United States Court of Appeals
For the First Circuit
No. 09-2614
CARLOS BARROS-VILLAHERMOSA,
Plaintiff, Appellant,
v.
UNITED STATES; UNITED STATES DEPARTMENT OF HOMELAND SECURITY;
UNITED STATES CUSTOMS AND BORDER PROTECTION; MARCELINO BORGES;
MIRELLA COUTO; DENNIS MECCANEGO; JORGE MUÑIZ;
JORGE PAGÁN-ALBINO; MARIA PALMER; REYNALDO SÁNCHEZ-RUÍZ;
ROBERTO VIZCARRONDO,
Defendants, Appellees,
JESÚS M. TORRES-DE LEÓN; JOSÉ MUÑIZ,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Siler* and Howard,
Circuit Judges.
Juan R. Rodríguez, with whom Rodríguez López Law Offices,
P.S.C. was on brief, for appellant.
Ginette L. Milanés, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division and Thomas F. Klumper, Assistant United States Attorney,
were on brief, for appellees.
April 15, 2011
*
Of the Sixth Circuit, sitting by designation.
HOWARD, Circuit Judge. Carlos Barros-Villahermosa
("Barros") appeals from an order granting summary judgment in favor
of the United States on his malicious prosecution claim brought
under the Federal Tort Claims Act ("FTCA"). We affirm.
I. BACKGROUND1
In 2004, Barros was a U.S. Customs and Border Patrol
officer assigned to Luis Muñoz Marín International Airport in San
Juan, Puerto Rico. One day after work, Barros passed by a local
police vehicle, which appeared to be junked, in the vicinity of the
airport. He entered the vehicle and removed a permit decal that
gave the holder access to secured areas within the airport. He
took the decal home and shredded it, without reporting the incident
to his superiors.
Unbeknownst to Barros, the area was under surveillance by
the Puerto Rico Police Department ("PRPD"). The police arrested
Barros and, in concert with local prosecutors, charged him with
misappropriation under the Puerto Rico Penal Code. The PRPD
notified the Department of Homeland Security ("DHS") of the arrest.
Because Barros was already under federal investigation for employee
misconduct, DHS sent an agent from its Office of Inspector General
-- Reynaldo Sánchez-Ruíz ("Sánchez"), a defendant in this case --
to observe and report on the PRPD's investigation. Sánchez was
1
We recount the facts in the light most favorable to Barros as
the party opposing summary judgment. Harriman v. Hancock County,
627 F.3d 22, 25 (1st Cir. 2010).
-2-
present when the police interviewed Barros, although Sánchez did
not ask any questions. Sánchez was not present, however, when the
prosecutor interviewed Barros later that day.
A preliminary court hearing held in November 2004 ended
in a finding of no probable cause. Sánchez attended the hearing
but remained in the audience gallery and did not participate. The
prosecutor requested a rehearing, which was held two weeks later.
At the rehearing, Sánchez took up position immediately behind the
prosecutor yet still in the audience gallery. After a witness
finished testifying, Sánchez leaned over the bar and whispered into
the prosecutor's ear.2 The judge told Sánchez to stop talking.
That hearing too resulted in a finding of no probable cause, and
the case against Barros was dismissed.3
In 2005, DHS issued a Report of Investigation ("ROI") on
Barros. The record version of the ROI is a two-page excerpt of
what appears to be a six-page document that appended multiple
exhibits. Much of the excerpt is redacted, including the name of
2
The summary judgment record before us does not reveal what
Sánchez said to the prosecutor. When asked at oral argument, the
government responded that, at his deposition, Sánchez testified
that he said something like "that was a good witness."
3
For a general description of this procedure in Puerto Rico,
see El Vocero de Puerto Rico (Caribbean Int'l News Corp.) v. Puerto
Rico, 508 U.S. 147, 148 (1993).
-3-
the "Reporting Agent." The portions that are not redacted recount
the PRPD's investigation, described above.4
In 2006, Barros initiated the present action against the
United States and others. He asserted numerous state and federal
claims, most of which met their demise below and were not appealed.
