Perez Ruiz v. Crespo Guillen

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-2264
                             JESUS M. P REZ-RUIZ, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                             JOS  CRESPO-GUILL N, ET AL.,

                                Defendants, Appellees.

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No. 93-2267
                                ZOILO LOPEZ-DE JESUS,

                                Plaintiff, Appellant,

                                          v.

                             JOS  CRESPO-GUILL N, ET AL.,

                                Defendants, Appellees.

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APPEALS FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                   [Hon. Gilberto Gierbolini, U.S. District Judge]
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                              Torruella, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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Enrique Bray, with whom  Harvey B. Nachman, M.  Georgina Carrion-
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        Christiansen, and  Nachman, Santiago, Bray, Guillemard  & Carrion were
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        on brief for appellants.
             Jacqueline D. Novas, Special  Assistant to Attorney General, with
             ___________________
        whom Pedro A. Delgado  Hernandez, Solicitor General, was on  brief for
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        appellees.

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                                     June 2, 1994
                                                     
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CYR, Circuit  Judge.   Appellants Perez and  Lopez were
                    CYR, Circuit  Judge.
                         ______________

          arrested and  detained in  connection with separate  incidents on

          July 31, 1990, in Santurce, Puerto Rico, and charged with selling

          cocaine.  Both  were released  on bail after  being detained  for

          less  than twenty-four hours.  Perez was acquitted in August 1991

          and  the Lopez charges were  dismissed "for lack  of evidence" in

          March 1992.

                    On June 24, 1992, plaintiffs-appellants  brought virtu-

          ally identical  civil rights actions under 42 U.S.C.   1983, with

          pendent commonwealth  law claims,  essentially alleging  that the

          cocaine  charges  were  trumped  up.    Defendants-appellees  are

          various  law enforcement  officers and  officials of  the Common-

          wealth of Puerto Rico allegedly involved in arresting and  prose-

          cuting appellants.  The complaint asserts claims of false arrest,

          false  imprisonment,  and   malicious  prosecution.    Appellants

          further  claim that  the  alleged civil  rights infractions  were

          elements  of a  larger  conspiracy against  appellants and  other

          businessmen.1  

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               1Appellants urge that  we treat the alleged conspiracy  as a
          "continuing violation."  We need not address this contention.  In
          view of our conclusion that appellants failed to plead an action-
          able claim  for malicious  prosecution, their  time-barred claims
          for false arrest and  false imprisonment in 1990 cannot  be saved
          by any subsequent termination of their invalid malicious prosecu-
          tion claims.   See Mack v. Great American Atlantic  & Pacific Tea
                         ___ ____    ______________________________________
          Co., 871 F.2d 179,  183 (1st Cir. 1989) ("In  short, [continuing]
          ___
          violation or  no, plaintiff retained the  burden of demonstrating
          that  some [violation]  transpired  within the  appropriate  time
                ____
          frame.").

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The Lopez and Perez  actions were assigned to different

          district judges.  Defendants-appellees filed  essentially identi-

          cal motions to dismiss on the ground that the section 1983 claims

          were time-barred  under the  applicable one-year  limitation bor-

          rowed from commonwealth law.   See Lafont-Rivera v. Soler-Zapata,
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          984 F.2d 1,  3 (1st Cir. 1993).  After  the district court denied

          the  motion to  dismiss  the Lopez  action,  the two  cases  were

          consolidated  under Fed.  R. Civ.  P. 42,  and docketed  to Judge

          Gierbolini who  eventually dismissed  the consolidated action  on

          the grounds that the  false imprisonment and false  arrest claims

          were  time-barred and the complaint failed to state an actionable

          section  1983  claim for  malicious  prosecution,  see Torres  v.
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          Superintendent of Police, 893 F.2d 404, 409 (1st Cir. 1990) (only
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          "egregious"  misconduct  implicates    1983   remedy;  "malicious

          prosecution standing alone does not implicate federally protected

          rights").

                    Appellants first  challenge the dismissal order  on the

          ground that  the earlier district court ruling denying the motion

          to dismiss  in the Lopez action  became the "law of  the case" in

          the consolidated action.  Appellants misapprehend the "law of the

          case"  doctrine.    Interlocutory  orders,  including  denials of

          motions to  dismiss, remain open to  trial court reconsideration,

          and do not constitute the  law of the case.  Union Mut. Life Ins.
                                                       ____________________

          Co. v. Chrysler Corp., 793 F.2d  1, 15 (1st Cir. 1986) (citing 1B
          ___    ______________

          James  W. Moore et al., Moore's Federal Practice   0.404[4.1], at
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                                          4

