Torres v. Superintendent of Police of Puerto Rico, 89-1546

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation893 F.2d 404
Docket NumberNo. 89-1546,89-1546
PartiesJose Antonio TORRES, et al., Plaintiffs, Appellants, v. SUPERINTENDENT OF the POLICE OF PUERTO RICO, et al., Defendants, Appellees. . Heard
Decision Date31 October 1989

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.


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 plaintiff-police 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.


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); Ramirez-Morales 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 one-year 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.

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.

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:

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.

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 (one-year period provided by Article 1873 of the Civil Code did not toll where administrative appeal requested reinstatement and judicial claim requested damages).

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).

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.


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...

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