# Petition — Gomez v. Toledo

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2100%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 635

## Text

~,

- amaleann
RECEIVED

mova 19/9

OFFICE OF THE CLERK
SUPREME couat, U.S.

IN THE
SUPREME COURT
OF TE&E

UB ZTTEOD ETATES

OCTOBER TERM, 1979

“» 9-560]

‘CARLOS RIVERA GOMEZ
: Petitioner
Vv.
ASTOL CALERO TOLEDO
Respondent.
PETITION OF CARLOS RIVERA GOMEZ FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT AND APPENDIX

MICHAEL AVERY
Two Park Square
Boston, Massachusetts 02116

DAVID RUDOVSKY
1425 Walnut Street
Philadelphia, Pennsylvania 19102

JOSE L. RODRIGUEZ MANGUAL
Condominio Le Mans

Avenue Munoz Rivera 602

Hato Rey, Puerto Rico 00918

JAMES A. TORO

P.O. Box 3952

Old San Juan Station

San Juan, Puerto Rico 00904

TABLE OF CONTENTS

Opinions Below
Jurisdiction
Question Presented for Review

Constitutional and Statutory Provisions
Invoived

Statement of the Case
Reasons for Granting the Writ
I. The Decision of the Court of
Appeals Below Creates a Conflict

In the Decisions of the Circuit
‘ Courts of Appeals.

II. The Decision of the Court of
Appeals Below Is In Conflict With
the Applicable Decisions of the
Supreme Court

Conclusion

Appendix
Opinion of District Court
Judgment of Distriet Court
Opinion of Court of Appeals

Complaint

16

22

A-1
A-3
A-4
A-8

Case

Apton v. Wilson, 506 F.2d 83 (D.C. Cir. 1974)

Arnett v. Kennedy, 416 U.S. ane Cea) SC Sk

Bishop v. Wood, 426 U.S. 341 on , ee ee a °

Bivens v. Six Unknown Named A ents,
456 F.2d 1339 (24 Cir. 1972) eh a Ae,

Board of Regents Vv. Roth, 408 U.S. 564 (1972)

Boscarino yv. Nelson, 518 F.2q 879
(7th Cir. 1975) . -s . . a . 7 . . — -

Brubaker y. King, 505 F.2a 534 (7th Cir. 1974)

Bryan v. Jones, 530 F.2a 1210 (5th ciz., en
banc, 1976), cert. den. 429 U.S. 865
(1976) . 7 . . . . — J . . . a . - . .

Butz v. Economou, 438 U.S. 478 oo. a_i ‘

Cruz v. Beto, 603 F.2d 1178 (5th Cir. a

Dellums v. Powell, 566 F.2q4 167 (D.c. Cir.
1977), cert. den. 438 U.S. 916 cave)...

Donovan v. Reinbold, 433 F.2d 738 (9th Cir.
1970) — _ . * . . a — . — + J * 7 - . .

Gilker v. Baker, 576 F.2d 245 (9th Cir. 1978)

Glasson v. City of Louisville, 518 F.24 899
(6th Cir. 1975), cert. den. 423 U.S.
930 (1975) x @¢ 7 . . . . — . 7 . - . .

Jones v. Perrigan, 459 F.2d 81 (6th Cir. 1972)

Landrum v. Moats, 576 F.24 1320 (8th cir.
1978), cert. den. 439 U.S. 912 (1978) .

Martin v. Duffie, 463 F.24 464 (10th
Cir. 1972) a > . - — . a. . . - oo J

ll, 15

13

Case Page

McCray v. Burrell, 516 F.2d 357 (4th Cir.,
en banc, 1975) cert. granted, 423 U.S.
923, cert. dism. as improvidently granted,
Soe, eee See NeOeeL, b oS 6 ¢ oe ees

Monroe v. Pape, 365 U.S. 167 (1961). ......

O'Connor v. Donaldson, 422 U.S. 563 CASTS « ‘ss

Perry v. Sindermann, 408 U.S. 564 (1972) ...

Pickering v. Board of Education, 391 U.S.
563 (1968) o . a . . > - ° . . . ° o . +

Pierson v. Ray, 386 U.S. 547 (1967) .....

Procunier v. Navarette, 434 U.S. 555 (1978). .

Reimer v. Short, 578 F.2d 621 (5th Cir.
1978, cert. den. Pies - 99 Sxet.
Be en yy ere ae © a

Safeguard Mutual Insurance Co. v. Milier,

Sta Tea tan (Oe Gabe APFOF 6 8 6 8 eS

Scheuer v. Rhodes, 416 U.S. 232 (1974) ....

Skehan v. Board of Trustees of Bloomsburg
State College, 538 F.2d 53 (3d Cir., en
banc, 1976), cert. den. 429 U.S. 979
NE aA NG wd ks) er Ee eg

Thompson v. Burke, 566 F.2d 231 (3d Cir. 1977)

Tritsis v. Backer, 501 F.2d 1021 (7th Cir.
1974) a .* . . * * o . o . . . . : . . .

Wood v. Strickland, 420 U.S. 308 (1975) ...

Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir.
1975), cert. den. 425 U.S. 944 (1976) ..

Statutes and Rules

SNCs BONO Sky 5 aru «a 6 hea es
42 U.8.C, §1983 7 * . 62 ££. Ss 0 @. ae .

