Hightower v. Vose

Opinion

USCA1 Opinion

September 12, 1996      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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No. 95-2296



                              CHRISTOPHER J. HIGHTOWER,



                                Plaintiff, Appellant,



                                          v.



                             GEORGE A. VOSE, JR., ET AL.,



                                Defendants, Appellees.



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APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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                                 ____________________



            Christopher J. Hightower on brief pro se.
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            Michael B.  Grant, Senior Legal  Counsel, Rhode Island  Department
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        of  Corrections,  on Memorandum  in  Support  of  Motion  for  Summary

        Disposition Under Rule 27.1 for appellees.


____________________


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Per Curiam.   Christopher  Hightower appeals pro  se the
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            dismissal of his  civil rights complaint pursuant to  Fed. R.



            Civ.  P. 12(b)(6).  For  the following reasons,  we affirm in



            part, vacate in part, and remand for further proceedings.1
                                                                     1



                 On March 28, 1994, Hightower  filed a complaint under 42



            U.S.C.    1983 against various Rhode  Island prison officials



            based on events which  allegedly occurred while Hightower was



            a  pretrial  detainee.    Stripped  to  its  essentials,  the



            complaint  alleges  that  correctional officers  Gilbert  and



            Berry conspired to falsely charge Hightower with swearing and



            threatening; Officer Gilbert later admitted at a disciplinary



            hearing that  Hightower did  not swear  and that  the alleged



            threat  was a statement by Hightower that he intended to file



                                
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               1Although appellees  have not raised the  issue of waiver,
               1

            we  note that the instant  case was originally  referred to a

            magistrate judge for a recommended disposition pursuant to 28

            U.S.C.   636(b)(1)(B).   The magistrate's report  recommended

            dismissal, Hightower filed no  objection to the  magistrate's

            report,  and  the  district  judge  adopted  the  recommended

            decision  on the ground  that "no  objection has  been timely

            filed and the time for objecting  has expired."  As a general

            rule,  a  litigant  in  this  circuit  waives  the  right  to

            appellate  review  of  a  district  court  order  adopting  a

            magistrate's recommendation if  the litigant fails to  object

            to the  proposed decision before  the district  court.   See,
                                                                     ___

            e.g., Henley Drilling  Co. v.  McGee, 36 F.3d  143, 150-51  &
            ____  ____________________     _____

            n.19 (1st Cir.  1994); Park  Motor Mart, Inc.  v. Ford  Motor
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            Co., 616 F.2d 603, 605 (1st Cir. 1980).   However, we decline
            ___

            to apply the waiver  rule to a  pro se litigant's failure  to
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            object where,  as here, appellees have not  argued waiver and

            the  magistrate's report  does  not warn  the litigant  "that

            failure to file within  the time allowed waives the  right to

            appeal  the  district  court's  order."    United  States  v.
                                                       ______________

            Valencia-Copete, 792 F.2d 4, 6-7 (1st Cir. 1986) (per curiam)
            _______________

            (mandating  such notice  in a  magistrate's report  where the

            litigant is pro se).  
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a  grievance; the  disciplinary board  found Hightower  to be



            guilty  of threatening and imposed a term of segregation; and



            the  guilty finding  was  affirmed on  administrative appeal.



            The "false" charges were made and the discipline was imposed,



            the complaint  alleges, in retaliation for Hightower's filing



            a grievance against Gilbert.  The complaint also alleges that



            the disciplinary board excluded evidence regarding the nature



            of  the "threat" in its written report, and that the evidence



            in the disciplinary record does not support a guilty finding.



            Finally,   the  complaint  alleges  that  Hightower  suffered



            various indignities during segregation--including  the denial



            of a  shower for eight  days and having  unknown correctional



            officers soil  his court clothing--and that  prison officials



            did not immediately  return him to the  general population at



            the completion of his disciplinary term.  



                 Based on  these facts,  Hightower alleged the  denial of



            his  right   under  the  First  Amendment   to  petition  the



            government  for the redress of grievances.  He also alleged a



            denial  of  both  substantive  and  procedural  due  process.



            Finally,  Hightower invoked the  supplemental jurisdiction of



            the district  court and  alleged various violations  of state



            law.



