731 F.2d 54 (1st Cir. 1984), 83-1255, Mann v. Cannon

Docket Nº:83-1255, 83-1256.
Citation:731 F.2d 54
Party Name:Lewis MANN, D.O., Plaintiff, Appellant, v. Joseph E. CANNON, M.D., et al., Defendants, Appellees. Lewis MANN, D.O., Plaintiff, Appellee, v. Joseph E. CANNON, M.D., et al., Defendants, Appellees. Appeal of Leo GRACIK, Leo Grandchamp and Charles Hachadorian, Defendants.
Case Date:March 29, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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731 F.2d 54 (1st Cir. 1984)

Lewis MANN, D.O., Plaintiff, Appellant,


Joseph E. CANNON, M.D., et al., Defendants, Appellees.

Lewis MANN, D.O., Plaintiff, Appellee,


Joseph E. CANNON, M.D., et al., Defendants, Appellees.

Appeal of Leo GRACIK, Leo Grandchamp and Charles

Hachadorian, Defendants.

Nos. 83-1255, 83-1256.

United States Court of Appeals, First Circuit

March 29, 1984

Argued Nov. 9, 1983.

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Keven A. McKenna, Providence, R.I., with whom Bruce Hodge, and McKenna, Greenwood & Feinstein, Providence, R.I., were on brief, for Lewis Mann, D.O.

Faith A. LaSalle, Sp. Asst. Atty. Gen., Providence, R.I., with whom Dennis J. Roberts II, Atty. Gen., Providence, R.I., was on brief, for Joseph E. Cannon, M.D., et al., Leo Gracik, Leo Grandchamp and Charles Hachadorian.

Before CAMPBELL, Chief Judge, ROSENN, [*] Senior Circuit Judge, and BREYER, Circuit Judge.


In April of 1976, local police and Rhode Island health officers entered a house located in Warwick, Rhode Island, belonging to the plaintiff-appellant, Dr. Lewis Mann, D.O., where they seized various items and eventually arrested Mann on a state drug charge. Asserting that their conduct violated his fourth, fifth and fourteenth amendment rights, Mann brought a civil action in the district court under both 42 U.S.C. Sec. 1983 and state law. The district court ruled, without appeal, that the statute of limitations barred any recovery based on the officers' conduct prior to Monday, April 19, 1976. Claims of illegal search and seizure and false arrest under section 1983, and related state law claims--all based on conduct on April 19--were sent to the jury. The jury found for the defendants on all counts except false arrest under Rhode Island law. On the latter, it awarded punitive damages of $7,500 against each of three state health officers. Both Mann and the three officers have appealed from the judgment. 1


Mann argues that the warrantless "clean-up" of his house on April 19, 1976, was so plainly in violation of the fourth amendment that the district court erred in not ordering the entry of judgment n.o.v. on his section 1983 search and seizure claim seeking damages against the participating defendants.

For Mann to prevail on this argument he must establish that evidence "the jury was not at liberty to disbelieve," C. Wright & A. Miller, Federal Practice & Procedure: Civil Sec. 2535 at 591 (1971), quoted in Service Auto Supply Co. v. Harte & Co., 533 F.2d 23, 25 (1st Cir.1976), "could lead reasonable men to but one conclusion." de Mars v. Equitable Life Assurance Society, 610 F.2d 55, 57 (1st Cir.1979). And he must overcome the natural reluctance of courts to order a directed verdict for a party having the burden of proof. Service Auto Supply Co., 533 F.2d at 25. See Federal Insurance Co. v. Summers, 403 F.2d 971, 975-76 (1st Cir.1968) (directed verdicts improper even on uncontradicted evidence if conflicting inferences possible or case dependent on witness credibility). 2

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See also Hawkins v. Hall, 644 F.2d 914, 917 n. 2 (1st Cir.1981) (where there are many nuances and facts and reasonable people could differ over whether constitutional standards were transgressed, traditional concepts of role of jury make it proper that the final judgment be left to the jury). Having requested a jury trial, plaintiff may not easily overturn the jury's refusal to award him monetary relief.

In summarizing the facts, we do so in a version favorable to defendants, as the jurors were likewise entitled to find.

A. Facts

In November 1974, almost two years before the events in question, plaintiff gave up his Rhode Island osteopathy practice and moved to the state of New Hampshire. Although the evidence before the jury indicated that plaintiff was required by Rhode Island law to register at each place where, as a practitioner, he stored controlled substances, Mann moved the drugs and supplies from his practice to a house at 59 Alden Avenue, Warwick, which had until then served as his residence. He did not bother to register the new location with the Rhode Island Department of Health.

