United States Court of Appeals For the First Circuit
No. 16-2117
MARILYN BESOSA-NOCEDA, per se and in representation of her minor children LMR-B and DJR-B; JUAN PABLO RODRIGUEZ-TORRES, per se and in representation of his minor children LMR-B and DJR-B; LMR-B; DJR-B,
Plaintiffs, Appellants,
v.
CARMEN NEREIDA SANTANA TORRES; JOSE B. CAPÓ-RIVERA; DANIEL E. RIVERA TORRES,
Defendants, Appellees,
CESAR R. MIRANDA-RODRIGUEZ; JOSE CALDERO, Superintendent,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Gelpí, Hamilton,* and Aframe, Circuit Judges.
Juan R. Rodríguez, with whom Rodriguez Lopez Law Offices, P.S.C., was on brief, for appellants.
Francisco J. González-Magaz, with whom Luis R. Román-Negrón, Solicitor General, and Luis J. López-Valdés, Assistant Solicitor General, were on brief, for appellees.
* Of the Seventh Circuit, sitting by designation January 7, 2026
- 2 - AFRAME, Circuit Judge. Marilyn Besosa-Noceda relocated
from the Commonwealth of Puerto Rico to the State of Texas to
pursue a favorable employment offer, bringing along the minor child
she shared with Emmanuel Santiago-Melendez, a former romantic
partner. Upset that Besosa moved without his permission, Santiago
successfully sought criminal charges, which ultimately resulted in
Besosa's arrest and extradition to Puerto Rico. Those charges
were eventually dismissed. Besosa then sued Daniel Rivera-Torres,
the Ponce, Puerto Rico police officer to whom Santiago initially
complained; Carmen Santana-Torres, the Commonwealth prosecutor who
filed the criminal case against her; and José Capó-Rivera,
Santana's supervisor (collectively, "the defendants"), asserting
claims under 42 U.S.C. § 1983 and Commonwealth law for malicious
prosecution. The defendants successfully moved for summary
judgment. Besosa appeals, and we affirm.
I. BACKGROUND
Because this appeal arises from the grant of summary
judgment, we present the facts favoring Besosa as the non-moving
party. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 12
(1st Cir. 2004). In doing so, however, we face two impediments.
First, Besosa's brief lacks record citations in violation of Fed.
R. App. 28(a)(8)(A). In that circumstance, we may dismiss the
appeal outright or scrutinize the merits to the extent that the
record permits. Fryar v. Curtis, 485 F.3d 179, 182 n.1 (1st Cir. - 3 - 2007). Additionally, in conducting our own record review, we face
the second problem: several of the documents that Besosa references
are provided only in Spanish or are not part of the district court
record. See Dávila v. Corporación De P.R. Para La Difusión
Pública, 498 F.3d 9, 13 (1st Cir. 2007) ("When a district court
accepts foreign-language documents without the required English
translations, an appellate court cannot consider the untranslated
documents on appeal."); In re Fin. Oversight & Mgmt. Bd. for P.R.,
9 F.4th 1, 12 (1st Cir. 2021) (stating that documents not admitted
into the district court record are not part of the record on
appeal). Therefore, while we attempt to present the facts in the
light most favorable to Besosa, we do so only insofar as we can
identify appropriate factual support. Any ambiguity will be
resolved against Besosa. Fryar, 485 F.3d at 182 n.1.
Santiago is the biological father of Besosa's oldest
child, a girl. According to Besosa, Santiago never cared for their
daughter and frequently failed to make child support payments.
Besosa did not, however, go to court to challenge Santiago's
failure to pay child support.
Soon after Besosa's daughter was born, Besosa married
Juan Pablo Rodríguez-Torres, and together they had two more
children. In the early spring of 2014, Besosa learned of an
employment opportunity that would require her to relocate with her
family to Texas. That March, Besosa informed Santiago that she - 4 - intended to move to Texas with their daughter and sought his
written permission. Santiago declined the request, believing that
it would hinder his relationship with his daughter.
In April 2014, Besosa discovered that she would have to
relocate to Texas sooner than expected; therefore, she and her
family left Puerto Rico immediately, without again seeking
Santiago's permission. In Besosa's view, she was not, in any
event, required to obtain Santiago's permission because there was
no court order requiring her to do so and Santiago had no ongoing
relationship with their daughter.
