimination potentially does apply.    Cf. Gaztambide-Barbosa v.

Torres-Gaztambide, 

, 115-16 (1st Cir. 1990) (finding

First Amendment prohibition on political discrimination applicable

to defendants' failure to reinstate trust employee entitled to

career position under Puerto Rico civil service law).

          To state an actionable claim of political discrimination,

the plaintiff's complaint must plausibly allege that he is not of

the defendants' political affiliation and that the defendants were

aware of his affiliation.       The complaint must also allege an


                                 -10-
adverse employment action and that political affiliation was a

substantial or motivating factor for the adverse action.                    See

Lamboy-Ortiz v. Ortiz-Vélez, 

, 239 (1st Cir. 2010).

"Moreover, each defendant's role in the [adverse action] must be

sufficiently alleged to make him or her a plausible defendant.

After all, we must determine whether, as to each defendant, a

plaintiff's pleadings are sufficient to state a claim on which

relief can be granted."        

(quoting

Sanchez v. Pereira-Castillo, 

, 48 (1st Cir. 2009))

(internal quotation marks omitted).

              The   district    court   correctly     concluded      that   the

plaintiff's allegations of participation are speculative and thus

inadequate with respect to all of the defendants except Delgado.

Liability under Section 1983 "cannot rest solely on a defendant's

position of authority," 

, yet that

is all that the plaintiff offers as to the roles of defendants

Hernández, Morales, and Fuentes in his reinstatement.                 The only

non-conclusory factual allegations made with respect to Hernández

are that he was appointed Secretary of Transportation and Public

Works and that he in turn appointed Delgado to the position of

President and General Manager of the MBA.              As to Morales, the

complaint states only that she was a special aide to Delgado and

was present when the plaintiff asked Fuentes about the status of

his reassignment.        The plaintiff did argue in response to the

motion   to    dismiss   that   Hernández   and     Morales   have    ultimate
                                     -11-
statutory authority over personnel decisions, see Metropolitan Bus

Authority Act, P.R. Laws Ann. tit. 23, §§ 601 et seq., but given

that the complaint contains no allegations that these individuals

actually participated in or condoned the personnel decision at

issue here, it fails to render them plausible defendants.            Compare

Peñalbert-Rosa v. Fortuno-Burset, 

, 595-96 (1st Cir.

2011) (holding insufficient bald assertions that defendants, by

virtue of their positions, "participated" in or "approve[d]" of

adverse employment action), with 

-17   (reaching    opposite    result      where   complaint      detailed

defendants' personal involvement).

          The alleged participation of defendant Fuentes is no less

speculative.   The complaint indicates that Fuentes was the MBA's

Vice President of Management and Human Capital, a position that

might more plausibly involve her in personnel decisions relating to

the reinstatement of removed trust employees.           But the complaint

fails to include allegations to that effect, much less allegations

suggesting   that   Fuentes   played   any   role    specifically    in   the

plaintiff's reinstatement. See Ayala-Rodríguez v. Rullán, 

, 235-36 (1st Cir. 2007).      In fact, the complaint alleges just

the opposite: that Fuentes was kept out of employment decisions

involving the plaintiff.      As such, there is no basis from which to

infer that Fuentes engaged in or "set[] in motion a series of acts"

that led to the alleged adverse employment action.           Sanchez, 590


                                  -12-
F.3d at 50 (quoting Gutierrez-Rodriguez v. Cartagena, 

,

561 (1st Cir. 1989)) (internal quotation marks omitted).

              We turn, then, to whether the political discrimination

claim survives the motion to dismiss with respect to defendant

Delgado.      There can be no disputing that the complaint satisfies

the   first    two   political   discrimination   claim   elements,   which

incorporate an awareness by the defendant(s) that the plaintiff is

of a different political persuasion.              The complaint contains

straightforward allegations that the plaintiff and Delgado are of

competing political parties, stating that Rodríguez is a member of

the PDP and each of the defendants is a member of the NPP.        It also

contains detailed descriptions of the plaintiff's history of trust

positions held under PDP administrations and his active and visible

role in party politics, from which it is plausible to infer that

the defendants knew of his political affiliation.5         See Grajales v.

