
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                                         -2-            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                 _________                                         -3-                      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                                         -4-            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                                         -5-            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.                                         -6-                      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                                         -7-            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                                         -8-            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                                         -9-            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:                                         -10-                                   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                                         -11-