Around this time, Santiago initiated a civil proceeding
in a Commonwealth court related to his daughter's custody. Besosa
failed to appear for hearings in this matter set for April 9 and
22, 2014. On May 7, 2014, Besosa missed another hearing because
she already had arrived in Texas, although her attorney attended
on her behalf. Later that day, Santiago went to the Ponce, Puerto
Rico Police Department to file a criminal complaint against Besosa
for depriving him of access to his daughter. At the police
station, Santiago met with Officer Rivera. Santiago told Rivera
that he and Besosa shared custody over their daughter and that
Besosa had taken his daughter from Puerto Rico without his
permission.
Officer Rivera believed that Santiago was telling the
truth, and therefore he instructed Santiago to report to the Ponce - 5 - prosecutor's office two days later to consult on the case. At the
prosecutor's office, Prosecutor Santana interviewed Santiago and
Officer Rivera. Santana also spoke to Santiago's attorney and
instructed Rivera to obtain documents from that attorney's office.
Santiago then executed a sworn statement attesting to the facts
supporting his complaint against Besosa.
After obtaining Santiago's sworn statement and
determining that Besosa was not in Puerto Rico, Prosecutor Santana
authorized the filing of criminal charges against Besosa for
illegally depriving Santiago of custody. The matter was presented
to a municipal court judge in a proceeding under Rule 6 of the
Puerto Rico Rules of Criminal Procedure to obtain an arrest warrant
for Besosa. Officer Rivera and Santiago testified at that hearing.
Besosa was not present. At the conclusion of the hearing, the
judge determined that there was no probable cause to issue an
arrest warrant for Besosa.
When a municipal judge determines that there is no
probable cause for issuing an arrest warrant, Commonwealth law
permits the prosecutor who filed the case to seek a revision of
the probable cause determination by another judge. Prosecutor
Santana sought such a revision, which resulted in a second hearing
on May 27, 2014, this time before a superior court judge. A
prosecutor other than Santana handled the revision hearing, and
neither Officer Rivera nor Besosa attended. Santiago testified, - 6 - and the superior court judge concluded that there was probable
cause for Besosa's arrest.
Local authorities arrested Besosa in Texas on July 2,
2014. Besosa was transferred to Puerto Rico on July 22, 2014,
where she was detained for an additional period before her release.
Eventually, Besosa obtained dismissal of the charge brought
against her by demonstrating in a preliminary hearing that there
was no probable cause for the charge.
In May 2015, Besosa filed a federal complaint against
Officer Rivera, Prosecutor Santana, and Santana's supervisor,
Attorney Capó. After discovery, the defendants moved for summary
judgment, and the district court granted the motion. It held that
Besosa's § 1983 malicious prosecution claim failed because the
undisputed evidence established that a Commonwealth judge issued
an arrest warrant based on probable cause and there was no evidence
that the judge's finding was based on "false statements or
omissions that created a falsehood." The court also rejected the
Commonwealth malicious prosecution claim for the same reason.
Finally, the court rejected Besosa's claim that her rights were
violated because the probable cause hearings proceeded in her
absence. The court held that Besosa had no right under
Commonwealth law to be present when a judge holds a Rule 6 hearing
to issue an arrest warrant.
- 7 - II. DISCUSSION
Besosa raises two arguments on appeal. First, she
contends that the district court failed to resolve a pending
discovery dispute before ruling on the defendants' summary
judgment motion. Second, she claims that the district court
improperly determined that the defendants were entitled to summary
judgment. We begin with the discovery issue.1
1 After Besosa filed her brief in this Court, the Commonwealth, who is providing counsel for the defendants in this case under Law 9, declared bankruptcy under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act ("PROMESA"), 48 U.S.C. § 2161, et seq. The Commonwealth's declaration triggered an automatic stay of litigation involving claims against the Commonwealth. Despite the stay, the defendants filed their response brief and Besosa filed a reply. On March 15, 2022, the automatic stay lifted and a discharge injunction was entered, preventing the continuation of litigation asserting claims against the Commonwealth from proceeding outside of the bankruptcy process.
