USCA1 Opinion
August 19, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1353
VICTOR MANUEL SOSA,
Plaintiff, Appellant,
v.
RAFAEL HERNANDEZ-COLON, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Victor Manuel Sosa on brief pro se.
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John F. Nevares and Saldana, Rey & Alvarado on brief for
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appellee, Rafael Hernandez-Colon.
Anabelle Rodriguez, Solicitor General, and Vanessa Ramirez,
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Assistant Solicitor General, Department of Justice, on brief for
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appellees, Mercedes Otero-Ramos, Hector Rivera-Cruz, Carlos Lopez-
Feliciano, Jorge Collazo-Torres, Ismael Betancourt-Lebron, Yamila
Andujar, Israel Crespo-Nieves, Julia Soto-Diaz, Gerardo Bloise-Nunez,
and Miguel Salas-Segundo.
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Per Curiam. This is an appeal from the dismissal
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of an action based upon 42 U.S.C. 1983 filed by appellant
Victor Manuel Sosa in the United States District Court for
the District of Puerto Rico.
BACKGROUND
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Appellant filed a complaint in the district court
on February 22, 1990. The complaint concerned a criminal
investigation initiated by the San Juan District Attorney's
Office which resulted in an indictment charging appellant
with kidnapping and weapons violations. Appellant ultimately
was acquitted of all charges and released from detention on
February 22, 1989. The complaint asserts four claims against
various defendants and seeks in excess of forty million
dollars in damages. A description of each claim as it
relates to specific defendants follows:
1. Appellant asserts that the 1984 investigation
leading up to the indictment and his arrest was indifferently
conducted. Specifically, he avers that Lino Olivo-Arroyo,
the police officer who originally interviewed the victim,
knew that the victim was lying and that the unnamed assistant
district attorney who personally conducted this investigation
knew that the underlying facts were in dispute. Appellant
also alleges that the District Attorney, Israel Crespo-
Nieves, and the Superintendent of Police, Jorge Collazo-
Torres,failedtoadequatelytrain andsupervisetheirsubordinates.
2. Appellant, who never appeared for trial, was
apparently apprehended in 1988 in the Dominican Republic and
returned to Puerto Rico. He claims that Gerardo Bloise-
Nunez, Miguel A. Salas-Segundo (Puerto Rico police agents)
and Juri Villanova (an immigration officer of the Dominican
Republic) aided and abetted this "kidnapping" to avoid using
the proper extradition process. Appellant avers that Rafael
Hernandez-Colon, the then governor of Puerto Rico, was liable
for the actions of Yamila Andujar-Lopez, the attorney in
charge of extraditions for the Puerto Rico Department of
Justice, Carlos Lopez-Feliciano, the then Superintendent of
Police, and Hector Rivera-Cruz, the Secretary of Justice of
the Commonwealth of Puerto Rico.
3. During his pretrial detention, appellant
charges that he was never provided with a shirt which,
according to him, caused delays in visiting with relatives
and in seeing prison doctors. Next, appellant complains that
the prison library was inadequate and that he was denied
access to the courts when he wanted to file motions.
Finally, appellant relates that, just before trial, he was
transferred to maximum custody without the required hearing.
Julia Soto is averred to be the individual within the
Department of Corrections liable for these occurrences. The
Director of the Department, Mercedes Otero-Ramos, is charged
with failing to supervise Ms. Soto.
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4. After appellant was acquitted on February 22,
1989, he claims that Ismael Betancourt, the Superintendent of
Police, failed to return to him his passport and other
personal documents thereby restricting him from traveling to
his family and job in the Dominican Republic. Appellant also
complains that his criminal record was never "cleared" to
reflect his acquittal and that mugshots and fingerprints were
never returned to him.
The defendants filed motions to dismiss based on
the grounds of statute of limitations, prosecutorial immunity
and failure to state a claim based on the allegations of
supervisory liability. Appellant opposed these motions on
only one ground -- that a letter received on May 30, 1989 by
the Secretary of Justice, Hector Rivera-Cruz, tolled the
running of the statute of limitations as to all defendants.
Because the parties had submitted documents outside of the
pleadings, the court treated the motions as ones for summary
judgment. Finding that no material issues of fact existed,
it dismissed the action as time-barred as to all defendants
except Rivera-Cruz. It then dismissed appellant's claims
against Rivera-Cruz because appellant was seeking to hold
Rivera-Cruz liable only on the basis of respondeat superior.
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DISCUSSION
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We review a summary judgment de novo to establish
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whether any material fact issues exist and whether the
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defendants are entitled to judgment as a matter of law.
Manarite v. City of Springfield, 957 F.2d 953, 955 (1st
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Cir.), cert. denied, 113 S. Ct. 113 (1992). In so doing, we
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view the pleadings in the light most favorable to appellant,
indulging all reasonable inferences in his favor. See id.
