February 16, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1724
DOMENIC CINELLI,
Plaintiff, Appellant,
v.
JAMES C. PETRELLA, DAVID NOURY AND JOHN DOE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Robert W. Lovegreen, U.S. Magistrate Judge]
Torruella, Chief Judge,
Cyr, Circuit Judge,
and Skinner,* Senior District Judge.
Vincent A. Indeglia, with whom Michael J. Lepizzera was on brief
for appellant.
David J. Gentile for appellees.
*Of the District of Massachusetts, sitting by designation.
Per Curiam. Pro se plaintiff Domenic Cinelli, a former
inmate at the Adult Correctional Institution in Cranston, Rhode
Island, brought this civil rights action pursuant to 42 U.S.C.
1983, alleging that two prison guards, James Petrella and David
Noury, entered his cell and beat him without cause. In addition
to the 1983 claim, the complaint alleged pendent state-law
claims for assault, battery, and intentional infliction of
emotional distress. Since shortly after the complaint was filed,
Cinelli has been ably represented by counsel.
The parties consented to proceed before a magistrate
judge, see 28 U.S.C. 636(c); Fed. R. Civ. P. 73, and waived
jury trial. After a bench trial, the magistrate judge disposed
of all claims on the merits, and judgment was entered for the
defendants. Cinelli filed a timely motion for new trial pursuant
to Fed. R. Civ. P. 59(a)(2). Following hearing, the magistrate
judge denied the motion for new trial. On appeal, Cinelli
challenges the denial of the motion for new trial as an abuse of
discretion. See Wells Real Estate, Inc. v. Greater Lowell Bd.
of Realtors, 850 F.2d 803, 810-11 (1st Cir.), cert. denied, 488
U.S. 955 (1988). After careful review, we affirm the well-
reasoned decision of the magistrate judge.
Cinelli first argues that the magistrate judge erred in
failing to consider an equal protection claim under the Fifth and
Fourteenth Amendments to the United States Constitution. The
magistrate judge determined that Cinelli neither pleaded, argued,
nor established an equal protection claim. The original
2
complaint, which was never amended, simply cited to 1983 and
alleged that the defendants had deprived him of "a constitutional
right, privilege, or immunity." Cf. Ayala Serrano v. Lebron
Gonzalez, 909 F.2d 8, 10-12 (1st Cir. 1990) (counsel amended pro
se 1983 complaint with specific allegations). There is no
mention of the Fifth and Fourteenth Amendments, let alone any
other constitutional basis for an equal protection claim. The
Cinelli pretrial memorandum likewise failed to mention any such
equal protection claim. See Roland M. v. Concord Sch. Comm., 910
F.2d 983, 998-99 (1st Cir. 1990) (failure to raise defense in
pretrial memorandum and failure to object to pretrial order
constitutes waiver), cert. denied, 499 U.S. 912 (1991).
In contrast, Cinelli did brief the 1983 claim (based
on the Eighth Amendment right to be free from cruel and unusual
punishment), as well as the pendent claims for assault, battery,
and intentional infliction of emotional distress. All these
claims, and none other, were tried to the magistrate judge, and
it was not until those claims were rejected on the merits that
Cinelli attempted to raise an equal protection claim. In these
circumstances, there was no abuse of discretion in denying
Cinelli the opportunity to raise an entirely new theory of
recovery which should have been raised before trial. Kattan by
Thomas v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir.
1993), cert. denied, 114 S. Ct. 1398 (1994).1
1In all events, the belated equal protection theory offered
little prospect of success. Cinelli contends that Noury singled
him out and "intentionally treated him differently than other
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Cinelli also argues that the evidence unequivocally
established that Petrella and Noury violated the Eighth Amendment
and committed the torts of assault, battery, and intentional
infliction of emotional distress. A new trial is appropriate if
"the outcome is against the clear weight of the evidence such
that upholding the verdict will result in a miscarriage of
justice." Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st
Cir. 1987). Our review of the record, and the thorough
explication provided by the magistrate judge, persuade us that
there was no miscarriage of justice. Rather, the magistrate
judge, as the factfinder, supportably resolved all pending claims
after weighing the evidence and assessing the credibility of the
witnesses.
The district court judgment is affirmed. No costs.
prisoners" for the sole reason that Cinelli had commenced a civil
rights action against him. There was no timely allegation of
invidious discrimination to support an equal protection claim.
See Alexis v. McDonald's Restaurants of Massachusetts, Inc., 67
F.3d 341, 353-54 (1st Cir. 1995).
4