From the appalling later state of the house and other evidence, the jury could infer that Mann rarely, if ever, returned to the house and that the precautions he allegedly installed, such as an alarm and spotlight system, were vastly overstated, if they existed at all. By the time of the events in question, it could infer, the electricity had long since been shut off, rendering such devices, if any, useless. Given especially the presence of the drugs, the jury could view Mann's conduct as not only irresponsible, but as the principal cause of the public nuisance which developed.

By April 1976, when the building came to the attention of local and state authorities, it had become an attraction for vandals, including local school children. The jury could infer that this condition had existed for a considerable period of time. The house was in utter disarray. Its windows were broken. Its doors were broken and open to the public. The boxes of drugs and supplies were torn apart, their contents distributed throughout the house. Trash was piled at places to a depth of three to five feet, burying furniture and fixtures from sight. The trash included crumpled, soiled paper, rotting candy bars and fruit, toilet tissue permeated with human body fluids, exposed hypodermic needles, and up to 77,000 doses of controlled, outdated and misbranded drugs. There were rats in the bathroom. There was a stench. In that condition, the jury could conclude that the house was a hazard to all who entered, not merely because of the drugs which could be obtained there, but also because of the variety of diseases--including hepatitis from a needle wound--which might be contracted there.

Warwick authorities first learned that the Alden Avenue property had attracted intruders late in the evening of April 13, 1976, when they received a report that three male juveniles had been seen breaking in. Officers were dispatched to investigate. One officer entered the house through a basement window, another through the back door. They found the house to be unoccupied and vandalized, and to contain large quantities of physician sample drugs. Continuing their investigation on April 14, the officers learned that the house belonged to a Dr. Mann, who resided at an unknown address in New Hampshire. Beginning the following day, April 15, the police department began efforts to reach Mann.

Events of April 15 dramatically changed the department's view of the break-in and the condition of the Alden Avenue property. During the course of the day several school girls delivered to authorities at the junior high school a bag of physician sample drugs which they found near the school. The drugs were like those observed at the house. Officers interviewed students at the school, including the girls, and concluded that the house might present

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a serious danger to the community as it had attracted not only vandals but also neighborhood children who apparently were using it as a source of drugs. The police concluded that they lacked the expertise to ascertain accurately the extent of the danger or to deal with it safely.

Thus on Friday, April 16, at the start of the Easter weekend, Warwick police captain John Mulhearn contacted Dr. Joseph Cannon, director of the Rhode Island Department of Health, to request assistance. Cannon's staff reached senior narcotics inspector Leo Gracik by car radio within minutes. Gracik went directly to the house, where he was met by a Warwick policeman. The two then entered the house to conduct an inspection. When he emerged, Gracik promptly called Charles Hachadorian, deputy drug control administrator in the state Department of Health, to report that in his view the house presented a serious and immediate hazard to the public.

Although the Department of Health was then operating with only a skeleton crew at the start of a holiday weekend, Gracik requested help to begin a clean-up operation immediately. He was soon joined by John Campoli, chief of the pharmacy section of the Department of Health. Together they reentered the house to sort through the refuse, separating the owner's personal belongings from drugs, needles and other dangerous materials. They were aided by several Warwick policemen during the course of the afternoon.

The police department finally reached Dr. Mann around 3:00 p.m. on Friday, April 16. He was informed of the break-in and vandalism, and told that the Department of Health was conducting the clean-up and sought his participation. Mann drove to Rhode Island after stopping for a meal. When he arrived at Alden Avenue around 5:30 p.m., the clean-up crew had gathered outside the house for a rest. There was a garbage truck pulled up near the building.

Mann was at first angry. He objected to the officers' entry into the house to sort through his belongings. He offered to remove the drugs himself. When the officers pressed for permission to reenter, he demanded that they provide him with a warrant or some other "legal document." The officers then suggested that he consult an attorney. Mann agreed. At 7:15 p.m. Mann's attorney arrived, spoke briefly with the officers, inspected the house and consulted with Mann, urging him to consent to the resumption of the clean-up. Thereafter, the jury could conclude, Dr. Mann's irritation gave way to an attitude of cooperation.

Negotiations took place between Gracik and Officer DePalma of the Warwick Police Department, on the one hand, and Mann and his attorney on the other. Mann's attorney indicated that the doctor wished to be present "so that he could observe the drugs being removed," according to DePalma. The officers agreed and called for emergency lighting so that the job might...

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