USCA1 Opinion

May 29, 1992

____________________

No. 91-2062
ANGEL SIERRA-SERPA,
Plaintiff, Appellant,
v.
MANUEL MARTINEZ, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Coffin and Campbell, Senior Circuit Judges.
_____________________
____________________
Carlos V. Garcia Gutierez with whom Guillermo J. Ramos Luina
_________________________
________________________
on brief for appellant.
Carlos Lugo Fiol, Assistant Solicitor General, Department
__________________

Justice, with whom Reina Colon De Rodriguez, Acting Solicitor Gener

________________________
was on brief for appellees.
____________________
____________________

____________________
CERTIFICATION TO THE SUPREME COURT OF PUERTO RICO
____________________

CAMPBELL, Senior Circuit Judge.

____________________
this

appeal depends on a

has not been

Puerto

question of Puerto

Rico law which

specifically addressed by the Supreme

Rico and

the decision

public policy implications.

certify

The resolution of

the question

to the

of which

may have

Court of
important

Therefore, on our own motion, we

Supreme Court

pursuant to its Rule 27, 4 L.P.R.A. App. I-A.

of Puerto

Rico

I.
I.

Background
Background
__________
Plaintiff

this

Angel

action under 42 U.S.C.

court,

alleging

arising

out

sample.

At the time of

of

prison

the Puerto

("Sierra")

1983 in

violations

sentence of a Puerto

12,

Sierra-Serpa

of

the

the federal district

federal

officials' handling

Constitution
of

his

urine

the incident, Sierra was serving the

Rico court at a facility

Rico Administration

in

reclassification

transfer

to

different

of

The positive test

Sierra's

facility

On January

a urine sample which

positive for marijuana.

resulted

controlled by

of Corrections.

1988, Sierra gave prison officials

allegedly tested

brought

and

custody status,

loss

of

furlough

privileges.
Sierra claimed that he
that

prison officials

had

had not used marijuana, and

improperly failed

to label

his

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urine

sample

Acting through
and, on

and refused
counsel,

to let

him give

Sierra requested

February 11, 1988,

he filed

another sample.
a second

both a "motion"

testing
and a

"grievance"

with

administrative
1988,

complaints were

Sierra's

relief

in

prison officials.

counsel

rejected and,

filed a

the Superior

These and

Court

complaint
of Puerto

subsequent

on

March 30,

for

injunctive

Rico.

Following

several legal battles at both the administrative and judicial

levels,

the

"privileges"

Superior Court

ordered

be

Certiorari

restored.

Supreme Court of Puerto

Rico.

that

all of

was

Sierra's

denied by

the

Nevertheless, Sierra alleges,

his furloughs were not restored.

Sierra was
1989.

He

released from

brought

September 11, 1990

the

in the

the District of Puerto

present

Corrections

should have

order.
action

The
was

limitations for tort

implemented

Court for
ruled that

the Administration
the

Superior

held, therefore,

Puerto

Rico's

one year

The Issue
The Issue
_________

-3-

of

Court's

that Sierra's
statute

actions and granted defendants'

to dismiss.
II.
II.

on

1983 accrued, at the latest,

date by which

district court
barred by

complaint

The district court

Sierra's cause of action under

1989, the

federal

September 12,

United States District

Rico.

on April 4,

prison on

of

motion

The
statute of
Civil
the

parties

agree

limitations for

Code (31 L.P.R.A.

time

of Sierra's

incarceration

one

See art.
___

year
1868,

The question is whether

counts in

determining

This question, in turn, depends

the portion of Article

Civil Procedure of

Puerto Rico's

torts governs.
5298(2)).

whether a year has run.

whether

that

40 of Puerto

on

Rico's Code of

1933, excluding time spent in prison from

the limitations period, was implicitly repealed by the Puerto

__________
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.

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

____________________________________
in execution under the sentence of a
_________________________________________
criminal court for a term less than for
_________________________________________
life; or,
____

It

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

-4-

time

barred.

statute,
implicitly

The

question,

therefore,

is

whether

the

insofar as it may apply in cases like Sierra's, was

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-

____________________
86-608,

____________

slip op. at 2 (Supreme Court of Puerto Rico, January

23, 1989) (certified English translation);

rights

included

. . . marital

"guardianship

and

89 JTS 12.
tutorship

Those
rights,

authority, . . . [and] the right to administer

property. . . ."
addition, both

Id. slip
___

op. at 3 (citation omitted).

parties apparently

agree

that civil

In

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

__
subjecting certain convicts to
rights.
Article

See art. 20, Penal

___
20 was

enacted,

the suspension of their civil

Code, 1902.

itself stricken,

In 1974, however,

so that

no

convicts were

-5-

thereafter
rights.

See
___

subjected

to any

art. 39-49,

loss

or

suspension of

Penal Code, 1974

civil

(33 L.P.R.A.

3201-3212);

Rodr guez Candelario,

_____________________

question is thus

whether the

deemed implicitly to
__________
although the

slip

op.

at

repeal of Article

have repealed section 3

latter, unlike Article 20,

5.

The

20 must

be

of Article 40,

was never expressly

_________

stricken or amended by the Puerto Rican legislature.

Under Puerto Rico law,
repealed

when

"new

law

a statute may be implicitly

contains

provision[s]

either

contrary to or irreconcilable with those

of the former law."

Art.

In

6, Civil Code

(31 L.P.R.A.

whether the 1974 Penal Code,

is

"contrary" to

Procedure, one
provision

6).

omitting the former Article 20,

Article 40(3)

of the

1933 Code

must determine the purpose

in Article

order to decide

40.

