Not For Pub lication in West' s Fed eral Re por ter



# U nit ed Sta tes C ou rt o f A pp eal s

For t h e Firs t C ircu it

No. 09-2136

JOSÉ E. NATAL-ROSARIO; KATHERINE M. ÁLVAREZ; CONJUGAL PARTNERSHIP NATAL-ÁLVAREZ, Plaintiffs, Appellants,

v . JANE ERICKSON; JOSÉ E. CALDERO-LÓPEZ; MIGUEL MARRERO; IVÁN LÓPEZ; ISMAEL MORALES; MERCEDES TORRES-RODRÍGUEZ; CARLOS NAZARIO, Defendants, Appellees, PUERTO RICO POLICE DEPARTMENT; COMMONWEALTH OF PUERTO RICO, Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jay A. García-Gregory, U.S. District Judge]

Before Torruella, Lipez, and Thompson,

Circuit Judges.
Nicolás Nogueras-Cartagena, on brief for appellants. Rosa Elena Pérez-Agosto, Assistant Solicitor General, Irene S. Soroeta-Kodesh, Solicitor General, Leticia M. Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-A n a dón, Deputy Solicitor General, on brief for app e l lees Caldero-López and Nazario. Thomas F. Klumper, Assistant U n i ted States Attorney, RosaEmilia Rodríguez-Vélez, United States Attorney, and Nelson PérezSosa, Assistant United States Attorney, Chief, Appellate Division, on brief for appellees Erickson, Marrero, and López.

January 31, 2011-2- Per Curiam. Plaintiff José E. Natal-Rosari o ( "Natal") appeals the district court's dismissal, under Rule 12(b)(6), of his claims against the defendants, Federal Bureau of I n v e stigation ("FBI") agents and Puerto Rico Police Department ("PRPD") officers. Natal alleges that the defendants (1) violated his Fourth Amendment rights by conducting an illegal search and se i z u r e and (2) infringed upon his Fifth and Fourteenth Amendment rights to substantive and procedural due process.

Natal's Fourth Amendment argument has two components. First, Natal contends that when one FBI agent questioned him about personal matters that were unrelated to the corruption charge about which he had agreed to be questioned, the agent was conducting an illegal search of Natal's private affairs. This claim is waived because it was not raised below. See, e.g., Martex Farms, S.E. v. EPA, 559 F.3d 29, 33 (1st Cir. 2009).

Second, Natal argues that he was subjected to an illegal seizure because he felt compelled to agree to undergo a polygraph

ex a m i n a t i o n a n d , o n c e s e a t e d f o r t h e e x a m , f e l t h e w as not at liberty to leave. Natal contends that he could not terminate the interrogation or the encounter because he felt he needed to clear his name, both to protect his reputation in general and to retain his p o s i t i o n a s a d e p u t i z e d f e d e r a l a g e n t . W e a g r e e w ith the district court that Natal's complaint cannot survive a Rule 12(b)(6) motion under the standard articulated in Ashcroft v.-3-

Iqbal, 129 S. Ct. 1937, 1949-50 (2009). "If an officer, by means of show of authority, even briefly restrains the liberty of a citizen, we may conclude that a seizure has occurred," so long as we are "able to conclude that coercion, not voluntary compliance,
most accurately describes the encounter." United States v. Smith, 423 F.3d 25 , 28 (1st Cir. 2005). The facts pled here do not "plausibly suggest an entitlement to relief," Iqbal, 129 S. Ct. at 1951, given this st a n dard. Here, even assuming that Natal's complaint allowed u s to infer that he felt it was necessary to undergo the polygraph exam and answer the FBI agent's questions in order to maintain his position, we could not conclude that these facts plausibly suggest that he was a v i c t im of coercion. See Fournier v. Reardon, 160 F.3d 754, 757 (1st Cir. 1998) (concluding, where plaintiff was handcuffed and put under "house arrest" as punishment during police training course, that even though plaintiff might have suffered "negative consequence s f o r his continued employment" if he had n o t s u bmitted to "house arrest," the punishment did not constitute a seizure because a r e a s o n able observer would conclude that plaintiff was free to end it).

Fina l l y , b e c a u s e N a t a l o n l y m e n t i o n s h i s F i f t h and Fourteenth Amendment substantive and procedural due process claims in a cursory manner on appeal, these arguments are deemed waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).-4- For the reasons stated, we affirm the d i s t rict court's dismissal of Natal's claims.

Affirmed.