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[NOT FOR PUBLICATION]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.

________________________

of

Michael B. Grant, Senior Legal

_________________

Counsel, Rhode Island

Corrections,

Support

on Memorandum

in

Disposition Under Rule 27.1 for appellees.

of

Motion

Departm
for

Summ

____________________

____________________

Per Curiam.
__________

Christopher

Hightower appeals pro

___

se the
__

dismissal of his

Civ.

civil rights complaint pursuant to

P. 12(b)(6).

For

the following reasons,

Fed. R.

we affirm in

part, vacate in part, and remand for further proceedings.1

1

On March 28, 1994, Hightower

U.S.C.

1983 against various Rhode

based on events which

filed a complaint under 42

pretrial

complaint

allegedly occurred while Hightower was

detainee.

alleges

Island prison officials

that

Stripped

to

its

essentials,

correctional officers

Gilbert

the

and

Berry conspired to falsely charge Hightower with swearing and

threatening; Officer Gilbert later admitted at a disciplinary

hearing that

threat

Hightower did

not swear

and that

the alleged

was a statement by Hightower that he intended to file

____________________

1Although appellees
1
we

have not raised the

note that the instant

issue of waiver,

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

dismissal, Hightower filed no

report,

and

decision

the

district

on the ground

objection to the
judge

that "no

filed and the time for objecting

rule,

litigant

appellate

review

in
of

this
a

objection has

been timely

waives

court

the district

McGee, 36 F.3d
_____

Co., 616 F.2d 603, 605 (1st Cir. 1980).

___

object where,
the

rule to a

failure to file within

appeal

the

district

does

right

to

adopting

court.

See,
___

143, 150-51

not warn

order."

&

v. Ford Motor
___________

However, we decline
to

argued waiver and

the litigant

the time allowed waives the

court's

object

pro se litigant's failure

___ __

as here, appellees have not

magistrate's report

the

order

1994); Park Motor Mart, Inc.

______________________

to apply the waiver

As a general

the litigant fails to

proposed decision before

n.19 (1st Cir.

recommended

has expired."

district

e.g., Henley Drilling Co. v.

____ ____________________

magistrate's

the

circuit

magistrate's recommendation if
to the

adopted

recommended

"that

right to

United States
______________

v.

Valencia-Copete, 792 F.2d 4, 6-7 (1st Cir. 1986) (per curiam)

_______________
(mandating

such notice

litigant is pro se).

___ __

in a

magistrate's report

where the

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grievance; the

guilty

the

disciplinary board

found Hightower

to be

of threatening and imposed a term of segregation; and

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

various indignities during segregation--including

of a

shower for eight

officers soil

days and having

return him to the

the denial

unknown correctional

his court clothing--and that

did not immediately

suffered

prison officials

general population at

the completion of his disciplinary term.

Based on

his

right

these facts,

under

the

Hightower alleged the

First

Amendment

government

for the redress of grievances.

denial

both

of

substantive

and

to

denial of

petition

the

He also alleged a

procedural

due

process.

Finally,

Hightower invoked the

the district

court and

supplemental jurisdiction of

alleged various violations

of state

law.

To

the

extent that

Hightower

complains

punished for expressing an intent to file a

that he

was

grievance--or in

the alternative, that he was subjected to "false charges" and

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discipline

in retaliation

under the First

for doing

Amendment.2
2

so--he states

See, e.g., Sprouse

___ ____ _______

a claim

v. Babcock,
_______

870 F.2d 450, 452 (8th Cir. 1989) (recognizing that the First

Amendment

grievances

right to

petition the

includes

redress

grievance procedures); Franco v.

______

government for

under

redress of

established

prison

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

Hightower's

claims

1983 is intended to remedy).

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

need not definitively resolve

of these claims.3
3

under the First

claims arising

activity.

We

at this juncture the viability

Since Hightower may be able to show injury

Amendment, it may be unnecessary to consider

out of other constitutional

provisions.

Cf.
___

____________________

2Contrary to appellees' suggestion, claims

2

asserted under

the First Amendment survive Sandin v. Connor, 115 S. Ct. 2293

______
______
(1995).
Woods,
_____
Rowland,
_______

See
___
69

Sandin, 115
______

F.3d 1383,
65

F.3d 802,

S. Ct.

1387 n.4
806-07

at 2302 n.11;
(8th

Cornell v.
_______

Cir. 1995);

(9th Cir.

1995);

Pratt v.
_____
Boomer v.
______

Irvin, 919 F. Supp. 122, 126 (W.D.N.Y. 1995).

_____

3We note,
3
Sandin does

however, that the Supreme

not apply

to pretrial

Court's rationale in

detainees,

who must

be

______
afforded a

due process hearing

Mitchell
________

v.

Whitford
________

v. Boglino, 63 F.3d
_______

Poole
_____

Dupnik, 75
______

before being punished.

F.3d 517,

523-25 (9th

527, 531 n.4

See
___

Cir. 1996);

(7th Cir. 1995);

v. Jefferson County Sheriff's Dep't, 921 F. Supp. 431,

________________________________

433-34 (E.D. Tex. 1996).

-4-

Franco, 854 F.2d at

______

97, 101 n.2 (8th Cir.

590 n.3; Burton v. Livingston,

______
__________

1986).

If Hightower fails to

791 F.2d

prove a

First

Amendment violation,

showing

he

he

may nonetheless

succeed

a violation of due process if he can demonstrate, as

alleges, that

there

is no

evidence

support a constitutionally valid

in the

record

charge of threatening.

Superintendent, Mass. Correctional Inst., Walpole

___________________________________________________

472

U.S.

requires

in

445,

455-56

that

(1985)

finding of

(holding

guilt

be

that

due

supported

to

See
___

v. Hill,
____

process

by "some

evidence" in the record).4

4

Hightower's

dismissed

de
__

remaining

1983

claims

were

properly

because, on the facts of this case, they amount to

minimis
_______

impositions

constitutional concerns.

and

See Bell
___ ____

thus

do

not

implicate

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

showers, or that

he was repeatedly denied

he was ever

denied access to hygiene items, water, and towels.

think

a single instance of

days,

without more,

Davenport
_________

v.

being denied a

states a

DeRobertis, 844
__________

due

We do not

shower for eight

process violation.

F.2d

1310,

1316 (7th

Cf.
___

Cir.)

____________________

4Because appellees Vose,

4

Gardner, and

Cudworth have

not

renewed the issue on appeal, and the matter was not addressed
by Hightower below, we
alleges

sufficient

do not resolve whether

involvement

supervisory officials to state a

on

the

the complaint

part

of

these

1983 claim against them.

-5-

(holding

that

sufficient under

one

the

shower

per

week

was

Eighth Amendment),

constitutionally

cert. denied,
____________

488

U.S. 908 (1988).

Having

reinstated some

claims, we also reinstate

See 28 U.S.C.
___

portion of

Hightower's federal

his supplemental state law claims.

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.
____________________

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