United States Court of Appeals
For the First Circuit
No. 21-1521
ELVIN TORRES-ESTRADA,
Plaintiff, Appellant,
v.
CARLOS CASES, Special Agent in Charge, FBI Puerto Rico Office,
individually and in his official capacity; JOSE GONZALEZ, FBI
Agent, individually and in his official capacity; GUSTAVO
RIVERA, FBI Agent, individually and in his official capacity;
MARIO RENTERIA, FBI Agent, individually and in his official
capacity; AARON GREEN, FBI Agent, individually and in his
official capacity; DEVIN J. KOWALSKI, FBI Agent, individually
and in his official capacity; LUIS ALOYO, Deputy U.S. Marshal,
individually and in his official capacity; UNITED STATES; DOES
1-25, Inclusive,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Silvia Carreño-Coll, U.S. District Judge]
Before
Barron, Chief Judge,
Lipez and Montecalvo, Circuit Judges.
Annaleigh E. Curtis, with whom Thomas G. Saunders, Wilmer
Cutler Pickering Hale and Dorr LLP, Ezekiel E. Cortez, Law Office
of Ezekiel E. Cortez, and James D. Crosby were on brief, for
appellant.
Gerard Sinzdak, Appellate Staff, Civil Division, Department
of Justice, with whom Mark B. Stern, Appellate Staff, Civil
Division, Brian M. Boynton, Principal Deputy Assistant Attorney
General, and W. Stephen Muldrow, United States Attorney, were on
brief, for appellees.
December 6, 2023
MONTECALVO, Circuit Judge. Elvin Torres-Estrada
("Torres-Estrada") brought Bivens and Federal Tort Claims Act
("FTCA") claims against the Federal Bureau of Investigation
("FBI") and several FBI agents alleging violations of his
constitutional and statutory rights. The district court dismissed
his complaint and held that some of his claims were untimely and
that the FTCA's discretionary function exception stripped the
court of jurisdiction to adjudicate his other claims.
Torres-Estrada challenges the dismissal, arguing that his claims
are timely, that the discretionary function exception does not
apply, and that even if the discretionary function exception does
apply, it does not cover the FBI's alleged misconduct.
Based on our precedent, Torres-Estrada is correct that
the district court erred: the discretionary function exception
does not serve as a bar to FTCA tort claims that plausibly allege
constitutional violations. Nor are all of Torres-Estrada's claims
untimely. While not all of his claims survive, we conclude that
at least two of his claims are potentially subject to the
"continuing violation" doctrine and so the district court erred in
dismissing his claims as untimely without first considering the
doctrine's applicability. And because new facts have come to light
throughout the course of this litigation, we grant Torres-Estrada
leave to amend his complaint. Accordingly, we affirm in part,
- 3 -
reverse in part, and remand for further proceedings consistent
with this opinion.
I. Background
In reviewing the dismissal of a complaint, we accept the
well-pleaded facts in the complaint as true and draw all reasonable
inferences in favor of Torres-Estrada. Núñez Colón v. Toledo-
Dávila, 648 F.3d 15, 19 (1st Cir. 2011). Accordingly, we draw the
facts below from Torres-Estrada's complaint.
In February 2013, Lieutenant Osvaldo Albarati, a
correctional officer at the Metropolitan Detention Center ("MDC")
in Guaynabo, Puerto Rico, was murdered. At the time,
Torres-Estrada was detained at the MDC pending prosecution for
drug and money laundering offenses.1 Shortly after the murder,
the FBI began investigating Torres-Estrada as a possible suspect
in the murder.
By January 2015, nine other prisoners had been indicted
on charges relating to Lt. Albarati's murder. One of the indicted
individuals declared that Torres-Estrada was not involved in the
murder. Despite the claims regarding Torres-Estrada's lack of
involvement in Lt. Albarati's murder, the FBI has "insisted the
1In June 2010, Torres-Estrada was arrested for drug and money
laundering offenses and placed in the custody of the United States
Marshals. In February 2015, after pleading guilty, Torres-Estrada
was sentenced to 288 months' imprisonment. Following sentencing,
he was transferred into the custody of the Bureau of Prisons
("BOP"), where he remains.
