                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 10-1897

                 FUNDADOR MORENO-MEDINA, ET AL.,

                       Plaintiffs, Appellants,

                                     v.

                        PEDRO TOLEDO, ET AL.,

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                                  Before

                 Torruella, Stahl, and Thompson,
                         Circuit Judges.




     Frank D. Inserni-Milam, for appellants.
     Ivonne Cruz Serrano, with whom Angel E. Rotger-Sabat and
Maymi, Rivera & Rotger, P.S.C., were on brief for appellees José A.
Morales Vázquez and Wilfredo Morales Rivera.



                           January 17, 2012
          STAHL, Circuit Judge.           Plaintiffs-appellants Fundador

Moreno-Medina    (Moreno)   and   his   wife,   Ivette   Banuchi-Rodríguez

(Banuchi), filed this Section 1983 action against a group of Puerto

Rican police officers.      Two of the officers, defendants-appellees

José A. Morales Vázquez and Wilfredo Morales Rivera, moved to

dismiss. The district court granted their motion and dismissed the

complaint, finding that all but one of the plaintiffs' claims were

time-barred and that the plaintiffs had failed to plead sufficient

facts supporting their remaining claim for malicious prosecution.

The facts of this case, if true, are egregious.               In the end,

however, there is relatively little for us to address on appeal,

and we affirm.

                         I. Facts & Background

          We recite the facts only as they are relevant to this

appeal, accepting all well-pleaded facts as true and drawing all

reasonable inferences in favor of the plaintiffs.              See, e.g.,

Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011).

          On November 29, 2006, just before midnight, Moreno and

Banuchi were getting ready for bed when a group of armed men in

dark clothing stormed into their house.              Without identifying

themselves, the men separated Moreno and Banuchi and searched the

house.   One of the men guarded over Banuchi, refusing to let her

move from the bed or change into proper clothing.          The plaintiffs,




                                    -2-
who believed they were being robbed, were understandably quite

frightened.

              As it turned out, the armed men were police officers

executing a search warrant, though they never showed the plaintiffs

a warrant, even after Moreno asked to see one.                  A search of the

house allegedly uncovered bullets, marijuana, transparent plastic

bags, and large amounts of cash.              The officers arrested Moreno and

took    him    to    the   home    of   his    eighty-three-year-old      mother,

apparently in search of a firearm. The officers performed a search

of the mother's house.            Though they did not find a firearm, the

officers said they found a white powdered substance and bullets in

Moreno's mother's room.

              Moreno was detained for four or five hours at the police

precinct and was then booked and subpoenaed to appear in court.                 He

was    charged      with   four   counts      of   violating   the   Puerto   Rico

Controlled Substances Act and two counts of violating the Firearms

Law of Puerto Rico. The officers provided Moreno with an inventory

of his two motor vehicles, which they had seized.                    They did not

provide an inventory of the various other items they had apparently

seized, including jewelry, a digital camera, lottery tickets, and

more than $10,000.00 in cash. Moreno alleges that his property was

never returned to him.

              In the ensuing criminal prosecution, Moreno's attorney

moved to suppress all of the evidence, arguing that it had been


                                         -3-
obtained based on false information.        The superior court held an

evidentiary hearing, at which defendant Miguel Arocho Irizarry

(Arocho) testified.   Arocho is the police officer who obtained the

warrant to search the plaintiffs' house.      The superior court found

that the warrant had been issued based on Arocho's false testimony

and an unsubstantiated tip from an informant.       The court therefore

granted Moreno's motion to suppress. On July 1, 2008, upon request

of the district attorney's office, the court dismissed all of the

charges against Moreno.

            The plaintiffs filed their complaint almost one year

later, on June 1, 2009, claiming $366,399.79 in losses, as well as

emotional and psychological damages in the amount of at least $1.5

million.     They included several causes of action against the

officers who searched their house, as well as claims against those

officers'    supervisors   under   a   respondeat   superior   theory    of

liability.     The plaintiffs alleged, among other things, that the

defendants were liable under 42 U.S.C. § 1983 for violating their

Fourth Amendment rights to be free from unreasonable searches and

seizures and their Fourteenth Amendment rights not to be deprived

of property and liberty without due process of law.

            The defendants moved to dismiss.        The district court

granted the motion, finding that all of the plaintiffs' claims were

time-barred except a possible malicious prosecution claim.              See

Medina v. Toledo, 718 F. Supp. 2d 194 (D.P.R. 2010).           The court


                                   -4-
reasoned that the plaintiffs' claims had begun to accrue at the

time of the injury or wrongful act, which in this case was the date

of the last search and seizure, November 30, 2006.    See Gorelik v.

