January 28, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1999

                        GEORGE LEWRY,

                    Plaintiff, Appellant,

                              v.

                  TOWN OF STANDISH, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. D. Brock Hornby, U.S. District Judge]
                                                   

                                         

                            Before

                     Breyer, Chief Judge,
                                        

                Aldrich, Senior Circuit Judge,
                                             

                  and Selya, Circuit Judge.
                                          

                                         

Francis M. Jackson for appellant.
                  
Daniel  Rapaport with  whom  Edward R.  Benjamin,  Jr.  and Preti,
                                                                  
Flaherty, Beliveau &amp; Pachios were on brief for appellees.
                        

                                         

                                         

          ALDRICH,   Senior  Circuit  Judge.    George  Lewry
                                           

brought  suit against the town  of Gorham, Maine,  and two of

its police  officers, Ted Blais,  and Sgt. Wayne  Coffin, and

against the town of Standish and its police officer,  William

McAuliffe, alleging  false arrest in violation  of the United

States  and Maine Constitutions, 42 U.S.C.   1983 et seq., 15
                                                        

Me.R.S.A.   704, and  Maine common law.  An amended complaint

added officer Timothy Darnell  of Standish, alleging a second

false  arrest.   The district  court referred  the suit  to a

magistrate.  28 U.S.C.    636(b)(1).  After discovery closed,

defendants moved for summary  judgment, and plaintiff filed a

Rule  56(f) motion  along with  his opposition.   The  motion

sought  to  introduce  evidence   contradicting  defendants'.

Without taking up the motion,  the magistrate issued a report

and recommended approval  of summary judgment on  defendants'

evidence.    Upon a  general  objection,  the district  court

conducted  a  de  novo  review, again  without  reference  to
                      

plaintiff's   motion,   and    accepted   the    magistrate's

recommendation.    Plaintiff appeals,  arguing  that material

issues of fact exist,  and, for the first time,  pointing out

that the  magistrate and district court  improperly failed to

regard the motion.  As these are questions of law, our review

is  de novo.  Liberty Mut.  Ins. Co. v. Commercial Union Ins.
                                                             

Co., 978 F.2d 750, 757 (1st Cir. 1992).  We affirm.
   

                             -2-

The November, 1989 Incident
                           

          At the time of  the alleged false arrests plaintiff

was on  probation for multiple  driving violations  including

driving  while  intoxicated.    On  November  7th,  1989,  he

telephoned  his probation officer,  Elizabeth Manchester, and

informed her  that he was too  ill to meet with  her that day

for their  bi-weekly meeting.  Several  hours later plaintiff

appeared  at Tavern on the Hill, with one Frank Bickford, his

employer.   While  there, Bickford,  and his  son-in-law, who

owned  the  tavern,  engaged  in an  altercation,  and,  when

defendant   officer   McAuliffe   of   Standish   arrived  to

investigate, he and Bickford also began fighting.

          Disputed on  appeal is whether there  is a question

of  fact  regarding  plaintiff's  alleged  intoxication,  and

whether he joined the fracas or merely attempted  to restrain

Bickford.    Defendants officer  Blais  and  Sgt. Coffin,  of

Gorham, arrived after the fray, and recognized plaintiff as a

probationer.    Defendants assert  that  Sgt.  Coffin had  an

officer  call parole  officer  Manchester  and  describe  the

incident and plaintiff's intoxication.  Manchester, according

to  her   affidavit  of   record,  responded   by  requesting

plaintiff's  arrest  for parole  violations.   In plaintiff's

would-be version, including  Manchester's asserted  testimony

before a  sentencing court, Manchester was  called only after

                             -3-

the officers  had arrested  plaintiff, outside, where  he was

behaving himself.

          Defendants  could  not  normally   lawfully  arrest

plaintiff without  a  warrant,  absent  probable  cause,  and

intoxication  alone would  not  be such.    Cf. repealing  of
                                              

Me.R.S.A. 1954, c. 61,    94 by 1973, c. 582,   3.   However,

arrest  would be proper "when requested by an official of the

division   of   Probation  and   Parole."     17-A  Me.R.S.A.

  15.1A(9).    If the  magistrate had  before  him a  copy of

Manchester's  court   testimony  we  read   it  as   arguably

contradicting  her affidavit as  to the order  of events, and

summary judgment should be denied.  Plaintiff, however, has a

difficulty.   Objection  to a  magistrate's report  preserves

only those  objections that  are specified.   See  Keating v.
                                                          

Secretary of  Health and Human  Services, 848  F.2d 271,  275
                                        

(1st Cir. 1988),  a case, incidentally, coming up from Maine.

