Davis v. Rennie

United States Court of Appeals
For the First Circuit

No. 99-1453

JASON DAVIS,

Plaintiff, Appellee,

v.

PAUL RENNIE, RICHARD GILLIS, MICHAEL HANLON, LEONARD FITZPATRICK,
NICHOLAS L. TASSONE, and JOYCE WIEGERS,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

Christopher M. Perry, with whom Brendan J. Perry, Terance P.
Perry, and Brendan J. Perry & Associates, P.C., were on brief, for
appellee.
Howard R. Meshnick and James A. Sweeney, Assistant Attorneys
General, with whom Thomas F. Reilly, Attorney General, was on brief,
for appellants.

September 5, 2001
 LIPEZ, Circuit Judge. Jason Davis, an involuntarily

committed mental patient, brought suit under 42 U.S.C. § 1983, the

Massachusetts Civil Rights Act, and other statutes against multiple

defendants after being punched repeatedly in the head during a physical

restraint at Westborough State Hospital. A jury awarded Davis $100,000

in compensatory damages and $1.55 million in punitive damages,

concluding that the appellants violated Davis's substantive due process

rights under the Fourteenth Amendment. Joyce Wiegers, the head nurse

who ordered the restraint, and Leonard Fitzpatrick, Richard Gillis,

Michael Hanlon, Paul Rennie, and Nicholas L. Tassone, mental health

workers who participated in the restraint, appeal the portion of the

judgment against them. They argue that the district court erred in

instructing the jury about Davis's claims; that there is insufficient

evidence for a reasonable jury to have found that they violated Davis's

constitutional rights; that they are entitled to qualified immunity;

and that the evidence does not support a punitive damages award. We

affirm the judgment against each of the appellants.

I.

Although we must assess challenges to the sufficiency of the

evidence in the light most favorable to the verdict, Cigna Ins. Co. v.

Oy Saunatec, Ltd., 241 F.3d 1, 6 (1st Cir. 2001), we recount some of

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the factual disputes at trial to provide a more complete sense of the

issues before the jury.

At the time of the events relevant to this case, Jason Davis,

28 years old, suffered from schizo-affective and bipolar disorders. He

had a history of substance abuse and suicide attempts and had been

hospitalized between 10 and 12 times since the age of 17. He was

involuntarily committed to Westborough State Hospital (Westborough) for

periods during 1991 and 1992. After threatening to kill his father, he

was committed to Westborough for a third time on May 12, 1993. Davis

spent about a month in Westborough's Hennessey Building, a locked wing

of the hospital, and then transferred to Chauncy Hall, an unlocked

wing.

On August 12, 1993, Davis and another patient, Dean Dexter,

violated hospital rules by leaving the grounds without permission.

Davis testified that he told Dexter that he was unhappy because no one

had visited him on his birthday two days earlier, and that Dexter

suggested that they go drinking. The patients walked to a nearby

liquor store and bought beer, vodka, and wine coolers. At about 11

a.m., Davis and Dexter went into the woods behind the store and began

drinking.

Westborough staff sent Greg Plesh, a special state police

officer assigned to the hospital for security, and Frantz Joseph, a

mental health worker (MHW), to look for the missing patients. While

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Joseph watched for Davis and Dexter on the road next to the liquor

store, Plesh went into the woods, where he found the patients. Davis

and Dexter did not threaten Plesh or resist when he asked them to walk

back to his car with him. At the car, Plesh and a second police

officer handcuffed Davis and Dexter and took them back to Chauncy Hall

with Joseph. There, medical staff decided that the patients should be

medically evaluated in a more secure unit because they had been

drinking. The staff instructed Plesh, Joseph, and the second police

officer to take the patients to Hennessey Unit 2A.

Plesh and Joseph arrived with Davis and Dexter at Hennessey

at about noon. Plesh took off the patients' handcuffs in the lobby, as

policy required. According to Plesh, who is Davis's key witness, Davis

and Dexter were loud and boisterous as they rode the elevator up to

Hennessey 2A. When they arrived at the unit, Head Nurse Joyce Wiegers

told Plesh to take Davis and Dexter to the day hall. Wiegers had not

received notice from Chauncy Hall that Davis and Dexter were coming.

As Head Nurse for Hennessey 2A, Wiegers was responsible for 37 patients

and several staff, about half of whom were outside on a picnic.

Wiegers told Davis and Dexter to stay in the day hall while

she called a doctor to evaluate them. According to Plesh and Davis,

Dexter came out of the day hall after a few minutes and made sexually

inappropriate comments to a second nurse, Sheila Mall. Plesh said that

Mall got upset and called to Wiegers, who sent Dexter back to the day

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hall and asked Plesh to stay with the patients until male MHWs could be

called in from the picnic. Plesh said that Dexter and Davis were "loud

and demanding" and that there was "continuing escalation" between the

patients and the nurses.

MHWs Phillip Bragg, Michael Hanlon, and Paul Rennie responded

to Wiegers's call for assistance. Wiegers, Bragg, and Hanlon testified

that as the MHWs stood at the door of the day hall, Davis smacked one

hand with his fist and said things like "I'll kill you" and "I'll break

your neck" while looking at the MHWs. Davis denied this account and

testified that Dean Dexter made the verbal threats and threatening

gestures to the MHWs.

Wiegers directed Bragg, Hanlon, and Rennie to separate Dexter

and Davis by putting Davis in the unit's "quiet room," which had a

mattress on the floor, and Dexter in the "four-point room," which had

a bed with four-point mechanical restraints. Each patient was to be

secluded with the door left open and an MHW stationed outside. The

MHWs took Davis to the quiet room without incident. Once inside, they

asked him to take off his belt and shoes, as policy required. Hanlon,

Wiegers, and Bragg testified that Davis threw the belt at Hanlon and

hit him in the chest. Plesh, who was watching from the hallway, said

that the belt might have hit one of the MHWs by rebounding after Davis

threw it at the wall. Davis denied throwing the belt at Hanlon.

Although Wiegers told Plesh and Joseph that they could leave,

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she said they should be prepared to return if necessary. Hanlon and

Rennie stood outside the open door of the quiet room. Bragg was also

standing in the hallway. Davis testified that Bragg and Rennie “were

laughing, making comments about the facts that we were idiots or

something or drunks. They just thought the whole thing was funny.”

Davis said that when he asked the MHWs if he could leave the room to

smoke, Rennie said "you are going to have to go through us," and "what

do you think that you're going to do? Are you going to kick our ass?"

Rennie denied making these comments. Davis said that he considered

Rennie a friend and that Rennie was acting "like he was someone else,"

which upset him.

In response to his lawyer's questions about how Rennie's

comments made him feel, Davis said: “I did something really stupid. I

turned around to the wall and tried to do a double drop kick.” Davis

testified that he tried to kick twice and executed poorly, and that

Bragg and Rennie “were laughing, saying that I looked like a toad.”

Davis said that his back was to Rennie when he attempted the kicks,

and that he “just aimed towards the wall.” Hanlon also said that

Davis's kicks did not connect with anyone, though he characterized them

as threatening. Rennie testified that the kicks were directed at him

and that one kick hit his arm. With Hanlon standing by, Rennie

physically restrained Davis. The restraint did not injure Davis.

However, Davis testified that Rennie choked him and threw him to the

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mat with "deadly force.”

At this point, Wiegers called a "green alert stat" asking any

available male staff to come to Hennessey 2A. Plesh responded, as did

MHWs Fitzpatrick, Gillis, Tassone, and Jeffrey Flowers. When they

arrived, Davis was sitting on the mattress in the quiet room. Wiegers

told the MHWs to take Davis to the four-point room and put him in

mechanical restraints. Tassone, who knew Davis well from an earlier

admission to Hennessey, talked to the patient and the two agreed that

Davis would walk to the four-point room himself rather than be carried

in by the MHWs. Davis got up from the mattress and walked through the

door of the quiet room with Hanlon ahead of him, Tassone on one side,

and Rennie behind. Plesh and Bragg were in the hallway and Gillis and

Fitzpatrick were still in the quiet room. Plesh testified that as

Davis walked out of the room, Bragg "got right in Jason's face and made

a comment to Jason." Plesh did not hear what Bragg said. Bragg

denied making any comment to Davis. Davis said that after the take-

down in the quiet room, Rennie taunted Davis by saying “I thought you

were tough,” and that in response as they walked into the hallway Davis

spun and kicked Rennie hard in the stomach. Davis said about his

decision to kick Rennie: "There was no way I was going to let him strap

me to that bed. There was no way I was going to let that continue.

But at the same time there was like no way out."

Davis's kick sent Rennie to the floor. Bragg, Fitzpatrick,

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Gillis, Hanlon, and Tassone began trying to physically restrain Davis.

Plesh, who characterized himself as an "extra male" at the scene,

watched from a few feet away. Wiegers testified that she was "back and

forth constantly" and "would be gone maybe for seconds" as she tried to

monitor the restraint of Davis as well as ensure the safety of the

other patients on the floor. Davis struggled, and Wiegers said she saw

"a pile of bodies" as the MHWs took him to the floor. According to

testimony at trial, Bragg was at Davis's head with one knee on either

side, Fitzpatrick, Gillis, and Rennie, who had rejoined the restraint,

were on Davis's upper right holding his arm and torso, Tassone was on

Davis's upper left, Hanlon was also helping to hold down Davis's upper

body, and Flowers was holding one of Davis's legs. Wiegers, who at

this point was standing four or five feet from Davis's legs, said that

she could see one of Davis's boots but not his head.

Plesh, Tassone, and Davis testified that after the MHWs had

subdued Davis on the floor, Bragg punched the patient in the head.

Plesh, whose account is crucial to the jury's findings, said he was

standing next to Wiegers about three feet from Davis. He recounted:

"Jason is lying down the hallway, head is away from me, feet are

towards me. Staff is encircling him. And it's not what I saw, it's

what I felt. I initially felt the thud through the floor and then

heard a thud." Plesh said he looked up and saw Bragg punch Davis in

the head four to five times. Plesh continued:

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 I turned to Joyce Wiegers who was on my right
shoulder . . . When I saw Jason Davis being
punched, I said, 'Did you see that? Are you
going to do anything about this? Are you going
to allow this to happen?' . . . She didn't say
anything, and I really wasn't waiting at that
point. Some more was occurring and at that
point I decided to intervene.

