Calero-Colon v. Betancourt-Lebron

USCA1 Opinion










UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 95-1193

RICARDO CALERO-COLON, ET AL.,

Plaintiffs, Appellants,

v.

ISMAEL BETANCOURT-LEBRON, ETC., ET AL.,

Defendants, Appellees.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, U.S. District Judge] ___________________


____________________

Selya,

Cyr and Lynch,

Circuit Judges. ______________

____________________



Jose A. Pagan Nieves, with whom Elisa A. Fumero Perez, Jose A. _____________________ ______________________ _______
Pagan Nieves Law Offices and Nector Robles Abraham were on brief for ________________________ ______________________
appellants.
Lorraine J. Riefkohl, Assistant Solicitor General, with whom _____________________
Carlos Lugo-Fiol, Solicitor General, and Jacqueline Novas-Debien, _________________ ________________________
Deputy Solicitor General, were on brief for appellees.


____________________

October 17, 1995
____________________















CYR, Circuit Judge. Ricardo Calero-Col n ("Calero") CYR, Circuit Judge. _____________

and Eric Robles-Abraham ("Robles") challenge a district court

ruling dismissing their civil rights action under 42 U.S.C.

1983 for failure to state a claim upon which relief may be

granted. See Fed. R. Civ. P. 12(b)(6). As the district court ___

incorrectly concluded that their claims were time-barred, we

vacate the judgments and remand for further proceedings.


I I

BACKGROUND1 BACKGROUND __________

On February 9, 1993, Calero commenced this action

against various police officers of the Commonwealth of Puerto

Rico and their confidential informants. Robles followed suit on

November 2, 1993, and the cases were consolidated. At the heart

of both complaints are allegations that Jos Crespo-Guill n

("Crespo") an undercover Puerto Rico police officer and a

confidential informant named Rosa, persuaded certain Commonwealth

authorities to provide front money for undercover drug buys which

never were intended to take place. The complaints asserted that

Crespo and Rosa falsely identified appellants as the "sellers" in

two concocted undercover drug buys, thereby causing arrest

warrants to issue against each. Calero was arrested on August 1,

1990, and Robles on March 20, 1992, for allegedly selling one

ounce of cocaine to Crespo. On July 1, 1992, Calero was acquit-
____________________

1Rule 12(b)(6) dismissals are reviewed under the rubric that
all reasonable inferences from well-pleaded facts are to be drawn
in appellants' favor. P rez-Ruiz v. Crespo-Guill n, 25 F.3d 40, __________ ______________
42 (1st Cir. 1994).

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ted; Robles was acquitted on July 2, 1993.

Although both Calero and Robles maintained their

innocence from the moment of their respective arrests, each

claims that he did not know the true nature and extent of the

scheme that led to the arrest until after he had been acquitted.

In all events, within months of their respective acquittals,

Calero and Robles initiated lawsuits alleging violations of the

Fourth and Fourteenth Amendments to the United States Constitu-

tion and violations of Puerto Rico law. Shortly thereafter, the

appellees moved to dismiss on the ground that the claims were

time-barred.

The district court deemed appellants' claims analogous

to the common law torts of false arrest and malicious prosecu-

tion. It found that the one-year limitation borrowed from Puerto

Rico law barred their respective false arrest claims, which

accrued at the dates of arrest.2 Although the court ruled that

their "malicious prosecution" type claims were not time-barred,

it held them not actionable under section 1983, whether on a

substantive or procedural due process theory. See Albright v. ___ ________

Oliver, 114 S. Ct. 807 (1994) (refusing to recognize substantive ______

due process right to be free from prosecution not based on

____________________

2See Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992), ___ ________ ______
aff'd on other grounds, 114 S. Ct. 807 (1994); Johnson v. Johnson ______________________ _______ _______
County Comm'n. Bd., 925 F.2d 1299, 1301 (10th Cir. 1991); Rose v. __________________ ____
Bartle, 871 F.2d 331, 351 (3d Cir. 1989); McCune v. City of Grand ______ ______ _____________
Rapids, 842 F.2d 903, 907 (6th Cir. 1988); Davis v. Harvey, 789 ______ _____ ______
F.2d 1332, 1333 n.1 (9th Cir. 1986); Singleton v. City of New _________ ____________
York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. ____ _____ ______
920 (1981).

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probable cause); P rez-Ruiz, 25 F.3d at 43 (commonwealth law __________

affords adequate post-deprivation remedy for "procedural due

process" type "malicious prosecution" claims). As no trialworthy

federal claims remained, the pendent commonwealth law claims were

dismissed without prejudice pursuant to 28 U.S.C. 1367(c)(3).

