Calero-Colon v. Betancourt-Lebron

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                                     
                                 ____________________



        No. 95-1193



                            RICARDO CALERO-COLON, ET AL.,



                               Plaintiffs, Appellants,



                                          v.



                       ISMAEL BETANCOURT-LEBRON, ETC., ET AL.,



                                Defendants, Appellees.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                   [Hon. Daniel R. Dominguez, U.S. District Judge]
                                              ___________________


____________________



                                        Selya,



                                    Cyr and Lynch,



                                   Circuit Judges.
                                   ______________



                                                     
                                 ____________________


Jose  A. Pagan Nieves, with  whom Elisa A.  Fumero Perez, Jose A.
             _____________________             ______________________  _______

        Pagan Nieves Law Offices and Nector  Robles Abraham were on brief  for
        ________________________     ______________________

        appellants.

             Lorraine  J. Riefkohl,  Assistant  Solicitor  General, with  whom
             _____________________

        Carlos  Lugo-Fiol,  Solicitor  General, and  Jacqueline  Novas-Debien,
        _________________                            ________________________

        Deputy Solicitor General, were on brief for appellees.


____________________



                                   October 17, 1995

                                                     
                                 ____________________



CYR,  Circuit Judge.   Ricardo  Calero-Col n ("Calero")
                    CYR,  Circuit Judge.
                          _____________



          and  Eric Robles-Abraham  ("Robles") challenge  a district  court



          ruling dismissing  their civil rights  action under  42 U.S.C.   



          1983  for failure  to  state a  claim  upon which  relief  may be



          granted.   See Fed. R. Civ.  P. 12(b)(6).  As  the district court
                     ___



          incorrectly  concluded  that their  claims  were time-barred,  we



          vacate the judgments and remand for further proceedings. 


I
                                          I



                                     BACKGROUND1
                                     BACKGROUND
                                     __________



                    On  February 9,  1993,  Calero  commenced  this  action



          against  various police  officers of  the Commonwealth  of Puerto



          Rico  and their confidential informants.  Robles followed suit on



          November 2, 1993, and the cases  were consolidated.  At the heart



          of  both  complaints  are  allegations  that Jos   Crespo-Guill n



          ("Crespo")    an undercover  Puerto Rico police officer     and a



          confidential informant named Rosa, persuaded certain Commonwealth



          authorities to provide front money for undercover drug buys which



          never  were intended to take place.  The complaints asserted that



          Crespo and Rosa falsely identified appellants as the "sellers" in



          two  concocted  undercover  drug  buys,  thereby  causing  arrest



          warrants to issue against each.  Calero was arrested on August 1,



          1990, and Robles  on March  20, 1992, for  allegedly selling  one



          ounce of cocaine to Crespo.  On July 1, 1992,  Calero was acquit-

                              
          ____________________



               1Rule 12(b)(6) dismissals are reviewed under the rubric that

          all reasonable inferences from well-pleaded facts are to be drawn

          in  appellants' favor.  P rez-Ruiz v. Crespo-Guill n, 25 F.3d 40,
                                  __________    ______________

          42 (1st Cir. 1994). 



                                          2



ted; Robles was acquitted on July 2, 1993.  



                    Although  both  Calero  and  Robles   maintained  their



          innocence  from  the moment  of  their  respective arrests,  each



          claims that he  did not know  the true nature  and extent of  the



          scheme that led to the arrest  until after he had been acquitted.



          In  all events,  within  months of  their respective  acquittals,



          Calero and  Robles initiated lawsuits alleging  violations of the



          Fourth and  Fourteenth Amendments to the  United States Constitu-



          tion  and violations of Puerto Rico law.  Shortly thereafter, the



          appellees moved to  dismiss on  the ground that  the claims  were



          time-barred. 



                    The district court  deemed appellants' claims analogous



          to  the common law torts  of false arrest  and malicious prosecu-



          tion.  It found that the one-year limitation borrowed from Puerto



          Rico  law  barred their  respective  false  arrest claims,  which



          accrued at the  dates of arrest.2  Although the  court ruled that



          their "malicious prosecution"  type claims were not  time-barred,



          it  held them  not actionable  under section  1983, whether  on a



          substantive or procedural  due process theory.   See Albright  v.
                                                           ___ ________



          Oliver, 114 S. Ct. 807  (1994) (refusing to recognize substantive
          ______



          due  process right  to  be free  from  prosecution not  based  on



                              
          ____________________



               2See  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992),
                ___  ________    ______

          aff'd on other grounds, 114 S. Ct. 807 (1994); Johnson v. Johnson
          ______________________                         _______    _______