As the MHWs began rolling the patient onto his stomach, Bragg twisted

Davis's neck to the side and Plesh climbed over the other MHWs to

push Bragg away. Plesh said that the punching and neck twisting

happened "very fast."

Tassone corroborated aspects of Plesh's testimony. He said

that he saw Bragg punch Davis hard three times and that he heard

Plesh say: "What are you doing? What are you doing? Stop it, stop

it." When asked why he did not intervene to stop Bragg from punching

Davis, Tassone said: "It wasn't time. It wasn't a split second

between when the officer said something, I looked up, and Phillip

Bragg hit him, and then it was over."1

Davis testified about the punching: "It was over and over

and over and over again. It was like it would never stop. . . And

then I was calling for help and nobody was stopping them and they

kept hitting me. . . I felt the blood; it was, you know, it was

1Tassone also testified that he later tried to talk to another
Westborough staff member about the incident off the record, and that
the employee told him to report what had happened to the Disabled
Persons Protection Commission. Tassone said he was afraid to make the
report and left his job at Westborough a few days later.

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coming down my face." Plesh said that Davis's "eyes were rolling out

of his head," that "[t]here was swelling, bruising all in his face,"

and that he checked to make sure that Davis's neck had not been

broken. Tassone said that Davis's face was cut and bloody.

Bragg denied that he punched Davis. He said that after

helping bring Davis to the floor he asked Plesh to relieve him

because his arm was sore from the struggle. Bragg said that Plesh

asked, "Don't you think you're hurting him?" and that Bragg answered

"no." Fitzpatrick, Gillis, and Hanlon all said that they were within

three feet of Davis's head, did not see Bragg punch Davis, and were

not aware of Plesh's intervention. Flowers, Rennie, and Wiegers also

testified that they did not see any punching or violence toward

Davis.

Plesh testified that when the restraint was over, Wiegers

got down on her knees in front of Davis and said, "This is what you

get when you act -- this is what you get when you act like this."

Davis testified that Bragg said these words to him, and that Wiegers

said something else. Wiegers denied making any comments to Davis.

After the MHWs finished rolling Davis over, Plesh

handcuffed him for transport to the four-point room. When Davis was

placed on the restraint bed and secured, Plesh took the handcuffs off

at Wiegers's direction and left to find a doctor. In the hallway, he

saw Dr. Kamalika Weeratne, whom Wiegers had called. Plesh then found

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Bragg and arrested him for assault and battery.2 In connection with

the arrest, Plesh later returned with his supervisor to photograph

Davis's injuries. These pictures were introduced at trial.

Wiegers testified that her supervisor, David Potter, told

her to write a report about the restraint of Davis before she left

for the day. In the report Wiegers wrote of Davis's bruises:

"Unknown when or how injury sustained" and "Unknown to writer

precipitants to occurrence." At trial, she said that she used those

phrases because she was not sure how the restraint caused Davis's

injuries and because she had not received an explanation from Chauncy

Hall about why Davis was being sent to Hennessey. Wiegers also

filled out an internal Westborough complaint form about Plesh's

arrest of Bragg in which she wrote: "Improper and disturbing arrest

by security of a staff member."3 Fitzpatrick and Gillis also made an

internal complaint a few days after the restraint alleging that after

handcuffing Davis, Plesh told them to twist the handcuffs if the

patient continued to struggle, and then demonstrated the twist on

Davis.

2Bragg was eventually found not guilty of the charges. Tassone
did not testify at his trial.
3 Wiegers also helped bail Bragg out of jail. She and Bragg
testified that they had a social relationship. Bragg said that he and
his children were living in Wiegers's home at the time that the events
at issue here took place. Wiegers denied that, saying that Bragg moved
in with her for a short period a few weeks or months later.

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 Dr. Weeratne testified that when she examined Davis after

the restraint, she found bruises on the left side of his face,

scratches on the right side, and an enlarged left pupil. Dr.

Weeratne said she sent Davis to the emergency room at the University

of Massachusetts Hospital in Worcester to rule out more serious head

injuries. Davis did not require further treatment at the hospital

and was released that day.

Davis presented additional medical evidence at trial from

Dr. R. Amos Zeidman, his treating psychiatrist for periods beginning

in 1991. In late 1996 or early 1997, Dr. Zeidman diagnosed Davis

with Post Traumatic Stress Disorder (PTSD) as a result of the

physical restraint at Westborough. He said that Davis "was

horrified" by the event because "[h]e thought he was going to die."

Dr. Zeidman said that Davis's PTSD symptoms included insomnia,

anxiety, panic states, flashbacks, nightmares, and an inability to

concentrate. He said that Davis was having difficulty making

progress in therapy because he was afraid to trust anyone and that

"[t]he quality of his life has suffered terribly for this."

On August 2, 1996, Davis filed suit alleging that the May

12, 1993 physical restraints in the quiet room and hallway violated

his rights under 42 U.S.C. § 1983 and the Massachusetts Civil Rights

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Act, Mass. Gen. Laws ch. 12 § 11 I.4 Davis sued MHWs Bragg,

Fitzpatrick, Gillis, Hanlon, Rennie, Tassone, Joseph, and Flowers for

the use of excessive force during the first physical restraint in the

quiet room and the second restraint in the hallway. He sued the same

defendants and Wiegers for failing to intervene to prevent Bragg's

use of excessive force during the second restraint and for violating

his right to freedom from unreasonable bodily restraint.5

In their answer to Davis's complaint, the MHWs pleaded the

defense of qualified immunity.6 On the ground that the factual

disputes in the case precluded a qualified immunity determination

before trial, the district court deferred the issue. Trial began on

September 29, 1998. At the close of evidence, the court told the

jury without objection that only Bragg, Rennie, and Hanlon were

accused of violating Davis's rights during the first physical

restraint in the quiet room, and that all the MHWs and Wiegers were

4 Davis also brought claims pursuant to 42 U.S.C. § 1985
(conspiracy to interfere with civil rights), which the trial judge
dismissed at the close of evidence, and for false imprisonment, which
the jury rejected. Neither side challenges these dispositions on
appeal.
5Davis also sued two former commissioners of the Massachusetts
Department of Mental Health and a former chief operating officer of
Westborough. Davis alleged that the department's policies violated his
civil rights because they allowed Bragg to be hired as a convicted
felon. The jury rejected these claims, and this aspect of the verdict
is not challenged on appeal.
6Wiegers did not offer this defense in her answer or in her
motion for judgment as a matter of law under Fed. R. Civ. P. 50(a).

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accused of violating Davis's rights during the second physical

restraint in the hallway.

On October 28, 1998, the jury returned a verdict against

Bragg, Fitzpatrick, Gillis, Hanlon, Rennie, Tassone, and Wiegers. A

separate verdict slip for each defendant asked whether the jury found

that the defendant had violated Davis's constitutional and

Massachusetts civil rights.7 A single verdict slip on damages asked

the jury to set one amount for compensatory damages and to set amounts

for punitive damages for each defendant against whom it chose to award

them. The jury awarded Davis $100,000 in compensatory damages, and

punitive damages of $500,000 each against Bragg and Wiegers; $250,000

against Rennie; and $100,000 each against Fitzpatrick, Gillis, and

Hanlon. No punitive damages were assessed against Tassone. On

January 13, 1999, the court denied the defendants' claims of qualified

immunity in a memorandum. With the exception of Bragg, who does not

appeal the judgment against him, the defendants filed a motion for

remittitur, which the judge granted by reducing by half the punitive

damages awards against each of them. Davis accepted the remittitur.

This appeal followed.8

7A sample verdict slip for liability and the verdict slip for
damages are attached as appendices to this opinion.
8 In advance of full appellate briefing, Davis filed two motions
to dismiss the appeal as untimely filed and to restrict the issues that
the appellants may raise on appeal. He incorporates these motions into
his appellate brief. Davis's arguments are without merit, and we

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 II.

A. The Failure to Intervene Claim

We begin with the appellants' arguments of error relating

to the claim that they failed to intervene to prevent Bragg from

punching Davis. The appellants challenge the judge's instructions on

this claim. They also argue that there was insufficient evidence to

support a finding that they failed to intervene.

1. The Jury Instructions

a. Substantive Due Process

The appellants contend that the judge should have

instructed the jury that it could impose liability only if it found

that the failure to intervene "shocks the conscience." As a fallback

position, the appellants argue that, at a minimum, the instructions

should have premised liability on a finding that the appellants were

deliberately indifferent. Finally, they argue that the judge erred

by failing to charge an "objectively reasonable" standard for the

failure to intervene claim, as he said he would at the pre-charge

conference.

The judge began his charge to the jury with Davis's claims

against Bragg. In connection with the claim that Bragg violated

Davis's constitutional rights by using excessive force, the judge gave

an "objectively reasonable" instruction, telling the jury to determine

reject them.

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"whether a reasonable mental health worker in Bragg's position would

or would not have acted as he did." Turning to the claims against the

appellants, the judge said: "To the extent that the claims against

them are the same as the claims against Mr. Bragg, you follow the

instructions I have just given about the claims against Mr. Bragg.

However, as you recall, there are charges made against the [other]

defendants beyond those made against Mr. Bragg." The judge then said

that Davis claimed the appellants deprived him of his constitutional

rights "by failing to intervene to protect him from Mr. Bragg's

alleged assault." The judge continued:

To prevail on this claim, Mr. Davis must
establish by a preponderance of the evidence as
to each defendant separately:
1) That that defendant was present at the scene
of the alleged excessive use of force by Mr.
Bragg at the time it occurred;
2) That that defendant actually observed the
alleged excessive use of force by Mr. Bragg;
3) That that defendant was in a position where
he or she could realistically prevent the
alleged use of excessive force by Phillip Bragg;
and
4) That there was sufficient time available to
that defendant to prevent the alleged excessive
use of force. In sum . . . you must determine
as to each defendant whether he or she actually
knew of Mr. Bragg's alleged punching, whether he
or she could have prevented it, whether there
was enough time to do so, and whether he or she
failed to do so.

In assessing these instructions, we begin with the basis of

Davis's claims. Section 1983 "is not itself a source of substantive

rights, but merely provides a method for vindicating federal rights

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elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94 (1989)

(internal quotation marks omitted). We must thus identify the

specific right alleged to have been violated. See Sacramento v.

Lewis, 523 U.S. 833, 841 n.5 (1998). Here, Davis's rights stem from

the Fourteenth Amendment's protection against state action depriving

an individual of life or liberty without "due process of law." U.S.

