Sepulveda-Carrero v. Rullan, No. 05-2808 (1st Cir. 2007)

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Not for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit No. 05-2808 JAIME NOEL SEPÃ LVEDA-CARRERO, Plaintiff, Appellant, v. JOHN V. RULLÃ N, 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. PÃ©rez-GimÃ©nez, U.S. District Judge] Before Boudin, Chief Judge, Lynch and Howard, Circuit Judges. Francisco R. GonzÃ¡lez-Colon and F.R. Gonzalez Law Office, on brief, for appellant. Salvador J. Antonetti-Stutts, Solicitor General, Mariana NegrÃ³n-Vargas, Deputy Solicitor General, Maite D. OronozRodrÃguez, Deputy Solicitor General and Leticia Casalduc-Rabell, Assistant Solicitor General, on brief, for appellees. July 13, 2007 Per Curiam. Jaime Noel SepÃºlveda-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. RullÃ¡n in his individual capacity. The award followed a finding that SepÃºlveda's political discrimination suit against RullÃ¡n was frivolous. We affirm. In 2001, SepÃºlveda sued the Commonwealth of Puerto Rico and RullÃ¡n, in his official and personal capacities. SepÃºlveda alleged that unlawful political discrimination prompted his removal from the positions of Regional Medical Director, Aguadilla SubRegion ( 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 RullÃ¡n, the district court dismissed SepÃºlveda's claims. Later, the court granted RullÃ¡n 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. judgment insofar as the But the court denied RullÃ¡n summary 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. SepÃºlveda s claim concerning the Sub-Regional Director position went to trial. At the close of SepÃºlveda s case, RullÃ¡n -2- moved for judgment as a matter of law. See Fed. R. Civ. P. 50. The court granted RullÃ¡n s motion, concluding that there was no evidence that RullÃ¡n knew of SepÃºlveda s political affiliation before firing him. in attorney s The court subsequently awarded RullÃ¡n $16,235 fees on the ground that SepÃºlveda s claim was frivolous. SepÃºlveda appeals from the fee ruling. We review an appeal of an award of attorney s fees for an abuse of discretion. (1st Cir. 1991). See Foley v. City of Lowell, 948 F.2d 10, 18 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 at facie frivolous. case the time she files a complaint may be 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 affiliation. action was aware of the plaintiff's political See Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 431 (1st Cir. 2005). SepÃºlveda makes district court s ruling. two arguments for overturning the First, he contends that the district -3- court abused its discretion in awarding attorney s fees because he survived RullÃ¡n s Alternatively, he dismissal contends and that a summary judgment motions. serious medical condition affected his ability to testify at trial and prevented him from fully articulating the evidence supporting his claim. That RullÃ¡n 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). SepÃºlveda s survival of the motion to dismiss means only that he had sufficiently pleaded at least one viable cause of action, evidentiary support for his position. not that he had any At summary judgment, RullÃ¡n 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 RullÃ¡n did not know SepÃºlveda s party affiliation before firing him.1 Thus, that SepÃºlveda 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. SepÃºlveda 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. 1 SepÃºlveda did SepÃºlveda has not argued that the fee award was improper because of RullÃ¡n's failure to move for summary judgment on this basis. -4- 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. -5-

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