United States Court of Appeals
For the First Circuit
No. 03-1120
VÍCTOR VEGA-ENCARNACIÓN,
Plaintiff, Appellant,
v.
EUSTAQUIO BABILONIA, Deputy Chief, U.S. Probation Office;
LUIS O. ENCARNACIÓN-CANALES, U.S. Probation Officer;
LUIS O. PÉREZ, Deputy U.S. Marshal; PEDRO ZAYAS,
Deputy U.S. Marshal; JESÚS R. GONZÁLEZ, DEA Special Agent;
RAFAEL A. SANTIAGO, DEA Special Agent; EDWIN O. VÁZQUEZ, AUSA;
RAFAEL ESCOBAR, Deputy U.S. Marshal; ALL IN THEIR PERSONAL AND
INDIVIDUAL CAPACITIES,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U. S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
José R. Franco and José R. Franco Law Office on brief for
appellant.
Miguel A. Fernández, Assistant U.S. Attorney, Chief, Civil
Division, Fidel A. Sevillano-Del Río, Assistant U.S. Attorney, and
H.S. García, United States Attorney, on brief for appellees.
September 12, 2003
BOUDIN, Chief Judge. Victor Vega-Encarnación appeals
from a district court order granting defendants' motion to dismiss
his civil rights complaint against eight federal officials.
According to Vega's complaint, on February 2, 2001,
Probation Officers Babilonia and Encarnación-Canales telephoned
Vega and ordered him to report to the Probation Office in Hato Rey,
Puerto Rico. At the time, Vega was serving a five-year term of
supervised release. When Vega arrived, he was arrested by Deputy
Marshals Pérez and Zayas for violating unspecified terms of his
supervised release. Pérez and Zayas seized from Vega a number of
personal items, including the keys to a Nissan Pathfinder, which
Vega had left parked across the street from a 7-11 Store on Chardon
Avenue near the Probation Office.
Vega says in his complaint that he was allowed to call
his brother to arrange for the retrieval of his personal items and
his car. According to Vega, he called his brother shortly after 3
p.m. in the presence of Encarnación, Babilonia, Pérez, and Zayas.
He told his brother where the car was parked and instructed him to
come to the Probation Office, recover the keys from Encarnación and
Babilonia, and drive it back to Vega's house. The defendants deny
that Vega successfully contacted his brother or anyone else to
arrange for the retrieval of the car.
Vega says in his complaint that his brother arrived at
the Probation Office at approximately 4:50 p.m. accompanied by a
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paralegal who worked for Vega's attorney. According to Vega, his
brother saw that the car was not where Vega had reported it to be,
and he went into the Probation Office and asked to speak with the
probation officers, but was told they were unavailable. Vega says
that a phone call by the paralegal to the Probation Office also
proved futile. Defendants apparently deny that Vega's brother came
to the Probation Office that day.
In all events, after arresting Vega, the marshals took
Vega to be booked and processed. Then, Deputy U.S. Marshals
Escobar and Pérez used the key seized from Vega to drive Vega's car
to a secure lot. There they conducted an inventory search of the
vehicle. Vega asserts that during the course of this search,
Escobar and Pérez broke open Vega's locked briefcase and discovered
within it $7,000 in loose cash and 32 pill-like tablets. The
marshals reported their findings to AUSA Vázquez, who in turn
relayed the information to DEA agents González and Santiago.
González and Santiago then had a trained narcotics dog sniff the
tablets, and the dog "alerted positive."
Defendants admit that they seized the car and that they
conducted an inventory search of it. They claim that the search
was conducted in accordance with written U.S. Marshals Service
guidelines. Defendants say that they found the money and the
tablets in the car; they do not say whether they broke open Vega's
briefcase during the search.
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DEA Agents González and Santiago then went before a
magistrate judge, seeking a search warrant for Vega's car. Vega
alleges that González and Santiago deliberately omitted from their
warrant application the fact that the car had already been subject
to an inventory search, which had turned up incriminating evidence.
