Lafont Rivera v. Soler Zapata, 1st Cir. (1993)

USCA1 Opinion
January 20, 1993

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 92-1656
MANUEL LAFONT-RIVERA,
Plaintiff, Appellant,
v.
JOSE SOLER-ZAPATA,
RICARDO TORRES MUNOZ,
ARMANDO TROCHE,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________
____________________
Before
Torruella and Stahl, Circuit Judges,
______________
and Skinner,* Senior District Judge.
_____________________
____________________
Enrique
J. Mendoza Mendez
with whom
Jose Enrique
Mendoza Vi
__________________________
was on brief for appellant.
________________________
Vannessa Ramirez, Assistant Solicitor General, with whom Anabe

________________
_____
Rodriguez, Solicitor General, Department of Justice, was on brief
_________
appellees.
____________________
____________________
_____________________
*Of the District of Massachusetts, sitting by designation.
STAHL, Circuit Judge.

_____________
Dr.
Manuel
Lafont-Rivera
dismissal of his
In
this
challenges
42 U.S.C.
1983
appeal,
the
plaintiff
district court's
complaint as time-barred.
We affirm the judgment of the district court.

I.
I.
__
BACKGROUND
BACKGROUND
__________
When
reviewing the
treat all allegations in
dismissal of
a complaint,
the complaint as true and
we
draw all
reasonable
inferences in
Monahan v.
_______
Dorchester Counseling Ctr., Inc., 961

_________________________________
988
time
(1st Cir. 1992).

for the
favor
of plaintiff.
See,
___
e.g.,
____
F.2d 987,
Plaintiff, an optometrist, worked part
Department of
Health of
the Commonwealth
of
Puerto Rico ("DOH") from March 5, 1951, to November 30, 1971.

Sometime
in
1984,
plaintiff
"[C]ertificate of Service"
twenty-year term
that the
allegedly
of employment
1982, the
(the "Certificate") verifying his

with DOH.
Certificate operated as
that, as of
received
Plaintiff claims
an official acknowledgment
year in which
he turned
fifty-eight
years old, he became qualified to receive a pension.

Receiving
Certificate
beginning of the pension

Apparently,
must
acquire
applicant's
DOH
however,
only
the
application process in Puerto Rico.
pension applicants
from
is,
DOH
employment has
"Form
with
OP-15"
terminated.
-22
Certificates next
verifying
According
to
that
the
complaint, the Retirement Office does
not process individual
pension applications without the Form OP-15.

After
attempted
receiving
to secure
sometime
in
requested
to
Certificate,
a Form OP-15
1984,
DOH
his
plaintiff
issue
from DOH.
-- through
him
Form
plaintiff
To
his
that end,
attorney
OP-15.
--
Apparently,
plaintiff's initial request went unheeded.

The complaint does not reflect
between the
parties in 1984-1986.
further interaction
The complaint does state,
however, that on January
24, 1987, defendant Armando Troche,
Head of
Office,
that
DOH's Personnel
his
case
"was
being
communicated to
referred"
to
the
plaintiff
DOH
Legal
Department.
Again, more
communication
than two years passed
between plaintiff and DOH.
1989, plaintiff reiterated his request that

issue
letter
done"
the
Form OP-15.
to plaintiff
On
June 26,
informing
without further
Then, on June 14,
defendant Troche
1989, Troche
him that
wrote a
"nothing could
be
as his case "had been referred to the Legal Department
six months before."

Sometime in
time
that
plaintiff
DOH issue
1990, plaintiff requested for

the
Form
OP-15.
also petitioned defendant
a third
Contemporaneously,
Dr. Jose
Soler Zapata,
the Secretary of Health of the Commonwealth of Puerto Rico to
-33
issue the Form.
Apparently, defendant
Soler did not respond
to plaintiff's request.
Sometime
thereafter,
plaintiff
began
extensive
negotiations over his employment status with officials in the

