                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 02-1365

                     MICHAEL SADLOWSKI, ET AL.,

                       Plaintiffs, Appellants,

                                      v.

                              LOUIS BENOIT,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M Gorton, U.S. District Judge]


                                Before
                          Campbell and Stahl,
                        Senior Circuit Judges,
                      and Lynch, Circuit Judge.




     Michael Sadlowski, Jocelyn Sadlowski and Suzanne Sadlowski on
brief pro se.
     Douglas I. Louison, Stephen C. Pfaff and Merrick, Louison &
Costello on brief for appellee.



                              March 31, 2003
             Per Curiam. Plaintiffs-appellants Michael, Jocelyn and

Suzanne Sadlowski appeal from the district court's grant of summary

judgment dismissing their federal claims pursuant to 42 U.S.C. §

1983, against defendant Louis Benoit and remanding their state law

claims to state court.         "We review a summary judgment de novo,

viewing the record in the light most favorable to the nonmoving

party to determine whether there exists a genuine issue of material

fact." Muniz Cortes v. Intermedics, Inc., 229 F.3d 12 (1st Cir.

2000).

             In their brief, appellants base their challenge to the

grant of summary judgment on two alleged errors by the district

court: 1) in ruling that plaintiffs' Fourth Amendment claim based

on a search pursuant to an invalid warrant was precluded under the

doctrine     of   collateral   estoppel,    and   2)   in   granting    summary

judgment sua sponte on the claim contained in ¶ 6 of the amended

complaint (threatening manner of the search).

I.   Claim    That   Search    Pursuant    to   Invalid     Warrant    Violated

Plaintiffs' Fourth Amendment Rights


             The district court held that the claim that plaintiffs'

Fourth Amendment rights were violated by defendant's search of

their residence pursuant to an invalid warrant was precluded by a

determination by the           Leominster District Court, denying for

"insufficient evidence" plaintiffs' application for issuance of a

criminal complaint against defendant Louis Benoit, pursuant to

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Mass. Gen. Laws ch. 218 §§ 32 - 35A.               On appeal, the Sadlowskis

argue that the court erred in applying issue preclusion because 1)

the issues were not identical,         2) the parties were not the same,

and 3) plaintiffs did not receive a "full and fair hearing" in

state court.

             We need not resolve the problematic question of whether

issue preclusion applies here, because we affirm on the alternative

ground that plaintiffs have failed to meet their burden of showing

a genuine issue of material fact as to the claim deemed precluded.

See Four Corners serv. Station, Inc. v. Mobil Oil Corp., 51 F.3d

306, 314 (1st Cir. 1995) (appellate court is free to affirm summary

judgment   on    any   ground     supported   by    the   record    and    fairly

presented).

             "Once a defendant moves for summary judgment and places

in issue the question of whether the plaintiff's case is supported

by sufficient evidence, the plaintiff must establish the existence

of a factual controversy that is both genuine and material.                    To

carry this burden, the plaintiff must 'affirmatively point to

specific facts that demonstrate the existence of an authentic

dispute.'" Melanson v. Browning-Ferris Indus., Inc., 281 F.3d 272,

276 (1st Cir. 2002).

           In opposing summary judgment, plaintiffs relied upon

deposition      testimony   and    affidavits      of   Jocelyn    and    Suzanne

Sadlowski.      At best, that evidence established a genuine factual


                                      -3-
controversy as to: 1) whether the warrant presented to plaintiffs

at the time of the search was signed by a magistrate and had

Jeffrey Sadlowski's name on it, and 2) whether it differed in

format from the warrant authorizing the search of their home which

was on file with the Leominster District Court.          However, neither

factual controversy is material to plaintiffs' Fourth Amendment

claim.

           The only specific facts set forth by plaintiffs in

support   of   their   claim   are   Jocelyn    and   Suzanne   Sadlowski's

recollections that the warrant they were shown at the time of the

search (the "Served Warrant") was unsigned, did not contain Jeffrey

Sadlowski's name as the occupant, and was different in format from

the one they viewed several days later on file with the Leominster

District Court (the "Filed Warrant"). They also rely upon evidence

indicating that the Filed Warrant contained folds inconsistent with

how defendant demonstrated he would have folded the Served Warrant.



