Albert Pongonis v. Ronald Desantis, 979 F.2d 844, 1st Cir. (1992)
Albert Pongonis v. Ronald Desantis, 979 F.2d 844, 1st Cir. (1992)
2d 844
Plaintiff-appellant filed a civil rights 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.
2
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. P. 17(b) as authority for subpoenas at government
expense is misplaced as Rule 17 does not apply to civil cases.
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, the
magistrate would have had discretion to exclude cumulative evidence. On the
record before us, therefore, we find no error.
Affirmed.