STATE v. REID

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Docket Number

(AC 29933)

Attorney(S)

Elizabeth M. Inkster, senior assistant public defender, with whom was Peter G. Billings, deputy assistant public defender, for the appellant (defendant). Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee (state).

Acts

The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights

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STATE OF CONNECTICUT v. DOUGLAS REID

OPINION AND ORDER

SALVADOR CASELLAS, District Judge

Pending before the Court is Plaintiff Ruth Lezcano-Bonilla ("Plaintiff"), Ralph Rodriguez, and the Rodriguez-Lezcano Conjugal Partnership's motion for partial summary judgment against Defendant Felix Matos-Rodríguez's ("Defendant"), and request for entry of default judgment against Co-defendants Wigberto Rodríguez-Martinez ("Rodríguez"), and Lourdes Luna ("Luna") (collectively "Co-defendants") (Dockets ## 39 40). Defendant Felix Matos-Rodríguez filed an opposition (Docket # 88), and a cross-motion for summary judgment against Plaintiffs (Dockets ## 43 44), which Plaintiffs duly opposed (Docket # 86). After carefully considering the filings, the evidence on the record, and the applicable law, Defendant's motion for summary judgment is GRANTED, and Plaintiffs' motion for partial summary judgment and default judgment is DENIED.

Factual and Procedural Background

On May 29, 2007, Plaintiffs filed suit against Defendant, and Co-defendants Wigberto Rodríguez-Martinez ("Rodríguez"), and Lourdes Luna ("Luna") (collectively "Co-defendants"), seeking damages under 42 U.S.C. § 1983, for alleged due process violations under the Fourteenth Amendment to the U.S. Constitution, U.S. Const. amend. XIV. Plaintiff also seeks relief as provided in Law No. 115 of December 20, 1991, PR Laws Ann. tit. 29 § 194 et seq., and Article 1802 of the Civil Code of Puerto Rico, PR Laws Ann. tit. 31 § 5141. Plaintiff contends that she was summarily suspended by Defendant from her position as a social worker in the Department of Family of the Commonwealth of Puerto Rico's ("the agency") Administration of Family and Children ("ADFAN") without affording her a pre-termination hearing. Pursuant to the complaint, her suspension was based upon a news report issued by a newscast radio station alleging that Plaintiff had requested $5,000 from Co-defendants, registered foster parents with the agency, in exchange for allowing them to keep custody of a minor under their care.

On June 1, 2009, Plaintiff moved for summary judgment against Defendant, and entry of default and default judgment against Co-defendants. Shortly thereafter, Defendant filed his cross-motion for summary judgment. On August 26, 2009, default was entered against Co-defendants. Docket # 49. However, Plaintiff's request for default judgment as to Co-defendants was denied as premature, since the claims against Defendant were still pending before this Court.

Pursuant to the retirement of Judge Raymond L. Acosta, the present case was reassigned to the Undersigned. Docket # 63. After some procedural hurdles, the parties filed their respective oppositions to the pending motions for summary judgment.

Applicable Law and Analysis

R. FED. CIV. P. 56

The Court may grant a motion for summary judgment when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1^st Cir. 2005). In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1^st Cir. 1994). At this stage, the court examines the record in the "light most favorable to the nonmovant," and indulges all "reasonable inferences in that party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1^st Cir. 1994).

Once the movant has averred that there is an absence of evidence to support the nonmoving party's case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1^st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be resolved in favor of either party and, therefore, requires the finder of fact to make `a choice between the parties' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 112, 116 (1^st Cir. 2005) (citing Garside, 895 F.2d at 48 (1^st Cir. 1990)); see also SEC v. Ficken, 546 F.3d 45, 51 (1^st Cir. 2008).

In order to defeat summary judgment, the opposing party may not rest on conclusory allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 407 F.3d 11, 15 (1^st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1^st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1^st Cir. 1997). Once the party moving for summary judgment has established an absence of material facts in dispute, and that he or she is entitled to judgment as a matter of law, the "party opposing summary judgment must present definite, competent evidence to rebut the motion." Méndez-Laboy v. Abbot Lab., 424 F.3d 35, 37 (1^st Cir. 2005) (citing Maldonado-Denis v. Castillo Rodríguez, 23 F.3d 576, 581 (1^st Cir. 1994). "The non-movant must `produce specific facts, in suitable evidentiary form' sufficient to limn a trial-worthy issue. . . . Failure to do so allows the summary judgment engine to operate at full throttle." Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1^st Cir. 1991) (warning that "the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence."); Medina-Muñoz, 896 F.2d at 8 (citing Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1^st Cir. 1989)) (holding that "[t]he evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve.").

Because the instant motions are for summary judgment, the parties must comply with the requirements of Local Rule 56, and file a separate, short and concise statement of facts, set forth in numbered paragraphs, and supported by record citations as required in Local Rule 56(e). See Local Rule 56(b). In turn, when confronted with a motion for summary judgment, the opposing party must:

[s]ubmit with its opposition a separate, short, and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts supporting the motion for summary judgment by reference to each numbered paragraph of the moving party's statement of material facts. Unless a fact is admitted, the opposing statement shall support each denial or qualification by a record citation as required by this rule.

