Sierra Serpa v. Martinez

Opinion

USCA1 Opinion

May 29, 1992             ____________________

        No. 91-2062

                                 ANGEL SIERRA-SERPA,

                                Plaintiff, Appellant,

                                          v.

                               MANUEL MARTINEZ, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                     [Hon. Carmen C. Cerezo, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________

                     Coffin and Campbell, Senior Circuit Judges.
                                          _____________________

                                 ____________________

            Carlos V. Garcia Gutierez with whom  Guillermo J. Ramos Luina  was
            _________________________            ________________________
        on brief for appellant.
            Carlos  Lugo  Fiol, Assistant  Solicitor  General,  Department  of
            __________________
        Justice, with whom Reina Colon De Rodriguez, Acting Solicitor General,
                           ________________________
        was on brief for appellees.

____________________

____________________

____________________

                  CERTIFICATION TO THE SUPREME COURT OF PUERTO RICO
                                 ____________________

CAMPBELL, Senior Circuit Judge.   The resolution of
                                ____________________

            this  appeal depends on a  question of Puerto  Rico law which

            has not been  specifically addressed by the Supreme  Court of

            Puerto  Rico and  the decision  of which  may have  important

            public policy implications.  Therefore, on our own motion, we

            certify  the question  to the  Supreme Court  of Puerto  Rico

            pursuant to its Rule 27, 4 L.P.R.A. App. I-A.

            I.  Background
            I.  Background
                __________

                      Plaintiff  Angel  Sierra-Serpa  ("Sierra")  brought

            this  action under 42 U.S.C.    1983 in  the federal district

            court,   alleging  violations  of  the  federal  Constitution

            arising  out  of  prison  officials' handling  of  his  urine

            sample.  At the time of  the incident, Sierra was serving the

            sentence of a Puerto  Rico court at a facility  controlled by

            the Puerto  Rico Administration  of Corrections.   On January

            12,  1988, Sierra gave prison officials  a urine sample which

            allegedly tested  positive for marijuana.   The positive test

            resulted  in  reclassification  of  Sierra's  custody status,

            transfer  to  a  different  facility  and  loss  of  furlough

            privileges.  

                      Sierra claimed that he  had not used marijuana, and

            that  prison officials  had  improperly failed  to label  his

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urine  sample  and refused  to let  him give  another sample.

            Acting through  counsel,  Sierra requested  a second  testing

            and, on  February 11, 1988,  he filed  both a "motion"  and a

            "grievance"  with  prison officials.    These and  subsequent

            administrative  complaints were  rejected and,  on  March 30,

            1988,  Sierra's  counsel  filed a  complaint  for  injunctive

            relief  in  the Superior  Court  of Puerto  Rico.   Following

            several legal battles at both the administrative and judicial

            levels,  the  Superior Court  ordered  that  all of  Sierra's

            "privileges"  be  restored.   Certiorari  was  denied by  the

            Supreme Court of Puerto  Rico.  Nevertheless, Sierra alleges,

            his furloughs were not restored. 

                      Sierra was  released from  prison on  September 12,

            1989.     He  brought   the  present  federal   complaint  on

            September 11, 1990  in the  United States District  Court for

            the District of Puerto  Rico.  The district court  ruled that

            Sierra's cause of action under   1983 accrued, at the latest,

            on April 4,  1989, the  date by which  the Administration  of

            Corrections  should have  implemented  the  Superior  Court's

            order.   The  district court  held, therefore,  that Sierra's

            action  was  barred by  Puerto  Rico's  one year  statute  of

            limitations for tort  actions and granted defendants'  motion

            to dismiss.   

            II.  The Issue  
            II.  The Issue
                 _________

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The  parties  agree  that  Puerto Rico's  one  year

            statute of  limitations for  torts governs.   See art.  1868,
                                                          ___

            Civil  Code (31 L.P.R.A.   5298(2)).  The question is whether

            the  time  of Sierra's  incarceration  counts in  determining

            whether a year has run.   This question, in turn, depends  on

            whether  the portion of Article  40 of Puerto  Rico's Code of

            Civil Procedure of  1933, excluding time spent in prison from

            the limitations period, was implicitly repealed by the Puerto
                                        __________

            Rico  legislature in 1974 when it removed from the Penal Code

            the remnants of the civil law concept of interdiction. 

                      Article 40 has never  been explicitly repealed.  It

            provides:

                      If a  person entitled to bring  an action
                      . . . be at the time the cause of  action
                      accrued, either:

                      1.  Within the age of majority; or

                      2.  Insane; or,

                      3.   Imprisoned on a  criminal charge, or
                           ____________________________________
                      in  execution under  the  sentence  of  a
                      _________________________________________
                      criminal court for  a term less  than for
                      _________________________________________
                      life; or,
                      ____

                      4.  A married woman, and her husband be a
                      necessary  party  with her  in commencing
                      such  action; the time of such disability
                      is not a part of the time limited for the
                      commencement of the action.