Federal Rules of Civil Procedure, Pule 8 (c)

10
16

8
20

20
17
19, 20

12, 18

12
8, 10, 12, 19, 20

14

4

4, 6-10, 14,
16, 17, 18, 21

21

~ = p —-——

LO LE a LE Se ee ae ee ee ee

in effect, that he had acted in good faith:

Where, as here, a public official is
being sued for action taken in his
official capacity, it is assumed that

he wears a cloak of qualified immunity
and the complaint must allege and specify
facts that show bad faith or state why

in this particular case the cloak was
shed. 456 F.2d, at 1020.

This proposition is in direct conflict with the decision

of the Supreme Court in Scheuer v. Rhodes, 416 U.S.

232 (1974), in which the Court held there is no

automatic assumption that defendant officials in §1983
actions have acted in good faith. There, the Court
reversed the dismissal of a §1983 case on the pleadings,
specifically holding that the good faith of the defendant
officials could not be taken for granted:

‘In dismissing the complaints, the District
Court and the Court of Appeals erroneously
accepted as a fact the good faith of the
Governor . . . There was no evidence before
the courts from which such a finding of
good faith could be properly made and, in
the circumstances of these cases, such a
dispositive conclusion could not be
judicially noticed. Id., at 250-251.

The decision of the Court of Appeals below is in flat

contradiction to this language from Scheuer v. Rhodes.

The nature of the qualified immunity defense was

» 36 «

elaborated upon by the Court in Wood v. Strickland,

420 U.S. 308 (1975). That case held that, although
malice may be a sufficient basis for liability ina
case in which the constitutional law applicebis to the
conduct complained of was unclear, where the applicable
constitutional principles were settled a plaintiff need
not show malice on the part of an official defendant to prove
a claim. Thus the Court reversed the directed verdicts
that had been granted by the district court on the
ground of immunity, despite the district court's
conclusion that there was no evidence of malice.

The two most recent cases by the Court on the
question of qualified immunity specifically denominate

the matter as one of defense. In Procunier v. Navarette,

434 U.S. 555 (1978), the Court affirmed the granting

of a summary judgment in a case where the defendants

had raised the defense by motions supported with affidavits.
Both the majority opinion of the Court, id., at 566

and the dissenting opinion of Justice Stevens, id., at

569 ,refer to qualified immunity as a defense, with Justice

~ 19 «

Stevens labelling it as an "affirmative defense. "4

Finally, in Butz v. Economou, 438 U.S. 478 (1978),

the Court, in the context of a lengthy historical analysis
of the immunity defense, specifically explains that
qualified immunity has historically developed as a

judicially created defense to the statutory cause of

4 In Procunier the Court was considering only the negligence
count of the complaint. The allegation of negligence, and
hence a lack of malice, was insufficient to overcome the
defense raised by the officials in this case because the
constitutional right in issue was not clear at the time the
alleged acts took place. Thus Procunier is an application
of only one branch of Wood V. Strickland, supra. In the
present case, the constitutional right was clear and thus
proof of malice is unnecessary. Plaintiff alleged a
specific statute which gave him the right to a pre-termination
hearing. Thus, local law had clearly given him enough of an
entitlement to his continued employment to implicate
due process protections. Board of Regents v. Roth, 408
U.S. 564 (1972); Perry v. Sindermann, 408 U.S. 564
(1972); Arnett v. Kennedy, 416 U.S. 134 (1974); Goss
v. Lopez, 419 U.S. 565, 573 (1975). There is nothing
in this record to suggest that Puerto Rican law in any
way contravened the clear implication of the statute
cited in plaintiff's complaint. Cf.Bishop v. Wood, 426 U.S.
341 (1976). In addition, although the petitioner did not
specifically mention the First Amendment in his complaint,
the facts pleaded establish that the discharge was in
retaliation for his public testimony against other
police officers and thus in violation of his First
Amendment rights. This was well settled law by the time
of the events complained of in this case. Pickering v.
Board of Education, 391 U.S. 563 (1968).

=20-

action under §1983:

It has been observed more than once that
the law of privilege as a defense to
damage actions against officers of
Government has ‘in large part been of
judicial making.'. . .Section 1 of the
.Civil Rights Act of 1871--the predecessor
of §1983--said nothing about immunity

for state officials. It mandated

that any person who under color of

state law subjected another to the
deprivation of his constitutional rights
would be liable to the injured party in
an action at law. This Court nevertheless
ascertained and announced what it deemed
to be the appropriate type of immunity
from §1983 liability in a variety of
contexts. Id., at 502-503.

These cases make abundantly clear that qualified
immunity is a matter of defense. If there is any
obligation to mention it in the pleadings at all, it
is on the defendant under Rule 8(c) of the Federal
Rules of Civil Procedure. Thus this Court should grant
ceritorari to reverse the decision of the First Circuit
and remove this substantial and improper pleading hurdle

from plaintiffs in that Circuit.

» 2] «

CONCLUSION

For the foregoing reasons, it is respectfully requested
that this Honorable Court issue a writ of certiorari to
review the judgment of the United States Court of Appeals |
for the First Circuit. |

Respectfully submitted,

Michael Avery

Two Park Square

Boston, Massachusetts 02116
(617) 426-2020

David Rudovsky
1425 Walnut Street
Philadelphia, Pennsylvania 19102

Jose L. Rodriguez Mangual
Condominio Le Mans

Avenue Munoz Rivera 602
Hato Rey, Puerto Rico 00918

een eens Aes meee

;

James A. Toro

P.O. Box 3952

Old San Juan Station

San Juan, Puerto Rico 00904

APPENDIX

THE DOCUMENTS LISTED AS APPENDICES
TO THIS PETITION HAVE BEEN REPRINTED
AND APPEAR IN THE APPENDIX VOLUME

ITSELF, i

« 22 «

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2100%3A1. Public record. Not legal advice.