United States Court of Appeals For the First Circuit
No. 24-1714
HARLAN SHABSHELOWITZ,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND DEPARTMENT OF PUBLIC SAFETY, STATE POLICE and LIEUTENANT MICHAEL CASEY, individually and in his capacity as a police officer employed by the State of Rhode Island,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Rikelman, Lynch, and Aframe, Circuit Judges.
Gary G. Pelletier, Pelletier Clark & Caley, LLC, V. Edward Formisano, and Formisano and Company on brief for appellant.
Rajaram Suryanarayan, Andrew Plocica, Gunning & LaFazia, Inc., and Jeff Kidd, Special Assistant Attorney General, on brief for appellees.
September 12, 2025 LYNCH, Circuit Judge. Harlan Shabshelowitz appeals from
the grant of summary judgment to the state law enforcement
defendants in his suit against them for malicious prosecution.
Shabshelowitz's suit arises out of his arrest and criminal
proceedings on charges of obtaining money under false pretenses in
violation of R.I. Gen. Laws §§ 11-41-4 and 11-41-5 (2002), and
conspiracy to obtain money under false pretenses in violation of
R.I. Gen. Laws §§ 11-1-6, 11-41-4, and 11-41-5 (2002).
Shabshelowitz argues to us, but he did not argue to the federal
district court, that defendants failed to establish the "final
judgment" element of Rhode Island collateral estoppel law, and
that he was deprived of a full and fair opportunity to litigate in
state court because appellate review in the Rhode Island Supreme
Court was unavailable. On appeal, Shabshelowitz has conceded the
identity of issues element. He has waived his new arguments by
failing to present them to the district court. He has also failed
to meet this circuit's standards for considering his waived
arguments and so we affirm on the basis of waiver.
I.
We briefly recite the relevant, undisputed facts of
record.
Shabshelowitz was indicted on March 28, 2013, by a Rhode
Island grand jury, along with four co-defendants, on charges of
obtaining money under false pretenses and conspiracy to obtain
- 2 - money under false pretenses. The charges arose out of his
participation in what was charged as a conspiracy to commit
mortgage fraud.
Shabshelowitz filed five separate motions to dismiss the
criminal charges before a Rhode Island Superior Court Magistrate
in or around June 2015. In response, the Magistrate held two
separate hearings, including an evidentiary hearing where witness
testimony was taken. In support of his motions, Shabshelowitz
submitted "memos, grand jury transcripts, and witness testimony"
from three witnesses, including Shabshelowitz himself, which he
presented at an evidentiary hearing held on April 29, 2016.
Shabshelowitz argued, inter alia, that his case should be dismissed
because of alleged misconduct committed during the grand jury
proceedings including prosecutorial misconduct, presentation of
misleading evidence, and missing and altered evidence. The
Magistrate rejected Shabshelowitz's argument and denied his
motions in an oral order issued June 10, 2016.
Shabshelowitz appealed this ruling to the Rhode Island
Superior Court, though he did not appeal the Magistrate's decision
rejecting his claim that evidence was missing. An Associate
Justice of the Superior Court held a hearing on that appeal on
December 13, 2016, at which, on de novo review, that Justice denied
Shabshelowitz's appeal and adopted in full the Magistrate's
- 3 - decision.1 The Associate Justice also supplemented the Rhode
Island Magistrate's opinion with additional observations about the
issues he raised, noting that Shabshelowitz "ha[d] not presented
evidence of any misconduct by the prosecutor that rose to the level
of justifying dismissal" nor had he "established that there was a
pervasive scheme to present false information to the Grand Jury
sufficient to justify dismissing the indictment or even that there
was a sufficient amount of false factual information presented to
the Grand Jury to justify dismissing the indictment."
Shabshelowitz did not attempt to take an appeal from the Associate
Justice's ruling.
On June 5, 2017, the Rhode Island Attorney General's
Office filed a nolle prosequi of the charges against Shabshelowitz,
pursuant to Rhode Island Rule of Criminal Procedure 48(a), as part
1 Under Rhode Island Superior Court Rule of Practice 2.9(h), an Associate Justice's review of a Magistrate's decision involves: a de novo determination of those portions to which the appeal is directed and [the Associate Justice] may accept, reject, or modify, in whole or in part, the judgment, order, or decree of the magistrate. The justice, however, need not formally conduct a new hearing and may consider the record developed before the magistrate, making his or her own determination based on that record whether there is competent evidence upon which the magistrate's judgment, order, or decree rests. The justice may also receive further evidence, recall witnesses or recommit the matter with instructions.
- 4 - of a plea agreement that the Attorney General's Office reached
with one of Shabshelowitz's co-defendants.