Costin, 605 F.3d 118, 121-22 (1st Cir. 2010).        Applying Puerto

Rico's one-year prescriptive period for tort actions, see Santana-

Castro v. Toledo-Dávila, 579 F.3d 109, 114 (1st Cir. 2009), the

court found that the plaintiffs' Section 1983 claims stemming from

the unlawful searches and seizures and from Moreno's arrest were

time-barred, because the plaintiffs had filed those claims two and

a half years after the searches and seizures occurred.1

          There was, however, one claim that survived the statute

of limitations.   In response to the defendants' motion to dismiss,

the plaintiffs for the first time described their Section 1983

claim as one for malicious prosecution, and a malicious prosecution

claim does not begin to accrue until the criminal proceedings

terminate.   See Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir.

2001).   The district court found that this would-be malicious

prosecution claim, which the plaintiffs had raised "almost as an

afterthought," would have begun to accrue on July 1, 2008, the date


     1
       The complaint also included claims under the Fifth and Tenth
Amendments, which the plaintiffs dropped in their opposition to the
motion to dismiss, and a claim under the First Amendment, which the
plaintiffs did not address in response to the motion to dismiss and
which the district court found was time-barred anyway.           In
addition, the plaintiffs included supplementary state law claims
under the Puerto Rico Constitution and the Puerto Rico Civil Code.
Because the plaintiffs have not raised any of these claims on
appeal, we do not address them here.

                                -5-
when the superior court dismissed the criminal charges against

Moreno, and thus would have been timely filed.            Medina, 718 F.

Supp. 2d at 205.    Noting that the parties had failed to provide any

useful argumentation as to whether the plaintiffs had satisfied the

elements of malicious prosecution, the court was "forced to abandon

the parties' briefs and do their homework for them."               Id.   The

court   concluded   that   the    plaintiffs   had   failed   to   state   a

cognizable claim of malicious prosecution under Section 1983,

because they had established neither the state law elements of

malicious    prosecution    nor     the   deprivation    of    a    federal

constitutional right.

            The plaintiffs filed a motion to alter or amend the

judgment under Federal Rule of Civil Procedure 59(e), which the

district court denied.     This appeal followed.

                            II. Discussion

            Our review on appeal is narrow; the plaintiffs only

challenge two of the district court's holdings.          They argue that

the court erred by: (1) dismissing their malicious prosecution

claim; and (2) denying their Rule 59(e) motion.

A.   The Malicious Prosecution Claim

            We review de novo an order granting a motion to dismiss,

accepting all well-pleaded facts as true and drawing all reasonable

inferences in favor of the non-moving party.         Artuso, 637 F.3d at

5.   For a complaint to survive a motion to dismiss, it must allege


                                    -6-
"a plausible entitlement to relief," Bell Atl. Corp. v. Twombly,

550 U.S. 544, 559 (2007), meaning that the allegations, taken as

true, are "enough to raise a right to relief above the speculative

level," id. at 555.       That standard "asks for more than a sheer

possibility that a defendant has acted unlawfully."            Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at

556).    It is not met here.

            Because the procedural posture of this case allows us to

do so, we assume, without deciding, "that malicious prosecution can

embody a Fourth Amendment violation and, thus, ground a cause of

action under section 1983." Harrington v. City of Nashua, 610 F.3d

24, 30 (1st Cir. 2010); see also Wallace v. Kato, 549 U.S. 384, 390

n.2 (2007).      In this circuit, a plaintiff seeking to bring a

malicious prosecution claim under Section 1983 must do more than

simply satisfy the elements of the common law tort of malicious

prosecution.     See, e.g., Britton v. Maloney, 196 F.3d 24, 28-29

(1st Cir. 1999).        The plaintiff must "show a deprivation of

liberty, pursuant to legal process, that is consistent with the

concept of a Fourth Amendment seizure."           Harrington, 610 F.3d at

30.   The district court found that the plaintiffs had established

neither the state law elements of malicious prosecution nor a

deprivation of liberty that amounted to a Fourth Amendment seizure.

Because "the essential elements of actionable section 1983 claims

derive   first   and   foremost   from    the   Constitution   itself,   not


                                    -7-
necessarily from the analogous common law tort," Calero–Colón v.

Betancourt–Lebron, 68 F.3d 1, 4 (1st Cir. 1995), we discuss only

the federal inquiry here.

                In a malicious prosecution case brought under Section

1983, "the constitutional violation lies in the 'deprivation of

liberty         accompanying    the   prosecution'      rather        than    in    the

prosecution itself."           Britton, 196 F.3d at 29 (quoting Gallo v.

City       of   Philadelphia,   161   F.3d    217,    222    (3d   Cir.      1998)).

Typically, the alleged deprivation takes "the form of an arrest

warrant (in which case the arrest would constitute the seizure) or

a   subsequent       charging    document     (in    which     case    the    sum    of

post-arraignment        deprivations     would      comprise    the    seizure)."

