Perez Ruiz v. Crespo Guillen

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2264
JESUS M. P REZ-RUIZ, ET AL.,

Plaintiffs, Appellants,

v.

JOS CRESPO-GUILL N, ET AL.,

Defendants, Appellees.

No. 93-2267
ZOILO LOPEZ-DE JESUS,

Plaintiff, Appellant,

v.

JOS CRESPO-GUILL N, ET AL.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, U.S. District Judge]

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

and Cyr, Circuit Judge.

Enrique Bray, with whom Harvey B. Nachman, M. Georgina Carrion-

Christiansen, and Nachman, Santiago, Bray, Guillemard & Carrion were

on brief for appellants.
Jacqueline D. Novas, Special Assistant to Attorney General, with

whom Pedro A. Delgado Hernandez, Solicitor General, was on brief for

appellees.

June 2, 1994

2

CYR, Circuit Judge. Appellants Perez and Lopez were
CYR, Circuit Judge.

arrested and detained in connection with separate incidents on

July 31, 1990, in Santurce, Puerto Rico, and charged with selling

cocaine. Both were released on bail after being detained for

less than twenty-four hours. Perez was acquitted in August 1991

and the Lopez charges were dismissed "for lack of evidence" in

March 1992.

On June 24, 1992, plaintiffs-appellants brought virtu-

ally identical civil rights actions under 42 U.S.C. 1983, with

pendent commonwealth law claims, essentially alleging that the

cocaine charges were trumped up. Defendants-appellees are

various law enforcement officers and officials of the Common-

wealth of Puerto Rico allegedly involved in arresting and prose-

cuting appellants. The complaint asserts claims of false arrest,

false imprisonment, and malicious prosecution. Appellants

further claim that the alleged civil rights infractions were

elements of a larger conspiracy against appellants and other

businessmen.1

1Appellants urge that we treat the alleged conspiracy as a
"continuing violation." We need not address this contention. In
view of our conclusion that appellants failed to plead an action-
able claim for malicious prosecution, their time-barred claims
for false arrest and false imprisonment in 1990 cannot be saved
by any subsequent termination of their invalid malicious prosecu-
tion claims. See Mack v. Great American Atlantic & Pacific Tea

Co., 871 F.2d 179, 183 (1st Cir. 1989) ("In short, [continuing]

violation or no, plaintiff retained the burden of demonstrating
that some [violation] transpired within the appropriate time

frame.").

3

The Lopez and Perez actions were assigned to different

district judges. Defendants-appellees filed essentially identi-

cal motions to dismiss on the ground that the section 1983 claims

were time-barred under the applicable one-year limitation bor-

rowed from commonwealth law. See Lafont-Rivera v. Soler-Zapata,

984 F.2d 1, 3 (1st Cir. 1993). After the district court denied

the motion to dismiss the Lopez action, the two cases were

consolidated under Fed. R. Civ. P. 42, and docketed to Judge

Gierbolini who eventually dismissed the consolidated action on

the grounds that the false imprisonment and false arrest claims

were time-barred and the complaint failed to state an actionable

section 1983 claim for malicious prosecution, see Torres v.

Superintendent of Police, 893 F.2d 404, 409 (1st Cir. 1990) (only

"egregious" misconduct implicates 1983 remedy; "malicious

prosecution standing alone does not implicate federally protected

rights").

Appellants first challenge the dismissal order on the

ground that the earlier district court ruling denying the motion

to dismiss in the Lopez action became the "law of the case" in

the consolidated action. Appellants misapprehend the "law of the

case" doctrine. Interlocutory orders, including denials of

motions to dismiss, remain open to trial court reconsideration,

and do not constitute the law of the case. Union Mut. Life Ins.

Co. v. Chrysler Corp., 793 F.2d 1, 15 (1st Cir. 1986) (citing 1B

James W. Moore et al., Moore's Federal Practice 0.404[4.1], at

4

124 n.4 ("[U]ntil entry of judgment, [interlocutory orders]

remain subject to change at any time. The doctrine of law of the

case does not limit the power of the court in this respect.")

