USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2264
JESUS M. P REZ-RUIZ, ET AL.,
Plaintiffs, Appellants,
v.
JOS CRESPO-GUILL N, ET AL.,
Defendants, Appellees.
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No. 93-2267
ZOILO LOPEZ-DE JESUS,
Plaintiff, Appellant,
v.
JOS CRESPO-GUILL N, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Enrique Bray, with whom Harvey B. Nachman, M. Georgina Carrion-
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Christiansen, and Nachman, Santiago, Bray, Guillemard & Carrion were
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on brief for appellants.
Jacqueline D. Novas, Special Assistant to Attorney General, with
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whom Pedro A. Delgado Hernandez, Solicitor General, was on brief for
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appellees.
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June 2, 1994
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CYR, Circuit Judge. Appellants Perez and Lopez were
CYR, Circuit Judge.
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arrested and detained in connection with separate incidents on
July 31, 1990, in Santurce, Puerto Rico, and charged with selling
cocaine. Both were released on bail after being detained for
less than twenty-four hours. Perez was acquitted in August 1991
and the Lopez charges were dismissed "for lack of evidence" in
March 1992.
On June 24, 1992, plaintiffs-appellants brought virtu-
ally identical civil rights actions under 42 U.S.C. 1983, with
pendent commonwealth law claims, essentially alleging that the
cocaine charges were trumped up. Defendants-appellees are
various law enforcement officers and officials of the Common-
wealth of Puerto Rico allegedly involved in arresting and prose-
cuting appellants. The complaint asserts claims of false arrest,
false imprisonment, and malicious prosecution. Appellants
further claim that the alleged civil rights infractions were
elements of a larger conspiracy against appellants and other
businessmen.1
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1Appellants urge that we treat the alleged conspiracy as a
"continuing violation." We need not address this contention. In
view of our conclusion that appellants failed to plead an action-
able claim for malicious prosecution, their time-barred claims
for false arrest and false imprisonment in 1990 cannot be saved
by any subsequent termination of their invalid malicious prosecu-
tion claims. See Mack v. Great American Atlantic & Pacific Tea
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Co., 871 F.2d 179, 183 (1st Cir. 1989) ("In short, [continuing]
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violation or no, plaintiff retained the burden of demonstrating
that some [violation] transpired within the appropriate time
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frame.").
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The Lopez and Perez actions were assigned to different
district judges. Defendants-appellees filed essentially identi-
cal motions to dismiss on the ground that the section 1983 claims
were time-barred under the applicable one-year limitation bor-
rowed from commonwealth law. See Lafont-Rivera v. Soler-Zapata,
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984 F.2d 1, 3 (1st Cir. 1993). After the district court denied
the motion to dismiss the Lopez action, the two cases were
consolidated under Fed. R. Civ. P. 42, and docketed to Judge
Gierbolini who eventually dismissed the consolidated action on
the grounds that the false imprisonment and false arrest claims
were time-barred and the complaint failed to state an actionable
section 1983 claim for malicious prosecution, see Torres v.
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Superintendent of Police, 893 F.2d 404, 409 (1st Cir. 1990) (only
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"egregious" misconduct implicates 1983 remedy; "malicious
prosecution standing alone does not implicate federally protected
rights").
Appellants first challenge the dismissal order on the
ground that the earlier district court ruling denying the motion
to dismiss in the Lopez action became the "law of the case" in
the consolidated action. Appellants misapprehend the "law of the
case" doctrine. Interlocutory orders, including denials of
motions to dismiss, remain open to trial court reconsideration,
and do not constitute the law of the case. Union Mut. Life Ins.
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Co. v. Chrysler Corp., 793 F.2d 1, 15 (1st Cir. 1986) (citing 1B
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James W. Moore et al., Moore's Federal Practice 0.404[4.1], at
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124 n.4 ("[U]ntil entry of judgment, [interlocutory orders]
remain subject to change at any time. The doctrine of law of the
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case does not limit the power of the court in this respect.")
