Filed: Apr. 01, 2003
Latest Update: Feb. 21, 2020
Summary: a genuine issue of material fact as to the claim deemed precluded.Sadlowski.Olig, 56 F.3d 817, 820 (7th Cir., 2, Plaintiffs' allegation that the affidavit in support of the, search warrant was prepared after the search had been completed is, entirely unsubstantiated.moved for summary judgment.
Not for Publication in West's Federal Reporter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. 02-1365
MICHAEL SADLOWSKI, ET AL.,
Plaintiffs, Appellants,
v.
LOUIS BENOIT,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M Gorton, U.S. District Judge]
Before
Campbell and Stahl,
Senior Circuit Judges,
and Lynch, Circuit Judge.
Michael Sadlowski, Jocelyn Sadlowski and Suzanne Sadlowski on
brief pro se.
Douglas I. Louison, Stephen C. Pfaff and Merrick, Louison &
Costello on brief for appellee.
March 31, 2003
Per Curiam. Plaintiffs-appellants Michael, Jocelyn and
Suzanne Sadlowski appeal from the district court's grant of summary
judgment dismissing their federal claims pursuant to 42 U.S.C. §
1983, against defendant Louis Benoit and remanding their state law
claims to state court. "We review a summary judgment de novo,
viewing the record in the light most favorable to the nonmoving
party to determine whether there exists a genuine issue of material
fact." Muniz Cortes v. Intermedics, Inc., 229 F.3d 12 (1st Cir.
2000).
In their brief, appellants base their challenge to the
grant of summary judgment on two alleged errors by the district
court: 1) in ruling that plaintiffs' Fourth Amendment claim based
on a search pursuant to an invalid warrant was precluded under the
doctrine of collateral estoppel, and 2) in granting summary
judgment sua sponte on the claim contained in ¶ 6 of the amended
complaint (threatening manner of the search).
I. Claim That Search Pursuant to Invalid Warrant Violated
Plaintiffs' Fourth Amendment Rights
The district court held that the claim that plaintiffs'
Fourth Amendment rights were violated by defendant's search of
their residence pursuant to an invalid warrant was precluded by a
determination by the Leominster District Court, denying for
"insufficient evidence" plaintiffs' application for issuance of a
criminal complaint against defendant Louis Benoit, pursuant to
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Mass. Gen. Laws ch. 218 §§ 32 - 35A. On appeal, the Sadlowskis
argue that the court erred in applying issue preclusion because 1)
the issues were not identical, 2) the parties were not the same,
and 3) plaintiffs did not receive a "full and fair hearing" in
state court.
We need not resolve the problematic question of whether
issue preclusion applies here, because we affirm on the alternative
ground that plaintiffs have failed to meet their burden of showing
a genuine issue of material fact as to the claim deemed precluded.
See Four Corners serv. Station, Inc. v. Mobil Oil Corp., 51 F.3d
306, 314 (1st Cir. 1995) (appellate court is free to affirm summary
judgment on any ground supported by the record and fairly
presented).
"Once a defendant moves for summary judgment and places
in issue the question of whether the plaintiff's case is supported
by sufficient evidence, the plaintiff must establish the existence
of a factual controversy that is both genuine and material. To
carry this burden, the plaintiff must 'affirmatively point to
specific facts that demonstrate the existence of an authentic
dispute.'" Melanson v. Browning-Ferris Indus., Inc., 281 F.3d 272,
276 (1st Cir. 2002).
In opposing summary judgment, plaintiffs relied upon
deposition testimony and affidavits of Jocelyn and Suzanne
Sadlowski. At best, that evidence established a genuine factual
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controversy as to: 1) whether the warrant presented to plaintiffs
at the time of the search was signed by a magistrate and had
Jeffrey Sadlowski's name on it, and 2) whether it differed in
format from the warrant authorizing the search of their home which
was on file with the Leominster District Court. However, neither
factual controversy is material to plaintiffs' Fourth Amendment
claim.
The only specific facts set forth by plaintiffs in
support of their claim are Jocelyn and Suzanne Sadlowski's
recollections that the warrant they were shown at the time of the
search (the "Served Warrant") was unsigned, did not contain Jeffrey
Sadlowski's name as the occupant, and was different in format from
the one they viewed several days later on file with the Leominster
District Court (the "Filed Warrant"). They also rely upon evidence
indicating that the Filed Warrant contained folds inconsistent with
how defendant demonstrated he would have folded the Served Warrant.
