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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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____________________
Before
Breyer, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Selya, Circuit Judge.
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____________________

Francis M. Jackson for appellant.


__________________
Daniel Rapaport with whom Edward R. Benjamin, Jr.
________________
_________________________
Flaherty, Beliveau & Pachios were on brief for appellees.
____________________________

and Pre
___

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____________________

ALDRICH,
brought

Senior Circuit Judge.


______________________

suit against the town

its police

officers, Ted Blais,

George

of Gorham, Maine,

and two of

and Sgt. Wayne

Coffin, and

against the town of Standish and its police officer,


McAuliffe, alleging
States

false arrest in violation

and Maine Constitutions, 42 U.S.C.

Me.R.S.A.

704, and

Lewry

Maine common law.

William

of the United

1983 et seq., 15
__ ___

An amended complaint

added officer Timothy Darnell

of Standish, alleging a second

false

court referred

arrest.

magistrate.

The district

28 U.S.C.

636(b)(1).

the suit

to a

After discovery closed,

defendants moved for summary


Rule

56(f) motion

sought

to

along with

introduce

and recommended approval


Upon a

conducted

plaintiff's

de
__

novo
____

recommendation.

accepted

de novo.
__ ____

motion

defendants'.

defendants'

the district

without
the
arguing

and, for the first time,

magistrate and district court

regard the motion.


is

objection,

review, again
and

The

the magistrate issued a report

Plaintiff appeals,

issues of fact exist,


that the

contradicting

of summary judgment on

general

motion,

his opposition.

evidence

Without taking up the motion,

evidence.

judgment, and plaintiff filed a

court

reference

to

magistrate's
that material
pointing out

improperly failed to

As these are questions of law, our review

Liberty Mut. Ins. Co. v. Commercial Union Ins.


______________________
_____________________

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


___

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The November, 1989 Incident


___________________________

We affirm.

At the time of
was on

the alleged false arrests plaintiff

probation for multiple

driving

while

telephoned

intoxicated.

including

On

1989,

November

his probation officer,

informed her
for their

that he was too

7th,

he

Elizabeth Manchester, and

ill to meet with

bi-weekly meeting.

appeared

driving violations

Several

her that day

hours later plaintiff

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

employer.

While

owned

tavern,

the

defendant

there, Bickford,

officer

engaged

and his

in an

McAuliffe

son-in-law, who

altercation,

and,

Standish

arrived

of

when
to

investigate, he and Bickford also began fighting.


Disputed on
of

fact

regarding

appeal is whether there


plaintiff's

alleged

is a question

intoxication,

whether he joined the fracas or merely attempted


Bickford.

Defendants officer

Blais

and

and

to restrain

Sgt. Coffin,

of

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


probationer.
officer

Defendants assert

call parole

officer

that

Manchester

incident and plaintiff's intoxication.


to

her

affidavit

plaintiff's

arrest

of

record,

for parole

would-be version, including


before a

Sgt.
and

Coffin had

an

describe

the

Manchester, according

responded
violations.

by

In plaintiff's

Manchester's asserted

sentencing court, Manchester was

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requesting

testimony

called only after

the officers

had arrested

plaintiff, outside, where

he was

behaving himself.
Defendants
plaintiff without
intoxication

could

warrant,

alone would

Me.R.S.A. 1954, c. 61,


arrest

not

not

normally
absent

lawfully

probable

be such.

arrest

cause,

Cf. repealing
__

94 by 1973, c. 582,

3.

and
of

However,

would be proper "when requested by an official of the

division

of

Probation

15.1A(9).

If the

Manchester's

court

contradicting

and

Parole."

magistrate had
testimony

her affidavit as

we

only those

Objection

to a

objections that

before
read

it

to the order

summary judgment should be denied.


difficulty.

17-A

The reason

for

copy of

as

arguably

of events, and

magistrate's report
are specified.

See
___

preserves
Keating v.
_______

F.2d 271,

275

a case, incidentally, coming up from Maine.


this is

the universal

efficiency and fairness dictate


given notice and

him a

Plaintiff, however, has a

Secretary of Health and Human Services, 848


________________________________________
(1st Cir. 1988),

Me.R.S.A.

principle that

both

that the judicial officer be

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
within

this principle

denial.

His

pass on it
just as

was a correctable

would have

recommendation,

inconsistent with the motion,

been an

that

was

error
express

necessarily

was an implied denial thereof.

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Addington v. Farmer's Elevator Mut. Ins. Co., 650


_________
________________________________
666 (5th

Cir.), cert. denied, 454 U.S.


_____________

with approval,
F.2d 399, 401

1098 (1981),

Posadas de Puerto Rico, Inc. v.


______________________________
(1st Cir.

seasonally complain,

1988).

Because

F.2d 663,
cited

Radin, 856
_____

plaintiff did

we cannot consider the

not

motion, and the

record must stand without its content.


For

summary

judgment

properly controverted is admitted.


The magistrate

was

statement

"opposition

in

uncontroverted

thus correct
to

purposes,
D. Me.
in

any

fact

not

Loc. R. 19(b)(2).

rejecting

defendants'

plaintiff's
statement

of

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

and

in finding

that

plaintiff's

material facts failed

conclusory

to create an

statement

issue of material

of

fact.

Posadas de Puerto Rico, ante.


______________________ ____

The April, 1990 Incident


________________________
Plaintiff
between

the

Standish

to

walking

roadway and

the

alone,

shoulder

weaving
of a

drunkenly

well-traveled

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

He was wearing
to see.

was

dark clothing, which made him

more difficult

When he was in the roadway, passing cars were forced

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

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about five miles away.


him a

choice of a ride

public way.

When plaintiff declined, Darnell gave


home or an arrest

17-A Me.R.S.A.

505.

for obstructing a

Plaintiff

accepted the

ride,

and Darnell

gave him a

allowing him to sit

search before

unrestrained in the rear seat.

then drove plaintiff home.


same

quick pat-down

Darnell

Plaintiff seeks damages under the

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
to his home

as an alternative to

on driving plaintiff

the police station

was an

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


___ ________
__________
and that

Darnell is

not protected

community caretaking.

But
___

under

the principle

cf. Cady v. Dombrowski,


__ ____
__________

433 (1973); South Dakota v. Opperman, 428 U.S.


_____________
________

of

413 U.S.

364, 368-371

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


_____________
_________________
Cir. 1991), cert. denied, 112
_____________
R.S.A.

S.Ct. 868 (1992).

17-A

505 provides as follows.


505.
505.

Obstructing public ways


Obstructing public ways

1.
A
obstructing

person
public
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is
guilty
ways
if

of
he

Me.

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.
3961.

Placing obstructions on traveled


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

intoxicated,

novel,

on a public way

pedestrian wandering
is an obstruction

about,

that may be

ordered to "cease."
We must
about nothing.

observe that

we think this

claim a

Was plaintiff to be left on the highway?

Affirmed.
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fuss

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