Surprenant v. Rivas

United States Court of Appeals
For the First Circuit

No. 04-2285

JASON SURPRENANT,

Plaintiff, Appellee,

v.

CESAR RIVAS ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Selya, Dyk,* and Howard,

Circuit Judges.

Elizabeth Hurley, with whom John A. Curran and Getman, Stacey,
Schulthess & Steere, PA were on brief, for appellants.
Michael J. Sheehan for appellee.

September 9, 2005

__________
*Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. In this prisoner civil rights

action, two correctional officers and the superintendent of a

county jail appeal from a jury verdict in favor of a pretrial

detainee. The defendants variously complain that the plaintiff

failed to present sufficient evidence to underpin his claims, that

the trial court erred in instructing the jury, and that the court

botched several evidentiary rulings. Many of these claims are

forfeit and the rest are without merit. Consequently, we affirm

the judgment below.

I. BACKGROUND

The Hillsborough County jail houses both pretrial

detainees and convicted misdemeanants. On the evening of July 14,

2002, defendant-appellant Cesar Rivas, a correctional officer, was

the sole guard on duty in Unit 2D, a medium security wing of the

jail. At some point during the inmates' out-of-cell time, Rivas

radioed an emergency request for assistance by other officers

(known in prison parlance as a "10-33") and activated his body

alarm. Responding officers locked down the unit and removed nine

inmates identified by Rivas, including plaintiff-appellee Jason

Surprenant, to a segregation wing, Unit 2B, familiarly known as

"the hole."

While the parties agree to these raw facts, they offer

starkly different accounts of what transpired before and after the

enumerated events occurred. Rivas claims that immediately prior to

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the 10-33 "officer in danger" alert, twenty to twenty-five

belligerent inmates, including the plaintiff, mobbed and threatened

him. He sounded the 10-33 because he feared for his safety. The

other defendants, though not present that evening, support Rivas's

account.

The plaintiff and his witnesses tell a vastly different

tale. They say that the incident never happened; that Rivas called

in the 10-33 without any provocation (at most, two or three inmates

were conversing with him in normal tones); and that, at the

critical time, the plaintiff was lifting weights with fellow

inmates at a different location. The plaintiff attributes Rivas's

trumped-up call to his (Rivas's) antipathy for a clique of inmates

who resided in one corner of Unit 2D. He theorizes that Rivas

concocted the apocryphal story in order to have these inmates

"lugged to the hole." The plaintiff admits, however, that he was

not a member of the clique and could only speculate as to why Rivas

named him as one of the perpetrators.

The verdict indicates that the jurors largely believed

the plaintiff's version of events. Therefore, from this point

forward we rehearse the facts in the light most favorable to the

verdict. See Correa v. Hosp. San Francisco, 69 F.3d 1184, 1188

(1st Cir. 1995).

After the lockdown was in effect, the response team

removed the plaintiff from Unit 2D and segregated him in Unit 2B.

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Inmates in segregation cells were allowed only a mattress, sheet,

pillow, and prison uniform. All other items were forbidden, even

legal papers, writing instruments, and articles essential to

personal hygiene (like soap and toilet paper). Although each cell

contained a sink and toilet, the jailers restricted inmates' water

usage in order to prevent deliberate flooding. Thus, each cell's

water supply was turned off regardless of whether the occupant had

ever been involved in a flooding incident. If an inmate needed to

flush his toilet, get a drink, or wash his hands, he had to ask a

correctional officer to turn on the water momentarily. Frequently,

no correctional officer was nearby and, even if one was in the

vicinity, the inmate ran the risk that the officer would choose

either to ignore his request or to dawdle in fulfilling it.

Those consigned to segregation were placed in one of

three classifications: (i) punitive segregation, (ii)

administrative segregation, or (iii) awaiting hearing segregation

(AH). The plaintiff was a pretrial detainee, awaiting hearing on

Rivas's newly lodged accusation, so prison hierarchs classified him

as AH. Because of that classification, the plaintiff was subject

to all the above-described conditions.

The plaintiff also was made subject to a "three-day

rotation." Inmates on three-day rotation were allowed out of their

cells only once every three days, in shackles, for a quick shower.

They could not make telephone calls, receive mail, or have visitors

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(although attorneys, on their own initiative, could see their

clients). The plaintiff remained in an AH classification and on a

three-day rotation for upwards of three weeks.

To make matters worse, inmates on three-day rotation were

subjected to as many as five in-cell strip searches each day. The

process required the inmate to manipulate several unclean areas of

his body in order to show officers that those areas did not conceal

contraband. The inmate then had to place his fingers in his mouth

for the same purpose. The evidence indicated that the strip

searchers often orchestrated these steps so that an inmate would

have to manipulate his armpits, groin, and buttocks before

manipulating his cheeks and tongue. Because of the in-cell water

restrictions, an inmate ordinarily could not wash his hands prior

to such a search. Not infrequently, a strip-searched inmate would

have to eat his meals with the same unclean hands.

After reviewing Rivas's incident report, defendant-

appellant Teresa Pendleton, a disciplinary officer, charged the

plaintiff with participating in an attempt to take Rivas hostage.

She scheduled a disciplinary hearing for July 22, 2002. The

plaintiff was not given advance written notice of the charges;1

1
The defendants dispute this claim. The jury, however, was
entitled to resolve conflicting accounts. See United States v.
Alicea, 205 F.3d 480, 483 (1st Cir. 2000) (observing that
"credibility determinations are for the jury, not for an appellate
court"). The defendants also assert that, in all events, a
specification of the charges was left in the plaintiff's mailbox.
That assertion conveniently overlooks testimony to the effect that

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until the hearing commenced, he assumed that he had been relegated

to the hole for cursing at a correctional officer from his cell

during the July 14 lockdown.