Plaintiffs testified in their depositions that the Served
Warrant included a description of the items to be searched for and
the place to be searched (the Sadlowskis' home) and they do not
contest the adequacy of those descriptions. In their opposition to
summary judgment, plaintiffs specifically denied that they were
alleging that the affidavit submitted in support of the warrant
application was "made-up or invalid." The record includes a copy
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of the application for the warrant to search the Sadlowski
residence which is dated the day of the search and signed by
Assistant Clerk Magistrate Raymond A. Salmon, Jr.1 Plaintiffs
have not argued that the application and affidavit in support
thereof did not establish probable cause to search their home.2
Under these circumstances, the contested facts identified
by plaintiffs, if proven, would not establish a violation of their
Fourth Amendment rights. The lack of a signature on the Served
Warrant would not render the search unconstitutional. See United
States v. Lipford, 203 F.3d 259, 270 (4th Cir. 2000); United
States v. Kelley,
140 F.3d 596, 602 n. 6 (5th Cir. 1998). The
Fourth Amendment does not require that a search warrant "name the
person from whom the things will be seized." Zurcher v. Stanford
Daily,
436 U.S. 547, 555 (1978). Plaintiffs' contention that the
defendant did not comply with Mass. Gen. Laws ch. 276, § 3,
prescribing the methods for issuance of a search warrant, is also
insufficient to support a Fourth Amendment claim. See White v.
Olig,
56 F.3d 817, 820 (7th Cir. 1995). We conclude that there is
no trialworthy issue as to this Fourth Amendment claim and,
therefore, summary judgment was appropriate.
1
The record does not include a copy of the supporting
affidavit which was incorporated in the application.
2
Plaintiffs' allegation that the affidavit in support of the
search warrant was prepared after the search had been completed is
entirely unsubstantiated.
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II. Dismissal of Claim that Officer's Threatening Manner Amounted
to Constitutional Violation
Appellants challenge the grant of summary judgment on the
claim that the "threatening manner" in which defendant conducted
the search of Suzanne Sadlowski's bedroom violated her
constitutional rights. Even assuming that defendant's summary
judgment motion did not encompass this claim, "[i]t is apodictic
that trial courts have the power to grant summary judgment sua
sponte." Rogan v. Menino, 175 F.3d 75, 79 (1st Cir. 1999). Two
conditions precedent must be satisfied before a trial court may
enter summary judgment sua sponte: "(1) the case must be
sufficiently advanced in terms of pretrial discovery for the
summary judgment target to know what evidence likely can be
mustered, and (2) the target must have received appropriate
notice."Id. The ten-day notice requirement of Rule 56 applies to
sua sponte grants of summary judgment.
Id. at 80. "In the context
of a sua sponte summary judgment, 'notice' means that the targeted
party 'had reason to believe the court might reach the issue and
received a fair opportunity to put its best foot forward.'" Leyva
v. On the Beach, Inc.,
171 F.3d 717, 720 (1st Cir. 1999) (citation
omitted).
Here, both conditions precedent were satisfied.
Discovery had been underway for more than a year when defendant
moved for summary judgment. The plaintiffs were given notice as of
the date of the magistrate judge's Report and Recommendation
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(February 15, 2002) that the court was considering entering summary
judgment as to the "threatening manner" claim. In their opposition
to the Report, plaintiffs could have argued that there were
disputed facts concerning that claim. Instead, they merely pointed
out that defendant had not moved for summary judgment as to that
specific claim. Summary judgment entered on March 1, 2002, more
than ten days after plaintiffs had received notice. Therefore, the
district court did not err in sua sponte entering summary judgment
as to the claim contained in paragraph 6 of the amended complaint.3
Affirmed.
3
On the merits, appellants do not dispute the district
court's ruling that their allegations "do not come close to
establishing the type of conduct necessary to establish a
constitutional violation, i.e., that Sgt. Benoit acted
unreasonably." Instead, they argue only that defendant's conduct
violated Mass. Gen. Laws ch. 12, §11i. "By the terms of the
statute itself, a section 1983 claim must be based upon a federal
right." Ahern v. O'Donnell, 109 F.3d 809, 815 (1st Cir. 1997).
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