Felix de Santana v. Velez

• Decision Date: 07 November 1991
• Docket Number: No. 91-1563,91-1563
• Citation: 956 F.2d 16
• Parties: Lydia FELIX De SANTANA, etc., Plaintiff, Appellee, v. Jose Eligio VELEZ and Elba Zayas, Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

956 F.2d 16

Lydia FELIX De SANTANA, etc., Plaintiff, Appellee, v. Jose Eligio VELEZ and Elba Zayas, Defendants, Appellants.

No. 91-1563.

United States Court of Appeals First Circuit.

Heard Nov. 7, 1991.

Decided Feb. 6, 1992.

Sheldon Nahmod, Chicago, Ill., with whom Cancio, Nadal & Rivera, San Juan, P.R., was on brief, for defendants, appellants.

A.J. Amadeo Murga, Santurce, P.R., for plaintiff, appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and SKINNER, ^* District Judge.

BOWNES, Senior Circuit Judge.

This appeal stems from a 42 U.S.C. § 1983 malicious prosecution action that plaintiff-appellee, Lydia Felix de Santana, brought against the defendants-appellants, Jose Eligio Velez and Elba Zayas. The appellants appeal the denial of their motion for summary judgment. They make two contentions: 1) that they were entitled to raise the defense of qualified immunity; and 2) that they did not violate § 1983 malicious prosecution law. Because the appellants bring an interlocutory appeal, we must first determine whether we have jurisdiction to entertain their appeal. We hold that we do not.

The question of our jurisdiction requires us to review the district court's ruling that the defendants were not entitled to raise the defense of qualified immunity. We, therefore, follow the customary standard of review applicable to denials of summary judgment. Our review in such cases is plenary. Cookish v. Powell, 945 F.2d 441, 443 (1st Cir.1991). We review the facts and draw all reasonable inferences therefrom in the light most favorable to the nonmovant. Morales v. Ramirez, 906 F.2d 784, 785 (1st Cir.1990). The question before us is whether the district court erred in finding as a matter of law that the defendants did not belong to the class of people entitled to raise the defense of qualified immunity.

BACKGROUND

Felix de Santana is the former Treasurer-Administrator of Cooperativa de Ahorro y Credito de la Associacion de Maestros de Puerto Rico ("EDUCOOP"), a cooperative organized under Puerto Rico law. Velez serves as the President of EDUCOOP and Zayas is his assistant. Felix de Santana alleges that the defendants conspired with Puerto Rico Assistant District Attorney Acevedo Padilla to remove her from her position at EDUCOOP and to obtain control of EDUCOOP by bringing baseless criminal charges against her.

On September 16, 1987, Felix de Santana was indicted on charges of perjury and threatening a witness. She was arrested, tried, and subsequently acquitted of the charges. ¹ In the course of these events, Felix de Santana was removed from her position as Treasurer-Administrator, lost her job at a bank, and was also removed from her position on the Board of Directors of the Puerto Rico Energy Authority.

In August 1989, Felix de Santana sued Velez and Zayas under 42 U.S.C. § 1983 for malicious prosecution and under 18 U.S.C. § 1961 for violations of the Racketeering Influenced and Corrupt Organizations Act ("RICO"). She alleged that the prosecutor, Padilla, allowed Zayas to take control of the investigation against her. She contended that Zayas engaged in the following activities: deciding which witnesses would be subpoenaed; being present during the questioning of witnesses and controlling the questioning; transcribing the witnesses' interviews; taking stationery from the Commonwealth's Justice Department and preparing documents on that stationery which were later delivered to the Justice Department.

The defendants moved for summary judgment on various grounds. They contended that: 1) Felix de Santana failed to show a pattern of racketeering activity as to the RICO claim; 2) the malicious prosecution claim was precluded by prior federal litigation; 3) the § 1983 claim was barred by the applicable one-year statute of limitations under Puerto Rico law; 4) the § 1983 claim should be dismissed because of the availability of adequate remedies under Puerto Rico law; 5) the alleged conduct did not shock the conscience as required for a substantive due process violation; 6) Felix de Santana failed to properly allege action under color of state law; and 7) the defendants were protected by qualified immunity.