P.R. Ports Auth., No. 11-1404, 

(1st Cir. 2012)

(plausible to infer defendants' knowledge from facts that plaintiff

was placed in a "prestigious trust position by PDP hierarch under

a     PDP   administration");      see   also     Montfort-Rodríguez     v.


       5
        Rodríguez asserts that in addition to a long line of trust
positions under PDP administrations, he has held numerous posts
within the party, including: member of the Popular Youth; member of
the Autonomous Youth Movement of the PDP at the University of
Puerto Rico; PDP electoral representative in various electoral
units; PDP precinct president; PDP presidential delegate; president
of the PDP Public Servants; and member of the PDP Governing Board.
Rodríguez also alleges that he was known publicly as a PDP advocate
by virtue of his regular participation in television, radio, and
other media programming.
                                -13-
Rey-Hernández, 

, 225-26 (1st Cir. 2007) (finding that

defendant's knowledge that plaintiffs were trust employees under

prior party's     administration      was    circumstantial    evidence that

defendant was aware of political affiliation).

          Taken as whole, the complaint also adequately alleges

Delgado's involvement in the decision to assign the plaintiff as a

Bus Terminal Administrator.          We have noted that Fuentes was not

involved in the plaintiff's reinstatement to a career position

because, according to the complaint, Delgado took the matter into

his own hands.    The plaintiff alleges that he was told that Delgado

was directly handling his reinstatement request, and his inquiries

into the status of that request were repeatedly directed back to

Delgado personally.     Accepting these well-pleaded facts as true,

they give rise to the inference that Delgado was involved in, if

not directly responsible for, the reinstatement decision.

          "The requirement of plausibility on a motion to dismiss

under Rule 12(b)(6) 'simply calls for enough fact to raise a

reasonable expectation that discovery will reveal evidence of the

illegal [conduct].'"        

(quoting

Bell Atl. Corp. v. Twombly, 

, 556 (2007)). Under Puerto

Rico law, trust employees who were previously in the career service

are eligible to be reinstated as career employees.             An "employee[]

with regular status in the career service who move[s] to the

confidential     service,    shall    have    the   absolute   right   to   be

reinstated in a position equal or similar to the last job [he] held
                                     -14-
within the career service," and "is entitled to all benefits in

terms of classification and salary that have been extended to the

career job they held during the term in which they served in the

confidential service."      P.R. Laws Ann. tit. 3, § 1465a; see also

Colón-Santiago v. Rosario, 

, 108-109 (1st Cir. 2006).

This "entitlement" is at the heart of Rodriguez' claim.

            Rodríguez asserts that the Bus Terminal Administrator

position to which he was assigned is inferior to an Attorney I

position within the MBA to which he claims entitlement and that his

placement   therefore     effectively     constituted     a   demotion.   Cf.

(reasoning that refusal to

reinstate      trust    employee    in     career   position        "amounted,

functionally, to a dismissal from the agency").

            Defendant Delgado does not dispute that demotions fall

within the scope of employment decisions subject to First Amendment

scrutiny. See e.g., Acosta-Orozco v. Rodriguez-de-Rivera, 

, 101 (1st Cir. 1997); Nereida-Gonzalez v. Tirado-Delgado, 

, 705-706 (1st Cir. 1993). He maintains, however, that the

complaint is devoid of factual allegations sufficient to show

political motivation, as well as of allegations that the plaintiff

was deprived of rank or salary as a career employee and thus fails

to   support    the    inference   that    a   demotion       occurred.   See

(defining demotions as "'involv[ing]

reductions in pay and official rank.'" (quoting Agosto-de-Feliciano

v. Aponte-Roque, 

, 1218 n.8 (1st Cir. 1989))).
                                    -15-
          This case is far from the common political retaliation

claim since Rodriguez was not in fact terminated from employment as

a career employee.   His claim is that state law gave him a right to

a better career employee position and Delgado denied him that.     A

causally motivating factor in that decision by Delgado, he asserts,

was retaliation for his political beliefs and though he was not

deprived of all employment, he asserts that his First Amendment

rights extend this far.