Local Rule 56(c). If the opposing party fails to do so, "summary judgment should, if appropriate, be entered." Rule 56(e)(2).

Local Rule 56(e) provides that "a court may disregard any statement of fact not supported by a specific record citation to record material properly considered on summary judgment." Moreover, "the court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statements of facts." Id. These rules "are meant to ease the district court's operose task and to prevent parties from unfairly shifting the burdens of litigation to the court." Cabán-Hernández v. Phillip Morris USA, Inc., 486 F.3d 1, 8 (1^st Cir. 2007). The First Circuit has repeatedly held that when the parties ignore the Local Rules, they do so at their peril. See Ruiz-Rivera v. Riley, 209 F. 3d 24, 28 (1^st Cir. 2000).

Applicable Law and Analysis

Before setting forth the facts found by this Court to be undisputed and relevant to the matter at hand, we must first address several compliance issues presented to the Court when reviewing Defendant's filings. On May 26, 2010, this Court ordered the parties to re-file their respective oppositions in compliance with Rule and Local Rule 56. Docket # 80-1. Accordingly, both parties re-filed their responses to the opposing party's statement of facts.

Notwithstanding the above, at first glance, this Court notes that Defendant failed to provide a single record citation when opposing Plaintiff's Statement of Uncontested Facts ("Plaintiff's SUF") (Docket # 40). See Docket # 88. Moreover, in some cases, Defendant did not deny Plaintiff's assertions of fact paragraph by paragraph as required by Local Rule 56(c). Instead, Defendant denies some of Plaintiff's proposed facts by stating "Plaintiffs proposed facts nos. 31-35 are contested." Docket # 88, p. 6. As previously stated in our order issued on May 26, 2010, this method fails to satisfy Local Rule 56's clear mandate that the opposition to a motion for summary judgment "shall admit, deny or qualify the facts by reference to each numbered paragraph." See also Cabán-Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1^st Cir. 2007).

Similarly, Defendant's cross-motion for summary judgment, and accompanying Statement of Uncontested Facts ("Defendant's SUF"), do not comport with Local Rule 56. As Plaintiff correctly points out, Defendant failed to submit an affidavit or unsworn statement with his motion for summary judgment to authenticate his exhibits. See Docket # 44-1. This alone suffices to disallow some of Defendant's exhibits insofar as the First Circuit has consistently held that "[t]o be admissible at the summary judgment stage, `documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e).'" Carmona v. Toledo, 215 F.3d 124, 131 (1^st Cir. 2000) (citing Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993)). More specifically, in Carmona, the Court refused to give credence to "a purported copy of the investigation file — unsworn, uncertified, and, at first, untranslated — to the motion." Id. As a result, Defendant's proposed facts 13, 15, 20, 21 and 25 will not be considered when ruling on the instant motion. Lastly, in a section following his SUF, Defendant provides responses to Plaintiff's SUF, which is disallowed by Local Rule 56. Thus this Court will disregard pages 8 to 11 of Defendant's SUF. Notwithstanding the above, Defendant's proposed facts 1, 9-12 and 16 were admitted by Plaintiff, therefore, they are uncontested for purposes of the present motion.

It is well settled that "[d]ocuments supporting or opposing summary judgment must be properly authenticated." Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) (citing FED.R.CIV.P. Rule 56(e)). "The failure to authenticate a document properly precludes its consideration on a motion for summary judgment."Robinson v. Bodoff, 355 F.Supp.2d 578, 582 (D.Mass. 2005) (striking all exhibits that were submitted without affidavits). To be admissible at the summary judgment stage, documents must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e). 10A WRIGHT, MILLER KANE, FEDERAL PRACTICE PROCEDURE § 2722 (3d ed. 1998).

Exhibits B, H, I, J, K, and L are not properly authenticated. However, Plaintiff refers to the summary suspension at Exhibit H, and as such, it will be considered when ruling on the present motion. Exhibits D, M and N were authenticated via deposition statements. See Docket # 44-2, pp. 18-24, 32-33, 37 and 144.

Although Defendant failed to properly support proposed facts 14, 16-19, 22-24, 26 and 27, some of them were partially admitted by Plaintiff or were deemed uncontested in the Joint Proposed Pretrial Order at Docket # 83.

Defendant opposed Plaintiff's SUF at Docket # 88. Thus this portion of Defendant's SUF is unnecessary. Even so, they fail to correlate their responses to Plaintiff's paragraphed facts.

Considering the foregoing, the relevant uncontested facts are as follows. Plaintiff is a career employee within the agency, employed as a Social Worker assigned to ADFAN, and has worked for the agency since 1999. Plaintiff's SUF ¶ 1; Defendant's SUF ¶ 1; Joint Proposed Pretrial Order ("PTO") at Docket # 83, p. 35-36. On August 14, 2006, the case involving minor JMG was formally assigned to Plaintiff for the search of an adequate "pre-adoptive" home for the minor. Defendant's SUF ¶ 9. On or around August 16 and 17, 2006, Plaintiff identified a family to place minor JMG. Defendant's SUF ¶ 10. In order to re-locate the minor, Plaintiff had to first meet with Co-defendants, who maintained a foster care home that served children under the care of the agency, to inform them of the removal of the minor from their house. Id. at 10 12. On August 21, 2006, Plaintiff spoke to Co-defendants via telephone on two separate occasions. Defendant's SUF ¶ 11. On August 23, 2006, Plaintiff visited Co-defendants' household regarding the relocation process for minor JMG and to inform them that the minor was going to be removed the next day. Defendant's SUF ¶ 12; Plaintiff's SUF ¶ at 2 3; PTO at p. 36. On even date, Rodríguez threatened Plaintiff with going to the press. Plaintiff's SUF ¶ 4.