When the plaintiff belatedly learned the nature of the

charges, he told Pendleton of his alibi (that he was lifting

weights elsewhere in the prison) and identified two potential

witnesses to his whereabouts. Pendleton chose not to interview the

named individuals. In at least one instance, she admitted that she

did not do so because she had made up her mind in advance that the

putative witness would not tell the truth. She also refused to

credit statements of other accused inmates that tended to exonerate

the plaintiff. And, finally, when prison officials who were

conducting an internal investigation of the incident asked

Pendleton to withhold the imposition of any sanctions until they

had completed their probe, she nonetheless plunged ahead, found the

plaintiff guilty, and imposed sanctions prior to the completion of

the internal investigation (and without making the slightest effort

to ascertain the status of that investigation).

Pendleton handed down her ukase on August 8, 2002. She

based her finding that the plaintiff was guilty of attempting to

take Rivas hostage solely on Rivas's report and the testimony of a

jailhouse informant who professed to have witnessed the incident.

the plaintiff had no access to his mailbox during the relevant time
frame.

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She credited the latter's testimony even though it was established

that his cell had no line of sight to the spot where Rivas claimed

that the incident occurred.

As a sanction, Pendleton directed that the plaintiff do

a thirty-day stint in punitive segregation. The plaintiff served

this term in Unit 2B, albeit reclassified to punitive segregation

status.2 He was not given any credit for time spent in Unit 2B

while awaiting the hearing.

In August of 2002, the plaintiff commenced the instant

action in the United States District Court for the District of New

Hampshire. His handwritten pro se complaint named several

defendants including Rivas, Pendleton, and the jail's

superintendent, James O'Mara, Jr. (sued in his official capacity).

In due course, the plaintiff obtained counsel.

After some procedural skirmishing, not relevant here, the

case went to trial on an amended complaint containing six

statements of claim. The jury found the defendants liable on three

claims brought pursuant to 42 U.S.C. § 1983 and the Fourteenth

Amendment, namely, count 1 (which alleged that Rivas punished the

plaintiff by making false allegations that led to his immediate

segregation), count 4 (which alleged that Pendleton failed to

2
Ironically, the conditions of punitive segregation proved to
be less onerous than those attendant to AH status. In any event,
the plaintiff does not challenge the conditions of his confinement
while in punitive segregation.

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afford the plaintiff procedural due process at his disciplinary

hearing), and count 6 (which alleged that O'Mara, in his official

capacity, was responsible for the unconstitutional conditions of

confinement that the plaintiff experienced while on AH status).

The jury awarded nominal damages on all three counts and punitive

damages against Rivas ($5,500) and Pendleton ($15,000). The jury

resolved the other three counts adversely to the plaintiff and

those counts are not before us.

The defendants never moved for a new trial. They all

moved, however, for judgment notwithstanding the verdict. The

district court denied that motion and this timely appeal followed.

We have jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

The defendants raise a gallimaufry of challenges to the

rulings made below. Each defendant mounts a particularized attack

on the count on which he or she was found liable. They then join

forces to impugn certain evidentiary rulings. For ease in

articulation, we address the individual challenges first and then

move to the collective challenge.

A. Count 1: Violation of Due Process by False Allegation

(Rivas).

Rivas offers four reasons why he should have been granted

judgment as a matter of law or, in the alternative, a new trial.

Three of these go to the heart of the claim asserted against him.

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The fourth goes to the correctness of the district court's jury

instructions. We consider the first three arguments as a group

before addressing the fourth.

1. The Forfeited Arguments. Rivas's first three

arguments are intertwined. His first plaint posits that a

correctional officer's filing of a false charge against an inmate,

knowing that the making of the charge will lead to an immediate

deprivation of rights, does not violate due process and, therefore,

fails to state a valid section 1983 claim. His second plaint takes

a related, but slightly less extreme, position: he suggests that

a pretrial detainee's right to be free from such fictionalized

charges was not clearly established in 2002 and that, therefore, he

was entitled to qualified immunity. The third plaint suggests, as

a fallback, that the plaintiff presented insufficient evidence to

sustain the allegations contained in count 1. None of these

arguments was preserved below and, thus, they are forfeited.

Federal Rule of Civil Procedure 50(a) permits a party to

move for judgment as a matter of law "at any time before submission

of the case to the jury." The defendants made such a motion at the

close of the plaintiff's case in chief and the trial court denied

it. The defendants then proceeded to present evidence. Where, as

here, a defendant moves unsuccessfully for a directed verdict at

the close of the plaintiff's case in chief and then proceeds to

offer evidence, he waives any right to appeal the court's denial of

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the motion. See Lama v. Borras, 16 F.3d 473, 476 n.5 (1st Cir.

1994); Home Ins. Co. v. Davila, 212 F.2d 731, 733 (1st Cir. 1954).

In effect, therefore, the court of appeals may review only the

denial of a motion for judgment as a matter of law made at the

close of all the evidence and seasonably renewed post-verdict. See

Cone v. W. Va. Pulp & Paper Co., 330 U.S. 212, 218 (1947); see also

Fed. R. Civ. P. 50(b).

The defendants in this case neglected to make a motion

for judgment as a matter of law at the close of all the evidence.

That failure rendered inutile their post-trial motion for judgment

notwithstanding the verdict and precluded ordinary appellate review

of the sufficiency of the claim. See Muñiz v. Rovira, 373 F.3d 1,

5 n.2 (1st Cir. 2004) ("Failure to file a motion for judgment as a

matter of law at the close of all the evidence pretermits the

filing of a post-trial motion for that relief."); Keisling v. Ser-

Jobs For Progress, Inc., 19 F.3d 755, 758 (1st Cir. 1994)

(similar).

