224 F.3d 24 (1st Cir. 2000), 99-1977, Roman v. Townsend

Docket Nº99-1977
Citation224 F.3d 24
Party NameCARMEN ROMAN; JAIME ECHEVARRIA; CONJUGAL PARTNERSHIP, ECHEVARRIA-ROMAN; JAIME ECHEVARRIA-ROMAN (MINOR); YAIKA ALEXANDRA ECHEVARRIA-ROMAN (MINOR); RAISA MICHELLE ECHEVARRIA-ROMAN (MINOR); PLAINTIFFS, APPELLANTS, V. BRIAN KEITH TOWNSEND; ANTHONY SHOPE; JOHN DOE; PETER ROE; TOGO D. WEST, SECRETARY OF THE U.S. ARMY; DEFENDANTS, APPELLEES.
Case DateAugust 23, 2000
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

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224 F.3d 24 (1st Cir. 2000)

CARMEN ROMAN; JAIME ECHEVARRIA; CONJUGAL PARTNERSHIP, ECHEVARRIA-ROMAN; JAIME ECHEVARRIA-ROMAN (MINOR); YAIKA ALEXANDRA ECHEVARRIA-ROMAN (MINOR); RAISA MICHELLE ECHEVARRIA-ROMAN (MINOR); PLAINTIFFS, APPELLANTS,

V.

BRIAN KEITH TOWNSEND; ANTHONY SHOPE; JOHN DOE; PETER ROE; TOGO D. WEST, SECRETARY OF THE U.S. ARMY; DEFENDANTS, APPELLEES.

No. 99-1977

United States Court of Appeals, First Circuit

August 23, 2000

Heard June 8, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Peerez-Gimeenez, U.S. District Judge.

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Frank D. Inserni for appellants.

Fidel A. Sevillano-Del Ro, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, was on brief, for appellees.

Before Stahl and Lynch, Circuit Judges, and Gorton,[*] District Judge.

Gorton, District Judge.

Plaintiffs-appellants challenge the district court's dismissal of their amended complaint. After examining the record and the law, we affirm.

I. Background and Prior Proceedings

On November 29, 1994, Carmen Roman ("Roman"), with a car borrowed from a friend, proceeded to pick up her child from the Antilles Intermediate School located inside Fort Buchanan, a United States Army base. Because Roman and her husband, Jaime Echevarria ("Echevarria"), are employed by the federal government, they are able to send their children to Antilles School free-of-charge.

Upon entering the base, Roman presented the military police officer, Brian Townsend ("Townsend") with identification. Because her driver's license had expired, Townsend detained Roman at the entrance.

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After Roman became upset, frustrated and vocal, Townsend arrested her for breach of the peace and took her to the military police station.

Anthony Shope ("Shope"), Townsend's supervising officer, picked up Roman's daughter, who had been waiting outside the school, told her that her mother had been arrested and took her to the police station where her mother was detained. Roman alleges that while detained at the police station and in her daughter's presence, she was verbally, physically and emotionally abused by Townsend and Shope. Echevarria came to pick up his wife and daughter but was not allowed to enter the police station. Roman was charged with a federal misdemeanor, of which she was later acquitted, and was banned from entering Fort Buchanan.

On November 28, 1995, one day short of one year after the incident, Roman submitted a Form 95 Administrative Claim ("the Administrative Claim") to the Claims Division of the Office of the Staff Judge Advocate ("SJA") at Fort Buchanan seeking redress in the amount of $2,000,000. Attached to the claim was a six-page recital of the events which occurred on November 29, 1994 ("the Incident"). On May 17, 1996, the SJA mailed a letter to Roman notifying her that it had denied her claim and that if she was dissatisfied with that decision, she was entitled to file suit in a United States District Court no later than six months from that date.

On November 15, 1996, two days less than six months thereafter, plaintiffs filed an action in the United States District Court for the District of Puerto Rico against the two military policemen involved in the Incident. The complaint also named as defendants the unknown supervisors of the Policemen, identified in the caption as John Doe and Peter Roe.1 Plaintiffs alleged sexual harassment, intentional tort claims for breach of peace, assault and battery and infliction of emotional distress upon Roman and her family and gross negligence by the supervising officers. Plaintiffs brought their action pursuant to 42 U.S.C. §§ 1983 and 1988, the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and the Constitution and laws of the Commonwealth of Puerto Rico. 2

More than one year later, on December 9, 1997, plaintiffs filed an amended complaint adding Togo D. West, Secretary of the Army ("the Secretary"), as a defendant and, for the first time, asserted jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§2671 et seq. ("the FTCA"). Plaintiffs also, for the first time, asserted claims pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 1981, as well as P.R. Laws Ann. tit. 31, §5141 and tit. 29, §155 et seq. and for false imprisonment and arrest, abuse of process and malicious prosecution.

A copy of the summons, the amended complaint and discovery requests were served upon the Secretary in February 1998 via certified return receipt mail to the Chief of Army Litigation in Arlington, Virginia and the Assistant Judge Advocate General's Office in the Pentagon. Defendant Townsend was served on March 18, 1998. His default was entered on April 28, 1998, but default judgment was never applied for or entered against him and he was treated as a party-defendant for the duration of the case. Shope was served on

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July 6, 1998 and the United States Attorney filed an appearance on his behalf.

On August 18, 1998, the United States filed a notice of substitution and certificate by the United States Attorney that the individual defendants were acting within the scope of their federal employment in connection with the Incident. That notice informed the district court that the United States was substituted for Townsend, Shope, John Doe and Peter Roe pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("the Westfall Act"), Pub. L. No. 100-694, 102 Stat. 4564 (1988). 3

Along with that notice, the United States and the individual co-defendants filed a motion to dismiss the amended complaint as to all plaintiffs except Roman. They argued that because only Roman filed the Administrative Claim, the other plaintiffs failed to exhaust their administrative remedies as required under the FTCA. That motion was not decided but was rendered moot by the district court's disposition of a subsequent motion of the United States to dismiss and/or for summary judgment on the grounds that plaintiffs' FTCA claim failed to satisfy the requirements of that statute and that their Bivens claim was time-barred.

On May 4, 1999, the district court dismissed the FTCA claim because it found that the plaintiffs had failed 1) to bring the action within six months of the denial of their Administrative Claim and 2) to name the United States as the proper party defendant. 4 The district court agreed with the United States that plaintiffs' Bivens claim was time-barred because more than one year had elapsed between the Incident on November 29, 1994 and the filing of plaintiffs' complaint on November 15, 1996, and, therefore, dismissed that claim as well.

Plaintiffs' motion to reconsider the dismissal order was denied by the district court by endorsement on June 30, 1999. We review plaintiffs' appeal from the district court's order of dismissal de novo. See...

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