               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 05-2808

                  JAIME NOEL SEPÚLVEDA-CARRERO,

                       Plaintiff, Appellant,

                                    v.

   JOHN V. RULLÁN, 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. Pérez-Giménez, U.S. District Judge]


                                 Before

                        Boudin, Chief Judge,

                Lynch and Howard, Circuit Judges.



     Francisco R. González-Colon and F.R. Gonzalez Law Office, on
brief, for appellant.
     Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negrón-Vargas, Deputy Solicitor General, Maite D. Oronoz-
Rodríguez, Deputy Solicitor General and Leticia Casalduc-Rabell,
Assistant Solicitor General, on brief, for appellees.



                             July 13, 2007
            Per Curiam. Jaime Noel Sepúlveda-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. Rullán in his individual

capacity.    The award followed a finding that Sepúlveda's political

discrimination suit against Rullán was frivolous.           We affirm.

            In 2001, Sepúlveda sued the Commonwealth of Puerto Rico

and Rullán, in his official and personal capacities.              Sepúlveda

alleged that unlawful political discrimination prompted his removal

from the positions of Regional Medical Director, Aguadilla Sub-

Region (“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 Rullán,

the district court dismissed Sepúlveda's claims.          Later, the court

granted Rullán 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.”        But the court denied Rullán summary

judgment    insofar   as   the   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.

            Sepúlveda’s claim concerning the Sub-Regional Director

position went to trial.      At the close of Sepúlveda’s case, Rullán


                                     -2-
moved for judgment as a matter of law.                          See Fed. R. Civ. P. 50.

The court granted Rullán’s motion, concluding that there was no

evidence that Rullán knew of Sepúlveda’s political affiliation

before firing him.         The court subsequently awarded Rullán $16,235

in    attorney’s    fees    on       the    ground       that    Sepúlveda’s    claim       was

frivolous. Sepúlveda appeals from the fee ruling.

            We review an appeal of an award of attorney’s fees for an

abuse of discretion.           See Foley v. City of Lowell, 948 F.2d 10, 18

(1st Cir. 1991).         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    facie    case    at    the    time        she    files    a    complaint     may   be

frivolous.       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     action      was     aware       of    the     plaintiff's        political

affiliation.       See Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 431

(1st Cir. 2005).

            Sepúlveda       makes          two    arguments       for    overturning        the

district court’s ruling.               First, he contends that the district


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court abused its discretion in awarding attorney’s fees because he

“survived”     Rullán’s     dismissal       and   summary    judgment      motions.

Alternatively,     he    contends     that    a   serious    medical      condition

affected his ability to testify at trial and prevented him from

fully articulating the evidence supporting his claim.

             That Rullán’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). Sepúlveda’s “survival” of

the motion to dismiss means only that he had sufficiently pleaded

at   least   one   viable    cause    of     action,   not   that    he    had   any

evidentiary support for his position.             At summary judgment, Rullán

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 Rullán did not know Sepúlveda’s party

affiliation before firing him.1             Thus, that Sepúlveda’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.

      Sepúlveda’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.                   Sepúlveda did


      1
      Sepúlveda has not argued that the fee award was improper
because of Rullán'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.




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