Senra v. Cunningham

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1064

JOSEPH SENRA AND MARIA SENRA,

Plaintiffs-Appellants,

v.

STEPHEN CUNNINGHAM, ET AL.,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell, Senior Circuit Judge,

Boudin, Circuit Judge.

Stephen J. Fortunato, Jr., with whom Fortunato & Tarro, was

on brief for appellants.
Marc DeSisto, with whom Carroll, Kelly & Murphy, was on

brief for appellees Stephen Cunningham and Douglas Laird.

November 16, 1993

TORRUELLA, Circuit Judge. Plaintiff-appellants Joseph

and Mar a Senra sued two Cumberland, Rhode Island police

officers, Stephen Cunningham and Douglas Laird, for violation of

their constitutional rights under 42 U.S.C. 1983 and various

state laws. Mr. Senra alleged that he had been falsely arrested

and imprisoned, subjected to excessive force, and maliciously

prosecuted; Mrs. Senra claimed only that the officers had used

excessive force against her during the arrest of her husband. At

the close of the evidence, the district court granted defendants'

motion for judgment as a matter of law on the malicious

prosecution claims. The remaining counts went to a jury, which

found for the police officers. The court then denied plaintiffs'

motion for a new trial, and plaintiffs appealed. For the reasons

stated herein, we affirm.

I

Background

On May 20, 1989, at approximately 11:30 p.m., Mr. Senra

struck a neighbor's car while driving home. Instead of stopping,

he proceeded to his house just down the street, purportedly

intending to settle the matter the next day. The neighbor heard

the accident and learned from a bystander that Mr. Senra had hit

his car. The neighbor called the police and went to Mr. Senra's

home, where he was told to return in the morning.

The Senras claim that Mr. Senra answered the door when

the police arrived, but before he could explain, he was grabbed

by the officers, dragged out of the house, and thrown over some

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hedges in the front lawn. During the struggle, his right arm,

which was withered from polio, was broken.

The police officers offer a different version of the

story. They contend that no one answered when they originally

knocked at the Senras' door. Mr. Senra only appeared later after

the officers remained in the yard to wait for a tow truck they

had called to remove Mr. Senra's car. The officers smelled

alcohol on his breath and noticed that he was staggering. Mr.

Senra shouted vulgarities at the officers and flailed his arms.

He then lost his balance, tripped over the shrubbery, and fell to

the ground. At that point, Officer Laird approached Mr. Senra to

restrain him and a struggle ensued. The officers contend that

Mr. Senra attempted to hit, kick, and bite Officer Laird and that

Mr. Senra kicked Officer Cunningham in the groin when he tried to

assist Officer Laird.

The Senras claim that, after Mr. Senra was attacked

without provocation, Mrs. Senra sought to assist her husband.

They maintain that one of the officers hit her in the stomach,

loosening stitches from her recent hysterectomy. The officers

assert that Mrs. Senra and her daughter struck and kicked them

while they sought to restrain Mr. Senra. Mrs. Senra ultimately

locked herself in the car to prevent its removal.

After the altercation subsided, Mr. Senra informed the

officers of the pain in his arm. He was taken to a hospital,

where he learned that his arm was broken. A nurse from the

hospital testified that Mr. Senra was uncooperative, combative

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and vulgar when he arrived and that a blood test revealed that

his blood alcohol level exceeded the permissible limit for

driving a motor vehicle.

Mr. Senra was later charged with assaulting a police

officer, disorderly conduct, and leaving the scene of an

accident. A jury acquitted him of assault, and a judge granted

his motion for judgment of acquittal on the disorderly conduct

charge. The motor vehicle offense was administratively

dismissed.

The Senras then brought this action in the district

court seeking damages. After an unfavorable outcome, the Senras

appealed.

