United States Court of Appeals For the First Circuit
No. 21-1276
GABIEL LOZADA-MANZANO; CESAR LOZADA; BELKIS MANZANO,
Plaintiffs, Appellants,
v.
UNITED STATES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Raúl M. Arias-Marxuach, U.S. District Judge] [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Kayatta and Lynch, Circuit Judges, and Woodlock,* District Judge.
Allan A. Rivera Fernandez for appellants. David C. Bornstein, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
July 20, 2023
* Of the District of Massachusetts, sitting by designation. Lynch, Circuit Judge. The plaintiff-appellant here,
Gabiel Lozada-Manzano, was indicted in 2013 by a federal grand
jury on charges of carjacking and use of a firearm during a crime
of violence arising from a 2012 home invasion in Carolina, Puerto
Rico. These federal criminal charges were eventually dismissed on
the prosecution's motion after evidence surfaced that suggested
Lozada-Manzano had been in police custody at the time of the
incident.
Lozada-Manzano and his parents then brought this civil
action against the United States under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2680(h), raising, inter alia,
a claim for malicious prosecution under Puerto Rico law. The
district court granted summary judgment in favor of the government,
reasoning that the record does not contain evidence from which a
reasonable factfinder could conclude that any relevant federal
actor pursued the indictment either without probable cause or with
malice. See Lozada-Manzano v. United States, No. 15-cv-02601,
2021 WL 1063199, at *15 (D.P.R. Mar. 19, 2021).
We agree that Lozada-Manzano has not raised a triable
issue as to malice under Puerto Rico law as required by the FTCA,
and so cannot prevail on his malicious prosecution claim. We do
not analyze whether the indictment was supported by probable cause.
We also affirm the district court's decisions on several other
points raised by Lozada-Manzano.
- 2 - I.
A. The 2012 Home Invasion and Car Theft
On the afternoon of July 22, 2012, at least two
individuals1 with obscured faces broke into the home of Alejandro
Caloca-Calbo2 in Carolina, Puerto Rico; bound and gagged Mr.
Caloca-Calbo at gunpoint; pointed guns at his arriving family; and
raided the house for valuables before departing in a stolen car.
The home invasion began at approximately 2:45 P.M.,3 when
Mr. Caloca-Calbo saw a taxi pull up to his front gate and drop off
multiple passengers. One of the intruders pointed a firearm at
Mr. Caloca-Calbo and ordered him to open the front gate. Mr.
Caloca-Calbo did what he was told. The intruders entered the house
and bound and gagged Mr. Caloca-Calbo while threatening him with
the firearm. One intruder continued to hold Mr. Caloca-Calbo at
gunpoint, and another began searching for valuables.
1 The majority of the witness statements in the record refer to two intruders, but at least one victim testified in a later deposition that there were three. 2 Both the record and the parties' briefing are inconsistent in their spelling and hyphenation of various individuals' names, including Mr. Caloca-Calbo's. We hyphenate surnames and otherwise follow the district court's spellings. 3 Mr. Caloca-Calbo told investigators that the incident began at approximately 2:45 P.M. More than seven years after the home invasion, in November 2019, he stated in a deposition that the incident began "somewhere between 2:45 and 3:15."
- 3 - At some point, Mr. Caloca-Calbo's adult daughter, Sadie
Caloca-Marrero, and his three grandchildren -- Jadie, Alondra, and
Andrick -- arrived and interrupted the home invasion. Mr.
Caloca-Calbo, Ms. Caloca-Marrero, and her three children appear to
be the only eyewitnesses to provide statements related to the home
invasion. They recounted, at various times and with varying
degrees of detail, the following description of the home invasion
to officers of the Puerto Rico Police Department during the
criminal investigation preceding Lozada-Manzano's federal
indictment in 2013.
