893 F.

2d 404

Jose Antonio TORRES, et al., Plaintiffs, Appellants,

v.
SUPERINTENDENT OF the POLICE OF PUERTO RICO, et
al.,
Defendants, Appellees.
No. 89-1546.

United States Court of Appeals,

First Circuit.
Heard Oct. 31, 1989.
Decided Jan. 8, 1990.
1

Jesus Hernandez Sanchez, San Juan, P.R., with whom Hernandez Sanchez Law
Firm was on brief, for plaintiffs, appellants.

Jose O. Ramos Gonzalez, San Juan, P.R., with whom Hector Rivera Cruz,
Secretary of Justice, Bayamon, P.R., and Jorge Perez Diaz, Sol. Gen.,
Commonwealth of Puerto Rico and Jose A. Andreu Garcia Law Offices, San
Juan, P.R., were on brief, for defendants, appellees.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and

LAFFITTE,* District Judge.

LAFFITTE, District Judge.

Plaintiff-appellants commenced this action to recover damages under Section

1983 for violation of their civil rights when they were dismissed from their jobs
as police officers. Ruling on a motion to dismiss, the District Court dismissed
the plaintiffs' claim because the action for wrongful termination of employment
was time-barred, and because the plaintiffs failed to state a claim under Section
1983 for malicious prosecution. Plaintiffs, former police officers, seek review
on appeal of the district court's findings that 1) the one-year statute of
limitations for a Section 1983 claim is not tolled by plaintiff-appellants'
administrative action in the Investigation, Processing and Appeals Commission
of the Police Department; (known by its Spanish acronym, "CIPA") and 2) a
claim for malicious prosecution under section 1983 can only be filed in federal

court where there is diversity jurisdiction. We affirm the district court's

decision, but depart from the district court's holding that a claim for malicious
prosecution lies in federal court only where there is diversity jurisdiction.
I. FACTS
6

The facts are not in dispute, and in reviewing the grant of a motion to dismiss
we accept as true all allegations in the complaint and draw all inferences in
favor of the plaintiff-appellants. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974). On June 18, 1987 the defendants, officials of the
Police Department of Puerto Rico, dismissed the plaintiffs from their jobs as
police officers. The plaintiffs were members of the San Juan Vice squad in
charge of patrolling a high crime area. Plaintiffs allege that while on patrol of a
high crime area, they observed suspicious conduct on the part of other police
officers who were dressed in civilian clothes, driving private cars, and carrying
weapons. The complaint alludes to, but never states, that the three plaintiffpolice officers were dismissed from their jobs and charged with violations of
Puerto Rico Weapons laws because they had detected suspicious conduct by
other police officers.

On April 13, 1987 the plaintiffs were ordered to report to the San Juan Judicial
Center because criminal charges were going to be filed against them. A
Commonwealth District Court judge found probable cause to arrest them for
violation of the Puerto Rico's Weapons Law. On June 18, 1987, plaintiffs were
notified that they were dismissed from their jobs. In October, 1987, all criminal
charges were dismissed in a probable cause hearing to indict the plaintiffs.1 On
October 7, 1988 the plaintiffs filed this action in federal district court claiming
that the defendants violated their civil rights by firing them and filing criminal
charges against them.

II. STATUTE OF LIMITATIONS

8

Plaintiffs do not contest that the appropriate statute of limitations for a Section
1983 claim is Puerto Rico's one-year period governing tort actions.2 Wilson v.
Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); RamirezMorales v. Rosa Viera, 815 F.2d 2, 4 (1st Cir.1987). They also do not contest
the fact that they commenced their Section 1983 action more than one year
after they had notice of their dismissal from the Police Department. They do
argue however, that because they also filed an administrative or "extrajudicial"
action within one year after their dismissal, the statute of limitations was
tolled.3

Defendant-appellees contend in their motion to dismiss, and the district court

agreed, that the plaintiffs' administrative appeal to CIPA did not toll the oneyear prescription period. The district court found that the tolling statute would
not apply to plaintiffs because the administrative action did not request identical
relief to the judicial action. See Fernandez Chardon, 681 F.2d 42, 49 (1st
Cir.1982), aff'd sub nom. Chardon v. Fumero Soto, 462 U.S. 650, 653, 103
S.Ct. 2611, 2614, 77 L.Ed.2d 74 (1983); Hernandez del Valle v. Santa Aponte,
575 F.2d 321 (1st Cir.1978); Ramirez de Arellano v. Alvarez de Choudens, 575
F.2d 315 (1st Cir.1978). We agree with the district court's straightforward
reasoning.