Defendants admit applying for the search warrant, but do not say
whether the inventory search results were omitted from the
application. The magistrate judge issued the warrant, and González
and Santiago seized the cash and the tablets, which turned out to
be the illegal drug known as Ecstasy.
On February 27, 2002, Vega (now in jail) filed a pro se
civil action against Probation Officers Babilonia and Encarnación,
Deputy U.S. Marshals Pérez and Zayas, and DEA agents González and
Santiago in the federal district court in Puerto Rico. The
complaint sought compensatory and punitive damages for violations
of Vega's Fourth Amendment rights. See Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Vega
later amended his complaint to add as defendants AUSA Vázquez and
Deputy U.S. Marshal Escobar. The defendants answered, and
thereafter moved to dismiss Vega's amended complaint for, inter
alia, failure to state a claim and lack of personal jurisdiction
over AUSA Vázquez due to insufficient service of process.
On October 28, 2002, the district court, believing
defendants' motion to be unopposed, granted it and entered judgment
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for the defendants. Vega's motion to extend the filing deadline
for his response to defendants' motion arrived the same day as the
entry of judgment, but the district court ruled that it was moot.
After filing two post-judgment motions, which were both denied,
Vega filed this appeal.
In reviewing the district court's brief, one-page order,
we are uncertain of the basis for dismissal. In substance, it says
only that "[a]bsent opposition, and it appearing that dismissal of
the complaint is warranted due to plaintiff's failure to state a
claim upon which relief can be granted, ... Defendants' Motion to
Dismiss ... is hereby GRANTED."
Possibly dismissal was granted because Vega failed to
file timely opposition. In the district court in Puerto Rico,
failure to respond to a motion "renders a party susceptible to
involuntary dismissal, pursuant to [Federal Rule of Civil
Procedure] 41(b), for failure to prosecute." Negron-Gaztambide v.
Hernandez-Torres, 35 F.3d 25, 26 n.4 (1st Cir. 1994) (citing Local
Rule 313.3 (D.P.R.)). In this case, our own review of the record
suggests that, even under the prisoner mail-box rule, Morales-
Rivera v. United States, 184 F.3d 109, 110-11 (1st Cir. 1999),
Vega's motion to enlarge the time for his response was late by
approximately one week. See Fed. R. Civ. P. 6(a); Local Rule 311.5
(D.P.R.).
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Nevertheless, Vega's tardiness does not automatically
result in dismissal, Nepsk, Inc. v. Town of Houlton, 283 F.3d 1,
7 (1st Cir. 2002), and the district court does not mention failure
to prosecute or Local Rules 311.5 and 313.3. Given that Vega was
a prisoner proceeding pro se at the time the district court entered
its decision, we are doubtful that dismissal was imposed as
punishment for a missed deadline, cf. Bachier-Ortiz v. Colon-
Mendoza, 331 F.3d 193, 195 (1st Cir. 2003) (generally reserving the
sanction of dismissal for lack of prosecution to situations where
plaintiff's misconduct is "serious, repeated, contumacious,
extreme, or otherwise inexcusable").
Another possible reading of the district court's order is
that, "[a]bsent opposition," the district court accepted the
description of events in defendants' motion to dismiss as accurate.
If the defendants' version of events is accepted, then their
decision to impound the car almost certainly falls within the
community caretaking exception to the warrant requirement, with the
result that Vega's complaint probably does fail to state a claim
upon which relief can be granted. See Colorado v. Bertine, 479
U.S. 367, 369, 371, 375-76 (1987); United States v. Ramos-Morales,
981 F.2d 625, 626-27 (1st Cir. 1992).
The problem is that when deciding a motion to dismiss on
the merits, a district court is obliged to accept the factual
allegations contained in the complaint as true. Martin v. Applied
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Cellular Tech., 284 F.3d 1, 5-6 (1st Cir. 2002). If the merits are
at issue, the mere fact that a motion to dismiss is unopposed does
not relieve the district court of the obligation to examine the
complaint itself to see whether it is formally sufficient to state
a claim. See Pinto v. Universidad de Puerto Rico, 895 F.2d 18, 19
& n.1 (1st Cir. 1990); see also McCall v. Pataki, 232 F.3d 321,
322-23 (2d Cir. 2000). Thus, the defendants' version of events, as
yet untested, is not itself a basis for finding that Vega "fail[ed]
to state a claim . . . ."