Ten-year-old Jadie ran into the house and stumbled upon
the intruders, seeing her grandfather gagged and restrained on the
floor. A heavyset intruder pointed his gun at Jadie's head. The
intruders then moved outside and approached Ms. Caloca-Marrero and
Jadie's siblings -- twelve-year-old Alondra and fourteen-year-old
Andrick. One of the intruders pointed a gun at Ms. Caloca-Marrero
and demanded the keys to her 1998 Mitsubishi Montero. She
surrendered the keys.
As the intruders approached the Montero, Andrick went to
the car and began to search for his cellphone. The intruders
entered the Montero and ordered Andrick out of the vehicle.
Retrieving his cellphone, Andrick complied. The intruders drove
off the property, and Andrick called 911.
The Governing Board of 911 Service logged and recorded
- 4 - Andrick's call. The report generated by the 911 Service ("the 911
report") states that Andrick's call was received at 4:35 P.M. A
transcript of the recorded call shows that Andrick told the
dispatcher at 4:39 P.M. that the robbery "just now happened," and
that his mother's car had just been stolen in the robbery.
Shortly thereafter, police found the Montero abandoned
outside a nearby shopping center.
B. The Arrest of Lozada-Manzano in Isla Verde by the Puerto Rico Police
Around 3:20 P.M. that day, Lozada-Manzano was arrested
in Isla Verde, Puerto Rico. He had been the rear passenger in a
light gray Toyota Corolla being driven recklessly down the freeway.
A Puerto Rico Police officer initiated a traffic stop, but the
driver disregarded the stop instructions and sped off. A chase
ensued, and the driver crashed the Corolla.
The Corolla's driver and passenger, reported by an FBI
agent during grand jury testimony to have been carrying firearms,
then emerged from the vehicle, ran away, and were never
apprehended. The vehicle's third occupant, Lozada-Manzano,
attempted to run but was immediately captured and arrested by
police near the site of the crash. The handwritten notes of the
arresting officer indicate that Lozada-Manzano was arrested at
- 5 - 3:20 P.M. Police searched the Corolla and found a firearm on the
right front floor of the vehicle.4
C. The Identifications of Lozada-Manzano by Eyewitnesses to the Home Invasion
During the Puerto Rico Police investigation of the home
invasion, Mr. Caloca-Calbo's grandchildren, Jadie, Alondra, and
Andrick, were asked to participate in photo identification
procedures. The children's identifications are the only ones
contained in the record. Jadie, Andrick, and Alondra each
separately took part in the same kind of identification
procedure -- review of a photo array -- conducted in early
2013 by law enforcement agents. The children's mother, Ms.
Caloca-Marrero, was present for each procedure and agreed in her
deposition in this case that the children made the identifications
"freely and voluntar[ily]." Each child viewed a photo array of
the same nine headshots, configured in a three-by-three array,
depicting men from the shoulders up. The headshots were
differently ordered for each of the three children's
identifications. The two adults -- Mr. Caloca-Calbo and Ms.
Caloca-Marrero -- did not participate in any formal identification
procedures.
4 The prosecutor for the Commonwealth of Puerto Rico declined to charge Lozada-Manzano in connection with the Isla Verde crash and the firearm recovered in the Corolla "due to not having the elements of the offense."
- 6 - In February 2013, Jadie, at that point eleven years old,
reviewed the photo array and identified the photo depicting
Lozada-Manzano as resembling the intruder who had pointed a gun at
her head.
About two weeks later, Andrick, then fifteen years old,
also selected the photo depicting Lozada-Manzano as resembling one
of the intruders.
About two months later, in April 2013, Alondra, then
thirteen years old, also selected the photo depicting
Lozada-Manzano as resembling one of the robbers.
D. The Investigation of the Home Invasion
By February of 2013, the investigation of the home
invasion had been taken up by Puerto Rico Police officers assigned
to assist the FBI in investigating carjackings and related crimes
as part of a federal task force. Officers Jose Rivera-Rivera and
Lester Perez-Difre led the initial stages of this aspect of the
investigation.
On or about February 20, 2013, Officer Perez-Difre
received a certified copy of the recording of Andrick's 911 call,
which reported the time of that call as 4:35 P.M., along with
timestamped dispatch records from the Governing Board of 911
Service.