Const. art. XIV. "The most familiar dimension of due process is

protection of procedural rights, but the due process concept has been

extended by the Supreme Court to incorporate substantive protections."

Hasenfus v. LaJeunesse, 175 F.3d 68, 70-71 (1st Cir. 1999) (citing

Washington v. Glucksberg, 521 U.S. 702, 719-20 (1997)).

The strand of substantive due process jurisprudence

primarily at issue here involves Davis's right to be free from the use

of excessive force and the appellants' failure to prevent that force.

The state has a duty to protect incarcerated prisoners and

involuntarily committed mental patients from harm by a state actor.

DeShaney v. Winnebago County, 489 U.S. 189, 199 (1989); Youngberg v.

Romeo, 457 U.S. 307, 321-22 (1982). For involuntarily committed

patients, "a set of unique rules has developed" according to which

"failures to act . . . may comprise a due process or other

constitutional violation because the state-imposed circumstance of

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confinement prevents such individuals from helping themselves."9

Hasenfus, 175 F.3d at 71; see also Shaw v. Strackhouse, 920 F.2d 1135,

1144 (3d Cir. 1990) ("Once the state restrains an individual's

liberty, rendering that individual unable to act for himself . . . the

state does acquire an affirmative duty to protect.").

For similar reasons, we have said that the state also has

a duty in some circumstances to intervene to protect arrestees and

pretrial detainees. We initially discussed such a duty in Gaudreault

v. Salem, 923 F.2d 203 (1st Cir. 1990) (per curiam), cert. denied, 500

U.S. 956 (1991), saying: "An officer who is present at the scene and

who fails to take reasonable steps to protect the victim of another

officer's use of excessive force can be held liable under section 1983

for his nonfeasance." Id. at 207 n.3. Although this statement is

dicta,10 Gaudreault cited two cases in which other circuits have held

squarely that police officers have a duty to intervene when they see

another officer use excessive force against a pretrial detainee. See

9 A convicted prisoner may bring a claim for use of excessive
force under the Eighth Amendment. See Hudson v. McMillan, 503 U.S. 1,
4 (1992). At least one court has found that a prison guard has a duty
to protect a prisoner from the use of excessive force by another prison
guard. See McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990).
10Gaudreault brought suit against four officers who allegedly
were present when another unidentified officer attacked him. We noted
that nonfeasance offered a "potential basis of liability." Gaudreault,
923 F.2d at 207 n.3. Since Gaudreault's complaint said that the attack
"was over in a matter of seconds," we found no liability because the
officers did not have a realistic opportunity to intercede. Id.

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O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988); Byrd v. Brishke,

466 F.2d 6, 10 (7th Cir. 1972). Moreover, we cited O'Neill and

Gaudreault and restated the existence of a duty to intervene on the

part of police in Martinez v. Colon, 54 F.3d 980, 985 (1st Cir.

1995).11

Gaudreault is thus good law in our circuit, and the record

reveals that it was the source of the four-point instruction that the

trial court gave on the failure to intervene claim. With the legal

scene thus set, we turn to the appellants' arguments about why the

instructions were in error.

b. The "Shocks the Conscience" Standard

In a motion proposing jury instructions, the appellants

asked the judge to instruct the jury that it could impose liability

only if it found that the appellants' failure to intervene to protect

Davis involved behavior so extreme as to "shock the conscience." They

preserved this argument by objecting to the charge after it was given.

See Fed. R. Civ. P. 51. On appeal, they argue that the court's

11In Martinez, a police officer accidentally shot another officer
during a harassment incident. We found that the victim's § 1983 claim
against other officers who witnessed the incident was precluded because
the assailant was engaged in a clearly personal pursuit when he shot
the victim, and so was not acting under color of state law, as § 1983
requires. See Alexis v. McDonald's Rest., 67 F.3d 341, 351 (1st Cir.
1995) ("A Section 1983 claim does not lie absent state action.").
Martinez is distinguishable from both Gaudreault and the case at hand
because there is no dispute that the appellants, as employees at a
state mental hospital, were acting under color of state law.

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failure to give that instruction was error.

The appellants rely on Sacramento v. Lewis, 523 U.S. 833

(1998), which involved a high-speed car chase by a police officer that

ended in the death of a passenger in the suspect car. Id. at 837.

The Court held that the police officer who gave chase had not violated

the passenger's substantive due process rights because "in such

circumstances only a purpose to cause harm unrelated to the legitimate

object of arrest will satisfy the element of arbitrary conduct

shocking to the conscience, necessary for a due process violation."

Id. at 836. The Court likened a police officer faced with a fleeing

suspect to a prison guard faced with a riot. Id. at 853. In such

situations, police or guards

have obligations that tend to tug against each
other. Their duty is to restore and maintain
lawful order, while not exacerbating disorder
more than necessary to do their jobs. They are
supposed to act decisively and to show restraint
at the same moment, and their decisions have to
be made in haste, under pressure, and frequently
without the luxury of a second chance.

Id. (internal quotations marks omitted). The appellants argue that

they similarly faced circumstances that were "tense, evolving, and

requiring split-second decisions," and thus were entitled to a "shocks

the conscience" instruction. At first glance, the analogy has

some appeal. Davis was drunk, possibly threatening initially, and

eventually violent. However, the evidence pertaining to Davis's

failure to intervene claim focused on what the MHWs and Nurse Wiegers

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did or failed to do after Davis had been restrained. The premise of

the trial court's decision to give the Gaudreault instruction was that

a reasonable jury could have found that Davis had been subdued when

Bragg began punching him repeatedly, allowing the appellants

sufficient time and a realistic opportunity to concentrate on their

primary responsibility of protecting the patient. Given this

plausible view of the evidence, the appellants, unlike the police

officer in Lewis, did not face competing obligations between restoring

order and exacerbating disorder once Davis had been restrained. By

requiring the jury to find that the defendants had sufficient time to

prevent the alleged excessive use of force by Bragg, the Gaudreault

standards focused properly on the factual element that removes this

case from the ambit of Lewis and its "shocks the conscience" standard.

The appellants' argument to the contrary fails because it collapses

the short time in which the appellants had to respond to Bragg's

punching of Davis into the restraint itself.

Moreover, there is precedent for subjecting the conduct of

a mental health worker to a more exacting standard than that of a

prison guard controlling a riot or a police officer chasing a fleeing

car. As the Supreme Court has said: "Persons who have been

involuntarily committed are entitled to more considerate treatment and

conditions of confinement than criminals whose conditions of

confinement are designed to punish." Youngberg, 457 U.S. at 321-22.

- 21 -
Davis was in the state's custody because of mental illness, not

culpable conduct, and the trial court's decision to reject the "shocks

the conscience" standard is consistent with this distinction. See

Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001) ("The Eighth

Amendment excessive-force standard provides too little protection to

a person whom the state is not allowed to punish."). For all of these

reasons, the trial court did not err by declining to give a "shocks

the conscience" instruction.

c. The "Deliberate Indifference" Standard

With minimal argument, the appellants assert in the

alternative that Lewis and our precedent in Hasenfus v. LaJeunesse at

least required an instruction that premised liability on a finding

that the appellants were deliberately indifferent in failing to

prevent the harm to Davis. In the proceedings below, they initially

asked for a "deliberate indifference" instruction (as well as for the

Gaudreault instructions that the trial court gave) in “Requested

Instruction Number 5” of their pre-charge motion. After the Supreme

Court decided Lewis, the appellants submitted a motion for a

“Supplemental Jury Instruction” subcaptioned “Revising Defendant's

[sic] Previous Request No. 5”. This motion requested a "shocks the

conscience" instruction based on Lewis. At the pre-charge conference,

the court said that it would instruct the jury on the “objectively

reasonable” standard. Appellants' counsel responded: “And not

- 22 -
deliberate indifference and not -- well, then, let my objection be

noted for the record.” However, after the court gave its Gaudreault

instruction, the appellants ignored the omission of a “deliberate

indifference” instruction and objected only on the ground that it did

not include the "shocks the conscience" standard.

Federal Rule of Civil Procedure 51 states: “No party may

assign as error the giving or the failure to give an instruction

unless that party objects thereto before the jury retires to consider

its verdict, stating distinctly the matter objected to and the grounds

of the objection.” Fed R. Civ. P. 51. We interpret this rule

strictly. When counsel fails to raise an objection again following

the actual charge, “[a]ccording to a long line of precedents in this

circuit, such an omission constitutes waiver of the objection pursuant

to Federal Rule of Civil Procedure 51.” Wells Real Estate, Inc. v.

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

(collecting cases), cert. denied, 488 U.S. 955 (1988). Our

explanation in Wells Real Estate of the plaintiff's waiver of an

interstate commerce instruction applies equally to the appellants'

waiver of a “deliberate indifference” instruction here, which occurred

in light of a post-charge conference recorded in twelve pages of trial

transcript:

In this case, the court gave counsel abundant
opportunity to object to the charge after it was
given. An extensive post-charge conference was
held with all counsel present. . . . Plaintiff's

- 23 -
 attorney did reiterate several of his prior
requests and exceptions, but with no mention of
interstate commerce. Given this ample
opportunity at the post-charge conference,
appellant cannot now be said to have avoided
waiver of its exception to the interstate
commerce charge.

Id. (internal quotation marks omitted).

We permit a plain error exception to failures to adhere to

Rule 51. However,

[t]he plain error standard, high in any event .
. . is near its zenith in the Rule 51 milieu.
At least five times over the years we have
quoted the following maxim with manifest
approval: If there is to be a plain error
exception to Rule 51 at all, it should be
confined to the exceptional case where the error
has seriously affected the fairness, integrity,
or public reputation of judicial proceedings.

Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991)

(citations and internal quotation marks omitted). In Wells Real

Estate, we noted that “to our knowledge,” we had never reversed a

civil case on the basis of plain error under Rule 51. 850 F.2d at

809. As far as we can determine, that is still true, and this case

does not change that record.

In Hasenfus, we analyzed allegations about a public

school's failure to take steps to prevent a student's attempted

suicide in terms of whether the school's inaction either shocked the

conscience or was deliberately indifferent. 175 F.3d at 72. We

discussed in passing the rights of involuntarily committed mental

- 24 -
patients and prisoners when their caretakers fail to act, stating

descriptively that liability "arises under section 1983 if the

plaintiff shows that the inaction was malicious or reflected the

official's 'deliberate indifference,' to the welfare of the prisoner

or inmate." Id. at 71 (citing Farmer v. Brennan, 511 U.S. 825, 837

(1994)).

