Olivo Ayala v. Lopez Feliciano, Civ. No. 88-2076(PG).

• Decision Date: 02 January 1990
• Docket Number: Civ. No. 88-2076(PG).
• Citation: 729 F. Supp. 9
• Parties: Carmen Rosa OLIVO AYALA, et al., Plaintiffs, v. Carlos LOPEZ FELICIANO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

729 F. Supp. 9

Carmen Rosa OLIVO AYALA, et al., Plaintiffs, v. Carlos LOPEZ FELICIANO, et al., Defendants.

Civ. No. 88-2076(PG).

United States District Court, D. Puerto Rico.

January 2, 1990.

Lourdes del Carmen Rodríguez, San Juan, P.R., for plaintiffs.

Luis N. Blanco-Matos and Noel Vera-Ramirez, Federal Litigation Div., Dept. of Justice, San Juan, P.R., and José A. Candelario Lajara, Hato Rey, P.R., for defendants.

OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This is a civil rights action under § 1983 alleging excessive use of force during an encounter between law enforcement officers and co-plaintiff Reymundo Pedrero Olivo. Jurisdiction is premised on the determination of plaintiffs' federal constitutional rights underlying the claim, 28 U.S.C. §§ 1331 and 1343, and the doctrine of pendent jurisdiction. Venue is proper under 28 U.S.C. § 1391. The matter is before the Court on defendants' motion for summary judgment on statute of limitation grounds. No opposition has been filed. None would have proved availing.

The facts of this case can be simply stated. On the night of December 21, 1987, codefendant Juan Ramos Garcia and other agents were patrolling the streets of Mameyal County in the Municipality of Dorado. At about 7:50 p.m., co-plaintiff Reymundo Pedrero Olivo was arrested by the officers for breach of the peace and resistance to his arrest. In the process, it appears, agent Ramos Garcia was excessively forceful in dealing with the arrestee, his conduct resulting in severe injuries to Pedrero Olivo. On December 21, 1988, plaintiffs filed the present civil rights complaint.

The sole issue presented before this Court is thus the threshold question of whether plaintiffs' suit was timely filed. For the reasons stated below, we hold that it was not, and the instant action is therefore dismissed.

We restate briefly the principles which govern our inquiry. First, it is well settled that when dealing with civil rights actions federal courts are to borrow the state period of limitations which is most analogous to the particular § 1983 claim. Owens v. Okure, ___ U.S. ___, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1983), Rivera Fernández v. Chardón, 648 F.2d 765 (1st Cir.1981). In Wilson v. García, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1984), the Supreme Court held that the most analogous state limitations period will normally be the one reserved for personal torts, as § 1983 claims confer a general remedy for injuries to personal rights. Under the laws of Puerto Rico, the limitations period for tort actions, or "obligations arising from fault or negligence," is the one year limitations period provided by Article 1868(2) of the Civil Code, P.R. Laws Ann. tit. 31, § 5298(2). De León Otero v. Rubero, 820 F.2d 18 (1st Cir.1987), Diaz Maldonado v. Lacot, 89 J.T.S. 14, 6602 (1989). Hence, we must apply the one year statute of limitations to the facts of this case.

Secondly, we must also recall that in § 1983 cases resort must also be had to the tolling rules provided by the state where the civil rights violation took place. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), Ramirez Morales v. Rosa Viera, 815 F.2d 2 (1st Cir.1987). Pertinent to the case at bar is the fact that the tolling doctrine of Puerto Rico dictates that a year must be understood to be 365 days in length, Secretary of Labor v. Superior Court, 95 P.R.R. 134, 135 (1967), Sánchez v. Cooperativa Azucarera, 66 P.R.R. 330, 333 (1946), and that "the time for the prescription of all kinds of actions ... shall be counted from the day on which they could have been instituted." P.R. Laws Ann. tit. 31, § 5299. Thus, it is clear that the first day of the limitations period must be counted and that the complaint must be filed before the year expires.¹ See de la Cruz LaChapel v. Chévere Ortiz, 637 F.Supp. 43 (D.P.R.1986), Dennis v. Figueroa, 642 F.Supp. 959 (D.P.R.1986), Ramirez Morales v. Rosa Viera, 632 F.Supp. 491 (D.P.R.1986), affmd. 815 F.2d 2 (1st Cir. 1987).

Finally, we note that the determination of the "day on which the action could have been instituted," on the other hand, is a question of federal, not state law, Rivera Fernández v. Chardón, 648 F.2d 765 (1st Cir.1981), and that federal law has established that the time of accrual of a civil rights action is when the aggrieved party knows or has reason to know of the injury which is the basis for his action or when facts supportive of a civil rights action are or should be apparent to a reasonably prudent person similarly situated. Marrapese v. Rhode Island, 749 F.2d 934 (1st Cir. 1984).

As we turn to apply the law to the facts of the case, we realize that we need elaborate on the point but briefly. It cannot be seriously disputed that plaintiff's...