Martinez v. Anglero ( 1992 )

USCA1 Opinion

          December 23, 1992

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

          No. 92-1256

                              HERIBERTO AYALA-MARTINEZ,

                                Plaintiff, Appellant,

                                          v.

                              HUMBERTO ANGLERO, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
                                         _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                             and Brody,* District Judge.
                                         ______________
                                _____________________

               Federico Lora-L pez for appellant.
               ___________________
               Anabelle Rodr guez, Solicitor General, with whom Reina Col n
               __________________                               ___________
          de Rodr guez,  Deputy  Solicitor General  and  Carlos  Lugo-Fiol,
          ____________                                   _________________
          Assistant  Solicitor   General,  were   on  brief   for  appellee
          Wadalberto Matos-Burgos.



                                 ____________________


                                 ____________________
                              
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          *  Of the District of Maine, sitting by designation.














                    TORRUELLA,  Circuit Judge.   Appellant  Heriberto Ayala
                                _____________

          Mart nez ("Ayala") appeals from a summary judgment dismissing his

          lawsuit.   In his complaint,  Ayala alleged  that Police  Officer

          Wadalberto  Matos  Burgos ("Matos")  violated  his constitutional

          rights under the Due  Process Clause of the Fifth  and Fourteenth

          Amendments  and sought damages under 42 U.S.C.   1983 ("  1983").

          We affirm the summary judgment on the malicious prosecution claim

          and remand  the rest of the  case for further proceedings  in the

          district court.

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                    On June  30, 1989,  at approximately 11:00  p.m., Matos

          stopped  Ayala for driving  through a red  light, and gave  him a

          sobriety test.  Matos contends that this test revealed that Ayala

          had been drinking alcohol.

                    After  this  test,  Matos  took  Ayala  to  the  police

          station,  where  Ayala alleges  that, in  the presence  of Matos,

          Sergeant Angler  and several  other police officers battered him.

          Ayala has since won judgment against Sergeant Angler  for denying

          Ayala's civil  rights in violation of    1983 and the  Fourth and

          Fourteenth Amendments of  the United States Constitution.   It is

          unclear  from   the  record   whether  Ayala  accused   Matos  of

          participating  in the  beating.   Matos contends  that  after the

          altercation, Ayala refused to submit to a chemical alcohol test.

                    Matos   filed  criminal   charges  against   Ayala  for

          obstruction of  justice,  aggravated assault,  driving under  the

          influence of alcohol, and failing to submit to a chemical alcohol

          test.   The  magistrate found  that Matos  had probable  cause to















          arrest Ayala for failure to submit to a chemical alcohol test and

          driving while  under the  influence of  alcohol, but  no probable

          cause  with  respect to  obstruction  of  justice and  aggravated

          assault.   At trial, Ayala  was found innocent  on the failure to

          submit and driving under the influence charges.

                    Ayala  initially sued  both Matos and  Sergeant Angler 

          for malicious prosecution.  He then moved to amend his complaint.

          His amended complaint  added to his initial complaint  charges of

          conspiracy, false arrest and excessive use of force.

                    We cannot determine  from the district court's  opinion

          whether it granted or  denied Ayala's amended complaint.   In its

          opinion, the court granted  summary judgment to Matos and  at the

          same  time said  that  it granted  Ayala's  motion to  amend  his

          complaint,  erroneously  commenting  that  the  amendment's  only

          addition  to the  complaint  consisted  of  adding  the  name  of

          Sergeant  Angler 's  wife.   Additionally,  in  granting  summary

          judgment,  it  discussed  only  the malicious  prosecution  count

          without mentioning  the three additional counts  that the amended

          complaint added.

                    We  affirm the  district court's summary  judgment with

          respect  to the malicious prosecution claim,  and remand the rest

          of the case to the district court  for a clarification of whether

          it granted the  amended complaint, and for a  ruling on the three

          additional claims set forth  in Ayala's amended complaint in  the

          event that it did.




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                                   SUMMARY JUDGMENT
                                   SUMMARY JUDGMENT
                                   ________________

                    A moving party is entitled to summary judgment if there

          is no genuine issue of material fact, and  that party is entitled

          to  judgment as a matter of law.   Griggs-Ryan v. Smith, 904 F.2d
                                             ___________    _____

          112, 115  (1st Cir. 1990) (quoting  Fed. R. Civ. P.  56(c)).  Our

          review of summary judgments is plenary, and we look at all of the

          facts  on the  record and draw  all inferences in  the light most

          favorable to the non-moving party.  Id.
                                              __

                                MALICIOUS PROSECUTION
                                MALICIOUS PROSECUTION
                                _____________________

                    Ayala contends that Matos maliciously prosecuted him in

          violation  of     1983.    Specifically,  he  claims  that  Matos

          "knowing[ly]  and  maliciously  falsified  evidence  in  order to

          initiate  proceedings against [him] .  . . ."   Plaintiff's First

          Amended Complaint at 5.

                    A federal  constitutional claim  under   1983  based on

          malicious   prosecution   requires  conduct   so   egregious  and

          conscience shocking that it  violates the plaintiff's due process

          rights.  Torres v.  Superintendent of Police of Puerto  Rico, 893
                   ______     ________________________________________

          F.2d 404, 409 (1st Cir. 1990).  

                     To constitute a violation  of due process, a malicious

          prosecution must either result in a deprivation of life, liberty,

          or property, or violate  another constitutional right.  Id.   See
                                                                  __    ___

          also Albright  v. Oliver, 975 F.2d 343, 347 (7th Cir. 1992).  For
          ____ ________     ______

          example, if a defendant prosecuted a plaintiff due to race, or in

          order  to prevent  free  speech, then  the malicious  prosecution

          wouldgenerate a constitutional claim. See Torres,893 F.2d at 409.
                                                ___ ______


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                    Viewing the facts in the light most favorable to Ayala,

          the motions and  evidence reflect that:   several police officers

          beat Ayala without physical provocation; Matos was present during

          the beating  and might  have participated; Matos  then fabricated

          several  charges against Ayala  in order to  justify the injuries

          that Ayala received.

                    While  these   facts,  if  true,  are  clearly  morally

          repugnant  and   might  well   support  a  claim   for  malicious

          prosecution  under Puerto Rican tort  law, they fail  to meet the

          standards of a malicious prosecution claim under   1983.  T  h  e

          evidence  fails to show that Matos prosecuted Ayala for racial or

          political  motivation,   or  otherwise  deprived   him  of  equal

          protection.   In addition, Ayala's detention was part of a lawful

          arrest  for driving while under the influence of alcohol, and the

          magistrate quickly dismissed the  questionable charges that Matos

          brought.    Thus, the  malicious  prosecution did  not  cause the

          deprivation of Ayala's life, liberty, or property.

                    Because Ayala suffered no due process  violation, Matos

          is entitled to  a judgment as  a matter of  law on the  malicious

          prosecution claim.

                    We remand the rest  of the case for a  clarification of

          whether the district court granted Ayala's amended complaint, and

          for a ruling on the  amended complaint's three additional  claims

          in the event that it did.

                    Affirmed in part; remanded in part.
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