The court granted the defendants' motion for summary judgment as to the RICO claim. It also allowed Felix de Santana twenty days to amend her complaint. The court dismissed the § 1983 claim insofar as it was premised on procedural due process grounds because of the availability of an adequate Puerto Rico remedy. The court denied the motion for summary judgment We find that defendants' conduct as alleged in the complaint coupled with defendants' previous attempt to violate plaintiff's First Amendment rights amounts to a prima facie case of conduct so egregious as to "substantively, 'shock the conscience.' " Morales, 906 F.2d at 784 (citing Barnier v. Szentmiklosi, 810 F.2d 594, 599 (6th Cir.1987)). To cause the arrest of an innocent person and her prosecution when there is no ground for believing she committed a crime is outrageous and under the circumstances as alleged in the complaint, it is actionable under Section 1983. See Goodwin v. Metts, 885 F.2d 157, 163 (4th Cir.1989) ("Whether a criminal defendant is incarcerated is not decisive in determining if he has suffered an abridgment of constitutional rights"); Hand v. Gary, 838 F.2d 1420, 1424 (5th Cir.1988) ("There is a constitutional right to be free of 'bad faith prosecution' "). The complaint alleges that plaintiff suffered financial distress, the loss of her job and reputation and incalculable public humiliation as a result of defendants' actions. We emphasize that this case presents exceptional and unusual circumstances which justify, if barely so, the finding that plaintiff has stated a prima facie substantive due process claim. A reasonable juror may conclude at trial that plaintiff's constitutional rights have not been violated.

                as to the § 1983 claim on the other grounds.   It ruled
                

Opinion and Order, No. 89-1090 GG, at 12-13 (April 29, 1991) (footnote omitted).

JURISDICTION

We first deal with the threshold question of whether we have jurisdiction of an interlocutory appeal raised by private defendants claiming the defense of qualified immunity.

The appellants contend that we have jurisdiction to entertain their interlocutory appeal premised upon Supreme Court precedent in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and this circuit's ruling in Lovell v. One Bancorp, 878 F.2d 10 (1st Cir.1989). We find no support for appellants' contentions.

The Mitchell Court held that "a district court's denial of a claim of qualified immunity, [for a government official] to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." 472 U.S. at 530, 105 S.Ct. at 2817. The Court's ruling was rooted in the public policies served by preventing: 1) the distraction of officials from their governmental duties; 2) the inhibition of discretionary action of governmental employees; and 3) deterrence from public service. Id. at 526, 105 S.Ct. at 2829. The circumstances before us, which involve private actors, implicate neither the Mitchell holding itself nor the undergirding reasons for the Mitchell holding.

The appellants contend that under the functional approach test applied to immunities, this circuit's relevant caselaw permits their interlocutory appeal. This argument is disingenuous. We specifically stated in Crippa v. Dukakis, 905 F.2d 553 (1st Cir.1990), that we had yet to consider whether the functional equivalents of government officials have a right to an interlocutory appeal. Id. at 556.

We examined the jurisdictional issue of interlocutory appeals in two cases. The first was in Lovell, 878 F.2d 10, where we held that a private party engaged in private, commercial activity had no right to an interlocutory appeal of the court's denial of his motion for summary judgment on qualified immunity grounds. Id. at 13. We limited our holding in Lovell with the qualification that, "[t]his case does not concern a private defendant whose allegedly wrongful conduct arises from acts that were required to be performed under a contract with a governmental body to perform a governmental function." Id. at 12 n. 4. The circumstances of the case before us do not implicate the Lovell qualification because the alleged conduct was not required conduct pursuant to a governmental contract. Rather, Felix de Santana alleges The second case in this circuit bearing on our jurisdiction over interlocutory appeals in qualified immunity cases is Crippa, 905 F.2d 553. We found that we lacked jurisdiction because we were unable to ascertain from the record a legal duty on the part of the defendant to perform any governmental function. Id. at 557. Crippa states:

that the appellants acted unlawfully in conspiracy with the Attorney General's Office to drive her out of her position at EDUCOOP for reasons of self-interest.

Where an appellant has no official (or equivalent) status, Lovell, 878 F.2d at 12, or where the record does not enable us to determine a cognizable basis for the assertion of appellate jurisdiction, as in the present case, we will not entertain an interlocutory appeal from the denial of an immunity claim on the basis of its label alone.

Id. at 556. As for cases where we would have jurisdiction, Crippa states: "Courts of appeals, including our own, determine their jurisdiction to entertain an interlocutory appeal from a denial of a claim of qualified immunity by focusing on the position and function of the party asserting the immunity claim." Id. at 555.

Our analysis of the holdings in Lovell and Crippa show that we confront in this case an issue of first impression. To ascertain whether the appellants have a right to an interlocutory appeal requires that we determine whether they would be entitled to...