In an effort to detour around this obstacle, Rivas argues

that his claim may still be reviewed for plain error. In this

context, however, the plain error doctrine has very narrow

contours: in the absence of a duly preserved motion for either

judgment as a matter of law or a new trial, we may set aside a

verdict only to prevent a clear and gross injustice of the sort

that would result from enforcing a verdict for which the record

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reveals an absolute dearth of evidentiary support. Faigin v.

Kelly, 184 F.3d 67, 76 (1st Cir. 1999); La Amiga del Pueblo, Inc.

v. Robles, 937 F.2d 689, 691 (1st Cir. 1991). Rivas cannot slip

through this modest escape hatch because the record here is far

from empty.

We need not tarry. On the evidence before it, the jury

rationally could have found that Rivas prevaricated about the July

14 incident; that because of his animosity toward certain inmates,

Rivas intended to punish the men whom he falsely accused; and that

Rivas knew that his lie would cause those men to be thrown into the

hole immediately. On the last point, no less a personage than

Captain Dionne, the prison's chief of security, testified that any

correctional officer would have known that an accusation as serious

as Rivas's would lead to immediate segregation. No more was

exigible to show that, as a matter of proof, the verdict did not

work a clear and gross injustice.

Rivas is simply incorrect to suggest that relief is

warranted because the plaintiff's theory of the case was bogus. A

pretrial detainee has a Fourteenth Amendment right to be free from

punishment prior to conviction. See Bell v. Wolfish, 441 U.S. 520,

535 (1979). While a pretrial detainee may be disciplined for a

specific institutional infraction committed during the period of

his detention, the discipline imposed must be roughly proportionate

to the gravity of the infraction. Collazo-Leon v. U.S. Bureau of

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Prisons, 51 F.3d 315, 318 (1st Cir. 1995). An arbitrary, or

disproportionate sanction, or one that furthers no legitimate

penological objective, constitutes punishment (and, thus, is

proscribed by the Fourteenth Amendment). See Bell, 441 U.S. at

538-39.

Rivas cites Freeman v. Rideout, 808 F.2d 949 (2d Cir.

1986), and Hanrahan v. Lane, 747 F.2d 1137 (7th Cir. 1984) (per

curiam), for the proposition that the filing of false charges by a

correctional officer does not state a Fourteenth Amendment claim

when the accused inmate is given a subsequent hearing on those

charges. These cases, both of which involved convicts and not

pretrial detainees, are readily distinguishable. In each of them,

punishment was meted out only after an impartial disciplinary board

had determined that the evidence supported a finding that the

convict in question had committed the charged infraction. See

Freeman, 808 F.2d at 949; Hanrahan, 747 F.2d at 1140. The

allegedly false testimony itself did not lead directly to

punishment. See, e.g., Freeman, 808 F.2d at 953 (noting that the

convict "suffered as a result of the finding of guilty . . . and

not merely because of the filing of unfounded charges"). By

contrast, the plaintiff in this case alleges that he suffered

punishment as a direct result of Rivas's false accusation, which

led to his immediate segregation and the attendant privations for

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a period of several weeks before the resolution of the due process

hearing.

Rivas counters that the immediate segregation of

rebellious inmates furthers the legitimate objective of ensuring

security and order within a penitentiary (and, thus, that the

plaintiff was not "punished" by the pre-hearing placement). This

mischaracterizes the plaintiff's claim. The plaintiff does not

contend that the jail wrongfully punished him in advance of the due

process hearing, but, rather, that Rivas wrongfully engineered his

punishment by fabricating a serious charge knowing that the

falsehood would lead to the plaintiff's immediate placement in the

hole without any intervening hearing. That kind of unprincipled

manipulation of legitimate prison regulations, to the detriment of

a pretrial detainee, can constitute arbitrary punishment by a

correctional officer, even if the response by other (unwitting)

prison officials is legitimate and non-punitive. See, e.g.,

Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) ("An

intent to punish on the part of detention facility officials is

sufficient to show unconstitutional pretrial punishment.").

Our decision in O'Connor v. Huard, 117 F.3d 12 (1st Cir.

1997), is instructive on this point. There, a correctional officer

relentlessly taunted a pretrial detainee whom she knew to have an

anxiety disorder in order to provoke an outburst. Id. at 15. She

knew that such outbursts violated prison rules and inevitably would

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lead to the detainee's placement in administrative segregation.

Id. at 15-16. We held that the officer's intent to punish the

detainee, coupled with "instigative actions . . . directed toward

[that] end," constituted "arbitrary and unreasonable punishment" in

violation of the Fourteenth Amendment. Id. at 16. In so holding,

we hastened to distinguish between the officer's culpable role and

the prison's non-culpable role. See id.

There is no material difference between the theory on

which our holding in O'Connor rested and the plaintiff's theory

here. A correctional officer cannot punish a pretrial detainee

through deliberate manipulation of an unwitting institutional proxy

any more than he can do so by brute force.

Rivas's qualified immunity defense also has been

forfeited. He did not raise this defense by a pretrial motion to

dismiss, Fed. R. Civ. P. 12(b)(6), by a pretrial motion for summary

judgment, Fed. R. Civ. P. 56(c), or by a timely motion for judgment

as a matter of law, Fed. R. Civ. P. 50. Accordingly, this claim is

reviewable, if at all, only for plain error. Chestnut v. City of

Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en banc) (per curiam).

There was no error in this regard, plain or otherwise.

Qualified immunity "protects public officials from civil

liability 'insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.'" Cox v. Hainey, 391 F.3d 25,

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29 (1st Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). In determining whether a public official has violated a

clearly established right, a court asks "(i) whether the

plaintiff's allegations, if true, establish a constitutional

violation; (ii) whether the constitutional right at issue was

clearly established at the time of the putative violation; and

(iii) whether a reasonable officer, situated similarly to the

defendant, would have understood the challenged act or omission to

contravene the discerned constitutional right." Limone v. Condon,

372 F.3d 39, 44 (1st Cir. 2004).

We already have explained that the plaintiff's theory of

the case limns a constitutional violation. Because O'Connor was

decided before the events at issue occurred, the right to be free

from arbitrary and intentional punishment at the hands of

correctional officers was clearly established. See O'Connor, 117

F.3d at 16-17. And certainly, a reasonable correctional officer

would have realized that fabricating false charges against a

pretrial detainee with the knowledge that the fabrication would

lead to immediate segregation was constitutionally impermissible.