            Art.  40, Code  of  Civil Proc.,  1933  (32 L.P.R.A.     254)

            (emphasis added).  

                      If  section 3 of the above statute is still in full

            force and effect, it would appear that Sierra's action is not

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time  barred.    The  question,  therefore,  is  whether  the

            statute,  insofar as it may apply in cases like Sierra's, was

            implicitly  repealed by the repeal, in 1974, of Article 20 of

            the Penal Code of 1937.  Article 20 had provided that: 

                      A   sentence   of  imprisonment   in  the
                      penitentiary for any  term less than  for
                      life suspends all the civil rights of the
                      person  so  sentenced,  and forfeits  all
                      public  offices  and all  private trusts,
                      authority,   or    powers   during   such
                      imprisonment.  

            Art. 20, Penal Code,  1937.  This suspension of  civil rights

            traced its origins to the civil  law concept of interdiction,

            under which a party convicted of  a crime was deprived of his

            civil rights.   Rodr guez Candelario v. Rivera  Vega, No. CE-
                            ____________________    ____________

            86-608,  slip op. at 2 (Supreme Court of Puerto Rico, January

            23, 1989) (certified English translation);  89 JTS 12.  Those

            rights   included   "guardianship   and   tutorship   rights,

            . . . marital  authority, . . . [and] the right to administer

            property. . . ."  Id. slip  op. at 3 (citation omitted).   In
                              ___

            addition, both  parties apparently  agree  that civil  rights

            included the right to sue and be sued, although neither cites

            any explicit Puerto Rico authority to that effect.  

                      In  1902, interdiction,  as  such, was  "[stricken]

            . . . from the Penal Code," id., but Article 20 was  enacted,
                                        __

            subjecting certain convicts to  the suspension of their civil

            rights.   See art. 20, Penal  Code, 1902.   In 1974, however,
                      ___

            Article  20 was  itself stricken,  so that  no  convicts were

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thereafter  subjected  to any  loss  or  suspension of  civil

            rights.  See  art. 39-49,  Penal Code, 1974  (33 L.P.R.A.    
                     ___

            3201-3212);  Rodr guez  Candelario,  slip  op.  at  5.    The
                         _____________________

            question is thus  whether the  repeal of Article  20 must  be

            deemed implicitly to  have repealed section 3  of Article 40,
                   __________

            although the  latter, unlike Article 20,  was never expressly
                                                                _________

            stricken or amended by the Puerto Rican legislature.  

                      Under Puerto Rico law,  a statute may be implicitly

            repealed  when  a  "new  law  contains   provision[s]  either

            contrary to or irreconcilable with those  of the former law."

            Art.  6, Civil Code  (31 L.P.R.A.    6).  In  order to decide

            whether the 1974 Penal Code,  omitting the former Article 20,

            is  "contrary" to  Article 40(3)  of the  1933 Code  of Civil

            Procedure, one  must determine the purpose  of the challenged

            provision  in Article  40.   Sierra  contends that,  although

            Article 40(3) may have some relationship to the suspension of

            civil  rights,  its  main   purpose  is  to  accommodate  the

            practical difficulties  of litigating from prison.   Thus, he

            says, the elimination  of the suspension  of civil rights  is

            perfectly  consistent with  the retention  of Article  40(3).

            Although a prisoner is no longer legally forbidden to sue, it

            is  nevertheless  important that  the limitations  period not

            begin to run against him until he is released,  at which time

            he  has  greater  access   to  counsel  and  other  resources

            necessary, in practice, to file suit.

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Sierra also points  out that Article 40(3)  applies

            to  anyone "[i]mprisoned  on  a criminal  charge," which,  he

            says, includes misdemeanants and pretrial detainees.  Article

            20's suspension  of civil rights, on the  other hand, applied

            only   to   those   sentenced   to   "imprisonment   in   the

            penitentiary," which did not include such parties.   That the
            ____________

            two statutes apply to different classes of people underscores

            Sierra's argument that the legislative  policy behind Article

            40(3) goes  beyond protecting  those whose legal  capacity to

            sue  was  suspended.   Even when  suspension of  civil rights

            existed, certain incarcerated  prisoners not subject  to such

            suspension     misdemeanants and  pretrial detainees     were

            able to take advantage of Article 40(3).

                      Defendants, represented by the Solicitor General of

            Puerto  Rico, argue for a narrower  reading of Article 40(3).

            They  claim  that the  overall purpose  of  Article 40  is to

            protect those who lack  the legal capacity to sue  by tolling

            the limitations period until they acquire that capacity    by

            release  from  prison,  attainment  of majority,  etc.    See
                                                                      ___

            M rquez v. Superior Court, 85 P.R.R. 536, 539 (1962) (purpose
            _______    ______________

            of  Article 40 "is to  protect the interests  of the disabled

            persons  until  such  time  as  they  acquire  the  necessary
                                                                _________

            juridical capacity to assert their rights") (emphasis added).
            _________________________________________

            Thus, because  convicts' legal capacity  to sue is  no longer

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suspended during their incarceration,  there is no longer any

            need for section 3 of Article 40.