Because the facts of Davis's case differ in important ways

from the scenario discussed in Hasenfus, the dicta in that case about

the "deliberate indifference" standard did not require the trial court

to apply that standard here. While a reasonable jury could have found

that the appellants had sufficient time to react to Bragg's use of

excessive force, the circumstances of the hallway restraint did not

allow them to think about what to do before Bragg's blows began. The

Supreme Court emphasized in Lewis that "[a]s the very term 'deliberate

indifference' implies, the standard is sensibly employed only when

actual deliberation is practical." Id. at 851. The circumstances of

this case make the "deliberate indifference" standard an awkward fit.

Accordingly, we find that the omission of that instruction was not

plain error.

d. The "Objectively Reasonable" Standard

At the pre-charge conference, the judge said that he

intended to charge an "objectively reasonable" standard for the

excessive force claim against Bragg and for the failure to intervene

- 25 -
claims against the appellants. At trial, he gave the "objectively

reasonable" instruction in setting forth the standard of liability for

the claims against Bragg, but he did not repeat that standard in

connection with the Gaudreault elements in the charge concerning the

claim against the appellants.

The appellants argue, therefore, that the judge

"essentially instructed the jury to ignore the 'objectively

reasonable' standard and in its place . . . substituted a four point

checklist." Since the judge told the jury to follow the instructions

given for the claims against Bragg to the claims against the

appellants only to the extent that the claims were the same, we agree

that the jury would not have understood that they were to apply the

explicit "objectively reasonable" standard given for the excessive

force claim against Bragg to the failure to intervene claim against

the appellants. However, the appellants did not object after the

charge to the judge's lack of repetition of the "objectively

reasonable" language. We thus again review the instruction for plain

error, reversing only in “the exceptional case where the error has

seriously affected the fairness, integrity, or public reputation of

judicial proceedings.” Toscano, 934 F.2d at 385 (citation and

internal quotation marks omitted).

The "objectively reasonable" standard comes from cases

concerning the use of excessive force during an arrest or traffic stop

- 26 -
under the Fourth Amendment's protection against unreasonable search

and seizure. See Graham, 490 U.S. at 388. The Eighth Circuit has

used the "objectively reasonable" standard for excessive force claims

brought by a pretrial detainee and an involuntarily committed mental

patient. See Johnson-El v. Schoemehl, 878 F.2d 1043, 1048-49 (8th

Cir.) cert. denied, 493 U.S. 824, 871 (1989) (applying objectively

reasonable standard to pretrial detainee's excessive force claim);

Andrews, 253 F.3d at 1061 (applying standard to involuntarily

committed patient's excessive force claim).12

An early failure to intervene case, Byrd v. Brishke, 466

F.2d 6, said that a state actor who is under an affirmative duty to

act "is responsible if his omission is unreasonable in light of the

circumstances." Id. at 10. O'Neill and Gaudreault, however, did not

use the "objectively reasonable" language for the failure to intervene

claims. See O'Neill, 839 F.2d at 11-12; Gaudreault, 923 F.2d at 207

n.3. Instead, they refined the Byrd standard for a failure to

intervene case by dividing it into four specific elements. The first

two elements of the Gaudreault standard are actor-specific, focusing

on whether the defendant was present at the scene and saw the use of

12
The Seventh Circuit has used the "objectively reasonable"
standard for a schoolchild's excessive force claim. See Wallace v.
Batavia Sch. Dist. 101, 68 F.3d 1010, 1015 (7th Cir. 1995). Other
circuits have rejected the “objectively reasonable” standard for
excessive force claims brought by pretrial detainees. See Fuentes v.
Wagner, 206 F.3d 335, 346 (3d Cir. 2000); Taylor v. McDuffie, 155 F.3d
479, 483 (4th Cir. 1998) (collecting cases).

- 27 -
force. The third and fourth elements ask the jury whether the

defendant could realistically have prevented the alleged use of

excessive force and whether there was sufficient time to do so. The

operative words of these elements, "realistically" and "sufficient,"

focus the jury's attention on the attendant circumstances, and whether

those circumstances, under any reasonable view, permitted

intervention. Given these objective components of the Gaudreault

instruction, the omission of the "objectively reasonable" language,

if error at all, was assuredly not plain error.

2. Sufficiency of the Evidence

The appellants argue that there was insufficient evidence

for a reasonable jury to have found that Davis's constitutional rights

were violated by their failure to intervene to prevent Bragg from

using excessive force. As we have said, the trial judge instructed

the jury under Gaudreault that each defendant could only be found

liable if he or she was present when excessive force was used;

observed the use of excessive force; was in a position where he or she

could realistically prevent that force; and had sufficient time to do

so. We must affirm the jury's findings on questions of fact "unless

the record is devoid of evidence upon which the jury might reasonably

base its conclusion." Coastal Fuels v. Caribbean Petroleum Corp., 79

F.3d 182, 196 (1st Cir. 1996) (internal quotation marks omitted).

a. Evidence that the Appellants Saw Bragg Punch

- 28 -
Davis

With the exception of Tassone, the appellants begin

by arguing that there was no evidence that any of them observed Bragg

use excessive force during the hallway restraint. However, there was

testimony that Fitzpatrick, Gillis, and Hanlon were each within three

feet of Davis's head, holding on to part of his upper body or arm,

when the punching and neck twisting occurred. Plesh testified that

he felt and heard the thudding of the punches through the floor, and

then looked up and saw what Bragg was doing. Tassone testified that

he heard Plesh call out and, in response, he looked up and saw Bragg

punch Davis. The jury could have reasonably inferred from Plesh and

Tassone's testimony and the proximity of Fitzpatrick, Gillis, and

Hanlon to Davis's head that the three of them must have observed

Bragg's actions.

Moreover, the jury's finding of no liability for Jeffrey

Flowers suggests that it carefully weighed the evidence about the

position and degree of awareness of each MHW. 13 When asked at trial

whether he saw Bragg punch Davis, Flowers answered: "My head was

tucked down when I was on this guy's leg, and I saw nothing. . . I can

tell you exactly why I didn't look at the head . . . Because this was

a big, strong man, and when I had him by the leg -- this guy was built

13The jury also found no liability for Frantz Joseph, who was not
present at the second restraint.

- 29 -
like a body-builder. I'm not that big of a man." None of the other

MHWs explained why their position on Davis's body and their struggle

to subdue him would have distracted them from seeing what Bragg was

doing. Moreover, they were closer to Davis's head than Flowers was.

Plesh also testified that Wiegers was standing next to him

a few feet from Davis's legs, and that he turned to her and asked "Did

you see that?" when the punches began. Wiegers herself said that she

was "in the vicinity" of the restraint, four or five feet away. Based

on her testimony and Plesh's, the jury could have reasonably inferred

that Wiegers also saw what was happening.

The facts vary with regard to Rennie. Several witnesses,

including Davis, testified that Davis kicked Rennie hard in the

stomach as the two came out of the quiet room, in the moment before

the hallway restraint. Rennie said of his reaction to the kick: "All

I remember really -- I just remember being kicked very hard in the

hallway, and I felt like I was out for the count. . . . I stayed there

on the floor for -- I don't know. It seemed like a long time." When

asked if he saw "a group of people" during the hallway restraint,

Rennie said: "I don't think I did, no. . . . I don't recall." Based

on this account, Rennie argues on appeal that he was incapacitated by

the kick and so cannot be held liable for failing to prevent Bragg's

use of excessive force during the hallway restraint.

Tassone and Davis, however, testified that Rennie was

- 30 -
present when Bragg punched Davis. When Davis's counsel asked Tassone

on direct examination if Rennie was holding Davis's right arm during

the hallway restraint, Tassone answered "yes." Later on direct

examination, Tassone expressed some uncertainty on this point,

concluding: "I thought Paul [Rennie] came back to continue holding on

the arm, but I can't say for sure." Davis testified that Rennie made

aggressive comments to him in the quiet room and initiated the first

restraint. He said that when he was hit by someone as he was brought

to the floor a second time in the hallway: "I assumed it was Paul."

The evidence that Rennie participated in the hallway

restraint, and so could have seen Bragg punch Davis, is thinner than

the evidence relating to the other appellants. However, based on

Tassone's and Davis's testimony, a reasonable jury could have found

that Rennie participated in the hallway restraint and so must have

seen Bragg's use of excessive force. While Tassone said that he could

not be sure that Rennie was holding Davis's arm, he did not retract

his testimony. Davis also said that he thought Rennie was involved.

The jury was thus faced with competing accounts of Rennie's

participation, and we cannot say that its choice to credit Tassone's

and Davis's accounts over Rennie's self-serving account was

unreasonable.

b. Evidence that the Appellants Had a Realistic

- 31 -
Opportunity and Sufficient Time to Intervene

The appellants next argue that there was not enough

evidence to support a finding that they had a realistic opportunity

and sufficient time to intervene because only seconds elapsed during

the punching, and not even Plesh was able to intervene in time to stop

it. The appellants are correct that courts have shown special concern

about imposing liability on state actors "forced to make split-second

judgments--in circumstances that are tense, uncertain, and rapidly

evolving." Graham, 490 U.S. at 397; see also Andrews, 253 F.3d at

1062 n.8 (distinguishing a case in which security staff must "act

quickly and effectively" to protect involuntarily committed mental

patients from those in which patients may be protected "through

before-the-fact measures"); O'Neill, 839 F.2d at 11-12 (three blows

struck in rapid succession by one police officer not of sufficient

duration to impose duty to intervene on another officer who stood by).

Here, however, the jury reasonably could have found that

the MHW appellants had the time and the opportunity to intervene. The

MHWs were all on the floor within about three feet of Davis's head.

Plesh, by contrast, was standing the length of Davis's body and three

feet away. The jury could have inferred that if Plesh had time and

opportunity to ask Wiegers about stopping the beating and then to

respond as an “extra” man at the scene when she failed to act, the

- 32 -
MHWs -- whose job it was to execute the restraint -- had time and

opportunity to take effective action. The fact that Plesh did not

move in time to stop the punching is irrelevant to whether the MHWs,

who were closer to Davis's head, could have intervened to prevent some

of the beating and neck twisting.