Cf. Limone, 372 F.3d at 44-45 (declaring it "self-evident" that

"those charged with upholding the law are prohibited from

deliberately fabricating evidence and framing individuals for

crimes they did not commit"). It follows inexorably that qualified

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immunity was not available to shield Rivas from liability on this

count.

2. The Jury Instruction Claim. Federal Rule of Civil

Procedure 51 prescribes a method for preserving objections to jury

instructions. Under this method, the trial court must inform the

parties of its proposed instructions, consider requested

instructions, and take objections before charging the jury. Fed.

R. Civ. P. 51(b). An objection lodged at that time preserves the

underlying issue for appeal. Fed. R. Civ. P. 51(c)(2)(A); see

Baron v. Suffolk County Sheriff's Dep't, 402 F.3d 225, 235 (1st

Cir. 2005).3 If, however, the court fails to proceed as

contemplated by Rule 51, a party may object "promptly after

learning that the instruction or request will be, or has been,

given or refused." Fed. R. Civ. P. 51(c)(2)(B); see Flynn v. AK

Peters, Ltd., 377 F.3d 13, 25 (1st Cir. 2004). A party's failure

to adhere to the protocol specified in Rule 51 constitutes a

forfeiture and limits appellate review to plain error. Fed. R.

Civ. P. 51(d)(2).

In the case at hand, the defendants raised an objection

to the wording of the trial court's instructions on count 1 after

they were given — but the appellate record is uninformative as to

3
This represents a change from prior procedure. Under the
former version of the rule, effective until December 1, 2003,
objections had to be taken at sidebar after the trial judge had
charged the jury. See Fed. R. Civ. P. 51, 28 U.S.C. app. at 779
(2000) (amended 2003); see also Faigin, 184 F.3d at 87.

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whether the court conferred with counsel and sought objections

prior to charging the jury. Ordinarily, a gap in the appellate

record counts against the appealing party. See Fed. R. App. P.

10(b)(1)(A), (c) (requiring an appellant to procure "transcript of

such parts of the proceedings . . . as the appellant considers

necessary" or, if no transcript is available, to "prepare a

statement . . . of the proceedings from the best available means,

including the appellant's recollection"); see also Real v. Hogan,

828 F.2d 58, 60 (1st Cir. 1987) (explaining that "it is the

appellant who must bear the brunt of an insufficient record on

appeal"). Here, however, the plaintiff does not dispute that Rivas

preserved the objection, so we proceed on that assumption.

The district court instructed that jury in pertinent part

that:

[The plaintiff] contends that Mr. Rivas
made . . . false accusations knowing and
intending that, as a result, Mr. Surprenant
would be removed from his cell and transported
to the Restricted Housing Unit and would be
subjected to punishment there. He also
contends that those consequences did occur . .
. . To prove his claim against Mr. Rivas, Mr.
Surprenant must prove by a preponderance of
the evidence all of the following three
elements:
1. Mr. Rivas falsely accused Mr.
Surprenant of being part of a group that
attempted to assault him and take him hostage;
2. Mr. Rivas made the false
accusations for the purpose of subjecting Mr.
Surprenant to punishment without a legitimate
purpose; and
3. The punishment that Mr. Rivas
intended did occur.

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Rivas argues that this instruction misstates the law. Thus, our

review is plenary. See, e.g., United States v. Barnes, 251 F.3d

251, 259 (1st Cir. 2001).

We reject Rivas's challenge. As given, the instruction

accurately depicts the elements of a claim of arbitrary punishment

of a pretrial detainee through a proxy. See, e.g., O'Connor, 117

F.3d at 16. Nothing more need be said. See Levinsky's, Inc. v.

Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir. 1997) (holding

that there is no legal error when the court's instruction

"adequately illuminate[s] the law applicable to the controlling

issues") (internal quotation marks omitted).

B. Count 4: Violation of Due Process by Spoliation of

Disciplinary Proceeding (Pendleton).

In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme

Court set forth the due process requirements associated with prison

disciplinary hearings. Those requirements include written notice

of the charges at least twenty-four hours in advance of the

hearing, id. at 564, and the ability to call witnesses and present

documentary evidence, id. at 566.4 The Wolff Court also implied

the obvious: that the essence of a fair hearing is an impartial

decisionmaker. Id. at 570-71.

4
These requirements may be relaxed in cases in which adherence
to them would be "unduly hazardous to institutional safety or
correctional goals." Wolff, 418 U.S. at 566. The defendants do
not contend that any such hazard existed here.

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 The lower court's instructions on this point stated that

the absence of any one of these protections could constitute a due

process violation. Pendleton did not challenge that instruction in

the court below. The instruction has, therefore, become the law of

the case. See Milone v. Moceri Family, Inc., 847 F.2d 35, 38-39

(1st Cir. 1988).

Although Pendleton's appellate brief is equally silent on

the point, her counsel claimed during oral argument in this court

that the decision in Sandin v. Connor, 515 U.S. 472 (1995),

rendered nugatory the rights enumerated in Wolff. This newly

minted argument is likely waived. See, e.g., Sandstrom v. ChemLawn

Corp., 904 F.2d 83, 86 (1st Cir. 1990) (noting that arguments not

raised in an appellant's brief are waived, even though urged at

oral argument). At best, it is forfeited. See Chestnut, 305 F.3d

at 20. We need not dwell on such niceties, however, because

Sandin, taken at face value, is of no help to Pendleton.

