Marin v. Gonzales, et al.

Marin v. Gonzales, et a l . 05-DS-247-SM 12/19/05

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Carmen Marquez Marin,

Plaintiff

v. Civil No. 05-ds-247-SM (NH)

Civil No. 05-CV-1619-HL (PR)

Opinion No. 2005 DNH 167

Alberto Gonzales.

Attorney General of the United States;

and Humberto '"Bert" Garcia.

U.S. Attorney for the Dist. of Puerto Rico.

Defendants

O R D E R

Plaintiff, Carmen Marquez Marin, was formerly employed as an

Assistant United States Attorney in the District of Puerto Rico.

After her employment was terminated she filed this suit against

Alberto Gonzales, the Attorney General of the United States, and

Humberto "Bert" Garcia, the United States Attorney for the

District of Puerto Rico. In count one of her complaint,

plaintiff asserts that she was the victim of unlawful

discrimination based upon her gender and national origin. As to

that count, she has named the Attorney General, in his official

capacity, as the sole defendant.

In count two of her complaint, Marquez asserts that the

United States Attorney, Humberto Garcia, terminated her

employment under conditions that violated her constitutionally

protected right to due process. See generally Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388

(1971). That is, Marquez says that in connection with her

discharge, Garcia circulated false and defamatory statements

about her and refused to provide her with a hearing at which she

might clear her name. And, finally, in count three of her

complaint, Marquez asserts that Garcia also violated her

constitutionally protected rights when he terminated her

employment without following internal personnel policies.

Garcia moves to dismiss both counts against him. He says

the claims asserted are preempted by the Civil Service Reform Act

of 1978 ("CSRA") and, therefore, this court lacks subject matter

jurisdiction. Moreover, says Garcia, even if those claims were

not preempted, he would still be entitled to the protections

afforded by qualified immunity. Plaintiff objects.

2

Standard of Review

I. Lack of Subject Matter Jurisdiction.

When faced with a motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1), the plaintiff, as the

party invoking the court's jurisdiction, has the burden to

establish, by competent proof, that jurisdiction exists. See

Bank of New Hampshire v. United States. 115 F. Supp. 2d 214, 215

(D.N.H. 2000). In determining whether that burden has been met,

the court must construe the complaint liberally, "treating all

well-pleaded facts as true and indulging all reasonable

inferences in favor of the plaintiff." Aversa v. United States.

99 F.3d 1200, 1210 (1st Cir. 1996). Importantly, however, the

court may also consider whatever evidence the parties have

submitted, such as depositions, exhibits, and affidavits, without

converting the motion to dismiss into one for summary judgment.

In a situation where the parties dispute the predicate

facts allegedly giving rise to the court's

jurisdiction, the district court will often need to

engage in some preliminary fact-finding. In that

situation, the district court enjoys broad authority to

order discovery, consider extrinsic evidence, and hold

evidentiary hearings in order to determine its own

jurisdiction. In such a case, the district court's

findings of fact will be set aside only if clearly

erroneous.

3

Skwira v. United States, 344 F.3d 64, 71-72 (1st Cir. 2003)

(citation and internal quotation marks omitted). See also

Valentin v. Hosp. Bella Vista. 254 F.3d 358, 365 (1st Cir. 2001).

II. Failure to State a Claim.

When ruling on a motion to dismiss under Rule 12(b)(6), the

court must "accept as true the well-pleaded factual allegations

of the complaint, draw all reasonable inferences therefrom in the

plaintiff's favor and determine whether the complaint, so read,

sets forth facts sufficient to justify recovery on any cognizable

theory." Martin v. Applied Cellular Tech.. Inc.. 284 F.3d 1, 6

(1st Cir. 2002). Dismissal is appropriate only if "it clearly

appears, according to the facts alleged, that the plaintiff

cannot recover on any viable theory." Lanqadinos v. American

Airlines. Inc., 199 F.3d 68, 69 (1st Cir. 2000). See also Gorski

v. N.H. Dep't of Corr., 290 F.3d 466, 472 (1st Cir. 2002) ("The

issue presently before us, however, is not what the plaintiff is

required ultimately to prove in order to prevail on her claim,

but rather what she is required to plead in order to be permitted

to develop her case for eventual adjudication on the merits.")

(emphasis in original).