More than thirty-two months later, on February 27, 2020,
Shabshelowitz filed this lawsuit in federal court alleging a state
law claim for malicious prosecution.2 Shabshelowitz argued that
the State lacked probable cause to prosecute him, but had
nevertheless induced the grand jury to indict him by withholding
exculpatory evidence and misrepresenting pieces of inculpatory
evidence.
Discovery closed on November 22, 2023, after numerous
extensions of that deadline. The defendants moved for summary
judgment on January 16, 2024. The defendants argued, inter alia,3
that Shabshelowitz was collaterally estopped from arguing that his
grand jury indictment was procured without probable cause because
the issues in question were "the same basic issue[s]" as those in
Shabshelowitz's state court motion to dismiss. The defendants
asserted that "all three requirements" of Rhode Island collateral
2 The defendants in this case are the Rhode Island Department of Public Safety, the Rhode Island State Police, and Rhode Island State Police Officer Michael Casey, in both his individual and official capacities. Shabshelowitz also initially asserted claims arising under 42 U.S.C. § 1983, the Rhode Island Constitution, and several state law torts. Shabshelowitz amended his complaint on February 9, 2021, to omit all but the malicious prosecution claim. The suit proceeds under diversity jurisdiction. 3 The defendants also argued that Shabshelowitz's malicious prosecution claim failed on the merits.
- 5 - estoppel law were present in this case, namely that "(1) the
parties [we]re the same or in privity with the parties of the
previous proceeding; (2) a final judgment on the merits ha[d] been
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United States Court of Appeals For the First Circuit
No. 24-1714
HARLAN SHABSHELOWITZ,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND DEPARTMENT OF PUBLIC SAFETY, STATE POLICE and LIEUTENANT MICHAEL CASEY, individually and in his capacity as a police officer employed by the State of Rhode Island,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Rikelman, Lynch, and Aframe, Circuit Judges.
Gary G. Pelletier, Pelletier Clark & Caley, LLC, V. Edward Formisano, and Formisano and Company on brief for appellant.
Rajaram Suryanarayan, Andrew Plocica, Gunning & LaFazia, Inc., and Jeff Kidd, Special Assistant Attorney General, on brief for appellees.
September 12, 2025 LYNCH, Circuit Judge. Harlan Shabshelowitz appeals from
the grant of summary judgment to the state law enforcement
defendants in his suit against them for malicious prosecution.
Shabshelowitz's suit arises out of his arrest and criminal
proceedings on charges of obtaining money under false pretenses in
violation of R.I. Gen. Laws §§ 11-41-4 and 11-41-5 (2002), and
conspiracy to obtain money under false pretenses in violation of
R.I. Gen. Laws §§ 11-1-6, 11-41-4, and 11-41-5 (2002).
Shabshelowitz argues to us, but he did not argue to the federal
district court, that defendants failed to establish the "final
judgment" element of Rhode Island collateral estoppel law, and
that he was deprived of a full and fair opportunity to litigate in
state court because appellate review in the Rhode Island Supreme
Court was unavailable. On appeal, Shabshelowitz has conceded the
identity of issues element. He has waived his new arguments by
failing to present them to the district court. He has also failed
to meet this circuit's standards for considering his waived
arguments and so we affirm on the basis of waiver.
I.
We briefly recite the relevant, undisputed facts of
record.
Shabshelowitz was indicted on March 28, 2013, by a Rhode
Island grand jury, along with four co-defendants, on charges of
obtaining money under false pretenses and conspiracy to obtain
- 2 - money under false pretenses. The charges arose out of his
participation in what was charged as a conspiracy to commit
mortgage fraud.
Shabshelowitz filed five separate motions to dismiss the
criminal charges before a Rhode Island Superior Court Magistrate
in or around June 2015. In response, the Magistrate held two
separate hearings, including an evidentiary hearing where witness
testimony was taken. In support of his motions, Shabshelowitz
submitted "memos, grand jury transcripts, and witness testimony"
from three witnesses, including Shabshelowitz himself, which he
presented at an evidentiary hearing held on April 29, 2016.
Shabshelowitz argued, inter alia, that his case should be dismissed
because of alleged misconduct committed during the grand jury
proceedings including prosecutorial misconduct, presentation of
misleading evidence, and missing and altered evidence. The
Magistrate rejected Shabshelowitz's argument and denied his
motions in an oral order issued June 10, 2016.
