United States Court of Appeals
For the First Circuit
No. 04-1274
ROSAURA GONZALEZ RUCCI,
Plaintiff, Appellant,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE;
UNITED STATES DEPARTMENT OF JUSTICE;
U.S. ATTORNEY GENERAL FOR THE DISTRICT OF PUERTO RICO;
UNITED STATES; ANDRES NUÑEZ; CHARLES KIRK; MYRNA A. PERE;
ROBERTO RAMOS; LUIS A. REYES; VIVIAN REYES; MARITZA SOTO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and Carter,* Senior District Judge.
Lixandra Osorio Felix and Nicolas Nogueras, Jr. Law Offices,
on brief for appellant.
Isabel Muñoz-Acosta, Assistant U.S. Attorney, H.S. Garcia,
United States Attorney, and Miguel A. Fernandez, Assistant U.S.
Attorney, Chief, Civil Division, on brief for appellees.
April 21, 2005
*
Of the District of Maine, sitting by designation.
HOWARD, Circuit Judge. Appellant Rosaura Gonzalez-Rucci
brought this action, pursuant to the Federal Tort Claims Act
("FTCA") and the Bivens doctrine, see Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against
the United States, the Immigration and Naturalization Service
("INS"),1 and a number of immigration officers. The complaint
asserts claims for malicious prosecution, abuse of process,
negligence, intentional infliction of emotional distress, and
violations of various constitutional rights. The upshot of the
complaint is that because Gonzalez turned down the romantic
overtures of defendant immigration officer Andres Nuñez, Nuñez and
his colleagues used their official positions to destroy her law
practice, to obtain warrants to search her home and office, to
procure her arrest, and to secure a criminal indictment against
her. The alleged harassment began in 1995; peaked with Gonzalez's
indictment for various criminal offenses on September 26, 1996; and
continued for some months after her acquittal on February 6, 1997.
On July 31, 2002, the district court granted defendants'
motion to dismiss and entered judgment, concluding that all of
Gonzalez's claims were cognizable either under the FTCA or as
1
In March 2003, the relevant functions of INS were assumed by
the Department of Homeland Security in a reorganized Bureau of
Immigration and Customs Enforcement. We will continue to refer to
INS for simplicity throughout this opinion.
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Bivens claims, but that both the FTCA and Bivens claims were
untimely. On August 15, 2002, Gonzalez moved for relief from
judgment under Fed. R. Civ. Pro. 60(b) as to her FTCA claims,
arguing that the district court miscalculated the filing date. The
government responded that even if the FTCA claims were timely,
Gonzalez's motion should be denied because she failed to state
claims under the FTCA upon which relief could be granted.
In its order addressing Gonzalez's Rule 60(b) motion, the
district court reaffirmed its holding that the Bivens claims were
time-barred, but agreed that the FTCA claims were timely.
Nonetheless, the court denied the motion because, in its view, the
malicious prosecution and abuse of process claims were inadequately
pleaded under Fed. R. Civ. Pro. 12(b)(6). The court held that the
indictment "conclusively" established the existence of probable
cause, foreclosing the malicious prosecution claim. The court also
held that the abuse of process claim was not cognizable because
only defendant Nuñez was alleged to have had a bad motive; bringing
a lawsuit was not an abuse of process; it was too speculative to
conclude that a grand jury handed down an indictment to coerce
Gonzalez into a relationship with Nuñez; and that the probable
cause determination preempted any alleged improper collateral
objectives by the defendants. Gonzalez's notice of appeal, filed
on January 26, 2004, refers only to the order denying the Rule
60(b) motion.
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On appeal, Gonzalez argues that her claims for malicious
prosecution and abuse of process were adequately pleaded, her
Bivens claims were not time-barred, and the district court failed
to address several of her other FTCA claims. Appellees respond
that the district court did not abuse its discretion in denying the
Rule 60(b)2 motion because the abuse of process and malicious
prosecution claims were foreclosed by the indictment and/or were
inadequately pleaded, and that no timely appeal was taken as to the
Bivens claims.
We begin by considering which issues are properly before
us. Gonzalez did not timely appeal from the July 31, 2002
judgment. See Fed. R. App. P. 4 (a); Garcia-Velazquez v. Frito Lay
Snacks Caribbean, 358 F.3d 6, 8 (1st Cir. 2004). Thus, we only
have jurisdiction to consider the order denying Rule 60(b) relief.
See Frito Lay, 358 F.3d at 11. While the Bivens timeliness issue
was not clearly raised in Gonzalez's Rule 60(b) motion, the
district court nonetheless considered it in its order. Therefore,
we conclude that we have jurisdiction to consider all of Gonzalez's
claims.
2
We note that Appellant did not specify whether her motion to
reconsider was brought under Fed. R. Civ. P. 59 or Fed. R. Civ. P.
60. There is some indication in the record that the district judge
thought the former, while the parties on appeal assert the latter.
As neither side raises any issue about this matter, we will let it
pass. However, we caution that the two rules are not freely
interchangeable. See generally Venegas-Hernandez v. Sonolux
Records, 370 F.3d 183, 188-89 (1st Cir. 2004).
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A district court's denial of a Rule 60(b) motion is
typically reviewed for abuse of discretion. See Caissie v. Dubois,
346 F.3d 213, 215-16 (1st Cir. 2003). Rule 60(b) relief is
"extraordinary in nature," and to warrant such relief a movant must
demonstrate "that (1) the motion is timely, (2) exceptional
circumstances justify granting extraordinary relief, and (3)
vacating the judgment will not cause unfair prejudice to the
opposing party." Id. at 215. Moreover, a district court should
only grant Rule 60(b) relief if the moving party demonstrates that
the underlying claims have a reasonable chance of success on the
merits. See id.
