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
-2-
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.
-3-
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
-4-
(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
-5-
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.
-6-
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.
-7-
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.
-8-
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
-9-
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
-10-
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
-11-
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
-12-
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
-13-
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,
-14-
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
-15-
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.
-16-
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.
-17-
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.
-18-
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
-19-
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.
-20-
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
-21-
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-
Surprenant v. Rivas
Court: Court of Appeals for the First Circuit
Date filed: 2005-09-09
Citations: 424 F.3d 5
Copy Citations