
USCA1 Opinion

	




          April 24, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2256                                   EDWARD K. WOJNAR,                                Plaintiff, Appellant,                                          v.                         DR. MARTIN J. BAUERMEISTER, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Edward P. Manning, Jr. on brief for appellant.            ______________________            David  W.  Carroll and  Roberts,  Carroll,  Feldstein &  Peirce on            __________________      _______________________________________        brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Appellant  Edward  K.  Wojnar  sued                      ___________            appellee   Dr.  Martin   Bauermeister  for   injuries  Wojnar            allegedly  sustained during the time he was held at the Rhode            Island Adult  Correctional Institutions.  After  a trial, the            jury  found for Dr. Bauermeister.  Wojnar appeals a ruling by            the trial court (Torres, J.) which granted Dr. Bauermeister's            motion  in limine to exclude evidence relating to a claim for            medical negligence or medical malpractice.   Dr. Bauermeister            had  asserted,  and  the  district court  agreed,  that  such            evidence  was inadmissable because Wojnar's amended complaint            did  not state  a claim  for negligence.   Rather,  the court            found, the complaint charged Dr. Bauermeister with deliberate            indifference to  Wojnar's medical  needs in violation  of the            Eighth Amendment  to the United States  Constitution.  Wojnar            makes three arguments on appeal.                      1.    Wojnar  argues  that  Judge   Torres'  ruling            directly contradicted an earlier order by a magistrate judge.            This order  denied Wojnar's motion  to file a  second amended            complaint.1  According to  Wojnar, the magistrate judge ruled                                            ____________________            1.  The  second amended  complaint set  forth allegations  of            negligence.   However, the denial  of the motion  to amend is            not  before us, Wojnar having failed to object within the 10-            day time period  set forth in 28 U.S.C.    636(b)(1)(A).  See                                                                      ___            United States v.  Akinola, 985 F.2d  1105, 1108-09 (1st  Cir.            _____________     _______            1993)  (where a party does not object to a magistrate judge's            order, the  court of  appeals has no  jurisdiction to  review            it).                                         -2-            that a  second amended complaint was  unnecessary because the            amended complaint already stated a claim for negligence.                      Judge Torres, however, determined that although the            magistrate judge's order  was ambiguous, the  more reasonable            interpretation was  that the magistrate judge  had denied the            motion  to amend  because  Dr. Bauermeister  would have  been            prejudiced.    Such  a   finding  made  sense,  Judge  Torres            concluded, only if the magistrate  judge had read the  second            amended complaint as setting forth a new theory for relief.                                                 ___                      We agree.   Wojnar ignores  the magistrate  judge's            emphasis on the fact that Wojnar waited to file the motion to            amend until  the close  of discovery.   The  magistrate judge            relied on this  "undue delay" to  find that Dr.  Bauermeister            would have  been prejudiced  if Wojnar  were allowed  to file            amended  pleadings   with  "more  substantial   or  different            claims."   Given  the  equivocal language  in the  magistrate            judge's order, we cannot say that Judge Torres' reading of it            was  an abuse  of discretion.   See  Independent Oil  & Chem.                                            ___  ________________________            Workers v. Procter &  Gamble Mfg. Co., 864 F.2d 927, 929 (1st            _______    __________________________            Cir.  1988) (abuse  of  discretion occurs  when the  district            court  "makes a  serious mistake"  in evaluating  the factors            relative to a decision).                      Wojnar further argues that Judge Torres ignored the            magistrate judge's  recommendation, made in  the same  order,            that Dr.  Bauermeister's Rule 12(b)(6) motion  to dismiss the                                         -3-            amended  complaint   be  denied.    Wojnar   avers  that  the            magistrate  judge  based this  suggestion  on  the view  that            Wojnar's   supplemental   answers   to   Dr.   Bauermeister's            interrogatories  put the  latter on  notice that  the amended            complaint stated a claim for malpractice.                      Wojnar misconstrues  this ruling.  It  appears that            the magistrate  judge was addressing a  different motion, one            based  on  the  allegation  that Wojnar  had  failed  to file            sufficiently   detailed   answers   to   Dr.   Bauermeister's            interrogatories.   Dr. Bauermeister filed  this motion  under            Fed.  R.  Civ.  P.  37(b)(2)(C),  not  Rule  12(b)(6).    The            magistrate  judge  determined   that  Wojnar's   supplemental            answers  (filed   after  the  Rule  37   motion)  "provide[d]            substantially more detail" than the original answers and that            a dismissal under Rule 37 was  not warranted.  