Sierra

of Civil

of the challenged

contends that,

although

Article 40(3) may have some relationship to the suspension of

civil

rights,

its

main

practical difficulties
says, the elimination
perfectly

purpose

is

to

accommodate

of litigating from prison.

of the suspension

consistent with

Thus, he

of civil rights

the retention

the

of Article

is

40(3).

Although a prisoner is no longer legally forbidden to sue, it

is

nevertheless

important that

the limitations

begin to run against him until he is released,

he

has

greater

access

to

counsel

necessary, in practice, to file suit.

-6-

and

period not

at which time

other

resources

Sierra also points

to

anyone "[i]mprisoned

on

out that Article 40(3)

a criminal

applies

charge," which,

says, includes misdemeanants and pretrial detainees.

20's suspension
only

to

of civil rights, on the

those

sentenced

to

he

Article

other hand, applied

"imprisonment

in

penitentiary," which did not include such parties.

____________

the

That the

two statutes apply to different classes of people underscores

Sierra's argument that the legislative
40(3) goes
sue

was

beyond protecting
suspended.

suspension

those whose legal

Even when

existed, certain incarcerated

policy behind Article

suspension of

capacity to
civil rights

prisoners not subject

misdemeanants and

to such

pretrial detainees

were

able to take advantage of Article 40(3).

Defendants, represented by the Solicitor General of
Puerto
They

Rico, argue for a narrower

claim

that the

protect those who lack

reading of Article 40(3).

overall purpose

of

Article 40

the legal capacity to sue

by tolling

the limitations period until they acquire that capacity

release

from

prison,

attainment

of majority,

is to

etc.

by
See
___

M rquez v. Superior Court, 85 P.R.R. 536, 539 (1962) (purpose

_______
of

______________

Article 40 "is to

persons

until

such

protect the interests

time

as

they

acquire

of the disabled
the

necessary
_________

juridical capacity to assert their rights") (emphasis added).

_________________________________________
Thus, because

convicts' legal capacity

to sue is

no longer

-7-

suspended during their incarceration,

there is no longer any

need for section 3 of Article 40.

Responding

to

Sierra's

misdemeanants and pretrial

concedes that,
some

as to

argument with

detainees, the Solicitor

such parties,

Article 40(3)

purpose other than protecting those

capacity

to sue.

However,

different conclusion from

that Article
pretrial

regard

the Solicitor

to

General
may have

who lack the legal

General

this than does Sierra,

draws a

contending

40(3) remains in effect as to misdemeanants and

detainees but

anyone sentenced

has been

to imprisonment

implicitly repealed
in the penitentiary.

as to
The

Solicitor

General

significantly

claims

affect

that

the

this

limitation

misdemeanants and pretrial detainees

short

time

practical
not

in

prison.

the incarceration

imprisonment in the

of

would

not

actions,

as

spend only a relatively

Conversely,

problems would result

run during

position

he

says,

numerous

if limitations

periods did

of convicts

sentenced to

penitentiary, as such

incarceration can

last a very long time.

We

are unable to

parties' arguments in
Puerto Rico.

find a conclusive

the decisions of the

answer to the

Supreme Court of

To be sure, the Court has held that one statute

was implicitly repealed by the elimination of the vestiges of

interdiction.
provision

In Rodr guez Candelario, the Court held that a

____________________

in the

Civil Code

establishing as

ground for

-8-

divorce "`[c]onviction of
involve the
invoked.

loss

of

[a spouse] of

civil

rights'"

a felony which
could

Rodr guez Candelario, slip op. at

_____________________

no

longer

may
be

2 (quoting art.

96, Civil Code (31 L.P.R.A.

"[o]nce

the external

grounds here
fiction

structure which

in controversy

of law,

Code."

321 (2))).

give it

The Court held that

supports

crumbles, we cannot,

an independent

say

Rodr guez
Candelario
______________________
repealed

by

the

that it

necessarily

the Civil

follows

from

that

Article

40(3)

was

repeal of

Article

20.

The statute

Rodr guez Candelario explicitly referred

____________________

implicitly

to a "felony

in

which

involve the loss of civil rights," but, after 1974, such

felonies

no longer existed.

case, however,
has

life in

through a

Rodr guez Candelario, slip op. at 6.

____________________
We cannot

may

the divorce

advanced

Article
of any

The statutes at

are not so obviously

a

perfectly

logical

issue in this

irreconcilable.
rationale

Sierra

under

which

40(3) may continue to make sense even in the absence

suspension of

a convict's

civil

rights.

Although

M rquez, supra, casts some doubt on Sierra's argument, we are

_______ _____
reluctant to hold
there

is a

existence.

that an implicit repeal has

plausible argument
See Campis
___ ______

for the

statute's continued

v. People, 67 P.R.R. 366,

______

("[i]mplied repeals are not favored

that different

occurred when

by the law").

classes of prisoners are

-9-

369 (1947)
Moreover,

affected by Article

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
this

question, and

this question

because of

to litigation in

to Puerto Rican law on

the potential
Puerto Rico, we

following to the Supreme Court of Puerto Rico:

importance of
certify the

-10-

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

Court of Puerto Rico

Rico law which the
response

or

welcome the

advice of

the Supreme

on any other relevant aspect

of Puerto

Court believes would give context

aid in

the

proper

resolution of

to its

the

issues

bearing on the timeliness of Mr. Sierra-Serpa's action.

Pending
Supreme

Court

response

of Puerto

jurisdiction over

to

the

Rico,

we

this appeal.

The

above question
shall retain
Clerk

by

the

appellate

is directed

to

provide

the

copies of the

Supreme Court

of

Puerto

Rico with

complaint, the opinion of the

certified

district court,

and the parties' briefs in this court.

So ordered.
__________
United States Court of Appeals
for the First Circuit
By:
__________________________
Honorable Levin H. Campbell
Senior Circuit Judge

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