- 4 -
BOP maintain records containing the false information [that]
link[s] [Torres-Estrada] to the murder."
Torres-Estrada alleges that in both March and June 2013,
the FBI placed informants with him to surreptitiously elicit
incriminating statements about the murder. Then, in June 2014,
two federal employees subjected him to a rectal exam to search for
a hidden cell phone. After finding no cell phone, the officers
conducted several x-ray examinations on Torres-Estrada, which also
yielded no signs of a cell phone.
In 2015, the BOP transferred Torres-Estrada to a
correctional facility in Kentucky, where the FBI placed another
informant with him. In 2016, when Torres-Estrada was transferred
to yet another facility in West Virginia, the FBI once again used
an informant to try and elicit information about the murder.
In May 2017, Torres-Estrada was transferred to another
correctional facility in South Carolina, where he was subjected to
a custodial interrogation without having received Miranda
warnings, despite being represented by counsel. In June 2017,
Torres-Estrada's counsel wrote a letter to the U.S. Attorney's
Office in Puerto Rico complaining about this improper
interrogation. Following the letter, the BOP placed
Torres-Estrada in the "Two Hour Watch," a program designed for
prisoners who are disruptive, pose an escape risk, or pose a threat
to staff or institution security. As part of this program, the
- 5 -
BOP required Torres-Estrada to report to a correctional officer
every two hours, every day, even "when he may be in the midst of
meeting with counsel for a legal consultation."
In addition to the above, beginning in 2015 and
continuing through at least early 2017, Torres-Estrada was
repeatedly and arbitrarily placed in special housing unit
segregation ("SHU"). As part of this segregation, Torres-Estrada
was confined to his cell except for one hour each day when he was
permitted to be outside in a small, isolated gated area. This
isolation occurred "at the request of unknown FBI agents as a
tactic to weaken his psychological state so as to make him more
susceptible to jailhouse informants." During this time, the FBI
repeatedly placed informants near him to try to extract "false
incriminating statements."
To protest the FBI's conduct, Torres-Estrada filed two
administrative claims complaining about the allegedly
unconstitutional conduct. In January 2019, having received no
recourse, Torres-Estrada filed the underlying complaint in this
case in federal court.2 He brought Bivens claims alleging
Torres-Estrada initially filed the complaint in the U.S.
2
District Court for the Southern District of California. The
government moved to transfer venue, and the case was subsequently
transferred to the U.S. District Court for the District of Puerto
Rico.
- 6 -
violations of his constitutional rights,3 see Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and
FTCA claims alleging negligence, intentional infliction of
emotional distress, assault, battery, and false imprisonment. In
the complaint, Torres-Estrada contends that, despite his
innocence, the FBI has continued to maintain records that declare
his involvement in Lt. Albarati's murder. Torres-Estrada alleges
that, as a result of the FBI's actions, he has remained under
investigation and his constitutional rights have been repeatedly
violated.
The district court dismissed all of Torres-Estrada's
claims. The court first held that, due to a failure to exhaust
administrative remedies within two years, any FTCA claim based on
conduct occurring before December 2015 was untimely. Because the
court found that any attempt to remedy the error would be futile,
it also denied Torres-Estrada's request to amend the complaint.
Second, the court found that the FTCA's discretionary function
exception barred the rest of Torres-Estrada's FTCA claims. Third,
the court held that Torres-Estrada's Bivens claims were untimely
because he failed to raise them within the statute of limitations
provided by Puerto Rico law.
Torres-Estrada timely appealed.
Specifically, Torres-Estrada alleges violations of
3 his
First, Fourth, Fifth, Sixth, and Eighth Amendment rights.
- 7 -
II. Discussion
To summarize, in his complaint, Torres-Estrada claims
the FBI denied him his due process rights, his right to counsel,
and "his speech and associational rights" as well as subjected him
to "repeated unreasonable searches" and "cruel and unusual
punishment through several years of long stretches in solitary
confinement." These asserted constitutional violations -- and the
conduct underlying them -- form the basis of his claims under the
FTCA and Bivens.
