Of the Sixth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 09-2614

CARLOS BARROS-VILLAHERMOSA,

Plaintiff, Appellant,

v.

UNITED STATES; UNITED STATES DEPARTMENT OF HOMELAND SECURITY;

UNITED STATES CUSTOMS AND BORDER PROTECTION; MARCELINO BORGES;

MIRELLA COUTO; DENNIS MECCANEGO; JORGE MUÑIZ;

JORGE PAGÁN-ALBINO; MARIA PALMER; REYNALDO SÁNCHEZ-RUÍZ;

ROBERTO VIZCARRONDO,

Defendants, Appellees,

JESÚS M. TORRES-DE LEÓN; JOSÉ MUÑIZ,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Siler and Howard, *

Circuit Judges.

Juan R. Rodríguez, with whom Rodríguez López Law Offices,

P.S.C. was on brief, for appellant.

Ginette L. Milanés, Assistant United States Attorney, with

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate

Division and Thomas F. Klumper, Assistant United States Attorney,

were on brief, for appellees.

April 15, 2011
We recount the facts in the light most favorable to Barros as 1

the party opposing summary judgment. Harriman v. Hancock County,

627 F.3d 22, 25 (1st Cir. 2010).

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HOWARD, Circuit Judge. Carlos Barros-Villahermosa

("Barros") appeals from an order granting summary judgment in favor

of the United States on his malicious prosecution claim brought

under the Federal Tort Claims Act ("FTCA"). We affirm.

I. BACKGROUND1

In 2004, Barros was a U.S. Customs and Border Patrol

officer assigned to Luis Muñoz Marín International Airport in San

Juan, Puerto Rico. One day after work, Barros passed by a local

police vehicle, which appeared to be junked, in the vicinity of the

airport. He entered the vehicle and removed a permit decal that

gave the holder access to secured areas within the airport. He

took the decal home and shredded it, without reporting the incident

to his superiors.

Unbeknownst to Barros, the area was under surveillance by

the Puerto Rico Police Department ("PRPD"). The police arrested

Barros and, in concert with local prosecutors, charged him with

misappropriation under the Puerto Rico Penal Code. The PRPD

notified the Department of Homeland Security ("DHS") of the arrest.

Because Barros was already under federal investigation for employee

misconduct, DHS sent an agent from its Office of Inspector General

-- Reynaldo Sánchez-Ruíz ("Sánchez"), a defendant in this case --

to observe and report on the PRPD's investigation. Sánchez was
The summary judgment record before us does not reveal what 2

Sánchez said to the prosecutor. When asked at oral argument, the

government responded that, at his deposition, Sánchez testified

that he said something like "that was a good witness."

For a general description of this procedure in Puerto Rico, 3

see El Vocero de Puerto Rico (Caribbean Int'l News Corp.) v. Puerto

Rico, 508 U.S. 147, 148 (1993).

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present when the police interviewed Barros, although Sánchez did

not ask any questions. Sánchez was not present, however, when the

prosecutor interviewed Barros later that day.

A preliminary court hearing held in November 2004 ended

in a finding of no probable cause. Sánchez attended the hearing

but remained in the audience gallery and did not participate. The

prosecutor requested a rehearing, which was held two weeks later.

At the rehearing, Sánchez took up position immediately behind the

prosecutor yet still in the audience gallery. After a witness

finished testifying, Sánchez leaned over the bar and whispered into

the prosecutor's ear. The judge told Sánchez to stop talking. 2

That hearing too resulted in a finding of no probable cause, and

the case against Barros was dismissed.3

In 2005, DHS issued a Report of Investigation ("ROI") on

Barros. The record version of the ROI is a two-page excerpt of

what appears to be a six-page document that appended multiple

exhibits. Much of the excerpt is redacted, including the name of
The record does not reflect what action, if any, took place 4

as a result of the ROI.

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the "Reporting Agent." The portions that are not redacted recount

the PRPD's investigation, described above.4

In 2006, Barros initiated the present action against the

United States and others. He asserted numerous state and federal

claims, most of which met their demise below and were not appealed.

