Not for Publication in West's Federal Reporter

Citation Limited Pursuant to lst Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit







No. 02-1662





Plaintiffs, Appellants,



v.



SPECIAL INVESTIGATION BUREAU,



Defendants, Appellees.







APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO



[Hon. Jay A. Garcia-Gregory, 
U.S. District Judge
] 







Before

 Lynch, 
Circuit Judge
,

Coffin and Porfilio,
-6:Of the Tenth Circuit, sitting by designation.


 
Senior Circuit Judges
.








Antonio Bauza Torres
 on brief for appellants.



Luis Sanchez Betances
 and 
 on brief for appellees. 












May 28, 2003












COFFIN, 
Senior Circuit Judge
. 
 Three individuals were acquitted and one case was dismissed  due to a violation of the Speedy Trial Act.  
See
 District Court Opinion and Order at 11.


  Appellant was arrested but never prosecuted.  At a preliminary hearing following his arrest, a magistrate judge found that the evidence was insufficient to establish probable cause to indict him.  He subsequently brought a civil rights suit against numerous government and law enforcement officials, claiming

3: Although the case originally involved seven corrections department plaintiffs and ten defendants, it is limited at this stage to one plaintiff-appellant and three defendants-appellees for two reasons.  First, plaintiffs failed to file objections to the magistrate judge's recommendation that the case be dismissed against all but the three defendants identified above.  Their untimely response to the recommended decision, filed more than a week after an extended deadline and three days after the district court issued its decision, was in effect only a response to the defendants' objections to the magistrate judge's report.  The absence of timely objections precludes review in this court of the judgments in favor of the other defendants.  
See
see
 
also
 
United States
 v. 
Mitchell
	In brief, appellant claims that his constitutional rights were violated because the appellees executed "an incomplete, irresponsible and unprofessional investigation" by failing to corroborate the unreliable, false testimony of the inmate who was their primary source of information, by disregarding the exculpatory evidence they obtained from other sources, and by presenting what they knew or should have known were false statements to the magistrate judge who issued the arrest warrants.  Appellant predicates his claim of a constitutional violation primarily on an allegation of malicious prosecution implicating his Fourth and Fourteenth Amendment rights.

Our case law establishes that appellant has no viable claim of malicious prosecution grounded on either the procedural or substantive prongs of the Due Process Clause.  
See
 
Nieves
 v. 
McSweeney
, 241 F.3d 46, 53-54 (lst Cir. 2001) (adhering to the view that "'substantive due process may not furnish the constitutional peg on which to hang' a federal malicious prosecution tort") (quoting 
Albright
 v. 
Oliver

 v. 

Nieves
, 241 F.3d at 54, we have explicitly held, after the events that gave rise to this case, that "[i]t is an open question whether the Constitution permits the assertion of a section 1983 claim for malicious prosecution on the basis of an alleged Fourth Amendment violation," 
id.
4: In characterizing the law as unsettled, we relied in 
Nieves
 on the Supreme Court's decision in 
Albright
, issued in 1994, three years before the investigation leading to appellant's arrest.  
See
 
Albright
id.
 at 275 ("We express no view as to whether petitioner's claim would succeed under the Fourth Amendment . . . .").


  Such uncertainty in the legal landscape entitles state actors to qualified immunity.  
See
, 
e.g.
, 
Kauch
 v. 
, 321 F.3d 1, 4 (lst Cir. 2003) (qualified immunity applies if the asserted constitutional right was not "clearly established" at the time of the alleged violation).
5: Although appellees' entitlement to immunity precludes any need to address the issue substantively, we wish to indicate that even if it had been clearly established that the Fourth Amendment embraced malicious prosecution, appellant's claim suffered multiple defects, including that a substantial number of the similarly based investigations resulted in convictions and that appellant has not  identified any false information or a basis for believing appellees knew or should have known of it.

We note appellant's assertion that appellees' pursuit of an arrest warrant without a hearing, allegedly in violation of Rule 6 of the Puerto Rico Rules of Criminal Procedure, 
see
 34 P.R. Laws Ann. App. II R. 6, evidences an awareness that their informant's lack of credibility would have been unveiled in a pre-arrest proceeding.  The Rule, however, offers alternative procedures, including one without a hearing.
We therefore agree with the district court that appellees Castillo, Burgos, and Cubano are entitled to qualified immunity, and we affirm its grant of summary judgment in their favor.

Affirmed.