10

The accrual period for a Section 1983 action begins when the plaintiff knows
or has reason to know of the injury which is the basis of the action. Marrapese
v. Rhode Island, 749 F.2d 934, 936 (1st Cir.1984), cert. denied, 474 U.S. 921,
106 S.Ct. 252, 88 L.Ed.2d 259 (1985). In this case, plaintiffs learned of their
dismissal on June 18, 1987. Therefore, to have a timely cause of action, the
plaintiffs had to file their federal claim by June 19, 1988. They failed to comply
with the statute of limitations when they commenced this action on October 7,
1988.

11

While the accrual period for a Section 1983 action is governed by federal law,
tolling is governed by state law. Board of Regents v. Tomanio, 446 U.S. 478,
100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Under Puerto Rico law, "extrajudicial"
claims and prior judicial claims will toll the one-year statute of limitations. Art.
1873 of the Civil Code of Puerto Rico, 31 L.P.R.A. Sec. 5303 provides:

12
Prescription
of actions is interrupted by their institution before the courts, by
extrajudicial claims of the creditor, and by any act or acknowledgment of the debt
by the debtor.
13

See also Hernandez del Valle, 575 F.2d at 322. However, the district court
correctly held that the extrajudicial claim must claim the same relief later
requested in the federal suit. The statute of limitations for Section 1983 claim is
not tolled if the remedy requested in both suits is different. See Altair Corp. v.
Pesquera de Busquets, 769 F.2d 30, 32 (1st Cir.1985); Alvarez de Choudens,
575 F.2d at 319; Graffals Gonzalez v. Garcia Santiago, 550 F.2d 687 (1st
Cir.1977). The record supports the district court's findings that the plaintiff
requested two distinct remedies. From CIPA, they sought reinstatement to their
former posts, while from the district court they requested $20 million in
damages as well as reinstatement and the expunging of all photographs and
fingerprints filed in the police department during arrest. Given that these
remedies were not identical, there was no tolling and the prescription period

expired on June 19, 1988. See Hernandez del Valle, 575 F.2d at 322-323
(public employees' request for reinstatement did not toll statute of limitations in
later action for damages under Section 1983); Graffals, 550 F.2d at 688 (oneyear period provided by Article 1873 of the Civil Code did not toll where
administrative appeal requested reinstatement and judicial claim requested
damages).
14

In addition to their claim for statutory tolling, plaintiffs argue on appeal that
they are entitled to "equitable tolling" of the one-year statute of limitations.
They contend that because their claim for malicious prosecution is so
"interwoven" with the dismissal procedure, their action accrued when the
criminal charges were dropped in October, 1987. We find no reason for
allowing the plaintiffs to claim that they did not have knowledge of their injury,
i.e. dismissal from their jobs and prosecution, until they were acquitted of all
criminal charges. See Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70
L.Ed.2d 6 (1981) (Section 1983 action accrues when plaintiff has notice of
dismissal); United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d
259 (1979) (cause of action under Federal Torts Claims Act accrued when
plaintiff is aware of injury and its probable cause).