Since Plaintiff was assigned to the case in controversy on August 14, 2006, this Court finds that Defendant's proposed facts 2-7 are irrelevant for purposes of the present motion.

As of the date of Plaintiff's visit, Rodríguez had not commenced any adoption petition regarding the minor that was going to be removed. Id. at 5. Plaintiff never requested money from Rodríguez. Id. at 6. By the time Plaintiff returned to the agency, Rodríguez had called a radio news program and had indicated that Plaintiff attempted to extort $5,000.00 from him, in exchange for leaving the minor under his care. Id. at 7; Defendant's SUF ¶ 14; PTO at p. 36. The allegations made by Rodríguez in the radio where very damaging to Plaintiff's image and reputation. Plaintiff's SUF ¶ 8.

Defendant was the agency's Secretary at the time, appointed two months prior to this incident. Id. at 9 10; PTO at p. 36. He had familiarized himself with the disciplinary proceedings in the agency only during those two months. Plaintiff's SUF ¶ 11; PTO at p. 36. Defendant was informed about the allegations made through the radio, i.e., that a social worker from the agency asked a client who was undergoing an adoption process for $5,000.00 in order to continue with the adoption process. Plaintiff's SUF ¶ 12; PTO at p. 36. Defendant sought to conduct an investigation in order to protect the good name of the agency. Plaintiff's SUF ¶ 14; PTO at p. 36. Accordingly, he asked ADFAN administrator, Glendaliz Correa ("Correa"), about the allegations made by Rodríguez on the radio. Plaintiff's SUF ¶ 13; PTO at p. 36. Correa then issued a request to Defendant to initiate an Administrative Investigation regarding the allegations against Plaintiff. Defendant's SUF ¶ 18.

As part of the Administrative Investigation, Correa communicated with Plaintiff's direct supervisor, and requested her personnel file, whereupon she learned that Plaintiff had been previously charged of similar conduct in 2001 in a separate adoption case. Defendant's SUF ¶ 16; PTO at p. 36. In the prior incident, Plaintiff was suspended without pay for a period of 30 days after admitting that she requested $300 from a potential adoption parent. Defendant's SUF ¶ 17. After reviewing Plaintiff's personnel file, Correa issued a report informing Defendant that Plaintiff had been previously sanctioned for similar conduct. Plaintiff's SUF ¶ 15 16; PTO at p. 36. Correa then asked for a full inquiry into Rodríguez's allegations about Plaintiff's actions. Plaintiff's SUF ¶ 17; PTO at p. 36. Correa did not review statements made by Plaintiff prior to issuing her memorandum to Defendant, nor did she review the adoption records of the minor, or the foster home records from the household run by Co-defendants. Plaintiff's SUF ¶ 18 20; PTO at p. 36. She described Plaintiff's actions as depicted by Rodríguez in the radio. Id. at 19.

Plaintiff partially admits Defendant's SUF ¶ 17. However, there are conflicting deposition testimonies as to whether Plaintiff requested the money as a loan or a bribe. Since the Court may not weigh the evidence at this juncture, this issue remains in controversy. Casas Office, 42 F.3d 668. Notwithstanding, there is no controversy as to the fact that Plaintiff was suspended without pay for a period of 30 days for requesting $300 from a potential adoptive parent.

On August 24, 2006, Plaintiff received a summary suspension notice from Defendant, which would remain in effect until the investigation concluded. Plaintiff's SUF ¶ 21 and 36; PTO at p. 36-37. Thus Plaintiff was summarily suspended with pay while the agency investigated the allegations against her. Defendant's SUF ¶ 19; Plaintiff's SUF ¶ 36; PTO at p. 37. In reaching his decision to suspend Plaintiff, Defendant considered the following facts and concerns: that Plaintiff had previously incurred in similar conduct, the potential smearing of the agency's trust and good standing, that Rodríguez alleged that Plaintiff attempted to bribe him, and that Plaintiff dealt directly with children and situations concerning family relationships. Plaintiff's SUF ¶ 22; PTO at p. 36-37. Defendant validated Rodríguez's statements during the investigation conducted after the summary suspension. Plaintiff's SUF ¶ 25. However, as of August 24, 2006, Defendant did not have a sworn statement from Rodríguez nor reviewed his statements; the only evidence that Defendant had were the statements made by Rodríguez to the radio station. Id. at 26, 27 33. He did not review the adoption records of the minor, or the foster home records from the household run by Co-defendants, nor did he assess the truthfulness, accuracy, or reliability of the statements made by Rodríguez on air, or possess documentation showing that Plaintiff attempted to bribe Rodríguez. Id. at 30-32. Defendant does not remember whether by August 24, 2006, he had reached the conclusion that Plaintiff attempted to bribe Rodríguez. Id. at 35. He only knew that a confrontation between Plaintiff and Rodríguez took place. Id. at 34.

