[NOT FOR PUBLICATION - NOT TO BE USED AS PRECEDENT]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dom¡nguez, U.S. District Judge]
On July 30, 1997, Phryne Arroyo-Santiago brought suit in the district court for the District of Puerto Rico against her ex-husband, José Garc¡a-Vicario, and the Puerto Rico Superior Court Judge who presided over their divorce proceedings, the Honorable Felipe Pérez-Cruz. Charging violations of 42 U.S.C. §§ 1983 & 1985, 1 Arroyo-Santiago alleged that as a result of Judge Pérez-Cruz's personal relationship with her then-husband, Judge Pérez-Cruz treated her unfairly during their 1984 divorce proceedings. She further alleged that "[h]er civil rights were trampled and obliterated" when the financial support that she had been receiving from Garc¡a-Vicario was reduced and eventually eliminated in 1996 by another Judge who might have been influenced by Judge Pérez-Cruz. Finally, Arroyo-Santiago complained that a hearing to divide the dissolved marriage's community property, allegedly scheduled for August 7, 1997, was going "to take away whatever ruminants [sic] of property are left . . . and award them to [her ex-husband] Garc¡a-Vicario."
The district court dismissed Arroyo-Santiago's complaint by order of May 29, 1998. Applying Puerto Rico's one-year statute of limitations for tort actions, the district court concluded that the complaint was time barred. The district court also held in the alternative that: (i) there was no allegation of state action on the part of Garc¡a-Vicario and (ii) Judge Pérez-Cruz was entitled to judicial immunity. This appeal followed, and we now affirm.
Given our review of the court's dismissal of the complaint, we rely on the complaint for a statement of the facts relevant to this appeal. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir. 1990) ("In reviewing a Rule 12(b)(6) dismissal, we take the well-pleaded facts as they appear in the complaint, indulging every reasonable inference in plaintiff's favor."). On October 18, 1984, Garc¡a-Vicario filed an action in the Puerto Rico Superior Court alleging "cruel treatment" and seeking a divorce from Arroyo-Santiago. On November 5, 1984, Arroyo-Santiago, "having failed to obtain legal representation . . . filed a motion requesting an extension of 30 days to answer the complaint, specifying that she had 'legitimate defenses' to the allegations" contained in the divorce pleadings. Judge Pérez-Cruz "denied the request [for an extension of time], stating no reason for the denial." Default was entered on November 15, 1984. "Trial" was nonetheless scheduled for December 18, 1984 at 8:30 AM, even though "[a]ccording to the Rules of the Courts of Puerto Rico, proceedings start at 9 AM." 2 The divorce was allegedly granted that morning in her absence.
"From this date on, 18 December, 1984, Mrs. Arroyo[-Santiago] has had an uphill bat[t]le with little chance of success, to clearly overturned [sic] this hideous situation . . . ." Another Judge, "without ever setting or holding a hearing," reduced her alimony. Yet another Judge subsequently concluded that Arroyo-Santiago was ineligible for alimony and that any financial support provided by her husband would be "chargeable to the amount she would receive as part of the [c]ommunity property's final Disposition." "Lastly," Arroyo-Santiago alleges, "in 1996, the amount of monies she was receiving was rescinded and eliminated." Finally, the complaint predicts that "[t]he stage is set to take away whatever ruminants [sic] of property are left" at a hearing to dispose of the community property which was scheduled for August 7, 1997.
In the complaint's penultimate paragraph, Arroyo-Santiago states her claims:
"Both defendants have engaged in a common design or mutually implied understanding to deprive plaintiff of her fight [sic] to the due process and equal protection of [l]aw."
"Mrs. Arroyo has been denied assistance of counsel."
"Acting in excess of his jurisdictional powers, the Judge denied Plaintiff an opportunity to retain counsel before rendering a decision on the case."
"Plaintiff was denied a fair [t]rial and found to be the 'guilty party'."
"There was nothing 'judicial' in summarily entering default judgment against her and the holding of the [t]rial out of the regular hours as set by the Courts."
On the basis of these alleged infirmities, Arroyo-Santiago requested that "a permanent injunction be issued against the defendants forbidding them to take any further action of any kind in any Court of law or agency against Mrs. Arroyo and to cease and desist trying to hold hearings of any kind in any case until this Honorable Court orders otherwise and [j]udgement should be issued against defendants in the amounts requested." Arroyo-Santiago requested damages of $2,500,000.00 against Garc¡a-Vicario and "an amount to be determined by the jury against Judge Felipe [Pérez-Cruz]." The court granted the motions of defendants requesting dismissal, thereby prompting this appeal.