See Figuera Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir. 1990). ___ ____________ _______


II II

DISCUSSION3 DISCUSSION __________

A. Applicable Limitation Period A. Applicable Limitation Period ____________________________

Section 1983 creates "a species of tort liability" for

redressing deprivations of federal constitutional rights. Heck ____

v. Humphrey, 114 S. Ct. 2364, 2370 (1994) (quoting Memphis ________ _______

Community Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)). The ____________________ ________

limitation period governing personal injury actions under the law

of the forum state is borrowed for application to section 1983

claims. Wilson v. Garcia, 471 U.S. 261, 276-80 (1985); Guzman- ______ ______ _______

Rivera v. Rivera-Cruz, 29 F.3d 3, 4-5 (1st Cir. 1994). The one- ______ ___________

year limitation period prescribed in Article 1868(2) of the Civil

Code of Puerto Rico, P.R. Laws Ann. tit. 31, 5298(2) (1991),

governs these section 1983 claims.

B. Accrual Rules Governing Section 1983 Claims B. Accrual Rules Governing Section 1983 Claims ___________________________________________

The question before us is whether appellants brought

their section 1983 claims within the applicable one-year period

____________________

3We review Rule 12(b)(6) dismissals de novo. Clarke v. __ ____ ______
Kentucky Fried Chicken of Cal., Inc., 57 F.3d 21, 22 n.1 (1st ______________________________________
Cir. 1995).

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prescribed by Puerto Rico law. The dispute focuses on when the

one year began to run; in other words, when their respective

causes of action accrued. Federal law provides the applicable

accrual rule. Guzman-Rivera, 29 F.3d at 4-5. _____________

Section 1983 claims accrue when the plaintiff "knows or

has reason to know of the injury which is the basis of the

action." Street v. Vose, 936 F.3d 38, 40 (1st Cir. 1992) (quot- ______ ____

ing Torres v. Superintendent of Police, 893 F.2d 404, 407 (1st ______ _________________________

Cir. 1990)). For purposes of determining when a claimant knew or

had reason to know of the alleged injury, we look to the common

law cause of action most closely analogous to the constitutional

right at stake. Heck, 114 S. Ct. at 2371. As the elements in ____

any species of section 1983 "tort" are ordained by its constitu-

tional prototype, we first identify the particular constitutional

right allegedly infringed. See Albright v. Oliver, 114 S. Ct. ___ ________ ______

807, 811 (1994).

These complaints specifically state that Puerto Rico

police officers arrested Calero and Robles pursuant to a warrant

predicated on false allegations by Crespo and Rosa. Thus,

appellants' section 1983 claims directly implicate both their

Fourth Amendment right to be free from any unreasonable seizure

of their persons, see Lippay v. Christos, 996 F.2d 1490, 1502-03 ___ ______ ________

(3d Cir. 1993) (discussing Fourth Amendment standards in case

involving arrest based on warrant), and their Fourteenth Amend-

ment right to be free from criminal prosecution without due




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process of law.4














































____________________

4Appellants have not appealed from the district court ruling
dismissing their Fourteenth Amendment claims. See supra, pp. 3- ___ _____
4.

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The district court found the Fourteenth Amendment due

process claims more closely analogous to the tort of malicious

prosecution, but that the Fourth Amendment claims more closely

resembled the common law tort of false arrest. Even though

malicious prosecution5 and false arrest6 may seem distinct

enough in abstract definition, however, in a wrongful arrest case

particularly an arrest conducted pursuant to a warrant based ____________ __ ______ _________ ________ __ _ _______ _____

on false allegations the lines between the two may become __ _____ ___________

blurred. In the present case, we believe appellants' Fourth

Amendment claims more closely resemble the common law tort of

malicious prosecution as well.7

The Supreme Court has noted that the common law cause

of action for malicious prosecution, unlike false arrest, permits

____________________

5Generally speaking, in order to state a cause of action for
malicious prosecution, a claimant must allege: (1) the commence- _________ ___________
ment or continuation of a criminal proceeding by the defendant
against the plaintiff; (2) the termination of the proceeding in
favor of the accused; (3) the absence of probable cause for the
criminal proceeding; and (4) actual malice. Landrigan v. City of _________ _______
Warwick, 628 F.2d 736, 745 n.6 (1st Cir. 1980). _______

6Typically, the elements of a false arrest claim are said to _____ ______
be that: (1) the defendant intended to confine the plaintiff; (2)
the plaintiff was conscious of the confinement; (3) the plaintiff
did not consent to the confinement; and (4) the defendant had no
privilege to cause the confinement. See Restatement (Second) Of ___
Torts 35, 118 cmt. b (1965). Neither actual malice nor lack
of probable cause is an element of false arrest.

7Although there is no substantive due process right to be
free from malicious prosecution, see P rez-Ruiz, 25 F.3d at 42, ___ __________
the Supreme Court has held that a "malicious prosecution" type
claim may be actionable under the Fourth Amendment in a section
1983 action. Albright, 114 S. Ct. at 813. See also Malley v. ________ ___ ____ ______
Briggs, 475 U.S. 335 (1986) (discussing liability of police ______
officer who allegedly applied for arrest warrants, without
probable cause, in violation of the Fourth Amendment).