15

Courts usually apply equitable tolling where plaintiffs can show "excusable
ignorance" of the statute of limitations caused by some misconduct of the
defendant. Kale v. Combined Insurance Company of America, 861 F.2d 746,
752 (1st Cir.1988). See also Cano v. United States Postal Service, 755 F.2d
221, 222-223 (1st Cir.1985). Plaintiffs have not asserted that defendants
prevented them from learning of the dismissal by actively misleading them or
that in some other "extraordinary way" they were prevented from asserting their
rights. See International Union of Electrical Workers v. Robbins & Myers, Inc.,
429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976); Galarza v. Zagury, 702
F.2d 29, 32 (1st Cir.1983) (in medical malpractice action, if "damage" is not
discovered because of fraud, concealment or misrepresentation of facts, claim
is not barred by limitations period); Earnhardt v. Commonwealth of Puerto
Rico, 691 F.2d 69 (1st Cir.1982) (where no basis for finding employer actively
misled employee, there were no equitable consequences which would bar
Puerto Rico from raising untimeliness as a defense in discrimination claim).
There clearly was no attempt by the defendants to conceal from the plaintiffs
notice of the dismissal or the filing of criminal charges. Because plaintiffs
failed to even allege in the complaint that they did not have actual notice of
their dismissal on June 18, 1987, there are simply no facts upon which to base
the equitable tolling doctrine.

III. MALICIOUS PROSECUTION UNDER SECTION 1983

16

Plaintiffs also challenge the district court's dismissal for failure to state a claim
for malicious prosecution which the court stated was not actionable in federal
court in the absence of diversity jurisdiction. We affirm the district court's
dismissal on different grounds.4

17

Plaintiffs allege their claim for malicious prosecution arose on October 13,
1987 when they were acquitted of felony charges in a local court. From the
rambling and inarticulate complaint, we have gleaned that plaintiffs contend
the defendant-appellees brought baseless charges without probable cause
against the plaintiff police officers for reasons of personal animosity. In
particular, they allege that defendant Collazo, a police officer who was not a
witness, talked in private to the Commonwealth District Court judge during the
probable cause hearing for arrest.5 The complaint, however, is mute regarding
the contents of the conversation. The complaint further alleges that, after
finding probable cause, the judge stated that she believed the plaintiff police
officers were entrapped, but she had no choice but to determine probable
cause. 6

18

The district court, in giving brevis disposition to this matter, assumed that
malicious prosecution was not actionable under Section 1983 in the absence of
diversity jurisdiction. But many courts, including this court, have recognized
that a plaintiff may have a cause of action for malicious prosecution under
Section 1983. See, e.g., White v. Frank, 855 F.2d 956, 961 (2nd Cir.1988);
Strength v. Hubert, 854 F.2d 421, 426 (11th Cir.1988); Duncan v. Peck, 844
F.2d 1261 (6th Cir.1988); Usher v. City of Los Angeles, 828 F.2d 556, 561-562
(9th Cir., 1987); Bretz v. Kelman, 773 F.2d 1026 (9th Cir.1985); Losch v.
Borough of Parkesburg, Pennsylvania, 736 F.2d 903 (3rd Cir.1984); Wheeler v.
Cosden Oil and Chemical Company, 734 F.2d 254 (5th Cir.1984); Singleton v.
City of New York, 632 F.2d 185 (2nd Cir.1980); Landrigan v. City of
Warwick, 628 F.2d 736 (1st Cir.1980); Inada v. Sullivan, 523 F.2d 485, 487488 (7th Cir.1975). Nevertheless, in this case we find that even under the most
liberal reading of the complaint, plaintiffs have failed to establish that
defendants' conduct was so egregious as to rise to the level of a constitutional
violation cognizable under Section 1983.

19

It is difficult to precisely define the parameters of malicious prosecution under

Section 1983 because courts have included many different kinds of official
conduct under the rubric of "malicious prosecution." All federal claims for
malicious prosecution are borrowed from the common law tort actionable only
under state law. Common law malicious prosecution imposes liability on a
private person who institutes criminal proceedings against an innocent person
without probable cause for an improper purpose.7 The federal claim under

Section 1983 for malicious prosecution differs from the state civil suit in that it
requires that state officials acting "under color of law" institute the criminal
proceedings against the plaintiff and thereby deprive him of rights secured
under the Constitution. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct.
1908, 1912, 68 L.Ed.2d 420 (1981); Chiplin Enterprises, Inc. v. City of
Lebanon, 712 F.2d 1524 (1st Cir.1983).
20