The procedure in this type of situation within the agency is as follows: the legal division conducts an investigation, holds the proceedings, including all parties involved who may bring clarity to the situation and provide testimony; they then issue a recommendation to the attorneys in the legal division; the attorneys review the evidence, and submit a recommendation to the agency's Secretary. Id. at 28. The agency keeps an internal adoption file, a foster care file for the Rodríguez household, an evaluation file for said household, and a file for the minors. Plaintiff's SUF ¶ 29; PTO at p. 37.

It is uncontested that Defendant believed that she could have been terminated on August 24, 2006, and that he did not consider moving Plaintiff to another position within the agency. Plaintiff's SUF ¶ 23 24; PTO at p. 37. However, said facts are irrelevant to the issue at hand.

Plaintiff was summoned for an administrative interview to be held on September 13, 2006. Defendant's SUF ¶ 22. She was also summoned for an administrative interview set for September 22, 2006. Defendant's SUF ¶ 23. Plaintiff did not appear at the administrative interview held on September 22, 2006 because she was hospitalized. Defendant's SUF ¶ 24. However, her attorney was present. Id. As a result of the recommendation issued by the agency's legal department, on October 10, 2006, Defendant issued a Notice of Intent to Dismiss to Plaintiff. Defendant's SUF ¶ 26. In response to said notice, Plaintiff requested an informal administrative hearing, which was held on December 19, 2006. Defendant's SUF ¶ 27. After the hearing, and upon recommendation of the Examining Officer, Plaintiff was reinstated to her position on March 16, 2007. Id. However, Plaintiff received the final determination notice setting aside the summary suspension, and was effectively reinstated, on July 18^th, 2007. Plaintiff's SUF ¶ 37. Upon her return to work, Plaintiff has experienced that her co-workers do not trust her, and do not invite her to interventions. Id. at 38.

Although Plaintiff contests Defendant's proposed fact 24, she admits that she did not attend the interview because she was hospitalized. She further contends that the union attorney which represented her incorrectly informed that she did not wish to testify on her own behalf as part of the investigation. See Docket # 44, p. 7. This is irrelevant for purposes of determining whether Defendant is liable to Plaintiff under Section 1983.

Applicable Law and Analysis

The Supreme Court has held that Section 1983 in itself does not confer substantive rights, but provides a venue for vindicating federal rights elsewhere conferred. See Graham v. M.S. Connor, 490 U.S. 386, 393-94 (1989). There are two essential elements of a Section 1983 claim: "(1) the challenged conduct was attributable to a person acting under color of state law; and (2) the conduct deprived the plaintiff of rights secured by the Constitution or laws of the United States." Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 151-152 (2^nd Cir. 2006); Johnson v. Mahoney, 424 F.3d 83, 89 (1^st Cir. 2005); Martínez v. Colón, 54 F.3d 980, 984 (1^st Cir. 1995) (citing Chrongis v. Board of Appeals, 811 F.2d 36, 40 (1^st Cir. 1987)). This second prong has two aspects: (1) there must have been an actual deprivation of the plaintiff's federally protected rights; and (2) there must have been a causal connection between the defendant's conduct and the deprivation of the plaintiff's federal rights. See Gutiérrez-Rodríguez, 882 F.2d 553, 559 (1^st Cir. 1989); Mahoney, 424 F.3d at 89; Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 n. 58 (1978); Gutiérrez-Rodríguez, 882 F.2d at 562; Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1^st Cir. 1989). Furthermore, the defendant's conduct must be shown to be intentional, grossly negligent, or amounted to a reckless or callous indifference to the plaintiff's constitutional rights. See Simmons v. Dickhaut, 804 F.2d 182, 185 (1^st Cir. 1986); Gutiérrez-Rodríguez, 882 F.2d at 562.

In the complaint, Plaintiff alleges both procedural and due process violations. The Fourteenth Amendment to the U.S. Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Thus, we will address each in turn.

Procedural Due Process

In order to establish a procedural due process claim under Section 1983, Plaintiff must first prove that she has a property interest as defined by state law and, second, that Defendant, acting under color of state law, deprived her of that property interest without a constitutionally adequate process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); PFZ Properties, Inc. v. Rodríguez, 928 F.2d 28, 30 (1^st Cir. 1991); see alsoMaymi v. P.R. Ports Auth., 515 F.3d 20, 29 (1^st Cir. 2008).

"Property interests are not created by the Constitution; `they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" De Vélez v. Zayas, 328 F. Supp. 2d 202, 211 (D.P.R. 2004) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). In Puerto Rico, employees classified as "career" or permanent" have vested property rights, and cannot be deprived of that right without due process of law. Borges-Colon v. De Jesus-Flores, 483 F.3d 1, 8 (1^st Cir. 2006); Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5 (1^st Cir. 2000); Natal-Rosario v. P.R. Police Dep't, 609 F. Supp. 2d 194, 201 (D.P.R. 2009). At a minimum, career employees are entitled to "notice and a meaningful opportunity to respond" prior to termination. Figueroa, 221 F.3d at 5-6 (citations omitted). At the pre-termination stage, due process requires that "[t]he tenured public employee [receive] oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Cleveland Bd. of Educ. V. Loudermill, 470 U.S. 532, 546 (1985); see also Natal-Rosario, 609 F. Supp. 2d at 201.