In Sandin, the Supreme Court explained that prison

regulations creating procedures that were to be followed before

taking away an inmate's ordinary privileges do not afford the

inmate a liberty interest in avoiding the loss of those privileges

unless such a loss will result in an "atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life." 515 U.S. at 483-84. The Court held that a thirty-

day period of punitive segregation, imposed on a convict, did not

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constitute such a hardship and, thus, could be levied without the

punctilio that due process otherwise might require. Id. at 485-86.

That was so because such "[d]iscipline by prison officials in

response to . . . misconduct falls within the expected perimeters

of the sentence imposed by a court of law." Id. at 485 (emphasis

supplied).

As the underscored language makes plain, the Sandin

Court's rationale applies only to those convicted of crimes — not

to pretrial detainees. The courts of appeals that have addressed

this question are consentient on the point. See Benjamin v.

Fraser, 264 F.3d 175, 189 (2d Cir. 2001); Rapier v. Harris, 172

F.3d 999, 1004-05 (7th Cir. 1999); Mitchell v. Dupnik, 75 F.3d 517,

523-25 (9th Cir. 1996); see also Fuentes v. Wagner, 206 F.3d 335,

342 n.9 (3d Cir. 2000) (noting, in dictum, that the Sandin Court's

analysis is inapplicable to pretrial detainees). We share that

view. Pretrial detainees, unlike convicts, have a liberty interest

in avoiding punishment — an interest that derives from the

Constitution itself. See Sandin, 515 U.S. at 484 (citing Bell, 441

U.S. at 535, for the proposition that a pretrial detainee "may not

be punished prior to an adjudication of guilt in accordance with

due process of law"). Because the plaintiff in this case was a

pretrial detainee at and prior to the time of the accusation and

the hearing, Sandin is inapposite.

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 Pendleton raises — or, better put, attempts to raise —

two additional challenges. First, she asserts that the evidence

was insufficient to establish that she violated the plaintiff's

procedural due process rights. Second, she posits that she was

entitled to qualified immunity. Like Rivas, however, she failed

either to make a motion for judgment as a matter of law at the

close of all the evidence or to raise the qualified immunity

defense by a timely motion. Given these lapses, the standard of

review, described in Part II(A)(1), supra, proves fatal to her

claims.

We begin with a procedural point. In this circuit, when

a jury in a civil case is presented with multiple theories of

liability on a single claim and returns a general verdict for the

plaintiff, there ordinarily must be sufficient evidence presented

to the jury to support each of the underlying theories (subject,

however, to a generous harmless error standard). Gillespie v.

Sears, Roebuck & Co., 386 F.3d 21, 30 (1st Cir. 2004). In this

case, however, Pendleton did not make either a timely motion for

judgment as a matter of law or a motion for a new trial; the

district court's instruction that proof of any one such violation

would suffice to prove the claim has become the law of the case;

and Pendleton has failed to raise the "multiple theory" point in

this court, instead choosing to make an all-or-nothing argument

that the verdict must be discarded because there is insufficient

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evidence to support it on any theory. Given these tactical

choices, we need only inquire whether at least one of the theories

has some record support.

The record contains enough evidence to allow a rational

jury to find that Pendleton was not an impartial decisionmaker.

This compendium includes her own testimony that she declined to

interview an alibi witness based on her preconceived (and wholly

subjective) belief that the witness would lie and her rush to

impose sanctions despite having been asked by prison officials to

withhold judgment until they had completed a parallel internal

investigation into the July 14 incident. Given this evidence,

upholding the verdict on count 4 does not work a clear and gross

injustice. See Faigin, 184 F.3d at 76; La Amiga del Pueblo, 937

F.2d at 691.

In the same vein, the district court did not plainly err

in failing, sua sponte, to grant Pendleton qualified immunity.

Wolff has long established the level of due process required before

a pretrial detainee can be deprived of a liberty interest in a

disciplinary hearing, see 418 U.S. at 564-71, and, thus, the

procedural due process rights asserted by the plaintiff were

clearly established in 2002. See Collazo-Leon, 51 F.3d at 319

(holding that pretrial detainees must receive disciplinary hearings

comporting with due process); see also Benjamin, 264 F.3d at 189-90

(holding that "the procedures required by Wolff apply if the

-22-
restraint on [a pretrial detainee's] liberty is imposed for

disciplinary reasons"); Mitchell, 75 F.3d at 525 (similar).

The next step must recognize the fact that, unlike in

most qualified immunity cases, the jury has spoken here. When

evaluating a qualified immunity defense after a trial, an inquiring

court must accept the jury's supportable resolution of contested

facts. See Acevedo-Garcia v. Monroig, 351 F.3d 547, 563 (1st Cir.

2003); Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999). In

this instance, that principle leads us to conclude that Pendleton

acted in contravention of the plaintiff's clearly established

rights to an impartial decisionmaker. And, moreover, we think it

self-evident that any reasonable officer in Pendleton's position

would have understood that prejudging alibi witnesses without even

interviewing them or hearing their testimony and rushing to impose

sanctions before an internal investigation could be completed

constituted a course of action inconsistent with the proper role of

an impartial adjudicator. Cf. King v. Higgins, 702 F.2d 18, 20-21

(1st Cir. 1983) (rejecting assertion of qualified immunity by

officer overseeing prison hearing reminiscent of "kangaroo court"

and noting that some aspects of fundamental fairness are so

elemental as to "need[] no specific judicial articulation").

For these reasons, we conclude that there was no plain

error in the district court's failure, sua sponte, to terminate the

case against Pendleton on qualified immunity grounds.

-23-
 C. Count 6: Conditions of Confinement (O'Mara).