The only remaining claim is that the United States, through

Sánchez, maliciously prosecuted Barros. After the government moved

for summary judgment on that claim, the district court referred the

motion to a magistrate judge, who issued a report recommending that

summary judgment be granted in the government's favor. The

district court adopted in full the magistrate judge's report and

recommendation and entered judgment. This appeal followed.

II. DISCUSSION

Our review of the summary judgment grant is de novo.

Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37

(1st Cir. 1993). "To demonstrate the existence of a genuine issue

of material fact, plaintiffs must point to concrete, admissible

evidence." Id. "Mere allegations, or conjecture unsupported in

the record, are insufficient." Id.

Barros brought this claim under the FTCA, so we look to

the law of Puerto Rico for the governing standards. See Gonzalez

Rucci v. U.S. Immigration & Naturalization Serv., 405 F.3d 45, 49
We have described this element as "two separate elements 5

because plaintiffs must show both that the defendant acted with

malice and that he acted without probable cause." Rivera-Marcano,

998 F.2d at 37.

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(1st Cir. 2005) ("Under the FTCA, we look to the 'law of the place'

where the alleged wrongful actions occurred" (quoting Rodriguez v.

United States, 54 F.3d 41, 44 (1st Cir. 1995))). To succeed on a

claim for malicious prosecution in Puerto Rico, the claimant must

prove four elements: "1) that a criminal action was initiated or

instigated by the defendants; 2) that the criminal action

terminated in favor of plaintiff; 3) that defendants acted with

malice and without probable cause; and 4) that plaintiff suffered [5]

damages." Id. (internal brackets omitted). Failure to prove any

element is dispositive. See id. 

We agree with the district court that Barros has failed

to meet his summary judgment burden. To "initiate or instigate" a

criminal action, a defendant must be "actively instrumental in the

initiation of the prosecution through some affirmative action by

way of advice, petition, encouragement or pressure." RiveraMarcano, 998 F.2d at 37 (translating Jiménez v. Sánchez, 76 D.P.R.

370 (1954)). There is no evidence that Sánchez's involvement

satisfies that definition. Rather, the record is quite clear that

the PRPD arrested and then brought charges against Barros in

conjunction with local prosecutors. Sánchez was present at an

interview and attended hearings, but did so as an observer and at
Barros argues, in cursory fashion, that Puerto Rico law 6

requires an adverse presumption against the government for

"willfully suppressing" parts of the ROI. See Texaco Puerto Rico,

Inc. v. Medina, 834 F.2d 242, 244 (1st Cir. 1987) (discussing

Puerto Rico Rule of Evidence 16(5)). We do not reach the argument

because Barros neither adequately developed it on appeal, United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("issues adverted

to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived"), nor objected on that

basis to the magistrate judge's report and recommendation, Sch.

Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir.

2010) ("We have previously held that 'only those issues fairly

raised by the objections to the magistrate's report are subject to

review in the district court and those not preserved by such

objection[s] are precluded on appeal.'" (quoting Keating v. Sec'y

of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988))). 

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the invitation of the PRPD. Barros points to the ROI, but even

were we to assume that Sánchez was the author -- which Barros does

not substantiate -- the ROI could not possibly have contributed to

the decision to prosecute Barros: it was issued more than a year

after the charges against Barros were brought.6

In any event, Barros has not shown that Sánchez acted

with malice. For purposes of malicious prosecution, Puerto Rico

courts equate malice with bad faith. See Raldiris v. Levitt & Sons

of Puerto Rico, Inc., 3 P.R. Offic. Trans. 1087 (1975) ("It is

necessary that there be a malicious imputation, made in bad faith

. . ."); see also Vyas Sangidas v. Holiday Inns, Inc., 660 F. Supp.

666, 668 (D.P.R. 1987) (construing Puerto Rico law). Here, we

discern no evidence that remotely suggests bad faith. Barros

claims that Sánchez should have been disqualified from the

investigation because they knew each other from a previous job.
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But Barros has not established that disqualification was required

under the circumstances, and the existence of a possible recusal

issue is hardly indicative of bad faith. Moreover, at his

deposition, Barros acknowledged that there was no "bad blood"

between them.

Affirmed.