Hernandez Jimenez v. Calero Toledo, 77-1089

• Decision Date: 01 June 1978
• Docket Number: No. 77-1089,77-1089
• Parties: Francisco HERNANDEZ JIMENEZ, Plaintiff, Appellant, v. Astol CALERO TOLEDO et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 402

576 F.2d 402

Francisco HERNANDEZ JIMENEZ, Plaintiff, Appellant, v. Astol CALERO TOLEDO et al., Defendants, Appellees.

No. 77-1089.

United States Court of Appeals, First Circuit.

Argued Feb. 6, 1978.

Decided June 1, 1978.

Jesus Hernandez Sanchez, Rio Piedras, P. R., with whom Antonio Hernandez Sanchez, San Juan, P. R., was on brief, for appellant.

Candita R. Orlandi, Asst. Sol. Gen., San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief for appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Francisco Hernandez Jimenez filed his complaint on April 10, 1975, charging Astol Calero Toledo, Superintendent of the Puerto Rico police, with dismissing him from the department without a prior hearing. The complaint also charged Calero and members of the commission that reviewed and upheld Hernandez's discharge with conspiring to deprive him of his position for political reasons. Hernandez sought reinstatement and damages. On November 14, 1975, he amended his complaint to include two new defendants, local politicians who, he claimed, joined in the conspiracy to deprive him of his post. After some documentary evidence had been submitted but before trial, the district court dismissed the complaint, ruling that res judicata barred the suit against the original defendants and that the addition of new defendants by the amended complaint was time barred. Hernandez appeals from the dismissal of his complaint.

At the time of his dismissal Hernandez was a lieutenant in the Puerto Rico police. On the night of March 18, 1973, while off duty, a vehicle he was driving collided with another automobile. According to the police report of the accident, Hernandez apparently had been drinking and was driving on the wrong side of the road. The passengers got out of their respective cars and argued over the accident for about half an hour. The conversation became heated, and at some point Hernandez shot the occupants of the other car with his service revolver and then fled. One of the victims died from the gunshot wounds; the other was seriously injured but survived. Hernandez was tried for attempted murder and second degree murder but was acquitted by a jury, apparently on the ground of self defense.

After an administrative investigation of the shooting incident, Calero on April 17, 1973 sent Hernandez a letter dismissing him from the police force. The letter cited departmental regulations relating to negligent conduct, improper use of firearms, physical abuse of civilians, and illegal behavior and informed Hernandez of his right to appeal the decision to the Investigation, Processing and Appeals Commission. The Commission upheld the dismissal on June 26, 1974. Hernandez then sought review of the Commission's action in the Puerto Rico Superior Court, but his petition was dismissed because the statutory thirty day appeal period had elapsed since the Commission decision. Hernandez appealed the dismissal of his petition to the Supreme Court of Puerto Rico but was denied certiorari.

In his complaint and accompanying affidavits, Hernandez claims that his two victims and the three eyewitnesses to the shooting were attacking him with steel bars, forcing him to use his gun. He alleges that Calero admitted to him the investigation and discharge were politically motivated, as leaders of the Popular Democratic Party, to which Calero belonged, wished to harm Hernandez, a member of the New Progressive Party. He contends that after the Commission upheld his discharge, he discovered that Juan Nieves, the stepfather of the boy he killed, brought pressure to bear on Ramon Amaes Rios, the mayor of Rincon, to punish Hernandez, and that Amaes in turn pressured Calero and the Commission. He alleges that Calero, the Commission members, Nieves and Amaes, all being Popular Democrats, conspired to remove him from the force solely because of his political affiliation. He claims to have been unable to include Nieves and Amaes in his original complaint because he was then unaware of their involvement in the conspiracy.

The district court in dismissing the complaint ruled that Calero and the Commission members were all parties to Hernandez's review petition in the superior court, either directly or through their privies, and that the political discrimination claim brought here could and should have been raised in the previous suit. The court therefore held that res judicata barred this subsequent suit, citing our opinion in Lovely v. Laliberte, 498 F.2d 1261 (1st Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974). Nieves and Amaes were not parties to the superior court suit, but the district court ruled that inasmuch as the amended complaint adding them as defendants was filed more than a year after Hernandez's discharge, the statute of limitations had run as to them.

In Lovely we held that principles of res judicata barred a subsequent suit in federal court alleging constitutional deprivations even though the constitutional claims were not raised in the prior state court suit. Id at 1263. This was so because " '(a) judgment estops not only as every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented . . . .' " Id. (citing Cromwell v. County of Sac, 94 U.S. 351, 352-53, 24 L.Ed. 195 (1877)). There the state court had heard arguments on and decided the substantive questions of an eviction action. In the case at bar, however, the Commonwealth court reached only the issue of the time bar. Plaintiff...