The reason  for  this is  the universal  principle that  both

efficiency and fairness dictate  that the judicial officer be

given notice and  opportunity to correct  his or her  mistake

before the taking of an appeal.

          If plaintiff's motion should have been allowed, the

magistrate's failure to  pass on it  was a correctable  error

within  this principle  just as  would have  been an  express

denial.      His   recommendation,   that   was   necessarily

inconsistent with the motion,  was an implied denial thereof.

                             -4-

Addington v. Farmer's Elevator  Mut. Ins. Co., 650  F.2d 663,
                                             

666 (5th  Cir.), cert.  denied, 454 U.S.  1098 (1981),  cited
                              

with approval,  Posadas de  Puerto Rico,  Inc. v.  Radin, 856
                                                        

F.2d 399, 401  (1st Cir.  1988).  Because  plaintiff did  not

seasonally complain,  we cannot consider the  motion, and the

record must stand without its content.

          For  summary  judgment   purposes,  any  fact   not

properly controverted is admitted.  D. Me.  Loc. R. 19(b)(2).

The magistrate  was  thus correct  in  rejecting  plaintiff's

statement   in  "opposition   to  defendants'   statement  of

uncontroverted  facts" for not citing sources, Rule 19(b)(2),

and  in finding  that  plaintiff's  conclusory  statement  of

material facts failed  to create an  issue of material  fact.

Posadas de Puerto Rico, ante.
                            

The April, 1990 Incident
                        

          Plaintiff  was  walking  alone,  weaving  drunkenly

between  the  roadway and  the  shoulder  of a  well-traveled

Standish  road around 11:30 p.m., on or about April 21, 1990.

He was wearing  dark clothing, which made him  more difficult

to see.  When he was in the roadway, passing cars were forced

to  move to avoid him.  Defendant officer Darnell of Standish

observed plaintiff, approached and  spoke with him.  Deciding

that plaintiff was intoxicated and a safety hazard to himself

and others, Darnell said he would give him a ride to his home

                             -5-

about five miles away.  When plaintiff declined, Darnell gave

him a  choice of a ride  home or an arrest  for obstructing a

public way.   17-A Me.R.S.A.    505.  Plaintiff  accepted the

ride,  and Darnell  gave him a  quick pat-down  search before

allowing him to sit  unrestrained in the rear seat.   Darnell

then drove plaintiff home.  Plaintiff seeks damages under the

same  claims of law as above, now against officer Darnell and

the town of Standish.

          The   magistrate   recommended  summary   judgment,

reasoning both that probable cause existed for an arrest, and

that plaintiff failed to provide defendants with the required

notice  for  his state  law  claims.   14  Me.R.S.A.    8107.

Plaintiff does not contest the notice issue and his state law

appeals therefore fail.

          We will assume that insisting  on driving plaintiff

to his home  as an alternative to  the police station  was an

arrest, see Michigan v. Chesternut, 486 U.S. 567, 573 (1988),
                                  

and that  Darnell is  not protected  under  the principle  of

community caretaking.  But  cf. Cady v. Dombrowski,  413 U.S.
                                                  

433 (1973); South  Dakota v. Opperman, 428 U.S.  364, 368-371
                                     

(1976); United States v. Rodriguez-Morales, 929 F.2d 780 (1st
                                          

Cir. 1991), cert.  denied, 112  S.Ct. 868 (1992).   17-A  Me.
                         

R.S.A.   505 provides as follows.

            505.  Obstructing public ways

               1.     A   person   is   guilty   of
          obstructing    public    ways    if    he

                             -6-

          unreasonably  obstructs the  free passage
          of  foot  or  vehicular  traffic  on  any
          public  way,  and  refuses  to  cease  or
          remove  the  obstruction  upon  a  lawful
          order  to  do  so  given  him  by  a  law
          enforcement officer.

This  was a  broadening  of its  predecessor,  17 Me.R.S.  A.

  3961.

            3961.  Placing obstructions on traveled
                   road

               Whoever places  rocks, stones, snow,
          ice  or  other  obstructions  in  such  a
          manner  as  to   obstruct  traffic  on  a
          traveled road and leaves them there shall
          be punished  by a  fine of not  more than
          $10 for each offense,  to be recovered on
          complaint, to the  use of the  town where
          the offense is committed.

While  the  point is  novel,  a  pedestrian wandering  about,

intoxicated,  on a public way  is an obstruction  that may be

ordered to "cease."

          We must  observe that  we think this  claim a  fuss

about nothing.  Was plaintiff to be left on the highway?

          Affirmed.
                  

                             -7-