There may be some other basis for concluding that the
complaint failed to state a claim. For example, under Bertine, law
enforcement officials are not required to give arrestees the
opportunity to make arrangements for their vehicles when deciding
whether impoundment is appropriate. 479 U.S. at 373-74. But law
enforcement officials are required to have a non-investigatory
reason for seizing an arrestee's car in the first place. Id. at
375-76. Case law supports the view that where a driver is arrested
and there is no one immediately on hand to take possession, the
officials have a legitimate non-investigatory reason for impounding
the car. Cf. Ramos-Morales, 981 F.2d at 626-27 (to protect it from
vandalism).
Whether this reasoning works where, as here, Vega was
allowed to call his brother to pick up the car, is an issue that
might be debated. Of course, on the defendants' version of events
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no such successful call was made; but we have to suppose for
present purposes that Vega's version is true. And, as the legal
question is somewhat unusual and certainly has not been explicitly
decided by the district court or briefed in this court, it hardly
makes sense for us to address it in the first instance. Indeed,
the district court's dismissal for failure to state a claim may
rest upon some other basis.
Under the circumstances, we think that the appropriate
solution is to vacate the district court's order and to remand for
further proceedings. The district court is free to reinstate its
order, so long as it provides a basis for concluding that no claim
has been stated, and that order will in turn be subject to review
on appeal if Vega chooses to file one. Or, on further
consideration, the district court is free to deny the motion to
dismiss and conduct further appropriate proceedings.
A couple of other points deserve mention. First, Vega's
Bivens claim had two other aspects: one that the inventory search
of the briefcase was unlawful even if the car was properly
impounded and the other that the warrant was defective because it
was procured without adequate disclosure. The first of these two
variations is uncertain--the marshals apparently rely on
guidelines, cf. Florida v. Wells, 495 U.S. 1, 4-5 (1990), whose
contents are not part of the record; and the second is quite
doubtful since the other evidence in the application was arguably
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sufficient. See Franks v. Delaware, 438 U.S. 154, 156 (1978). But
these are matters that should be sorted out on remand and not made
the subject of piece-meal review.
In addition, on appeal, the defendants say that the
statute of limitations on Vega's claim had run and, although not
asserted below as a ground for the dismissal, the issue is
jurisdictional. It is not: the statute of limitations as to a
Bivens action against individual officers is simply an affirmative
defense and does not affect a court's subject matter jurisdiction.
See Roberts v. College of the Desert, 870 F.2d 1411, 1414 (9th Cir.
1989); Paetz v. United States, 795 F.2d 1533, 1536 (11th Cir.
1986). The limitations defense--although adequately preserved by
the answer to the complaint--is a matter complicated by prior
attempts to file the complaint and should be addressed in the first
instance in the district court.
We remand as well the dismissal as to defendant Vázquez
for lack of personal jurisdiction due to insufficient service of
process. So far as we can tell from the record, the defendants'
answer filed prior to the motion to dismiss did not plead lack of
personal jurisdiction or insufficiency of service of process. If
this is the case, the defense is waived. Fed. R. Civ. P. 12(h)(1);
Glater v. Eli Lilly & Co., 712 F.2d 735, 738 (1st Cir. 1983). If
there is more to say about this matter, Vázquez is free to renew
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his motion on remand; but as presently advised, we are not prepared
separately to affirm on this issue.
The judgment of dismissal is vacated and the matter is
remanded for further proceedings consistent with this decision.
It is so ordered.
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