The majority of courts require the federal plaintiff to prove the elements of
malicious prosecution under state law, see, e.g., Raysor v. Port Authority of
New York and New Jersey, 768 F.2d 34, 39 (2nd Cir.1985), cert. denied, 475
U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986); Terket v. Lund, 623 F.2d 29
(7th Cir.1980), but also hold that only when the misuse of the legal proceedings
is so egregious as to subject the individual to a deprivation of a constitutional
dimension does Section 1983 provide a remedy. Coogan v. City of Wixom, 820
F.2d 170, 174 (6th Cir.1987). See also Karim-Panahi v. Los Angeles Police
Department, 839 F.2d 621 (9th Cir.1988) (citing Usher, 828 F.2d at 562 (claim
of malicious prosecution is cognizable under Section 1983 if prosecution is
conducted with intent to deprive person of equal protection of the laws)); Hand
v. Gary, 838 F.2d 1420 (5th Cir.1988) (state actors may be liable for damages
for bad-faith prosecution in Section 1983 action where plaintiff proves
constitutional violation); Dunn v. Tennessee 697 F.2d 121 (6th Cir.1982), cert.
den., 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983) (egregious misuse
of legal proceedings must rise to level of a constitutional violation).

21

We agree with the majority rule that the defendant must subject the plaintiff to
a deprivation of constitutional magnitude in order to state a claim under Section
1983. Landrigan, 628 F.2d at 745. See also Earle v. Benoit, 850 F.2d 836, 844
(1st Cir.1988); McLaughlin v. Alban, 775 F.2d 389 (D.C.Cir.1985). We have
previously held in the civil context, malicious prosecution standing alone does
not implicate federally protected rights. Cloutier v. Epping, 714 F.2d 1184 (1st
Cir.1983).

22

In Landrigan, we left open the question of whether filing of a baseless charge

and nothing more is actionable under Section 1983. Landrigan, 628 F.2d at
746. After canvasing the law in other circuits, we now hold that to state a claim
under Section 1983, the complaint must assert that the malicious conduct was
so egregious that it violated substantive or procedural due process rights under
the Fourteenth Amendment.

23

a. substantive due process violation

24

For substantive due process purposes, the alleged malicious prosecution must

24

For substantive due process purposes, the alleged malicious prosecution must
be conscience-shocking. See Hand v. Gary, 838 F.2d at 1424; Barnier v.
Szentmiklosi, 810 F.2d 594 (6th Cir.1987); Johnson v. Barker, 799 F.2d 1396,
1400 (9th Cir.1986). "Conscience-shocking" conduct will of course be
determined on a case-by-case basis. "[W]hat is due process of law depends on
circumstances. It varies with the subject-matter and necessities of the
situation." Moyer v. Peabody, 212 U.S. 78, 84, 29 S.Ct. 235, 236, 53 L.Ed. 410
(1909) (Justice Holmes) In cases of a Section 1983 malicious prosecution
claim, substantive due process violations have included: seven hours of
detention and accompanying humiliation, ridicule and mental anguish, Conway
v. Village of Mount Kisco, 750 F.2d 205 and 758 F.2d 46 (2nd Cir.1985), cert.
den., 479 U.S. 84, 107 S.Ct. 390, 93 L.Ed.2d 325 (1986); filing charges
maliciously in an attempt to suppress plaintiff's First Amendment right to make
comment concerning a public official's duties, Losch, 736 F.2d 903; fabricating
charges, falsifying facts, destroying evidence, and strip searching plaintiff
because of his race, Karim-Panahi, 839 F.2d 621; and falsifying police reports,
contriving charges and detaining plaintiff in manacles for reasons of race,
Usher, 828 at 562. Where plaintiff has not been physically abused, detained,
prosecuted due to racial or political motivation or otherwise deprived of equal
protection of the law, courts are reluctant to find "conscience-shocking"
conduct that would implicate a constitutional violation. See, e.g., Barnier, 810
F.2d 594 (police officers' filing of an unwarranted assault and battery charge
against plaintiff was not "conscience-shocking"); Johnson v. Barker, 799 F.2d
at 1400 (where plaintiff was not physically abused or incarcerated, and conduct
was not "brutal," baseless charges did not rise to the magnitude of substantive
due process violation). We emphasize that misuse of the legal process alone
will not be enough to sustain a claim. Hand v. Gary, 838 F.2d at 1424; Whatley
v. Philo, 817 F.2d 19, 22 (5th Cir.1987) (plaintiff's claims that defendant filed
charges solely to "vex and harass" him did not constitute constitutional tort).

