Alicea v. Caban ( 1999 )

    United States Court of Appeals
    For the First Circuit
                                No. 98-1838
                       PABLO LUGO ALICEA,
                     Plaintiff, Appellant,
                     JOSE L. CABAN, ET AL.,
                     Defendants, Appellees.
         [Hon. Jos Antonio Fust, U.S. District Judge]
    Torruella, Chief Judge,
    Coffin, Senior Circuit Judge,
    and Selya, Circuit Judge.
    Jos R. Franco for appellant.
    Leticia Casalduc-Rabell, Asst. Solicitor General, with whom Carlos Lugo Fiol, Solicitor General, and Edda Serrano Blasini, Deputy Solicitor General, were on brief, for appellees.
    March 22, 1999
                                 SELYA, Circuit Judge.  After a jury acquitted plaintiff-
    appellant Pablo Lugo Alicea (Lugo) of involuntary manslaughter,
    Lugo turned the tables and sued the prosecution team   Secretary of
    Justice Pedro Pierluisi and District Attorneys Jos L. Cabn,
    Elmer Cuerda, Jaime Zambrana, and Mabel Ruiz   for money damages in
    Puerto Rico's federal district court.  Within a few weeks, Lugo
    filed an amended complaint.  See Fed. R. Civ. P. 15(a) (permitting
    plaintiffs to amend once as of right before a responsive pleading
    is filed).
    The defendants moved to dismiss the amended complaint
    under Fed. R. Civ. P. 12(b)(6).  Lugo did not oppose the motion,
    and the district court, after waiting nearly a year, granted the
    requested relief in a brief, unpublished rescript.  We affirm,
    albeit on slightly different reasoning.  See Hachikian v. FDIC, 
    96 F.3d 502
    , 504 (1st Cir. 1996) (stating that the court of appeals is
    not wedded to the trial court's rationale, but may affirm its
    ruling on any ground made manifest by the record); Polyplastics,
    Inc. v. Transconex, Inc., 
    827 F.2d 859
    , 860-61 (1st Cir. 1987)
    Federal pleading requirements are liberal, but they are
    not entirely toothless.  See Gooley v. Mobil Oil Corp., 
    851 F.2d 513
    , 514 (1st Cir. 1988).  Here, Lugo's complaint contains four
    statements of claim.  Two do not articulate separate causes of
    action, but merely contain recitals of damages allegedly incurred. 
    Of the other two, the first alleges an abridgment of Lugo's
    constitutional rights, and the second alleges violations of local
    law (specifically, Articles 1802 and 1805 of Puerto Rico's Civil
    Code).  Because Lugo premises jurisdiction on the existence of a
    federal question, 28 U.S.C.  1331, we focus our attention on the
    first of these claims.
    Refined to bare essence, the claim in question recounts
    that, following an automobile accident in which a fatality
    occurred, the authorities charged Lugo with involuntary
    manslaughter.  His complaint then recites that, in connection with
    the ensuing criminal trial, "the defendants produced two different
    croquis evincing two disparaging versions of how the accident took
    place," and that one defendant, Cabn, "ordered the sworn version
    of facts of one of the key witnesses to be changed in order to
    better accommodate the Government's official version."  These acts,
    the complaint avers, constituted "an illegal, unjustified, abusive
    and excessive use of authority under color of law" and hence were
    "in violation of the Due Process Clause [of the] Fifth Amendment to
    the United States Constitution."
    The district court did not err in ruling that these
    allegations failed to state a claim upon which relief could be
    granted under federal law.  In order to transform a garden-variety
    malicious prosecution claim into a claim that is actionable under
    42 U.S.C.  1983, a plaintiff must establish both (1) action under
    color of state law, and (2) a deprivation of a constitutional right
    in consequence of that action.  See Roche v. John Hancock Mut. Life
    Ins. Co., 
    81 F.3d 249
    , 253-54 (1st Cir. 1996).  Lugo's complaint
    adequately limns state action, but it does not allege a
    constitutional deprivation.  The claim invokes the Fifth
    Amendment.  As pertinent here, the Fifth Amendment guarantees both
    procedural due process and substantive due process.  Neither
    guaranty helps Lugo.
    A section 1983 claim based on malicious prosecution
    cannot be maintained under the rubric of procedural due process
    where, as here, local tort law affords an anodyne for malicious
    prosecution.  See Roche, 81 F.3d at 256; Perez-Ruiz v. Crespo-
    25 F.3d 40
    , 43 (1st Cir. 1994); see also Raldiris v.
    Levitt & Sons, 
    103 P.R.R. 778
    , 781 (1975) (confirming that Puerto
    Rico law grants such remediation).
    Such a claim is on even shakier ground when viewed under
    the substantive due process rubric.  In recent years, both the
    Supreme Court and this court have held that there is no substantive
    due process right to be free from malicious prosecution.  SeeAlbright v. Oliver, 
    510 U.S. 266
    , 271 n.4 (1994) (plurality op.);
    Meehan v. Town of Plymouth,     F.3d    ,     (1st Cir. 1999) [No.
    97-2235, slip op. at 7]; Roche, 81 F.3d at 256.  Consequently, the
    district court did not err in dismissing, under Rule 12(b)(6), a
    complaint that sought to transform a standard malicious prosecution
    case into a due process violation.
    Lugo offers two rejoinders, neither of which has much
    force.  First, he says that he may have a cause of action under the
    Fourth Amendment.  That is a theoretical possibility, see, e.g.,
    Roche, 81 F.3d at 256 n.5 (noting that "the Supreme Court left open
    the possibility that a malicious prosecution claim might lie under
    1983 on the basis of the Fourth Amendment"), but it is not the
    cause of action that Lugo asserted in his complaint.  The facts, as
    pleaded, do not bring a Fourth Amendment violation to mind.  At any
    rate, the district court was entitled to consider the claim that
    Lugo pleaded, and had no obligation to go outside the complaint in
    search of new and different causes of action.  See Gooley, 851 F.2d
    at 514.  This is especially so where, as here,  Lugo did not deign
    even to file a memorandum in opposition to the defendants' motion
    to dismiss.
    Second, Lugo says that the district court erred in not
    affording him an opportunity to amend his complaint.  The short,
    fully dispositive answer to this remonstrance is that Lugo never
    asked the district court for leave to amend.  We have held with a
    regularity bordering on the monotonous that a party who fails to
    seek available relief in the nisi prius court cannot anticipate
    receiving that relief in the first instance from this court.  SeeViquiera v. First Bank, 
    140 F.3d 12
    , 20 (1st Cir. 1998) ("A party
    who neglects to ask the district court for leave to amend cannot
    expect to receive such a dispensation from the court of appeals.");
    Beaulieu v. United States IRS, 
    865 F.2d 1351
    , 1352 (1st Cir. 1989)
    We need go no further.  Because Lugo failed to plead a
    cognizable federal claim, his pendent claims under Puerto Rico's
    Civil Code were properly dismissed as well.  See Martinez v. Colon,
    54 F.3d 980
    , 990-91 (1st Cir. 1995); see also 28 U.S.C.