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.
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
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.
R.S.A. 505 provides as follows.
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
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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Lewry v. Town of Standish
Combined Opinion