
USCA1 Opinion

	




        September 12, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2296                              CHRISTOPHER J. HIGHTOWER,                                Plaintiff, Appellant,                                          v.                             GEORGE A. VOSE, JR., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Christopher J. Hightower on brief pro se.            ________________________            Michael B.  Grant, Senior Legal  Counsel, Rhode Island  Department            _________________        of  Corrections,  on Memorandum  in  Support  of  Motion  for  Summary        Disposition Under Rule 27.1 for appellees.                                 ____________________                                 ____________________                 Per Curiam.   Christopher  Hightower appeals pro  se the                 __________                                   ___  __            dismissal of his  civil rights complaint pursuant to  Fed. R.            Civ.  P. 12(b)(6).  For  the following reasons,  we affirm in            part, vacate in part, and remand for further proceedings.1                                                                     1                 On March 28, 1994, Hightower  filed a complaint under 42            U.S.C.    1983 against various Rhode  Island prison officials            based on events which  allegedly occurred while Hightower was            a  pretrial  detainee.    Stripped  to  its  essentials,  the            complaint  alleges  that  correctional officers  Gilbert  and            Berry conspired to falsely charge Hightower with swearing and            threatening; Officer Gilbert later admitted at a disciplinary            hearing that  Hightower did  not swear  and that  the alleged            threat  was a statement by Hightower that he intended to file                                            ____________________               1Although appellees  have not raised the  issue of waiver,               1            we  note that the instant  case was originally  referred to a            magistrate judge for a recommended disposition pursuant to 28            U.S.C.   636(b)(1)(B).   The magistrate's report  recommended            dismissal, Hightower filed no  objection to the  magistrate's            report,  and  the  district  judge  adopted  the  recommended            decision  on the ground  that "no  objection has  been timely            filed and the time for objecting  has expired."  As a general            rule,  a  litigant  in  this  circuit  waives  the  right  to            appellate  review  of  a  district  court  order  adopting  a            magistrate's recommendation if  the litigant fails to  object            to the  proposed decision before  the district  court.   See,                                                                     ___            e.g., Henley Drilling  Co. v.  McGee, 36 F.3d  143, 150-51  &            ____  ____________________     _____            n.19 (1st Cir.  1994); Park  Motor Mart, Inc.  v. Ford  Motor                                   ______________________     ___________            Co., 616 F.2d 603, 605 (1st Cir. 1980).   However, we decline            ___            to apply the waiver  rule to a  pro se litigant's failure  to                                            ___ __            object where,  as here, appellees have not  argued waiver and            the  magistrate's report  does  not warn  the litigant  "that            failure to file within  the time allowed waives the  right to            appeal  the  district  court's  order."    United  States  v.                                                       ______________            Valencia-Copete, 792 F.2d 4, 6-7 (1st Cir. 1986) (per curiam)            _______________            (mandating  such notice  in a  magistrate's report  where the            litigant is pro se).                          ___ __                                         -2-            a  grievance; the  disciplinary board  found Hightower  to be            guilty  of threatening and imposed a term of segregation; and            the  guilty finding  was  affirmed on  administrative appeal.            The "false" charges were made and the discipline was imposed,            the complaint  alleges, in retaliation for Hightower's filing            a grievance against Gilbert.  The complaint also alleges that            the disciplinary board excluded evidence regarding the nature            of  the "threat" in its written report, and that the evidence            in the disciplinary record does not support a guilty finding.            Finally,   the  complaint  alleges  that  Hightower  suffered            various indignities during segregation--including  the denial            of a  shower for eight  days and having  unknown correctional            officers soil  his court clothing--and that  prison officials            did not immediately  return him to the  general population at            the completion of his disciplinary term.                   Based on  these facts,  Hightower alleged the  denial of            his  right   under  the  First  Amendment   to  petition  the            government  for the redress of grievances.  He also alleged a            denial  of  both  substantive  and  procedural  due  process.            Finally,  Hightower invoked the  supplemental jurisdiction of            the district  court and  alleged various violations  of state            law.                 To  the  extent that  Hightower  complains  that he  was            punished for expressing an intent to file a  grievance--or in            the alternative, that he was subjected to "false charges" and                                         -3-            discipline  in retaliation  for doing  so--he states  a claim            under the First  Amendment.2  See, e.g., Sprouse  v. Babcock,                                       2  ___  ____  _______     _______            870 F.2d 450, 452 (8th Cir. 1989) (recognizing that the First            Amendment  right to  petition the  government for  redress of            grievances   includes   redress   under  established   prison            grievance procedures); Franco v.  