          Whether or not he has such an entitlement under state law

(on the law or the facts) is a matter which is unclear, as are the

contours of such an entitlement, if any.      Even if he did have a

state law claim on the attorney's job, this panel of judges is

divided as to whether his complaint passes muster under Iqbal,

including as to the allegations of causation and political animus.

We are mindful that Iqbal was decided only weeks before this

complaint was filed, and that there may be further facts which may

enhance the pleadings and elucidate the theory advanced.     As this

court commented in Peñalbert-Rosa v. Fortuno-Burset, 

,

597 (1st Cir. 2011), another political discrimination case:     "But

Twombley and Iqbal are relatively recent; developing a workable

distinction between "fact" and speculation is still a work in

progress."

          In Peñalbert, we affirmed the dismissal as to certain

named defendants but vacated dismissal of the entire case to allow

plaintiff leave to amend.   

the power of a federal
                                  -16-
appellate court to do so when doing so is in the interests of

justice, as set forth in Peñalbert and Rivera-Gomez v. Castro, 

(1st Cir. 1988), and the cases cited therein.           We think it

appropriate under our precedent to vacate the dismissal as to

defendant Delgado only and to remand with instructions to allow

plaintiff leave to amend as to Delgado.

B.   Procedural Due Process

            Rodríguez argues that in addition to suffering political

discrimination, he was denied his substantive due process rights

when he was deprived of his property interest in a career position

equivalent to his former attorney position without the benefit of

a "pre-demotion" hearing.      In response, Delgado6 asserts that the

plaintiff never completed his probationary period and thus had no

property interest in a career position; in any event, Delgado

argues, he is entitled to qualified immunity because a reasonable

official could have concluded that the plaintiff had no right to

reinstatement.     We   need   not    address   the   viability    of   these

arguments   in relation      to the   due   process   claim,    because    the

plaintiff    has    failed     to     demonstrate     that     Puerto     Rico

post-deprivation remedies are constitutionally inadequate.

            As mentioned, Rodríguez asserts that Delgado violated his

due process rights by denying him a "pre-demotion" hearing prior to


     6
       As with the First Amendment claim, the complaint fails to
allege sufficient personal involvement of any defendant except
Delgado in the conduct alleged to constitute a due process
violation.
                              -17-
placing him in a position other than the attorney position to which

he claims entitlement. What Rodríguez terms a "demotion," however,

is not a demotion in the classic sense: he was not removed from,

but rather seeks an affirmative reassignment to, a position that he

has not held before and in which his alleged property interest is

contested.     Thus, while under Loudermill and its progeny, see,

e.g., Cleveland Bd. Of Educ. v. Loudermill, 

, 538

(1985); Jirau-Bernal v. Agrait, 

, 5 (1st Cir. 1994), an

employee's right to a prior hearing may extend to demotions from

currently held positions, that is not this situation.     Indeed, we

have previously held that post-deprivation procedures available

under Puerto Rico law are sufficient to vindicate employee rights

when a former trust employee claims that she suffered salary and

benefit deprivations as a result of her reassignment to a career

position.    See Maymí v. P.R. Ports Auth., 

, 30 (1st Cir.

2008) (citing, inter alia, Amsden v. Moran, 

, 755 (1st

Cir. 1990)); see also P.R. Laws Ann. tit. 3, §§ 1468 et seq.     The

plaintiff makes no effort to explain why those procedures are

inadequate here.    Under these circumstances, resort to available

Puerto Rico remedies provides all the process that is due.

                           III. CONCLUSION

            We affirm the district court's order dismissing the

federal claims with prejudice, as well as the dismissal of the

supplemental claims without prejudice, as to all defendants save

for Delgado.    As to Delgado, the dismissal is vacated only as to
                                -18-
the First Amendment claim.    The case is remanded for further

proceedings consistent with this opinion.

          The parties shall bear their own costs.




                              -19-