Manuel Sosa v. Hernandez Colon,Et A

• Court: Court of Appeals for the First Circuit
• Decided: August 19, 1993
• Docket: 92-1353
• Status: Published

Opinion

USCA1 Opinion

August 19, 1993       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-1353

                                 VICTOR MANUEL SOSA,

                                Plaintiff, Appellant,

                                          v.

                           RAFAEL HERNANDEZ-COLON, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
                                           ______________

                                 ____________________

            Victor Manuel Sosa on brief pro se.
            __________________
            John  F.  Nevares  and  Saldana,  Rey  &  Alvarado  on  brief  for
            _________________       __________________________
        appellee, Rafael Hernandez-Colon.
            Anabelle  Rodriguez,   Solicitor  General,  and  Vanessa  Ramirez,
            ___________________                              _________________
        Assistant  Solicitor  General, Department  of  Justice,  on brief  for
        _____________________________
        appellees,  Mercedes Otero-Ramos,  Hector  Rivera-Cruz, Carlos  Lopez-
        Feliciano,  Jorge  Collazo-Torres,  Ismael  Betancourt-Lebron,  Yamila
        Andujar,  Israel Crespo-Nieves, Julia Soto-Diaz, Gerardo Bloise-Nunez,
        and Miguel Salas-Segundo.

____________________

____________________

Per Curiam.  This  is an appeal from  the dismissal
                      __________

            of an action based upon  42 U.S.C.   1983 filed  by appellant

            Victor Manuel  Sosa in the  United States District  Court for

            the District of Puerto Rico.

                                      BACKGROUND
                                      __________

                      Appellant filed  a complaint in the  district court

            on February  22, 1990.   The  complaint concerned a  criminal

            investigation initiated by  the San Juan District  Attorney's

            Office which  resulted  in an  indictment charging  appellant

            with kidnapping and weapons violations.  Appellant ultimately

            was acquitted of  all charges and released from  detention on

            February 22, 1989.  The complaint asserts four claims against

            various  defendants  and seeks  in  excess  of forty  million

            dollars  in damages.    A description  of  each claim  as  it

            relates to specific defendants follows:

                      1.   Appellant asserts  that the 1984 investigation

            leading up to the indictment and his arrest was indifferently

            conducted.   Specifically,  he avers that  Lino Olivo-Arroyo,

            the  police officer  who originally  interviewed  the victim,

            knew that the victim was lying and that the unnamed assistant

            district attorney who personally conducted this investigation

            knew that the  underlying facts were  in dispute.   Appellant

            also  alleges  that  the  District  Attorney, Israel  Crespo-

            Nieves,  and the  Superintendent  of Police,  Jorge  Collazo-

            Torres,failedtoadequatelytrain andsupervisetheirsubordinates.

2.   Appellant, who  never appeared for  trial, was

            apparently apprehended in 1988  in the Dominican Republic and

            returned  to Puerto  Rico.   He claims  that Gerardo  Bloise-

            Nunez,  Miguel A.  Salas-Segundo (Puerto Rico  police agents)

            and Juri  Villanova (an immigration officer  of the Dominican

            Republic) aided and abetted  this "kidnapping" to avoid using

            the proper extradition process.   Appellant avers that Rafael

            Hernandez-Colon, the then governor of Puerto Rico, was liable

            for  the actions  of  Yamila Andujar-Lopez,  the attorney  in

            charge  of extraditions  for  the Puerto  Rico Department  of

            Justice,  Carlos Lopez-Feliciano, the  then Superintendent of

            Police, and  Hector Rivera-Cruz, the Secretary  of Justice of

            the Commonwealth of Puerto Rico.

                      3.    During  his  pretrial   detention,  appellant

            charges that  he  was  never  provided with  a  shirt  which,

            according to  him, caused  delays in visiting  with relatives

            and in seeing prison doctors.  Next, appellant complains that

            the prison  library was  inadequate and  that  he was  denied

            access  to  the  courts  when  he  wanted  to  file  motions.

            Finally, appellant  relates that,  just before trial,  he was

            transferred to maximum custody  without the required hearing.

            Julia  Soto  is  averred  to  be  the  individual  within the

            Department of Corrections liable  for these occurrences.  The

            Director of the Department, Mercedes Otero-Ramos, is  charged

            with failing to supervise Ms. Soto.