                 To  the  extent that  Hightower  complains  that he  was



            punished for expressing an intent to file a  grievance--or in



            the alternative, that he was subjected to "false charges" and


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discipline  in retaliation  for doing  so--he states  a claim



            under the First  Amendment.2  See, e.g., Sprouse  v. Babcock,
                                       2  ___  ____  _______     _______



            870 F.2d 450, 452 (8th Cir. 1989) (recognizing that the First



            Amendment  right to  petition the  government for  redress of



            grievances   includes   redress   under  established   prison



            grievance procedures); Franco v.  Kelly, 854 F.2d 584, 589-90
                                   ______     _____



            (2d Cir. 1988) (observing  that "intentional obstruction of a



            prisoner's right to seek  redress of grievances" is precisely



            the sort of oppression that   1983 is intended to remedy).  



                 Hightower's  claims  that the  disciplinary  hearing was



            constitutionally deficient and that he was denied substantive



            due process  are closely intertwined  with his claim  that he



            was  punished for  constitutionally protected  activity.   We



            need not definitively resolve  at this juncture the viability



            of these claims.3  Since Hightower may be able to show injury
                            3



            under the First  Amendment, it may be unnecessary to consider



            claims arising  out of other constitutional  provisions.  Cf.
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               2Contrary to appellees' suggestion, claims  asserted under
               2

            the First Amendment survive Sandin v. Connor, 115 S. Ct. 2293
                                        ______    ______

            (1995).   See  Sandin, 115  S. Ct.  at 2302 n.11;  Cornell v.
                      ___  ______                              _______

            Woods,  69  F.3d 1383,  1387 n.4  (8th  Cir. 1995);  Pratt v.
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            Rowland,  65  F.3d 802,  806-07  (9th Cir.  1995);  Boomer v.
            _______                                             ______

            Irvin, 919 F. Supp. 122, 126 (W.D.N.Y. 1995).
            _____



               3We note,  however, that the Supreme  Court's rationale in
               3

            Sandin does  not apply  to pretrial  detainees,  who must  be
            ______

            afforded a  due process hearing  before being punished.   See
                                                                      ___

            Mitchell  v.  Dupnik, 75  F.3d 517,  523-25 (9th  Cir. 1996);
            ________      ______

            Whitford  v. Boglino, 63 F.3d  527, 531 n.4  (7th Cir. 1995);
            ________     _______

            Poole  v. Jefferson County Sheriff's Dep't, 921 F. Supp. 431,
            _____     ________________________________

            433-34 (E.D. Tex. 1996).



                                         -4-



Franco, 854 F.2d at  590 n.3; Burton v. Livingston,  791 F.2d
            ______                        ______    __________



            97, 101 n.2 (8th Cir.  1986).  If Hightower fails to  prove a



            First  Amendment violation,  he  may nonetheless  succeed  in



            showing  a violation of due process if he can demonstrate, as



            he  alleges, that  there  is no  evidence  in the  record  to



            support a constitutionally valid  charge of threatening.  See
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            Superintendent,  Mass. Correctional  Inst., Walpole  v. Hill,
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            472  U.S.  445,  455-56  (1985)  (holding  that  due  process



            requires  that  a  finding of  guilt  be  supported  by "some



            evidence" in the record).4
                                     4



                 Hightower's  remaining     1983  claims   were  properly



            dismissed  because, on the facts of this case, they amount to



            de   minimis   impositions   and  thus   do   not   implicate
            __   _______



            constitutional concerns.  See Bell  v. Wolfish, 441 U.S. 520,
                                      ___ ____     _______



            539 n.21 (1979).   The  delay in returning  Hightower to  the



            general population was brief.   Hightower makes no allegation



            that  he was repeatedly denied  showers, or that  he was ever



            denied access to hygiene items, water, and towels.  We do not



            think  a single instance of  being denied a  shower for eight



            days,  without more,  states a  due  process violation.   Cf.
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            Davenport  v.  DeRobertis, 844  F.2d  1310,  1316 (7th  Cir.)
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               4Because appellees Vose,  Gardner, and  Cudworth have  not
               4

            renewed the issue on appeal, and the matter was not addressed

            by Hightower below, we  do not resolve whether  the complaint

            alleges  sufficient   involvement  on   the  part   of  these

            supervisory officials to state a   1983 claim against them.  


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(holding  that  one  shower  per  week  was  constitutionally



            sufficient under  the  Eighth Amendment),  cert. denied,  488
                                                       ____________



            U.S. 908 (1988).  



                 Having  reinstated some  portion of  Hightower's federal



            claims, we also reinstate  his supplemental state law claims.



            See 28 U.S.C.    1367(c)(3).  Because the issue has  not been
            ___



            briefed,  we express no opinion on whether any of these state



            law claims are viable.



                 Affirmed, in  part; vacated,  in part; and  remanded for
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            further proceedings. 
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