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Sierra Serpa v. Martinez, 91-2062 (1992)

Court: Court of Appeals for the First Circuit Number: 91-2062 Visitors: 32
Filed: May 29, 1992
Latest Update: Mar. 02, 2020
Summary: May 29, 1992 ____________________ No. 91-2062 ANGEL SIERRA-SERPA, Plaintiff, Appellant, v. MANUEL MARTINEZ, ET AL. The district court held, therefore, that Sierra's action was barred by Puerto Rico's one year statute of limitations for tort actions and granted defendants' motion to dismiss.
USCA1 Opinion












May 29, 1992 ____________________

No. 91-2062

ANGEL SIERRA-SERPA,

Plaintiff, Appellant,

v.

MANUEL MARTINEZ, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________

____________________

Before

Selya, Circuit Judge,
_____________

Coffin and Campbell, Senior Circuit Judges.
_____________________

____________________

Carlos V. Garcia Gutierez with whom Guillermo J. Ramos Luina was
_________________________ ________________________
on brief for appellant.
Carlos Lugo Fiol, Assistant Solicitor General, Department of
__________________
Justice, with whom Reina Colon De Rodriguez, Acting Solicitor General,
________________________
was on brief for appellees.


____________________


____________________























____________________

CERTIFICATION TO THE SUPREME COURT OF PUERTO RICO
____________________



CAMPBELL, Senior Circuit Judge. The resolution of
____________________

this appeal depends on a question of Puerto Rico law which

has not been specifically addressed by the Supreme Court of

Puerto Rico and the decision of which may have important

public policy implications. Therefore, on our own motion, we

certify the question to the Supreme Court of Puerto Rico

pursuant to its Rule 27, 4 L.P.R.A. App. I-A.

I. Background
I. Background
__________

Plaintiff Angel Sierra-Serpa ("Sierra") brought

this action under 42 U.S.C. 1983 in the federal district

court, alleging violations of the federal Constitution

arising out of prison officials' handling of his urine

sample. At the time of the incident, Sierra was serving the

sentence of a Puerto Rico court at a facility controlled by

the Puerto Rico Administration of Corrections. On January

12, 1988, Sierra gave prison officials a urine sample which

allegedly tested positive for marijuana. The positive test

resulted in reclassification of Sierra's custody status,

transfer to a different facility and loss of furlough

privileges.

Sierra claimed that he had not used marijuana, and

that prison officials had improperly failed to label his


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urine sample and refused to let him give another sample.

Acting through counsel, Sierra requested a second testing

and, on February 11, 1988, he filed both a "motion" and a

"grievance" with prison officials. These and subsequent

administrative complaints were rejected and, on March 30,

1988, Sierra's counsel filed a complaint for injunctive

relief in the Superior Court of Puerto Rico. Following

several legal battles at both the administrative and judicial

levels, the Superior Court ordered that all of Sierra's

"privileges" be restored. Certiorari was denied by the

Supreme Court of Puerto Rico. Nevertheless, Sierra alleges,

his furloughs were not restored.

Sierra was released from prison on September 12,

1989. He brought the present federal complaint on

September 11, 1990 in the United States District Court for

the District of Puerto Rico. The district court ruled that

Sierra's cause of action under 1983 accrued, at the latest,

on April 4, 1989, the date by which the Administration of

Corrections should have implemented the Superior Court's

order. The district court held, therefore, that Sierra's

action was barred by Puerto Rico's one year statute of

limitations for tort actions and granted defendants' motion

to dismiss.

II. The Issue
II. The Issue
_________





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The parties agree that Puerto Rico's one year

statute of limitations for torts governs. See art. 1868,
___

Civil Code (31 L.P.R.A. 5298(2)). The question is whether

the time of Sierra's incarceration counts in determining

whether a year has run. This question, in turn, depends on

whether the portion of Article 40 of Puerto Rico's Code of

Civil Procedure of 1933, excluding time spent in prison from

the limitations period, was implicitly repealed by the Puerto
__________

Rico legislature in 1974 when it removed from the Penal Code

the remnants of the civil law concept of interdiction.

