Natal-Rosario v. Erickson , 410 F. App'x 351 ( 2011 )

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-2136
JOSÉ E. NATAL-ROSARIO; KATHERINE M. ÁLVAREZ;
CONJUGAL PARTNERSHIP NATAL-ÁLVAREZ,
Plaintiffs, Appellants,
v.
JANE ERICKSON; JOSÉ E. CALDERO-LÓPEZ; MIGUEL MARRERO;
IVÁN LÓPEZ; ISMAEL MORALES; MERCEDES TORRES-RODRÍGUEZ;
CARLOS NAZARIO,
Defendants, Appellees,
PUERTO RICO POLICE DEPARTMENT; COMMONWEALTH OF PUERTO RICO,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Nicolás Nogueras-Cartagena, on brief for appellants.
Rosa Elena Pérez-Agosto, Assistant Solicitor General, Irene S.
Soroeta-Kodesh, Solicitor General, Leticia M. Casalduc-Rabell,
Deputy Solicitor General, and Zaira Z. Girón-Anadón, Deputy
Solicitor General, on brief for appellees Caldero-López and
Nazario.
Thomas F. Klumper, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellees Erickson, Marrero, and López.
January 31, 2011
Per Curiam. Plaintiff José E. Natal-Rosario ("Natal")
appeals the district court's dismissal, under Rule 12(b)(6), of his
claims against the defendants, Federal Bureau of Investigation
("FBI") agents and Puerto Rico Police Department ("PRPD") officers.
Natal alleges that the defendants (1) violated his Fourth Amendment
rights by conducting an illegal search and seizure and (2)
infringed upon his Fifth and Fourteenth Amendment rights to
substantive and procedural due process.
Natal's Fourth Amendment argument has two components.
First, Natal contends that when one FBI agent questioned him about
personal matters that were unrelated to the corruption charge about
which he had agreed to be questioned, the agent was conducting an
illegal search of Natal's private affairs. This claim is waived
because it was not raised below. See, e.g., Martex Farms, S.E. v.
EPA, 559 F.3d 29, 33 (1st Cir. 2009).
Second, Natal argues that he was subjected to an illegal
seizure because he felt compelled to agree to undergo a polygraph
examination and, once seated for the exam, felt he was not at
liberty to leave. Natal contends that he could not terminate the
interrogation or the encounter because he felt he needed to clear
his name, both to protect his reputation in general and to retain
his position as a deputized federal agent. We agree with the
district court that Natal's complaint cannot survive a Rule
12(b)(6) motion under the standard articulated in Ashcroft v.
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Iqbal, 129 S. Ct. 1937, 1949-50 (2009). "If an officer, by means
of show of authority, even briefly restrains the liberty of a
citizen, we may conclude that a seizure has occurred," so long as
we are "able to conclude that coercion, not voluntary compliance,
most accurately describes the encounter." United States v. Smith,
423 F.3d 25, 28 (1st Cir. 2005). The facts pled here do not
"plausibly suggest an entitlement to relief," Iqbal, 129 S. Ct. at
1951, given this standard. Here, even assuming that Natal's
complaint allowed us to infer that he felt it was necessary to
undergo the polygraph exam and answer the FBI agent's questions in
order to maintain his position, we could not conclude that these
facts plausibly suggest that he was a victim of coercion. See
Fournier v. Reardon, 160 F.3d 754, 757 (1st Cir. 1998) (concluding,
where plaintiff was handcuffed and put under "house arrest" as
punishment during police training course, that even though
plaintiff might have suffered "negative consequences for his
continued employment" if he had not submitted to "house arrest,"
the punishment did not constitute a seizure because a reasonable
observer would conclude that plaintiff was free to end it).
Finally, because Natal only mentions his Fifth and
Fourteenth Amendment substantive and procedural due process claims
in a cursory manner on appeal, these arguments are deemed waived.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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For the reasons stated, we affirm the district court's
dismissal of Natal's claims.
Affirmed.
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