25

b. procedural due process violation

26

For procedural due process purposes in a claim of malicious prosecution, the

plaintiff usually must show the alleged conduct deprived him of liberty by a
distortion and corruption of the processes of law, i.e., corruption of witnesses,
falsification of evidence, or some other egregious conduct resulting in a denial
of a fair trial. Johnson v. Barker, 799 F.2d at 1400. See also Coogan, 820 F.2d
at 175; Barnier, 810 F.2d at 599-600. See generally Nahmod, Civil Rights and
Civil Liberties Litigation, 2d Ed., sec. 3.10 (1986). In addition, the plaintiff
must show there was no adequate state postdeprivation remedy available to
rectify the harm. If state tort law furnishes an adequate remedy, the plaintiff
does not have a Section 1983 cause of action merely because the defendant is a
government official. Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th

Cir.1985). See also Coogan, 820 F.2d at 175 (state afforded opportunity for
accused to contest probable cause at preliminary hearing and finding of
probable cause foreclosed relitigation under Section 1983); Barnier, 810 F.2d at
600 (plaintiff did not show no adequate postdeprivation state remedy where
defendant officers determined to be malicious in charging plaintiff).
27

c. application

28

In applying the above standards to a Section 1983 claim for malicious

prosecution, we find that plaintiffs-appellants have shown neither "conscienceshocking" conduct nor met the requisites of a procedural due process claim.8
We cannot find that plaintiffs were subjected to "conscience-shocking" conduct
that "offend[s] those canons of decency and fairness which express the notions
of justice of English-speaking peoples even toward those charged with the most
heinous offenses." Johnson v. Barker, 799 F.2d at 1400 (quoting Rochin v.
California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)).9 The plaintiffs
did not allege any conduct that deprived them of a liberty interest. They were
not detained, handcuffed, or incarcerated. They were not physically abused or
charged for racial or political motivations. Indeed, after the probable cause
hearing for arrest, the police officers were released on a $500 bail. Moreover,
the charges against the officers were dismissed after the probable cause hearing
for indictment, so the length of the prosecution was not constitutionally
onerous.

29

We assume without deciding that plaintiffs' allegations of procedural due

process violations may have been adequate to state a Section 1983 claim.10
Plaintiffs have, however, failed to show that no adequate state remedy was
available if those allegations were proved. Parratt, 451 U.S. at 537. Puerto Rico
law affords a cause of action against the defendants for malicious prosecution.11
See Art. 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. Sec. 5141; Ayala v.
Sons of Puerto Rico, Inc., 103 D.P.R. 778 (1975); Jimenez v. Sanchez, 76
P.R.R. 347 (1954); Pares v. Ruiz, 19 P.R.R. 323 (1913). Where state law
affords an adequate remedy, plaintiffs may not also have a procedural due
process claim for malicious prosecution under Section 1983. Barnier, 810 F.2d
at 600.

30

Because we find no merit in the appellants' contentions, the judgment is

AFFIRMED.

Of the District of Puerto Rico, sitting by designation

The complaint states that the plaintiff-police officers were "acquitted" of felony
charges on October 13, 1987 at a hearing that was appealed to the Superior
Court of Puerto Rico, San Juan Part. See Complaint at paras. 15-16. In oral
argument before this court, counsel for the appellants admitted that the plaintiff
police officers were never "acquitted" in trial, but charges were dismissed at a
probable cause hearing to indict
Under Puerto Rico Rules of Criminal Procedure, a preliminary hearing to
determine probable cause to indict is held for anyone charged with a felony.
See P.R.Crim.Proc.R. 23, 34 L.P.R.A.App. II, R. 23. The purpose of a
preliminary hearing before a Commonwealth District judge is to avoid a person
being subjected to a criminal prosecution on an information or a felony charge
without probable cause. People v. Lopez Camacho, 98 P.R.R. 687 (1970).

