Filed: Oct. 06, 2003
Latest Update: Feb. 21, 2020
Summary: 1, The prosecutors (Guillermo Gil-Bonar and Jorge E. Vega-, Pacheco) and the FBI agent (John D. Johnson) are parties to this, appeal. Nogueras has, however, abandoned his claims against the, IRS agent (José E. González).McNeil v. United States, 508 U.S. 106, 113 (1993);
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1113
NICOLAS NOGUERAS-CARTAGENA, ETC., ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Howard, Circuit Judge.
Armando Porrata-Doria Harding, with whom Nicolás Nogueras, Jr.
was on brief, for appellants.
Matthew L. Zabel, with whom Peter D. Keisler, Acting Assistant
Attorney General, and Phyllis J. Pyles, Assistant Director, Torts
Branch, Civil Division, were on brief, for the United States.
Charles A. De Monaco, with whom Kimberly L. Haddox and Dickie,
McCamey & Chilcote, P.C. were on brief for appellees Gil-Bonar and
Vega-Pacheco.
Cary M. Feldman, with whom Armelle N. VanDorp and Feldesman
Tucker Leifer Fidell were on brief, for appellee Johnson.
September 26, 2003
Per Curiam. The case underlying this appeal arose in the
wake of the failed prosecution of Nicolás Nogueras-Cartagena
(Nogueras), a prominent politician who had been indicted on charges
relating to tax fraud and violations of the Ethics in Government
Act. Following the dismissal of the criminal case, Nogueras sought
to recover money damages against the federal government, the
prosecutors, and the two federal agents who had spearheaded the
investigation. On January 4, 2000, Nogueras filed an
administrative claim with the Internal Revenue Service (IRS). On
June 21, 2000, he moved forward on that claim, suing the United
States and alleging, inter alia, false arrest and malicious
prosecution under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§
1346(b), 2671-2680. In the same action, he also sued four
individual federal officers (two prosecutors, an FBI agent, and an
IRS agent),1 alleging constitutional violations under the doctrine
of Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
The United States moved for dismissal of all claims
against it. See Fed. R. Civ. P. 12(b)(1), 12(b)(6). A magistrate
judge recommended the dismissal of most of the claims, Nogueras v.
United States, Civ. No. 00-1778 (D.P.R. Sept. 10, 2001), and the
1
The prosecutors (Guillermo Gil-Bonar and Jorge E. Vega-
Pacheco) and the FBI agent (John D. Johnson) are parties to this
appeal. Nogueras has, however, abandoned his claims against the
IRS agent (José E. González).
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district court adopted that recommendation, Nogueras v. United
States, 172 F. Supp. 2d 296 (D.P.R. 2001). Nogueras then submitted
a further amended complaint. In due course, a second magistrate
judge, responding to a new round of motions, recommended dismissal
both of the remaining claims against the government and of the
claims asserted against the individual defendants. Nogueras v.
United States, Civ. No. 00-1778 (D.P.R. Sept. 18, 2002). The
district court adopted the magistrate judge's report and
recommendation and dismissed the action. Nogueras v. United
States, Civ. No. 00-1778 (D.P.R. Nov. 27, 2002). This appeal
ensued.
We need not tarry. We have carefully perused the record
and find no reason to disturb the district court's rulings. And
because this is a situation in which three judicial officers (two
magistrate judges and a district judge) have analyzed Nogueras's
arguments and written comprehensive, well-reasoned decisions, we
are hesitant to wax longiloquent simply to hear our own words
resonate. See In re San Juan Dupont Plaza Hotel Fire Litig., 989
F.2d 36, 38 (1st Cir. 1993) (taking a similar view). Consequently,
we affirm substantially on the basis of the lower courts'
rescripts, adding only a few brief comments.
First: The FTCA claims are completely barred because
Nogueras failed to comply with the statutory requirements for
administrative exhaustion. An action brought under the FTCA must
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be presented to the appropriate federal agency (here, the IRS) in
the first instance. See 28 U.S.C. § 2675(a). The claimant then
must await a final disposition from that agency (or, in lieu
thereof, the passage of six months without final agency action).
Id. Only then may the claimant sue in federal court.
Id.
Nogueras did not abide by this timetable, but, rather,
sued in the absence of final agency action and in less than six
months after he had filed his administrative claim with the IRS.
That failure creates an incurable jurisdictional defect. See
McNeil v. United States,
508 U.S. 106, 113 (1993); Gonzalez v.
United States,
284 F.3d 281, 288 (1st Cir. 2002); Attallah v.
United States,
955 F.2d 776, 779 (1st Cir. 1991).
Second: The Bivens claims against the individual
defendants are forfeit because, despite clear and repeated
direction from the district court, Nogueras failed to make focused,
targeted objections to the second magistrate judge's report and
recommendation. Failure to identify the particular portions of the
report and recommendation to which objection is being made and to
specify the basis for each such objection precludes appellate
review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Henley
Drilling Co. v. McGee,
36 F.3d 143, 150 (1st Cir. 1994); United
States v. Valencia-Copete,
792 F.2d 4, 6 (1st Cir. 1986); see also
Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C).
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Third: Even had the claims against the individual
defendants not been forfeited, we would uphold the district court's
dismissal of those claims on the merits. As to the prosecutors,
the record reflects that the actions of which Nogueras complains
were, without exception, done in the officials' capacity as
prosecutors. Consequently, those actions are shielded by the
absolute immunity that attaches to exercises of prosecutorial
discretion. Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Reid v.
State of N.H.,
56 F.3d 332, 337 (1st Cir. 1995). The subjective
intent of the prosecutors is irrelevant, especially in view of the
fact that, here, the indictment provides irrefutable evidence of
the existence of probable cause. See Forrester v. White,
484 U.S.
219, 224 (1988).
As to the FBI agent (Johnson), the district court
dismissed the Bivens claims based on a finding of qualified
immunity. With one possible exception, that decision appears to be
unimpugnable. See Saucier v. Katz, 533 U.S. 194, 202 (2001);
Malley v. Briggs,
475 U.S. 335, 341 (1986). The one exception
relates to malicious prosecution. We must accept as true
Nogueras's allegations and draw all reasonable inferences in his
favor. See Aulson v. Blanchard,
83 F.3d 1, 3 (1st Cir. 1996)
(setting forth applicable standard on motions to dismiss).
Nogueras's allegations are pointed and, following the standard
praxis, dismissing the claim of malicious prosecution under the
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doctrine of qualified immunity might be problematic. See generally
Rivera Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37
(1st Cir. 1993) (describing the elements of such a claim under
Puerto Rico law).
We need not probe this point too deeply, however, as we
are free to uphold the ruling below on any independent ground made
manifest by the record. See Gannett v. Carp (In re Carp), 340 F.3d
15, 22 (1st Cir. 2003); Houlton Citizens' Coalition v. Town of
Houlton,
175 F.3d 178, 184 (1st Cir. 1999). We affirm here
because, insofar as the malicious prosecution claim is concerned,
Johnson's actions were shielded by absolute prosecutorial immunity.
The existence of absolute prosecutorial immunity is a
matter of function; it depends not on the title or position of the
official involved, but, rather, on the specific conduct in
question. See Briscoe v. LaHue, 460 U.S. 325, 342 (1983). In this
instance, the challenged conduct, as described in Nogueras's
pleadings, was intimately associated with the judicial phase of the
criminal process. It was, therefore, essentially prosecutorial in
nature. See
id. at 336. Hence, immunity attaches.
We need go no further. Concluding, as we do, that the
district court correctly dismissed each and all of Nogueras's
claims, we summarily reject his appeal.
Affirmed.
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