
USCA1 Opinion

	




          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 & 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                        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                        3961.  Placing obstructions on traveled                               road                               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-
