Cao v. Commonwealth of Puerto Rico

United States Court of Appeals
For the First Circuit
No. 07-1394

DOLORES H. CAO,

Plaintiff, Appellant,

v.

COMMONWEALTH OF PUERTO RICO THROUGH THE SECRETARY OF JUSTICE,
ROBERTO SÁNCHEZ-RAMOS; PUERTO RICO DEPARTMENT OF FAMILY;
PUERTO RICO DEPARTMENT OF FAMILY, UNIT OF SUBSTITUTE CARE
OF ADULTS; FÉLIX MATOS-RODRÍGUEZ, in his personal capacity and as
Secretary of the Department of the Family; STATE PSYCHIATRIC
HOSPITAL; ADMINISTRATOR B OF STATE PSYCHIATRIC HOSPITAL,
DOCTOR X; UNKNOWN DEFENDANTS; AB INSURANCE COMPANY;
BC INSURANCE COMPANY; CD INSURANCE COMPANY;
DF INSURANCE COMPANY; FG INSURANCE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. Senior District Judge]

Before

Torruella, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Smith,** District Judge.

Ralph Vallone, Jr., with whom Ralph Vallone, Jr. Law Offices
was on brief, for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Salvador J. Antonetti-Stutts,
Solicitor General, Mariana Negrón-Vargas, Deputy Solicitor General,
and Maite D. Oronoz-Rodríguez, Deputy Solicitor General, were on

*
Of the Tenth Circuit, sitting by designation.
**
Of the District of Rhode Island, sitting by designation.
brief, for appellees Commonwealth of Puerto Rico; Puerto Rico
Department of the Family; Puerto Rico Department of the Family,
Unit of Substitute Care of Adults; Félix Matos-Rodríguez; and State
Psychiatric Hospital.

May 13, 2008

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 TORRUELLA, Circuit Judge. Dolores H. Cao, an elderly

resident of Cupey, Puerto Rico, was removed from her home, made to

undergo a psychological evaluation, and placed in a substitute home

and, later, a state institution for the elderly, by the Puerto Rico

Family Department ("the Department"). She seeks recovery under 42

U.S.C. §§ 1981 and 1983 for alleged violations of her procedural

due process and equal protection rights, as well as under several

state law causes of action. The district court dismissed Cao's

complaint under Federal Rule of Civil Procedure 12(b)(6). After

careful consideration, we affirm the district court's dismissal.

I. Background

Cao is a seventy three year-old woman who, at the time of

these incidents, lived alone in a very rundown house; its roof had

severe leaks and wild doves had entered through the openings and

nested inside. On March 16, 2004, Cao was removed from her home by

a Department social worker for fear that she was living in subhuman

conditions and suffering from Alzheimer's disease. After removing

Cao, the social worker took her to the local police department.

Police officers transported Cao to the state psychiatric hospital

where she was evaluated by two doctors. They diagnosed her with

Senile Dementia Alzheimer I.

A Puerto Rico state court ordered Cao placed in a

substitute home. On March 29, 2004, the court granted temporary

custody over Cao to her son, and she was sent to live with him for

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a period of ten months. This placement was cut short, however, due

to overcrowding and financial problems, and on December 1, 2004,1

Cao was transferred to a state institution for the elderly. She

remained there until May 2005, when she returned to her own home

and brought an action in state court contesting her Alzheimer's

diagnosis. Cao was able to prove that she had never suffered from

the disease and, on July 21, 2005, the state court dismissed the

Department's ongoing custody proceedings and lifted the temporary

custody order it had granted Cao's son.

Cao then filed a complaint in federal district court on

June 26, 2006. In it, she sought recovery under 42 U.S.C. §§ 1981

and 1983 for alleged violations of her procedural due process and

equal protection rights. She also put forth several state law

causes of action. Cao named as defendants, inter alia, the

Commonwealth of Puerto Rico, the Department and its Substitute Care

of Adults Unit, the State Psychiatric Hospital, and former

Department Secretary Yolanda Zayas (collectively, "the

Commonwealth"). The Commonwealth moved for dismissal pursuant to

Federal Rule of Civil Procedure 12(b)(6), and the district court

granted the motion on November 28, 2006. In its Opinion and Order,

the district court found § 1981 inapplicable because Cao had failed

1
This was the date utilized by the district court in its
dismissal order. Inasmuch as Cao's brief refers to both
December 1, 2004 and December 12, 2004 in connection with Cao's
entry into the state elderly citizens' institution, the use of
either date does not affect our analysis.

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to allege any racial discrimination; Cao's § 1983 claims failed

because they were time-barred, and the district court declined to

exercise supplemental jurisdiction over her state law claims. Cao

now appeals the district court's dismissal of her § 1983 and state

law claims.2

II. Discussion

A. 42 U.S.C. § 1983

Section 1983 grants plaintiffs a private cause of action

to recover for certain constitutional violations. See 42 U.S.C.

§ 1983 (2000); Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.