On March 21, 2013, Officer Perez-Difre authored a
supplement to the initial Puerto Rico Police Department incident
- 7 - report in which he stated: "The investigation reveals after the
interview of injured parties in this case that the time [illegible]
was from 2:45 pm to 3:00 pm approximately." Other than the
two initial witness identifications, which had pointed to
Lozada-Manzano, the record does not contain any witness interviews
taken before Officer Perez-Difre authored this supplement, but it
does include later interviews that are consistent with the
supplement. On April 8, 2013, Officers Perez-Difre and
Rivera-Rivera interviewed Mr. Caloca-Calbo, Ms. Caloca-Marerro,
Jadie, Andrick, and Alondra and took their statements. Mr.
Caloca-Calbo stated that the home invasion began at approximately
2:45 P.M. Ms. Caloca-Marerro and her children each stated that
they interrupted the robbery at approximately 3:00 P.M. Mr.
Caloca-Calbo, Ms. Caloca-Marerro, and Alondra referred to two
intruders. The notes do not report that Andrick and Jadie
specified the number of intruders.
E. The Federal Criminal Indictment of Lozada-Manzano
In April or May of 2013, the FBI referred the case to
the United States Attorney's office for prosecution. Assistant
United States Attorney ("AUSA") Amanda Soto-Ortega was assigned to
prosecute the case. In an affidavit she later filed in support of
summary judgment for the government in this civil case, she stated
that she learned from "the case investigation and the information
relied [on] by [her] for prosecuting this case" that Lozada-Manzano
- 8 - was arrested after the home invasion concluded. She understood
him to be one of the intruders who participated in the home
invasion and carjacking.
AUSA Soto-Ortega presented the case to a federal grand
jury on May 22, 2013. It was FBI Special Agent Fernando Oliva who
was called to testify about the FBI's investigation of the home
invasion, not investigating Officers Perez-Difre or Rivera-Rivera.
Agent Oliva told the grand jury that Mr. Caloca-Calbo was the
victim of a home invasion by three armed intruders, and that those
intruders had stolen Ms. Caloca-Marrero's car. Agent Oliva then
informed the grand jury that shortly after the carjacking,
Lozada-Manzano was arrested following a traffic-stop-turned-
police-chase of a car containing Lozada-Manzano and two armed men
near Mr. Caloca-Calbo's home. Agent Oliva told the grand jury
that all three of the Caloca grandchildren identified
Lozada-Manzano as one of the intruders from a photospread. Agent
Oliva did not describe the timestamp on the 911 report or compare
that timestamp to the time of Lozada-Manzano's arrest, and he did
not testify that Mr. Caloca-Calbo, Ms. Caloca-Marrero, and Alondra
had stated that there were only two intruders. Because Agent Oliva
was never deposed during discovery in this case, nothing in the
record reveals which particular documents or statements he relied
on in presenting his testimony outlining the sequence of events.
- 9 - That same day, the grand jury indicted Lozada-Manzano on
charges of carjacking and aiding and abetting that offense, see 18
U.S.C. § 2119(1); id. § 2, and use of a firearm during and in
relation to a crime of violence and aiding and abetting that
offense, see id. § 924(c)(1)(A)(ii); id. § 2. On May 31, 2013,
Lozada-Manzano voluntarily surrendered and made his initial
appearance before a magistrate judge. He was ordered detained
pending an arraignment and detention hearing.
The arraignment and detention hearing were held on June
5, 2013. After Lozada-Manzano pleaded not guilty, the parties
addressed bail. AUSA Soto-Ortega described the allegations
against Lozada-Manzano, including that he had been one of three
home invaders who were later involved in the Isla Verde car chase
and crash and was identified by "three minors" in photo arrays.
Defense counsel denied the allegations and represented that
Lozada-Manzano had a "solid alibi" for the day of the home invasion
because he "was with his family at all times" and "did not leave
the area where [they] were." The magistrate judge denied bail.