A pretrial detainee's claim that he has been subjected to

unconstitutional conditions of confinement implicates Fourteenth

Amendment liberty interests. The parameters of such an interest

are coextensive with those of the Eighth Amendment's prohibition

against cruel and unusual punishment. See Burrell v. Hampshire

County, 307 F.3d 1, 7 (1st Cir. 2002). In order to establish a

constitutional violation, a plaintiff's claim must meet both

objective and subjective criteria. Farmer v. Brennan, 511 U.S.

825, 834 (1994). First, the plaintiff must establish that, from an

objective standpoint, the conditions of his confinement deny him

the minimal measure of necessities required for civilized living.

Id. Second, the plaintiff must show that, from a subjective

standpoint, the defendant was deliberately indifferent to inmate

health or safety.5 Id. Deliberate indifference, in this sense, is

a mental state akin to criminal recklessness. Id. at 836-37.

Here, the plaintiff sued Superintendent O'Mara in his

official capacity. A suit against a public official in his

official capacity is a suit against the governmental entity itself.

Wood v. Hancock County Sheriff's Dep't, 354 F.3d 57, 58 n.1 (1st

5
This requirement is a direct consequence of the Eighth
Amendment's bar on cruel and unusual punishment; only a condition
that can be conceived as being "deliberately administered for a
penal or disciplinary purpose" can constitute punishment. Wilson
v. Seiter, 501 U.S. 294, 300 (1991) (quoting Johnson v. Glick, 481
F.2d 1028, 1032 (2d Cir. 1973) (Friendly, J.))

-24-
Cir. 2003); Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705

(1st Cir. 1993). The claim against O'Mara is, therefore, a claim

against the county (which operates the jail).

In order to hold the county liable, the plaintiff must

prove a constitutional violation resulting from a "policy

statement, ordinance, regulation or decision officially adopted and

promulgated by" those in charge of the jail. Monell v. Dep't of

Soc. Servs., 436 U.S. 658, 690 (1978). A custom or practice may

suffice to show such a policy if it is so widespread or pervasive

that the policymakers must have had actual or constructive notice

of it, yet did nothing to modify it.6 Wood, 354 F.3d at 64.

O'Mara attempts to contest the jury's verdict on two main

fronts. He claims, first, that the conditions of the plaintiff's

confinement, objectively speaking, were not draconian enough to

violate the Constitution; and second, that the conditions

complained of did not stem from a policy, custom, or practice

attributable to the jail itself (and, by extension, the county).

He also argues, albeit perfunctorily, that the record contains no

6
Typically, the liability of a county would also require proof
of fault and causation. Thus, a section 1983 plaintiff ordinarily
must show that the county, "through its deliberate conduct . . .
was the 'moving force' behind the injury alleged." Bd. of County
Comm'rs v. Brown, 520 U.S. 397, 404 (1997) (emphasis omitted).
However, in situations in which the allegation is that the policy
at issue itself violates or directs public officers to violate the
Constitution, proof of the existence of the policy "necessarily
establishes that the [county] acted culpably." Id. at 405. This
is such a case.

-25-
evidence that he personally exhibited deliberate indifference to

the conditions of the plaintiff's confinement. Because none of

these claims was properly preserved — like his fellow defendants,

O'Mara made no timeous motion either for judgment as a matter of

law or for a new trial — the scope of appellate review is

circumscribed. See Faigin, 184 F.3d at 76; La Amiga del Pueblo,

937 F.2d at 691.

We start with the conditions of confinement themselves.

Although the parties hotly dispute the conditions that actually

obtained in Unit 2B, we must view the facts in the light most

favorable to the verdict, consistent with record support. See

Correa, 69 F.3d at 1188. At a minimum, the evidence supported

findings that the plaintiff, while on AH status and three-day

rotation, was in around-the-clock segregation, save only for a

five-minute shower break every third day; that the prison withheld

all hygienic products from him; that he had access to water

(including the ability to flush his toilet) only at the discretion

of individual prison guards; and that he was subjected daily to

multiple strip searches that required him to place his unwashed

fingers into his mouth. The case law as to whether any one of

these conditions, by itself, might be serious enough to work a

constitutional violation is in some disarray. Compare, e.g.,

DeSpain v. Uphoff, 264 F.3d 965, 974-75 (10th Cir. 2001) (holding

that inmate's exposure to bodily waste in inoperative toilets

-26-
states an actionable Eighth Amendment claim); Keenan v. Hall, 83

F.3d 1083, 1089-91 (9th Cir. 1996) (holding that denial of all out-

of-cell exercise time and denial of personal hygiene items states

an Eighth Amendment claim); and Young v. Quinlan, 960 F.2d 351, 363

(3d Cir. 1992) (requiring prisoner to request permission to wash

hands, receive toilet paper, or drink water states an Eighth

Amendment claim), with, e.g., Smith v. Copeland, 87 F.3d 265, 269

& n.3 (8th Cir. 1996) (finding no violation when prisoner was

confined to cell with overflowed toilet for four days); and Harris

v. Fleming, 839 F.2d 1232, 1234-36 (7th Cir. 1988) (holding that

prisoner did not state a claim when prison officials denied him

exercise time for twenty-eight days, negligently deprived him of

toilet paper for five days, and negligently deprived him of soap,

toothbrush, and toothpaste for ten days). Here, however, the cited

conditions are present in combination, and the scope of review is

narrowed by O'Mara's failure properly to preserve his objection.

Under those circumstances, we cannot say that the jury verdict

finding constitutionally deficient conditions of confinement was a

clear and gross injustice. Cf. Rivera Castillo v. Autokirey, Inc.,

379 F.3d 4, 12 (1st Cir. 2004) (explaining that inconclusive nature

of available precedents precludes a finding of plain error).