DOH Legal Department.
in
the
Legal
recommended
After these negotiations, an official
Department
that
he
Defendant
Troche
referred
plaintiff's
went
fill
ignored
to
out
this
case
defendant
plaintiff's
Form
recommendation
to
the
Troche
"Office
and
OP-15.
and instead
of
Central
Personnel."
After
February
again
learning
21, 1991,
seeking
of
this
filed "an
his Form
appeal" with
OP-15.
plaintiff's case to defendant

of the DOH Legal Department.
DOH for
however, the
defendant Soler
Defendant Soler
Defendant Munoz
referred
Without
conferred with
1991, wrote a letter to
certifying that plaintiff
twenty years.
plaintiff, on
Ricardo Torres Munoz, the Head
defendant Troche and, in May of

Retirement Office
referral,
the
the
had worked with
requisite Form
OP-15,
Retirement Office would not process plaintiff's
application.
During
numerous phone
the
calls and
the Form OP-15.

In
month
The
of June
1991,
plaintiff
personal visits to
made
DOH requesting
DOH again ignored plaintiff's requests.
a letter dated July
8, 1991, plaintiff
made yet another
-44
request for the Form OP-15.
Again, the DOH turned a deaf ear
to plaintiff's request.
On
lawsuit
alleging
Retirement
violation
Amendment's
Plaintiff
and
August 2,
1991,
that defendants'
Office with
of
rights
Due
his Form
secured
Process
sued under 42
injunctive
plaintiff filed
relief.
OP-15 was,
him
and
under
Equal
U.S.C.
In
refusal
1983
response,
the
instant
to provide
the
inter alia,
_____ ____
the
Protection
Fourteenth
Clauses.
seeking both damages

defendants filed
motion to dismiss plaintiff's complaint arguing, inter

_____
alia,
____
that
the complaint
statute of
was
barred by
limitations.
the applicable
one-year
Finding that plaintiff's
cause of
action accrued more than a year before plaintiff filed

the district court
the reasons
agreed and dismissed the
outlined below,
we affirm the
complaint.
suit,
For
district court's
ruling.
II.
II.
___
DISCUSSION
DISCUSSION
__________
The
parties do
not dispute
Puerto Rico's one-year statute

actions.
the
applicability of
of limitations governing tort
See Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,

___ _______________
_____________
353 (1st Cir. 1992); Torres v. Superintendent of Police,

______
________________________
F.2d 404, 406 (1st Cir. 1990).
statute of
limitations
in
governs the accrual period.
While state
1983
893
law supplies the
action,
federal
law
See, e.g., Rivera-Muriente, 959

___ ____ _______________
-55
F.2d
at 353.
Under federal
law, a plaintiff's
1983 cause
of action accrues when s/he "knows, or has reason to know, of

the injury on which the action is based."
In
determining when
plaintiff
Id.
___
became
aware
(or
should have been aware) of his alleged injury, our first task
is to identify the injury of which he complains.
ultimate complaint is that
him
of
his
pension.
complaint, defendants
pension.
Plaintiff's
defendants' actions are depriving
However,
have
as
is
apparent from
not officially
__________
denied
him
the
the
Rather, they allegedly are shuttling his Form OP-15
request from department to department within the DOH, thereby

preventing
him
Retirement
Office.
defendants'
from
repeated
________
request that DOH
making
formal
application
Therefore,
it
failure
_______
respond
fill out a
to
appears
Form OP-15 that
to
that
to
the
it
is
plaintiff's
serves as
the
basis for plaintiff's claim.

Thus,
pivotal question
for
statute
became
The
purposes, the
or should have
not going to respond to
his Form
district court determined that plaintiff
aware of his injury in 1984, the year he received the
Certificate
pension.
fact
limitations
becomes when plaintiff knew
known that defendants were

OP-15 request.
of
indicating that
he was
qualified to
receive a
The court based this determination, in part, on the
that plaintiff knew as early as 1972 that DOH's failure
to "define his
status" would deprive him of pension benefits
-66
once he became eligible.