Given these circumstances, we requested that the parties brief (1) whether the automatic stay rendered the defendants' brief and Besosa's reply void, and (2) whether the discharge injunction barred the continuation of this litigation because the Commonwealth may ultimately decide, under Law 9, to indemnify a judgment against the defendants if such a judgment were to issue. We now choose to bypass these PROMESA-related issues because we can resolve this appeal based solely on Besosa's opening brief, the appendix, and the district court record, which were all filed before the automatic stay entered. And, because we are affirming judgment for the defendants, there is no risk that this case will result in liability for the Commonwealth that may be inconsistent with the discharge injunction. See Díaz-Báez v. Alicea-Vasallo, 22 F.4th 11, 17 n.3 (1st Cir. 2021) (bypassing PROMESA issues because they do not affect Article III jurisdiction); see also Borrás-Borrero v. Corporación del Fondo del Seguro del Estado, 958 F.3d 26, 34 (1st Cir. 2020) (bypassing the application of the PROMESA automatic stay where the parties agreed the stay did not
- 8 - A. Unresolved Discovery Dispute
Besosa argues that it was error for the district court
to grant the defendants' summary judgment motion because it did so
while a discovery dispute over a subpoena that Besosa had issued
remained pending. The defendants had sought to quash Besosa's
subpoena after they moved for summary judgment but before Besosa
had filed her summary judgment opposition. While the dispute was
pending, Besosa filed her objection to the defendants' summary
judgment motion; she did not, however, file a motion under Federal
Rule of Civil Procedure 56(d).
"[T]he fact that discovery is still open does not bar a
district court from resolving a fully briefed summary judgment
motion." Nieves-Romero v. United States, 715 F.3d 375, 380 (1st
Cir. 2013). While Besosa filed motions seeking hearings before a
magistrate judge to resolve the subpoena dispute and noted that
dispositive motions were pending, she did not pair those motions
with a request that the district court refrain from resolving the
summary judgment motion. See id. (observing that "plaintiff's
request to reopen discovery was not coupled with a request to
withhold adjudication of the pending summary judgment motion").
Nor did Besosa mention the discovery dispute in her summary
apply, the stay issue was "not clear-cut," and the judgment resulted in dismissal on the merits). - 9 - judgment opposition. See Jones v. Secord, 684 F.3d 1, 6 (1st Cir.
2012) (noting that Rule 56(d) is not self-executing).
Besosa should have invoked Rule 56(d) if she believed
that she needed more time to gather necessary information to
adequately respond to the defendants' summary judgment motion.
Under Rule 56(d), a party opposing summary judgment may gain relief
by showing reasons that "it cannot present facts essential to
justify its opposition . . . ." Fed. R. Civ. P. 56(d). The rule
"affords a safety net" so that "judges will not 'swing[] the
summary judgment axe too hastily.'" Jones, 684 F.3d at 6
(alteration in original) (quoting Rivera-Torres v. Rey-Hernández,
502 F.3d 7, 10 (1st Cir. 2007)). The Rule 56(d) remedy was
available to Besosa, but it was her obligation to invoke it. See
id. To do so, she needed to provide an authoritative submission
explaining the present factual deficiency, the basis for believing
that the needed facts could be gathered in a reasonable time, and
how the missing facts would influence the summary judgment outcome.
Id. She made no such submission.
Besosa argues that it was the district court's fault
for not recognizing the unresolved discovery dispute before ruling
on the summary judgment motion. We have rejected that argument
before and do so again here. See id. (noting that federal district
courts have crowded dockets, and it is a litigant's
responsibility, and not the court's, to "determine whether some - 10 - timing problem [as to discovery] might exist in connection with a
summary judgment motion"). Besosa's failure to exercise her
rights in the district court makes her argument about the
unresolved discovery dispute untenable on appeal.
B. Summary Judgment
Besosa separately challenges the merits of the district
court's summary judgment ruling. We review the grant of summary
judgment de novo. MacRae v. Mattos, 106 F.4th 122, 132 (1st Cir.
2024). Taking the facts and all reasonable inferences in the light
most favorable to Besosa, we ask whether the defendants are
nevertheless entitled to judgment as a matter of law.2 Id.