Plaintiff first contends that she was suspended without a pre-deprivation hearing, in violation of her vested property rights. In the present case, the first element of a Section 1983 claim (acting under color of state law) has not been disputed by either party, and it is apparent from the complaint that Defendant was acting under color of state law when he summarily suspended Plaintiff. Additionally, there is no controversy as to Plaintiff's career status. As such, she has a vested property right in her position within the agency. It is also uncontested that she was summarily suspended with pay from August 24, 2006 until March 16, 2007. Moreover, pursuant to the above stated facts, as part of the agency's investigation, Plaintiff was summoned to two administrative interviews within a month of the date of the incident. In the notice of intention to dismiss, Plaintiff was notified of the statutes that she had apparently violated as well of the charges that were made against her. She was also advised about her right to request an informal administrative hearing, which she timely requested, and attended accompanied by her attorney. Thereafter, based upon the Examining Officer's report, the notice of intention to dismiss and summary suspension were vacated, and Plaintiff was reinstated in her position.

In his opposition, Defendant points to case law holding that there is no deprivation of a property interest when an employee is suspended with pay. This Court notes that, in Loudermill, the Supreme Court explained that "in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay." 470 U.S. at 544. Thereafter, Gilbert v. Homar, 520 U.S. 924, 932 (1997), "rejected a categorical rule imposing constitutional due process requirements on suspensions without pay." Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 9 (1^st Cir. 2003). Accordingly, this Circuit has rejected the notion that due process always requires a predeprivation hearing. In Torres-Rosado, the appeals court noted that "numerous courts have held that paid suspensions could be imposed without the sorts of procedures the Constitution demands for terminations of career employees who have propietary interests in their jobs." 335 F. 3d at 10, n. 8. As a result, the Court concluded that plaintiff's paid suspension, "which caused only a very temporary deprivation of job functions and no financial loss, did not give rise to any constitutional entitlement to due process." Id. at 10.

In Gilbert, the Supreme Court found no due process rights violations even where plaintiff was summarily suspended without pay.

Even more, this district has held that, in emergency situations, a post-deprivation hearing may satisfy due process concerns. Ginorio v. Gomez, 322 F. Supp. 2d 153, 162 (2004). This is, in part due, to the Supreme Court's recognition that "on many occasions, [sic] where a State must act quickly, or where it would be impractical to provide predeprivation process, post deprivation process satisfied the requirements of the Due Process Clause." Gilbert, 520 U.S. at 930; see also Parratt v. Taylor, 451 U.S. 527 (1981); FDIC v. Mallen, 486 U.S. 230 (1988) (affirming the suspension of an employee after finding that an important government interest, accompanied by a substantial assurance that the deprivation is not baseless, may justify postponing to be heard until after the initial deprivation). In so doing, the Supreme Court noted that "it is now well established that `due process', unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances . . . [instead it] is flexible and calls for such procedural protections as the particular situation demands." Id. (Citations omitted).

In Gilbert, when determining what process is constitutionally due, the Supreme Court balanced three distinct factors: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3) the Government's interest. 520 U.S. at 931-32 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

In her opposition to Defendant's cross-motion for summary judgment, Plaintiff contends that no measures were taken to prevent an erroneous and baseless deprivation. She further defends her private interest in receiving her paycheck and the continued performance of her duties. Notwithstanding, although courts have "recognized the severity of depriving someone of the means of his livelihood . . . they have also emphasized that in determining what process is due, account must be taken of `the length' and `finality of the deprivation,'" Gilbert, 520 U.S. at 932 (citations omitted). As in Torres-Rosado, Plaintiff here faced suspension with pay for a limited period of time, and suffered no financial loss. Furthermore, prompt post-suspension interviews as well as an informal administrative hearing were held. Lastly, she was eventually reinstated to her position without any effects upon her fringe benefits. Therefore she was not in effect deprived of her livelihood, nor suspended without adequate procedural safeguards.

This Court further notes that Defendant's conduct in this case is far from intentional, grossly negligent, or amounts to a reckless or callous indifference to Plaintiff's constitutional rights. Even more, his actions do not show any negative animus towards Plaintiff. Moreover, contrary to Plaintiff's assertions, Defendant's duty to protect and promote the general welfare of children and families in Puerto Rico, as well as the agency's image and reputation, is indeed an important Government interest.See P.R. Laws Ann. tit. 3, § 211 et al. Plaintiff's suspension without pay does not outweigh the Secretary's need to immediately act in these specific circumstances to avoid negative consequences for the agency as well as possible children and families being attended by Plaintiff at that time. The fact that Plaintiff was later reinstated does not mean that Defendant is liable insofar as he acted promptly and reasonably based upon the information obtained from Plaintiff's supervisor and the allegations made against her.

