
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-2264                             JESUS M. P REZ-RUIZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                             JOS  CRESPO-GUILL N, ET AL.,                                Defendants, Appellees.                                                                                      ____________________        No. 93-2267                                ZOILO LOPEZ-DE JESUS,                                Plaintiff, Appellant,                                          v.                             JOS  CRESPO-GUILL N, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                                                                      ____________________                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Enrique Bray, with whom  Harvey B. Nachman, M.  Georgina Carrion-             ____________             _________________  _____________________        Christiansen, and  Nachman, Santiago, Bray, Guillemard  & Carrion were        ____________       ______________________________________________        on brief for appellants.             Jacqueline D. Novas, Special  Assistant to Attorney General, with             ___________________        whom Pedro A. Delgado  Hernandez, Solicitor General, was on  brief for             ___________________________        appellees.                                                                                      ____________________                                     June 2, 1994                                                                                      ____________________                                          2                    CYR, Circuit  Judge.   Appellants Perez and  Lopez were                    CYR, Circuit  Judge.                         ______________          arrested and  detained in  connection with separate  incidents on          July 31, 1990, in Santurce, Puerto Rico, and charged with selling          cocaine.  Both  were released  on bail after  being detained  for          less  than twenty-four hours.  Perez was acquitted in August 1991          and  the Lopez charges were  dismissed "for lack  of evidence" in          March 1992.                    On June 24, 1992, plaintiffs-appellants  brought virtu-          ally identical  civil rights actions under 42 U.S.C.   1983, with          pendent commonwealth  law claims,  essentially alleging  that the          cocaine  charges  were  trumped  up.    Defendants-appellees  are          various  law enforcement  officers and  officials of  the Common-          wealth of Puerto Rico allegedly involved in arresting and  prose-          cuting appellants.  The complaint asserts claims of false arrest,          false  imprisonment,  and   malicious  prosecution.    Appellants          further  claim that  the  alleged civil  rights infractions  were          elements  of a  larger  conspiracy against  appellants and  other          businessmen.1                                          ____________________               1Appellants urge that  we treat the alleged conspiracy  as a          "continuing violation."  We need not address this contention.  In          view of our conclusion that appellants failed to plead an action-          able claim  for malicious  prosecution, their  time-barred claims          for false arrest and  false imprisonment in 1990 cannot  be saved          by any subsequent termination of their invalid malicious prosecu-          tion claims.   See Mack v. Great American Atlantic  & Pacific Tea                         ___ ____    ______________________________________          Co., 871 F.2d 179,  183 (1st Cir. 1989) ("In  short, [continuing]          ___          violation or  no, plaintiff retained the  burden of demonstrating          that  some [violation]  transpired  within the  appropriate  time                ____          frame.").                                          3                    The Lopez and Perez  actions were assigned to different          district judges.  Defendants-appellees filed  essentially identi-          cal motions to dismiss on the ground that the section 1983 claims          were time-barred  under the  applicable one-year  limitation bor-          rowed from commonwealth law.   See Lafont-Rivera v. Soler-Zapata,                                         ___ _____________    ____________          984 F.2d 1,  3 (1st Cir. 1993).  After  the district court denied          the  motion to  dismiss  the Lopez  action,  the two  cases  were          consolidated  under Fed.  R. Civ.  P. 42,  and docketed  to Judge          Gierbolini who  eventually dismissed  the consolidated action  on          the grounds that the  false imprisonment and false  arrest claims          were  time-barred and the complaint failed to state an actionable          section  1983  claim for  malicious  prosecution,  see Torres  v.                                                             ___ ______          Superintendent of Police, 893 F.2d 404, 409 (1st Cir. 1990) (only          ________________________          "egregious"  misconduct  implicates    1983   remedy;  "malicious          prosecution standing alone does not implicate federally protected          rights").                    Appellants first  challenge the dismissal order  on the          ground that  the earlier district court ruling denying the motion          to dismiss  in the Lopez action  became the "law of  the case" in          the consolidated action.  Appellants misapprehend the "law of the          case"  doctrine.    Interlocutory  orders,  including  denials of          motions to  dismiss, remain open to  trial court reconsideration,          and do not constitute the  law of the case.  Union Mut. Life Ins.                                                       ____________________          Co. v. Chrysler Corp., 793 F.2d  1, 15 (1st Cir. 1986) (citing 1B          ___    ______________          James  W. Moore et al., Moore's Federal Practice   0.404[4.1], at                                  ________________________                                          4          124 n.4  ("[U]ntil  entry  of  judgment,  [interlocutory  orders]          remain subject to change at any time.  