Pongonis v. DeSantis
This text of Pongonis v. DeSantis (Pongonis v. DeSantis) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Pongonis v. DeSantis, (1st Cir. 1992).
Opinion
USCA1 Opinion
November 25, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1877
ALBERT PONGONIS,
Plaintiff, Appellant,
v.
RONALD DESANTIS, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]
_____________________
___________________
Before
Breyer, Chief Judge,
___________
Torruella and Cyr, Circuit Judges.
______________
___________________
Albert Pongonis on brief pro se.
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David C. Jenkins, Gallagher and Gallagher P.C. and Robert J.
________________ ____________________________ _________
O'Sullivan on brief for appellees.
__________
__________________
__________________
Per Curiam. Plaintiff-appellant filed a civil rights
__________
action (plus pendent state claims) against Ronald De
Santis, a Lawrence police officer, the City of Lawrence, and
the city's police chief. Among other things, plaintiff
contended that De Santis had unlawfully arrested plaintiff
without probable cause and had used excessive force. The
case was tried by consent to a jury presided over by a
magistrate. At the close of the evidence, the magistrate
directed a verdict for the city and police chief on the
grounds, principally, that plaintiff had not presented either
any evidence of a municipal policy, practice or custom upon
which to predicate municipal civil rights liability nor any
basis for supervisory liability of the police chief. The
jury found for defendant De Santis. The magistrate also
found for defendants on the equitable claims tried to the
court. Plaintiff has appealed.
Plaintiff's appellate brief contains a recitation of his
version of the evidence. He has failed, however, to provide
us with a copy of the trial transcript. Consequently, to the
extent he is attacking the sufficiency of the evidence
underlying the jury verdict or the magistrate's rulings, he
has forfeited appellate review by failing to order the
transcript. Muniz Ramirez v. Puerto Rico Fire Services, 757
_____________ _________________________
F.2d 1357, 1358 (1st Cir. 1985) ("When an appellant raises
issues that are factually dependent yet fails to provide a
-2-
transcript of the pertinent proceedings in the district
court, this circuit . . . has repeatedly held that we will
not review the allegations."). We turn to appellant's other
arguments.
1. Appellant argues that Magistrate Cohen should have
disqualified himself from presiding at the trial because
defense counsel had requested at a pre-trial conference that
Magistrate Cohen be designated as the trial judge. We
disagree. The docket indicates that, beginning in 1990,
motions were referred to Magistrate Cohen. Consequently, in
view of Magistrate Cohen's familiarity with the case, it
would have made sense for Magistrate Cohen to preside over
the trial in the event the parties consented (as they
eventually did) to trial before a magistrate. Therefore,
even if defense counsel did ask for Magistrate Cohen to
preside, we see no basis for bias or disqualification.
Moreover, there is no indication that appellant objected
prior to trial to Magistrate Cohen presiding. Appellant's
unsupported allegation in his motion for new trial, filed
after the jury and magistrate had found against him, that
Magistrate Cohen was a "friend" of defense counsel is not
sufficiently specific to require recusal.
2. Appellant contends he was unable to prove his case
because he was not permitted to depose and subpoena witnesses
at government expense. Plaintiff's reliance on Fed. R. Cr.
-3-
P. 17(b) as authority for subpoenas at government expense is
misplaced as Rule 17 does not apply to civil cases.
Most courts have concluded that an indigent has no
constitutional or statutory right to have witness or
deposition costs provided at government expense in a civil
case. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989); Boring
______ ____ ______
v. Kozakiewicz, 833 F.2d 468, 474 (3rd Cir. 1987), cert.
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denied, 485 U.S. 991 (1988); Johnson v. Hubbard, 698 F.2d
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286, 288-90 (6th Cir. 1983), cert. denied, 464 U.S. 917
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(1983); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir.
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1987), cert. denied, 485 U.S. 965 (1988); United States
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Marshals Service v. Means, 741 F.2d 1053, 1056-57 (8th Cir.
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1984); Newson v. Harrison, 687 F.Supp. 360 (W.D. Tenn. 1988).
______ ________
We need not address the issue, however, because appellant has
not indicated the relevance of the witnesses he was unable to
examine.
In his motion for new trial, appellant complained that
he had wanted to subpoena all the vendors at the flea market
where appellant was arrested, but Magistrate Cohen allowed
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Related
William McNeil v. Mary A. Lowney
831 F.2d 1368 (Seventh Circuit, 1987)
Norman E. Tedder v. Edward Odel, Cpl., James Scott McAlister
890 F.2d 210 (Ninth Circuit, 1989)
United States v. Pedro R. Victoria-Peguero, United States of America v. Fernando W. Anglada Alvarez
920 F.2d 77 (First Circuit, 1991)
Newson v. Harrison
687 F. Supp. 360 (W.D. Tennessee, 1988)
United States Marshals Service v. Means
741 F.2d 1053 (Eighth Circuit, 1984)
Boring v. Kozakiewicz
833 F.2d 468 (Third Circuit, 1987)
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