Wiegers was farther from Davis and Bragg than the MHWs

were. As a nurse who was directing rather than carrying out the

restraint, she did not have the same duty to physically intervene that

the MHWs had. However, Wiegers could have intervened simply by

calling to Bragg to stop. In Durham v. Nu'Man, 97 F.3d 862 (6th Cir.

1996), the Sixth Circuit found that a nurse who stood by while

hospital security officers beat an involuntarily committed mental

patient could be found liable because she failed to direct the

officers to stop their attack. Id. at 868. The court pointed out

that "[c]oming to [the patient's] aid would not have required [the

nurse] to become physically involved in the incident." Id. The same

is true here.

Wiegers attempts to distinguish Durham by stressing that

the beating in that case lasted ten minutes, whereas she had far less

time to intervene. However, since Plesh was able to climb over the

MHWs and push Bragg away during the time span from the punching to the

neck twisting, the jury could have found that there was enough time

for Wiegers to call out and order Bragg to stop and so avoid some of

- 33 -
the beating. In sum, there was sufficient evidence to support the

jury's finding that the appellants failed to intervene to protect

Davis.

B. The Unreasonable Bodily Restraint Claim

1. The General Verdict

The appellants also argue that the judge erred in

instructing the jury on the claim that the appellants violated Davis's

right to freedom from unreasonable bodily restraint, and that there

was insufficient evidence to support a finding of liability based on

this claim. Before turning to these arguments, there is a threshold

issue that we must address. The liability verdict slips used in this

case asked only one question of the jury about liability pursuant to

42 U.S.C. § 1983: "Do you find that Jason Davis has proved by a

preponderance of the evidence that [each defendant] deprived Jason

Davis of his constitutional rights on August 12, 1993?" The verdict

slips thus do not tell us whether the jury found the appellants

liable, and awarded damages, for their failure to intervene to protect

Davis from Bragg's use of excessive force, or for their violation of

Davis's right to freedom from unreasonable bodily restraint, or for

both.

Without arguing the point directly, the appellants assume

that they are entitled to a new trial if we find reversible error on

either theory submitted to the jury. The source of this arguable

- 34 -
right is Sunkist Growers v. Winckler & Smith Citrus Prods. Co., 370

U.S. 19, 29-30 (1962) and United New York & New Jersey Sandy Hook

Pilots Ass'n v. Halecki, 358 U.S. 613, 619 (1959). In these cases,

the Supreme Court reversed and remanded for a new trial when one of

multiple claims submitted to the jury was tainted by legal error,

saying that the generality of the verdict “prevents us from perceiving

upon which plea [the jury] found. If, therefore, upon any one issue

error was committed, either in the admission of evidence, or in the

charge of the court, the verdict cannot be upheld.” Sunkist, 370 U.S.

19, 30 (quoting Maryland v. Baldwin, 112 U.S. 490, 493 (1884)).

Citing Sunkist and Sandy Hook, some courts have

automatically reversed and remanded for a new trial when there is any

error in one of multiple claims on which the general verdict may rest.

See Elizabeth Cain Moore, General Verdicts in Multi-Claim Litigation,

21 Mem. St. U. L. Rev. 705, 711-12 & n.41 (1991) (collecting cases).

However, other courts have analyzed whether it was harmless error to

submit to the jury a theory encompassed in a general verdict form when

that theory was tainted by legal error.14 In Sunkist and Sandy Hook

14See, e.g., Braun v. Flynt, 726 F.2d 245, 251 (5th Cir. 1984)
(remanding for new trial because of “substantial likelihood” that
damages award was based at least in part on erroneous claim); Morrissey
v. Nat'l Maritime Union of Am., 544 F.2d 19, 27 (2d Cir. 1976) (“no
sufficient basis for confidence” that verdict would not have been
rendered without the erroneous claim); Collum v. Butler, 421 F.2d 1257,
1260 (7th Cir. 1970) (“the results of the present trial would not have
been substantially affected if these [erroneous] issues had not been
submitted to the jury”); see also Traver v. Meshriy, 627 F.2d 934, 938

- 35 -
Pilots, the Supreme Court explained its rationale for reversing when

one of multiple claims submitted was erroneous, saying “there is no

way to know that the invalid claim . . . was not the sole basis for

the verdict.” Sandy Hook Pilots, 358 U.S. at 619. The harmless error

approach addresses this concern by requiring reversal unless the

reviewing court concludes that it is “reasonably certain that the jury

was not significantly influenced by issues erroneously submitted to

it.” E.I. Du Pont De Nemours & Co. v. Berkeley & Co., 620 F.2d 1247,

1258 n.8 (8th Cir. 1980). As the Tenth Circuit has said, Sunkist

“does not paint with as broad a brush as appears from the language

quoted. As with all errors committed at trial, a litmus test for

reversal is whether the appellant was thereby unjustly prejudiced.”

Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499, 1504 (10th

Cir. 1984).

We have implied approval of this harmless error approach in

other cases, analyzing whether an error in one of multiple claims

submitted to the jury was harmless. See Fleet Nat'l Bank v. Anchor

Media Tel., Inc., 45 F.3d 546, 555 (1st Cir. 1995) (while the invalid

claim “was not the primary focus of [appellee’s] case,” counsel

mentioned it in opening and closing arguments and called a witness

(9th Cir. 1980) (when one of multiple theories of liability is unsound,
a “reviewing court has discretion to construe a general verdict as
attributable to another theory if it was supported by substantial
evidence and was submitted to the jury free from error”); Adkins v.
Ford Motor Co., 446 F.2d 1105, 1108 (6th Cir. 1971) (same).

- 36 -
specifically to testify to this aspect of the case); Kassel v. Gannett

Co., 875 F.2d 935, 950 (1st Cir. 1989) (“In this instance, we cannot

say the error was harmless. A substantial amount of plaintiff's proof

addressed the [erroneous claim]”); Brochu v. Ortho Pharm. Corp., 642

F.2d 652, 662 (1st Cir. 1981) (holding that “defendant was not harmed”

by submission of invalid fraud claim). We follow the harmless error

approach here in our analysis of the unreasonably bodily restraint

claim. First, we address the appellants' arguments that there was

error in the jury instructions on the unreasonable restraint claim and

insufficient evidence to support a finding that each of the appellants

was liable for unreasonably restraining Davis. Concluding that there

was no error in the jury instruction, but that the evidence was

insufficient to support an unreasonable restraint finding for any of

the appellants save Rennie, we ask whether we can be reasonably

certain that the jury's verdict did not rest on this erroneous basis.

We make one additional point before beginning this

analysis, prompted by the absence of any objection by the appellants

to the general verdict form or a request for interrogatories to

separately ask the jury about the failure to intervene and

unreasonable restraint claims. The Eighth Circuit has adopted the

following waiver rule: if the complaining party does not object to a

general verdict form or request interrogatories, a verdict that

encompasses multiple claims of liability may be affirmed as long as

- 37 -
there is substantial evidence to support one of the theories

presented, irrespective of any reversible errors in other claims

submitted to the jury. See Gen. Ind. Corp. v. Hartz Mountain Corp.,

810 F.2d 795, 801 (8th Cir. 1987) (because appellant did not challenge

the general verdict form's wording at trial or on appeal, "it is

sufficient for purposes of upholding the jury's damage award that .

. . we affirm the jury's verdict that Hartz violated § 2 of the

Sherman Act."); Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039,

1054 (8th Cir. 2000) (distinguishing instant case from Hartz on the

ground that the appellant specifically objected to the general verdict

form at trial). The Seventh and Tenth Circuits have applied the same

rule in some cases. See Eastern Trading Co. v. Refco, Inc., 229 F.3d

617, 622 (7th Cir. 2000) (where jury heard instruction on theory for

which there was no evidentiary support and opposing party did not

request interrogatory, party “has only itself to blame for its

inability to demonstrate that the jury was confused by the

instruction”); Kossman v. Northeast Ill. Reg. Commuter R.R. Corp., 211

F.3d 1031, 1037 (7th Cir. 2000) (“Because the defendant never

requested any special form of verdict, the jury only returned a

general verdict for Kossman. And when a jury only returns a general

verdict, we need only find support in the record for one of the

theories presented to the jury in order to affirm the jury award.”);

Union Pac. R.R. Co. v. Lumbert, 401 F.2d 699, 701 (10th Cir. 1968)

- 38 -
(“In the absence of a pertinent objection to the charge or a request

for a specific interrogatory a general verdict is upheld where there

is substantial evidence supporting any ground of recovery in favor of

an appellee.) (internal quotation marks omitted); see also Anixter v.

Home-State Prod. Co., 77 F.3d 1215, 1231 (10th Cir. 1996) (stating

without applying Lumbert rule).

By contrast, we have on at least one occasion applied the

multiple-claims reversal rule attributed to Sunkist without requiring

an objection to the general verdict form. See Lattimore v. Polaroid

Corp., 99 F.3d 456, 468 (1996) (reversing because one of four claims

presented to the jury was time-barred and two others were supported

by insufficient evidence). However, in Kassel and in Levinsky's, Inc.

v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997), we noted in

reversing that the appellant at trial either requested a special

verdict form or objected when multiple claims were submitted to the

jury, which returned only a general verdict. 875 F.2d at 950 and 127

F.3d at 134; see also Lattimore, 99 F.3d at 469 (Selya, J.,

concurring) (emphasizing “for the benefit of the trial bench and bar

in days to come” that a request for a separate verdict on each claim

submitted would have averted the need for a new trial). Although we

do not adopt or apply a waiver rule in this case, opting instead for

the continued application of the harmless error approach, we emphasize

that Lattimore neither discusses nor rules on the possibility of

- 39 -
waiver based on failure to object to the general form of the verdict,

and so does not preclude a future panel of this court from

establishing such a waiver rule if persuaded by its merits.

2. The Jury Instructions

In his complaint, Davis charged that the appellants could

be found liable for violating his right to freedom from unreasonable

bodily restraint based on any of their actions in connection with the

two restraints. In response, the appellants argued that they could

not be held liable simply for carrying out the restraints, and that

the judge should charge the jury that it could not find them liable

for using excessive force to restrain Davis unless their conduct

“shocks the conscience.” The judge agreed with the first point but

not with the second, instructing the jury as follows:

Mr. Davis charges that the two so-called “take-
downs” of him on August 12, 1993 VIOLATED HIS
CONSTITUTIONAL RIGHT TO BE FREE FROM
UNREASONABLE BODILY RESTRAINT. In determining
whether there was any such unreasonable
restraint, you should consider all the
circumstances existing at the time and decide as
to each defendant separately whether in light of
those circumstances it was appropriate for that
defendant to use the force that was used.