Article 40 has never been explicitly repealed. It

provides:

If a person entitled to bring an action
. . . be at the time the cause of action
accrued, either:

1. Within the age of majority; or

2. Insane; or,

3. Imprisoned on a criminal charge, or
____________________________________
in execution under the sentence of a
_________________________________________
criminal court for a term less than for
_________________________________________
life; or,
____

4. A married woman, and her husband be a
necessary party with her in commencing
such action; the time of such disability
is not a part of the time limited for the
commencement of the action.

Art. 40, Code of Civil Proc., 1933 (32 L.P.R.A. 254)

(emphasis added).

If section 3 of the above statute is still in full

force and effect, it would appear that Sierra's action is not


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time barred. The question, therefore, is whether the

statute, insofar as it may apply in cases like Sierra's, was

implicitly repealed by the repeal, in 1974, of Article 20 of

the Penal Code of 1937. Article 20 had provided that:

A sentence of imprisonment in the
penitentiary for any term less than for
life suspends all the civil rights of the
person so sentenced, and forfeits all
public offices and all private trusts,
authority, or powers during such
imprisonment.

Art. 20, Penal Code, 1937. This suspension of civil rights

traced its origins to the civil law concept of interdiction,

under which a party convicted of a crime was deprived of his

civil rights. Rodr guez Candelario v. Rivera Vega, No. CE-
____________________ ____________

86-608, slip op. at 2 (Supreme Court of Puerto Rico, January

23, 1989) (certified English translation); 89 JTS 12. Those

rights included "guardianship and tutorship rights,

. . . marital authority, . . . [and] the right to administer

property. . . ." Id. slip op. at 3 (citation omitted). In
___

addition, both parties apparently agree that civil rights

included the right to sue and be sued, although neither cites

any explicit Puerto Rico authority to that effect.

In 1902, interdiction, as such, was "[stricken]

. . . from the Penal Code," id., but Article 20 was enacted,
__

subjecting certain convicts to the suspension of their civil

rights. See art. 20, Penal Code, 1902. In 1974, however,
___

Article 20 was itself stricken, so that no convicts were



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thereafter subjected to any loss or suspension of civil

rights. See art. 39-49, Penal Code, 1974 (33 L.P.R.A.
___

3201-3212); Rodr guez Candelario, slip op. at 5. The
_____________________

question is thus whether the repeal of Article 20 must be

deemed implicitly to have repealed section 3 of Article 40,
__________

although the latter, unlike Article 20, was never expressly
_________

stricken or amended by the Puerto Rican legislature.

Under Puerto Rico law, a statute may be implicitly

repealed when a "new law contains provision[s] either

contrary to or irreconcilable with those of the former law."

Art. 6, Civil Code (31 L.P.R.A. 6). In order to decide

whether the 1974 Penal Code, omitting the former Article 20,

is "contrary" to Article 40(3) of the 1933 Code of Civil

Procedure, one must determine the purpose of the challenged

provision in Article 40. Sierra contends that, although

Article 40(3) may have some relationship to the suspension of

civil rights, its main purpose is to accommodate the

practical difficulties of litigating from prison. Thus, he

says, the elimination of the suspension of civil rights is

perfectly consistent with the retention of Article 40(3).

Although a prisoner is no longer legally forbidden to sue, it

is nevertheless important that the limitations period not

begin to run against him until he is released, at which time

he has greater access to counsel and other resources

necessary, in practice, to file suit.



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Sierra also points out that Article 40(3) applies

to anyone "[i]mprisoned on a criminal charge," which, he

says, includes misdemeanants and pretrial detainees. Article

20's suspension of civil rights, on the other hand, applied

only to those sentenced to "imprisonment in the

penitentiary," which did not include such parties. That the
____________

two statutes apply to different classes of people underscores

Sierra's argument that the legislative policy behind Article

40(3) goes beyond protecting those whose legal capacity to

sue was suspended. Even when suspension of civil rights

existed, certain incarcerated prisoners not subject to such

suspension misdemeanants and pretrial detainees were

able to take advantage of Article 40(3).

Defendants, represented by the Solicitor General of

Puerto Rico, argue for a narrower reading of Article 40(3).