4

Notwithstanding this deferential standard of review,

however, the court need not accept as true a plaintiff's "bald

assertions" or conclusions of law. See Resolution Trust Corp. v.

Driscoll. 985 F.2d 44, 48 (1st Cir. 1993) ("Factual allegations

in a complaint are assumed to be true when a court is passing

upon a motion to dismiss, but this tolerance does not extend to

legal conclusions or to 'bald assertions.'") (citations omitted).

See also Chonqris v. Board of Appeals. 811 F.2d 36, 37 (1st Cir.

1987).

Here, in support of his motion to dismiss, Garcia references

various personnel documents relating to Marquez's employment and

the letter of discharge. Typically, a court must decide a

12(b)(6) motion to dismiss exclusively upon the allegations set

forth in the complaint (and any documents attached to that

complaint) or convert the motion into one for summary judgment.

See Fed. R. Civ. P. 12(b). There is, however, an exception to

that general rule:

[CJourts have made narrow exceptions for documents the

authenticity of which are not disputed by the parties;

for official public records; for documents central to

plaintiffs' claim; or for documents sufficiently

referred to in the complaint.

5

Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (citations

omitted). See also Beddall v. State Street Bank & Trust Co.. 137

F.3d 12, 17 (1st Cir. 1998). Since plaintiff does not dispute

the authenticity of the documents upon which Garcia relies, the

court may properly consider those documents without converting

Garcia's motion into one for summary judgment.

Background

In December of 2001, Marquez began working at the United

States Attorney's Office for the District of Puerto Rico, under a

temporary, 14-month appointment. A little more than a year

later, in January of 2003, after the FBI completed a background

investigation, plaintiff's position was converted to a non­

temporary one. The "Notification of Personnel Action" provided

to Marquez informed her that her appointment was "subject to the

completion of a two-year trial period beginning 01/23/2003."

Exhibit 5 to Affidavit of Carmen Pura Lopez. It also notified

plaintiff that "[w]hile serving the trial period, you may be

removed without cause or the right to appeal." Id.

6

On August 27, 2004, Marquez was called to a meeting with

Garcia. When she arrived, she says the entire supervisory staff

of the office was present. In front of those present, Garcia

handed plaintiff a letter, dated August 26, 2004, from the

Director of the Executive Office for United States Attorneys,

informing her that her employment was terminated, effective

immediately. Among other things, that letter (the contents of

which plaintiff attributes to Garcia) cited Marquez's

"misconduct," "pattern of dishonesty," and "poor attitude toward

work . . . [which] undermined office morale and adversely

affected the ability of [the] office to perform its mission," as

grounds for her termination. Id,., Exhibit 7. Marquez alleges

that the letter contained false and defamatory statements and

claims that it was circulated to all supervisors in the office

(including those who were not in her chain of command).

Complaint at para. 8.18. But, because her employment was

terminated within the two-year trial period, Marquez was not

entitled to appeal that decision, nor was she entitled to any

sort of pre-termination hearing.

7

Immediately after receiving the letter, Marquez was escorted

to her office so she could gather her personal belongings before

leaving the building. Although she was no longer in the office,

Marquez claims that, "on information and belief, following the

dismissal, supervisors at the office . . . proclaimed that

plaintiff was dismissed because she was not fulfilling the

mission of the office and was affecting the ■'morale'’ of the

office by complaining too much." Complaint at para. 8.21.

Discussion

I. Count Three - Procedural Deficiencies Associated with

Terminating Plaintiff's Employment.

Count three of plaintiff's complaint is pled as a Bivens

action, seeking damages from Garcia for having allegedly violated

Marquez's constitutional rights by failing to follow "applicable

regulations and procedures of the United States Attorneys'

offices." Complaint at para. 12.1. Specifically, plaintiff

claims Garcia failed to afford her either a plan of improvement

of performance (known as a "PIP"), or thirty days advance notice

of her dismissal - procedural benefits to which she says she was

entitled. .Id. at para. 12.3. In response to Garcia's motion to

dismiss and in an effort to avoid preemption of that claim by the

CSRA, plaintiff has informally amended that count, notifying the

court that she has waived any claim for monetary damages and now

seeks only "equitable and declaratory relief on [that] claim."

Plaintiff's memorandum at 4 n.3.

Independent of the preemption question, however, count three

of plaintiff's complaint suffers from a fundamental defect.

