
USCA1 Opinion

	




          August 19, 1993       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1353                                 VICTOR MANUEL SOSA,                                Plaintiff, Appellant,                                          v.                           RAFAEL HERNANDEZ-COLON, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Victor Manuel Sosa on brief pro se.            __________________            John  F.  Nevares  and  Saldana,  Rey  &  Alvarado  on  brief  for            _________________       __________________________        appellee, Rafael Hernandez-Colon.            Anabelle  Rodriguez,   Solicitor  General,  and  Vanessa  Ramirez,            ___________________                              _________________        Assistant  Solicitor  General, Department  of  Justice,  on brief  for        _____________________________        appellees,  Mercedes Otero-Ramos,  Hector  Rivera-Cruz, Carlos  Lopez-        Feliciano,  Jorge  Collazo-Torres,  Ismael  Betancourt-Lebron,  Yamila        Andujar,  Israel Crespo-Nieves, Julia Soto-Diaz, Gerardo Bloise-Nunez,        and Miguel Salas-Segundo.                                 ____________________                                 ____________________                      Per Curiam.  This  is an appeal from  the dismissal                      __________            of an action based upon  42 U.S.C.   1983 filed  by appellant            Victor Manuel  Sosa in the  United States District  Court for            the District of Puerto Rico.                                      BACKGROUND                                      __________                      Appellant filed  a complaint in the  district court            on February  22, 1990.   The  complaint concerned a  criminal            investigation initiated by  the San Juan District  Attorney's            Office which  resulted  in an  indictment charging  appellant            with kidnapping and weapons violations.  Appellant ultimately            was acquitted of  all charges and released from  detention on            February 22, 1989.  The complaint asserts four claims against            various  defendants  and seeks  in  excess  of forty  million            dollars  in damages.    A description  of  each claim  as  it            relates to specific defendants follows:                      1.   Appellant asserts  that the 1984 investigation            leading up to the indictment and his arrest was indifferently            conducted.   Specifically,  he avers that  Lino Olivo-Arroyo,            the  police officer  who originally  interviewed  the victim,            knew that the victim was lying and that the unnamed assistant            district attorney who personally conducted this investigation            knew that the  underlying facts were  in dispute.   Appellant            also  alleges  that  the  District  Attorney, Israel  Crespo-            Nieves,  and the  Superintendent  of Police,  Jorge  Collazo-            Torres,failedtoadequatelytrain andsupervisetheirsubordinates.                      2.   Appellant, who  never appeared for  trial, was            apparently apprehended in 1988  in the Dominican Republic and            returned  to Puerto  Rico.   He claims  that Gerardo  Bloise-            Nunez,  Miguel A.  Salas-Segundo (Puerto Rico  police agents)            and Juri  Villanova (an immigration officer  of the Dominican            Republic) aided and abetted  this "kidnapping" to avoid using            the proper extradition process.   Appellant avers that Rafael            Hernandez-Colon, the then governor of Puerto Rico, was liable            for  the actions  of  Yamila Andujar-Lopez,  the attorney  in            charge  of extraditions  for  the Puerto  Rico Department  of            Justice,  Carlos Lopez-Feliciano, the  then Superintendent of            Police, and  Hector Rivera-Cruz, the Secretary  of Justice of            the Commonwealth of Puerto Rico.                      3.    During  his  pretrial   detention,  appellant            charges that  he  was  never  provided with  a  shirt  which,            according to  him, caused  delays in visiting  with relatives            and in seeing prison doctors.  Next, appellant complains that            the prison  library was  inadequate and  that  he was  denied            access  to  the  courts  when  he  wanted  to  file  motions.            Finally, appellant  relates that,  just before trial,  he was            transferred to maximum custody  without the required hearing.            Julia  Soto  is  averred  to  be  the  individual  within the            Department of Corrections liable  for these occurrences.  The            Director of the Department, Mercedes Otero-Ramos, is  charged            with failing to supervise Ms. Soto.                                         -3-                      4.   After appellant was acquitted  on February 22,            1989, he claims that Ismael Betancourt, the Superintendent of            Police,  failed  to return  to  him  his passport  and  other            personal  documents thereby restricting him from traveling to            his family and job in the Dominican Republic.  Appellant also            complains  that his  criminal record  was never  "cleared" to            reflect his acquittal and that mugshots and fingerprints were            never returned to him.                      