124 n.4  ("[U]ntil  entry  of  judgment,  [interlocutory  orders]

          remain subject to change at any time.  The doctrine of law of the
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          case does  not limit  the power of  the court in  this respect.")
          ____ ____  ___ _____  ___ _____ __  ___ _____ __  ____ _______

          (emphasis added)  (2d ed. 1993)); see also  Commerce Oil Refining
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          Corp. v.  Miner, 303  F.2d 125, 128  (1st Cir.  1962) ("a  ruling
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          denying a motion to  dismiss is not the  law of the case, and  is

          not final even in the district court").  Second, although the law

          of  the case  doctrine  implements an  important judicial  policy

          against reconsidering settled matters, it "is neither an absolute

          bar  to  reconsideration nor  a limitation  on a  federal court's

          power."  United  States v. Rivera-Martinez, 931 F.2d  148, 150-51
                   ______________    _______________

          (1st Cir.), cert. denied, 112 S. Ct. 184 (1991).
                      _____ ______

                    Appellants  also challenge the  merits of the dismissal

          order.   We review Rule 12(b)(6) dismissals under the rubric that

          all  reasonable inferences from properly pleaded  facts are to be

          drawn in appellants'  favor.  The  Dartmouth Review v.  Dartmouth
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          College, 889 F.2d 13, 16 (1st Cir. 1989).
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                    The district court concluded  that the malicious prose-

          cution claim, whether construed  as asserting a substantive  or a

          procedural  due  process  violation,  was  not  actionable  under

          section 1983.   Torres, 893  F.2d at 409.   ("[T]o state  a claim
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          under section 1983, the complaint must assert that the  malicious

          conduct was so  egregious that it violated  substantive or proce-

          dural due  process rights under  the Fourteenth Amendment.")   An

          actionable section  1983 malicious  prosecution claim based  on a

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substantive  due process  deprivation  must  allege  "conscience-

          shocking" conduct  by  the defendants.    Id. at  410  (citations
                                                    ___

          omitted).   A  procedural  due process  claim  is not  actionable

          unless,  inter alia,  no  adequate  "post-deprivation remedy"  is
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          available under state law.  Id.
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                    Neither  their  appellate  brief nor  their  complaints

          identify the due process theory undergirding appellants'  section

          1983 malicious  prosecution claim.    Nevertheless, the  district

          court's  analysis and  application  of Torres,  which stated  the
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          controlling law of this circuit at the time this  case was decid-

          ed, seems  entirely correct.   Since then,  moreover, appellants'

          position has become  even less  tenable in light  of the  Supreme

          Court's  decision in Albright v.  Oliver, 114 S.  Ct. 807 (1994).
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          Albright would appear virtually to foreclose reliance on substan-
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          tive  due process as the basis for a viable malicious prosecution

          claim under section 1983    superseding even Torres' very limited
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          tolerance  of reliance on  substantive due process  in this area.

          Four  Justices  concluded  that  a section  1983  claim  alleging

          malicious   prosecution  cannot  be  predicated  on  "open-ended"

          conceptions  of  substantive due  process.    See  id. at  810-19
                                                        ___  ___

          (Opinion  of Rehnquist,  C.J.,  joined by  O'Connor, Scalia,  and

          Ginsburg, JJ.).2   Moreover, two Justices, in  a concurring opin-

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               2The Albright  plurality summarized its position  at the end
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          of footnote 4, 114 S. Ct. 811, as follows:

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ion,  found  that the  availability of  an adequate  state remedy

          precluded reliance on section 1983.  See id. at 817-19.  (Opinion
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          of  Kennedy, J.,  joined by  Thomas, J.).   Justice Souter,  in a

          separate concurrence, concluded that Albright had demonstrated no

          distinct injury from the  alleged malicious prosecution, and that

          his custody-based  claims were better addressed  under the Fourth

          Amendment.  See id. at 819-22 (Opinion of Souter, J.).
                      ___ ___

                    Lastly,  the  availability of  an  adequate remedy  for

          malicious prosecution under commonwealth law, see P. R. Laws Ann.
                                                        ___

          tit. 31,   5141  (1991), is fatal  to appellants' procedural  due

          process claim.   Smith v. Massachusetts Dep't of  Correction, 936
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          F.2d 1390, 1402 (1st Cir. 1991); see also Albright v. Oliver, 975
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          F.2d 343, 347  (7th Cir. 1992)  ("The multiplication of  remedies

          for identical  wrongs, while gratifying for  plaintiffs and their

          lawyers, is not always  in the best interest of the  legal system

          or the nation."), aff'd, 114 S. Ct. 807 (1994).
                            _____

                    Affirmed. 
                    Affirmed.
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                    In view  of our disposition of  this case, it
                    is evident  that substantive due  process may
                    not  furnish the constitutional  peg on which
                    to hang such a "tort."

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