He did not, as            Wojnar avers, make any  finding concerning the sufficiency of                               ___            these answers as they related to a claim for negligence.                      Wojnar makes  a similar  argument in regard  to the            order's denial of Dr.  Bauermeister's motion for a protective            order.   Dr. Bauermeister had requested that the date for his            responses  to  Wojnar's  interrogatories be  postponed  until            after Wojnar  filed a complaint adequately  setting forth the            nature of Wojnar's claims against  him.  The magistrate judge            stated  that in recommending the denial  of the Rule 12(b)(6)            motion  to dismiss, "I have in essence stated my opinion that                                         -4-            the  amended complaint  adequately gives  fair notice  of the            claim  against defendant."   Again, there is  nothing in this            language to suggest that  the magistrate judge was addressing            the question  whether the amended complaint  gave fair notice            to Dr. Bauermeister of the medical malpractice claim.                                       ___________________                      In  any event, we agree with  Judge Torres that the            amended  complaint   did  not   include  a  tort   claim  for            malpractice.   As he pointed out, the first paragraph of this            complaint states  that damages were being  sought pursuant to            42  U.S.C.    1983  for, among  other  acts, the  "denial  of            adequate  medical care."   That Wojnar intended  to base this            claim on the United  States Constitution is further evidenced            by  his  reference  to  the  Eighth  Amendment  in  the  same            sentence.  Even  more probative, we think,  is the concluding            sentence of this  paragraph.   In it, Wojnar  states that  he            "also  seeks . . . damages for  the common law torts of false            arrest, unlawful imprisonment [and] assault and battery . . .            under  pendent jurisdiction."  Significantly absent from this            list is a claim for the tort of malpractice.                      2.    Wojnar next  points  to  a  statement by  the            magistrate judge at voir dire.  In describing the case to the            potential jurors, the  magistrate judge  (who impanelled  the            jury)  stated  that  it  was a  "medical  malpractice  case."            Wojnar argues  that this statement  indicates the  magistrate                                         -5-            judge's unswerving belief that the amended complaint stated a            claim for negligence.                      However, counsel for Dr. Bauermeister objected when            the  magistrate judge  made  this observation.   After  being            informed  by  counsel of  his intent  to  file the  motion in            limine, the magistrate judge clarified that the case involved            "medical malpractice and/or complete indifference."  At most,            this  shows  that  the  magistrate judge  believed  that  the            amended complaint was ambiguous.                      3.   Finally, Wojnar asserts  that Dr. Bauermeister            was  on notice  as early  as March  4, 1994  that Wojnar  was            claiming medical malpractice.  As evidence for this argument,            Wojnar  points   to  an   interrogatory  propounded   by  Dr.            Bauermeister on  this date.   In  it, Dr.  Bauermeister asked            that  Wojnar specify  the "negligent"  acts committed  by Dr.            Bauermeister  or  his agents.    Wojnar also  avers  that Dr.            Bauermeister admitted, in the motion  in limine, that he  had            become  apprised of the negligence claim on July 25 (the date            Wojnar filed his supplemental  answers to Dr.  Bauermeister's            interrogatories  and 10 days after Wojnar filed the motion to                                         _____            amend).                      We reject these arguments.  As Judge Torres stated,            the fact  that  one party  propounds interrogatories  "fairly            within  the  ambit  of  the  complaint"  cannot  add  to  the            complaint claims not otherwise asserted in it.  We agree with                                         -6-            Judge Torres' observation that to so  hold would constitute a            trap for the thorough.   Further, a party can hardly  be said            to  acquiesce  in the  assertion of  new  claims by  filing a            motion in opposition to them.  This view would render useless            motions such  as the  one filed here,  as well as  motions to            dismiss,  and would provide no recourse  to parties harmed by            the tardy assertion of new claims or defenses.                      For the reasons stated  above, Judge Torres did not            abuse his discretion in granting Dr. Bauermeister's motion in            limine.  See Knowlton v. Deseret Medical, Inc., 930 F.2d 116,                     ___ ________    _____________________            124 (1st  Cir.  1991) (standard  of  review for  decision  to            exclude evidence is abuse of discretion).                      We therefore  affirm the  judgment of  the district                                    ______            court.  See Local Rule 27.1.                    ___                                         -7-