The  defendants filed motions  to dismiss  based on            the grounds of statute of limitations, prosecutorial immunity            and  failure to  state a  claim based  on the  allegations of            supervisory liability.   Appellant  opposed these motions  on            only one ground -- that a letter received on May  30, 1989 by            the  Secretary of  Justice,  Hector  Rivera-Cruz, tolled  the            running  of the statute of limitations  as to all defendants.            Because the  parties had  submitted documents outside  of the            pleadings, the court treated the motions as  ones for summary            judgment.  Finding that  no material issues of fact  existed,            it dismissed the action  as time-barred as to  all defendants            except  Rivera-Cruz.   It then  dismissed appellant's  claims            against  Rivera-Cruz because  appellant was  seeking to  hold            Rivera-Cruz liable only on the basis of respondeat superior.                                                    ___________________                                      DISCUSSION                                      __________                      We review  a summary judgment de  novo to establish                                                    ________            whether  any  material  fact  issues exist  and  whether  the                                         -4-            defendants  are  entitled to  judgment  as a  matter  of law.            Manarite v.  City  of Springfield,  957  F.2d 953,  955  (1st            ________     ____________________            Cir.), cert. denied, 113 S. Ct.  113 (1992).  In so doing, we                   ____________            view the pleadings in the light most favorable to  appellant,            indulging all reasonable inferences in his favor.  See id.                                                               ___ ___                      Upon a  careful examination  of the record  and the            parties' briefs, we affirm the judgment of the district court            that  the  first claim  insofar  as  it concerns  appellant's            arrest and  the second  claim concerning  the  method of  his            removal  from the  Dominican Republic  are time-barred.   The            court  correctly applied  the one-year prescription  for tort            claims  contained in  Article 1868(2)  of the  Civil Code  of            Puerto Rico, 31 L.P.R.A.   5298(2).  See Rodriguez-Narvaez v.                                                 ___ _________________            Nazario, 895 F.2d 38, 42 (1st Cir. 1990).  We also agree, for            _______            the  reasons stated in the Opinion and Order, that the letter            sent  to Rivera-Cruz, the Secretary  of Justice, did not toll            the limitations  period  as to  any of  the other  defendants            except Rivera-Cruz.1  See  id. at 44.   Finally, there is  no                                  ___  ___            issue  of material  fact  that the  complaint contained  only            general allegations  of supervisory liability on  the part of                                            ____________________            1.  Appellant's other tolling argument  is without merit.  He            attempts to invoke Article  40(3) of the Puerto Rico  Code of            Civil Procedure, 32 L.P.R.A.   254, which provided that  time            spent  in prison is excluded from the limitations period.  In            response to a question certified by this court to the Supreme            Court of Puerto  Rico, it  held that Article  40(3) had  been            implicitly repealed in 1974.  See  Sierra-Serpa  v. Martinez,                                          ___  ____________     ________            No.  91-2062, slip  op. at  2 (1st Cir.  June 15,  1993) (per            curiam).                                          -5-            Rivera-Cruz.  As  the district court  held,   1983  liability            may not be based upon the theory of respondeat superior.  See                                                ___________________   ___            Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.            ___________________    _________            1989).                      In relation  to the  third (treatment of  appellant            during   incarceration)  and   fourth   (failure  to   return            appellant's property and clear the state court record) causes            of action,  the district  court's conclusion that  they, too,            are time-barred  is in error as  a matter of law.   The court            held that these claims  accrued "no later" than  February 22,            1989 -- the last date appellant was incarcerated.  Relying on            Ramirez  Morales v. Rosa Viera, 632 F. Supp. 491, 492 (D.P.R.            ________________    __________            1986),  aff'd on other grounds,  815 F.2d 2  (1st Cir. 1987),                    ______________________            the court then held that the day of the "triggering event" --            here, appellant's release from prison -- counts as  the first            day for determining  the limitations period.  Thus, the court            concluded, the one-year period ended on February 21, 1990 and            appellant's complaint, unless tolled, was one day late.                        