On appeal, Torres-Estrada challenges the district
court's conclusion that the FTCA's discretionary function
exception covers the FBI's alleged unconstitutional conduct. As
for the timeliness of his claims, he maintains that under the
"continuing violation" doctrine each of his claims is within the
applicable statute of limitations. We take his arguments in turn.
A. Negligence and False Imprisonment FTCA Claims
We begin with the district court's ruling that it lacked
subject-matter jurisdiction over the FTCA claims. We review a
"district court's determination that the discretionary function
exception does or does not apply" de novo. Limone v. United
States, 579 F.3d 79, 101 (1st Cir. 2009). As an initial matter,
we note that the government and Torres-Estrada agree that
Torres-Estrada's negligence claim and false imprisonment claim are
both timely and properly exhausted. As a result, we defer our
- 8 -
discussion of the remaining counts for the following section and
focus first on his negligence and false imprisonment claims.
The FTCA provides a "limited waiver of the federal
government's sovereign immunity with respect to private causes of
action sounding in tort." Fothergill v. United States, 566 F.3d
248, 252 (1st Cir. 2009) (citing Shansky v. United States,
164
F.3d 688, 690 (1st Cir. 1999)). The FTCA's discretionary function
exception, however, dictates that sovereign immunity continues to
apply to claims "based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused."
28 U.S.C.
§ 2680(a). In short, "the discretionary function exception
insulates the Government from liability if the action challenged
in the case involves the permissible exercise of policy judgment."
Berkovitz v. United States,
486 U.S. 531, 537 (1988). "If the
discretionary function exception applies, the [government] is
completely immune from suit, and the claim must be dismissed for
lack of subject[-]matter jurisdiction." Santoni v. Potter,
369
F.3d 594, 602 (1st Cir. 2004) (citing Kelly v. United States,
924
F.2d 355, 360 (1st Cir. 1991)).
But "[i]t is elementary that the discretionary function
exception does not . . . shield conduct that transgresses the
Constitution." Limone, 579 F.3d at 101 (citations omitted). And
- 9 -
the reason for this is simple: "[f]ederal officials do not possess
discretion to violate constitutional rights." Thames Shipyard &
Repair Co. v. United States, 350 F.3d 247, 255 (1st Cir. 2003)
(alteration in original) (quoting Medina v. United States,
259
F.3d 220, 225 (4th Cir. 2001)).
Torres-Estrada's negligence and false imprisonment
claims should not have been dismissed for lack of subject-matter
jurisdiction. When deciding if the discretionary function
exception barred Torres-Estrada's FTCA claims, the district court
failed to consider whether the complaint adequately alleged
unconstitutional conduct. On this issue, our precedent is clear.
If the FBI's conduct violated the Constitution, then the
discretionary function exception does not apply, and sovereign
immunity is waived. Limone, 579 F.3d at 101. As explained in
Limone, "we do not view the FBI's constitutional transgressions as
corresponding to the plaintiffs' causes of action -- after all,
the plaintiffs' claims are not Bivens claims -- but rather, as
negating the discretionary function defense."
579 F.3d at 102
n.13 (citing Bolduc v. United States,
402 F.3d 50, 56 (1st Cir.
2005)). But to be clear, under Limone, even though the cause of
action is tied to tortious conduct, a plaintiff must show how the
alleged conduct violates the Constitution. In short, the required
analysis here is not whether the FBI agents exercised discretion
- 10 -
but whether Torres-Estrada has sufficiently alleged that the FBI's
alleged tortious conduct violated the Constitution.
The government first contends that Torres-Estrada's
"allegations do not demonstrate a violation of a clearly
established constitutional command," which renders them
insufficient. In essence, the government argues that the
principles of qualified immunity should also apply in our FTCA
discretionary function analysis -- a contention the government
claims Limone supports.4 Despite the government's argument, Limone
does not hold that a constitutional violation must be "clearly
established" before it falls outside of the discretionary function
exception. Rather, the Limone court simply pointed out that the
plaintiffs' allegations "stated a clear violation of due process."