A district court's dismissal of a claim pursuant to Rule 12(b)(6) is reviewed de novo. See Vartanian v. Monsanto Co., 14 F.3d 697, 700 (1st Cir. 1994). Because we operate "under the same constraints that bind the district court . . . we may affirm a dismissal for failure to state a claim only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Correa-Martinez, 903 F.2d at 52. In reviewing whether dismissal was warranted, we accept as true all factual allegations within the complaint and indulge all reasonable inferences in the plaintiff's favor. See Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 530 (1st Cir. 1995). In making this legal determination, however, we are not limited to the reasoning articulated by the district court but may affirm on the basis of "any independently sufficient grounds." Id.
When evaluating the timeliness of a claim under 42 U.S.C. § 1983, courts "should borrow the state statute of limitations for personal injury actions." Owens v. Okure, 488 U.S. 235, 236 (1989). In cases arising in Puerto Rico, we have repeatedly applied Puerto Rico's one-year statute of limitations pertaining to tort actions, P.R. Laws Ann. tit. 31, § 5298. See Ramirez Morales v. Rosa Viera, 815 F.2d 2, 3 (1st Cir. 1987); Altair Corp. v. Pesquera de Busquets, 769 F.2d 30, 31 (1st Cir. 1985). The one-year statute of limitations "begins running one day after the date of accrual, which is the date plaintiff knew or had reason to know of the injury." Benitez-Pons v. Commonwealth of Puerto Rico, 136 F.3d 54, 59 (1st Cir. 1998).
Arroyo-Santiago's claims, save one discussed separately below, accrued in excess of one year prior to the filing of her complaint on July 30, 1997. In the underlying divorce case, judgment was entered in December 1984, more than twelve years prior to the filing of Arroyo-Santiago's complaint. With regard to the financial support proceedings, while it is unclear from the complaint exactly when the alimony was eliminated by judicial decision, Arroyo-Santiago's complaint tells us all that we need to know. The complaint avers that as a result of orders of the Puerto Rico courts, Arroyo-Santiago had received no alimony "for more than 12 months" at the time the complaint was filed, thus placing the complaint, by its own terms, outside the one-year statute of limitations.
Arroyo-Santiago argues that these claims are saved from operation of the statute of limitations by her allegation that a "conspiracy," of which these alleged events were a part, was continuing at the time of her complaint. In support of this contention, Arroyo-Santiago cites to our decision in Velazquez v. Chardon, 736 F.2d 831 (1st Cir. 1984). Velazquez does indeed stand for the proposition that if a complaint alleges an ongoing series of violations, "then the limitations period begins anew with each violation." Id. at 833 (quoting Perez v. Laredo Junior College, 706 F.2d 731, 733-34 (5th Cir. 1983)(footnotes omitted)). However, Velazquez also stated that because each discrete violation is subject to a new application of the statute of limitations, "those violations preceding the filing of the complaint by the full limitations period are foreclosed." Id. Therefore, all claims which accrued more than one year before the filing of the complaint on July 30, 1997 are time-barred. Assuming, dubitante, that Arroyo-Santiago ever had an actionable federal claim, any such claim was extinguished one year after the alleged injurious events.
