Lewry v. Town of Standish

• Court: Court of Appeals for the First Circuit
• Decided: January 28, 1993
• Docket: 92-1999
• Status: Published

Opinion

USCA1 Opinion

January 28, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-1999

                                    GEORGE LEWRY,

                                Plaintiff, Appellant,

                                          v.

                              TOWN OF STANDISH, ET AL.,

                                Defendants, Appellees.

                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

Before

                                 Breyer, Chief Judge,
                                         ___________

                            Aldrich, Senior Circuit Judge,
                                     ____________________

                              and Selya, Circuit Judge.
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                                 ____________________

Francis M. Jackson for appellant.
            __________________
            Daniel  Rapaport with  whom  Edward R.  Benjamin,  Jr.  and Preti,
            ________________             _________________________      ______
        Flaherty, Beliveau & Pachios were on brief for appellees.
        ____________________________

                                 ____________________

____________________

ALDRICH,   Senior  Circuit  Judge.    George  Lewry
                                 ______________________

            brought  suit against the town  of Gorham, Maine,  and two of

            its police  officers, Ted Blais,  and Sgt. Wayne  Coffin, and

            against the town of Standish and its police officer,  William

            McAuliffe, alleging  false arrest in violation  of the United

            States  and Maine Constitutions, 42 U.S.C.   1983 et seq., 15
                                                              __ ___

            Me.R.S.A.   704, and  Maine common law.  An amended complaint

            added officer Timothy Darnell  of Standish, alleging a second

            false  arrest.   The district  court referred  the suit  to a

            magistrate.  28 U.S.C.    636(b)(1).  After discovery closed,

            defendants moved for summary  judgment, and plaintiff filed a

            Rule  56(f) motion  along with  his opposition.   The  motion

            sought  to  introduce  evidence   contradicting  defendants'.

            Without taking up the motion,  the magistrate issued a report

            and recommended approval  of summary judgment on  defendants'

            evidence.    Upon a  general  objection,  the district  court

            conducted  a  de  novo  review, again  without  reference  to
                          __  ____

            plaintiff's   motion,   and    accepted   the    magistrate's

            recommendation.    Plaintiff appeals,  arguing  that material

            issues of fact exist,  and, for the first time,  pointing out

            that the  magistrate and district court  improperly failed to

            regard the motion.  As these are questions of law, our review

            is  de novo.  Liberty Mut.  Ins. Co. v. Commercial Union Ins.
                __ ____   ______________________    _____________________

            Co., 978 F.2d 750, 757 (1st Cir. 1992).  We affirm.
            ___

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The November, 1989 Incident
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                      At the time of  the alleged false arrests plaintiff

            was on  probation for multiple  driving violations  including

            driving  while  intoxicated.    On  November  7th,  1989,  he

            telephoned  his probation officer,  Elizabeth Manchester, and

            informed her  that he was too  ill to meet with  her that day

            for their  bi-weekly meeting.  Several  hours later plaintiff

            appeared  at Tavern on the Hill, with one Frank Bickford, his

            employer.   While  there, Bickford,  and his  son-in-law, who

            owned  the  tavern,  engaged  in an  altercation,  and,  when

            defendant   officer   McAuliffe   of   Standish   arrived  to

            investigate, he and Bickford also began fighting.

                      Disputed on  appeal is whether there  is a question

            of  fact  regarding  plaintiff's  alleged  intoxication,  and

            whether he joined the fracas or merely attempted  to restrain

            Bickford.    Defendants officer  Blais  and  Sgt. Coffin,  of

            Gorham, arrived after the fray, and recognized plaintiff as a

            probationer.    Defendants assert  that  Sgt.  Coffin had  an

            officer  call parole  officer  Manchester  and  describe  the

            incident and plaintiff's intoxication.  Manchester, according

            to  her   affidavit  of   record,  responded   by  requesting

            plaintiff's  arrest  for parole  violations.   In plaintiff's

            would-be version, including  Manchester's asserted  testimony

            before a  sentencing court, Manchester was  called only after

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the officers  had arrested  plaintiff, outside, where  he was

            behaving himself.

                      Defendants  could  not  normally   lawfully  arrest

            plaintiff without  a  warrant,  absent  probable  cause,  and

            intoxication  alone would  not  be such.    Cf. repealing  of
                                                        __

            Me.R.S.A. 1954, c. 61,    94 by 1973, c. 582,   3.   However,

            arrest  would be proper "when requested by an official of the

            division   of   Probation  and   Parole."     17-A  Me.R.S.A.

              15.1A(9).    If the  magistrate had  before  him a  copy of

            Manchester's  court   testimony  we  read   it  as   arguably

            contradicting  her affidavit as  to the order  of events, and

            summary judgment should be denied.  Plaintiff, however, has a

            difficulty.   Objection  to a  magistrate's report  preserves

            only those  objections that  are specified.   See  Keating v.
                                                          ___  _______

            Secretary of  Health and Human  Services, 848  F.2d 271,  275
            ________________________________________

            (1st Cir. 1988),  a case, incidentally, coming up from Maine.