                      Responding  to  Sierra's  argument with  regard  to

            misdemeanants and pretrial  detainees, the Solicitor  General

            concedes that,  as to  such parties,  Article 40(3)  may have

            some  purpose other than protecting those  who lack the legal

            capacity  to sue.   However,  the Solicitor  General  draws a

            different conclusion from  this than does Sierra,  contending

            that Article  40(3) remains in effect as to misdemeanants and

            pretrial  detainees but  has been  implicitly repealed  as to

            anyone sentenced  to imprisonment  in the penitentiary.   The

            Solicitor  General   claims  that  this  position  would  not

            significantly   affect  the   limitation   of   actions,   as

            misdemeanants and pretrial detainees  spend only a relatively

            short  time  in  prison.     Conversely,  he  says,  numerous

            practical  problems would result  if limitations  periods did

            not  run during  the incarceration  of convicts  sentenced to

            imprisonment in the  penitentiary, as such  incarceration can

            last a very long time. 

                      We  are unable to  find a conclusive  answer to the

            parties' arguments in  the decisions of the  Supreme Court of

            Puerto Rico.  To be sure, the Court has held that one statute

            was implicitly repealed by the elimination of the vestiges of

            interdiction.  In Rodr guez Candelario, the Court held that a
                              ____________________

            provision  in the  Civil Code  establishing as  a  ground for

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divorce "`[c]onviction of  [a spouse] of  a felony which  may

            involve the  loss  of  civil  rights'"  could  no  longer  be

            invoked.  Rodr guez  Candelario, slip op. at  2 (quoting art.
                      _____________________

            96, Civil Code (31 L.P.R.A.   321 (2))).  The Court held that

            "[o]nce  the external  structure which  supports  the divorce

            grounds here  in controversy  crumbles, we cannot,  through a

            fiction  of law,  give it  an independent  life in  the Civil

            Code."  Rodr guez Candelario, slip op. at 6.  
                    ____________________

                      We cannot  say  that it  necessarily  follows  from

            Rodr guez   Candelario  that  Article  40(3)  was  implicitly
            ______________________

            repealed  by  the  repeal of  Article  20.    The statute  in

            Rodr guez Candelario explicitly referred  to a "felony  which
            ____________________

            may  involve the loss of civil rights," but, after 1974, such

            felonies  no longer existed.   The statutes at  issue in this

            case, however,  are not so obviously  irreconcilable.  Sierra

            has  advanced  a  perfectly  logical  rationale  under  which

            Article  40(3) may continue to make sense even in the absence

            of any  suspension of  a convict's  civil  rights.   Although

            M rquez, supra, casts some doubt on Sierra's argument, we are
            _______  _____

            reluctant to hold  that an implicit repeal has  occurred when

            there  is a  plausible argument  for the  statute's continued

            existence.  See Campis  v. People, 67 P.R.R. 366,  369 (1947)
                        ___ ______     ______

            ("[i]mplied repeals are not favored  by the law").  Moreover,

            that different  classes of prisoners are  affected by Article

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40(3) and by  the former suspension  of civil rights  statute

            lends some support to Sierra's side of the debate.

                      Because we are uncertain as  to Puerto Rican law on

            this  question, and  because of  the potential  importance of

            this question  to litigation in  Puerto Rico, we  certify the

            following to the Supreme Court of Puerto Rico:

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QUESTION OF LAW
                                   QUESTION OF LAW

                      Does  Article 40(3) of  the Code of Civil
                      Procedure  of  1933   exclude  from   the
                      applicable  limitations  period the  time
                      during which a party is  "[i]mprisoned on
                      a criminal charge,"  if that party  would
                      formerly  have  been  subjected   to  the
                      suspension of his  civil rights  pursuant
                      to Article 20 of the Penal Code of 1937?

                      We  would also  welcome the  advice of  the Supreme

            Court of Puerto Rico  on any other relevant aspect  of Puerto

            Rico law which the  Court believes would give context  to its

            response  or  aid in  the  proper  resolution of  the  issues

            bearing on the timeliness of Mr. Sierra-Serpa's action.

                      Pending  response  to  the  above question  by  the

            Supreme  Court  of Puerto  Rico,  we  shall retain  appellate

            jurisdiction over  this appeal.   The  Clerk  is directed  to

            provide  the  Supreme Court  of  Puerto  Rico with  certified

            copies of the  complaint, the opinion of the  district court,

            and the parties' briefs in this court.

                      So ordered.
                      __________

United States Court of Appeals
                                          for the First Circuit

                                     By:

__________________________
                                          Honorable Levin H. Campbell
                                          Senior Circuit Judge

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