One claim in the complaint is not susceptible to dismissal on statute of limitations grounds. Arroyo-Santiago alleged that a hearing to divide the dissolved marriage's community property was scheduled for August 7, 1997. Arroyo-Santiago asked the district court to enjoin that hearing from taking place, ostensibly because Judge Pérez-Cruz, while not presiding over the community property proceedings, "maybe" had used his influence with another Judge of the Superior Court of Puerto Rico to Arroyo-Santiago's prejudice. 3 Although this claim was not time-barred, because of the date of the community property hearing (August 7, 1997), the complaint fails to state a claim which is cognizable under federal law. 4
The only accusation against either defendant even arguably applicable to the August 7, 1997 hearing states: "Upon information and belief Judge Pérez-Cruz exercised undue influence upon all personnel and maybe the other Judges of the Superior Court of Ponce with the sole purpose of obtaining many rulings on behalf of José Garc¡a-Vicario." Such speculation falls far short of even a minimally adequate claim: "Pleading conspiracy under sections 1983 & 1985(3) requires at least minimum factual support of the existence of a conspiracy." Francis-Sobel v. Univ. of Maine, 597 F.2d 15, 17 (1st Cir. 1979); see also Slotnick v. Garfinkle, 632 F.2d 163, 166 (1st Cir. 1980) (affirming dismissal because complaint "neither elaborates nor substantiates its bald claims that certain defendants `conspired' with one another"). 5
Even though we give plaintiffs the benefit of the doubt in reviewing a complaint's sufficiency, "we need not credit bald assertions, periphrastic circumlocutions, unsubstantiated Conclusions, or outright vituperation." Correa-Martinez, 903 F.2d at 52. Federal Rule of Civil Procedure 8(a)(2), establishing the requirements for an adequate complaint, "does not entitle a plaintiff to rest on `subjective characterizations' or conclusory descriptions of `a general scenario which could be dominated by unpleaded facts.'" Id. at 52-53 (quoting Dewey v. Univ. of New Hampshire, 694 F.2d 1, 3 (1st Cir. 1982)). Even under the modern "notice pleading" regime, a plaintiff is "required to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 28 n.2 (1st Cir. 1996) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988)).
Because Arroyo-Santiago's complaint about the hearing on August 7, 1997, fails to provide a minimally sufficient factual predicate to support the defendants' liability, the complaint fails to state a claim as a matter of law. 6
1. Section 1983 creates a private right of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States where such deprivation is effected "under color of" state law. 42 U.S.C. § 1983. Section 1985(3) creates a private right of action in any person injured when "two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3).
2. Arroyo-Santiago cites no rule for the proposition that proceedings are supposed to start at 9 AM. Furthermore, while it is unclear in the complaint itself, Arroyo-Santiago's "sworn statement" attached to the complaint makes clear that she received a notice "setting . . . the default trial, for 18 December 1984, at 8:30 AM."
3. In her July 30, 1997 complaint, Arroyo-Santiago requested an injunction enjoining the then-upcoming August 7, 1997 community property hearing. The district court did not dispose of the motion to dismiss the complaint until May 29, 1998, over six months after the hearing allegedly was scheduled to take place. While any claim for injunctive relief with respect to an event which occurred in 1997 is obviously moot, Arroyo-Santiago's complaint requested damages generally with respect to all allegations. We therefore address her August 1997 claim.
4. Because we dismiss the complaint for failure to state a claim upon which relief can be granted, we decline to review the district court's determinations (1) that Judge Pérez-Cruz was protected by judicial immunity and (2) that the complaint failed to allege sufficient state action with respect to the claim against Garcia- Vicario.
5. Section 1985(3) is additionally unavailable to Arroyo-Santiago because her complaint does not allege that defendants conspired against her "because of [her] membership in a class [in which] the criteria defining the class were invidious." Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir. 1996) (quoting Harrison v. Brooks, 519 F.2d 1358, 1359-60 (1st Cir. 1975)). Arroyo-Santiago alternately claims that she suffered discrimination because the Judge was a personal friend of her ex-husband or on account of the Judge's discrimination against "the class of persons involved in divorce proceedings." Neither of these "classes" is a race-based or otherwise invidious classification of which section 1985(3) takes cognizance. See Aulson v. Blanchard, 83 F.3d 1, 3-6 (1st Cir. 1996) (discussing requirement that claims under 42 U.S.C. § 1985(3) must be based on an invidious classification).
6. In the district court, Garc¡a-Vicario's motion to dismiss argued that Arroyo-Santiago's complaint was inadequate because of its reliance on vague and conclusory assertions. In response, Arroyo-Santiago did not amend her complaint (as would have been her right). Instead, she answered this argument by defending the sufficiency of her complaint. "[P]laintiffs elected not to amend as of right before the district court spoke; and thereafter, they filed no motion below for leave to amend." Dartmouth Review v. Dartmouth College, 889 F.2d 13, 22 (1st Cir. 1989). While we could exercise our discretion to allow a motion for leave to amend, we have reserved such relief for "the long-odds exception, not the rule. The touchstone is equitable and case-specific: leave to amend will be granted sparingly and only if Justice requires." Id. at 23 (internal quotation marks and ellipses omitted). We decline to invoke the exception and instead affirm the dismissal.