Moreno-Medina v. Toledo

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Norman H. Stahl, Appellate Judge and Rogeriee Thompson, Appellate Judge. Unpublished. [10-1897]

Case: 10-1897

Document: 00116318685

Page: 1

Date Filed: 01/17/2012

Entry ID: 5610727

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 10-1897
FUNDADOR MORENO-MEDINA, ET AL.,
Plaintiffs, Appellants,
v.
PEDRO TOLEDO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Stahl, and Thompson,
Circuit Judges.

Frank D. Inserni-Milam, for appellants.
Ivonne Cruz Serrano, with whom Angel E. Rotger-Sabat and
Maymi, Rivera & Rotger, P.S.C., were on brief for appellees José A.
Morales Vázquez and Wilfredo Morales Rivera.

January 17, 2012

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STAHL, Circuit Judge.
Moreno-Medina

(Moreno)

and

his

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Entry ID: 5610727

Plaintiffs-appellants Fundador
wife,

Ivette

Banuchi-Rodríguez

(Banuchi), filed this Section 1983 action against a group of Puerto
Rican police officers.

Two of the officers, defendants-appellees

José A. Morales Vázquez and Wilfredo Morales Rivera, moved to
dismiss. The district court granted their motion and dismissed the
complaint, finding that all but one of the plaintiffs' claims were
time-barred and that the plaintiffs had failed to plead sufficient
facts supporting their remaining claim for malicious prosecution.
The facts of this case, if true, are egregious.

In the end,

however, there is relatively little for us to address on appeal,
and we affirm.
I. Facts & Background
We recite the facts only as they are relevant to this
appeal, accepting all well-pleaded facts as true and drawing all
reasonable inferences in favor of the plaintiffs.

See, e.g.,

Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011).
On November 29, 2006, just before midnight, Moreno and
Banuchi were getting ready for bed when a group of armed men in
dark clothing stormed into their house.

Without identifying

themselves, the men separated Moreno and Banuchi and searched the
house.

One of the men guarded over Banuchi, refusing to let her

move from the bed or change into proper clothing.

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The plaintiffs,

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who believed they were being robbed, were understandably quite
frightened.
As it turned out, the armed men were police officers
executing a search warrant, though they never showed the plaintiffs
a warrant, even after Moreno asked to see one.

A search of the

house allegedly uncovered bullets, marijuana, transparent plastic
bags, and large amounts of cash.
took

him

to

the

home

of

The officers arrested Moreno and

his

eighty-three-year-old

mother,

apparently in search of a firearm. The officers performed a search
of the mother's house.

Though they did not find a firearm, the

officers said they found a white powdered substance and bullets in
Moreno's mother's room.
Moreno was detained for four or five hours at the police
precinct and was then booked and subpoenaed to appear in court.
was

charged

with

four

counts

of

violating

the

Puerto

He

Rico

Controlled Substances Act and two counts of violating the Firearms
Law of Puerto Rico. The officers provided Moreno with an inventory
of his two motor vehicles, which they had seized.

They did not

provide an inventory of the various other items they had apparently
seized, including jewelry, a digital camera, lottery tickets, and
more than $10,000.00 in cash. Moreno alleges that his property was
never returned to him.
In the ensuing criminal prosecution, Moreno's attorney
moved to suppress all of the evidence, arguing that it had been

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obtained based on false information.

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The superior court held an

evidentiary hearing, at which defendant Miguel Arocho Irizarry
(Arocho) testified.

Arocho is the police officer who obtained the

warrant to search the plaintiffs' house.

The superior court found

that the warrant had been issued based on Arocho's false testimony
and an unsubstantiated tip from an informant.

The court therefore

granted Moreno's motion to suppress. On July 1, 2008, upon request
of the district attorney's office, the court dismissed all of the
charges against Moreno.
The plaintiffs filed their complaint almost one year
later, on June 1, 2009, claiming $366,399.79 in losses, as well as
emotional and psychological damages in the amount of at least $1.5
million.

They included several causes of action against the

officers who searched their house, as well as claims against those
officers'
liability.

supervisors

under

a

respondeat

superior

theory

of

The plaintiffs alleged, among other things, that the

defendants were liable under 42 U.S.C. § 1983 for violating their
Fourth Amendment rights to be free from unreasonable searches and
seizures and their Fourteenth Amendment rights not to be deprived
of property and liberty without due process of law.
The defendants moved to dismiss.

The district court

granted the motion, finding that all of the plaintiffs' claims were
time-barred except a possible malicious prosecution claim.
Medina v. Toledo, 718 F. Supp. 2d 194 (D.P.R. 2010).

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See

The court

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reasoned that the plaintiffs' claims had begun to accrue at the
time of the injury or wrongful act, which in this case was the date
of the last search and seizure, November 30, 2006.
Costin, 605 F.3d 118, 121-22 (1st Cir. 2010).