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damages for confinement pursuant to legal process. Heck, 114 S. ____

Ct. at 2371. The interest at stake in a malicious prosecution

claim is the right to be free from deprivations of liberty

interests caused by unjustifiable criminal charges and proce-

dures. In contrast, false arrests infringe upon the right to be

free from restraints on bodily movement.8 The remedies avail-

able in the two tort actions mirror the different interests at

stake. Damages for false arrest are restricted to the time

period between the initial detention and the issuance of legal

process, whereas the tort of malicious prosecution contemplates

general damages as well as compensation for any arrest and

imprisonment preceding the termination of the criminal proceed-

ing. Id. ___

The critical inquiry that distinguishes malicious

prosecution from false arrest in the present context is whether

the arrests were made pursuant to a warrant. Singer v. Fulton ______ ______

County Sheriff, No. 94-9093, 1995 WL 470283, at *5 (2d Cir. Aug. ______________

9, 1995). As a general rule, an unlawful arrest pursuant to a

warrant will be more closely analogous to the common law tort of

malicious prosecution. An arrest warrant constitutes legal

process, and it is the tort of malicious prosecution that permits

damages for confinement pursuant to legal process. On the other

hand, wrongful warrantless arrests typically resemble the tort of

false arrest. Id. ___
____________________

8For a cogent discussion of the two torts in the section
1983 context, see Singer v. Fulton County Sheriff, No. 94-9093, ______ _____________________
1995 WL 470283 (2d Cir. Aug. 9, 1995).

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For the foregoing reasons, we hold that for purposes

of determining the appropriate accrual rule both the Fourth

and Fourteenth Amendment claims more closely resemble the common

law tort of malicious prosecution. Consequently, appellants'

section 1983 claims did not accrue until their respective crimi-

nal prosecutions ended in acquittals. Heck, 114 S. Ct. at 2371; ____

Guzman-Rivera, 29 F.3d at 5. _____________

All that remains is to apply the accrual rule. Calero

was acquitted on July 1, 1992. Well within the one-year limita-

tion on February 9, 1993 he commenced the present action.

Similarly, Robles was acquitted on July 2, 1993, and brought suit

on November 2, 1993. Thus, their section 1983 claims are not

time-barred.


III III

CONCLUSION CONCLUSION __________

In sum, reference to common law tort principles is

appropriate in identifying the most suitable rule of accrual for

application to section 1983 claims, always bearing in mind the

legislative aims which Congress sought to advance by establishing

a federal forum for redressing deprivations of constitutional

rights. Cf. Wyatt v. Cole, 112 S. Ct. 1827, 1831 (1992) (noting __ _____ ____

that common law immunities are not necessarily applicable to

section 1983 claims). Accordingly, the essential elements of

actionable section 1983 claims derive first and foremost from the

Constitution itself, not necessarily from the analogous common

law tort. See Graham v. Connor, 490 U.S. 386, 394-97 (1989) ___ ______ ______

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(analyzing excessive force claim under Fourth Amendment stan-

dards). Consequently, on remand Calero and Robles must establish

that their respective Fourth Amendment rights were violated by

one or more appellees. See, e.g., Lippay, 996 F.2d at 1502-03 ___ ____ ______

(discussing one theory of liability for violating the Fourth

Amendment).

The district court judgments are vacated, and the case ___ ________ _____ _________ ___ _______ ___ ___ ____

is remanded for further proceedings consistent with this opinion. __ ________ ___ _______ ___________ __________ ____ ____ ________

Costs are awarded to appellants. _____ ___ _______ __ __________



- Concurring Opinion Follows -
































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LYNCH, Circuit Judge, concurring. I write separately LYNCH, Circuit Judge, concurring __________________________

to stress my understanding that in Fourth Amendment claims under

1983 arising out of a warrantless arrest the statute of limita-

tions may typically, but does not necessarily, begin to run at ___________

the time of arrest.

There may be circumstances in which plaintiffs neither

knew, nor had reason to know, at the time of their warrantless

arrests that they had suffered a constitutional injury and so the

statute would not begin to run upon arrest. Similarly, the

arrest may lead to a chain of events leading to a different

characterization of the entire constitutional injury, and so a

different accrual date. See Robinson v. Maruffi, 895 F.2d 649, ________ _______

654-55 (10th Cir. 1990). That the common law of false arrest has

often been interpreted to establish that the common law cause of

action accrues upon the arrest1 does not answer the question of

the accrual date for 1983 actions. The Supreme Court in

Albright v. Oliver, 114 S. Ct. 807 (1994), and earlier cases, ________ ______

see, e.g., Graham v. Connor, 490 U.S. 386, 395 (1989), has ___ ____ ______ ______

instructed federal courts to look to the true nature of the

constitutional claims being asserted, rejecting labels.

As Judge Cyr's very thoughtful opinion states: "[t]he

essential elements of actionable section 1983 claims derive first

and foremost from the Constitution itself, not necessarily from

the analogous common law tort." Accordingly, the law does not,

____________________

1But see Justice Ginsburg's views in her concurring opinion
in Albright v. Oliver, 114 S. Ct. 807, 814-817 (1994). ________ ______

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I believe, bind the accrual date for the constitutional tort in

warrantless arrests inevitably and invariably to the date of

arrest. The case of a warrantless arrest is not before us, and

no more now need be said.














































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