Pongonis v. DeSantis ( 1992 )


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  • USCA1 Opinion









    November 25, 1992 [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT


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    No. 92-1877




    ALBERT PONGONIS,

    Plaintiff, Appellant,

    v.

    RONALD DESANTIS, ET AL.,

    Defendants, Appellees.


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    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Lawrence P. Cohen, U.S. Magistrate Judge]
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    Before

    Breyer, Chief Judge,
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    Torruella and Cyr, Circuit Judges.
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    Albert Pongonis on brief pro se.
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    David C. Jenkins, Gallagher and Gallagher P.C. and Robert J.
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    O'Sullivan on brief for appellees.
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    Per Curiam. Plaintiff-appellant filed a civil rights
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    action (plus pendent state claims) against Ronald De

    Santis, a Lawrence police officer, the City of Lawrence, and

    the city's police chief. Among other things, plaintiff

    contended that De Santis had unlawfully arrested plaintiff

    without probable cause and had used excessive force. The

    case was tried by consent to a jury presided over by a

    magistrate. At the close of the evidence, the magistrate

    directed a verdict for the city and police chief on the

    grounds, principally, that plaintiff had not presented either

    any evidence of a municipal policy, practice or custom upon

    which to predicate municipal civil rights liability nor any

    basis for supervisory liability of the police chief. The

    jury found for defendant De Santis. The magistrate also

    found for defendants on the equitable claims tried to the

    court. Plaintiff has appealed.

    Plaintiff's appellate brief contains a recitation of his

    version of the evidence. He has failed, however, to provide

    us with a copy of the trial transcript. Consequently, to the

    extent he is attacking the sufficiency of the evidence

    underlying the jury verdict or the magistrate's rulings, he

    has forfeited appellate review by failing to order the

    transcript. Muniz Ramirez v. Puerto Rico Fire Services, 757
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    F.2d 1357, 1358 (1st Cir. 1985) ("When an appellant raises

    issues that are factually dependent yet fails to provide a



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    transcript of the pertinent proceedings in the district

    court, this circuit . . . has repeatedly held that we will

    not review the allegations."). We turn to appellant's other

    arguments.

    1. Appellant argues that Magistrate Cohen should have

    disqualified himself from presiding at the trial because

    defense counsel had requested at a pre-trial conference that

    Magistrate Cohen be designated as the trial judge. We

    disagree. The docket indicates that, beginning in 1990,

    motions were referred to Magistrate Cohen. Consequently, in

    view of Magistrate Cohen's familiarity with the case, it

    would have made sense for Magistrate Cohen to preside over

    the trial in the event the parties consented (as they

    eventually did) to trial before a magistrate. Therefore,

    even if defense counsel did ask for Magistrate Cohen to

    preside, we see no basis for bias or disqualification.

    Moreover, there is no indication that appellant objected

    prior to trial to Magistrate Cohen presiding. Appellant's

    unsupported allegation in his motion for new trial, filed

    after the jury and magistrate had found against him, that

    Magistrate Cohen was a "friend" of defense counsel is not

    sufficiently specific to require recusal.

    2. Appellant contends he was unable to prove his case

    because he was not permitted to depose and subpoena witnesses

    at government expense. Plaintiff's reliance on Fed. R. Cr.



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    P. 17(b) as authority for subpoenas at government expense is

    misplaced as Rule 17 does not apply to civil cases.

    Most courts have concluded that an indigent has no

    constitutional or statutory right to have witness or

    deposition costs provided at government expense in a civil

    case. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989); Boring
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    v. Kozakiewicz, 833 F.2d 468, 474 (3rd Cir. 1987), cert.
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    denied, 485 U.S. 991 (1988); Johnson v. Hubbard, 698 F.2d
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    286, 288-90 (6th Cir. 1983), cert. denied, 464 U.S. 917
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    (1983); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir.
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    1987), cert. denied, 485 U.S. 965 (1988); United States
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    Marshals Service v. Means, 741 F.2d 1053, 1056-57 (8th Cir.
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    1984); Newson v. Harrison, 687 F.Supp. 360 (W.D. Tenn. 1988).
    ______ ________

    We need not address the issue, however, because appellant has

    not indicated the relevance of the witnesses he was unable to

    examine.

    In his motion for new trial, appellant complained that

    he had wanted to subpoena all the vendors at the flea market

    where appellant was arrested, but Magistrate Cohen allowed

    only two or three vendors to appear on appellant's behalf.

    We see no indication on the district court docket or in the

    materials plaintiff has presented that he ever filed a motion

    requesting witness subpoenas and explaining the relevance of

    the witnesses. Nor on appeal has appellant explained what

    the non-testifying vendors could have added. In any event,



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    the magistrate would have had discretion to exclude

    cumulative evidence. On the record before us, therefore, we

    find no error.

    3. Appellant challenges the magistrate's denial of

    appellant's motion to ask potential jurors whether they had

    ever had friends or relatives employed in a law enforcement

    field. We have said that when government agents are key

    witnesses, the trial court should ordinarily ask prospective

    jurors whether they are "inclined to have greater faith in

    the agents' testimony merely by virtue of their official

    position." United States v. Victoria-Peguero, 920 F.2d 77,
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    84 (1st Cir. 1990), cert. denied, 111 S. Ct. 2053 (1991).
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    Appellant, however, did not request this question. Rather,

    he wanted to know whether any jurors had "close friends,

    relatives or family members in . . . any branches of the law

    enforcement field." Having a friend or relative who is a law

    enforcement officer, however, is not a ground for automatic

    disqualification. See United States v. Lawrence, 952 F.2d
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    1034, 1037 (8th Cir. 1992) (court did not abuse its

    discretion in crediting a juror who said that his connection

    to law enforcement would not influence his decision making),

    cert. denied, 112 S. Ct. 1777 (1992); Depree v. Thomas, 946
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    F.2d 784, 788-92 (11th Cir. 1991) (court did not err in

    rejecting defendant's challenges to two jurors with ties to

    law enforcement). Moreover, as appellant has not provided us



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    with a transcript of the voir dire and trial, we can not tell

    whether the magistrate did in fact question the jurors

    concerning potential bias in favor of law enforcement

    officers or instruct them against any such bias. See United
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    States v. Victoria-Peguero, 920 F.2d at 85 (court's failure
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    to voir dire prospective jurors concerning bias in favor of

    law enforcement officers was not reversible error in view of

    surrounding circumstances, including instruction that

    government agents are entitled to no more credibility than

    any other witness). On the present record, appellant has

    failed to show error.

    Affirmed.
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