          County Comm'n. Bd., 925 F.2d 1299, 1301 (10th Cir. 1991); Rose v.
          __________________                                        ____

          Bartle, 871 F.2d 331, 351 (3d Cir. 1989); McCune v. City of Grand
          ______                                    ______    _____________

          Rapids, 842 F.2d 903, 907  (6th Cir. 1988); Davis v. Harvey,  789
          ______                                      _____    ______

          F.2d 1332, 1333  n.1 (9th Cir.  1986); Singleton v.  City of  New
                                                 _________     ____________

          York,  632 F.2d 185, 191  (2d Cir. 1980),  cert. denied, 450 U.S.
          ____                                       _____ ______

          920 (1981).



                                          3



probable  cause); P rez-Ruiz,  25  F.3d at  43 (commonwealth  law
                            __________



          affords  adequate  post-deprivation  remedy  for  "procedural due



          process" type "malicious prosecution" claims).  As no trialworthy



          federal claims remained, the pendent commonwealth law claims were



          dismissed without  prejudice pursuant to 28  U.S.C.   1367(c)(3).



          See Figuera Ruiz v. Alegria, 896 F.2d 645, 650 (1st Cir. 1990).  
          ___ ____________    _______


II
                                          II



                                     DISCUSSION3
                                     DISCUSSION
                                     __________



          A.  Applicable Limitation Period
          A.  Applicable Limitation Period
              ____________________________



                    Section 1983 creates "a  species of tort liability" for



          redressing deprivations  of federal constitutional rights.   Heck
                                                                       ____



          v.  Humphrey,  114 S.  Ct.  2364,  2370  (1994) (quoting  Memphis
              ________                                              _______



          Community Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)).  The
          ____________________    ________



          limitation period governing personal injury actions under the law



          of  the forum state is  borrowed for application  to section 1983



          claims.  Wilson v.  Garcia, 471 U.S. 261, 276-80  (1985); Guzman-
                   ______     ______                                _______



          Rivera v. Rivera-Cruz, 29 F.3d 3, 4-5 (1st Cir. 1994).   The one-
          ______    ___________



          year limitation period prescribed in Article 1868(2) of the Civil



          Code  of Puerto Rico,  P.R. Laws Ann. tit.  31,   5298(2) (1991),



          governs these section 1983 claims. 



          B.  Accrual Rules Governing Section 1983 Claims
          B.  Accrual Rules Governing Section 1983 Claims
              ___________________________________________



                    The question  before us is  whether appellants  brought



          their section  1983 claims within the  applicable one-year period



                              
          ____________________



               3We  review Rule  12(b)(6)  dismissals de  novo.   Clarke v.
                                                      __  ____    ______

          Kentucky Fried  Chicken of Cal.,  Inc., 57 F.3d  21, 22 n.1  (1st
          ______________________________________

          Cir. 1995).  



                                          4



prescribed by Puerto  Rico law.  The dispute  focuses on when the



          one  year began  to run;  in other  words, when  their respective



          causes of  action accrued.   Federal law provides  the applicable



          accrual rule.  Guzman-Rivera, 29 F.3d at 4-5.  
                         _____________



                    Section 1983 claims accrue when the plaintiff "knows or



          has  reason to  know of  the  injury which  is the  basis of  the



          action."  Street v. Vose, 936 F.3d 38, 40 (1st  Cir. 1992) (quot-
                    ______    ____



          ing  Torres v. Superintendent of  Police, 893 F.2d  404, 407 (1st
               ______    _________________________



          Cir. 1990)).  For purposes of determining when a claimant knew or



          had  reason to know of the alleged  injury, we look to the common



          law cause of action most  closely analogous to the constitutional



          right at stake.   Heck, 114 S. Ct.  at 2371.  As the  elements in
                            ____



          any  species of section 1983 "tort" are ordained by its constitu-



          tional prototype, we first identify the particular constitutional



          right  allegedly infringed.  See  Albright v. Oliver,  114 S. Ct.
                                       ___  ________    ______



          807, 811 (1994).  



                    These  complaints specifically  state that  Puerto Rico



          police officers arrested Calero and  Robles pursuant to a warrant



          predicated  on false  allegations  by  Crespo  and Rosa.    Thus,



          appellants' section  1983 claims  directly  implicate both  their



          Fourth  Amendment right to be free  from any unreasonable seizure



          of  their persons, see Lippay v. Christos, 996 F.2d 1490, 1502-03
                             ___ ______    ________



          (3d  Cir. 1993)  (discussing Fourth  Amendment standards  in case



          involving arrest  based on warrant), and  their Fourteenth Amend-



          ment  right  to be  free  from criminal  prosecution  without due


5



process of law.4  


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               4Appellants have not appealed from the district court ruling

          dismissing  their Fourteenth Amendment claims.  See supra, pp. 3-
                                                          ___ _____

          4.



