Malaret-Sepulveda v. Collazo-Perez et al
Filing
25
ORDER granted 19 Motion for Leave to File Reply to 18 Opposition to Motion to Dismiss; granted 12 Motion to Dismiss for Failure to State a Claim. Signed by Judge Carmen C. Cerezo on 1/17/2014. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JANET MALARET-SEPULVEDA
Plaintiff
vs
CIVIL 13-1057CCC
SAMER A. COLLAZO-PEREZ; ERASMO
GARCIA-TORRES; JUAN MOLINA-PEREZ;
RAMON CARABALLO-DENISA; HILARIO
MARRERO-RIVERA; JOSE
FIGUEROA-SANCHA, and others
Defendants
ORDER
Plaintiff Janet Malaret-Sepúlveda filed this 42 U.S.C. § 1983 action on January 25,
2013 against several police officers and the then Police Superintendent seeking inherited
damages for their alleged violation of her father and brother’s civil rights during the execution
of a search warrant. See docket entry 1. The former Police Superintendent, defendant José
Figueroa-Sancha (Figueroa), has moved for dismissal of the claims filed against him
averring that they are time-barred as more than one year elapsed since the date of the
alleged wrongful acts -- September 29, 2010 -- and the complaint’s filing, and no allegation
was made therein that the one-year statute of limitations was tolled by any legally
recognized means. See docket entry 12.
In her opposition to the dismissal motion (docket entry 18), plaintiff has asserted that
on September 28, 2011 she originally filed a complaint together with her now deceased
brother against current defendant Samer A. Collazo-Pérez (Collazo) and other unknown
defendants, Civil No. 11-1955(JAF), which on January 26, 2012 she moved to voluntarily
dismiss upon the sudden death of her co-plaintiff brother. She also informs having filed suit
against the Commonwealth of Puerto Rico in the local courts, although no dates are
provided for said filing. In any event, she posits that her prior federal case, filed before
expiration of the applicable statute of limitations, tolled that term, and that this subsequent
CIVIL 13-1057CCC
2
action is timely since it was filed within one year of her moving for the dismissal of said case.
Figueroa replied (docket entry 19-1)1 by contending that plaintiff’s first federal case, by not
including him as a named defendant, failed to toll the statute of limitations as to him in his
personal capacity. While he recognizes that the inclusion of one of various tortfeasors in
a civil lawsuit ordinarily tolls the statute of limitations as to others if they are jointly liable, he
avers that there is no joint liability in the context of a § 1983 action and, as such, the
inclusion of Collazo in the 2011 complaint was not enough to extend the tolling effect of that
filing to him.
We start by reviewing the basic tenets of law that govern the disposition of Figueroa’s
dismissal motion. Since State law statutes of limitations govern suits in federal courts
arising under § 1983, see Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct.
1790 (1980), Puerto Rico law establishes a one year prescription period for the claims in this
case.
See 31 L.P.R.A. § 5298; Rodríguez-Narváez v. Nazario, 895 F.2d 38, 41-42
(1st Cir. 1990). This one-year period begins running one day after the date of accrual, which
is the date plaintiff knew or had reason to know of the injury. See Carreras-Rosa v.
Alves-Cruz, 127 F.3d 172 (1st Cir. 1997). The tolling of the statute of limitations is also
governed by State law. See Torres v. Superintendent of Police, 893 F.2d 404, 407
(1st Cir. 1990). Under Puerto Rico law, specifically 31 L.P.R.A. § 5303, the filing of a lawsuit
tolls the limitations period. See, e.g., Rodríguez v. Suzuki Motor Corp., 570 F.3d 402, 407
(1st Cir. 2009). If the plaintiff voluntarily dismisses the suit without prejudice, the limitations
clock resets and “run[s] anew from th[at] date.” See Rodríguez–García v. Municipality of
Caguas, 354 F.3d 91, 96–97 (1st Cir. 2004); accord Rodríguez, 570 F.3d at 407. Also, the
earlier suit will toll the limitations period as to a later-filed suit if the two suits allege “identical”
causes of action. See, e.g., Rodríguez, 570 F.3d at 409. And tolling a statute of limitations
1
Figueroa’s Motion for Leave to Reply (docket entry 19) is hereby GRANTED, and
the tendered reply brief (docket entry 19-1) is authorized and ORDERED FILED.
