
    Carmen Rosa OLIVO AYALA, et al., Plaintiffs, v. Carlos LOPEZ FELICIANO, et al., Defendants.
    Civ. No. 88-2076(PG).
    United States District Court, D. Puerto Rico.
    Jan. 2, 1990.
    Lourdes del Carmen Rodríguez, San Juan, P.R., for plaintiffs.
    Luis N. Blanco-Matos and Noel Vera-Ramirez, Federal Litigation Div., Dept, of Justice, San Juan, P.R., and José A. Candelario Lajara, Hato Rey, P.R., for defendants.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This is a civil rights action under § 1983 alleging excessive use of force during an encounter between law enforcement officers and co-plaintiff Reymundo Pedrero Olivo. Jurisdiction is premised on the determination of plaintiffs’ federal constitutional rights underlying the claim, 28 U.S.C. §§ 1331 and 1343, and the doctrine of pendent jurisdiction. Venue is proper under 28 U.S.C. § 1391. The matter is before the Court on defendants’ motion for summary judgment on statute of limitation grounds. No opposition has been filed. None would have proved availing.

The facts of this case can be simply stated. On the night of December 21, 1987, codefendant Juan Ramos Garcia and other agents were patrolling the streets of Mameyal County in the Municipality of Dorado. At about 7:50 p.m., co-plaintiff Reymundo Pedrero Olivo was arrested by the officers for breach of the peace and resistance to his arrest. In the process, it appears, agent Ramos Garcia was excessively forceful in dealing with the arrestee, his conduct resulting in severe injuries to Pedrero Olivo. On December 21, 1988, plaintiffs filed the present civil rights complaint.

The sole issue presented before this Court is thus the threshold question of whether plaintiffs’ suit was timely filed. For the reasons stated below, we hold that it was not, and the instant action is therefore dismissed.

We restate briefly the principles which govern our inquiry. First, it is well settled that when dealing with civil rights actions federal courts are to borrow the state period of limitations which is most analogous to the particular § 1983 claim. Owens v. Okure, — U.S. —, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1983), Rivera Fernández v. Chardón, 648 F.2d 765 (1st Cir.1981). In Wilson v. García, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1984), the Supreme Court held that the most analogous state limitations period will normally be the one reserved for personal torts, as § 1983 claims confer a general remedy for injuries to personal rights. Under the laws of Puerto Rico, the limitations period for tort actions, or “obligations arising from fault or negligence,” is the one year limitations period provided by Article 1868(2) of the Civil Code, P.R. Laws Ann. tit. 31, § 5298(2). De León Otero v. Rubero, 820 F.2d 18 (1st Cir.1987), Diaz Maldonado v. Lacot, 89 J.T.S. 14, 6602 (1989). Hence, we must apply the one year statute of limitations to the facts of this case.

Secondly, we must also recall that in § 1983 cases resort must also be had to the tolling rules provided by the state where the civil rights violation took place. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), Ramírez Morales v. Rosa Viera, 815 F.2d 2 (1st Cir.1987). Pertinent to the case at bar is the fact that the tolling doctrine of Puerto Rico dictates that a year must be understood to be 365 days in length, Secretary of Labor v. Superior Court, 95 P.R.R. 134, 135 (1967), Sánchez v. Cooperativa Azucarera, 66 P.R.R. 330, 333 (1946), and that “[t]he time for the prescription of all kinds of actions ... shall be counted from the day on which they could have been instituted.” P.R. Laws Ann. tit. 31, § 5299. Thus, it is clear that the first day of the limitations period must be counted and that the complaint must be filed before the year expires. See de la Cruz LaChapel v. Chévere Ortiz, 637 F.Supp. 43 (D.P.R.1986), Dennis v. Figueroa, 642 F.Supp. 959 (D.P.R.1986), Ramírez Morales v. Rosa Viera, 632 F.Supp. 491 (D.P.R.1986), affmd. 815 F.2d 2 (1st Cir. 1987).

Finally, we note that the determination of the “day on which [the action] could have been instituted,” on the other hand, is a question of federal, not state law, Rivera Fernandez v. Chardón, 648 F.2d 765 (1st Cir. 1981), and that federal law has established that the time of accrual of a civil rights action is when the aggrieved party knows or has reason to know of the injury which is the basis for his action or when facts supportive of a civil rights action are or should be apparent to a reasonably prudent person similarly situated. Marrapese v. Rhode Island, 749 F.2d 934 (1st Cir. 1984).

As we turn to apply the law to the facts of the case, we realize that we need elaborate on the point but briefly. It cannot be seriously disputed that plaintiffs cause of action accrued on the night of December 21, 1987, when he was presumably subjected to police brutality on defendants’ part. At this time, and assuming his allegations are true, a reasonably prudent person should have realized that he had the makings of a meritorious civil rights case in his hands. The 365-day limitations period thus commenced to run on that date, there being no doubt as to the fact that the first day (the day when the action could have first been instituted), counts towards prescription. A quick check of the calendar would show that 1988 was a leap year, so the 365th day was December 19, 1988. Their complaint was filed on December 21, 1988. The limitations clock had thus ticked for its final time two days before their complaint was filed. Plaintiffs’ causes of action are therefore time-barred.

WHEREFORE, defendants’ motion for summary judgment is hereby GRANTED and the complaint is hereby DISMISSED.

IT IS SO ORDERED. 
      
      . The running of the limitations period, of course, could have been tolled by any of the three ways available under Article 1873 of the Puerto Rico Civil Code, P.R.Laws Ann. tit. 31, § 5303. Plaintiffs, however, have not made a claim as to any tolling acts that might have had this effect so we assume that the limitations period ran uninterrupted.
     
      
      . We note in passing that the day of December 19, 1988, having fallen on a Monday, we face no problem pertaining to the postponement of the last possible day for filing, as would have been the case had it fallen on a weekend day or a holiday.
     
      
      . Defendants devote part of their memorandum of law in support of their motion for summary judgment to discussing alternate grounds for the dismissal of the action against co-defendant Jesús E. Rodríguez Cintron. In view of the fact that we have ruled that plaintiffs' causes of action are time-barred, it is unnecessary to address those arguments in this opinion.
     