579 F.3d at 102. Limone instead stands for the "elementary"
proposition that unconstitutional conduct is "not within the sweep
of the discretionary function exception."
Id. at 101-02. The
single sentence of dicta on which the government relies does not
support its contention that qualified immunity applies in the
discretionary function context.
4 To make this argument, the government points to "the limits
of qualified immunity" that apply in Bivens actions, noting that
if qualified immunity applied in Bivens actions but not in FTCA
claims, it could "permit the United States to be liable for conduct
even when its employees are not."
- 11 -
Indeed, such an application would be novel; we have found
no precedent -- in this Circuit or any other -- to support the
government's contention. In fact, we find the exact opposite in
the Third Circuit, which has explicitly stated that the "'clearly
established' requirement has no place" in the discretionary
function analysis. Xi v. Haugen, 68 F.4th 824, 839 (3d Cir. 2023)
(holding that applying a "clearly established" requirement in the
discretionary function context would be "unmoored from both
precedent and purpose"). We agree with the Third Circuit and
decline to import the "clearly established" requirement into the
discretionary function exception analysis. Thus, to the extent
Torres-Estrada's complaint plausibly alleges conduct that was
unconstitutional, it was improper to dismiss the claims on the
basis of discretionary function immunity without applying Limone.
The government further argues that Torres-Estrada has
failed to allege plausible unconstitutional conduct by the FBI
that would overcome the discretionary function exception's
protection. Specifically, the government contends that the actual
target of Torres-Estrada's complaint is the BOP -- not the FBI --
and the BOP's conduct in this case. The government argues that
even if we accept Torres-Estrada's allegations as true, his
complaint does not allege a plausible constitutional violation by
the FBI or its agents. We may affirm the ruling below on "any
ground manifest in the record," see Walker v. Medeiros, 911 F.3d
- 12 -
629, 634-35 (1st Cir. 2018), and the government is correct to
identify that because Torres-Estrada's tort claims are against the
FBI, Torres-Estrada must demonstrate how the FBI's conduct
violated the Constitution; allegations of the BOP's
unconstitutional conduct will not suffice. But rather than address
these questions now, we remand Torres-Estrada's negligence and
false imprisonment claims to the district court to apply Limone in
the first instance.5 In doing so, we follow the lead of the D.C.
If, on remand, the district court finds, after applying
5
Limone, the constitutional allegations inadequate, the court
should then consider whether the FTCA's law enforcement proviso,
28 U.S.C. § 2680(h), should be read to trump the discretionary
function exception -- an unsettled question in this circuit. The
law enforcement proviso waives sovereign immunity for any claim
arising out of "assault, battery, false imprisonment, false
arrest, abuse of process, or malicious prosecution" based on the
"acts or omissions of investigative or law enforcement officers of
the United States Government."
Id. The Eleventh Circuit has held
that "if a claim is one of those listed in [§ 2680(h)], there is
no need to determine if the acts giving rise to it involve a
discretionary function; sovereign immunity is waived in any
event." Nguyen v. United States,
556 F.3d 1244, 1257 (11th Cir.
2009). The Nguyen court reached this conclusion by noting that
the law enforcement proviso began with "any claim," that the law
enforcement proviso was a more specific and more recently enacted
provision than the discretionary function provision, and that the
congressional purpose behind the proviso demanded such a
conclusion.
Id. Other circuits that have considered the issue,
however, have decided that the two clauses can be harmonized.
Under their reasoning, the law enforcement proviso can be read
together with the discretionary function exception by permitting
suits for any listed "intentional torts . . . [that are] committed
without any exercise of a discretionary function." Gray v. Bell,
712 F.2d 490, 507 (D.C. Cir. 1983); see also Linder v. United
States,
937 F.3d 1087, 1089 (7th Cir. 2019); Campos v. United
States,
888 F.3d 724, 737 (5th Cir. 2018); Medina v. United States,
259 F.3d 220, 226 (4th Cir. 2001); Gasho v. United States,
39 F.3d
1420, 1433 (9th Cir. 1994).
- 13 -
Circuit and ask that the "district court [] determine in the first
instance whether [Torres-Estrada's] complaint plausibly alleges
that the [FBI's] conduct exceeded the scope of its constitutional
authority so as to vitiate discretionary-function immunity."
