Strahan v. Frazier , 62 F. App'x 359 ( 2003 )

Not for Publication in West's Federal Reporter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. 01-2290
RICHARD MAX STRAHAN,
Plaintiff, Appellant,
v.
PAUL FRAZIER, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Stahl, Senior Circuit Judge,
Lipez and Howard, Circuit Judges.
Richard Max Strahan on brief pro se.
Joseph L. Tehan, Jr., Katharine Goree Doyle and Kopelman and
Paige, P.C. on brief for appellees Town of Braintree, Frazier,
Sellgren, Sanderson.
Douglas I. Louison, Regina M. Ryan and Merrick, Louison &
Costello on brief for appellee Karen MacAleese.
March 21, 2003
Per Curiam. Richard Max Strahan brought a civil rights
action against Braintree police officers alleging that on October
31, 2000, they improperly prevented him from gathering signatures
on a ballot initiative petition and collecting donations at the
South Shore Plaza Shopping Mall by arresting him in violation of
the First and Fourth Amendments of the United States Constitution
as well as rights under the Massachusetts constitution.1 The
district court granted partial summary judgment for defendants,
finding, inter alia, that the Plaza is private property and hence
not subject to the First Amendment. However, the court found that
Article 48 of the Articles of Amendment of the Massachusetts
constitution protects the right to gather signatures for an
initiative petition in a private shopping mall, at least in an
unobtrusive and reasonable manner, and that there were material
issues of fact as to whether Strahan was collecting signatures
peacefully and, relatedly, whether he was arrested without probable
cause. Following a jury trial, the district court entered judgment
for defendants. This appeal followed.
Strahan challenges the district court's summary judgment
ruling that there was no First Amendment violation; the district
court's failure to resolve his claim that collecting donations is
1
The complaint also references a 1992 incident. However, the
district court ruled that Strahan's claim with respect to this
earlier incident is time-barred, and Strahan has not
challenged this ruling.
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also protected activity under the state constitution; the district
court's denial of his motion for additional time for discovery
pursuant to Fed. R. Civ. P. 56(f); the jury instruction on probable
cause for an arrest for state criminal trespass; and the district
court's failure to grant his requests for preliminary and permanent
injunctive relief. Defendants-appellees have not cross-appealed
from the district court's ruling that the Massachusetts
constitution protects petitioning in a private shopping mall.
We uphold the rejection of Strahan's First Amendment
claim at summary judgment essentially for the reasons stated by the
district court. The First Amendment does not prevent a property
owner from restricting the exercise of free speech on private
property, including a private shopping mall. See Hudgens v. NLRB,
424 U.S. 507, 513-21 (1976). At summary judgment, defendants
submitted evidence that the Plaza requested Braintree police to
direct Strahan to leave the premises. We have previously rejected
attempts, such as Strahan's, to create a First Amendment right of
access based on allegations of conspiracy or collusion between the
private owner and police officers. See Cape Cod Nursing Home
Council v. Rambling Rose Rest Home, 667 F.2d 238, 242 (1st Cir.
1981); see also Kay v. New Hampshire Democratic Party, 821 F.2d 31,
34 (1st Cir. 1987).
The district court's stated reason for not resolving the
question whether the state constitution protects soliciting
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donations in a private shopping mall--namely, that "it is unclear
whether the parties dispute whether Strahan was actually collecting
donations"--appears to reflect a ripeness determination. The
record is clear that Strahan was not, in fact, collecting donations
at the time of the arrest, though he has collected donations at the
Plaza in the past in violation of Plaza policy. We think that the
district court properly refrained from reaching the question given
the uncertainty in the record as to what form his "disobedience"
has taken in the past and might take in the future, see Blanchette
v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 143 n.29 (1974),
(listing as factors for case-by-case ripeness determination, inter
alia, the certainty that "disobedience" will take a particular
form), and the fact that the question involves a complex, unsettled
issue of state law, cf. 28 U.S.C. § 1367(c)(1) (district court may
decline supplemental jurisdiction if a claim raises a novel or
complex issue of state law); 13A Wright, Miller, & Cooper, Federal
Practice & Procedure § 3532.5 at 191 (2d Ed. 1984) (suggesting that
it is appropriate to consider deference to state institutions
either as part of a ripeness determination or as an independent
matter of abstention doctrine).
Strahan's remaining contentions do not require extended
discussion. He makes no developed argument directed at the
district court's reasons in rejecting his request for additional
time for discovery under Fed. R. Civ. P. 56(f) and, thus, the issue
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is waived. See Donovan v. City of Haverhill, 311 F.3d 74, 76 (1st
Cir. 2002) (issues averted to in a perfunctory fashion,
unaccompanied by some effort at developed argumentation, are deemed
waived). Strahan did not interpose a timely objection to the jury
charge, and we see no plain error in the instruction that a police
officer can convey an owner's request to leave the premises.
See Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002)
(plain error review). Finally, the challenge to the denial of a
preliminary injunction is moot, see Chaparro v. Int'l Longshoreman
Ass'n, 983 F.2d 325, 331 n.5 (1st Cir. 1992), and, having lost at
trial, Strahan was not entitled to a permanent injunction.
Affirmed.
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