Kelly, 854 F.2d 584, 589-90                                   ______     _____            (2d Cir. 1988) (observing  that "intentional obstruction of a            prisoner's right to seek  redress of grievances" is precisely            the sort of oppression that   1983 is intended to remedy).                   Hightower's  claims  that the  disciplinary  hearing was            constitutionally deficient and that he was denied substantive            due process  are closely intertwined  with his claim  that he            was  punished for  constitutionally protected  activity.   We            need not definitively resolve  at this juncture the viability            of these claims.3  Since Hightower may be able to show injury                            3            under the First  Amendment, it may be unnecessary to consider            claims arising  out of other constitutional  provisions.  Cf.                                                                      ___                                            ____________________               2Contrary to appellees' suggestion, claims  asserted under               2            the First Amendment survive Sandin v. Connor, 115 S. Ct. 2293                                        ______    ______            (1995).   See  Sandin, 115  S. Ct.  at 2302 n.11;  Cornell v.                      ___  ______                              _______            Woods,  69  F.3d 1383,  1387 n.4  (8th  Cir. 1995);  Pratt v.            _____                                                _____            Rowland,  65  F.3d 802,  806-07  (9th Cir.  1995);  Boomer v.            _______                                             ______            Irvin, 919 F. Supp. 122, 126 (W.D.N.Y. 1995).            _____               3We note,  however, that the Supreme  Court's rationale in               3            Sandin does  not apply  to pretrial  detainees,  who must  be            ______            afforded a  due process hearing  before being punished.   See                                                                      ___            Mitchell  v.  Dupnik, 75  F.3d 517,  523-25 (9th  Cir. 1996);            ________      ______            Whitford  v. Boglino, 63 F.3d  527, 531 n.4  (7th Cir. 1995);            ________     _______            Poole  v. Jefferson County Sheriff's Dep't, 921 F. Supp. 431,            _____     ________________________________            433-34 (E.D. Tex. 1996).                                         -4-            Franco, 854 F.2d at  590 n.3; Burton v. Livingston,  791 F.2d            ______                        ______    __________            97, 101 n.2 (8th Cir.  1986).  If Hightower fails to  prove a            First  Amendment violation,  he  may nonetheless  succeed  in            showing  a violation of due process if he can demonstrate, as            he  alleges, that  there  is no  evidence  in the  record  to            support a constitutionally valid  charge of threatening.  See                                                                      ___            Superintendent,  Mass. Correctional  Inst., Walpole  v. Hill,            ___________________________________________________     ____            472  U.S.  445,  455-56  (1985)  (holding  that  due  process            requires  that  a  finding of  guilt  be  supported  by "some            evidence" in the record).4                                     4                 Hightower's  remaining     1983  claims   were  properly            dismissed  because, on the facts of this case, they amount to            de   minimis   impositions   and  thus   do   not   implicate            __   _______            constitutional concerns.  See Bell  v. Wolfish, 441 U.S. 520,                                      ___ ____     _______            539 n.21 (1979).   The  delay in returning  Hightower to  the            general population was brief.   Hightower makes no allegation            that  he was repeatedly denied  showers, or that  he was ever            denied access to hygiene items, water, and towels.  We do not            think  a single instance of  being denied a  shower for eight            days,  without more,  states a  due  process violation.   Cf.                                                                      ___            Davenport  v.  DeRobertis, 844  F.2d  1310,  1316 (7th  Cir.)            _________      __________                                            ____________________               4Because appellees Vose,  Gardner, and  Cudworth have  not               4            renewed the issue on appeal, and the matter was not addressed            by Hightower below, we  do not resolve whether  the complaint            alleges  sufficient   involvement  on   the  part   of  these            supervisory officials to state a   1983 claim against them.                                           -5-            (holding  that  one  shower  per  week  was  constitutionally            sufficient under  the  Eighth Amendment),  cert. denied,  488                                                       ____________            U.S. 908 (1988).                   Having  reinstated some  portion of  Hightower's federal            claims, we also reinstate  his supplemental state law claims.            See 28 U.S.C.    1367(c)(3).  Because the issue has  not been            ___            briefed,  we express no opinion on whether any of these state            law claims are viable.                 Affirmed, in  part; vacated,  in part; and  remanded for                 ________________________________________________________            further proceedings.             ____________________                                         -6-