Based on the above, we find that the due process requirements do not attach to this case. As such, Plaintiff's procedural due process rights are DISMISSED with prejudice. Substantive Due Process

Plaintiff also argues substantive due process violations based upon "unreasonable attacks to her dignity through capricious or arbitrary government action." Docket # 39, p. 18. To meet the burden on a substantive due process cause of action, Plaintiff must "present a well-pleaded claim that a state actor deprived it of a recognized life, liberty, or property interest, and that he did so through conscience-shocking behavior." Estate of Bennett v. Wainwright, 548 F.3d 155, 162 (1^st Cir. 2008) (citing Clark, 514 F.3d at 112; see also Ramos-Piñero v Puerto Rico, 453 F.3d 48, 53 (1^st Cir. 2006) (stating that the "shock the conscience" standard implicates behavior "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience") (citing County of Sacramento v. Lewis, 523 U.S. 833, 848 n. 8 (1998))). Only "[b]ehavior `intended to injure in some way unjustifiable by any government interest' — is the sort of official action most likely to `shock the conscience.'"Ramos-Piñero, 453 F.3d at 53 (citations omitted).

Considering the facts of this case, the shock the conscience standard is far from satisfied in this suit. To equate Plaintiff's suspension with pay with such brutal conduct as a rape, a nearly two-month unlawful imprisonment, a shooting, a student blinded in one eye when a coach intentionally struck him in the head with a metal weight, a teacher's fabrication of sexual abuse charges against a father, resulting in loss of contact with his child for three years, a 57-day unlawful detention in the face of repeated requests for release, and police officers aiding a third-party in shooting the plaintiff, would be to lower the very high threshold for constitutional wrongdoing. See Cummings v. McIntire, 271 F.3d 341, 346 (1^st Cir. 2001) (citations omitted). More so, when Plaintiff's alleged damages can be properly addressed under relevant state law. Specifically, Plaintiff's allegations regarding damages stem, in most part, from alleged defamatory statements made by Rodríguez to the radio station, which are totally unrelated, and irrelevant, to her due process claims.

Supplemental state law claims

Having dismissed Plaintiff's federal law claims against Defendant, her state law claims against him are DISMISSED without prejudice. See Newman v. Burgin, 930 F.2d 955, 963 (1st Cir. 1991) (holding that "[t]he power of a federal court to hear and to determine sate-law claims in non-diversity cases depends upon the presence of at least one `substantial' federal claim in the lawsuit.") It further follows that absent a federal cause of action against Defendant, the supplemental state law claims against Co-defendants fail as well, insofar as Plaintiff does not set forth any federal claims against Co-Defendants. Accordingly, Plaintiff's state law claims against Co-Defendants are also DISMISSED without prejudice.

Conclusion

In light of the foregoing, Defendant's motion for summary judgment is GRANTED, and Plaintiff's motion for partial summary judgment and default judgment is DENIED. Accordingly, Plaintiff's federal law claims against Defendant are DISMISSED with prejudice, and her state law claims against all Defendants are DISMISSED without prejudice.

IT IS SO ORDERED.

pp. 295, 303, 972 A.2d 277, cert. denied, 293 Conn. 909, 978 A.2d 1113 (2009).

In the present case, Simpson and Morales encountered the defendant in a parking lot adjacent to the intersection of Columbia Street and Johnson Street. The jury was presented with evidence that this location was an "open air drug market" where drug transactions frequently transpired. Simpson testified that the location was a "hot spot" for drug dealing because "it's kind of like a freeway. People . . . are able to drive in, meet up there, and they have . . . three routes of escape from there. . . . [T]hey can go up Johnson [Street], they go down Project [Street] and then go back down . . . that other street leading up to it. . . . [T]hat parking lot [where the officers observed the defendant] is one of the main problems that we have in Marina Village." Morales similarly testified that Marina Village was a "high crime area" and a center of the "drug trade . . . heroin, specifically. There are multiple dealers of heroin in the Marina Village." Evidence of the defendant's presence at such a location suggests an intent to sell or dispense narcotics at a location that is geographically within 1500 feet of a public housing project. See State v. Francis, supra, 90 Conn. App. 682 (noting evidence that defendant was observed in "area known to be a high trafficking area for narcotics"); State v. Jeffreys, 78 Conn. App. 659, 676, 828 A.2d 659 ("the defendant was observed loitering in an area known for commercial drug activity"), cert. denied, 266 Conn. 913, 833 A.2d 465 (2003); State v. Ogrinc, supra, 29 Conn. App. 699 ("[e]vidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell").

Notably, the defendant does not dispute that he was in possession of narcotics at that location. See State v. Jeffreys, supra, 78 Conn. App. 676. The jury also was presented with evidence regarding the quantity of narcotics found in the defendant's possession and the manner in which they were packaged, both of which are probative of his intent to sell. See State v. Ogrinc, supra, 29 Conn. App. 699. The officers witnessed the defendant attempt to discard a plastic bag containing ten glassine folds bound by a rubber band and found four blue glassine folds in his hand and three white glassine folds in his pocket. At trial, Simpson offered his expert opinion that a narcotics user usually will be found with only one or two folds of narcotics on his person. See State v. Wright, 47 Conn. App. 559, 566, 707 A.2d 295 (evidence that "the most common purchase for users of drugs is only one or two folds, that it is not common for a user to buy as many as six folds" indicated intent to sell), cert. denied, 244 Conn. 917, 714 A.2d 8 (1998). Similarly, Morales testified on the basis of his training and experience that the quantity of narcotics found and the packaging thereof was indicative of whether the possessor was a seller or user of narcotics. Morales explained that sellers usually package narcotics "in a bundle, ten folds apiece in a rubber band," noting that sellers usually possess "more than ten folds." Morales further testified that buyers generally possess only one or two folds that are not "rubber-banded and put together."