Loumiet v. United States, 828 F.3d 935, 946 (D.C. Cir. 2016).
B. Remaining FTCA Claims and Bivens Claims
We now turn to Torres-Estrada's remaining FTCA claims
and his Bivens claims. The district court dismissed
Torres-Estrada's pre-December 2015 FTCA claims as time-barred due
to a failure to exhaust administrative remedies within two years.
Holding that amendment would be futile to cure the error, the
district court denied leave to amend the complaint. Then, applying
the Puerto Rico statute of limitations, the district court found
Further, if the district court finds that the constitutional
allegations are inadequate and that the law enforcement proviso
negates the discretionary function protection, the court should
consider whether the FBI's actions are a result of carelessness
and whether such action would fall outside the protection of the
discretionary function exception. However, we express no views on
the additional argument that Torres-Estrada makes in pressing his
negligence claim that the discretionary function exception does
not protect careless conduct and that, therefore, if "the FBI's
maintenance of inaccurate records about [Torres-Estrada] is
thought to be a mere act of carelessness or inattention to the
records rather than an intentional act, the discretionary function
exception does not apply." See Coulthurst v. United States, 214
F.3d 106, 111 (2d Cir. 2000), Rich v. United States,
811 F.3d 140,
147 (4th Cir. 2015), Palay v. United States,
349 F.3d 418, 432
(7th Cir. 2003). But see Willis v. Boyd,
993 F.3d 545, 549 (8th
Cir.), cert. denied sub nom. Willis v. United States,
142 S. Ct.
584 (2021); Gonzalez v. United States,
814 F.3d 1022, 1033 (9th
Cir. 2016); Kiehn v. United States,
984 F.2d 1100, 1105 (10th Cir.
1993).
- 14 -
Torres-Estrada's Bivens claims similarly time-barred because they
all occurred outside of the applicable one-year statute of
limitations.
We review a district court's grant of a motion to dismiss
de novo. Carter's of New Bedford, Inc. v. Nike, Inc., 790 F.3d
289, 291 (1st Cir. 2015). And "[a]lthough we generally review a
district court's denial of a motion to amend for abuse of
discretion, within that standard, pure questions of law are
reviewed de novo." Mulder v. Kohl's Dep't Stores, Inc.,
865 F.3d
17, 21 n.4 (1st Cir. 2017) (cleaned up). Here, the district court
predicated its decision on the motion to amend entirely on a pure
question of law: whether Torres-Estrada's FTCA claims were time-
barred. As a result, our review of the district court's denial of
the motion to amend is de novo. See Skwira v. United States,
344
F.3d 64, 72 (1st Cir. 2003) (noting that whether an FTCA claim is
time-barred is a matter of law); D'Agostino v. ev3, Inc.,
845 F.3d
1, 6 (1st Cir. 2016).
1. Pre-December 2015 FTCA Claims
We begin with Torres-Estrada's remaining FTCA claims
based on conduct occurring before December 2015. We affirm the
district court's dismissal of the assault and battery claims, but
we vacate and remand as to Torres-Estrada's claim of intentional
infliction of emotional distress.
- 15 -
Under the "continuing violation" doctrine, "a plaintiff
may obtain recovery for . . . acts that otherwise would be time-
barred so long as a related act fell within the limitations
period." Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st
Cir. 2009). This doctrine, however, does not apply to "discrete
acts" that occur on specific dates.
Id. Rather, it only covers
acts that take place over a prolonged period and that "by their
very nature require repeated conduct to establish an actionable
claim, such as hostile work environment claims." Ayala v.
Shinseki,
780 F.3d 52, 57 (1st Cir. 2015). If a claim meets that
criterion, then, if there is "an act contributing to the claim
[that] occurs within the filing period, the entire time period of
the [claim] may be considered for the purposes of determining
liability." Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101,
117 (2002); see also Loumiet,
828 F.3d at 948-49 (recognizing and
applying the "continuing violation" doctrine to Bivens and FTCA
claims).