After a post-charge conference, in which both sides sought

clarification of this charge and the appellants objected to the lack

of a “shocks the conscience” instruction, the judge told the jury:

The Group Two Defendants [i.e., the appellants]
are accused of having used excessive force in

- 40 -
 connection with the two take-downs. I want you
to understand that they cannot be – none of them
can be held liable simply for taking Mr. Davis
into . . . the quiet room, or simply for . . .
putting him into a four-point restraint alone.
They can be – in order to find them liable in
connection with the put-downs or the four-point
restraint, you must find that excessive force
was used.

The appellants renew their argument that the judge erred by

omitting a “shocks the conscience” instruction. This argument has

slightly more force here than in the context of the failure to

intervene claim. When Davis kicked in the air in the quiet room or

kicked Rennie as he entered the hallway, the appellants were faced

with a physical outburst requiring an immediate response. However,

without minimizing the difficulties posed by Davis's conduct, Davis's

kicks were far removed from the high-speed chase or prison riot

central to the “shocks the conscience” analysis in Lewis, both of

which involve extreme conduct posing significant threat to the safety

of innocent bystanders as well as to the safety of the officer or

guard. Sadly, it is not unusual for a seriously ill mental patient

to act out physically in the controlled and confined setting of a

hospital. Davis's kicks fall within the norm of what mental health

workers are expected to handle, and were less threatening than the

circumstances described in Lewis. We agree, therefore, with the

Eighth Circuit that the usual standard for an excessive force claim

brought by an involuntarily committed mental patient is whether the

- 41 -
force used was “objectively reasonable” under all the circumstances.

See Andrews, 253 F.3d at 1061. The circumstances of the hallway and

quiet room restraints do not persuade us to impose a higher standard.

Alternately, the appellants attack the trial court's use of

the word “appropriate” in its instructions, saying that it allowed the

jury to find liability if the force used was “subjectively

inappropriate.” We do not agree that the word “appropriate” connotes

subjectivity. Instead, we think that “appropriate under all the

circumstances” approximates “objectively reasonable under all the

circumstances.” When an appellant asks us to “scrutinize a trial

judge's choice of words, the central inquiry reduces to whether,

taking the charge as a whole, the instructions adequately illuminate

the law applicable to the controlling issues in the case without

unduly complicating matters or misleading the jury." Elliott v. S.D.

Warren Co., 134 F.3d 1, 6 (1st Cir. 1998) (internal quotation marks

omitted). Although we think the more familiar “objectively reasonable

under the circumstances” would have been the better word choice, the

judge's instruction passes that test. See Interstate Litho Corp. v.

Brown, 255 F.3d 19, 29 (1st Cir. 2001) (“[T]he wording of instructions

is within the trial judge's discretion.”). Accordingly, we find no

error in the judge's instructions on the unreasonable bodily restraint

claim.

- 42 -
 3. Sufficiency of the Evidence

a. Fitzpatrick, Gillis, Hanlon, Tassone, and Wiegers

Here, with the exception of Rennie, the appellants'15 attack

on the jury findings hits the mark. Our close review of the record

reveals no significantly probative evidence that any of them used

excessive force to unreasonably restrain Davis. Fitzpatrick, Gillis,

Hanlon, Tassone and Wiegers were not present during the first

restraint in the quiet room. Hanlon was present, but Davis did not

testify that he participated in the restraint performed by Rennie.

During the second restraint in the hallway, Fitpatrick, Gillis,

Hanlon, and Tassone held Davis down while Bragg punched him, but did

not participate in the blows. Wiegers was standing a few feet away.

Davis did not testify that any of these appellants themselves used

force on him. Officer Plesh testified that until Bragg began to punch

Davis, the MHWs' actions in performing the second restraint were

appropriate and professional. Accordingly, there is insufficient

evidence to support a finding that the appellants used excessive force

to unreasonably restrain Davis.

As a result, we must address whether the submission of the

claim of unreasonable restraint through the use of excessive force to

the jury for these appellants was harmless error under the standards

15 In this section, “appellants” does not include Rennie.

- 43 -
we set in Fleet and Kassel.16 Davis's case against the appellants

focused on their failure to intervene to prevent Bragg's use of

excessive force rather than on their own use of excessive force.

Indeed, no witness, not even Davis, testified that the appellants used

excessive force to unreasonably restrain the patient. Moreover, when

Davis's counsel used the words “they beat him” in closing argument to

describe the appellants' conduct, their counsel objected, prompting

Davis's counsel to make the argument that was suggested by the

evidence: “Ladies and gentlemen, when seven or eight people pin one

guy to the ground and the other guy beats the person, then they're all

part of it because they all had an opportunity to intercede . . . They

saw that beating going down . . . Pinning him down so Phillip Bragg

could do it. Everybody looked the other way.”17

16 In doing so, we clarify one point. If there was evidence that
the appellants had planned with Bragg to hold Davis down so that Bragg
could beat him, Bragg's use of excessive force would obviously be
attributable to the appellants. Although Davis may have contemplated
such a theory, that theory of the case did not go to the jury. At the
close of evidence, the judge dismissed Davis's claim that the
defendants conspired to interfere with his civil rights in violation of
42 U.S.C. § 1985. The judge said: “As I see the facts, there's no
evidence whatsoever of an express agreement . . . and I see no basis
for implying an agreement on the part of what I call the fellow worker
defendants.” The judge also dismissed the § 1985 claim on legal
grounds, citing Aulson v. Blanchard, 83 F.3d 1 (1st Cir. 1996).
17
The judge overruled the appellants' objection. The colloquy was
as follows:

APPELLANTS' COUNSEL: Your Honor, I have to object
to 'they beat him.' I mean, that's just way
beyond the scope of any evidence here, your

- 44 -
 It is not surprising that Davis presented no proof that

these five appellants used excessive force, because that was not his

theory of the unreasonable restraint claim. At the post-charge

conference, Davis's counsel said to the judge: “Your Honor, I just

think, to clarify, if I could . . . in terms of the placement in the

four-point restraint, . . . I don't believe that you would have to

show that there was excessive force relative to that placement.” The

judge disagreed with Davis on this point when he charged the jury that

it could only find the appellants liable for unreasonably restraining

Davis through their own use of excessive force.

By contrast, as we have explained, there was substantial

evidence that the appellants failed to intervene when the punching

occurred. Thus the jury heard two legally adequate instructions

relating to the claims against the appellants, one of which was

supported by the evidence and one of which was not. In such a

circumstance, “[i]t cannot just be assumed that the jury must have

been confused and therefore that the verdict is tainted, unreliable.”

Eastern Trading Co. v. Refco, Inc., 229 F.3d 617, 622 (7th Cir. 2000);

see also Burhmaster v. Overnite Transp. Co., 61 F.3d 461, 463-64 (6th

Cir. 1995) (when a jury instruction accurately states the law but is

Honor. This is really way crossing the line.

THE COURT: It is [a] question for the jury to
decide. But they may feel there's exaggeration
here; and if that's disturbance, I don't know.

- 45 -
not supported by the facts, “[t]he jury will conclude for itself that

there is insufficient evidence to support an application of the

instruction, and thus reject it as mere surplusage.”) (internal

quotation marks omitted).

Here, a clarifying instruction that the judge gave the jury

during mid-deliberation further assuages any concern that the jury may

have found the appellants liable for an unreasonable restraint theory

unsupported by the evidence. In response to the jury's request for

clarification on the first verdict question, which asked whether each

appellant deprived Davis of his constitutional rights, the judge

responded by repeating only the failure to intervene instructions,

saying:

The first charge with regard to The Group Two
Defendants [i.e., the appellants] is what I
described as failing to intervene to protect
him, that is, Mr. Davis, from Mr. Bragg’s
assault. . . . So, the way for you to proceed is
to answer – is to look at this sheet and see
whether you find that any defendant, for
example, is liable for failing to intervene.
Given the lack of proof or argument at trial relating to

the claim that the appellants unreasonably restrained Davis by using

excessive force, and the judge's clarifying instruction, we may be

“reasonably certain that the jury was not significantly influenced by

issues erroneously submitted to it.” E.I. Du Pont, 620 F.2d at 1258

n.8. Accordingly, we find that the erroneous submission to the jury

of the claim of unreasonable restraint through the use of excessive

- 46 -
force was harmless.

b. Rennie

In contrast to the case against the other appellants, Davis

presented substantial evidence that Rennie used excessive force during

the physical restraint in the quiet room. As we have said, Davis

testified that he started doing karate kicks into the air in response

to Rennie's and Bragg's taunts, and that Rennie then choked him and

threw him to the mat. Davis said: “That was an assault . . . What

Paul Rennie had done, grabbing someone by the neck and throwing them

down is not a restraint.” Plesh corroborated much of Davis's account

of the events leading up to the restraint, though he did not witness

the take-down itself.

Although the prison setting obviously differs from the

mental hospital setting, the factors identified by the Supreme Court

in Hudson v. McMillian, 503 U.S. 1 (1992), a case involving an Eighth

Amendment excessive force claim brought by a prisoner, are useful in

evaluating whether this evidence was sufficient to support a jury

finding that Rennie used excessive force to unreasonably restrain

Davis. The Court said that it may “be proper to evaluate the need for

application of force, the relationship between that need and the

amount of force used, the threat reasonably perceived by the

responsible officials, and any efforts made to temper the severity of

a forceful response.” Id. at 7 (internal quotation marks omitted).

- 47 -
We applied a similar test to a Fourth Amendment excessive force claim

brought by an arrestee. See United States v. McQueeney, 674 F.2d 109,

113 (1st Cir. 1982) (“a police officer may use only such force as is

reasonably necessary to effect an arrest or to defend himself or

others from bodily harm”).

When Rennie took Davis to the mattress, the patient was by

himself in an empty room. It is difficult to see how Rennie could

have reasonably perceived a threat to himself or the other MHWs

standing by, all of whom could have moved out of the way or closed the

door when Davis began karate kicking. Yet Rennie did not try to avert

the need for force by taking such measures. Viewed in the light most

favorable to the verdict, the evidence showed that Rennie provoked

Davis by taunting him, and then, after the patient reacted, choked him

and threw him to the mat.