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3
against one defendant tolls it against all “solidarily liable” defendants -- “solidarily liable”
being a civil-law concept that is a close cousin to the common-law doctrine of “joint and
several liability.” Tokyo Marine & Fire Ins. Co., v. Pérez & Cía., de Puerto Rico, Inc.,
142 F.3d 1, 4 and n. 1 (1st Cir. 1998). Finally, and contrary to Figueroa’s blanket assertion
that “individual defendants in the[ir] personal capacities cannot be considered jointly liable
with the State or with other co-defendants within the context of § 1983 claims” (Reply brief,
at p. 3), the Court of Appeals has expressed that joint tortfeasor liability may occur under
section 1983. Wilson v. Town of Mendon, 294 F.3d 1, 15 (1st Cir. 2002). It explained,
however, the particular circumstances under which such joint tortfeasor liability may be
triggered:
A constitutional duty to intervene may . . . arise if onlooker officers are
instrumental in assisting the actual attacker to place the victim in a vulnerable
position . . . . In such a scenario, the onlooker officers and the aggressor
officer are essentially joint tortfeasors and, therefore, may incur shared
constitutional responsibility.
See generally Monroe v. Pape,
365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed. 2d 492 (1961) (advising courts to
read section 1983 against the backdrop of historical tort liability).
Martínez v. Colón, 54 F.3d 980, 985 n. 4 (1st Cir. 1995). It noted, a contrario sensu, that
absent the existence of a joint enterprise, joint tortfeasor liability could not be found. Id.
See also Wilson, supra.
Thus, plaintiff’s initial federal complaint was timely filed, and tolled the statute of
limitations as to defendant Collazo and all his joint tortfeasors, which began to run again
when that suit was voluntarily dismissed by plaintiff. This second lawsuit was also timely
filed against Collazo and his joint tortfeasors. The question boils down to whether Figueroa
may be classified as one of Collazo’s joint tortfeasors.
In the § 1983 context, in light of the Court of Appeals’ expressions in Wilson and
Martínez, the determinative factor in establishing whether Figueroa is indeed a constitutional
joint tortfeasor with Collazo is whether he was a concurrent tortfeasor. The allegations of
the complaint, however, do not establish a temporal proximity between the acts imputed to
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Figueroa, who is blamed with having knowledge of the Police Department’s lack of policies
and training regarding the proper use of deadly force and the execution of lawful searches
and seizures but neglecting to correct said omissions, and those imputed to Collazo and the
other named defendants, who were all participants in the September 29, 2010 event and are
faulted with being grossly negligent in the execution of a search warrant which resulted in
the detention and arrest of plaintiff’s brother and the fatal shooting of plaintiff’s father. Given
these circumstances, Figueroa may not be properly classified as a joint tortfeasor with
Collazo and the others. Thus, the initial federal complaint filed against Collazo failed to toll
the statute of limitations as to defendant Figueroa. The civil rights violations asserted
against him under § 1983 in this second lawsuit are, therefore, time barred.2
We express no opinion on whether the supplemental claim brought against Figueroa
under Article 1802 of the Puerto Rico Civil Code is also time-barred, as we decline to
exercise jurisdiction over said claim and now dismiss it, but without prejudice.
See
28 U.S.C. § 1367; Marrero-Gutiérrez v. Molina, 491 F.3d 1, 7 (1st Cir. 2007).
For the reasons stated, Figueroa’s Motion to Dismiss (docket entry 12) is hereby
GRANTED. Partial judgment shall be entered DISMISSING the federal claims brought
against him with prejudice, and the supplemental claim without prejudice.
SO ORDERED.
At San Juan, Puerto Rico, on January 17, 2014.
S/CARMEN CONSUELO CEREZO
United States District Judge
2
In light of this finding, we need not address movant’s alternate argument made in the
dismissal motion that the claim brought against him under the Eight Amendment be
dismissed since it has turned moot. In any event, we note that plaintiff had conceded in her
opposition that its dismissal was proper. See docket entry 18, at p. 5.
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