(emphasis added) (2d ed. 1993)); see also Commerce Oil Refining

Corp. v. Miner, 303 F.2d 125, 128 (1st Cir. 1962) ("a ruling

denying a motion to dismiss is not the law of the case, and is

not final even in the district court"). Second, although the law

of the case doctrine implements an important judicial policy

against reconsidering settled matters, it "is neither an absolute

bar to reconsideration nor a limitation on a federal court's

power." United States v. Rivera-Martinez, 931 F.2d 148, 150-51

(1st Cir.), cert. denied, 112 S. Ct. 184 (1991).

Appellants also challenge the merits of the dismissal

order. We review Rule 12(b)(6) dismissals under the rubric that

all reasonable inferences from properly pleaded facts are to be

drawn in appellants' favor. The Dartmouth Review v. Dartmouth

College, 889 F.2d 13, 16 (1st Cir. 1989).

The district court concluded that the malicious prose-

cution claim, whether construed as asserting a substantive or a

procedural due process violation, was not actionable under

section 1983. Torres, 893 F.2d at 409. ("[T]o state a claim

under section 1983, the complaint must assert that the malicious

conduct was so egregious that it violated substantive or proce-

dural due process rights under the Fourteenth Amendment.") An

actionable section 1983 malicious prosecution claim based on a

5

substantive due process deprivation must allege "conscience-

shocking" conduct by the defendants. Id. at 410 (citations

omitted). A procedural due process claim is not actionable

unless, inter alia, no adequate "post-deprivation remedy" is

available under state law. Id.

Neither their appellate brief nor their complaints

identify the due process theory undergirding appellants' section

1983 malicious prosecution claim. Nevertheless, the district

court's analysis and application of Torres, which stated the

controlling law of this circuit at the time this case was decid-

ed, seems entirely correct. Since then, moreover, appellants'

position has become even less tenable in light of the Supreme

Court's decision in Albright v. Oliver, 114 S. Ct. 807 (1994).

Albright would appear virtually to foreclose reliance on substan-

tive due process as the basis for a viable malicious prosecution

claim under section 1983 superseding even Torres' very limited

tolerance of reliance on substantive due process in this area.

Four Justices concluded that a section 1983 claim alleging

malicious prosecution cannot be predicated on "open-ended"

conceptions of substantive due process. See id. at 810-19

(Opinion of Rehnquist, C.J., joined by O'Connor, Scalia, and

Ginsburg, JJ.).2 Moreover, two Justices, in a concurring opin-

2The Albright plurality summarized its position at the end

of footnote 4, 114 S. Ct. 811, as follows:

6

ion, found that the availability of an adequate state remedy

precluded reliance on section 1983. See id. at 817-19. (Opinion

of Kennedy, J., joined by Thomas, J.). Justice Souter, in a

separate concurrence, concluded that Albright had demonstrated no

distinct injury from the alleged malicious prosecution, and that

his custody-based claims were better addressed under the Fourth

Amendment. See id. at 819-22 (Opinion of Souter, J.).

Lastly, the availability of an adequate remedy for

malicious prosecution under commonwealth law, see P. R. Laws Ann.

tit. 31, 5141 (1991), is fatal to appellants' procedural due

process claim. Smith v. Massachusetts Dep't of Correction, 936

F.2d 1390, 1402 (1st Cir. 1991); see also Albright v. Oliver, 975

F.2d 343, 347 (7th Cir. 1992) ("The multiplication of remedies

for identical wrongs, while gratifying for plaintiffs and their

lawyers, is not always in the best interest of the legal system

or the nation."), aff'd, 114 S. Ct. 807 (1994).

Affirmed.
Affirmed.

In view of our disposition of this case, it
is evident that substantive due process may
not furnish the constitutional peg on which
to hang such a "tort."

7