The only remaining claim is that the United States, through
Sánchez, maliciously prosecuted Barros. After the government moved
for summary judgment on that claim, the district court referred the
motion to a magistrate judge, who issued a report recommending that
summary judgment be granted in the government's favor. The
district court adopted in full the magistrate judge's report and
recommendation and entered judgment. This appeal followed.
II. DISCUSSION
Our review of the summary judgment grant is de novo.
Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37
(1st Cir. 1993). "To demonstrate the existence of a genuine issue
of material fact, plaintiffs must point to concrete, admissible
evidence." Id. "Mere allegations, or conjecture unsupported in
the record, are insufficient." Id.
Barros brought this claim under the FTCA, so we look to
the law of Puerto Rico for the governing standards. See Gonzalez
Rucci v. U.S. Immigration & Naturalization Serv., 405 F.3d 45, 49
4
The record does not reflect what action, if any, took place
as a result of the ROI.
-4-
(1st Cir. 2005) ("Under the FTCA, we look to the 'law of the place'
where the alleged wrongful actions occurred" (quoting Rodriguez v.
United States, 54 F.3d 41, 44 (1st Cir. 1995))). To succeed on a
claim for malicious prosecution in Puerto Rico, the claimant must
prove four elements: "1) that a criminal action was initiated or
instigated by the defendants; 2) that the criminal action
terminated in favor of plaintiff; 3) that defendants acted with
malice and without probable cause;[5] and 4) that plaintiff suffered
damages." Id. (internal brackets omitted). Failure to prove any
element is dispositive. See id.
We agree with the district court that Barros has failed
to meet his summary judgment burden. To "initiate or instigate" a
criminal action, a defendant must be "actively instrumental in the
initiation of the prosecution through some affirmative action by
way of advice, petition, encouragement or pressure." Rivera-
Marcano, 998 F.2d at 37 (translating Jiménez v. Sánchez, 76 D.P.R.
370 (1954)). There is no evidence that Sánchez's involvement
satisfies that definition. Rather, the record is quite clear that
the PRPD arrested and then brought charges against Barros in
conjunction with local prosecutors. Sánchez was present at an
interview and attended hearings, but did so as an observer and at
5
We have described this element as "two separate elements
because plaintiffs must show both that the defendant acted with
malice and that he acted without probable cause." Rivera-Marcano,
998 F.2d at 37.
-5-
the invitation of the PRPD. Barros points to the ROI, but even
were we to assume that Sánchez was the author -- which Barros does
not substantiate -- the ROI could not possibly have contributed to
the decision to prosecute Barros: it was issued more than a year
after the charges against Barros were brought.6
In any event, Barros has not shown that Sánchez acted
with malice. For purposes of malicious prosecution, Puerto Rico
courts equate malice with bad faith. See Raldiris v. Levitt & Sons
of Puerto Rico, Inc., 3 P.R. Offic. Trans. 1087 (1975) ("It is
necessary that there be a malicious imputation, made in bad faith
. . ."); see also Vyas Sangidas v. Holiday Inns, Inc., 660 F. Supp.
666, 668 (D.P.R. 1987) (construing Puerto Rico law). Here, we
discern no evidence that remotely suggests bad faith. Barros
claims that Sánchez should have been disqualified from the
investigation because they knew each other from a previous job.
6
Barros argues, in cursory fashion, that Puerto Rico law
requires an adverse presumption against the government for
"willfully suppressing" parts of the ROI. See Texaco Puerto Rico,
Inc. v. Medina, 834 F.2d 242, 244 (1st Cir. 1987) (discussing
Puerto Rico Rule of Evidence 16(5)). We do not reach the argument
because Barros neither adequately developed it on appeal, United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived"), nor objected on that
basis to the magistrate judge's report and recommendation, Sch.
Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir.
2010) ("We have previously held that 'only those issues fairly
raised by the objections to the magistrate's report are subject to
review in the district court and those not preserved by such
objection[s] are precluded on appeal.'" (quoting Keating v. Sec'y
of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988))).
-6-
But Barros has not established that disqualification was required
under the circumstances, and the existence of a possible recusal
issue is hardly indicative of bad faith. Moreover, at his
deposition, Barros acknowledged that there was no "bad blood"
between them.
Affirmed.
-7-