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Upon a careful examination of the record and the
parties' briefs, we affirm the judgment of the district court
that the first claim insofar as it concerns appellant's
arrest and the second claim concerning the method of his
removal from the Dominican Republic are time-barred. The
court correctly applied the one-year prescription for tort
claims contained in Article 1868(2) of the Civil Code of
Puerto Rico, 31 L.P.R.A. 5298(2). See Rodriguez-Narvaez v.
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Nazario, 895 F.2d 38, 42 (1st Cir. 1990). We also agree, for
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the reasons stated in the Opinion and Order, that the letter
sent to Rivera-Cruz, the Secretary of Justice, did not toll
the limitations period as to any of the other defendants
except Rivera-Cruz.1 See id. at 44. Finally, there is no
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issue of material fact that the complaint contained only
general allegations of supervisory liability on the part of
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1. Appellant's other tolling argument is without merit. He
attempts to invoke Article 40(3) of the Puerto Rico Code of
Civil Procedure, 32 L.P.R.A. 254, which provided that time
spent in prison is excluded from the limitations period. In
response to a question certified by this court to the Supreme
Court of Puerto Rico, it held that Article 40(3) had been
implicitly repealed in 1974. See Sierra-Serpa v. Martinez,
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No. 91-2062, slip op. at 2 (1st Cir. June 15, 1993) (per
curiam).
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Rivera-Cruz. As the district court held, 1983 liability
may not be based upon the theory of respondeat superior. See
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Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
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1989).
In relation to the third (treatment of appellant
during incarceration) and fourth (failure to return
appellant's property and clear the state court record) causes
of action, the district court's conclusion that they, too,
are time-barred is in error as a matter of law. The court
held that these claims accrued "no later" than February 22,
1989 -- the last date appellant was incarcerated. Relying on
Ramirez Morales v. Rosa Viera, 632 F. Supp. 491, 492 (D.P.R.
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1986), aff'd on other grounds, 815 F.2d 2 (1st Cir. 1987),
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the court then held that the day of the "triggering event" --
here, appellant's release from prison -- counts as the first
day for determining the limitations period. Thus, the court
concluded, the one-year period ended on February 21, 1990 and
appellant's complaint, unless tolled, was one day late.
We have held, however, that in a 1983 action, the
first day is excluded from the limitations period:
[U]nder the controlling Puerto
Rican case law, the one year
prescriptive period expires on
the anniversary of the accrual
of the cause of action, not on
the day before. The cases
hold, contrary to the district
court, that the first day does
not count towards prescription.
See Escalera v. Andino, 76 PRR
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251 (1954).
Luciano v. Ortiz-Alvarez, No. 91-1802 (November 15, 1991).
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Thus, because the one-year period began to run on February
23, 1989, the complaint is timely as to the third and fourth
claims.
Finally, the district court did not address
appellant's contention that the events described in his first
two claims amounted to malicious prosecution. This claim,
although not made in the complaint, surfaced in appellant's
response to the district court's order of dismissal and is
raised on appeal. Such a claim is cognizable under 1983.
Morales v. Ramirez, 906 F.2d 784, 787 (1st Cir. 1990); Torres
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v. Superintendent of Police, 893 F.2d 404, 408 (1st Cir.
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1990). Because acquittal is one of the elements required to
state a claim of malicious prosecution, the cause of action
could not accrue until acquittal had occurred -- in this
case, February 22, 1989. Thus, for the reasons stated above,
this claim also is not time-barred.
Based on the foregoing, we affirm the judgment of
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the district court dismissing appellant's first and second
causes of action, except as they relate to a claim for
malicious prosecution. We reverse the judgment of the
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district court dismissing the third and fourth causes of
action. On remand, the court should consider whether
appellant has met the requirements for a 1983 claim of
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malicious prosecution, see Morales, 906 F.2d at 787-90;
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Torres, 893 F.2d at 408-11. The court also should consider
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appellees' defenses of prosecutorial and qualified immunity.
See generally Malachowski v. City of Keene, 787 F.2d 704 (1st
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Cir.) (per curiam), cert. denied, 479 U.S. 828 (1986).
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Finally, the question whether appellant fails to state a
claim in relation to certain appellees because he alleges
only supervisory liability may dispose of some of the
remaining claims against these appellees. See generally
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Gutierrez-Rodriguez, 882 F.2d at 562.
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Affirmed, in part, reversed, in part, and remanded
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for further proceedings not inconsistent with this opinion.
As for motions currently pending before this court, we take
the following action. Appellant's request for sanctions
under Fed. R. Civ. P. 11 and his motion to quash
certification are denied. His requests that we order the
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district court to allow him to amend his complaint and
conduct further discovery are denied; such motions must be
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addressed to the district court.
Finally, appellant has requested an in banc
opinion. Such a request is governed by Fed. R. App. 35(c)
which provides that a request that "an appeal be heard
initially in banc . . . must be made by the date on which the
appellee's brief is filed." The last brief to be filed by an
appellee was on November 16, 1992, well before the filing of
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the motion at hand. We therefore deny the request without
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prejudice to refiling it in the form of a petition for
rehearing in banc.
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