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September 12, 1996 [NOT FOR PUBLICATION]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-