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4.   After appellant was acquitted  on February 22,

            1989, he claims that Ismael Betancourt, the Superintendent of

            Police,  failed  to return  to  him  his passport  and  other

            personal  documents thereby restricting him from traveling to

            his family and job in the Dominican Republic.  Appellant also

            complains  that his  criminal record  was never  "cleared" to

            reflect his acquittal and that mugshots and fingerprints were

            never returned to him.

                      The  defendants filed motions  to dismiss  based on

            the grounds of statute of limitations, prosecutorial immunity

            and  failure to  state a  claim based  on the  allegations of

            supervisory liability.   Appellant  opposed these motions  on

            only one ground -- that a letter received on May  30, 1989 by

            the  Secretary of  Justice,  Hector  Rivera-Cruz, tolled  the

            running  of the statute of limitations  as to all defendants.

            Because the  parties had  submitted documents outside  of the

            pleadings, the court treated the motions as  ones for summary

            judgment.  Finding that  no material issues of fact  existed,

            it dismissed the action  as time-barred as to  all defendants

            except  Rivera-Cruz.   It then  dismissed appellant's  claims

            against  Rivera-Cruz because  appellant was  seeking to  hold

            Rivera-Cruz liable only on the basis of respondeat superior.
                                                    ___________________

                                      DISCUSSION
                                      __________

                      We review  a summary judgment de  novo to establish
                                                    ________

            whether  any  material  fact  issues exist  and  whether  the

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defendants  are  entitled to  judgment  as a  matter  of law.

            Manarite v.  City  of Springfield,  957  F.2d 953,  955  (1st
            ________     ____________________

            Cir.), cert. denied, 113 S. Ct.  113 (1992).  In so doing, we
                   ____________

            view the pleadings in the light most favorable to  appellant,

            indulging all reasonable inferences in his favor.  See id.
                                                               ___ ___

                      Upon a  careful examination  of the record  and the

            parties' briefs, we affirm the judgment of the district court

            that  the  first claim  insofar  as  it concerns  appellant's

            arrest and  the second  claim concerning  the  method of  his

            removal  from the  Dominican Republic  are time-barred.   The

            court  correctly applied  the one-year prescription  for tort

            claims  contained in  Article 1868(2)  of the  Civil Code  of

            Puerto Rico, 31 L.P.R.A.   5298(2).  See Rodriguez-Narvaez v.
                                                 ___ _________________

            Nazario, 895 F.2d 38, 42 (1st Cir. 1990).  We also agree, for
            _______

            the  reasons stated in the Opinion and Order, that the letter

            sent  to Rivera-Cruz, the Secretary  of Justice, did not toll

            the limitations  period  as to  any of  the other  defendants

            except Rivera-Cruz.1  See  id. at 44.   Finally, there is  no
                                  ___  ___

            issue  of material  fact  that the  complaint contained  only

            general allegations  of supervisory liability on  the part of

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            1.  Appellant's other tolling argument  is without merit.  He
            attempts to invoke Article  40(3) of the Puerto Rico  Code of
            Civil Procedure, 32 L.P.R.A.   254, which provided that  time
            spent  in prison is excluded from the limitations period.  In
            response to a question certified by this court to the Supreme
            Court of Puerto  Rico, it  held that Article  40(3) had  been
            implicitly repealed in 1974.  See  Sierra-Serpa  v. Martinez,
                                          ___  ____________     ________
            No.  91-2062, slip  op. at  2 (1st Cir.  June 15,  1993) (per
            curiam). 

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Rivera-Cruz.  As  the district court  held,   1983  liability

            may not be based upon the theory of respondeat superior.  See
                                                ___________________   ___

            Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.
            ___________________    _________

            1989).

                      In relation  to the  third (treatment of  appellant

            during   incarceration)  and   fourth   (failure  to   return

            appellant's property and clear the state court record) causes

            of action,  the district  court's conclusion that  they, too,

            are time-barred  is in error as  a matter of law.   The court

            held that these claims  accrued "no later" than  February 22,

            1989 -- the last date appellant was incarcerated.  Relying on

            Ramirez  Morales v. Rosa Viera, 632 F. Supp. 491, 492 (D.P.R.
            ________________    __________

            1986),  aff'd on other grounds,  815 F.2d 2  (1st Cir. 1987),
                    ______________________

            the court then held that the day of the "triggering event" --

            here, appellant's release from prison -- counts as  the first

            day for determining  the limitations period.  Thus, the court

            concluded, the one-year period ended on February 21, 1990 and

            appellant's complaint, unless tolled, was one day late.  