Besosa's lead claim falls under 42 U.S.C. § 1983,
alleging malicious prosecution by Officer Rivera and Prosecutor
Santana. She claims that they violated her Fourth Amendment rights
by placing her in pretrial detention.3 To establish a malicious
2 Besosa contends, in part, that the district court relied on erroneous facts in granting summary judgment. None of the alleged factual disputes that Besosa identifies are material to the summary judgment ruling and, in any event, she has not identified record citations for several of the claimed discrepancies. See United States v. Martínez-Hernández, 118 F.4th 72, 98 (1st Cir. 2024) (deeming arguments waived when a litigant failed to provide record citations to evidence to which he objected). 3 Besosa also brought a malicious prosecution claim against Attorney Capó, Santana's supervisor, but she has not provided any record citations in support of her assertions against Capó. Nor have we found any support in our own review of the record. Moreover, Besosa's legal argument as it relates to Capó is, at
- 11 - prosecution claim under § 1983 based on pretrial detention, Besosa
must establish that the defendants caused her seizure pursuant to
legal process unsupported by probable cause and that the criminal
proceedings terminated in her favor.4 Pagán-González v. Moreno,
919 F.3d 582, 601 (1st Cir. 2019). Where, as here, Besosa was
arrested and detained based on a judicial order predicated on
probable cause, she could establish § 1983 liability for malicious
prosecution only by showing that a government official presented
evidence in violation of the standard established in Franks v.
Delaware, 438 U.S. 154 (1978). See Hernandez-Cuevas v. Taylor,
723 F.3d 91, 101 (1st Cir. 2013). The Franks standard recognizes
that a Fourth Amendment violation may exist despite a
magistrate-issued warrant based on probable cause where an
official submits material information to the magistrate in bad
best, cursory. For these reasons, we reject Besosa's claims against Capó for inadequate appellate presentation. See Universal Truck & Equip. Co. v. Southworth-Milton, Inc., 765 F.3d 103, 111 (1st Cir. 2014) (finding perfunctory briefing insufficient to preserve issue for appellate consideration).
4 Besosa also makes a stray reference to a § 1983 claim based on abuse of process but has described only the elements for malicious prosecution. She similarly mentions several constitutional provisions but does not explain how they support a malicious prosecution claim. Therefore, we will treat Besosa as having brought a claim based only on malicious prosecution in violation of the Fourth Amendment. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). - 12 - faith, i.e., the officer submitted information that the officer
knew involved a deliberate falsehood or submitted information in
reckless disregard of the truth. Id. The standard also extends
to deliberate or reckless omissions of material information. See
United States v. Tanguay, 787 F.3d 44, 49 (1st Cir. 2015).
Besosa's first claim is that Officer Rivera and
Prosecutor Santana violated Franks because each of them failed to
adequately investigate Santiago's allegations against her before
seeking an arrest warrant. We disagree.5
"As a general rule, a[n] . . . officer planning to apply
for a warrant has no duty to 'investigate a matter fully.'" United
States v. Barbosa, 896 F.3d 60, 71 (1st Cir. 2018) (quoting
Tanguay, 787 F.3d at 51). Nor is an officer who is seeking a
warrant required "to 'exhaust every possible lead, interview all
potential witnesses, and accumulate overwhelming corroborative
evidence.'" Tanguay, 787 F.3d at 51 (1st Cir. 2015) (quoting Beard
v. City of Northglenn, 24 F.3d 110, 116 (10th Cir. 1994)). When
an officer has no reason to doubt the veracity of the information
5 In the defendants' brief in this Court, the defendants press immunity defenses as an alternative basis for affirmance. Given the possible issues about the defendants' brief being filed in violation of the automatic stay, we resolve this appeal solely based on the arguments made in Besosa's opening brief that challenge the district court's rulings, which do not implicate any immunity arguments. - 13 - that the officer plans to present, a failure to take further steps
to verify that information does not violate Franks. Id. at 52.
We have recognized, however, that in limited
circumstances the failure to investigate may lead to a finding of
reckless disregard for the truth. See id. at 53. That could be
so where the officer submitted material information in support of
probable cause even though the officer had "obvious reasons" to
doubt the veracity of the allegations or the credibility of the
person making the allegations. Id. at 54 (quoting St. Amant v.
Thompson, 390 U.S. 727, 732 (1968)). Faced with such a "red
flag[,]" an officer may have a duty to investigate further before
applying for a warrant. Id. at 53.