Although brought pursuant to Bivens, see complaint at para. 3.4,

count three does not identify any federally protected

constitutional right that was violated by Garcia's alleged

failure to follow internal rules governing the discharge of an

Assistant United States Attorney. Consequently, even though it

seeks only equitable relief, count three of plaintiff's complaint

fails to state a viable Bivens claim and must be dismissed. See,

e.g.. Bivens, 403 U.S. at 400 (Harlan, J., concurring)("However

broad a federal court's discretion concerning equitable remedies,

it is absolutely clear . . . that in a nondiversity suit a

federal court's power to grant even equitable relief depends on

the presence of a substantive right derived from federal law.").

9

II. Count Two - Due Process Violation and CSRA Preemption.

In count two of her complaint, plaintiff asserts that the

circumstances surrounding her termination - that is, Garcia's

publication of false and defamatory statements about her,

combined with the denial of any hearing at which she might

attempt to refute those charges and clear her name - deprived her

of a constitutionally protected liberty interest. The Court of

Appeals for the First Circuit recently described the nature of

such a claim.

Even where an employee has no property interest in

continued employment, there are nonetheless

circumstances in which a public employer's decision to

discharge an employee may damage the employee's

reputation to such an extent that his liberty to seek

another job is significantly impaired. Although

neither the termination of employment nor statements

that might be characterized as defamatory are, by

themselves, sufficient to implicate the liberty

interest, where a public-sector employer creates and

disseminates a false and defamatory impression about an

employee in connection with the employee's discharge,

the Due Process Clause requires the employer to provide

the employee with an opportunity to dispute the

defamatory allegations, and the employer's failure to

do so is actionable under § 1983 [or Bivens 1 .

Burton v. Town of Littleton. 426 F.3d 9, 14-15 (1st Cir. 2005)

(citations and internal punctuation omitted).

10

Garcia moves to dismiss that count as well, asserting that

the claim is preempted by the CSRA. Alternatively, says Garcia,

even if the manner by which he terminated Marquez's employment

did violate her constitutionally protected rights, he is,

nevertheless, entitled to the protections afforded by qualified

immunity. Because count two of plaintiff's complaint fails to

state a viable cause of action and because, even if it did allege

each of the essential elements of a viable claim, Garcia would be

entitled to qualified immunity, the court need not determine

whether plaintiff's claim is preempted by the CSRA.

A. Count Two Fails to State a Claim.

A claim of the sort advanced by plaintiff in count two

involves five essential elements: (1) the alleged statements must

seriously damage the former employee's reputation, honor,

integrity, or standing in the community; (2) the former employee

must dispute the statements as false; (3) the stigmatizing

statements must have been intentionally published by the

government; (4) those stigmatizing statements must have been made

in conjunction with a change in the employee's legal status, such

as demotion or termination; and (5) the government must have

11

refused to honor the employee's request for an opportunity to

clear her name. See Woicik v. Mass. State Lottery Comm'n. 300

F.3d 92, 103 (1st Cir. 2002). Count two of plaintiff's complaint

fails to assert that the allegedly defamatory statements

contained in the dismissal letter were "published" to the degree

necessary to state a viable cause of action.

In her complaint, Marquez alleges only that Garcia was

responsible for sharing the contents of the allegedly defamatory

letter with the supervisors in the office. Although she suggests

that, following her departure, some of those supervisors

"proclaimed that plaintiff was dismissed because she was not

fulfilling the mission of the office and was affecting the

'morale' of the office by complaining too much," complaint at

para. 8.21, she does not allege that Garcia had any role in the

dissemination of such information.1

1 Parenthetically, the court notes that those statements

- that plaintiff was not fulfilling the mission of the office and

that she was adversely affecting morale by complaining too much -

are probably not sufficiently severe to "seriously damage [the

plaintiff's] standing and associations in [her] community and

place [her] good name, reputation, honor, or integrity at stake."

Woicik. 300 F.3d at 103 (quoting Board of Regents v. Roth. 408

U.S. 564, 573 (1972)).

12

Even construing the allegations in the complaint liberally,

at best plaintiff claims that Garcia shared the allegedly false

and defamatory contents of the letter with the supervisory staff

of the United States Attorney's Office (including some

supervisors who were not directly in Marquez's chain of command).