II

Jury Instructions

The Senras first assign error to the district court's

refusal to consider jury instructions that they offered shortly

before the close of the evidence. The court rejected the

instructions because, in its view, the plaintiffs' proffer

arrived too late, in violation of the court's Amended Pretrial

Order. That Order required the parties to submit "full and

complete proposed jury instructions" to the court twenty days

prior to trial. The Senras claim that, notwithstanding the

district court's broad power to organize and facilitate

litigation pursuant to Federal Rule of Civil Procedure 16,

requiring instructions much in advance of trial and refusing to

consider instructions proposed before the close of the evidence

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conflicts with Federal Rule of Civil Procedure 51.1

Rule 16 provides the district courts with a powerful

mechanism to organize and expedite litigation. The pretrial

conferences contemplated by the Rule create an indispensable

opportunity to clarify and delimit issues to be tried and to

establish a timetable for the proceedings as a whole. As such,

the outcome of pretrial conferences are central to the

litigation, for as the Rule states, pretrial orders "shall

control the subsequent course of the action unless modified by a

subsequent order." Fed. R. Civ. P. 16(e). "Trial judges enjoy

great latitude in carrying out case-management functions." Jones

v. Winnepesaukee Realty, 990 F.2d 1, 5 (1st Cir. 1993) (citing In

re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1019

(1st Cir. 1988)). The Rule also allows sanctions for

noncompliance. Fed. R. Civ. P. 16(f). The district court, for

example, may refuse to hear testimony or give instructions on

issues not originally encompassed by the pretrial order. See

generally Charles A. Wright, Arthur R. Miller & Mary K. Kane,

Federal Practice and Procedure 1527 (1990). We review a

district court's imposition of sanctions for failure to comply

with pretrial orders only for abuse of discretion. Jones, 990

1 Fed. R. Civ. P. 51 provides, in relevant part:

At the close of the evidence or at such
earlier time during the trial as the
court reasonably directs, any party may
file written requests that the court
instruct the jury on the law as set forth
in the requests.

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F.2d at 5; Vel zquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d

1072, 1075 (1st Cir. 1990). "Although such a deferential

approach does not confer carte blanche power to the district

court," litigants bear a formidable burden to show that the

district court erred. Jones, 990 F.2d at 5.

The district court requested the jury instructions

twenty days in advance of trial. The pretrial order was not

ambiguous and appellants offered two instructions within the time

set by the court. We have found no cases that even suggest that

an order requiring jury instructions before trial would in any

way violate the Federal Rules of Civil Procedure. Absent such a

case, the district court's refusal to consider appellants'

proffered instructions was not an abuse of discretion where

appellants understood that the court had requested the

instructions in advance of trial and had not shown that the

tardily filed jury instructions pertained to a matter that was

not foreseeable at the time set by the court.

Having found no error in the court's refusal to

consider appellants' proffered instructions, we turn to the

appellants' objections to the instructions on appeal. To

preserve an objection on appeal to a jury instruction, a party

must contemporaneously object to the instruction. The exception

must apprise the judge of the basis of the error. Fed. R. Civ.

P. 51 ("No party may assign as error the giving or the failure to

give an instruction unless that party objects thereto before the

jury retires to consider its verdict, stating distinctly the

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matter objected to and the grounds of the objection."). Failure

to timely object waives the error on appeal. See Elgabri v.

Lekas, 964 F.2d 1255, 1258 (1st Cir. 1992).

In this case, the record indicates that the jury

retired to deliberate prior to appellants' objections to the jury

instructions. Appellants therefore have waived their exceptions.

We have reviewed, as we must, the claims of error made by

appellants in relation to the instructions to ensure that there

has been no plain error amounting to a miscarriage of justice.

See Elgabri, 964 F.2d at 1259; Wells Real Estate, Inc. v. Greater

Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.), cert.

denied, 488 U.S. 955 (1988). We are satisfied that no such error

exists.

III

Evidentiary Rulings

The Senras contend that the district court erroneously

admitted into evidence Officer Laird's knowledge of prior

incidents of intoxication and domestic disturbance at Mr. Senra's

home and evidence that Mr. Senra previously had been convicted of

driving while intoxicated. Officer Laird testified that he

personally had been involved in at least six incidents in which

the police were called to respond to domestic disturbances that

resulted from Mr. Senra's drunken and violent behavior. The

drunk driving conviction occurred in 1986. Mr. Senra argues that

Federal Rules of Evidence 403, 404, 608, and 609 require

exclusion of such evidence.