We have held, however, that in a   1983 action, the            first day is excluded from the limitations period:                           [U]nder the  controlling Puerto                           Rican  case  law, the  one year                           prescriptive period expires  on                           the anniversary  of the accrual                           of the cause of action,  not on                           the  day  before.    The  cases                           hold, contrary  to the district                           court, that the first  day does                           not count towards prescription.                           See Escalera v. Andino,  76 PRR                           ___ ________    ______                                         -6-                           251 (1954).            Luciano  v. Ortiz-Alvarez, No.  91-1802 (November  15, 1991).            _______     _____________            Thus, because  the one-year period  began to run  on February            23, 1989, the complaint is timely as to the third  and fourth            claims.                      Finally,  the   district  court  did   not  address            appellant's contention that the events described in his first            two claims  amounted to  malicious prosecution.   This claim,            although not  made in the complaint,  surfaced in appellant's            response to the  district court's order  of dismissal and  is            raised on appeal.   Such a claim is cognizable  under   1983.            Morales v. Ramirez, 906 F.2d 784, 787 (1st Cir. 1990); Torres            _______    _______                                     ______            v. Superintendent  of Police,  893  F.2d 404,  408 (1st  Cir.               _________________________            1990).   Because acquittal is one of the elements required to            state  a claim of malicious prosecution,  the cause of action            could  not accrue  until acquittal  had occurred  --  in this            case, February 22, 1989.  Thus, for the reasons stated above,            this claim also is not time-barred.                      Based on  the foregoing, we affirm  the judgment of                                                  ______            the district  court dismissing  appellant's first  and second            causes  of action,  except  as they  relate  to a  claim  for            malicious  prosecution.    We  reverse the  judgment  of  the                                           _______            district  court dismissing  the  third and  fourth causes  of            action.    On  remand,  the  court  should  consider  whether            appellant  has met  the requirements  for a    1983  claim of                                         -7-            malicious  prosecution,  see  Morales,  906 F.2d  at  787-90;                                     ___  _______            Torres, 893 F.2d at  408-11.  The court also  should consider            ______            appellees' defenses of  prosecutorial and qualified immunity.            See generally Malachowski v. City of Keene, 787 F.2d 704 (1st            ___ _________ ___________    _____________            Cir.)  (per  curiam),  cert.  denied, 479  U.S.  828  (1986).                                   _____________            Finally,  the question  whether  appellant fails  to state  a            claim  in relation  to certain  appellees because  he alleges            only  supervisory  liability  may  dispose  of  some  of  the            remaining claims  against  these appellees.    See  generally                                                           ___  _________            Gutierrez-Rodriguez, 882 F.2d at 562.            ___________________                      Affirmed,  in part, reversed, in part, and remanded                      ________            ________               ________            for further proceedings not  inconsistent with this  opinion.            As for  motions currently pending before this  court, we take            the  following action.    Appellant's  request for  sanctions            under   Fed.  R.  Civ.  P.   11  and  his   motion  to  quash            certification are  denied.   His requests  that we order  the                               ______            district  court  to  allow  him to  amend  his  complaint and            conduct further  discovery are  denied; such motions  must be                                            ______            addressed to the district court.                      Finally,   appellant  has  requested   an  in  banc            opinion.   Such a request  is governed by  Fed. R. App. 35(c)            which  provides that  a  request  that  "an appeal  be  heard            initially in banc . . . must be made by the date on which the            appellee's brief is filed."  The last brief to be filed by an            appellee  was on November 16, 1992, well before the filing of                                         -8-            the  motion at hand.   We therefore deny  the request without                                                ____            prejudice  to refiling  it  in the  form  of a  petition  for            rehearing in banc.                                         -9-