She does not, for example, allege that Garcia published those

statements "to members of the public or to prospective

employers," Silva v. Worden. 130 F.3d 26, 33 (1st Cir. 1997), nor

does she assert that the termination letter is a public document.

Simply stated, the conduct ascribed to Garcia does not

constitute the type of "publication" that gives rise to a viable

claim that plaintiff's constitutionally protected liberty

interest was violated. Unlike a common law defamation claim,

which requires only that the defamatory statements be "published"

to a third party, a constitutional liberty interest claim

requires that the defamatory statements be more broadly

circulated.

[I]n a common law defamation action, any publication of

false and defamatory material might be sufficient, but

in the context of the liberty interest protected by the

Fourteenth Amendment, plaintiff was required to show

broader publication.

13

Burton, 426 F.3d at 16 (quoting Ratliff v. City of Milwaukee, 795

F.2d 612, 626-27 (7th Cir. 1986)). See also Beitzell v. Jeffrey,

643 F.2d 870, 879 (1st Cir. 1981) (noting that ordinarily a

plaintiff is deprived of his or her liberty interest only "when

the [government] has made seriously defamatory charges in public,

for example, at public meetings or to the press.").

Garcia's decision to (allegedly) circulate the termination

letter to the supervisory staff members in the United States

Attorney's Office "is not the classic type of public

dissemination [the courts] have found actionable." Burton, 426

F.3d at 16. As was the case in Burton:

It would quite stretch the traditional analysis of what

is public to cover the present situation.

There is no reason to make that stretch. Doing so does

nothing to advance the objectives of the doctrine

established by [Supreme Court precedent]. That

doctrine aims to balance two objectives. It seeks to

protect employees from serious harm to their future

employment opportunities. In order for that harm to

exist, there must be sufficient dissemination to

actually create such a ri s k . The doctrine, however,

also seeks to avoid defining public dissemination so

broadly as to impair the normal functioning of

personnel operations in public agencies.

14

I d . (emphasis supplied). Absent an allegation that the allegedly

defamatory statements were made public by defendant or, at a

minimum, that they were disseminated (or even available) to other

employers, count two of plaintiff's complaint necessarily fails

to state a viable claim. Again, the court of appeals' opinion in

Burton is instructive:

[W]e have emphasized in our caselaw that public

dissemination is the sine qua non of a due process

claim based on reputational harm: The due process

requirement that an employee be afforded a hearing at

which he may seek to clear his name is triggered only

if the dismissal is based upon false and defamatory

charges that are disseminated by the employer and

stigmatize the employee so that the employee's freedom

to obtain alternative employment is significantly

impaired. We have thus rejected due process claims

based on alleged reputational harm where there was no

dissemination to the public or to prospective employers

of the details of plaintiff's termination.

Burton. 426 F.3d at 17 (citations and internal punctuation

omitted) (emphasis in original). See also Beitzell. 643 F.2d at

878 .

B. Qualified Immunity.

Even if count two of plaintiff's complaint adequately set

forth the essential elements of a viable claim against Garcia,

15

and assuming that claim is not preempted by the CSRA, and further

assuming that Garcia did violate her constitutionally protected

rights by not affording her a name-clearing hearing, Garcia would

still be entitled to the protections afforded by qualified

immunity. Qualified immunity protects "government officials

performing discretionary functions . . . from liability for civil

damages insofar as their conduct does not violate clearly

established statutory or constitutional rights." Harlow v.

Fitzgerald. 457 U.S. 800, 818 (1982).

In determining whether a defendant is entitled to qualified

immunity, the court must engage in a two-step inquiry.

The first prong is whether the constitutional right in

question was clearly established at the time of the

alleged violation. In the second prong, the court

employs an "objective reasonableness" test in

determining whether a reasonable, similarly situated

official would understand that the challenged conduct

violated the established right.

Napier v. Town of Windham. 187 F.3d 177, 183 (1st Cir. 1999)

(citation omitted). When making those inquiries, "the court

should ask whether the agents acted reasonably under settled law

in the circumstances, not whether another reasonable, or more

16

reasonable, interpretation of the events can be constructed . . .

years after the fact." Hunter v. Bryant. 502 U.S. 224, 228

(1991) .

