USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1208
EARL BRAXTON,
Plaintiff, Appellant,
v.
CITY OF PROVIDENCE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge] ___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges. ______________
____________________
Earl Braxton on brief pro se. ____________
Kevin F. McHugh, Assistant City Solicitor, City of Providence, ________________
Law Dept., on brief for appellee City of Providence.
Michael J. Colucci and Olenn & Penza on brief for appellees ___________________ _______________
Flynn, McKnight, Fitzpatrick, Coughlin, Clements and Lee.
____________________
November 19, 1996
____________________
Per Curiam. Plaintiff, Earl Braxton, appeals the grant __________
of summary judgment in favor of the defendants, the City of
Providence, Rhode Island, and six City police officers. We
have carefully reviewed the parties' briefs and the record on
appeal. We affirm the district court's judgment in favor of
the defendants, essentially for the reasons stated in the
magistrate-judge's Report and Recommendation, dated December
13, 1995, and, with respect to Braxton's request for return
of the automobile, for the reason stated by the district
court at the hearing held on January 16, 1996, see tr. pp. ___
17-19.1 1
We have considered all of Braxton's arguments and find
none with merit. We see no need to address each separately.
We note only the following.
____________________
1Braxton also purports to be appealing a prior district 1
court order approving an August 15, 1995 Report and
Recommendation of the magistrate, that recommended dismissal
of defendant State of Rhode Island on the ground that the
State is not a person within the meaning of 42 U.S.C. 1983.
However, we note that Braxton's notice of appeal, filed on
February 6, 1996, made specific reference only to appealing
the December 13, 1995 Report and Recommendation and the
district court's acceptance of it. Reference to a particular
ruling denotes an intention not to appeal other non-
referenced rulings. See, e.g., Kotler v. American Tobacco __________ ______ ________________
Co., 981 F.2d 7, 11 (1st Cir. 1992). Moreover, Braxton did ___
not serve a copy of this notice of appeal or his opening
brief on the State. Arguably, therefore, Braxton has waived
any appellate arguments regarding the earlier dismissal of
the State of Rhode Island.
In any event, the dismissal of the State of Rhode Island
was correct for reasons stated by the magistrate. See Will ___ ____
v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) ________________________________
(holding that a state is not a person under 1983).
-2-
Although Braxton is correct in contending that, absent
party agreement (which did not occur here), a magistrate does
not have the authority to hear and determine a motion for _____________
summary judgment, 28 U.S.C. 636(b)(1)(A), that contention
has no relevance here. The magistrate did not determine the ___
motions for summary judgment; rather, pursuant to 28 U.S.C.
636(b)(1)(B), the magistrate submitted his report and
recommendation on these motions, which were reviewed and
finally determined by the district court.
Braxton has filed two post-briefing motions with this
court requesting leave to supplement the record with material
not presented to the district court. These motions are
denied. This court reviews an appeal based on the record
below which encompasses "[t]he original papers and exhibits
filed in the district court, the transcript of proceedings,
if any, and a certified copy of the docket entries prepared
by the clerk of the district court." Fed. R. App. P. 10(a).
In any event, nothing contained in these two motions and
their attachments would change our disposition of this
appeal.
The motions to supplement the record are denied. _______
The judgment of the district court is affirmed. _________
-3-
-4-