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,

(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,

(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,

(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,

(1st Cir. 2009) (citing Shansky v. United States,

(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."

(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,

(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,

(1st Cir. 2004) (citing Kelly v. United States,

(1st Cir. 1991)).

But "[i]t is elementary that the discretionary function

exception does not . . . shield conduct that transgresses the

Constitution." Limone,

(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,

(1st Cir. 2003)

(alteration in original) (quoting Medina v. United States,

(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,

. 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."

n.13 (citing Bolduc v. United States,

(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."

. Limone instead stands for the "elementary"

proposition that unconstitutional conduct is "not within the sweep

of the discretionary function exception."

. 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,

(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,

(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."

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,

(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.

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,

(D.C. Cir. 1983); see also Linder v. United States,

(7th Cir. 2019); Campos v. United States,

(5th Cir. 2018); Medina v. United States,

(4th Cir. 2001); Gasho v. United States,

(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,

(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,

(2d Cir. 2000), Rich v. United States,

(4th Cir. 2015), Palay v. United States,

(7th Cir. 2003). But see Willis v. Boyd,

(8th Cir.), cert. denied sub nom. Willis v. United States,

(2021); Gonzalez v. United States,

(9th Cir. 2016); Kiehn v. United States,

(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.,

(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.,

, 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,

(1st Cir. 2003) (noting that whether an FTCA claim is

time-barred is a matter of law); D'Agostino v. ev3, Inc.,

(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.,

(1st

Cir. 2009). This doctrine, however, does not apply to "discrete

acts" that occur on specific dates.

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,

(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,

(2002); see also Loumiet,

(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.,

(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,

(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

(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,

. 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.,

(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,

(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,

.

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,

(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,

(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.,

. 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,

(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 -