                                          6



The district  court found the Fourteenth  Amendment due



          process claims  more closely analogous  to the tort  of malicious



          prosecution, but  that the  Fourth Amendment claims  more closely



          resembled  the  common law  tort of  false  arrest.   Even though



          malicious  prosecution5  and  false  arrest6  may  seem  distinct



          enough in abstract definition, however, in a wrongful arrest case



             particularly an arrest  conducted pursuant to a  warrant based
             ____________ __ ______  _________ ________ __ _  _______ _____



          on  false allegations     the  lines between  the two  may become
          __  _____ ___________



          blurred.   In  the present  case, we  believe appellants'  Fourth



          Amendment  claims more  closely resemble the  common law  tort of



          malicious prosecution as well.7  



                    The  Supreme Court has noted that  the common law cause



          of action for malicious prosecution, unlike false arrest, permits



                              
          ____________________



               5Generally speaking, in order to state a cause of action for

          malicious prosecution, a claimant  must allege: (1) the commence-
          _________ ___________

          ment or continuation  of a criminal  proceeding by the  defendant

          against  the plaintiff; (2) the termination  of the proceeding in

          favor  of the accused; (3) the  absence of probable cause for the

          criminal proceeding; and (4) actual malice.  Landrigan v. City of
                                                       _________    _______

          Warwick, 628 F.2d 736, 745 n.6 (1st Cir. 1980). 
          _______



               6Typically, the elements of a false arrest claim are said to
                                             _____ ______

          be that: (1) the defendant intended to confine the plaintiff; (2)

          the plaintiff was conscious of the confinement; (3) the plaintiff

          did  not consent to the confinement; and (4) the defendant had no

          privilege to cause the confinement.  See Restatement  (Second) Of
                                               ___

          Torts    35, 118 cmt.  b (1965).  Neither actual malice  nor lack

          of probable cause is an element of false arrest. 



               7Although  there is no  substantive due process  right to be

          free from  malicious prosecution, see P rez-Ruiz, 25  F.3d at 42,
                                            ___ __________

          the Supreme  Court has held  that a "malicious  prosecution" type

          claim may be actionable  under the Fourth Amendment in  a section

          1983  action.  Albright, 114 S.  Ct. at 813.   See also Malley v.
                         ________                        ___ ____ ______

          Briggs,  475  U.S. 335  (1986)  (discussing  liability of  police
          ______

          officer  who  allegedly  applied  for  arrest  warrants,  without

          probable cause, in violation of the Fourth Amendment).  



                                          7



damages  for confinement pursuant to legal process.  Heck, 114 S.
                                                               ____



          Ct. at 2371.   The interest at stake  in a malicious  prosecution



          claim  is the  right  to be  free  from deprivations  of  liberty



          interests caused  by  unjustifiable criminal  charges and  proce-



          dures.  In contrast, false arrests  infringe upon the right to be



          free from  restraints on bodily  movement.8  The  remedies avail-



          able  in the two tort  actions mirror the  different interests at



          stake.    Damages for  false arrest  are  restricted to  the time



          period between  the initial detention  and the issuance  of legal



          process, whereas the  tort of malicious prosecution  contemplates



          general  damages  as well  as  compensation  for any  arrest  and



          imprisonment preceding  the termination of  the criminal proceed-



          ing.  Id.   
                ___



                    The  critical  inquiry  that   distinguishes  malicious



          prosecution from false arrest  in the present context is  whether



          the arrests  were made pursuant to  a warrant.  Singer  v. Fulton
                                                          ______     ______



          County Sheriff, No. 94-9093, 1995 WL 470283, at *5  (2d Cir. Aug.
          ______________



          9, 1995).   As a general  rule, an unlawful arrest  pursuant to a



          warrant will be more closely analogous  to the common law tort of



          malicious prosecution.    An  arrest  warrant  constitutes  legal



          process, and it is the tort of malicious prosecution that permits



          damages  for confinement pursuant to legal process.  On the other



          hand, wrongful warrantless arrests typically resemble the tort of



          false arrest.  Id.  
                         ___

                              
          ____________________



               8For a cogent  discussion of  the two torts  in the  section

          1983 context, see  Singer v. Fulton County Sheriff,  No. 94-9093,
                             ______    _____________________

