
USCA1 Opinion

	




          February 16, 1996     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                            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                                          3                    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