                      We have held, however, that in a   1983 action, the

            first day is excluded from the limitations period:

                           [U]nder the  controlling Puerto
                           Rican  case  law, the  one year
                           prescriptive period expires  on
                           the anniversary  of the accrual
                           of the cause of action,  not on
                           the  day  before.    The  cases
                           hold, contrary  to the district
                           court, that the first  day does
                           not count towards prescription.
                           See Escalera v. Andino,  76 PRR
                           ___ ________    ______

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251 (1954).

            Luciano  v. Ortiz-Alvarez, No.  91-1802 (November  15, 1991).
            _______     _____________

            Thus, because  the one-year period  began to run  on February

            23, 1989, the complaint is timely as to the third  and fourth

            claims.

                      Finally,  the   district  court  did   not  address

            appellant's contention that the events described in his first

            two claims  amounted to  malicious prosecution.   This claim,

            although not  made in the complaint,  surfaced in appellant's

            response to the  district court's order  of dismissal and  is

            raised on appeal.   Such a claim is cognizable  under   1983.

            Morales v. Ramirez, 906 F.2d 784, 787 (1st Cir. 1990); Torres
            _______    _______                                     ______

            v. Superintendent  of Police,  893  F.2d 404,  408 (1st  Cir.
               _________________________

            1990).   Because acquittal is one of the elements required to

            state  a claim of malicious prosecution,  the cause of action

            could  not accrue  until acquittal  had occurred  --  in this

            case, February 22, 1989.  Thus, for the reasons stated above,

            this claim also is not time-barred.

                      Based on  the foregoing, we affirm  the judgment of
                                                  ______

            the district  court dismissing  appellant's first  and second

            causes  of action,  except  as they  relate  to a  claim  for

            malicious  prosecution.    We  reverse the  judgment  of  the
                                           _______

            district  court dismissing  the  third and  fourth causes  of

            action.    On  remand,  the  court  should  consider  whether

            appellant  has met  the requirements  for a    1983  claim of

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malicious  prosecution,  see  Morales,  906 F.2d  at  787-90;
                                     ___  _______

            Torres, 893 F.2d at  408-11.  The court also  should consider
            ______

            appellees' defenses of  prosecutorial and qualified immunity.

            See generally Malachowski v. City of Keene, 787 F.2d 704 (1st
            ___ _________ ___________    _____________

            Cir.)  (per  curiam),  cert.  denied, 479  U.S.  828  (1986).
                                   _____________

            Finally,  the question  whether  appellant fails  to state  a

            claim  in relation  to certain  appellees because  he alleges

            only  supervisory  liability  may  dispose  of  some  of  the

            remaining claims  against  these appellees.    See  generally
                                                           ___  _________

            Gutierrez-Rodriguez, 882 F.2d at 562.
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                      Affirmed,  in part, reversed, in part, and remanded
                      ________            ________               ________

            for further proceedings not  inconsistent with this  opinion.

            As for  motions currently pending before this  court, we take

            the  following action.    Appellant's  request for  sanctions

            under   Fed.  R.  Civ.  P.   11  and  his   motion  to  quash

            certification are  denied.   His requests  that we order  the
                               ______

            district  court  to  allow  him to  amend  his  complaint and

            conduct further  discovery are  denied; such motions  must be
                                            ______

            addressed to the district court.

                      Finally,   appellant  has  requested   an  in  banc

            opinion.   Such a request  is governed by  Fed. R. App. 35(c)

            which  provides that  a  request  that  "an appeal  be  heard

            initially in banc . . . must be made by the date on which the

            appellee's brief is filed."  The last brief to be filed by an

            appellee  was on November 16, 1992, well before the filing of

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the  motion at hand.   We therefore deny  the request without
                                                ____

            prejudice  to refiling  it  in the  form  of a  petition  for

            rehearing in banc.

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