O'Mara also argues that however egregious the conditions

of confinement may have been, their duration was so brief that no

reasonable jury could find that they violated the Constitution. We

-27-
agree that duration may affect the Eighth Amendment calculus. See

Hutto v. Finney, 437 U.S. 678, 687 (1978) (noting that unpleasant

conditions of confinement "might be tolerable for a few days and

intolerably cruel for weeks and months"). In this case, however,

the period of pre-hearing confinement — approximately three weeks

— is not so brief as to alter our conclusion.

O'Mara's claim that the record contains no evidence to

show that he himself was deliberately indifferent to the conditions

of the plaintiff's confinement is a red herring. O'Mara, sued in

his official capacity, is merely a proxy for the county. See

Nereida-Gonzalez, 990 F.2d at 705. The county's liability is

contingent on a constitutional violation by any county official

acting pursuant to the interdicted policy, custom, or practice.

See Young v. City of Providence, 404 F.3d 4, 26 (1st Cir. 2005).

Thus, the crucial consideration is whether the evidence allowed the

jury to find that any prison official imposed the challenged

conditions upon the plaintiff with the requisite scienter, pursuant

to a policy, custom, or practice. See Wilson v. Town of Mendon,

294 F.3d 1, 7 (1st Cir. 2002).

The record here contains a sufficient quantum of evidence

to ground such a finding. Scienter often will have to be proven by

circumstantial evidence. In the context of claims based on

conditions of confinement, the Supreme Court has explained that "a

factfinder may conclude that a prison official knew of a

-28-
substantial risk from the very fact that the risk was obvious."

Farmer, 511 U.S. at 842. The conditions of confinement here were

apparent to all and their risks were readily evident. Applying the

Farmer standard, the jury in this case reasonably could have

inferred that the jailers knew that the combination of near-

continuous confinement, denial of exercise time, water, and items

of personal hygiene, exposure to bodily waste, and forced insertion

of inmates' unwashed fingers into their mouths up to five times per

day posed an intolerable health and safety hazard.

To be sure, O'Mara challenges the very existence of the

interdicted policy, custom, or practice. Proving the existence of

a policy, custom, or practice normally entails questions of fact.

See Baron, 402 F.3d at 237. Because this claim of error was not

properly preserved, we ask only whether any evidence exists to

support a finding that the execution of a governmental policy,

custom, or practice caused the injury. See Faigin, 184 F.3d at 76;

La Amiga del Pueblo, 937 F.2d at 691.

There is ample evidence to undergird a finding that the

challenged conditions were imposed pursuant to recognized prison

policy, custom, or practice. Captain Dionne's testimony adequately

established that water restrictions and the withholding of personal

hygiene items were part and parcel of prison policy. The

unsanitary searches were largely derivative of this policy and, in

any event, the plaintiff testified that senior officers supervised

-29-
the searches and knew of the manner in which they were

administered. Finally, Dionne testified that the three-day

rotation and the other restrictions had been in place for "several

years." Although he insisted that inmates on three-day rotation

were to be given one hour of out-of-cell recreation time every

three days, that claim was belied not only by the inmates'

testimony as to the jail's actual practice but also by Dionne's

deposition testimony, put before the jury on cross-examination, in

which he acknowledged that a three-day rotation inmate's "only time

out of his cell is once every three days for a shower."

To say more anent this issue would be to paint the lily.

Given the evidence in the record, we discern no clear and gross

injustice sufficient to warrant judgment notwithstanding the

verdict on count 6.

D. Evidentiary Challenges.

The defendants' evidentiary challenges are largely

undefined. They consist mainly of vague assertions that the

district court too freely admitted the plaintiff's evidence and too

hastily rejected their proffers. They lace these assertions with

repeated attacks on the credibility of the plaintiff's witnesses —

attacks that are rooted almost exclusively in stereotypes.7

7
Throughout their brief, the defendants assert that both the
judge and jury erred in failing to give more respect to the
testimony of correctional officers than to the testimony of a
motley crew of inmates. Within broad limits, however, such
credibility choices are for the factfinder, not for an appellate

-30-
 This imprecision is not helpful to the defendants'

cause. See United States v. Parsons, 141 F.3d 386, 390 (1st Cir.

1998) ("It is counsel's job on appeal to mine the record and prove

the alleged error, not to offer suggestive hints and leave the rest

of the work to a busy court."); United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990) (explaining that "a litigant has an

obligation to spell out its arguments squarely and distinctly, or

else forever hold its peace") (internal quotation marks omitted).

Buried in the rhetorical rubble, we discern three evidentiary

arguments that are specific enough to warrant consideration. We

briefly address them.

The first two arguments can be considered in tandem. The

defendants maintain that the trial court improperly excluded

evidence of a prior bad act by the plaintiff and, in the bargain,

improperly allowed testimony by other inmates as to beatings they

suffered ancillary to the July 14 incident. Both of these rulings

implicate Federal Rule of Evidence 404(b), reprinted in the

margin.8 In reviewing such rulings, we first ask "whether the

court. United States v. Alicea, 205 F.3d 480, 483 (1st Cir. 2000).
There is nothing here that takes this case out of the mine run.
8
The rule provides in pertinent part:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

-31-
proffered evidence has some special relevance which enables it to

shed light on a disputed issue in the case, rather than merely to

show a [party's] deplorable character or propensity for

wrongdoing." Udemba v. Nicoli, 237 F.3d 8, 15 (1st Cir. 2001). If

such special relevance exists, we then ask whether the probative

value of that evidence is substantially outweighed by other

considerations. Id. (citing Fed. R. Evid. 403). We ordinarily

review the admission or exclusion of Rule 404(b) evidence for abuse

of discretion. Id. at 14. That standard obtains here.

