
USCA1 Opinion

	




          January 20, 1993                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1656                                MANUEL LAFONT-RIVERA,                                Plaintiff, Appellant,                                          v.                                  JOSE SOLER-ZAPATA,                                RICARDO TORRES MUNOZ,                                   ARMANDO TROCHE,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                         and Skinner,* Senior District Judge.                                       _____________________                                 ____________________            Enrique  J. Mendoza Mendez  with whom  Jose Enrique  Mendoza Vidal            __________________________             ___________________________        was on brief for appellant.            Vannessa Ramirez, Assistant Solicitor General,  with whom Anabelle            ________________                                          ________        Rodriguez,  Solicitor General, Department of Justice, was on brief for        _________        appellees.                                 ____________________                                 ____________________        _____________________        *Of the District of Massachusetts, sitting by designation.                      STAHL, Circuit Judge.  In  this  appeal,  plaintiff                             _____________            Dr.  Manuel  Lafont-Rivera  challenges  the  district court's            dismissal of his  42 U.S.C.   1983  complaint as time-barred.            We affirm the judgment of the district court.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      When  reviewing the  dismissal of  a complaint,  we            treat all allegations in  the complaint as true and  draw all            reasonable  inferences in  favor  of plaintiff.   See,  e.g.,                                                              ___   ____            Monahan v.  Dorchester Counseling  Ctr., Inc., 961  F.2d 987,            _______     _________________________________            988  (1st Cir. 1992).  Plaintiff, an optometrist, worked part            time  for the  Department of  Health of  the Commonwealth  of            Puerto Rico ("DOH") from March 5, 1951, to November 30, 1971.            Sometime   in   1984,   plaintiff   allegedly    received   a            "[C]ertificate of Service"  (the "Certificate") verifying his            twenty-year term  of employment  with DOH.   Plaintiff claims            that the  Certificate operated as  an official acknowledgment            that, as of  1982, the  year in which  he turned  fifty-eight            years old, he became qualified to receive a pension.                      Receiving  a  Certificate  is,  however,  only  the            beginning of the pension  application process in Puerto Rico.            Apparently,  DOH  pension applicants  with  Certificates next            must  acquire   from  DOH  a  "Form   OP-15"  verifying  that            applicant's  employment has  terminated.   According  to  the                                         -2-                                          2            complaint, the Retirement Office does  not process individual            pension applications without the Form OP-15.                        After   receiving    his   Certificate,   plaintiff            attempted  to secure  a Form OP-15  from DOH.   To  that end,            sometime  in  1984,  plaintiff  -- through  his  attorney  --            requested  DOH  to  issue  him  a  Form  OP-15.   Apparently,            plaintiff's initial request went unheeded.                        The complaint does not reflect  further interaction            between the  parties in 1984-1986.  The complaint does state,            however, that on January  24, 1987, defendant Armando Troche,            Head of  DOH's Personnel  Office,  communicated to  plaintiff            that  his  case  "was  being   referred"  to  the  DOH  Legal            Department.                        Again, more  than two years passed  without further            communication  between plaintiff and DOH.   Then, on June 14,            1989, plaintiff reiterated his request that  defendant Troche            issue  the  Form OP-15.   On  June 26,  1989, Troche  wrote a            letter  to plaintiff  informing  him that  "nothing could  be            done"  as his case "had been referred to the Legal Department            six months before."                       Sometime in  1990, plaintiff requested for  a third            time  that  DOH issue  the  Form  OP-15.   Contemporaneously,            plaintiff  also petitioned defendant  Dr. Jose  Soler Zapata,            the Secretary of Health of the Commonwealth of Puerto Rico to                                         -3-                                          3            issue the Form.  Apparently, defendant  Soler did not respond            to plaintiff's request.                      Sometime  thereafter,   plaintiff  began  extensive            negotiations over his employment status with officials in the            DOH Legal Department.   After these negotiations, an official            in  the  Legal  Department   went  to  defendant  Troche  and            recommended  that   he  fill  out  plaintiff's   Form  OP-15.            Defendant  Troche  ignored  this  recommendation  and instead            referred   plaintiff's  case  to   the  "Office   of  Central            Personnel."                       After  learning  of  this  referral,  plaintiff, on            February  21, 1991,  filed "an  appeal" with  defendant Soler            again  seeking  his Form  OP-15.    Defendant Soler  referred            plaintiff's case to defendant  Ricardo Torres Munoz, the Head            of the DOH Legal Department.  Defendant Munoz  conferred with            defendant Troche and, in May of  1991, wrote a letter to  the            Retirement Office  certifying that plaintiff  had worked with            DOH for  twenty years.   Without  the  requisite Form  OP-15,            however, the  Retirement Office would not process plaintiff's            application.                      During  the  month  of June  1991,  plaintiff  made            numerous phone  calls and  personal visits to  DOH requesting            the Form OP-15.  The  DOH again ignored plaintiff's requests.            In  a letter dated July  8, 1991, plaintiff  made yet another                                         -4-                                          4            request for the Form OP-15.  Again, the DOH turned a deaf ear            to plaintiff's request.                      On  August 2,  1991,  plaintiff filed  the  instant            lawsuit  alleging  that defendants'  refusal  to provide  the            Retirement  Office with  his Form  OP-15 was,  inter alia,  a                                                           _____ ____            violation  of   rights  secured  him  under   the  Fourteenth            Amendment's  Due  Process   and  Equal  Protection   Clauses.            Plaintiff  sued under 42  U.S.C.   1983  seeking both damages            and  injunctive  relief.   In  response,  defendants filed  a            motion to dismiss plaintiff's complaint arguing, inter  alia,                                                             _____  ____            that  the complaint  was  barred by  the applicable  one-year            statute of  limitations.   