In addition, the jury was presented with evidence that the four blue glassine folds found in the defendant's hand tested negative for narcotics. In his expert testimony, Simpson detailed the usage by sellers of "burn bags." See, e.g., United States v. Derr, 990 F.2d 1330, 1332 (D.C. Cir. 1993) (pouches containing fake narcotics commonly known as burn bags); State v. Johnson, 21 Conn. App. 291, 295, 573 A.2d 1218 (1990) (describing burn bags as "phony drugs"). Simpson testified that on numerous occasions he had made arrests in which some of the suspected narcotics recovered tested positive for narcotics and some tested negative. He explained that such instances often involve "burn bags," which he defined as "a misrepresentation . . . of a drug, like . . . well, I'll use crack, for instance. That's boiled down cocaine. If it's a misrepresentation, they might use soap, baking soda. Basically, the intent is to sell an individual who thinks it's narcotics; it's really not narcotics. . . ." On the basis of his training and experience, Simpson offered his expert opinion that the presence of burn bags indicates an intent to sell. Morales likewise testified that he had been involved in numerous arrests in which one portion of the suspected narcotics tested positive for narcotics and the other tested negative. Morales opined that a suspect in such an instance likely is "a person that's definitely trying to burn someone. . . . [I]f it's a product that's not a narcotic . . . they're not [going to] obviously take it as a user. They would want to try to make money off of it and burn some buyers." That evidence supports the inference that the defendant intended to sell narcotics in the Marina Village parking lot.

In addition, evidence was before the jury that no drug paraphernalia was found on the defendant. Morales testified that drug users usually keep drug paraphernalia on their persons and that heroin users tend to keep syringes on their person. "If a defendant has no drug paraphernalia, it is reasonable to infer that he did not intend to use the drugs himself and that also may be factored into the jury's determination. . . ." State v. Wright, supra, 47 Conn. App. 566; see also State v. Jeffreys, supra, 78 Conn. App. 676. Morales testified that the defendant "had no paraphernalia on him."

Also relevant is the defendant's behavior prior to his arrest. The officers first observed the defendant among a group of individuals at a location that was a hot spot for narcotics trafficking. The jury heard testimony from Morales that, as the officers approached the group, the defendant "started backing away, that's what [drew the attention of my partner and I, as we] started walking toward him, he backed off away from us." Simpson testified that when they instructed the defendant to come back, "everybody [else] moved forward [and] the defendant was the only one who was backing up. . . ." The officers then witnessed the defendant toss to the ground the plastic bag containing ten glassine folds bound by a rubber band. Intent can be inferred from conduct; see State v. Downey, supra, 45 Conn. App. 154; and the jury properly could consider the aforementioned conduct in determining whether the defendant intended to sell narcotics in the Marina Village parking lot. As this court stated in State v. Ogrinc, supra, 29 Conn. App. 700, "the defendant's conduct was incriminating. When the defendant observed the police cruiser he warned other drug dealers of its presence, he immediately turned away from the cruiser, and he attempted to conceal the heroin he held in his left hand before tossing it underneath the car." The jury in this case similarly could have found the defendant's conduct in the parking lot incriminating.

Finally, we note that it is undisputed that the defendant was at the geographical location at issue for an extended period of time on the day of his arrest. As part of his defense, the defendant presented the testimony of Willie Everett, a resident of Marina Village. Everett testified that he was working on a vehicle in the parking lot adjacent to the intersection of Columbia Street and Johnson Street on the afternoon of November 22, 2006. On direct examination, Everett testified that the defendant had been assisting him at that location that day, stating that "[w]e had been there a while that day. We had been out there for a couple hours." As a result, the present case is distinguishable from the recent decision of this court in State v. Lewis, 113 Conn. App. 731, 967 A.2d 618, cert. granted, 292 Conn. 906, 973 A.2d 105 (2009). In Lewis, the majority recognized that "there was evidence indicating an intent to sell." Id., 748. It continued: "The evidence presented in this case, however, did not raise a permissible inference of an intent to sell at the specific location where the defendant was arrested. When stopped by the police, the defendant was on his bicycle in the neighborhood in which he lived. The police did not observe him engage in any activity consistent with immediate drug sales but, rather, stopped him because he resembled the description of a robbery suspect. There was no evidence that the defendant was in the location at issue for any length of time sufficient to support an inference that he was doing more than passing through. The police officers who were dispatched to the area in response to a robbery complaint apprehended the defendant and [a companion] virtually immediately upon seeing him. Although there is evidence, such as the quantity of drugs found on his person and the manner of their packaging, that supports an inference of an intent to sell, the record is devoid of any direct or circumstantial evidence from which the inference of intent to sell at the place of apprehension can permissibly be drawn." Id., 748-49.