Article 1868 of Puerto Rico's Civil Code, 31 L.P.R.A. Sec. 5298(2), provides:
The following prescribe in one year:

Actions to recover or retain possession

Actions to demand civil liability for grave insults or calumny, and for
obligations arising for the fault or negligence mentioned in section 5141 of this
title, from the time the aggrieved person had knowledge thereof. (emphasis
added)

On May 29, 1988, eleven months after their notices of dismissal, plaintiffs
appealed their dismissals to "CIPA."

The statute of limitations for the plaintiffs' alternative claim under Section 1983
claim for malicious prosecution, as opposed to their claim for wrongful
dismissal, is not at issue in this case as the complaint was timely filed within
one year after October, 1987 when they were exonerated of all criminal charges
following a probable cause hearing

Puerto Rico Crim.Proc. Rule 6(a), 34 L.P.R.A.App. II R. 6(a), provides for a

determination of probable cause prior to the issuance of an arrest warrant

We take no view as to the truth of these alleged facts. However for the purpose
of reviewing a grant of a motion to dismiss, we must accept as true the
allegations in the complaint and interpret all inferences of fact in favor of
appellants. See 27 Fed.Proc.L.Ed., secs 62.465-62.466; Scheuer v. Rhodes, 416
U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); O'Brien v. DiGrazia, 544 F.2d
543, 545 (1st Cir.1976)

Restatement, Second, Torts section 653 states:

A private person who initiates or procures the institution of criminal
proceedings against another who is not guilty of the offense charged is subject
to liability for malicious prosecution if
(a) he initiates or procures the proceedings without probable cause and
primarily for a purpose other than that of bringing an offender to justice, and
(b) the proceedings have terminated in favor of the accused.
The Supreme Court of Puerto Rico has fashioned the common law of malicious
prosecution under Art. 1802 of the Puerto Rico Civil Code after the
Restatement Second definition. A plaintiff must prove 1) the criminal action
was initiated and instigated by defendants; 2) the criminal action terminated in
favor of plaintiffs; 3) defendants acted with malice; and 5) plaintiffs suffered
damages. See Ayala v. San Juan Racing Corp., 112 D.P.R. 804 (1982); Parez v.
Ruiz, 19 P.R.R. 323 (1913).
In Landrigan, we distinguished between malicious prosecution where plaintiff
must allege criminal proceedings were initiated against him without probable
cause and for an improper purpose and were terminated in his favor and an
"abuse of process" where the legal process is employed in a manner technically
correct but for a wrongful and malicious purpose to attain an unjustifiable end.
Landrigan, 628 F.2d at 745 n. 6.

Because we cannot find any constitutional deprivation, we need not tarry over
plaintiffs ancillary claim that defendants conspired to maliciously prosecute
them. "This court has ruled that for a conspiracy to be actionable under section
1983 the plaintiff has to prove that 'there [has] been, besides the agreement, an
actual deprivation of a right secured by the Constitution and laws." Brennan v.
Hendrigan, 888 F.2d 189 (1st Cir.1989) (quoting Earle v. Benoit, 850 F.2d 836,
844 (1st Cir.1988))

Given the present case's venue, we are in doubt, as Justice Black was in his
dissent in Rochin, as to "why we should consider only the notions of Englishspeaking peoples to determine what are immutable and fundamental principles
of justice." Rochin, 342 U.S. at 176, 72 S.Ct. at 211

10

In Landrigan, the court stated that the existence of a police report sitting in a
drawer somewhere is not a constitutional deprivation without a showing that
the report has been disseminated or used in some way. The court specifically
noted that such use may constitute a constitutional violation. Landrigan, 628
F.2d at 744-745

11

Moreover, if the Puerto Rico court had found probable cause to indict,
plaintiff's would not have a section 1983 cause of action. Terket, 623 F.2d at
31; Coogan, 820 F.2d at 175; Friedman, 763 F.2d at 238