Opinion · Court of Appeals for the First Circuit

Desio Rabal Pinto v. Universidad De Puerto Rico

895 F.2d 18

Type
Opinion
Court
Court of Appeals for the First Circuit
Jurisdiction
Federal
Date
1990-01-29
Topic
general

noting that “the court is under no duty to exercise imagination and conjure what a plaintiff might have alleged, but did not, and do counsel’s work for him or her” | rejecting defendants’ argument that “a court may, without notice, take a failure to respond to a motion to dismiss as a default, warranting dismissal irrespective of substantive merit.” | rejecting defendants’ argument that “a court may, without notice, take a failure to respond to a motion to dismiss as a default, warranting dismissal irrespective of substantive merit.” | finding one year of inactivity, combined with other factors, sufficient to invoke Rule 41(b) | finding one year of inactivity, combined with other factors, sufficient to invoke Rule 41(b) | “University is an arm of the state within the purview of the Eleventh Amendment.... University cannot be held liable for damages is clear.” | “[W]e are not so foolhardy as to require district judges to act as mind readers.” | “We do 7 agree with defendant that a court may, without notice, take a failure to respond to a motion □ □ . 8 a default, warranting dismissal irrespective of substantive merit.”

Citator

Cited by
25 opinions
PINTO v. UNIVERSIDAD DE PUERTO RICO,895 F.2d 18(1st Cir. 1990)
DESIO RABAL PINTO, PLAINTIFF, APPELLANT, v. UNIVERSIDAD DE PUERTO RICO,
DEFENDANT, APPELLEE.
No. 89-1781.
United States Court of Appeals, First Circuit.
Heard January 12, 1990.
Decided January 29, 1990.
Arturo Aponte Pares, with whom Jorge J. Oppenheimer Mendez, Santurce, P.R., was on brief for plaintiff-appellant.

Luis M. Vazquez Rodriguez, Carolina, P.R., with whom Elisa Bobonis Lang and University of Puerto Rico Office of Legal Affairs, were on brief for defendant-appellee.
Appeal from the District Court for the District of Puerto Rico.
Before SELYA, ALDRICH and CYR, Circuit Judges.
BAILEY ALDRICH, Senior Circuit Judge.
[1] This is a diversity action under28 U.S.C. § 1331, citing the jurisdictional amount, with a civil rights claim under42 U.S.C. § 1983, seeking damages and an injunction because of defendant Universidad De Puerto Rico, hereinafter the University, refusing to recognize that, contractually, plaintiff had professorial tenure. The University moved to dismiss, accompanied with a brief asserting that it was an arm of the state, and hence protected by the Eleventh Amendment. Plaintiff failed to oppose, and some months later the court, in a considered opinion, granted the motion. Only then did plaintiff appear, moving for reconsideration. The court denied this motion, and plaintiff appeals. We affirm.

[2] The court's analysis and conclusion that the University is an arm of the state within the purview of the Eleventh Amendment is quite correct. We so stated, by way of dictum, inPerez v.Rodriguez Bou,575 F.2d 21,25(1st Cir. 1978), and we affirmed without opinion, at815 F.2d 691(1st Cir. 1987), what was at least an alternative holding of the district court inAmelunxenv. University of Puerto Rico,637 F. Supp. 426(D.P.R. 1986). Further applicable reasoning is to be found in our recent case ofPlaintiffs' Steering Committee v. Tourism Company of PuertoRico,888 F.2d 940(1st Cir. 1989). That the University cannot be liable in damages is clear.

[3] In his motion for reconsideration plaintiff sought to enlarge his complaint, and allege that the University is nevertheless a "person" subject to an injunction under § 1983, at least through its officers. He cites no cases supporting this, butcf. GayStudent Services v. Texas A M University,612 F.2d 160(5th Cir.),cert. denied,449 U.S. 1034,101 S.Ct. 608,66 L.Ed.2d 495(1980). Plaintiff introduced this contention with the phrase, "We must remind the Court. . . ." On appeal he says, "With this new insight we must review the issue before the Court."Page 19

[4] We do not agree with defendant that a court may, without notice, take a failure to respond to a motion to dismiss as a default, warranting dismissal irrespective of substantive merit.1At the same time, the court, before deciding, was not obliged to wait indefinitely for plaintiff to respond to the motion, by memorandum or otherwise, and, in its discretion, it was warranted in concluding that plaintiff intended to file nothing. The court has no obligation to play nursemaid to indifferent parties.

[5] Moreover, the court is under no duty to exercise imagination and conjure what a plaintiff might have alleged, but did not, and do counsel's work for him or her. It is enough to view the basic complaint. In the instance the complaint failed to contain the allegations which plaintiff now wishes called to mind. Regardless of whether such might have merit — as to which we express no opinion — the court was within its discretion in refusing so-called reconsideration.

[6]Affirmed.
  1. Cf. Jaroma v. Massey,873 F.2d 17(1st Cir. 1989);Rosser v. Chrysler Corp.,864 F.2d 1299,1306n. 6 (7th Cir. 1988). To be distinguished is where a court had ordered a memorandum,Alameda v. Secretary of Health, EducationWelfare,622 F.2d 1044,1047-48(1st Cir. 1980), and, of course, cases where a response was required by rule.United States v.Proceeds of Sale of 3,888 Pounds Atlantic Sea Scallops,857 F.2d 46(1st Cir. 1988);Corey v. Mast Road Bldg. Materials Co.,Inc.,738 F.2d 11(1st Cir. 1984). ↩