Finding that plaintiff's  cause of            action accrued more than a year before plaintiff filed  suit,            the district court  agreed and dismissed the  complaint.  For            the reasons  outlined below,  we affirm the  district court's            ruling.                                           II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      The  parties do  not dispute  the  applicability of            Puerto Rico's one-year statute  of limitations governing tort            actions.  See Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,                      ___ _______________    _____________            353 (1st Cir. 1992); Torres v. Superintendent of Police,  893                                 ______    ________________________            F.2d 404, 406 (1st Cir. 1990).  While state  law supplies the            statute of  limitations  in  a    1983  action,  federal  law            governs the accrual period.   See, e.g., Rivera-Muriente, 959                                          ___  ____  _______________                                         -5-                                          5            F.2d  at 353.  Under federal  law, a plaintiff's   1983 cause            of action accrues when s/he "knows, or has reason to know, of            the injury on which the action is based."  Id.                                                         ___                      In  determining when  plaintiff  became  aware  (or            should have been aware) of his alleged injury, our first task            is to identify the injury of which he complains.  Plaintiff's            ultimate complaint is that  defendants' actions are depriving            him  of  his  pension.   However,  as  is  apparent from  the            complaint, defendants  have  not officially  denied  him  the                                             __________            pension.  Rather, they allegedly are shuttling his Form OP-15            request from department to department within the DOH, thereby            preventing  him  from  making   formal  application  to   the            Retirement  Office.    Therefore,   it  appears  that  it  is            defendants'  repeated  failure  to  respond   to  plaintiff's                         ________  _______            request that DOH  fill out a  Form OP-15 that  serves as  the            basis for plaintiff's claim.                        Thus,  for  statute  of  limitations  purposes, the            pivotal question  becomes when plaintiff knew  or should have            known that defendants were  not going to respond to  his Form            OP-15 request.  The  district court determined that plaintiff            became  aware of his injury in 1984, the year he received the            Certificate  indicating that  he was  qualified to  receive a            pension.  The court based this determination, in part, on the            fact  that plaintiff knew as early as 1972 that DOH's failure            to "define his  status" would deprive him of pension benefits                                         -6-                                          6            once he became eligible.  The  court therefore reasoned that,            in 1984,  when plaintiff's initial request  went unheeded, he            was (or should  have been)  on notice that  his civil  rights            were being  violated.  We disagree with  the district court's            reasoning.                      In  1984,  plaintiff  was  on notice  that  he  was            qualified to make an application to the Retirement Office for            a pension.  As a  result, he made his initial request  to DOH            to issue  him the  Form OP-15.   DOH did  not respond  to his            request.  Plaintiff may well have known at that point that if            DOH ultimately failed to  "define his status," the Retirement            Office would not be able  to process his pension application.            It is hardly  clear, however, that,  in 1984, plaintiff  knew            (or should have known) that defendants would never officially            respond to plaintiff's Form OP-15 request.                      Plaintiff's initial request, however, went unheeded            for more than  two years.   In January  1987, when  defendant            Troche finally responded  to plaintiff's initial  request, he            informed him that his  case "was being referred to  the Legal            Department[.]"  Reading the complaint favorably to plaintiff,            we  think it would not have been unreasonable for him to have            concluded -- at this point -- that, although extremely  slow,            the  bureaucratic process might  eventually produce  his Form            OP-15.                                           -7-                                          7                      Another two years  passed, however, as  plaintiff's            request  apparently languished in the Legal Department.  As a            result,  we   think  that  when   defendant  Troche  informed            plaintiff on June 26,  1989, that "nothing could be  done" as            his case again had been "referred to the Legal Department[,]"            plaintiff should have been on notice that defendants  did not            intend to act on his Form OP-15 request.  Thus,  any cause of            action  plaintiff  had  against  defendants accrued  at  that            point.                        Accordingly, we  hold that,  on June 26,  1989, the            one-year statute of limitations began to run on plaintiff's              1983  action.1  As plaintiff waited more than two years after            that  date to  file  his complaint,  his    1983  action  was            untimely.2    Thus,  while  we  disagree  with  the  district            court's selection of an accrual date, we affirm its dismissal            of plaintiff's complaint.                        Affirmed.                       Affirmed.                       _________                                            ____________________            1.   Plaintiff  also pursues  an alternative theory  that his            lawsuit  was in  reality  only against  defendants Soler  and            Munoz, whose unlawful actions, he contends, occurred within a            year of his filing of the  complaint.  For the reasons  amply            articulated  by  the  district  court,  see Lafont-Rivera  v.                                                    ___ _____________            Soler-Zapata, No.  91-1932CCC, slip op. at  5-6 (D.P.R. April            ____________            29, 1992), we find this argument meritless.            2.    Plaintiff attempts to establish timeliness by asserting            that  defendants  have  committed a  "continuing  violation."            Plaintiff, however, failed to  articulate this theory  below.            As  such he cannot  raise it  for the  first time  on appeal.            See, e.g., Clement v. United States, No. 91-1839, slip op. at            ___  ____  _______    _____________            20 (1st Cir. November 25, 1992).                                                               -8-                                          8