in 1984,
The
court therefore reasoned that,
when plaintiff's initial request
was (or should

were being
have been)
violated.
on notice that
We disagree with
went unheeded, he
his civil
rights
the district court's
reasoning.
In
1984,
plaintiff
was
on notice
that
he
was
qualified to make an application to the Retirement Office for

a pension.
As a
result, he made his initial request

Form OP-15.
DOH did
not respond
to DOH
to issue
him the
to his
request.
Plaintiff may well have known at that point that if
DOH ultimately failed to
"define his status," the Retirement
Office would not be able
to process his pension application.
It is hardly
clear, however, that,
in 1984, plaintiff
knew
(or should have known) that defendants would never officially

respond to plaintiff's Form OP-15 request.
Plaintiff's initial request, however, went unheeded
for more than
two years.
In January
1987, when
defendant
Troche finally responded

informed him that his
Department[.]"
we
to plaintiff's initial
request, he
case "was being referred to
the Legal
Reading the complaint favorably to plaintiff,
think it would not have been unreasonable for him to have
concluded -- at this point -- that, although extremely

the
bureaucratic process might
eventually produce
slow,
his Form
OP-15.
-77
Another two years
passed, however, as
plaintiff's
request
apparently languished in the Legal Department.
result,
we
think
that
plaintiff on June 26,
when
defendant
As a
Troche
informed
1989, that "nothing could be
done" as
his case again had been "referred to the Legal Department[,]"

plaintiff should have been on notice that defendants
intend to act on his Form OP-15 request.
action
plaintiff
had
against
Thus,
did not
any cause of
defendants accrued
at
that
point.
Accordingly, we
hold that,
on June 26,
1989, the
one-year statute of limitations began to run on plaintiff's

1983
action.1
that
date to
untimely.2
As plaintiff waited more than two years after

file
Thus,
his complaint,
while
we
his
disagree
1983
with
action
the
was
district
court's selection of an accrual date, we affirm its dismissal

of plaintiff's complaint.
Affirmed.
Affirmed.
_________
____________________
1.
Plaintiff also pursues an alternative theory that his
lawsuit was in reality only against defendants Soler and
Munoz, whose unlawful actions, he contends, occurred within a
year of his filing of the complaint. For the reasons amply
articulated by the district court, see Lafont-Rivera v.
___ _____________
Soler-Zapata, No. 91-1932CCC, slip op. at 5-6 (D.P.R. April
____________
29, 1992), we find this argument meritless.
2.
Plaintiff attempts to establish timeliness by asserting
that defendants have committed a "continuing violation."
Plaintiff, however, failed to articulate this theory below.
As such he cannot raise it for the first time on appeal.
See, e.g., Clement v. United States, No. 91-1839, slip op. at
___ ____ _______
_____________
20 (1st Cir. November 25, 1992).
-88

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USCA1 Opinion

January 20, 1993

Vannessa Ramirez, Assistant Solicitor General, with whom Anabe

STAHL, Circuit Judge.

We affirm the judgment of the district court.

treat all allegations in

the complaint as true and

Dorchester Counseling Ctr., Inc., 961

(1st Cir. 1992).

Plaintiff, an optometrist, worked part

Puerto Rico ("DOH") from March 5, 1951, to November 30, 1971.

(the "Certificate") verifying his

years old, he became qualified to receive a pension.

beginning of the pension

application process in Puerto Rico.

complaint, the Retirement Office does

not process individual

pension applications without the Form OP-15.

plaintiff's initial request went unheeded.

The complaint does state,

however, that on January

24, 1987, defendant Armando Troche,

than two years passed

between plaintiff and DOH.

1989, plaintiff reiterated his request that

as his case "had been referred to the Legal Department

six months before."

1990, plaintiff requested for

also petitioned defendant

the Secretary of Health of the Commonwealth of Puerto Rico to

issue the Form.

Soler did not respond

negotiations over his employment status with officials in the

After these negotiations, an official

plaintiff's case to defendant

1991, wrote a letter to

certifying that plaintiff

Ricardo Torres Munoz, the Head

defendant Troche and, in May of

had worked with

Retirement Office would not process plaintiff's

the Form OP-15.

DOH again ignored plaintiff's requests.

a letter dated July

made yet another

request for the Form OP-15.

Again, the DOH turned a deaf ear

seeking both damages

motion to dismiss plaintiff's complaint arguing, inter

Finding that plaintiff's

action accrued more than a year before plaintiff filed

agreed and dismissed the

Puerto Rico's one-year statute

of limitations governing tort

See Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,

353 (1st Cir. 1992); Torres v. Superintendent of Police,

governs the accrual period.

law supplies the

See, e.g., Rivera-Muriente, 959