At the first stage of that inquiry - determining whether the

constitutional right at issue was "clearly established" - courts

must "define the right asserted by the plaintiff at an

appropriate level of generality." Bradv v. Dill, 187 F.3d 104,

115 (1st Cir. 1999). To qualify as a clearly established right,

"the law must have defined the right in a quite specific manner,

and . . . the announcement of the rule establishing the right

must have been unambiguous and widespread, such that the

unlawfulness of particular conduct will be apparent ex ante to

reasonable public officials." I d ., at 116. See also Saucier v.

Katz, 533 U.S. 194, 201 (2001) ("[I]f a violation could be made

out on a favorable view of the parties' submissions, the next,

sequential step is to ask whether the right was clearly

established. This inquiry, it is vital to note, must be

undertaken in light of the specific context of the case, not as a

broad general proposition.") (emphasis supplied); Anderson v.

Creighton. 483 U.S. 635, 640 (1987) ("[T]he right the official is

17

alleged to have violated must have been ■'clearly established' in

a more particularized, and hence more relevant, sense: The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right."). As the Supreme Court recently observed:

The concern of the immunity inquiry is to acknowledge

that reasonable mistakes can be made as to the legal

constraints on particular [governmental] conduct. It

is sometimes difficult for an officer to determine how

the relevant legal doctrine, [here procedural due

process], will apply to the factual situation the

officer confronts. An officer might correctly perceive

all of the relevant facts but have a mistaken

understanding as to whether a particular [action] is

legal in those circumstances. If the officer's mistake

as to what the law requires is reasonable, however, the

officer is entitled to the immunity defense.

Saucier, 533 U.S. at 205. Ultimately, then, the doctrine of

qualified immunity "gives ample room for mistaken judgments by

protecting all but the plainly incompetent or those who knowingly

violate the law." Hunter, 502 U.S. at 229 (citation and internal

quotation marks omitted).

One question presented by this case is, then, the level of

specificity with which it is appropriate to define the

constitutional right Marquez claims was violated. All can agree

18

that when Garcia terminated plaintiff's employment it was clearly

established that the Due Process Clause requires a public

employer to afford its employees an opportunity to dispute any

defamatory allegations that have been publically disseminated in

connection with their discharge. However, "[a] reasonable

official's awareness of the existence of an abstract right, such

as a right to [a name-clearing hearing under certain

circumstances], does not equate to knowledge that his conduct

infringes the right." Smith v. Mattox. 127 F.3d 1416, 1419 (11th

Cir. 1997) (emphasis in original). If the constitutional right

Marquez claims was infringed must necessarily be defined more

precisely than she has done, it seems plain that such a right was

not "clearly established" at the time of her discharge.

A public sector employee is entitled to a name-clearing

hearing only under certain limited circumstances. To demonstrate

entitlement to such a hearing, the employee must, among other

things, show that "stigmatizing statements or charges [were]

intentionally publicized by the government." Woicik. 300 F.3d at

103. But, says Garcia, the circumstances under which such

statements or charges will be deemed to have been "publicized"

19

are far from clearly established and, therefore, a reasonable

public official in his position would not have understood that

his conduct violated Marquez's constitutionally protected liberty

interest. The court agrees. See, e.g.. Bishop v. Wood. 426 U.S.

341, 348 (1976) (noting that the reasons for the plaintiff's

termination were communicated orally to him in private and,

because that communication "was not made public, it cannot

properly form the basis for a claim that [plaintiff's] interest

in his good name, reputation, honor, or integrity was thereby

impaired."); Beitzell, 643 F.2d at 879 (absent evidence that

rumors of plaintiff's drinking habits "became public, that they

were made available to other employers or that they interfered

with his ability to obtain other employment," plaintiff's liberty

interest was not violated).

In support of his position, Garcia points out that his

alleged conduct in this case, even if true, would not satisfy

even the far more liberal interpretation of "publication"

applicable in a common law defamation claim. Under Puerto Rico

law, intra-office communications are subject to a qualified or

conditional privilege. Consequently, liability for defamation

20

attaches only when false and defamatory intra-office

communications are circulated with malice or when they are

published to outside third parties. See Pierluissi v.

Coopervision Pharms.. Inc.. 694 F. Supp. 1038, 140-42 (D.P.R.