The defendants' first complaint is that they were not

allowed to introduce evidence that the plaintiff had "converged" on

a correctional officer while incarcerated in a Massachusetts prison

in 1995 (seven years before the incident at issue here). They

argue that such evidence was "clearly probative of [the

plaintiff's] intent and plan, that Rivas's reaction was not the

result of a mere misunderstanding or accident, and most

importantly, that [the plaintiff] was properly identified as one of

the perpetrators." Appellants' Br. at 55.

We begin by noting a threshold problem. The source of

this "convergence" evidence is apparently a report from the

Massachusetts prison — but that report is not in the record and the

defendants did not make an independent offer of proof anent the

incident. See Fed. R. Evid. 103(a)(2). In the district court, the

Fed. R. Evid. 404(b).

-32-
plaintiff's counsel stated that the report contains only a bare

(unproven) allegation and that, in all events, it alleged that the

plaintiff played only a "minor role" in the incident. Without

either the report itself or a suitably detailed offer of proof,

there is no way to contradict this description. Consequently, it

would be surpassingly difficult to find that the district court

abused its discretion in rejecting the proffered evidence.

At any rate, the evidence was clearly inadmissible for

the purposes urged by the defendants. If it were offered to show

that Rivas "properly identified" the plaintiff as a "perpetrator"

or to show a "plan" on the plaintiff's part, such a use would

require the factfinder to draw a propensity inference — the

inference being that because the plaintiff "converged" on a

correctional officer in 1995, he was likely to do so again in 2002.

Rule 404(b) forbids the introduction of evidence for such a

purpose. United States v. Ingraham, 832 F.2d 229, 235 (1st Cir.

1987).

The evidence was similarly impuissant to show intent.

Prior bad acts may sometimes provide evidence of intent if "one or

more similar prior incidents . . . show a pattern of operation that

would suggest intent." 2 Jack B. Weinstein and Margaret A. Berger,

Weinstein's Federal Evidence § 404.22[1][a] (2d ed. 2005). That is

merely another way of saying that prior bad acts may be admitted as

circumstantial evidence of a party's state of mind. See SEC v.

-33-
Happ, 392 F.3d 12, 29-30 (1st Cir. 2004). The defendants do not

explain how the plaintiff's state of mind is relevant to the issues

in this case — he was either away lifting weights or he was not —

let alone how the mere occurrence of the 1995 incident tends to

prove a state of mind that would be relevant here.

Finally, the assertion that the plaintiff's alleged prior

bad act is relevant to show "absence of mistake or accident" on

Rivas's part does not withstand scrutiny. As a general matter,

this facet of Rule 404(b) "does not apply unless the opposing party

first raises a claim of mistake or accident." DiRico v. City of

Quincy, 404 F.3d 464, 468 n.10 (1st Cir. 2005). The ordinary

paradigm is that the plaintiff is required to prove the defendant's

wrongful intent; the defendant asserts an absence of wrongful

intent, instead claiming that he made a mistake or had an accident;

and the plaintiff counters by offering evidence of a similar bad

act on the defendant's part that tends to show that the defendant's

actions were not the product of a mistake or accident. See, e.g.,

United States v. Donovan, 984 F.2d 507, 512 n.6 (1st Cir. 1993).

Here, however, the prior bad act is not one committed by

the defendant and offered by the plaintiff to show that the

defendant acted deliberately. Using the plaintiff's prior bad act

to show that the defendant did not mistakenly or accidentally

identify the plaintiff as one of his attackers is nothing more than

a ham-fisted attempt to put lipstick on the propensity pig.

-34-
 The defendants' challenge to the admission of evidence

regarding beatings suffered by other inmates at the hands of guards

in the aftermath of the July 14 incident also fails. Two of the

six claims heard by the jury (counts 2 and 3) involved allegations

of excessive force, viz., that a guard assaulted the plaintiff

while transporting him to Unit 2B on July 14, 2002, and that

another officer failed to supervise the first. The district court

allowed other inmates transported to Unit 2B that night to testify

that they also had been assaulted by the guards. This evidence was

admitted to show pattern and modus operandi on the part of the

transporting guards as to counts 2 and 3.

The defendants dispute that the evidence was relevant at

all. They also argue that any probative worth it might have had

was substantially outweighed by its prejudicial nature. See Fed.

R. Evid. 403. Given the context of the case and the breadth of the

district court's discretion, the evidence appears to have been

properly admitted. See Freeman v. Package Mach. Co., 865 F.2d

1331, 1340 (1st Cir. 1988) ("Only rarely — and in extraordinarily

compelling circumstances — will we, from the vista of a cold

appellate record, reverse a district court's on-the-spot judgment

concerning the relative weighing of probative value and unfair

effect.").

Even were we to assume, for argument's sake, that the

district court blundered, any error was harmless. To warrant

-35-
reversal, a non-constitutional trial error must have "had a

substantial and injurious effect or influence upon the jury's

verdict." Gomez v. Rivera Rodriguez, 344 F.3d 103, 118 (1st Cir.

2003). In this instance, it is hard to imagine that the alleged

error could have had such an effect; after all, the jury exonerated

the correctional officers on the only counts to which the admitted

evidence pertained.9

The defendants' last remonstrance is that the district

court did not allow inquiry into the gang affiliation of one of the

plaintiff's witnesses. Although the defendants baldly assert that

they had a right to introduce this bit of evidence, they offer no

legal authority supporting their position. We could, therefore,

simply dismiss the argument as waived. See Muñiz, 373 F.3d at 8

(holding as waived skeletal argument unaccompanied by "citation to

any pertinent authority"); Zannino, 895 F.2d at 17 (similar). We

prefer, however, to uphold the ruling as within the ambit of the

district court's wide discretion. See Package Mach., 865 F.2d at

1340.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment appealed from must be

9
The defendants suggest that this conclusion overlooks the
cumulative impact of several witnesses testifying to the point. We
dismiss that suggestion as wholly speculative.

-36-
Affirmed.

-37-