See Gorelik v.
Applying Puerto

Rico's one-year prescriptive period for tort actions, see SantanaCastro v. Toledo-Dávila, 579 F.3d 109, 114 (1st Cir. 2009), the
court found that the plaintiffs' Section 1983 claims stemming from
the unlawful searches and seizures and from Moreno's arrest were
time-barred, because the plaintiffs had filed those claims two and
a half years after the searches and seizures occurred.1
There was, however, one claim that survived the statute
of limitations.

In response to the defendants' motion to dismiss,

the plaintiffs for the first time described their Section 1983
claim as one for malicious prosecution, and a malicious prosecution
claim does not begin to accrue until the criminal proceedings
terminate.
2001).

See Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir.

The district court found that this would-be malicious

prosecution claim, which the plaintiffs had raised "almost as an
afterthought," would have begun to accrue on July 1, 2008, the date

1

The complaint also included claims under the Fifth and Tenth
Amendments, which the plaintiffs dropped in their opposition to the
motion to dismiss, and a claim under the First Amendment, which the
plaintiffs did not address in response to the motion to dismiss and
which the district court found was time-barred anyway.
In
addition, the plaintiffs included supplementary state law claims
under the Puerto Rico Constitution and the Puerto Rico Civil Code.
Because the plaintiffs have not raised any of these claims on
appeal, we do not address them here.
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when the superior court dismissed the criminal charges against
Moreno, and thus would have been timely filed.
Supp. 2d at 205.

Medina, 718 F.

Noting that the parties had failed to provide any

useful argumentation as to whether the plaintiffs had satisfied the
elements of malicious prosecution, the court was "forced to abandon
the parties' briefs and do their homework for them."
court

concluded

that

the

plaintiffs

had

failed

Id.

to

The

state

a

cognizable claim of malicious prosecution under Section 1983,
because they had established neither the state law elements of
malicious

prosecution

nor

the

deprivation

of

a

federal

constitutional right.
The plaintiffs filed a motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e), which the
district court denied.

This appeal followed.
II. Discussion

Our review on appeal is narrow; the plaintiffs only
challenge two of the district court's holdings.

They argue that

the court erred by: (1) dismissing their malicious prosecution
claim; and (2) denying their Rule 59(e) motion.
A.

The Malicious Prosecution Claim
We review de novo an order granting a motion to dismiss,

accepting all well-pleaded facts as true and drawing all reasonable
inferences in favor of the non-moving party.
5.

Artuso, 637 F.3d at

For a complaint to survive a motion to dismiss, it must allege

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"a plausible entitlement to relief," Bell Atl. Corp. v. Twombly,
550 U.S. 544, 559 (2007), meaning that the allegations, taken as
true, are "enough to raise a right to relief above the speculative
level," id. at 555.

That standard "asks for more than a sheer

possibility that a defendant has acted unlawfully."

Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at
556).

It is not met here.
Because the procedural posture of this case allows us to

do so, we assume, without deciding, "that malicious prosecution can
embody a Fourth Amendment violation and, thus, ground a cause of
action under section 1983." Harrington v. City of Nashua, 610 F.3d
24, 30 (1st Cir. 2010); see also Wallace v. Kato, 549 U.S. 384, 390
n.2 (2007).

In this circuit, a plaintiff seeking to bring a

malicious prosecution claim under Section 1983 must do more than
simply satisfy the elements of the common law tort of malicious
prosecution.

See, e.g., Britton v. Maloney, 196 F.3d 24, 28-29

(1st Cir. 1999).

The plaintiff must "show a deprivation of

liberty, pursuant to legal process, that is consistent with the
concept of a Fourth Amendment seizure."
30.

Harrington, 610 F.3d at

The district court found that the plaintiffs had established

neither the state law elements of malicious prosecution nor a
deprivation of liberty that amounted to a Fourth Amendment seizure.
Because "the essential elements of actionable section 1983 claims
derive

first

and

foremost

from

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the

Constitution

itself,

not

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necessarily from the analogous common law tort," Calero–Colón v.
Betancourt–Lebron, 68 F.3d 1, 4 (1st Cir. 1995), we discuss only
the federal inquiry here.
In a malicious prosecution case brought under Section
1983, "the constitutional violation lies in the 'deprivation of
liberty

accompanying

prosecution itself."
City

of

the

prosecution'

rather

than

in

the

Britton, 196 F.3d at 29 (quoting Gallo v.

Philadelphia,

161

F.3d

217,

222

(3d

Cir.

1998)).

Typically, the alleged deprivation takes "the form of an arrest
warrant (in which case the arrest would constitute the seizure) or
a

subsequent

charging

post-arraignment

document

deprivations

Nieves, 241 F.3d at 54.