2008). In bringing suit, however, plaintiffs must act within the

prescribed statute of limitations; otherwise, the defendant may use

the untimely filing as an affirmative defense which, if validated,

precludes the court from granting the requested relief. See In re

Cumberland Farms, Inc., 284 F.3d 216, 225 (1st Cir. 2002). Both

parties agree that, in determining the applicable prescriptive

period for a § 1983 claim, we look to the statute of limitations

period for personal injury cases in the forum state. Ruiz-Sulsona

v. Univ. of P.R., 334 F.3d 157, 159 (1st Cir. 2003). In Puerto

Rico, where the complained-of actions took place, the statute of

2
In her appellate brief, Cao asserts that she is entitled to
Title VII protection. As this argument is not developed beyond a
cursory mention, we deem it to be waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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limitations for personal injury and, hence, § 1983 cases is one

year. Id.; P.R. Laws Ann. tit. 31, § 5298(2) (2005).

The parties nevertheless disagree on the day this one

year term accrued. Under federal law, a § 1983 statute of

limitations ordinarily accrues when the aggrieved person "'knows,

or has reason to know, of the injury on which the action is

based.'" Carreras-Rosa v. Alves-Cruz, 127 F.3d 172, 174 (1st Cir.

1997) (per curiam) (quoting Rivera-Muriente v. Agosto-Alicea, 959

F.2d 349, 353 (1st Cir. 1992)). The Commonwealth identifies this

as occurring on March 16, 2004, the day Cao was first removed from

her home, while Cao instead puts forth August 2, 2005, the day she

was notified that the state court had dismissed all custody

proceedings against her. Cao's preferred date is identified based

on her theory that an element implicit in our accrual date analysis

is that the plaintiff have "the ability to act legally with

capacity." She asserts that she lacked this ability until the

state custody proceedings against her were dismissed.

Cao's argument is misguided. As we have time and again

repeated, the accrual date for a § 1983 action is simply the date

when the potential plaintiff knew or should have known that she was

harmed. See, e.g., Villanueva-Méndez v. Nieves-Vázquez, 440 F.3d

11, 15 (1st Cir. 2006) (citing Chardón v. Fernández, 454 U.S. 6, 8

(1981)). In the case at bar, Cao had, or should have had, this

knowledge on March 16, 2004, the day she was removed from her home.

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At the very latest, Cao should have known of her injury on

December 1, 2004, the date of her last alleged violation: her

placement in the state elderly citizens' home. Cf. Evans v. City

of Chicago, 434 F.3d 916, 935 (7th Cir. 2006) (finding a claim to

be time-barred based on the date of the plaintiff-appellant's last

injury); see also Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir.

2001) (holding that, in the context of a conspiracy to violate

civil rights, the statute of limitations runs separately for each

alleged civil rights violation). Even under this later accrual

date though, the statute of limitations for Cao's § 1983 claim

expired one year later on December 1, 2005; more than a year and a

half before Cao filed her complaint.

Cao nonetheless persists in arguing that her alleged

incapacity during the pendency of the state court custody

proceedings mandates the application of equitable tolling.

Equitable tolling, however, is a doctrine sparsely applied, and it

cannot be used to rescue a plaintiff from his or her lack of

diligence. Neverson v. Farquharson, 366 F.3d 32, 42 (1st Cir.

2004). In the case at hand, Cao neglected to argue equitable

tolling at the trial level until her motion for reconsideration.

She thus failed to preserve her equitable tolling argument for

appeal. See Iverson v. City of Boston, 452 F.3d 94, 104 (1st Cir.

2006) ("The presentation of a previously unpled or undeveloped

argument in a motion for reconsideration neither cures the original

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omission nor preserves the argument as a matter of right for

appellate review."). The district court summarily denied Cao's

motion for reconsideration, and we cannot say this was in abuse of

its discretion. Id.; accord Global Naps, Inc. v. Verizon New

England, Inc., 489 F.3d 13, 25-26 (1st Cir. 2007) (identifying our

standard of review for denial of a motion for reconsideration as

abuse of discretion, and failing to find this standard met where

such motion was used to present a new or previously undeveloped

argument). The district court properly dismissed Cao's § 1983

claim as untimely.

B. State Law Claims

As the district court correctly found Cao's § 1983 claim

time-barred, no federal cause of action remains. Under 28 U.S.C.

§ 1367(c) then, the district court was well within its discretion

in declining to exercise its supplemental jurisdiction over the

remaining state law claims. See Morales-Santiago v. Hernández-

Pérez, 488 F.3d 465, 472 (1st Cir. 2007). Because these state law

claims were dismissed without prejudice, Cao is free to assert them

in the appropriate state forum. See Orta-Castro v. Merck, Sharpe

& Dohme Química P.R., Inc., 447 F.3d 105, 114 (1st Cir. 2006).

III. Conclusion

In accord with our analysis, the district court's

dismissal is affirmed.

Affirmed.

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