The doctrine of law of the                                                 ___ ________ __ ___ __ ___          case does  not limit  the power of  the court in  this respect.")          ____ ____  ___ _____  ___ _____ __  ___ _____ __  ____ _______          (emphasis added)  (2d ed. 1993)); see also  Commerce Oil Refining                                            ___ ____  _____________________          Corp. v.  Miner, 303  F.2d 125, 128  (1st Cir.  1962) ("a  ruling          _____     _____          denying a motion to  dismiss is not the  law of the case, and  is          not final even in the district court").  Second, although the law          of  the case  doctrine  implements an  important judicial  policy          against reconsidering settled matters, it "is neither an absolute          bar  to  reconsideration nor  a limitation  on a  federal court's          power."  United  States v. Rivera-Martinez, 931 F.2d  148, 150-51                   ______________    _______________          (1st Cir.), cert. denied, 112 S. Ct. 184 (1991).                      _____ ______                    Appellants  also challenge the  merits of the dismissal          order.   We review Rule 12(b)(6) dismissals under the rubric that          all  reasonable inferences from properly pleaded  facts are to be          drawn in appellants'  favor.  The  Dartmouth Review v.  Dartmouth                                        _____________________     _________          College, 889 F.2d 13, 16 (1st Cir. 1989).          _______                    The district court concluded  that the malicious prose-          cution claim, whether construed  as asserting a substantive  or a          procedural  due  process  violation,  was  not  actionable  under          section 1983.   Torres, 893  F.2d at 409.   ("[T]o state  a claim                          ______          under section 1983, the complaint must assert that the  malicious          conduct was so  egregious that it violated  substantive or proce-          dural due  process rights under  the Fourteenth Amendment.")   An          actionable section  1983 malicious  prosecution claim based  on a                                          5          substantive  due process  deprivation  must  allege  "conscience-          shocking" conduct  by  the defendants.    Id. at  410  (citations                                                    ___          omitted).   A  procedural  due process  claim  is not  actionable          unless,  inter alia,  no  adequate  "post-deprivation remedy"  is                   _____ ____          available under state law.  Id.                                      ___                    Neither  their  appellate  brief nor  their  complaints          identify the due process theory undergirding appellants'  section          1983 malicious  prosecution claim.    Nevertheless, the  district          court's  analysis and  application  of Torres,  which stated  the                                                 ______          controlling law of this circuit at the time this  case was decid-          ed, seems  entirely correct.   Since then,  moreover, appellants'          position has become  even less  tenable in light  of the  Supreme          Court's  decision in Albright v.  Oliver, 114 S.  Ct. 807 (1994).                               ________     ______          Albright would appear virtually to foreclose reliance on substan-          ________          tive  due process as the basis for a viable malicious prosecution          claim under section 1983    superseding even Torres' very limited                                                       ______          tolerance  of reliance on  substantive due process  in this area.          Four  Justices  concluded  that  a section  1983  claim  alleging          malicious   prosecution  cannot  be  predicated  on  "open-ended"          conceptions  of  substantive due  process.    See  id. at  810-19                                                        ___  ___          (Opinion  of Rehnquist,  C.J.,  joined by  O'Connor, Scalia,  and          Ginsburg, JJ.).2   Moreover, two Justices, in  a concurring opin-                                        ____________________               2The Albright  plurality summarized its position  at the end                    ________          of footnote 4, 114 S. Ct. 811, as follows:                                          6          ion,  found  that the  availability of  an adequate  state remedy          precluded reliance on section 1983.  See id. at 817-19.  (Opinion                                               ___ ___          of  Kennedy, J.,  joined by  Thomas, J.).   Justice Souter,  in a          separate concurrence, concluded that Albright had demonstrated no          distinct injury from the  alleged malicious prosecution, and that          his custody-based  claims were better addressed  under the Fourth          Amendment.  See id. at 819-22 (Opinion of Souter, J.).                      ___ ___                    Lastly,  the  availability of  an  adequate remedy  for          malicious prosecution under commonwealth law, see P. R. Laws Ann.                                                        ___          tit. 31,   5141  (1991), is fatal  to appellants' procedural  due          process claim.   Smith v. Massachusetts Dep't of  Correction, 936                           _____    __________________________________          F.2d 1390, 1402 (1st Cir. 1991); see also Albright v. Oliver, 975                                           ___ ____ ________    ______          F.2d 343, 347  (7th Cir. 1992)  ("The multiplication of  remedies          for identical  wrongs, while gratifying for  plaintiffs and their          lawyers, is not always  in the best interest of the  legal system          or the nation."), aff'd, 114 S. Ct. 807 (1994).                            _____                    Affirmed.                     Affirmed.                    ________                                        ____________________                    In view  of our disposition of  this case, it                    is evident  that substantive due  process may                    not  furnish the constitutional  peg on which                    to hang such a "tort."                                          7