(in

would

Moreno's

which

case

comprise

the

the

sum

of

seizure)."

arrest occurred without a

warrant, which means it "antedated any legal process" and "cannot
be part of the Fourth Amendment seizure" upon which the plaintiffs
base their malicious prosecution claim.2

2

Id.

The plaintiffs must

Although Moreno's arrest was made during the execution of a
search warrant, which could conceivably form the basis for a Fourth
Amendment malicious prosecution claim, see Meehan v. Town of
Plymouth, 167 F.3d 85, 89 n.3 (1st Cir. 1999), Moreno did not make
such an argument until he moved for reconsideration below, and he
has not developed the argument at all on appeal. It is therefore
waived. See Dillon v. Select Portfolio Servicing, 630 F.3d 75, 80
(1st Cir. 2011) ("When a party makes an argument for the first time
in a motion for reconsideration, the argument is not preserved for
appeal."); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
("[I]ssues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.").
In addition, while Moreno's warrantless arrest might
theoretically have provided grounds for a false arrest action under
Section 1983, the district court determined that such an action was
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therefore

show "some

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Date Filed: 01/17/2012

post-arraignment

deprivation

of

Entry ID: 5610727

liberty,

caused by the application of legal process, that approximates a
Fourth Amendment seizure."

Id.

That requires them to do more than

simply allege that Moreno was forced to attend court proceedings,
notify the court of a change in address, or refrain from committing
further crimes.

Harrington, 610 F.3d at 32.

The plaintiffs must

allege that Moreno was in some way forced to "'yield' to the
assertion of authority over him and thereby [had] his liberty
restrained," for example by being detained or having his travel
restricted.

Britton, 196 F.3d at 30.

Though the plaintiffs correctly summarize the federal
standard in their brief on appeal, they nonetheless inexplicably
fail to make any argument as to how or when Moreno was "seized."
Instead, they focus their argument on whether the defendants acted
with malice, as required to establish the state law elements of
malicious prosecution. Construing the plaintiffs' complaint in the
light most favorable to them, the district court speculated that
the only potentially cognizable post-arraignment deprivation Moreno
suffered was having to post a $10,000.00 bond. The court concluded
that, because Moreno was able to post the bond and was not
detained,

the

bond

was

a

"run-of-the-mill"

pre-trial

release

condition and did not amount to a Fourth Amendment seizure.
Nieves, 241 F.3d at 55; see also Harrington, 610 F.3d at 32-33.

time-barred.

Moreno does not appeal that decision here.
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Because the plaintiffs have not put the issue squarely before us,
we need not address today whether a post-arraignment release on
bond, standing alone, could ever approximate a Fourth Amendment
seizure for purposes of a Section 1983 malicious prosecution claim.
The complaint here includes no mention of malicious prosecution and
only a cursory mention of the Fourth Amendment, and the plaintiffs
have made no attempt to explain where in that complaint we might
find sufficient facts to establish something akin to a Fourth
Amendment seizure.
The plaintiffs chose to bring this action in federal
court.

As such, they were required to plead sufficient facts to

"show a deprivation of liberty, pursuant to legal process, that is
consistent with the concept of a Fourth Amendment seizure."
Harrington, 610 F.3d at 30.

They have failed to do so.

"Even

during appellate review of a Rule 12(b)(6) dismissal, which takes
place under a set of plaintiff-friendly guidelines, the reviewing
court cannot be expected to 'do counsel's work, create the ossature
for the argument, and put flesh on its bones.'"

Redondo-Borges v.

U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005)
(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
The district court properly dismissed the plaintiffs' malicious
prosecution claim.

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B.

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The Rule 59(e) Motion
We review for abuse of discretion the district court's

denial of a motion to alter or amend a judgment under Federal Rule
of Civil Procedure 59(e).
25 (1st Cir. 2008).

Negrón-Almeda v. Santiago, 528 F.3d 15,

After the district court issued its decision,

the plaintiffs filed, along with their Rule 59(e) motion, a copy of
the state superior court order suppressing the evidence against
Moreno.

They argued that the suppression order established that

the defendants had acquired the search warrant with malice and that
the warrant constituted the initiation of a criminal action under
Puerto Rico common law.
the

district

sufficient

court's

facts

to

The plaintiffs did not, however, address
finding

that

establish

they

the

had

failed

deprivation

to

of

a

plead

federal

constitutional right, which, as discussed above, was dispositive.
Because the plaintiffs have shown no manifest error of
law or newly discovered evidence, the district court did not abuse
its discretion by denying their Rule 59(e) motion.

See, e.g.,

Redondo Waste Sys., Inc. v. López-Freytes, 659 F.3d 136, 142
(1st Cir. 2011).
III.
Like

the

district

Conclusion
court,

we

conclude

that

this

unfortunate case is one in which "[a] ripe civil rights suit was
left to rot."

Nieves, 241 F.3d at 57.

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We thus affirm.