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USCA1 Opinion
May 29, 1992 ____________________
No. 91-2062
ANGEL SIERRA-SERPA,
Plaintiff, Appellant,
v.
MANUEL MARTINEZ, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin and Campbell, Senior Circuit Judges.
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Carlos V. Garcia Gutierez with whom Guillermo J. Ramos Luina was
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on brief for appellant.
Carlos Lugo Fiol, Assistant Solicitor General, Department of
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Justice, with whom Reina Colon De Rodriguez, Acting Solicitor General,
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was on brief for appellees.
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CERTIFICATION TO THE SUPREME COURT OF PUERTO RICO
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CAMPBELL, Senior Circuit Judge. The resolution of
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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
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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,
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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
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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
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in execution under the sentence of a
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criminal court for a term less than for
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life; or,
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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-
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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
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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,
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subjecting certain convicts to the suspension of their civil
rights. See art. 20, Penal Code, 1902. In 1974, however,
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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.
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3201-3212); Rodr guez Candelario, slip op. at 5. The
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question is thus whether the repeal of Article 20 must be
deemed implicitly to have repealed section 3 of Article 40,
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although the latter, unlike Article 20, was never expressly
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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
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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
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M rquez v. Superior Court, 85 P.R.R. 536, 539 (1962) (purpose
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of Article 40 "is to protect the interests of the disabled
persons until such time as they acquire the necessary
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juridical capacity to assert their rights") (emphasis added).
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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
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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.
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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.
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We cannot say that it necessarily follows from
Rodr guez Candelario that Article 40(3) was implicitly
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repealed by the repeal of Article 20. The statute in
Rodr guez Candelario explicitly referred to a "felony which
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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
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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)
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("[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.
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United States Court of Appeals
for the First Circuit
By:
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Honorable Levin H. Campbell
Senior Circuit Judge
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Document Info
Docket Number： 91-2062
Filed Date： 5/29/1992
Precedential Status： Precedential
Modified Date： 9/21/2015