Over nine months later, at a suppression hearing on March
13, 2014, Lozada-Manzano's defense counsel presented the
magistrate judge with the notes listing the time of
Lozada-Manzano's arrest as 3:20 P.M. and the 911 report regarding
the home invasion timestamped at 4:35 P.M. Counsel argued that if
Lozada-Manzano was in custody at 3:20 P.M., then he could not have
- 10 - been a participant in the home invasion and carjacking immediately
prior to 4:35 P.M. AUSA Soto-Ortega responded that the government
believed the timing presented a jury issue, given the witnesses'
statements which all placed the home invasion as occurring around
2:45 or 3:00 P.M. Based on the timeline information, the
magistrate judge granted Lozada-Manzano bail.
Lozada-Manzano, through counsel, moved to dismiss the
indictment on March 18, 2014. Two weeks later, on March 31, 2014,
he filed a formal notice of alibi defense. The government sought
and was granted an extension of time to respond to the motion to
dismiss.
On May 6, 2014, the government filed a motion to dismiss
the indictment without prejudice "in the best interest of justice."
The district court granted the government's motion and dismissed
the indictment the next day.
F. Lozada-Manzano's Civil Tort Action, Which Is the Subject of This Appeal
On October 21, 2015, Lozada-Manzano, together with his
parents and now represented by tort claims counsel, brought the
lawsuit that is the subject of this appeal. Lozada-Manzano's
complaint, while organized in a meandering manner, asserts a
malicious prosecution claim, as defined by Puerto Rico law, against
the United States pursuant to the FTCA. The complaint identifies
a single defendant, the United States, and asserts two "Count[s]":
- 11 - Count I for "Malicious Prosecution Under Puerto Rico Law" and Count
II for "Negligence [U]nder the Federal Tort[] Claims Act." We
consider these two "Count[s]" in the context of the complaint as
a whole. Cf. García-Catalán v. United States, 734 F.3d 100, 103
(1st Cir. 2013). The complaint asserts throughout that "[t]he
United States of America is liable . . . for the acts and omissions
of its employees and agents . . . under the law of the place where
said acts and omissions occurred, to wit, under the Puerto Rico
general tort statute there would be claims for . . . malicious
prosecution." As the district court and the parties themselves
have, we read the complaint to assert a claim for malicious
prosecution pursuant to the FTCA.
In an undifferentiated way, the complaint appears also
to assert 1) constitutional tort claims under the FTCA;
2) negligent supervision and investigation claims under the FTCA;
and 3) other tort claims under Puerto Rico law. The complaint
does not name any individual officer as a defendant.
On September 21, 2016, the government moved to dismiss
the complaint for lack of jurisdiction and failure to state a
claim. While that motion was pending, on October 25, 2016,
Lozada-Manzano moved for leave to amend the complaint. Although
his proposed amended complaint contained Officers Perez-Difre's
and Rivera-Rivera's names and detailed their actions, it still
listed only the United States as a defendant. On August 4, 2017,
- 12 - the motion for leave to amend was denied, and various tort claims
were dismissed on the grounds that the constitutional tort
claims were not cognizable under the FTCA and that, because
Lozada-Manzano's negligence claims were factually
indistinguishable from his constitutional tort claims, the
negligence claims were barred as well. Partial judgment was
entered. Only Lozada-Manzano's FTCA malicious prosecution claim
survived the partial judgment of dismissal.
A period of pretrial discovery followed. Before that
round of discovery originally closed in 2016 under the original
case management schedule, tort claims counsel for Lozada-Manzano
apparently did not undertake to depose the key witnesses. Nearly
three years after that discovery period had closed, the parties
sought leave to conduct further discovery to depose the victim
witnesses of the home invasion. A different judge to whom the
case had by then been reassigned granted leave to conduct those
depositions but warned that discovery would be extended no further.
Despite that warning, Lozada-Manzano later sought leave
to reopen discovery again to depose Agent Oliva, Officer
Perez-Difre, and AUSA Soto-Ortega. The court denied the motion to
reopen discovery based on a request made so long after discovery
had been scheduled to end.