They claim that the overall purpose of Article 40 is to

protect those who lack the legal capacity to sue by tolling

the limitations period until they acquire that capacity by

release from prison, attainment of majority, etc. See
___

M rquez v. Superior Court, 85 P.R.R. 536, 539 (1962) (purpose
_______ ______________

of Article 40 "is to protect the interests of the disabled

persons until such time as they acquire the necessary
_________

juridical capacity to assert their rights") (emphasis added).
_________________________________________

Thus, because convicts' legal capacity to sue is no longer





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suspended during their incarceration, there is no longer any

need for section 3 of Article 40.

Responding to Sierra's argument with regard to

misdemeanants and pretrial detainees, the Solicitor General

concedes that, as to such parties, Article 40(3) may have

some purpose other than protecting those who lack the legal

capacity to sue. However, the Solicitor General draws a

different conclusion from this than does Sierra, contending

that Article 40(3) remains in effect as to misdemeanants and

pretrial detainees but has been implicitly repealed as to

anyone sentenced to imprisonment in the penitentiary. The

Solicitor General claims that this position would not

significantly affect the limitation of actions, as

misdemeanants and pretrial detainees spend only a relatively

short time in prison. Conversely, he says, numerous

practical problems would result if limitations periods did

not run during the incarceration of convicts sentenced to

imprisonment in the penitentiary, as such incarceration can

last a very long time.

We are unable to find a conclusive answer to the

parties' arguments in the decisions of the Supreme Court of

Puerto Rico. To be sure, the Court has held that one statute

was implicitly repealed by the elimination of the vestiges of

interdiction. In Rodr guez Candelario, the Court held that a
____________________

provision in the Civil Code establishing as a ground for



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divorce "`[c]onviction of [a spouse] of a felony which may

involve the loss of civil rights'" could no longer be

invoked. Rodr guez Candelario, slip op. at 2 (quoting art.
_____________________

96, Civil Code (31 L.P.R.A. 321 (2))). The Court held that

"[o]nce the external structure which supports the divorce

grounds here in controversy crumbles, we cannot, through a

fiction of law, give it an independent life in the Civil

Code." Rodr guez Candelario, slip op. at 6.
____________________

We cannot say that it necessarily follows from

Rodr guez Candelario that Article 40(3) was implicitly
______________________

repealed by the repeal of Article 20. The statute in

Rodr guez Candelario explicitly referred to a "felony which
____________________

may involve the loss of civil rights," but, after 1974, such

felonies no longer existed. The statutes at issue in this

case, however, are not so obviously irreconcilable. Sierra

has advanced a perfectly logical rationale under which

Article 40(3) may continue to make sense even in the absence

of any suspension of a convict's civil rights. Although

M rquez, supra, casts some doubt on Sierra's argument, we are
_______ _____

reluctant to hold that an implicit repeal has occurred when

there is a plausible argument for the statute's continued

existence. See Campis v. People, 67 P.R.R. 366, 369 (1947)
___ ______ ______

("[i]mplied repeals are not favored by the law"). Moreover,

that different classes of prisoners are affected by Article





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40(3) and by the former suspension of civil rights statute

lends some support to Sierra's side of the debate.

Because we are uncertain as to Puerto Rican law on

this question, and because of the potential importance of

this question to litigation in Puerto Rico, we certify the

following to the Supreme Court of Puerto Rico:









































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QUESTION OF LAW
QUESTION OF LAW

Does Article 40(3) of the Code of Civil
Procedure of 1933 exclude from the
applicable limitations period the time
during which a party is "[i]mprisoned on
a criminal charge," if that party would
formerly have been subjected to the
suspension of his civil rights pursuant
to Article 20 of the Penal Code of 1937?

We would also welcome the advice of the Supreme

Court of Puerto Rico on any other relevant aspect of Puerto

Rico law which the Court believes would give context to its

response or aid in the proper resolution of the issues

bearing on the timeliness of Mr. Sierra-Serpa's action.

Pending response to the above question by the

Supreme Court of Puerto Rico, we shall retain appellate

jurisdiction over this appeal. The Clerk is directed to

provide the Supreme Court of Puerto Rico with certified

copies of the complaint, the opinion of the district court,

and the parties' briefs in this court.

So ordered.
__________


United States Court of Appeals
for the First Circuit

By:


__________________________
Honorable Levin H. Campbell
Senior Circuit Judge







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Source:  CourtListener

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