1988). Here, there is no claim that Garcia acted with malice or

that the termination letter was made available to third parties,

outside the United States Attorney's Office. Under the law of

Puerto Rico (and several other states), then, Garcia's alleged

conduct would not even constitute actionable defamation. See

generally Ortiz Alqarin v. Federal Express Corp.. 56 F. Supp. 2d

172, 175 (D.P.R. 1999) ("Among the privileged communications so

protected are those from an employer to managers or supervisors

of a discharged employee; to prospective employers informing the

reasons for the discharge of an employee; statements made in an

employee's performance evaluation; and providing references of an

employee to potential employers.").

Given the fact that Garcia's alleged conduct in this case

would not constitute common law defamation (because the allegedly

false and defamatory statements were not "published" or

"publicized" outside of the office), and given the lack of any

21

federal precedent even suggesting that the publication element of

Marquez's cause of action can be satisfied by intra-office

communications between an employer and supervisory staff members,

the court cannot conclude that the rights asserted by Marquez

were, at the time of her discharge, clearly established. While

the rights asserted by plaintiff in this case can be stated with

relative ease in broad and general terms, the circumstances under

which those rights would be violated do not lend themselves to

easy summary. This is particularly true with regard to the

circumstances under which the government may be found to have

made allegedly defamatory statements public.

Marquez points to no authority in her legal memorandum that

undermines this conclusion. That is, rather than focus on cases

discussing the specific circumstances under which courts have

concluded that "publication" was sufficient to implicate the

employee's liberty interest, she focuses instead on precedent

that speaks only generally to the fact that a government employee

can be deprived on his or her liberty interest when defamatory

statements are published by his or her employer. That focus is,

however, far too wide and generalized. As the Supreme Court has

22

held, the inquiry into whether a constitutional right is clearly

established "must be undertaken in light of the specific context

of the case, not as a broad general proposition." Saucier v.

Katz, 533 U.S. at 201.

Conclusion

Count three of plaintiff's complaint fails to state a viable

cause of action under Bivens. See generally Fed. R. Civ. P.

12(b)(6). Even though Marquez has informally amended the count,

notifying the court that she seeks only declaratory relief, she

has failed to identify any federally protected constitutional

right that was violated by Garcia's alleged failure to follow

internal personnel policies in connection with plaintiff's

discharge.

Count two of plaintiff's complaint also fails to state a

viable cause of action. If plaintiff had, for example,

justifiably alleged that Garcia published the allegedly

defamatory comments "to the public or to prospective employers,"

Silva v. Worden. 130 F.3d 26, 33 (1st Cir. 1997), she would state

a viable cause of action. Her complaint, however, merely alleges

23

that Garcia published those comments to the supervisory personnel

within the United States Attorney's Office. While it might be

debatable whether that conduct is sufficient to support a common

law defamation claim (if inter-office communications were not

privileged under state law), such limited publication is, as a

matter of law, insufficient to form the basis of a viable due

process/liberty deprivation claim. See, e.g.. Burton, supra.

Moreover, even if that limited type of publication were

sufficient (and Garcia did violate Marquez's constitutionally

protected liberty interests by allegedly sharing defamatory

comments with supervisory staff members), Garcia would still be

entitled to the protections afforded by qualified immunity.

Among other things, Marquez's inability to point to any precedent

supporting her view that the limited publication she describes is

sufficient to state a viable claim demonstrates that the law in

this area is not well settled. Consequently, the court cannot

conclude that, when Marquez was discharged, it was "clearly

established" that a government employer "publishes" allegedly

defamatory remarks when he or she does no more than share them in

the context of an agency meeting involving supervisory staff.

24

Even crediting all of plaintiff's factual allegations as

true, it is clear that a reasonable federal employer, presented

with the same facts and circumstances, would not have realized

that the decision to provide other members of the supervisory

staff with copies of Marquez's dismissal letter, without

affording her a name-clearing hearing, would constitute a

violation of her constitutionally protected liberty interest.

Garcia is, therefore, entitled to qualified immunity. See

generally Hunter, 502 U.S. at 229.

For the foregoing reasons, defendant Humberto Garcia's

motion to dismiss counts two and three of plaintiff's complaint

(document no 4) is granted.

SO ORDERED.

Sceven J/ McAuliffe

Chief Judge

December 19, 2005

cc: Judith Berkan, Esq.

Mary Jo Mendez-Vilella, Esq.

Carole M. Fernandez, Esq.

Frances Rios De Moran, Clerk, USDC, PR

Nivea Ocasio, USDC, PR

Olga Vega, USDC, PR

25