The parties cross-moved for summary judgment in 2020.
The court granted summary judgment on March 19, 2021, to the
- 13 - government. See Lozada-Manzano, 2021 WL 1063199, at *15. The
court held that no reasonable factfinder on the record presented
could conclude that federal agents acted with malice and without
probable cause because 1) three eyewitnesses identified
Lozada-Manzano as one of the home invaders in photo identification
procedures that were not unduly suggestive, and 2) the record did
not demonstrate that federal agents either a) were aware that
the home invasion occurred after Lozada-Manzano's arrest or
b) withheld evidence of that fact from the grand jury. See id. at
*11-15. A judgment was entered "dismissing with prejudice th[e]
action in its entirety." (Capitalization and emphasis omitted.)
Lozada-Manzano challenges on appeal the grant of summary
judgment for the government, as well as the earlier denial of leave
to amend and dismissal of his other claims.5
II.
A.
We review de novo the district court's decision to grant
summary judgment. Díaz-Nieves v. United States, 858 F.3d 678, 683
(1st Cir. 2017). Summary judgment is appropriate only if, after
viewing the record in the light most favorable to the nonmoving
5 To the extent that Lozada-Manzano purports to appeal the district court's denial of his own summary judgment motion, we lack jurisdiction to consider that interlocutory ruling. See, e.g., Bais Yaakov of Spring Valley v. ACT, Inc., 12 F.4th 81, 86 (1st Cir. 2021). - 14 - party, we can discern no genuine issue of material fact that would
preclude judgment as a matter of law. McKenney v. Mangino, 873
F.3d 75, 80 (1st Cir. 2017).
Through the FTCA, Congress waived sovereign immunity as
to certain actions against the United States for damages "caused
by the negligent or wrongful act or omission of [an] employee of
the Government while acting within the scope of his office or
employment," to the same extent that a private individual would be
liable for such damages. 28 U.S.C. § 1346(b)(1). "In substance,
the FTCA adopts respondeat superior liability for the United
States . . . ." Solis-Alarcón v. United States, 662 F.3d 577, 583
(1st Cir. 2011).
Although the FTCA does not waive sovereign immunity as
to intentional torts generally, 28 U.S.C. § 2680(h) expressly makes
malicious prosecution claims actionable based on "acts or
omissions of investigative or law enforcement officers of the
United States Government." See Díaz-Nieves, 858 F.3d at 683. The
statute defines "investigative or law enforcement officer" to mean
"any officer . . . who is empowered by law to execute searches, to
seize evidence, or to make arrests for violations of Federal law."
28 U.S.C. § 2680(h). Federal prosecutors do not fall within this
definition, and so their actions cannot provide the basis for
malicious prosecution actions under the FTCA. See, e.g., Yacubian
v. United States, 750 F.3d 100, 108 (1st Cir. 2014).
- 15 - As argued by Lozada-Manzano and on the basis of the
summary judgment record before us, the critical "investigative or
law enforcement officer," 28 U.S.C. § 2680(h), for FTCA purposes
is Agent Oliva, whose testimony before the grand jury provided the
basis for the initiation of the prosecution through the indictment
of Lozada-Manzano.
We apply "the law of the place where the [alleged
tortious conduct] occurred" -- in this case, the law of the
Commonwealth of Puerto Rico. 28 U.S.C. § 1346(b)(1); see, e.g.,
FDIC v. Meyer, 510 U.S. 471, 478 (1994); Díaz-Nieves, 858 F.3d at
683. To prove a malicious prosecution claim under Puerto Rico
law, plaintiffs 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 [the] plaintiff[s]; 3) that
[the] defendants acted with malice and without probable cause; and
4) that [the] plaintiff[s] suffered damages." Gonzalez Rucci v.
U.S. INS, 405 F.3d 45, 49 (1st Cir. 2005) (second and fifth
alterations in original) (quoting Nogueras-Cartagena v. United
States, 172 F. Supp. 2d 296, 315 (D.P.R. 2001), aff'd sub nom.