Citing Dean v. City of Worcester, 924 F.2d 364 (1st Cir.

1991), Rennie argues that Davis cannot prove an unreasonable restraint

claim based on the use of excessive force in the quiet room take-down

because he suffered no injuries from it. In Dean, we found an

arrestee's minor physical injuries insufficient to support a finding

that the arresting officer used excessive force. Id. at 368 (citing

Graham, 490 U.S. at 397). Our conclusion in Dean does not imply that

a mental patient must sustain physical injuries to prevail on a claim

that he was the victim of unreasonable restraint through the use of

- 48 -
excessive force. Davis's treating psychiatrist testified, and the

jury must have found, that Davis suffered PTSD as a result of the

restraints at issue in this case. It would be artificial, if not

impossible, to attempt to separate out the psychological harm suffered

as a result of one restraint as opposed to the other. The jury thus

could have attributed some of Davis's mental injury to Rennie's use

of excessive force to unreasonably restrain Davis during the quiet

room restraint.

We recognize the difficulties faced by staff who must deal

with possibly violent mental patients. In this context, as in an

arrest, “not every push or shove, even if it may later seem

unnecessary in the peace of a judge's chambers, . . . amounts to a”

fourteenth amendment violation. Dean, 924 F.2d at 368 (citation and

internal quotation marks omitted). On the other hand, the state's duty

to protect those it confines because of mental illness requires that

force be used as sparingly as possible. In light of the circumstances

here, particularly Rennie's role in provoking Davis, we cannot say

that the jury erred in finding that the level of force Rennie used was

unreasonable. Accordingly, we affirm the verdict against Rennie

pursuant to § 1983.

C. The Massachusetts Civil Rights Act Claim

The jury found that the appellants violated Davis's

Massachusetts civil rights as well as his Fourteenth Amendment rights.

- 49 -
To prevail under the Massachusetts Civil Rights Act (MCRA), Mass. Gen.

Laws ch. 12, § 11(I), plaintiffs must prove that "(1) their exercise

or enjoyment of rights secured by the Constitution or laws of either

the United States or of the Commonwealth, (2) have been interfered

with, or attempted to be interfered with, and (3) that the

interference or attempted interference was by 'threats, intimidation,

or coercion.'" Swanset Dev. Corp. v. City of Taunton, 668 N.E.2d 333,

337 (Mass. 1996) (internal quotation marks omitted).

Since we have already affirmed the jury's findings of a

constitutional violation, only the third prong of the state law test

is at issue. The Massachusetts Supreme Judicial Court has defined the

key terms in MCRA as follows:

'Threat' in this context involves the
intentional exertion of pressure to make another
fearful or apprehensive of injury or harm. . .
. 'Intimidation' involves putting in fear for
the purpose of compelling or deterring conduct.
. . . coercion . . . [is] 'the application to
another of such force, either physical or moral
as to constrain him to do against his will
something he would not otherwise have done.'

Planned Parenthood League of Mass., Inc. v. Blake, 631 N.E.2d 985, 990

(Mass. 1994) (quoting Webster's New Int'l Dictionary 519 (2d ed.

1959)). The SJC has affirmed findings of MCRA violations in a variety

of contexts. See Redgrave v. Boston Symphony Orchestra, 502 N.E.2d

1375 (Mass. 1987) (threats, intimidation and coercion found where

third party's threat of disruption motivated defendant to cancel

- 50 -
performance contract); Batchelder v. Allied Stores Corp., 473 N.E.2d

1128 (Mass. 1985)(intimidation or coercion found for implied threat

of arrest or removal by security guard); Bell v. Mazza, 474 N.E.2d

1111 (Mass. 1985) (threats, intimidation, or coercion found where

homeowners threatened to keep plaintiffs from constructing a tennis

court).

The appellants argue that there is insufficient evidence to

support a finding that they intimidated or coerced Davis in connection

with the failure to intervene claim because that claim involved an

omission rather than an act. This characterization of the conduct of

the MHW appellants is unconvincing. Fitzpatrick, Gillis, Hanlon,

Rennie, and Tassone helped to restrain Davis while he was being beaten

by Bragg rather than intervening to help him.18 The SJC has said that

the Act "imposes no express or implied requirement that [the] actor

specifically intend to deprive a person of a secured right."

Redgrave, 502 N.E.2d at 1378 (emphasis added). Instead, a defendant

may be held liable for interfering with a plaintiff's rights "by

threats, intimidation or coercion" if the defendant acquiesced to

pressure from a third-party who intended a rights violation. Id.

18 We recognize that absent Bragg's punching, the appellants
participation in the restraint would not have violated Davis's rights
under MCRA. See Longval v. Comm'r of Correction, 535 N.E.2d 588, 593
(Mass. 1989) ("no coercion, within the meaning of the State Civil
Rights Act, simply from the use of force by prison officials"). That,
of course, is not the case before us.

- 51 -
(emphasis added). Here, the MHWs' acts of continuing to hold Davis

down was a form of acquiescence to Bragg, who clearly intended to

violate Davis's rights. Thus in MCRA's terms, the “interfer[ence]

with“ Davis's enjoyment of his Fourteenth Amendment rights was Bragg's

beating, and the “coercion” was the appellants' physical restraint of

Davis while the beating took place. Given these facts, a jury could

reasonably have found that the appellants' acts constituted coercion

within the meaning of MCRA. As for the unreasonable restraint claim

against Rennie, the jury could have found that his use of excessive

force to unreasonably restrain Davis during the take-down in the quiet

room was itself intimidating and coercive.

Different facts support the jury's finding that Wiegers

violated Davis's rights "by threats, intimidation, or coercion."

According to Plesh, Wiegers got down next to Davis after the hallway

restraint and said: "This is what you get when you act -- this is what

you get when you act like this." Wiegers argues that since Plesh

testified that she made this statement after the restraint concluded,

it could not constitute a threat made in connection with her failure

to intervene to prevent the use of excessive force. We reject this

attempt to limit the relevant time frame. Because Wiegers spoke to

Davis immediately after the beating, her words implied that Davis

would be subject to more of the same treatment if he did not

cooperate. The jury could have found that Wiegers's comment was a

- 52 -
threat made in connection with her failure to intervene on her

patient's behalf. Accordingly, we affirm the findings of liability

against the appellants under the Massachusetts Civil Rights Act.

D. Qualified Immunity

In their answers to Davis's complaint and their motions for

judgment as a matter of law, the appellants, with the exception of

Wiegers,19 argued that they were entitled to qualified immunity.

Following trial, the district court rejected the appellants' qualified

immunity defense.

On appeal, Wiegers argues that she is entitled to qualified

immunity because no court has held "that a nurse who observed the use

of excessive force on an involuntary patient in the presence of a

police officer had a duty to intervene." Fitzpatrick, Gillis, Hanlon,

Rennie, and Tassone argue that they are shielded because no court has

imposed a constitutional duty on mental health workers "to intervene

to prevent a criminal assault by a co-worker upon a patient." Rennie

also argues that “no objectively reasonable MHW confronted with the

same circumstances as Rennie would know that the force he used to

restrain Davis in the Quiet Room would somehow violate a clearly

established constitutional right.” The district court found that

19 The district court excused Wiegers's failure to plead a
qualified immunity defense "in light of the Court's repeated
declarations to all counsel that qualified immunity would be addressed
on Rule 50(b) motions." Without deciding the question, we assume that
Wiegers may assert the defense on appeal.

- 53 -
because Gaudreault had been decided in 1990 and Youngberg v. Romeo had

been decided in 1982, the law governing the appellants' duties to

Davis was "clearly established" when the restraints took place.

A district court's denial of qualified immunity is a legal

question that we review de novo. See Iacobucci v. Boulter, 193 F.3d

14, 22 (1st Cir. 1999). When a court grants or denies qualified

immunity before trial, we "align[] the evidence most favorably to the

non-movant and draw[] all reasonable inferences in his favor." Id.

When we review a post-trial qualified immunity ruling, evidence

pertaining to factual findings "must be construed in the light most

hospitable to the party that prevailed at trial." Id. at 23.

Qualified immunity protects state actors "from liability

for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). In discussing the "level of generality at which the relevant

'legal rule' is to be identified," the Supreme Court has said:

[T]he right the official is alleged to have
violated must have been 'clearly established' in
a more particularized, and hence more relevant,
sense: The contours of the right must be
sufficiently clear that a reasonable official
would understand that what he is doing violates
the right. This is not to say that an official
action is protected by qualified immunity unless
the very action in question has previously been
held unlawful . . . but it is to say that in the
light of pre-existing law the unlawfulness must
be apparent.

- 54 -
Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). Thus "[t]he

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted."

Saucier v. Katz, __ U.S. __, 121 S. Ct. 2151, 2156 (2001).

There is no doubt that Gaudreault and O'Neill clearly

established that a police officer has a duty to act when he sees

another officer using excessive force against an arrestee or pretrial

detainee if the officer could realistically prevent that force and had

sufficient time to do so. See also Bruner v. Dunaway, 684 F.2d 422,

426 (6th Cir. 1982) (per curiam) (“a law enforcement officer can be

liable under § 1983 when by his inaction he fails to perform a

statutorily imposed duty to enforce the laws equally and fairly . .

. Acts of omission are actionable in this context to the same extent

as are acts of commission”); Putnam v. Gerloff, 639 F.2d 415 (8th Cir.

1981) (subordinate officer may be liable for failing to intervene to

prevent superior officer's use of excessive force). The question is

whether it would be clear to a reasonable supervising nurse or mental

health worker who saw another MHW use excessive force against a

patient that he or she had a legal duty to intervene.

A police officer has a duty to intervene in cases in which

a fellow officer uses excessive force because his office carries with

it an affirmative duty to act. See Byrd, 466 F.2d at 11 (“We believe

- 55 -
it is clear that one who is given the badge of authority of a police

officer may not ignore the duty imposed by his office and fail to stop

other officers who summarily punish a third person in his presence.”).

For the same reason, at least one court has held that a prison guard

must intervene when another guard uses excessive force against a

prisoner. See McHenry v. Chadwick, 896 F.2d 184, 189 (6th Cir. 1990).