           Plaintiffs testified in their depositions that the Served

Warrant included a description of the items to be searched for and

the place to be searched (the Sadlowskis' home) and they do not

contest the adequacy of those descriptions. In their opposition to

summary judgment, plaintiffs specifically denied that they were

alleging that the affidavit submitted in support of the warrant

application was "made-up or invalid."          The record includes a copy


                                     -4-
of   the   application     for   the   warrant   to    search   the    Sadlowski

residence which is dated the day of the search and signed by

Assistant Clerk Magistrate Raymond A. Salmon, Jr.1                    Plaintiffs

have not argued that the application and affidavit in support

thereof did not establish probable cause to search their home.2

            Under these circumstances, the contested facts identified

by plaintiffs, if proven, would not establish a violation of their

Fourth Amendment rights. The lack of a signature on the Served

Warrant would not render the search unconstitutional. See United

States v. Lipford, 203 F.3d 259, 270 (4th Cir. 2000);                     United

States v. Kelley, 140 F.3d 596, 602 n. 6 (5th Cir. 1998).                      The

Fourth Amendment does not require that a search warrant "name the

person from whom the things will be seized." Zurcher v. Stanford

Daily, 436 U.S. 547, 555 (1978).          Plaintiffs' contention that the

defendant did not comply with Mass. Gen. Laws ch. 276, § 3,

prescribing the methods for issuance of a search warrant, is also

insufficient to support a Fourth Amendment claim. See White v.

Olig, 56 F.3d 817, 820 (7th Cir. 1995). We conclude that there is

no   trialworthy   issue    as   to    this   Fourth   Amendment      claim   and,

therefore, summary judgment was appropriate.



      1
       The record does not include a copy of the supporting
affidavit which was incorporated in the application.
      2
       Plaintiffs' allegation that the affidavit in support of the
search warrant was prepared after the search had been completed is
entirely unsubstantiated.

                                       -5-
II. Dismissal of Claim that Officer's Threatening Manner Amounted
to Constitutional Violation

            Appellants challenge the grant of summary judgment on the

claim that the "threatening manner" in which defendant conducted

the     search     of     Suzanne        Sadlowski's     bedroom       violated        her

constitutional rights.           Even assuming that defendant's summary

judgment motion did not encompass this claim, "[i]t is apodictic

that trial courts have the power to grant summary judgment sua

sponte." Rogan v. Menino, 175 F.3d 75, 79 (1st Cir. 1999).                             Two

conditions precedent must be satisfied before a trial court may

enter    summary    judgment        sua    sponte:      "(1)    the    case     must    be

sufficiently advanced in terms of pretrial discovery for the

summary judgment        target      to    know   what    evidence      likely    can    be

mustered,    and    (2)    the   target      must    have      received   appropriate

notice."Id.      The ten-day notice requirement of Rule 56 applies to

sua sponte grants of summary judgment. Id. at 80.                     "In the context

of a sua sponte summary judgment, 'notice' means that the targeted

party 'had reason to believe the court might reach the issue and

received a fair opportunity to put its best foot forward.'" Leyva

v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir. 1999) (citation

omitted).

            Here,       both     conditions         precedent         were satisfied.

Discovery had been underway for more than a year when defendant

moved for summary judgment. The plaintiffs were given notice as of

the date of the magistrate judge's Report and Recommendation

                                           -6-
(February 15, 2002) that the court was considering entering summary

judgment as to the "threatening manner" claim. In their opposition

to   the   Report,   plaintiffs   could   have   argued   that   there   were

disputed facts concerning that claim. Instead, they merely pointed

out that defendant had not moved for summary judgment as to that

specific claim.      Summary judgment entered on March 1, 2002, more

than ten days after plaintiffs had received notice. Therefore, the

district court did not err in sua sponte entering summary judgment

as to the claim contained in paragraph 6 of the amended complaint.3

            Affirmed.




      3
       On the merits, appellants do not dispute the district
court's ruling that their allegations "do not come close to
establishing the type of conduct necessary to establish a
constitutional   violation,   i.e.,   that  Sgt.    Benoit   acted
unreasonably." Instead, they argue only that defendant's conduct
violated Mass. Gen. Laws ch. 12, §11i.     "By the terms of the
statute itself, a section 1983 claim must be based upon a federal
right." Ahern v. O'Donnell, 109 F.3d 809, 815 (1st Cir. 1997).

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