Nogueras-Cartagena v. U.S. Dep't of Just., 75 F. App'x 795 (1st
Cir. 2003) (per curiam) (unpublished decision)).
On appeal, the parties dispute only the third element.
To survive the government's summary judgment motion,
Lozada-Manzano was required to raise genuine factual disputes as
- 16 - to two questions: 1) whether Agent Oliva initiated or instigated
the prosecution of Lozada-Manzano when the circumstances known to
Agent Oliva at the time could be said to have evidenced an absence
of probable cause, see Abreu-Guzmán v. Ford, 241 F.3d 69, 75-76
(1st Cir. 2001), and 2) whether Agent Oliva nevertheless pursued
the prosecution with malice as defined by Puerto Rico law, see
Díaz-Nieves, 858 F.3d at 688. We conclude that Lozada-Manzano has
not raised a triable issue regarding malice. We need not and do
not address probable cause.
B.
Puerto Rico law is clear that lack of probable cause and
malice are "two separate elements" of a malicious prosecution
claim, both of which the plaintiff must prove.6 Díaz-Nieves, 858
F.3d at 688 (quoting Rivera-Marcano v. Normeat Royal Dane Quality,
998 F.2d 34, 37 (1st Cir. 1993)); see also Raldiris v. Levitt &
Sons of P.R., Inc., 3 P.R. Offic. Trans. 1087, 1093 (1975)
("[M]alice is not presumed . . . ."). "For purposes of malicious
prosecution, Puerto Rico courts equate malice with bad faith."
Díaz-Nieves, 858 F.3d at 688 (quoting Paret-Ruiz v. United States,
6 As explained above, because we address Lozada-Manzano's FTCA claim, Puerto Rico substantive law provides the rule of decision. See, e.g., Díaz-Nieves, 858 F.3d at 683. Lozada-Manzano does not argue that our separate circuit law regarding constitutional torts based on the Fourth Amendment, see, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99-102 (1st Cir. 2013), bears on the analysis of his malicious prosecution claim. Any such argument has been waived.
- 17 - 827 F.3d 167, 178 (1st Cir. 2016)). The Puerto Rico Supreme Court
has emphasized that "[t]he element of malice . . . should not be
confused with mere negligence, inasmuch as the characteristic of
negligence is inadvertence, or an absence of an intent to injure,
whereas the characteristic of malice is the improper purpose to
vex, prejudice, damage, [and] injure." Id. (second alteration in
original) (internal quotation marks omitted) (quoting Jiménez v.
Sánchez, 60 P.R. 406, 409 (1942)). Nothing in the record supports
a reasonable inference of malice on Agent Oliva's part under this
standard.
Decisions of this court applying the malice standard
under Puerto Rico law reinforce our conclusion. In Díaz-Nieves,
for example, a malicious prosecution plaintiff who had been
criminally charged in connection with a drug transaction argued
that law enforcement officers had acted maliciously by failing,
prior to submitting evidence to a grand jury, to compare a
photograph of the plaintiff with a photograph of the participants
in the drug transaction, which comparison allegedly would have
shown that the plaintiff was not involved. See id. at 681, 684,
688. This court affirmed the grant of summary judgment for the
government, concluding that the mere failure to conduct the
comparison did not raise a triable issue of malice, especially
where there was "no allegation of maliciousness." See id. at
688 & n.9. Other decisions finding no triable issue of malice
- 18 - have noted the absence of evidence of personal animosity
between investigators and malicious prosecution plaintiffs. See
Barros-Villahermosa v. United States, 642 F.3d 56, 59 (1st Cir.
2011); González-Rucci v. U.S. INS, 539 F.3d 66, 69-71 (1st Cir.
2008). Here, Lozada-Manzano has offered no evidence of malice,
relying only on Agent Oliva's alleged failure to place greater
weight on the 911 timestamp and purported misstatements in his
testimony. These alleged mistakes by Agent Oliva, like that by
the investigators in Díaz-Nieves, cannot support a reasonable
inference of malice.