In dismissing the pre-December 2015 allegations,6 the
court focused on Torres-Estrada's allegation of an unnecessary and
invasive June 2014 body search. Unlike a hostile work environment
claim, which is "composed of a series of separate acts," Nat'l
6 The alleged conduct that occurred prior to December 2015 is
as follows: (1) certain uses of jailhouse informants to elicit
potentially incriminating statements and (2) the June 2014 body
search.
- 16 -
R.R. Passenger Corp., 536 U.S. at 117 (quoting 42 U.S.C. § 2000e-
5(e)(1)), a claim for assault or battery is actionable after a
single instance and does not require a pattern of continued conduct
before a claim can be made. Cf. United States v. Kubrick,
444
U.S. 111, 120 (1979) (noting that "the general rule under the
[FTCA] has been that a tort claim accrues at the time of the
plaintiff's injury"). Thus, we conclude that this search would be
a "discrete act" not subject to the "continuing violation"
doctrine. Given that Torres-Estrada concedes that he did not file
an administrative claim until December 2017, the body search falls
outside of the two-year time period to file an administrative
claim. See
28 U.S.C. § 2401(b) (establishing that an FTCA claim
must be brought in writing to the relevant agency within two years
after accrual of the claim). Because Torres-Estrada's assault and
battery claims are premised upon the June 2014 body search, we
affirm the dismissal of those two claims.
But Torres-Estrada's pre-December 2015 allegations
contain more than just the body search in June 2014. He alleges
the repeated use of jailhouse informants from 2013 to 2015 that
caused "the disruption of his right to be free from surreptitious
interrogation." He also alleges that from 2015 to 2017 his SHU
segregation caused his psychological condition to rapidly
deteriorate. These allegations underpin Torres-Estrada's
intentional infliction of emotional distress claim.
- 17 -
Torres-Estrada maintains that through at least December 2017, the
FBI continued to place jailhouse informants near him in an attempt
to elicit incriminating testimony, and, through at least early
2017, he was arbitrarily and repeatedly placed into isolation.
Because Torres-Estrada relies on a "continuing
violation" doctrine for his FTCA claims, we vacate the dismissal
of his intentional infliction of emotional distress claim. We
note that we do so without deciding whether the use of jailhouse
informants constitutes a "continuing violation," leaving the
district court to analyze the issue on remand.7
2. Bivens Claims and Motion to Dismiss
As an initial matter, we take no issue with the
district court's choice of the applicable statute of limitations
or its assessment of when the acts took place. But the district
court erred in failing to address Torres-Estrada's "continuing
violation" theory.8
7 On remand, as with the negligence and false imprisonment
claims, when assessing Torres-Estrada's intentional infliction of
emotional distress claim, the district court should undertake a
Limone analysis to confirm that the conduct underlying that claim
plausibly presents a violation of the Constitution that negates
the discretionary function exception's protection.
8 The government also raises an issue with the service of
process of the individual Bivens defendants and asks us to affirm
on that ground. Because the government repeatedly maintained that
it does not represent the individual defendants, the government is
in no position to raise this issue on behalf of those defendants.
- 18 -
Torres-Estrada argues that his Bivens claims allege a
violation of his constitutional rights, resulting from continuing
courses of conduct. Torres-Estrada points to his allegations of
the FBI's continued interference with the BOP's maintenance of
accurate records and his placement in the "Two Hour Watch" program
as a result of that interference.
These types of allegations map perfectly onto the
"continuing violation" doctrine. Whereas an allegation of a single
instance of interference would likely not be actionable, an
allegation of a continued pattern of interference, which exacted
"excessive and unwarranted punishment" upon Torres-Estrada and
interfered with his ability to consult with counsel, necessarily
requires "repeated conduct to establish an actionable claim."
