Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 03-1113

NICOLAS NOGUERAS-CARTAGENA, ETC., ET AL.,

Plaintiffs, Appellants,

v.

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

 Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Armando Porrata-Doria Harding, with whom Nicolás Nogueras, Jr.

was on brief, for appellants.

Matthew L. Zabel, with whom Peter D. Keisler, Acting Assistant

Attorney General, and Phyllis J. Pyles, Assistant Director, Torts

Branch, Civil Division, were on brief, for the United States.

Charles A. De Monaco, with whom Kimberly L. Haddox and Dickie,

McCamey & Chilcote, P.C. were on brief for appellees Gil-Bonar and

Vega-Pacheco.

Cary M. Feldman, with whom Armelle N. VanDorp and Feldesman

Tucker Leifer Fidell were on brief, for appellee Johnson.

September 26, 2003
1The prosecutors (Guillermo Gil-Bonar and Jorge E. VegaPacheco) and the FBI agent (John D. Johnson) are parties to this

appeal. Nogueras has, however, abandoned his claims against the

IRS agent (José E. González).

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Per Curiam. The case underlying this appeal arose in the

wake of the failed prosecution of Nicolás Nogueras-Cartagena

(Nogueras), a prominent politician who had been indicted on charges

relating to tax fraud and violations of the Ethics in Government

Act. Following the dismissal of the criminal case, Nogueras sought

to recover money damages against the federal government, the

prosecutors, and the two federal agents who had spearheaded the

investigation. On January 4, 2000, Nogueras filed an

administrative claim with the Internal Revenue Service (IRS). On

June 21, 2000, he moved forward on that claim, suing the United

States and alleging, inter alia, false arrest and malicious

prosecution under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§

1346(b), 2671-2680. In the same action, he also sued four

individual federal officers (two prosecutors, an FBI agent, and an

IRS agent),1 alleging constitutional violations under the doctrine

of Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971).

The United States moved for dismissal of all claims

against it. See Fed. R. Civ. P. 12(b)(1), 12(b)(6). A magistrate

judge recommended the dismissal of most of the claims, Nogueras v.

United States, Civ. No. 00-1778 (D.P.R. Sept. 10, 2001), and the
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district court adopted that recommendation, Nogueras v. United

States, 172 F. Supp. 2d 296 (D.P.R. 2001). Nogueras then submitted

a further amended complaint. In due course, a second magistrate

judge, responding to a new round of motions, recommended dismissal

both of the remaining claims against the government and of the

claims asserted against the individual defendants. Nogueras v.

United States, Civ. No. 00-1778 (D.P.R. Sept. 18, 2002). The

district court adopted the magistrate judge's report and

recommendation and dismissed the action. Nogueras v. United

States, Civ. No. 00-1778 (D.P.R. Nov. 27, 2002). This appeal

ensued.

We need not tarry. We have carefully perused the record

and find no reason to disturb the district court's rulings. And

because this is a situation in which three judicial officers (two

magistrate judges and a district judge) have analyzed Nogueras's

arguments and written comprehensive, well-reasoned decisions, we

are hesitant to wax longiloquent simply to hear our own words

resonate. See In re San Juan Dupont Plaza Hotel Fire Litig., 989

F.2d 36, 38 (1st Cir. 1993) (taking a similar view). Consequently,

we affirm substantially on the basis of the lower courts'

rescripts, adding only a few brief comments.

First: The FTCA claims are completely barred because

Nogueras failed to comply with the statutory requirements for

administrative exhaustion. An action brought under the FTCA must
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be presented to the appropriate federal agency (here, the IRS) in

the first instance. See 28 U.S.C. § 2675(a). The claimant then

must await a final disposition from that agency (or, in lieu

thereof, the passage of six months without final agency action).

Id. Only then may the claimant sue in federal court. Id.

Nogueras did not abide by this timetable, but, rather,

sued in the absence of final agency action and in less than six

months after he had filed his administrative claim with the IRS.

That failure creates an incurable jurisdictional defect. See

McNeil v. United States, 508 U.S. 106, 113 (1993); Gonzalez v.

United States, 284 F.3d 281, 288 (1st Cir. 2002); Attallah v.

United States, 955 F.2d 776, 779 (1st Cir. 1991).

Second: The Bivens claims against the individual

defendants are forfeit because, despite clear and repeated

direction from the district court, Nogueras failed to make focused,

targeted objections to the second magistrate judge's report and

recommendation. Failure to identify the particular portions of the

report and recommendation to which objection is being made and to

specify the basis for each such objection precludes appellate

review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Henley

Drilling Co. v. McGee, 36 F.3d 143, 150 (1st Cir. 1994); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); see also

Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C).
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Third: Even had the claims against the individual

defendants not been forfeited, we would uphold the district court's

dismissal of those claims on the merits. As to the prosecutors,

the record reflects that the actions of which Nogueras complains

were, without exception, done in the officials' capacity as

prosecutors. Consequently, those actions are shielded by the

absolute immunity that attaches to exercises of prosecutorial

discretion. Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Reid v.

State of N.H., 56 F.3d 332, 337 (1st Cir. 1995). The subjective

intent of the prosecutors is irrelevant, especially in view of the

fact that, here, the indictment provides irrefutable evidence of

the existence of probable cause. See Forrester v. White, 484 U.S.

219, 224 (1988).

As to the FBI agent (Johnson), the district court

dismissed the Bivens claims based on a finding of qualified

immunity. With one possible exception, that decision appears to be

unimpugnable. See Saucier v. Katz, 533 U.S. 194, 202 (2001);

Malley v. Briggs, 475 U.S. 335, 341 (1986). The one exception

relates to malicious prosecution. We must accept as true

Nogueras's allegations and draw all reasonable inferences in his

favor. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996)

(setting forth applicable standard on motions to dismiss).

Nogueras's allegations are pointed and, following the standard

praxis, dismissing the claim of malicious prosecution under the
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doctrine of qualified immunity might be problematic. See generally

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

(1st Cir. 1993) (describing the elements of such a claim under

Puerto Rico law).

We need not probe this point too deeply, however, as we

are free to uphold the ruling below on any independent ground made

manifest by the record. See Gannett v. Carp (In re Carp), 340 F.3d

15, 22 (1st Cir. 2003); Houlton Citizens' Coalition v. Town of

Houlton, 175 F.3d 178, 184 (1st Cir. 1999). We affirm here

because, insofar as the malicious prosecution claim is concerned,

Johnson's actions were shielded by absolute prosecutorial immunity.

The existence of absolute prosecutorial immunity is a

matter of function; it depends not on the title or position of the

official involved, but, rather, on the specific conduct in

question. See Briscoe v. LaHue, 460 U.S. 325, 342 (1983). In this

instance, the challenged conduct, as described in Nogueras's

pleadings, was intimately associated with the judicial phase of the

criminal process. It was, therefore, essentially prosecutorial in

nature. See id. at 336. Hence, immunity attaches.

We need go no further. Concluding, as we do, that the

district court correctly dismissed each and all of Nogueras's

claims, we summarily reject his appeal.

Affirmed.