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<pre>[NOT FOR PUBLICATION   NOT TO BE CITED AS PRECEDENT] <br> <br>United States Court of Appeals <br>For the First Circuit <br>                                 No. 98-1838 <br> <br>                        PABLO LUGO ALICEA, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                      JOSE L. CABAN, ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>          [Hon. Jos Antonio Fust, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br> Torruella, Chief Judge, <br>Coffin, Senior Circuit Judge, <br>and Selya, Circuit Judge. <br> <br> <br> <br>     Jos R. Franco for appellant. <br>     Leticia Casalduc-Rabell, Asst. Solicitor General, with whom Carlos Lugo Fiol, Solicitor General, and Edda Serrano Blasini, Deputy Solicitor General, were on brief, for appellees. <br> <br> <br> <br> <br>March 22, 1999 <br> <br> <br> <br>                                

  SELYA, Circuit Judge.  After a jury acquitted plaintiff- <br>appellant Pablo Lugo Alicea (Lugo) of involuntary manslaughter, <br>Lugo turned the tables and sued the prosecution team   Secretary of <br>Justice Pedro Pierluisi and District Attorneys Jos L. Cabn, <br>Elmer Cuerda, Jaime Zambrana, and Mabel Ruiz   for money damages in <br>Puerto Rico's federal district court.  Within a few weeks, Lugo <br>filed an amended complaint.  See Fed. R. Civ. P. 15(a) (permitting <br>plaintiffs to amend once as of right before a responsive pleading <br>is filed). <br>     The defendants moved to dismiss the amended complaint <br>under Fed. R. Civ. P. 12(b)(6).  Lugo did not oppose the motion, <br>and the district court, after waiting nearly a year, granted the <br>requested relief in a brief, unpublished rescript.  We affirm, <br>albeit on slightly different reasoning.  See Hachikian v. FDIC, 96 <br>F.3d 502, 504 (1st Cir. 1996) (stating that the court of appeals is <br>not wedded to the trial court's rationale, but may affirm its <br>ruling on any ground made manifest by the record); Polyplastics, <br>Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st Cir. 1987) <br>(similar). <br>     Federal pleading requirements are liberal, but they are <br>not entirely toothless.  See Gooley v. Mobil Oil Corp., 851 F.2d <br>513, 514 (1st Cir. 1988).  Here, Lugo's complaint contains four <br>statements of claim.  Two do not articulate separate causes of <br>action, but merely contain recitals of damages allegedly incurred.  <br>Of the other two, the first alleges an abridgment of Lugo's <br>constitutional rights, and the second alleges violations of local <br>law (specifically, Articles 1802 and 1805 of Puerto Rico's Civil <br>Code).  Because Lugo premises jurisdiction on the existence of a <br>federal question, 28 U.S.C.  1331, we focus our attention on the <br>first of these claims. <br>     Refined to bare essence, the claim in question recounts <br>that, following an automobile accident in which a fatality <br>occurred, the authorities charged Lugo with involuntary <br>manslaughter.  His complaint then recites that, in connection with <br>the ensuing criminal trial, "the defendants produced two different <br>croquis evincing two disparaging versions of how the accident took <br>place," and that one defendant, Cabn, "ordered the sworn version <br>of facts of one of the key witnesses to be changed in order to <br>better accommodate the Government's official version."  These acts, <br>the complaint avers, constituted "an illegal, unjustified, abusive <br>and excessive use of authority under color of law" and hence were <br>"in violation of the Due Process Clause [of the] Fifth Amendment to <br>the United States Constitution." <br>     The district court did not err in ruling that these <br>allegations failed to state a claim upon which relief could be <br>granted under federal law.  In order to transform a garden-variety <br>malicious prosecution claim into a claim that is actionable under <br>42 U.S.C.  1983, a plaintiff must establish both (1) action under <br>color of state law, and (2) a deprivation of a constitutional right <br>in consequence of that action.  See Roche v. John Hancock Mut. Life <br>Ins. Co., 81 F.3d 249, 253-54 (1st Cir. 1996).  Lugo's complaint <br>adequately limns state action, but it does not allege a <br>constitutional deprivation.  The claim invokes the Fifth <br>Amendment.  As pertinent here, the Fifth Amendment guarantees both <br>procedural due process and substantive due process.  Neither <br>guaranty helps Lugo. <br>     A section 1983 claim based on malicious prosecution <br>cannot be maintained under the rubric of procedural due process <br>where, as here, local tort law affords an anodyne for malicious <br>prosecution.  See Roche, 81 F.3d at 256; Perez-Ruiz v. Crespo- <br>Guilln, 25 F.3d 40, 43 (1st Cir. 1994); see also Raldiris v. <br>Levitt & Sons, 103 P.R.R. 778, 781 (1975) (confirming that Puerto <br>Rico law grants such remediation). <br>     Such a claim is on even shakier ground when viewed under <br>the substantive due process rubric.  In recent years, both the <br>Supreme Court and this court have held that there is no substantive <br>due process right to be free from malicious prosecution.  SeeAlbright v. Oliver, 510 U.S. 266, 271 n.4 (1994) (plurality op.); <br>Meehan v. Town of Plymouth, ___ F.3d ___, ___ (1st Cir. 1999) [No. <br>97-2235, slip op. at 7]; Roche, 81 F.3d at 256.  Consequently, the <br>district court did not err in dismissing, under Rule 12(b)(6), a <br>complaint that sought to transform a standard malicious prosecution <br>case into a due process violation. <br>     Lugo offers two rejoinders, neither of which has much <br>force.  First, he says that he may have a cause of action under the <br>Fourth Amendment.  That is a theoretical possibility, see, e.g., <br>Roche, 81 F.3d at 256 n.5 (noting that "the Supreme Court left open <br>the possibility that a malicious prosecution claim might lie under <br> 1983 on the basis of the Fourth Amendment"), but it is not the <br>cause of action that Lugo asserted in his complaint.  The facts, as <br>pleaded, do not bring a Fourth Amendment violation to mind.  At any <br>rate, the district court was entitled to consider the claim that <br>Lugo pleaded, and had no obligation to go outside the complaint in <br>search of new and different causes of action.  See Gooley, 851 F.2d <br>at 514.  This is especially so where, as here,  Lugo did not deign <br>even to file a memorandum in opposition to the defendants' motion <br>to dismiss. <br>     Second, Lugo says that the district court erred in not <br>affording him an opportunity to amend his complaint.  The short, <br>fully dispositive answer to this remonstrance is that Lugo never <br>asked the district court for leave to amend.  We have held with a <br>regularity bordering on the monotonous that a party who fails to <br>seek available relief in the nisi prius court cannot anticipate <br>receiving that relief in the first instance from this court.  SeeViquiera v. First Bank, 140 F.3d 12, 20 (1st Cir. 1998) ("A party <br>who neglects to ask the district court for leave to amend cannot <br>expect to receive such a dispensation from the court of appeals."); <br>Beaulieu v. United States IRS, 865 F.2d 1351, 1352 (1st Cir. 1989) <br>(similar). <br>     We need go no further.  Because Lugo failed to plead a <br>cognizable federal claim, his pendent claims under Puerto Rico's <br>Civil Code were properly dismissed as well.  See Martinez v. Colon, <br>54 F.3d 980, 990-91 (1st Cir. 1995); see also 28 U.S.C.  <br>1367(c)(3). <br> <br>Affirmed.</pre>

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