
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                                          ____________________               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