By contrast, the jury in the present case was presented with undisputed evidence, which the defendant offered at trial, establishing his presence at the location in question for an extended period of time. On that evidence, the jury could not reasonably conclude that the defendant was merely passing through the Marina Village parking lot but, rather, was at that location for hours. Furthermore, whereas the officers in Lewis "did not observe [the defendant] engage in any activity consistent with immediate drug sales" and "apprehended the defendant . . . virtually immediately upon seeing him"; id., 748; the officers in the present case apprehended the defendant only after witnessing him back away and toss a plastic bag to the ground that contained packaged narcotics at a location known to be a hot spot for narcotics trafficking.

Construing the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded that the cumulative force of the evidence established the defendant's intent to sell narcotics at the Marina Village parking lot beyond a reasonable doubt. Accordingly, the defendant's claim of evidential insufficiency fails.

III

The defendant also contends that the court improperly instructed the jury on the intent element of §§ 21a-277 (a) and 21a-278a (b), thereby diluting the standard of proof in violation of his right to due process under the federal and state constitutions. The defendant did not preserve this claim at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant's claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Peeler, 271 Conn. 338, 369 n. 29, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). On its merits, the claim fails to satisfy Golding's third prong.

As the defendant provides no independent state constitutional analysis, we confine our review to his claim under the federal constitution. See State v. Wright, 246 Conn. 132, 138, 716 A.2d 870 (1998).

Under Golding, "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

In reviewing claims of instructional impropriety, we are mindful that "[t]he principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [the jury] might find to be established. . . . When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party. . . . In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions . . . under the third prong of Golding, [a] defendant may prevail . . . only if . . . it is reasonably possible that the jury was misled. . . ." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007).

Both possession of narcotics with intent to sell in violation of § 21a-277 (a) and possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b) are specific intent crimes. See State v. Denby, supra, 235 Conn. 482; State v. Lewis, supra, 113 Conn. App. 737. The defendant maintains that although the court initially charged the jury on both specific and general intent, the court failed to instruct the jury as to the requisite specific intent with respect to the charged offenses, namely, the "`to cause such result'" element of §§ 21a-277 (a) and 21a-278a (b). The state responds that the charge, read as a whole, properly instructed the jury on that element. We agree with the state.

In its charge to the jury, the court initially instructed the jury on intent as follows: "Intent relates to the condition of mind of the person who commits the act. It relates to that person's purpose in doing an act. Our statutes provide that a person acts intentionally with respect to a result described by the statute defining an offense when his conscious objective is to cause such result. A person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct." Later in its charge, the court instructed the jury on the intent element of §§ 21a-277 (a) and 21a-278a (b), stating in relevant part that "[t]he final element that the state must prove is that the defendant possessed the narcotic substance with intent to sell. . . . A person acts intentionally with respect to conduct described by a statute defining a crime when his conscious objective is to engage in such conduct. Intent is a conscious purpose to accomplish some objective. It is not necessary that any sale actually occurred. It is only necessary that a defendant intended that a sale would occur. In this regard, you should recall my prior charge on the meaning of intent."

We agree with the defendant that the court's isolated instruction that "[a] person acts intentionally with respect to conduct described by a statute defining a crime when his conscious objective is to engage in such conduct" was inappropriate in the context of §§ 21a-277 (a) and 21a-278a (b). At the same time, we review a challenged jury charge not in isolation, but in its entirety. State v. Johnson, 286 Conn. 427, 453, 944 A.2d 297, cert. denied, U.S., 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008). As this court recently noted, "the giving of an overinclusive instruction, even more than one time during the course of a charge, is not dispositive of the issue of whether the instruction deprived the defendant of a fair trial; a reviewing court must carefully evaluate the instructions as a whole to gauge their likely effect on the jury in guiding it to a proper verdict in accordance with the law." State v. Nance, 119 Conn. App. 392, 412, 987 A.2d 376, cert. denied, 295 Conn. 924, 991 A.2d 569 (2010).

Earlier in its instructions to the jury, the court explained that certain offenses with which the defendant was charged concerned his intent to sell. Immediately following the aforementioned misstatement, the court instructed the jury that "[i]ntent is a conscious purpose to accomplish some objective. It is not necessary that any sale actually occurred. It is only necessary that a defendant intended that a sale would occur." That instruction properly conveyed to the jury the specific intent element of §§ 21a-277 (a) and 21a-278a (b). Contra State v. Lewis, supra, 113 Conn. App. 738 (court instructed on general intent to "engage in such conduct" but "did not instruct the jury on specific intent" [internal quotation marks omitted]). In addition, the court's instruction on specific intent was augmented by the subsequent incorporation by reference of its "prior charge on the meaning of intent," which clarified the distinction between general and specific intent.

Viewed as a whole, the court's charge instructed the jury that the state was required to prove beyond a reasonable doubt that the defendant acted with the intent to sell narcotics on the afternoon of November 22, 2006. Because we cannot say that it is reasonably possible that the jury was misled, the defendant's claim fails to satisfy Golding's third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

STATE OF CONNECTICUT v. DOUGLAS REID

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