Ayala, 780 F.3d at 57. So, if Torres-Estrada is bringing claims
that are "composed of a series of separate acts that collectively
constitute one unlawful . . . practice," then as long as one of
those acts falls within the applicable time period, the court may
consider acts that occur outside of it. Nat'l R.R. Passenger
Corp.,
536 U.S. at 117 (cleaned up). While it is possible that on
remand the district court may find that Torres-Estrada's Bivens
allegations were all "discrete acts" and not a part of a continuing
violation, the district court erred by finding Torres-Estrada's
- 19 -
Bivens claims time-barred without considering the "continuing
violation" doctrine.9
3. Leave to Amend
Finally, we address Torres-Estrada's request that this
court allow amendment. Specifically, he requests now, as he did
before the district court, leave to amend his complaint to include
additional acts of assault and battery and new allegations
addressing exhaustion of his FTCA claims. Ordinarily, if we affirm
an order of dismissal, we do not permit amendment. See Rivera-
Gomez v. de Castro, 843 F.2d 631, 635-36 (1st Cir. 1988). But
leave to amend should be "freely give[n]" when "justice so
requires." Fed. R. Civ. P. 15(a)(2). And "an appellate court has
the power, in the interest of justice, to grant leave to amend if
the circumstances warrant." Rivera-Gomez,
843 F.2d at 636.
The circumstances here warrant allowing amendment. As
we have previously noted, a valid reason for leave to amend is
9 On remand, the district court should also ensure that
Torres-Estrada has made a cognizable Bivens claim. To make such
a claim, Torres-Estrada must make clear both what the wrongful
conduct is and how it violates the Constitution. Specifically,
the conduct must violate the Fourth, Fifth, or Eighth Amendment.
See González v. Vélez, 864 F.3d 45, 52-53 (1st Cir. 2017). In its
order, the district court briefly discussed this issue but
ultimately dismissed the Bivens claim for untimeliness.
Further, as with all Bivens cases, the focus must be on the
conduct of the individual government agents and not the government
entity. The district court should consider how this focus may
affect Torres-Estrada's "continuing violation" argument.
- 20 -
"the discovery of new information." Amyndas Pharms., S.A. v.
Zealand Pharma A/S, 48 F.4th 18, 37 (1st Cir. 2022). During this
litigation, Torres-Estrada has uncovered new facts that contribute
to his claims. As one pertinent example, Torres-Estrada now points
to his inmate profile attached to the government's motion to
dismiss or transfer venue. The profile carries a note declaring
that Torres-Estrada was "INVOLVED MURDER BOP LT @ GUA" and was an
"ESCAP RESK." In mid-2019, when Torres-Estrada discovered this
document during this litigation, he requested multiple times that
the BOP remove the note due to its inaccuracy. The BOP denied the
request and stated that "according to the Designations and Sentence
Computation Center (DSCC), you were a Federal Bureau of
Investigations (FBI) suspect in the death of an officer at MDC
Guaynabo." This note, combined with the BOP's denial of Torres-
Estrada's request, could contribute to his claims. And Torres-
Estrada maintains that he now has additional facts regarding his
other claims, including new assault and battery claims. As such,
given the information that has been revealed before fact discovery
has even occurred, this factor weighs heavily in favor of
amendment.
Other factors also weigh in favor of granting leave to
amend. For instance, a court can "consider whether a proposed
amendment is a first attempt," as it would be here. Amyndas
Pharms., S.A., 48 F.4th at 38. And at no point has the government
- 21 -
opposed Torres-Estrada's requests for leave to amend. Notably, in
its reply in support of the first motion to dismiss, the government
expressly stated that it did "not oppose leave to file an amended
complaint." In addition, given the information asymmetry here --
where the government maintains the majority of the information
that may come out in this litigation -- we see no reason why
granting leave to amend would unfairly prejudice the government.
See Villanueva v. United States, 662 F.3d 124, 127 (1st Cir. 2011)
(affirming a denial of a motion to amend in part because it would
be "unduly prejudicial to the United States").
Thus, we grant Torres-Estrada leave to amend on the
grounds he requested.10
III. Conclusion
For the foregoing reasons, we affirm the district
court's dismissal in part, reverse in part, and grant
Torres-Estrada leave to amend his complaint. We remand for further
proceedings consistent with this opinion.
10This determination in no way prevents Torres-Estrada from
otherwise seeking leave to amend pursuant to Federal Rule of Civil
Procedure 15.
- 22 -