          1995 WL 470283 (2d Cir. Aug. 9, 1995). 



                                          8



For the foregoing reasons, we hold that    for purposes



          of determining  the appropriate accrual  rule    both  the Fourth



          and Fourteenth Amendment claims  more closely resemble the common



          law tort  of  malicious prosecution.   Consequently,  appellants'



          section 1983 claims did not accrue until  their respective crimi-



          nal prosecutions ended in acquittals.  Heck, 114 S.  Ct. at 2371;
                                                 ____



          Guzman-Rivera, 29 F.3d at 5.  
          _____________



                    All  that remains is to apply the accrual rule.  Calero



          was acquitted on July 1, 1992.  Well within the  one-year limita-



          tion    on February 9, 1993     he commenced the present  action.



          Similarly, Robles was acquitted on July 2, 1993, and brought suit



          on  November 2, 1993.   Thus, their  section 1983 claims  are not



          time-barred. 


III
                                         III



                                      CONCLUSION
                                      CONCLUSION
                                      __________



                    In  sum, reference  to  common law  tort principles  is



          appropriate in identifying  the most suitable rule of accrual for



          application  to section 1983  claims, always bearing  in mind the



          legislative aims which Congress sought to advance by establishing



          a  federal  forum for  redressing deprivations  of constitutional



          rights.   Cf. Wyatt v. Cole, 112 S. Ct. 1827, 1831 (1992) (noting
                    __  _____    ____



          that  common law  immunities  are not  necessarily applicable  to



          section  1983 claims).   Accordingly,  the essential  elements of



          actionable section 1983 claims derive first and foremost from the



          Constitution itself,  not necessarily  from the  analogous common



          law  tort.   See Graham  v. Connor,  490 U.S. 386,  394-97 (1989)
                       ___ ______     ______



                                          9



(analyzing  excessive force  claim under  Fourth Amendment  stan-



          dards).  Consequently, on remand Calero and Robles must establish



          that their  respective Fourth  Amendment rights were  violated by



          one  or more appellees.   See, e.g., Lippay,  996 F.2d at 1502-03
                                    ___  ____  ______



          (discussing  one theory  of  liability for  violating the  Fourth



          Amendment).



                    The district court judgments  are vacated, and the case
                    ___ ________ _____ _________  ___ _______  ___ ___ ____



          is remanded for further proceedings consistent with this opinion.
          __ ________ ___ _______ ___________ __________ ____ ____ ________



          Costs are awarded to appellants.  
          _____ ___ _______ __ __________


- Concurring Opinion Follows -


10



LYNCH, Circuit  Judge, concurring.  I  write separately
                    LYNCH, Circuit  Judge, concurring
                           __________________________



          to stress my understanding that  in Fourth Amendment claims under



            1983 arising out of a warrantless arrest the statute of limita-



          tions  may typically, but does  not necessarily, begin  to run at
                                              ___________



          the time of arrest.



                    There  may be circumstances in which plaintiffs neither



          knew, nor  had reason to know,  at the time  of their warrantless



          arrests that they had suffered a constitutional injury and so the



          statute  would  not begin  to run  upon  arrest.   Similarly, the



          arrest may  lead to  a chain  of events  leading  to a  different



          characterization of  the entire  constitutional injury, and  so a



          different accrual date.  See Robinson v. Maruffi, 895 F. 2d  649,
                                       ________    _______



          654-55 (10th Cir. 1990).  That the common law of false arrest has



          often  been interpreted to establish that the common law cause of



          action accrues upon the  arrest1 does not answer the  question of



          the  accrual date  for    1983 actions.    The Supreme  Court  in



          Albright v. Oliver,  114 S.  Ct. 807 (1994),  and earlier  cases,
          ________    ______



          see,  e.g., Graham  v.  Connor, 490  U.S.  386, 395  (1989),  has
          ___   ____  ______      ______



          instructed  federal  courts to  look to  the  true nature  of the



          constitutional claims being asserted, rejecting labels.  



                    As Judge Cyr's very  thoughtful opinion states:  "[t]he



          essential elements of actionable section 1983 claims derive first



          and foremost  from the Constitution itself,  not necessarily from



          the analogous common law tort."    Accordingly, the law does not,



                              
          ____________________



               1But see Justice Ginsburg's  views in her concurring opinion

          in Albright v. Oliver, 114 S. Ct. 807, 814-817 (1994).  
             ________    ______



                                          11



I believe, bind the  accrual date for the constitutional  tort in



          warrantless  arrests inevitably  and  invariably to  the date  of



          arrest.  The  case of a warrantless arrest is  not before us, and



          no more now need be said.


12