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In this case, Mr. Senra was not on trial as a

defendant. Rather, he sued the police officers for use of

excessive force and false arrest. To defend against an

allegation of excessive force, defendant officers needed to

demonstrate that their conduct was "objectively reasonable in

light of the facts and circumstances confronting them." Graham

v. Connor, 490 U.S. 386, 397 (1989). Defendant police officers

introduced the testimony about Mr. Senra's prior conduct to

explain the "facts and circumstances" that they confronted when

they arrived at the Senra household and to demonstrate the

reasonableness of their conduct. Similarly, the officers

proffered the fact of conviction to show a motivation for fleeing

the scene of the accident. They theorized that Mr. Senra left

the accident because he wanted to avoid another drunk driving

conviction.

With respect to the officers explanation of their prior

dealings with Mr. Senra, we find that the district court did not

err by admitting the evidence. The officers' prior knowledge of

Mr. Senra is relevant because it sheds light on the

reasonableness of their responses, a matter quite pertinent to

the undue force claim. Because the evidence is probative of a

matter other than Mr. Senra's bad character, Rule 404(b) poses no

bar.2

2 Fed. R. Evid. 404(b) provides in relevant part:

Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show action in

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Appellants' Rule 403 challenge is likewise

unavailing.3 Admittedly the evidence is of limited value to the

officers since their version of the events on the night in

question amply supported their actions without reference to prior

bad conduct. The prejudicial impact, however, cannot be

considered significant in light of the officers' testimony

concerning Mr. Senra's outrageous behavior on that night. The

officers testified that they smelled alcohol on Mr. Senra's

breath and that Mr. Senra acted in a hostile manner by verbally

and physically attacking them. As such, the district court did

not abuse its discretion by admitting the testimony. See United

States v. Walters, 904 F.2d 765, 768 (1st Cir. 1990).

With respect to Mr. Senra's prior conviction for drunk

driving, the district court admitted the evidence because it

believed that the evidence was relevant to Mr. Senra's motivation

for leaving the scene of the accident. His motivation for

leaving the scene was irrelevant, however, to any disputed issue

conformity therewith. It may, however,
be admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, knowledge, identity, or
absence of mistake or accident . . . .

3 Fed. R. Evid. 403 states:

Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.

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in the case. To justify arrest, it would be sufficient to know

that he had departed. The previous conviction therefore had no

probative value. It is also quite likely that the prior

conviction would be inadmissible for impeachment under Rule

609.4

Assuming thus that it was error to admit evidence of

the prior conviction, we consider whether the error was harmless.

"The erroneous admission of evidence of earlier crimes is

harmless if we determine that it is 'highly probable' that the

error did not contribute to the verdict." United States v.

Gonz lez-S nchez, 825 F.2d 572, 580 (1st Cir. 1989) (quoting

United States v. Bosch, 584 F.2d 1113, 1117-18 (1st Cir. 1978)).

The jury was asked to choose between two contradictory versions

of the events in question. The verdict did not hinge on a

4 Fed. R. Evid. 609 states in pertinent part:

(a) General rule. -- For the purpose of
attacking the credibility of a witness,

(l) evidence that a witness other than an
accused has been convicted of a crime
shall be admitted, subject to Rule 403,
if the crime was punishable by death or
imprisonment in excess of one year under
the law under which the witness was
convicted, and evidence that an accused
has been convicted of such a crime shall
be admitted if the court determines that
the probative value of admitting this
evidence outweighs its prejudicial effect
to the accused; and

(2) evidence that any witness has been
convicted of a crime shall be admitted if
it involved dishonesty or false
statement, regardless of the punishment.

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particular piece of evidence or improper coloring provided by

evidence of prior bad acts. Because three sources (both officers

and the hospital nurse) testified that Mr. Senra was intoxicated

and belligerent on the night of the arrest, the effect of the

evidence of prior incidents, which occurred at least two or more

years earlier, was greatly muted. If the jury believed the

police and the hospital nurse, which it apparently did, Mr. Senra

hit a parked car, fled the scene, and attacked the police in a

drunken fit. This evidence was more than sufficient to support a

verdict for the defendants and remote incidents of similar

conduct added little. The improper admission of the evidence was

therefore harmless.

