
USCA1 Opinion

	




          November 25, 1992     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1877                                               ALBERT PONGONIS,                                Plaintiff, Appellant,                                          v.                               RONALD DESANTIS, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Lawrence P. Cohen, U.S. Magistrate Judge]                                            _____________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Torruella and Cyr, Circuit Judges.                                             ______________                                 ___________________               Albert Pongonis on brief pro se.               _______________               David C. Jenkins, Gallagher and Gallagher P.C. and Robert J.               ________________  ____________________________     _________          O'Sullivan on brief for appellees.           __________                                  __________________                                  __________________                 Per Curiam.   Plaintiff-appellant filed  a civil  rights                 __________            action  (plus  pendent   state  claims)    against Ronald  De            Santis, a Lawrence police officer,  the City of Lawrence, and            the  city's  police chief.    Among  other things,  plaintiff            contended that  De Santis  had unlawfully arrested  plaintiff            without probable  cause and had  used excessive  force.   The            case was  tried  by consent  to  a jury  presided  over by  a            magistrate.   At the  close of  the evidence,  the magistrate            directed  a  verdict for  the city  and  police chief  on the            grounds, principally, that plaintiff had not presented either            any evidence of  a municipal policy, practice or  custom upon            which to  predicate municipal civil rights  liability nor any            basis  for supervisory liability of  the police chief.    The            jury  found for  defendant De  Santis.   The magistrate  also            found for  defendants on the  equitable claims  tried to  the            court.  Plaintiff has appealed.                 Plaintiff's appellate brief contains a recitation of his            version  of the evidence.  He has failed, however, to provide            us with a copy of the trial transcript.  Consequently, to the            extent  he  is  attacking  the sufficiency  of  the  evidence            underlying the  jury verdict or the  magistrate's rulings, he            has  forfeited  appellate  review  by failing  to  order  the            transcript.  Muniz Ramirez  v. Puerto Rico Fire Services, 757                         _____________     _________________________            F.2d 1357,  1358 (1st Cir.  1985) ("When an  appellant raises            issues that are  factually dependent yet  fails to provide  a                                         -2-            transcript  of  the  pertinent  proceedings in  the  district            court, this  circuit . . .  has repeatedly held  that we will            not review the allegations.").   We turn to appellant's other            arguments.                 1.   Appellant argues that Magistrate  Cohen should have            disqualified  himself from  presiding  at  the trial  because            defense counsel had requested  at a pre-trial conference that            Magistrate  Cohen  be  designated  as the  trial  judge.   We            disagree.   The  docket  indicates that,  beginning in  1990,            motions were referred to  Magistrate Cohen.  Consequently, in            view  of Magistrate  Cohen's  familiarity with  the case,  it            would have  made sense for  Magistrate Cohen to  preside over            the  trial  in  the  event  the  parties  consented  (as they            eventually  did) to  trial before  a magistrate.   Therefore,            even  if defense  counsel  did ask  for  Magistrate Cohen  to            preside,  we  see  no  basis for  bias  or  disqualification.            Moreover,  there is  no  indication that  appellant  objected            prior to  trial to  Magistrate Cohen presiding.   Appellant's            unsupported  allegation in  his motion  for new  trial, filed            after the  jury and  magistrate had found  against him,  that            Magistrate Cohen  was a  "friend" of  defense counsel  is not            sufficiently specific to require recusal.                  2.  Appellant contends  he was unable to prove  his case            because he was not permitted to depose and subpoena witnesses            at  government expense.  Plaintiff's  reliance on Fed. R. Cr.                                         -3-            P. 17(b) as authority for subpoenas  at government expense is            misplaced as Rule 17 does not apply to civil cases.                   Most  courts  have concluded  that  an  indigent has  no            constitutional  or  statutory   right  to  have   witness  or            deposition costs  provided at  government expense in  a civil            case.  Tedder v.  Odel, 890 F.2d 210 (9th Cir.  1989); Boring                   ______     ____                                 ______            v.  Kozakiewicz, 833  F.2d 468,  474 (3rd  Cir.  1987), cert.                ___________                                         _____            denied,  485 U.S. 991  (1988); Johnson  v. Hubbard,  698 F.2d            ______                         _______     _______            286,  288-90 (6th  Cir.  1983), cert.  denied,  464 U.S.  917                                            _____________            (1983);  McNeil  v. Lowney,  831  F.2d 1368,  1373  (7th Cir.                     ______     ______            1987),  cert.  denied, 485  U.S.  965  (1988); United  States                    _____________                          ______________            Marshals Service v.  Means, 741 F.2d 1053,  1056-57 (8th Cir.            ________________     _____            1984); Newson v. Harrison, 687 F.Supp. 360 (W.D. Tenn. 1988).                   ______    ________            We need not address the issue, however, because appellant has            not indicated the relevance of the witnesses he was unable to            examine.                   In his  motion for new trial,  appellant complained that            he had wanted to subpoena all the vendors at the flea  market            where appellant  was arrested,  but Magistrate Cohen  allowed            only  two or three  vendors to appear  on appellant's behalf.            We see no indication  on the district court docket  or in the            materials plaintiff has presented that he ever filed a motion            requesting witness subpoenas and explaining the  relevance of            the witnesses.   Nor on  appeal has appellant  explained what            the  non-testifying vendors could have  added.  In any event,                                         -4-            the  magistrate  would   have  had   discretion  to   exclude            cumulative  evidence.  On the record before us, therefore, we            find no error.                 3.    Appellant challenges  the  magistrate's denial  of            appellant's motion  to ask potential jurors  whether they had            ever  had friends or relatives employed  in a law enforcement            field.   We  have said  that when  government agents  are key            witnesses, the trial court should  ordinarily ask prospective            jurors whether they are  "inclined to  have greater  faith in            the  agents' testimony  merely  by virtue  of their  official            position."   United States v. Victoria-Peguero,  920 F.2d 77,                         _____________    ________________            84 (1st Cir.  1990), cert.  denied, 111 S.  Ct. 2053  (1991).                                 _____________            Appellant, however,  did not request this  question.  Rather,            he  wanted to  know whether  any jurors  had "close  friends,            relatives or family members in .  . . any branches of the law            enforcement field."  Having a friend or relative who is a law            enforcement officer,  however, is not a  ground for automatic            disqualification.   See United  States v. Lawrence,  952 F.2d                                ___ ______________    ________            1034,  1037  (8th  Cir.  1992)  (court   did  not  abuse  its            discretion  in crediting a juror who said that his connection            to law enforcement would  not influence his decision making),            cert. denied, 112 S.  Ct. 1777 (1992); Depree v.  Thomas, 946            ____________                           ______     ______            F.2d  784,  788-92 (11th  Cir. 1991)  (court  did not  err in            rejecting defendant's  challenges to two jurors  with ties to            law enforcement).  Moreover, as appellant has not provided us                                         -5-            with a transcript of the voir dire and trial, we can not tell            whether  the  magistrate  did  in fact  question  the  jurors            concerning  potential  bias  in  favor  of  law   enforcement            officers  or instruct them against any such bias.  See United                                                               ___ ______            States v.  Victoria-Peguero, 920 F.2d at  85 (court's failure            ______     ________________            to  voir dire prospective jurors concerning  bias in favor of            law enforcement officers  was not reversible error in view of            surrounding   circumstances,   including   instruction   that            government agents  are entitled  to no more  credibility than            any other witness).   On  the present  record, appellant  has            failed to show error.                 Affirmed.                 _________                                         -6-