Fatally for Lozada-Manzano's case, the record contains
no evidence at all that Agent Oliva acted with malice. Indeed,
the record does not even show whether Agent Oliva noticed or
understood the potential significance of the timestamp on the 911
call records. Because Lozada-Manzano chose not to depose Agent
Oliva during the extended discovery period, the record contains no
evidence as to why the agent testified that the invasion ended at
the earlier time stated in Officer Perez-Difre's supplemental
report, or which documents he relied on in testifying. On such a
silent record, no jury could find that the testifying agent acted
with malice.
Lozada-Manzano cannot salvage his malicious prosecution
claim based on the actions of the other agents involved in the
criminal case. Lozada-Manzano gestures toward the collective
- 19 - knowledge doctrine from other areas of law, but he does not develop
any argument as to why that doctrine applies to show malice or
impute bad faith between officers in a tort case under Puerto Rico
law. As with Agent Oliva, Lozada-Manzano failed to depose Officer
Perez-Difre. Further, he points to nothing in the record or in
Puerto Rico law indicating that Officer Perez-Difre instigated or
initiated the federal criminal prosecution. Cf. Negron-Rivera v.
Rivera-Claudio, 204 F.3d 287, 290 (1st Cir. 2000) (explaining that,
under Puerto Rico law, "[t]o furnish information to a prosecuting
attorney does not by itself constitute an instigation" (alteration
in original) (quoting Jiménez v. Sánchez, 76 P.R. 347, 351
(1954))). Nor can FTCA liability arise from AUSA Soto-Ortega's
actions. See Yacubian, 750 F.3d at 108 (explaining that an FTCA
suit cannot be based on the actions of a federal prosecutor).
Lozada-Manzano also refers to prosecutors' obligations to learn of
exculpatory evidence in the course of criminal proceedings, but
does not explain why that duty provides a basis for holding one
law enforcement agent liable in tort for the actions of another.
Lozada-Manzano has failed to raise a triable issue as to
whether Agent Oliva acted with malice as defined under Puerto Rico
law. Summary judgment was properly granted for the United States
on the malicious prosecution claim.
- 20 - III.
We also conclude that Lozada-Manzano's remaining
arguments are without merit.
Lozada-Manzano's other tort claims -- and their
consortium derivatives -- were properly dismissed in 2017.
Constitutional tort claims are not cognizable under the FTCA; that
statute does not waive sovereign immunity for constitutional
torts. Meyer, 510 U.S. at 478; Villanueva v. United States, 662
F.3d 124, 127 (1st Cir. 2011). As for his negligent investigation
claim, Lozada-Manzano has not met his burden of pleading to show
that he has a cause of action under Puerto Rico law. We decline,
as we have in the past, the "invitation to speculate that the
Puerto Rico Supreme Court would be receptive to such a claim."
Rodriguez v. United States, 54 F.3d 41, 47 (1st Cir. 1995). We do
not find any remaining intentional tort claims asserted legibly.
More fundamentally, any such claims are unsupported by factual
allegations that would satisfy Lozada-Manzano's pleading burden
under Puerto Rico law. And we separately conclude that
Lozada-Manzano's other tort claims were properly dismissed.
There was no abuse of discretion in the denial of
Lozada-Manzano's motion for leave to amend the complaint. See
Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 58 (1st Cir. 2006)
("We . . . will defer to the district court's [decision to deny a
motion to amend] so long as the record evinces an adequate reason
- 21 - for the denial."). The proposed amended complaint added no
allegations that would change the substance of Lozada-Manzano's
surviving claims against the federal government.7
IV.
For the foregoing reasons, we affirm.
7 Lozada-Manzano's further assertions that the United States Attorney's Office should have been disqualified and sanctioned and that the district court should have reopened discovery are undeveloped and therefore waived. See, e.g., Finsight I LP v. Seaver, 50 F.4th 226, 236 (1st Cir. 2022) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." (alteration in original) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))). And because no claims remain and there will be no further proceedings before the district court, Lozada-Manzano's request that we reassign this case to a new district judge is moot. - 22 -