IV

Malicious Prosecution

At the close of all the evidence, the district court

granted defendants judgment as a matter of law on Mr. Senra's

action for malicious prosecution under 1983 and a pendent state

law claim.5 The district court directed the verdict of the

1983 claim because Mr. Senra had not demonstrated that the

alleged misconduct rose to constitutional magnitude. With

respect to the state law claim, the court found that as a matter

of law, Mr. Senra failed to show that defendants "initiated" the

prosecution within the meaning of that term under Rhode Island

5 Although Mr. Senra's original complaint and brief on appeal
lacked specificity, the district court treated Mr. Senra's
proffers as alleging both state and federal causes of action. As
such, we will do so as well.

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law. Mr. Senra now argues that the court erred in directing the

verdict on both actions.

"Under the accepted standard of appellate review, we

'examine the evidence and the inferences reasonably to be drawn

therefrom in the light most favorable to the nonmovant' to

determine whether 'reasonable persons could reach but one

conclusion.'" Veranda Beach Club v. Western Surety Co., 936 F.2d

1364, 1375 (1st Cir. 1991) (quoting Wagenmann v. Adams, 829 F.2d

196, 200 (1st Cir. 1987)). "In conducting that exercise, we may

not consider the credibility of witnesses, resolve conflicts in

testimony, or evaluate the weight of the evidence." Wagenmann,

829 F.2d at 200.

To state a federal claim for malicious prosecution

under 1983, "the complaint must assert that the malicious

conduct was so egregious that it violated substantive or

procedural due process rights under the Fourteenth Amendment."

Torres v. Superintendent of Police, 893 F.2d 404, 409 (1st Cir.

1990). A substantive due process violation occurs when the

malicious prosecution is "conscience-shocking." Id. at 410.

"Where plaintiff has not been physically abused, detained,

prosecuted due to racial or political motivation or otherwise

deprived of equal protection of the law, courts are reluctant to

find 'conscience shocking' conduct that would implicate a

constitutional violation." Id. A procedural due process claim

will lie where the alleged conduct deprived plaintiff of liberty

by "a distortion and corruption of the processes of law," such as

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"falsification of evidence or some other egregious conduct

resulting in a denial of a fair trial." Id. Furthermore, to

establish a malicious prosecution claim under 1983 on the

grounds that his right to procedural due process was violated,

the plaintiff must "show that there was no adequate state

postdeprivation remedy available to rectify the harm." Id.

"'The federal claim under [42 U.S.C.] section 1983 for

malicious prosecution differs from the state civil suit in that

it requires that state officials acting 'under color of law'

institute the criminal proceedings against the plaintiff and

thereby deprive him of rights secured under the Constitution.'"

Smith v. Massachusetts Dept. of Correction, 936 F.2d 1390, 1402

(1st Cir. 1991) (quoting Torres, 893 F.2d at 409) (emphasis added

in Smith). Malicious prosecution does not amount to a

constitutional tort, unless the plaintiff has been deprived of

life, liberty, or property, or another constitutional right.

Ayala-Mart nez v. Angler , 982 F.2d 26, 27 (1st Cir. 1992)

(citing Albright v. Oliver, 975 F.2d 343, 347 (7th Cir. 1992)

(holding that malicious prosecution, like defamation, does not

amount to a constitutional tort, unless the plaintiff is deprived

of his right to liberty by wrongful incarceration), cert.

granted, 113 S. Ct. 1382 (1993)).

Mr. Senra clearly has not stated a claim under the

substantive due process branch of the 1983 malicious

prosecution analysis. Mr. Senra did not allege that the police

officers maliciously prosecuted him for racial or political

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reasons or to deprive him of equal protection of the law. Nor

has Mr. Senra stated a claim for a violation of his procedural

due process rights because he failed to demonstrate the

inadequacy of the state law malicious prosecution remedy.