Shabshelowitz appealed this ruling to the Rhode Island
Superior Court, though he did not appeal the Magistrate's decision
rejecting his claim that evidence was missing. An Associate
Justice of the Superior Court held a hearing on that appeal on
December 13, 2016, at which, on de novo review, that Justice denied
Shabshelowitz's appeal and adopted in full the Magistrate's
- 3 - decision.1 The Associate Justice also supplemented the Rhode
Island Magistrate's opinion with additional observations about the
issues he raised, noting that Shabshelowitz "ha[d] not presented
evidence of any misconduct by the prosecutor that rose to the level
of justifying dismissal" nor had he "established that there was a
pervasive scheme to present false information to the Grand Jury
sufficient to justify dismissing the indictment or even that there
was a sufficient amount of false factual information presented to
the Grand Jury to justify dismissing the indictment."
Shabshelowitz did not attempt to take an appeal from the Associate
Justice's ruling.
On June 5, 2017, the Rhode Island Attorney General's
Office filed a nolle prosequi of the charges against Shabshelowitz,
pursuant to Rhode Island Rule of Criminal Procedure 48(a), as part
1 Under Rhode Island Superior Court Rule of Practice 2.9(h), an Associate Justice's review of a Magistrate's decision involves: a de novo determination of those portions to which the appeal is directed and [the Associate Justice] may accept, reject, or modify, in whole or in part, the judgment, order, or decree of the magistrate. The justice, however, need not formally conduct a new hearing and may consider the record developed before the magistrate, making his or her own determination based on that record whether there is competent evidence upon which the magistrate's judgment, order, or decree rests. The justice may also receive further evidence, recall witnesses or recommit the matter with instructions.
- 4 - of a plea agreement that the Attorney General's Office reached
with one of Shabshelowitz's co-defendants.
More than thirty-two months later, on February 27, 2020,
Shabshelowitz filed this lawsuit in federal court alleging a state
law claim for malicious prosecution.2 Shabshelowitz argued that
the State lacked probable cause to prosecute him, but had
nevertheless induced the grand jury to indict him by withholding
exculpatory evidence and misrepresenting pieces of inculpatory
evidence.
Discovery closed on November 22, 2023, after numerous
extensions of that deadline. The defendants moved for summary
judgment on January 16, 2024. The defendants argued, inter alia,3
that Shabshelowitz was collaterally estopped from arguing that his
grand jury indictment was procured without probable cause because
the issues in question were "the same basic issue[s]" as those in
Shabshelowitz's state court motion to dismiss. The defendants
asserted that "all three requirements" of Rhode Island collateral
2 The defendants in this case are the Rhode Island Department of Public Safety, the Rhode Island State Police, and Rhode Island State Police Officer Michael Casey, in both his individual and official capacities. Shabshelowitz also initially asserted claims arising under 42 U.S.C. § 1983, the Rhode Island Constitution, and several state law torts. Shabshelowitz amended his complaint on February 9, 2021, to omit all but the malicious prosecution claim. The suit proceeds under diversity jurisdiction. 3 The defendants also argued that Shabshelowitz's malicious prosecution claim failed on the merits.
- 5 - estoppel law were present in this case, namely that "(1) the
parties [we]re the same or in privity with the parties of the
previous proceeding; (2) a final judgment on the merits ha[d] been
entered in the previous proceeding;" and "(3) the issue or issues
in question [we]re identical in both proceedings." The defendants
provided extensive argument as to why each element of Rhode Island
collateral estoppel law was satisfied.
Shabshelowitz's response and sur-reply argued only that
the "identity of issues" element of collateral estoppel had not
been satisfied and that, when the facts were viewed in the light
most favorable to the merits of his malicious prosecution claim,
summary judgment was inappropriate.
The district court rejected the argument presented,
finding that the issues were identical. It granted summary
judgment to the defendants on the ground that Shabshelowitz was
collaterally estopped from relitigating the issue of whether the
State engaged in prosecutorial misconduct during the grand jury
proceedings. The district court noted that "[t]wo Rhode Island
state courts denied Mr. Shabshelowitz's motion to dismiss his state
charges, rejecting his arguments that his indictment was procured
by fraud and misconduct." It concluded that "[b]ecause the issues
in state court are identical to those brought here (and there was
a final disposition and the parties are the same), collateral
- 6 - estoppel bars [Shabshelowitz] from re-litigating a claim he
already lost."
II.
We review grants of summary judgment de novo. Baez v.
Baymark Detoxification Servs., Inc., 123 F.4th 62, 66 (1st Cir.