Besosa has not identified any "red flag" evidence known
to Officer Rivera or Prosecutor Santana when they sought the arrest
warrant against her. Officer Rivera interviewed Santiago and
believed him to be truthful. He therefore presented Santiago to
Prosecutor Santana. Santana, in turn, interviewed Santiago again,
obtained Santiago's statement under oath, spoke to Santiago's
attorney, and obtained documents in that attorney's possession.
Besosa's assertion that more investigation was possible is
irrelevant in the absence of any proof that the defendants
possessed information suggesting that Santiago was providing false
facts or that there was some other obvious reason to disbelieve
him. See id. - 14 - Besosa also contends that she has presented a triable
§ 1983 claim for malicious prosecution because the defendants
presented false information at the second Rule 6 hearing, which
resulted in the judge issuing the arrest warrant. There are at
least two fatal problems with this argument. First, we do not
have an English translation of the second Rule 6 hearing. We
therefore have no basis for determining whether the substitute
prosecutor presented false information to the judge who found
probable cause. See Puerto Ricans for P.R. Party v. Dalmau, 544
F.3d 58, 67 (1st Cir. 2008) (noting "the outcome of a case" should
not "turn on a non-English language document"). Second, even
assuming the substitute prosecutor did provide false information
to the judge, it is undisputed that neither Officer Rivera nor
Prosecutor Santana was present at the second Rule 6 hearing.
Besosa attempts to circumvent this second problem by
asserting that the defendants provided false information to the
substitute prosecutor who handled the hearing, and therefore the
substitute prosecutor acted as a conduit for the alleged falsities.
But Besosa points to no evidence for that assertion, and her
unsupported conjecture provides no basis for defeating summary
judgment. See Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307,
313 (1st Cir. 2016) (stating that "a nonmovant cannot rely 'merely
upon conclusory allegations, improbable inferences, and
unsupported speculation'" to defeat a summary judgment motion - 15 - (quoting Pina v. Children's Place, 740 F.3d 785, 795 (1st Cir.
2014)).6
Besosa's final argument appears to be that her rights
were violated because she was not informed of the Rule 6 hearings
during which the defendants' request for an arrest warrant was
considered. There are also multiple problems with this argument.
First, Besosa has not identified any case (and we are unaware of
one) holding that a person has a federal constitutional right to
be present at a hearing where a magistrate finds probable cause to
issue an arrest warrant. Second, Commonwealth law does not appear
to provide an absolute right to attend a Rule 6 hearing, especially
where, as here, Besosa later obtained a preliminary hearing. See
Pueblo v. North Caribbean, 162 D.P.R. 374 (P.R. 2004) (noting Rule
6 "authorizes the holding of a hearing in the absence of the
defendant"). Third, as already mentioned, we have no English
translation of the Rule 6 hearings, and Besosa has not pointed to
6 Besosa also alleges malicious prosecution under Commonwealth law. This claim fails for largely the same reasons. Among other requirements, Commonwealth law requires the plaintiff to show that the defendant acted with malice and without probable cause. Díaz-Nieves v. United States, 858 F.3d 678, 687-88 (1st Cir. 2017). A claim for malicious prosecution fails where there is an arrest warrant based on a probable cause finding unless the warrant was obtained by the defendant presenting knowingly false testimony. See id. at 688. As already mentioned, Besosa's arrest warrant was issued based on a probable cause finding, and she has mustered no evidence suggesting that warrant was tainted by the knowing presentation of false testimony. Thus, Besosa's claim under Commonwealth law also fails. - 16 - any evidence that Officer Rivera or Prosecutor Santana are
responsible for any false information that the substitute
prosecutor may have provided to the judge at the second Rule 6
hearing.
In sum, Besosa demonstrated at her preliminary hearing
that there was no probable cause for her prosecution. But that
does not mean that her malicious prosecution claims based on
pretrial detention necessarily succeed. If it were otherwise, the
law "would provide a cause of action for every defendant
acquitted -- indeed, for every suspect released.” Baker v.
McCollan, 443 U.S. 137, 145 (1979). To survive summary judgment,
Besosa needed to present evidence sufficient for a jury to conclude
that the defendants obtained the probable cause ruling supporting
the arrest warrant by presenting knowingly false information or
presenting or omitting information with a reckless disregard for
the truth. Besosa has pointed to no such evidence. Therefore,
the district court correctly granted the defendants' motion for
summary judgment.
III. CONCLUSION
For the reasons stated, we affirm the judgment for the
- 17 -