We turn then to whether the district court properly

directed the verdict in favor of defendant officers on the state

law malicious prosecution claim. To establish a claim of

malicious prosecution under Rhode Island law, a plaintiff must

prove that (1) defendants initiated a criminal proceeding against

him; (2) with malice; (3) and without probable cause; which (4)

terminated in plaintiff's favor. Solitro v. Moffatt, 523 A.2d

858, 861-62 (R.I. 1987); Nagy v. McBurney, 120 R.I. 925, 929, 392

A.2d 365, 367 (1978). In the district court, the success of Mr.

Senra's state law action hinged on the proof he offered on the

"initiation" element.6 The district court conceded that Rhode

Island case law offered little guidance with respect to what

actions constitute initiation in cases involving police officers.

Nonetheless, the district court indicated early in the proceeding

that plaintiffs' case would benefit from evidence concerning what

6 In order to survive a motion for judgment as a matter of law,
plaintiff must offer proof sufficient to state a claim as to all
elements of the cause of action. It is not disputed that the
alleged malicious prosecution terminated in Mr. Senra's favor.
Actual proof of malice is not necessary as it may be inferred
from the absence of probable cause to prosecute. Nagy, 392 A.2d

at 367; De Fusco v. Brophy, 112 R.I. 461, 463 n.1, 311 A.2d 286,

287 n.1 (1973). Finally, it is clear that the existence of
probable cause to arrest, which in this case is coterminous with
probable cause to prosecute, was sufficiently in doubt since the
district court allowed the claim of false arrest to go to the
jury. As such, the critical inquiry, as the district court
realized, is whether defendants initiated the prosecution.

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information the officers transmitted to the state Attorney

General's office, what other information the prosecuting officer

possessed, and who finally made the decision to prosecute.

(Trial Transcript at 21, Nov. 2, 1992). The district judge

ultimately directed the verdict in favor of defendants, however,

because he believed "[t]here [was] no evidence that [the police

officers] initiated or actively participated in the bringing of

the charges by the Attorney General's Office by way of

information." (Trial Transcript at 34, Nov. 3, 1992).7

According to the court, defendants were entitled to a judgment as

a matter of law because (1) the state prosecuting attorney's

discretionary decision to prosecute constituted an intervening

cause that insulated defendant officers from liability, and (2)

Mr. Senra failed to provide sufficient evidence about the process

by which criminal charges are brought to survive the motion for

directed verdict.

We agree with the district court that the law of

initiation in Rhode Island is not clear. We draw, however, on

the law concerning liability for private persons bringing

information before the police. The chain of causation is broken

if the filing of the information by the attorney at the state

Attorney General's office was free of pressure or influence

exerted by the police officers or knowing misstatements made by

the officers to the Attorney General's office. See Dellums v.

7 The charges in this case were brought by information. See

Rhode Island Superior Court Rules of Criminal Procedure 7.

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Powell, 566 F.2d 167, 192-193 (D.C. Cir. 1977); Restatement

(Second) of Torts 653 cmt. g; W. Page Keeton, Prosser & Keeton

on The Law of Torts 119, at 872-73 & nn.33-36 (5th ed. 1984).

At the time the district court directed the verdict for

defendants, it remained possible that the police officers had

lied about the events in question and had communicated that false

information to state prosecutors. If the evidence upon which the

prosecutors based the filing of the information was false, the

state prosecutors could not have exercised their discretion. As

a result, the actions of the prosecutors would not have insulated

the police officers from suit for malicious prosecution. Given

this possibility, the district court therefore improperly

directed the verdict for defendant officers at that time.

In light of the jury's verdict, however, the error is

harmless. The jury found in favor of the police officers on the

excessive force claim, finding that they reasonably responded to

Mr. Senra's behavior the night that Mr. Senra was arrested. It

follows then that officers possessed sufficient information about

Mr. Senra to charge him with assaulting a police officer,

disorderly conduct, and leaving the scene of an accident. The

jury's verdict therefore precludes a finding of malicious

prosecution.

The judgment of the district court is affirmed.

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