We can dispense with Gonzalez's Bivens contentions in
short order. Gonzalez's claims accrued no later than February 6,
1997 (with her acquittal), yet she filed no claims(administrative
or judicial) for nearly two years. As Bivens actions are subject
to a one-year limitations period, see Roman v. Townsend, 224 F.3d
24, 29 (1st Cir. 2000), the district court did not err in
concluding that these claims were time-barred. The district
court's conclusion that Gonzalez's FTCA claims were inadequately
pleaded is more problematic.
Under the FTCA, we look to "law of the place" where the
alleged wrongful actions occurred, see Rodriguez v. United States,
54 F.3d 41, 44 (1st Cir. 1995), so Puerto Rico law provides the
relevant standards for the substantive claims. To state a
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malicious prosecution claim, a plaintiff must allege four elements:
"1) that a criminal action was initiated or instigated by the
defendants; 2) that the criminal action terminated in favor of
plaintiff[s]; 3) that defendants acted with malice and without
probable cause; and 4) that plaintiff[s] suffered damages."
Nogueras-Cartagena v. United States, 172 F. Supp. 2d 296, 315
(D.P.R. 2001). The only issue here is whether the existence of the
grand jury indictment was sufficient to defeat the lack of probable
cause requirement.
Generally, a grand jury indictment definitively
establishes probable cause. See Abreu-Guzman v. Ford, 69 F. Supp.
2d 274, 285 (D.P.R. 1999)(an indictment "fair upon its face" and
"returned by a properly constituted grand jury conclusively
determines the existence of probable cause") (citation and internal
quotation omitted). However, courts have recognized an exception
if law enforcement defendants wrongfully obtained the indictment by
knowingly presenting false testimony to the grand jury. See, e.g.,
Rothstein v. Carriere, 373 F.3d 275, 282-83 (2d Cir. 2004)(applying
New York law); Camiolo v. State Farm Fire & Casualty Co., 334 F.3d
345, 363 (3d Cir. 2003)(applying Pennsylvania law); Moran v.
Clarke, 296 F.3d 638, 657 (8th Cir. 2002)(applying Missouri
law);see also Nogueras-Cartagena, 172 F. Supp. 2d at 315-16. Such
allegations are sufficient, at the pleading stage, to rebut the
presumption of probable cause established by the grand jury
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indictment. Nogueras-Cartagena, 172 F. Supp. 2d at 315-16; cf.
Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 38-
39 (1st Cir. 1993)(non-state actor would not be immunized from a
malicious prosecution claim by the independent prosecutor's
decision to commence a criminal action if he effectively instigates
the prosecution by knowingly providing false information to the
authorities); Negron-Rivera v. Rivera-Claudio, 204 F.3d 287, 290 n.
1 (1st Cir. 2000)(similar); Aponte Matos v. Toledo Davila, 135 F.3d
182, 187-89 (1st Cir. 1998)(an officer is not entitled to qualified
immunity in a 42 U.S.C. § 1983 action if there is an issue of fact
as to whether he obtained the warrant relied upon by knowingly
presenting false evidence). Because Gonzalez alleges that the
defendants obtained the indictment, as well as the various search
and arrest warrants, through the use of false testimony, she has
pleaded a viable claim for malicious prosecution.
We reach a similar conclusion as to the abuse of process
claim. Under Puerto Rico law, "[t]he two basic elements of abuse
of process are a bad motive, and the use of a legal process for an
improper, collateral objective." Microsoft Corp. v. Computer
Warehouse, 83 F. Supp. 2d 256, 261 (D.P.R. 2000)(citation and
internal quotation omitted). Further, while malicious prosecution
claims are generally directed to a legal action as a whole, abuse
of process typically covers challenges to the legal action's
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procedural components (e.g., discovery mechanisms or subpoenas).
See Nogueras-Cartagena, 172 F. Supp. 2d at 316.
The district court is correct in observing that only
Nuñez is specifically alleged to have had a bad motive. However,
this is not fatal to Gonzalez's claim, as a wrongful motive in an
abuse of process claim can be inferred from a wrongful act, see
Simon v. Navon, 71 F.3d 9, 16 (1st Cir. 1995), and Gonzalez alleges
a host of wrongful acts committed by the other defendants.
Further, while simply bringing a lawsuit may not be an abuse of
process, obtaining search and arrest warrants by means of false
testimony is a proper basis for a claim of abuse of process (at
least for pleading purposes). See generally Nogueras-Cartagena,
172 F. Supp. 2d at 316.
Concerning the "collateral objective element," Gonzalez
alleged that Nuñez sought to punish her for rejecting him and that
the other defendants were retaliating against her for exercising
her civil rights. These are adequate improper collateral
objectives for pleading purposes. Thus, Gonzalez has stated a
viable abuse of process claim.
In sum, the district court acknowledged that it was
mistaken in initially holding Gonzalez's FTCA claims time-barred,
but ruled that she was nevertheless not entitled to relief from
judgment because her malicious prosecution and abuse of process
claims were inadequately pleaded. As described above, Gonzalez has
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in fact stated viable malicious prosecution and abuse of process
claims. The district court therefore should have granted
Gonzalez's motion for relief from judgment.3
Affirmed as to Plaintiff's Bivens claims and vacated and
remanded as to Plaintiff's FTCA claims.
3
In so ruling, we note that the district court failed to
address many of Gonzalez's other FTCA claims, including negligence
and false arrest. Because we are remanding this case for further
proceedings, the viability of these claims should also be reviewed.
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