The cases involving police and prison guards clearly

established at least the same duty for mental hospital staff at a

state institution. See Durham, 97 F.3d at 868 (rejecting qualified

immunity defense for hospital security officers and nurse because "the

precedent holding police officers and correctional officers liable for

failure to intervene was sufficient to place [them] on notice"). When

an individual "is unable by reason of the deprivation of his liberty

to care for himself, it is only just that the State be required to

care for him." DeShaney, 489 U.S. at 199 (internal quotation marks

omitted). As the Supreme Court has said: "[A] general constitutional

rule already identified in the decisional law may apply with obvious

clarity to the specific conduct in question, even though the very

action in question has not previously been held unlawful." United

States v. Lanier, 520 U.S. 259, 271 (1997) (internal quotation marks

omitted).

As staff members at a state mental hospital, Nurse Wiegers

- 56 -
and the MHWs had a duty to care for Davis, an involuntarily committed

patient, comparable to that of the duty of the police officers to the

pretrial detainee in Gaudreault. Bragg was Nurse Wiegers's supervisee

when he assaulted Davis, and he was acting under color of state law.

Nurse Wiegers's argument that she had no duty to intervene because

Plesh, a security officer, was also present draws too fine a

distinction between the facts here and existing case law. See Lanier,

520 U.S. at 271. As we have said, Nurse Wiegers could have tried to

stop Bragg by calling out rather than physically intervening. As

Bragg's supervisor, she had the responsibility to do so, and it is

reasonable to expect her to have known that.

Fitzpatrick, Gillis, Hanlon, Rennie, and Tassone also

reasonably may be expected to have known that the principles governing

failure to intervene claims laid out in Gaudreault applied in these

circumstances to them as Bragg's co-workers.20 Indeed, a finding that

any of the appellants were shielded by qualified immunity where a

police officer or prison guard would not have been would place Davis

20 We also reject the MHW appellants' attempt to rely on our
statement in Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691
(1st Cir. 1994), that "the Supreme Court intends to surround the police
who make these on-the-spot choices in dangerous situations with a
fairly wide zone of protection in close cases." Id. at 695. Davis's
behavior in this case is easily distinguishable from that of Roy, who
resisted arrest by advancing on police officers with knives while
drunk. See id. at 694. The qualified immunity to which the officers
in Roy were entitled because of the danger they confronted does not
apply here.

- 57 -
at a disadvantage vis a vis pretrial detainees and prisoners in

asserting his constitutional rights as a mental patient. As we have

discussed, such a result is at odds with the Supreme Court's statement

that involuntarily committed patients are entitled to greater

protection than those "whose conditions of confinement are designed

to punish." Youngberg, 457 U.S. at 321-22.

We evaluate Rennie's qualified immunity defense for his use

of force in the quiet room take-down in light of Youngberg and

McQueeney. Youngberg established that the right to liberty from

bodily restraint “survive[s] involuntary commitment.” 457 U.S. at

316. In McQueeney, we held that “a police officer may use only such

force as is reasonably necessary to effect an arrest or to defend

himself or others from bodily harm.” 674 F.2d at 113. In light of

this conclusion and Youngberg's statement that involuntarily committed

mental patients merit at least the same protection as prisoners and

arrestees, we reject Rennie's defense of qualified immunity.

E. Punitive Damages

As we have noted, the jury awarded punitive damages of

$500,000 each against Bragg and Wiegers, $250,000 against Rennie, and

$100,000 each against Fitzpatrick, Gillis, and Hanlon. With the

exception of Bragg, who did not contest the damages award, the trial

judge remitted these awards by half. On appeal, the appellants

challenge the punitive damages awards on the ground that there is no

- 58 -
evidence in the record to suggest that any of the appellants "harbored

any ill will towards Davis," the standard used by the court in its

jury instructions.

There was sufficient evidence to support the jury's finding

that the appellants acted with "evil motive" toward Davis. Smith v.

Wade, 461 U.S. 30, 56 (1983); Iacobucci, 193 F.3d at 26. First, the

jury could have found that Rennie taunted Davis in the quiet room to

provoke him, and then used excessive force to unreasonably restrain

Davis in the quiet room in response to the behavior he provoked.

These facts justify the jury's decision to award greater damages

against him than against the other MHWs. The jury also could have

found that Fitzpatrick, Gillis, Hanlon, and Rennie held Davis to the

ground knowing that Bragg was punching him, and that Wiegers stood a

few feet away, saw the punching, and did nothing to protect her

patient, even after Plesh turned to her as the supervising nurse and

said "Did you see that?" In addition, the jury could have found that

Wiegers told Davis in the moments after the incident: "This is what

you get."

Furthermore, a punitive damages award may be "justified not

only by defendants' actions on [the date in question] but also by

their subsequent behavior." Hall v. Ochs, 817 F.2d 920, 927 (1st Cir.

1987). Here the jury could have found that Wiegers tried to cover up

the assault by writing "Unknown when or how injury sustained" and

- 59 -
"Unknown to writer precipitants to occurrence" in her report of the

incident. Similarly, the jury could have found that Fitpatrick and

Gillis were trying to cover up their own wrongdoing when they filed

a groundless complaint against Plesh for allegedly twisting Davis's

handcuffs. Finally, the jury could have found that Wiegers,

Fitzpatrick, Gillis, Hanlon, and Rennie lied when they testified that

they did not see Bragg punch Davis, unlike Tassone, who admitted that

he saw the punching take place and was spared by the jury from an

award of punitive damages. Comparing the testimony of these

appellants with the testimony of Davis, Plesh, and Tassone, "a

factfinder might infer that the stark clash could not have resulted

from innocent misrecollection and that its intentional quality

intensified any need the jury may have found for punishment and

deterrence." Id. at 928.

Relying on Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535

(1999), the appellants also argue that the evidence does not support

a finding that they "acted with any conscious perceived risk that they

would violate Mr. Davis's constitutional rights." In Kolstad, the

Supreme Court held that "[t]he special showing needed to trigger

eligibility for punitive damages . . . 'evil motive' or 'reckless or

callous indifference' . . . pertains to the defendant's 'knowledge

that [he] may be acting in violation of federal law, not [his]

awareness that [he] is engaging in discrimination.'" Iacobucci, 193

- 59 -
F.3d at 26 (internal citation omitted) (quoting Kolstad, 527 U.S. at

535). Not surprisingly, since Kolstad was decided after the trial in

this case, the trial judge did not give an instruction tying the evil

motive or indifferent state of mind finding to a violation of Davis's

civil rights, and the appellants did not object to the omission. We

review for plain error and find that this is not “the exceptional case

where the error has seriously affected the fairness, integrity, or

public reputation of judicial proceedings.” Toscano, 934 F.2d at 385

(citation and internal quotation marks omitted). We note that our

conclusion “is consistent with post-Kolstad opinions from other

courts, none of which have required a new trial under its standards

after a jury considered the issue pre-Kolstad.” Rubinstein v. Admins.

of the Tulane Educ. Fund, 218 F.3d 392, 406 n.7 (5th Cir. 2000)

(collecting cases) (internal quotation marks omitted).

Pursuant to other recent authority from the Supreme Court,

we review de novo whether the proportionality between punitive damages

and compensatory damages is constitutional. Cooper Indus., Inc., v.

Leatherman Tool Group, Inc., __ U.S. __, 121 S. Ct. 1678, 1685-86

(2001). In assessing the reasonableness of a punitive damages award,

we consider "(1) the degree of reprehensibility of a defendant's

conduct; (2) the ratio between punitive and actual and potential

damages; and (3) a comparison of the punitive damages figure and other

civil and criminal penalties imposed for comparable conduct." Romano

- 59 -
v. U-Haul Int'l, 233 F.3d 655, 672-73 (1st Cir. 2000) (citing BMW of

North Am., Inc. v. Gore, 517 U.S. 559, 574 (1996)); see also Zimmerman

v. Direct Fed. Credit Union, __ F.3d __, __ (1st Cir. 2001) [No. 01-

1007, slip op. at 23].

Here, each of the BMW criteria is easily satisfied. First,

the "level of reprehensibility of appellants' alleged misconduct is

'perhaps the most important indicium.'" Romano, 233 F.3d at 673

(quoting BMW, 517 U.S. at 575). For the reasons we have discussed, the

misconduct of each of the appellants was reprehensible enough to

justify the award against him or her.

Second, the punitive damages award was reasonable in

comparison to the compensatory damages award. After remittitur,

Fitpatrick, Gillis, and Hanlon will pay $50,000 each in punitive

damages, Rennie will pay $125,000, and Wiegers will pay $250,000,

compared to $100,000 in compensatory damages. Even if we include the

$500,000 award against Bragg and consider the total punitive damages

award of $1.025 million in the aggregate, the ratio between Davis's

punitive and compensatory damages is about 10 to 1. In Romano, we

upheld a 19 to 1 ratio between punitive and compensatory damages,

noting that the Supreme Court has "dismissed any simple, mathematical

formula in favor of general inquiry into reasonableness." 233 F.3d

at 673. Here, the evidence supports a finding of significant actual

and potential harm. According to Dr. Zeidman, the psychological harm

- 59 -
Davis has suffered from the incident has seriously affected his

quality of life, causing a range of PTSD symptoms, demonstrating the

reasonable relationship between the injury and the amount of the

award.

Finally, we consider the third BMW factor requiring us to

assess the punitive damages award “in light of the complex of

statutory schemes developed to respond to the same sort of underlying

conduct.” Zimmerman, slip op. at 26. In making this assessment, the

correct comparison is to other statutes and regulations proscribing

the same conduct and then to decided cases. Id. at 27. “Moreover,

a reviewing court should search for comparisons solely to determine

whether a particular defendant was given fair notice as to its

potential liability for particular misconduct, not to determine an

acceptable range into which an award might fall.” Id. Since § 1983

does not address damage amounts, we consider whether the awards we

have allowed to stand in other § 1983 cases give fair notice of the

award here, and find that they do. See Nydam v. Lennerton, 948 F.2d

808, 811 (1st Cir. 1991) (affirming two awards of $100,000 each in

punitive damages for excessive force claim); Gutierrez-Rodriguez v.

Soto, 882 F.2d 553, 580-81 (1st Cir. 1989) (affirming total award of

$600,000 in punitive damages for police shooting); Hall, 817 F.2d at

927 (affirming total award of $200,000 in punitive damages for

battery, false arrest, and imprisonment claims).

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 III.

For the foregoing reasons, we affirm the judgment against

all of the appellants.

Affirmed.

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