2024). In light of the defendants' lead argument that
Shabshelowitz has waived the arguments he now presents as to the
preclusive effect of his motion to suppress, it is necessary to
"look to state law to determine the preclusive effect of a prior
state court judgment." McCrory v. Spigel (In re Spigel), 260 F.3d
27, 33 (1st Cir. 2001). Under Rhode Island law,
[c]ollateral estoppel attaches when (1) there is an identity of issues between the two proceedings, (2) the previous proceeding resulted in a final judgment on the merits, and (3) the party against whom collateral estoppel is asserted is the same or in privity with a party from the previous proceeding.
Osifodunrin v. Desjardins, 333 A.3d 502, 504 (R.I. 2025).
Shabshelowitz argues to this court that the district court erred
under the second prong, contending both that there was no final
judgment and that the asserted inability to obtain appellate review
deprived him of a full and fair opportunity to litigate.
Shabshelowitz's only argument to the district court as
to why collateral estoppel should not attach was that the "identity
of issues" element had not been satisfied, an argument which he
- 7 - has now abandoned on appeal. Shabshelowitz had ample notice of
the defendants' argument that the denial of his motions to dismiss
constituted final judgment on the merits and that he had received
a full and fair opportunity to litigate in state court, yet he
chose to respond only to the defendants' "identity of the issues"
argument.
These arguments by Shabshelowitz have been waived. In
general, "an appellant who," like Shabshelowitz, "has not
proffered a particular claim or defense in the district court 'may
not unveil it in the court of appeals.'" Nat'l Ass'n of Soc.
Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995) (quoting
United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992)). "If any
principle is settled in this circuit, it is that, absent the most
extraordinary circumstances, legal theories not raised squarely in
the lower court cannot be broached for the first time on appeal."
Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59
v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992); see
also Iverson v. City of Boston, 452 F.3d 94, 102 (1st Cir. 2006)
(collecting cases).
Shabshelowitz has not met his burden to show that any
exception to this circuit's "raise or waive" rule applies. This
case does not present the "exceptional circumstances" needed to
consider whether to excuse his waiver. Sindi v. El-Moslimany, 896
F.3d 1, 28 (1st Cir. 2018). There is nothing "sufficiently
- 8 - compelling" about Shabshelowitz's claim to justify relaxing our
"fundamental rule" that arguments first be properly raised before
the district court.4 Curet-Velázquez v. ACEMLA de P.R., Inc., 656
F.3d 47, 53 (1st Cir. 2011). Shabshelowitz makes no argument that
this waiver was inadvertent. He chose his arguments for whatever
strategic purpose he had in focusing on the "identity of issues"
4 The district court determined that collateral estoppel applied because Shabshelowitz received a full and fair opportunity to litigate the matter in the Superior Court, which conducted an evidentiary hearing and heard testimony from Shabshelowitz and others. The district court also noted that Shabshelowitz failed to appeal the Superior Court's ultimate decision, further supporting application of the collateral estoppel doctrine. On appeal, Shabshelowitz challenges the district court's assumption that a further state court appeal had been available to him, and he attempts to use this challenge as an opportunity to advance a new argument against the application of collateral estoppel -- specifically, that "the absence of a non-frivolous appeal process deprived him of a full and fair opportunity to litigate" the matter.
That argument is waived. Shabshelowitz entirely failed to raise it in the district court despite having ample notice of the defendants' position that he had received a full and fair opportunity to litigate the matter. Although we have held that, under "unique circumstances," an appellate court may consider an issue not squarely presented in the district court if the court nonetheless reaches the issue, no such unique circumstances are present here. See Dahua Tech. USA, Inc. v. Zhang, 138 F.4th 1, 10 (1st Cir. 2025).
In any event, even if the argument were not waived, we see no merit to Shabshelowitz's core contention that he lacked a full and fair opportunity to litigate the matter. As the district court observed, the Superior Court conducted a thorough evidentiary hearing and provided Shabshelowitz the opportunity to present evidence and call witnesses, sufficiently extending to him a full and fair hearing such that collateral estoppel applies. See Seddon v. Bonner, 755 A.2d 823, 828 (R.I. 2000).
- 9 - element before the district court, then abandoning that argument
on appeal to press his argument that there was no final judgment
on the merits. See Harwood, 69 F.3d at 628. It has also been
more than twelve years since the conclusion of the grand jury
proceedings, approximately eight years since the hearings on
Shabshelowitz's motion to dismiss, and more than a year and a half
since the defendants moved for summary judgment. Shabshelowitz
received the benefit of a settlement the State of Rhode Island
reached with one of his co-defendants. He has not shown that there
would be no prejudice to the defendants after this passage of time
and under these circumstances. See id.
Because we find waiver we do not reach the merits of any
of Shabshelowitz's arguments.
The grant of summary judgment to defendants is affirmed.
Costs are awarded to defendants.
- 10 -