Nieves, 241 F.3d at 54.               Moreno's       arrest occurred without a

warrant, which means it "antedated any legal process" and "cannot

be part of the Fourth Amendment seizure" upon which the plaintiffs

base their malicious prosecution claim.2               Id.   The plaintiffs must


       2
       Although Moreno's arrest was made during the execution of a
search warrant, which could conceivably form the basis for a Fourth
Amendment malicious prosecution claim, see Meehan v. Town of
Plymouth, 167 F.3d 85, 89 n.3 (1st Cir. 1999), Moreno did not make
such an argument until he moved for reconsideration below, and he
has not developed the argument at all on appeal. It is therefore
waived. See Dillon v. Select Portfolio Servicing, 630 F.3d 75, 80
(1st Cir. 2011) ("When a party makes an argument for the first time
in a motion for reconsideration, the argument is not preserved for
appeal."); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
     In addition, while Moreno's warrantless arrest might
theoretically have provided grounds for a false arrest action under
Section 1983, the district court determined that such an action was

                                        -8-
therefore   show "some     post-arraignment        deprivation   of   liberty,

caused by the application of legal process, that approximates a

Fourth Amendment seizure."          Id.    That requires them to do more than

simply allege that Moreno was forced to attend court proceedings,

notify the court of a change in address, or refrain from committing

further crimes.      Harrington, 610 F.3d at 32.         The plaintiffs must

allege that Moreno was in some way forced to "'yield' to the

assertion of authority over him and thereby [had] his liberty

restrained," for example by being detained or having his travel

restricted.    Britton, 196 F.3d at 30.

            Though the plaintiffs correctly summarize the federal

standard in their brief on appeal, they nonetheless inexplicably

fail to make any argument as to how or when Moreno was "seized."

Instead, they focus their argument on whether the defendants acted

with malice, as required to establish the state law elements of

malicious prosecution. Construing the plaintiffs' complaint in the

light most favorable to them, the district court speculated that

the only potentially cognizable post-arraignment deprivation Moreno

suffered was having to post a $10,000.00 bond. The court concluded

that, because Moreno was able to post the bond and was not

detained,   the    bond   was   a    "run-of-the-mill"    pre-trial    release

condition and did not amount to a Fourth Amendment seizure.

Nieves, 241 F.3d at 55; see also Harrington, 610 F.3d at 32-33.


time-barred.      Moreno does not appeal that decision here.

                                          -9-
Because the plaintiffs have not put the issue squarely before us,

we need not address today whether a post-arraignment release on

bond, standing alone, could ever approximate a Fourth Amendment

seizure for purposes of a Section 1983 malicious prosecution claim.

The complaint here includes no mention of malicious prosecution and

only a cursory mention of the Fourth Amendment, and the plaintiffs

have made no attempt to explain where in that complaint we might

find sufficient facts to establish something akin to a Fourth

Amendment seizure.

          The plaintiffs chose to bring this action in federal

court.   As such, they were required to plead sufficient facts to

"show a deprivation of liberty, pursuant to legal process, that is

consistent with the concept of a Fourth Amendment seizure."

Harrington, 610 F.3d at 30.    They have failed to do so.     "Even

during appellate review of a Rule 12(b)(6) dismissal, which takes

place under a set of plaintiff-friendly guidelines, the reviewing

court cannot be expected to 'do counsel's work, create the ossature

for the argument, and put flesh on its bones.'"   Redondo-Borges v.

U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005)

(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

The district court properly dismissed the plaintiffs' malicious

prosecution claim.




                               -10-
B.    The Rule 59(e) Motion

            We review for abuse of discretion the district court's

denial of a motion to alter or amend a judgment under Federal Rule

of Civil Procedure 59(e).        Negrón-Almeda v. Santiago, 528 F.3d 15,

25 (1st Cir. 2008).       After the district court issued its decision,

the plaintiffs filed, along with their Rule 59(e) motion, a copy of

the state superior court order suppressing the evidence against

Moreno.    They argued that the suppression order established that

the defendants had acquired the search warrant with malice and that

the warrant constituted the initiation of a criminal action under

Puerto Rico common law.         The plaintiffs did not, however, address

the   district     court's    finding     that   they    had   failed    to    plead

sufficient   facts     to     establish    the     deprivation   of     a   federal

constitutional right, which, as discussed above, was dispositive.

            Because the plaintiffs have shown no manifest error of

law or newly discovered evidence, the district court did not abuse

its discretion by denying their Rule 59(e) motion.                      See, e.g.,

Redondo Waste Sys., Inc. v. López-Freytes, 659 F.3d 136, 142

(1st Cir. 2011).

                               III.     Conclusion

            Like    the      district     court,    we   conclude       that    this

unfortunate case is one in which "[a] ripe civil rights suit was

left to rot."      Nieves, 241 F.3d at 57.          We thus affirm.




                                        -11-