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(emphasis added) (2d ed. 1993)); see also Commerce Oil Refining
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Corp. v. Miner, 303 F.2d 125, 128 (1st Cir. 1962) ("a ruling
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denying a motion to dismiss is not the law of the case, and is
not final even in the district court"). Second, although the law
of the case doctrine implements an important judicial policy
against reconsidering settled matters, it "is neither an absolute
bar to reconsideration nor a limitation on a federal court's
power." United States v. Rivera-Martinez, 931 F.2d 148, 150-51
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(1st Cir.), cert. denied, 112 S. Ct. 184 (1991).
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Appellants also challenge the merits of the dismissal
order. We review Rule 12(b)(6) dismissals under the rubric that
all reasonable inferences from properly pleaded facts are to be
drawn in appellants' favor. The Dartmouth Review v. Dartmouth
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College, 889 F.2d 13, 16 (1st Cir. 1989).
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The district court concluded that the malicious prose-
cution claim, whether construed as asserting a substantive or a
procedural due process violation, was not actionable under
section 1983. Torres, 893 F.2d at 409. ("[T]o state a claim
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under section 1983, the complaint must assert that the malicious
conduct was so egregious that it violated substantive or proce-
dural due process rights under the Fourteenth Amendment.") An
actionable section 1983 malicious prosecution claim based on a
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substantive due process deprivation must allege "conscience-
shocking" conduct by the defendants. Id. at 410 (citations
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omitted). A procedural due process claim is not actionable
unless, inter alia, no adequate "post-deprivation remedy" is
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available under state law. Id.
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Neither their appellate brief nor their complaints
identify the due process theory undergirding appellants' section
1983 malicious prosecution claim. Nevertheless, the district
court's analysis and application of Torres, which stated the
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controlling law of this circuit at the time this case was decid-
ed, seems entirely correct. Since then, moreover, appellants'
position has become even less tenable in light of the Supreme
Court's decision in Albright v. Oliver, 114 S. Ct. 807 (1994).
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Albright would appear virtually to foreclose reliance on substan-
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tive due process as the basis for a viable malicious prosecution
claim under section 1983 superseding even Torres' very limited
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tolerance of reliance on substantive due process in this area.
Four Justices concluded that a section 1983 claim alleging
malicious prosecution cannot be predicated on "open-ended"
conceptions of substantive due process. See id. at 810-19
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(Opinion of Rehnquist, C.J., joined by O'Connor, Scalia, and
Ginsburg, JJ.).2 Moreover, two Justices, in a concurring opin-
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2The Albright plurality summarized its position at the end
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of footnote 4, 114 S. Ct. 811, as follows:
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ion, found that the availability of an adequate state remedy
precluded reliance on section 1983. See id. at 817-19. (Opinion
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of Kennedy, J., joined by Thomas, J.). Justice Souter, in a
separate concurrence, concluded that Albright had demonstrated no
distinct injury from the alleged malicious prosecution, and that
his custody-based claims were better addressed under the Fourth
Amendment. See id. at 819-22 (Opinion of Souter, J.).
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Lastly, the availability of an adequate remedy for
malicious prosecution under commonwealth law, see P. R. Laws Ann.
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tit. 31, 5141 (1991), is fatal to appellants' procedural due
process claim. Smith v. Massachusetts Dep't of Correction, 936
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F.2d 1390, 1402 (1st Cir. 1991); see also Albright v. Oliver, 975
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F.2d 343, 347 (7th Cir. 1992) ("The multiplication of remedies
for identical wrongs, while gratifying for plaintiffs and their
lawyers, is not always in the best interest of the legal system
or the nation."), aff'd, 114 S. Ct. 807 (1994).
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Affirmed.
Affirmed.
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In view of our disposition of this case, it
is evident that substantive due process may
not furnish the constitutional peg on which
to hang such a "tort."
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