            The reason  for  this is  the universal  principle that  both

            efficiency and fairness dictate  that the judicial officer be

            given notice and  opportunity to correct  his or her  mistake

            before the taking of an appeal.

                      If plaintiff's motion should have been allowed, the

            magistrate's failure to  pass on it  was a correctable  error

            within  this principle  just as  would have  been an  express

            denial.      His   recommendation,   that   was   necessarily

            inconsistent with the motion,  was an implied denial thereof.

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Addington v. Farmer's Elevator  Mut. Ins. Co., 650  F.2d 663,
            _________    ________________________________

            666 (5th  Cir.), cert.  denied, 454 U.S.  1098 (1981),  cited
                             _____________

            with approval,  Posadas de  Puerto Rico,  Inc. v.  Radin, 856
                            ______________________________     _____

            F.2d 399, 401  (1st Cir.  1988).  Because  plaintiff did  not

            seasonally complain,  we cannot consider the  motion, and the

            record must stand without its content.

                      For  summary  judgment   purposes,  any  fact   not

            properly controverted is admitted.  D. Me.  Loc. R. 19(b)(2).

            The magistrate  was  thus correct  in  rejecting  plaintiff's

            statement   in  "opposition   to  defendants'   statement  of

            uncontroverted  facts" for not citing sources, Rule 19(b)(2),

            and  in finding  that  plaintiff's  conclusory  statement  of

            material facts failed  to create an  issue of material  fact.

            Posadas de Puerto Rico, ante.
            ______________________  ____

The April, 1990 Incident
            ________________________

                      Plaintiff  was  walking  alone,  weaving  drunkenly

            between  the  roadway and  the  shoulder  of a  well-traveled

            Standish  road around 11:30 p.m., on or about April 21, 1990.

            He was wearing  dark clothing, which made him  more difficult

            to see.  When he was in the roadway, passing cars were forced

            to  move to avoid him.  Defendant officer Darnell of Standish

            observed plaintiff, approached and  spoke with him.  Deciding

            that plaintiff was intoxicated and a safety hazard to himself

            and others, Darnell said he would give him a ride to his home

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about five miles away.  When plaintiff declined, Darnell gave

            him a  choice of a ride  home or an arrest  for obstructing a

            public way.   17-A Me.R.S.A.    505.  Plaintiff  accepted the

            ride,  and Darnell  gave him a  quick pat-down  search before

            allowing him to sit  unrestrained in the rear seat.   Darnell

            then drove plaintiff home.  Plaintiff seeks damages under the

            same  claims of law as above, now against officer Darnell and

            the town of Standish.

                      The   magistrate   recommended  summary   judgment,

            reasoning both that probable cause existed for an arrest, and

            that plaintiff failed to provide defendants with the required

            notice  for  his state  law  claims.   14  Me.R.S.A.    8107.

            Plaintiff does not contest the notice issue and his state law

            appeals therefore fail.

                      We will assume that insisting  on driving plaintiff

            to his home  as an alternative to  the police station  was an

            arrest, see Michigan v. Chesternut, 486 U.S. 567, 573 (1988),
                    ___ ________    __________

            and that  Darnell is  not protected  under  the principle  of

            community caretaking.  But  cf. Cady v. Dombrowski,  413 U.S.
                                   ___  __  ____    __________

            433 (1973); South  Dakota v. Opperman, 428 U.S.  364, 368-371
                        _____________    ________

            (1976); United States v. Rodriguez-Morales, 929 F.2d 780 (1st
                    _____________    _________________

            Cir. 1991), cert.  denied, 112  S.Ct. 868 (1992).   17-A  Me.
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            R.S.A.   505 provides as follows.

                        505.  Obstructing public ways
                        505.  Obstructing public ways

                           1.     A   person   is   guilty   of
                      obstructing    public    ways    if    he

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unreasonably  obstructs the  free passage
                      of  foot  or  vehicular  traffic  on  any
                      public  way,  and  refuses  to  cease  or
                      remove  the  obstruction  upon  a  lawful
                      order  to  do  so  given  him  by  a  law
                      enforcement officer.

            This  was a  broadening  of its  predecessor,  17 Me.R.S.  A.

              3961.

                        3961.  Placing obstructions on traveled
                        3961.  Placing obstructions on traveled
                               road
                               road

                           Whoever places  rocks, stones, snow,
                      ice  or  other  obstructions  in  such  a
                      manner  as  to   obstruct  traffic  on  a
                      traveled road and leaves them there shall
                      be punished  by a  fine of not  more than
                      $10 for each offense,  to be recovered on
                      complaint, to the  use of the  town where
                      the offense is committed.

            While  the  point is  novel,  a  pedestrian wandering  about,

            intoxicated,  on a public way  is an obstruction  that may be

            ordered to "cease."

                      We must  observe that  we think this  claim a  fuss

            about nothing.  Was plaintiff to be left on the highway?

                      Affirmed.
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