DiRico v. City of Quincy

United States Court of Appeals
For the First Circuit

No. 04-1064

PAUL DIRICO,

Plaintiff, Appellant,

v.

CITY OF QUINCY and JAMES MCNEIL,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Scott A. Lathrop, with whom Scott A. Lathrop & Associates was
on brief, for appellant.
Richard C. Bardi for defendant-appellee McNeil.
Monica E. Conyngham, with whom Joseph A. MacRitchie was on
brief, for defendant-appellee City of Quincy.

April 5, 2005
 STAHL, Senior Circuit Judge. In 1999, Paul DiRico

("DiRico") was arrested by James McNeil ("McNeil"), a police

officer and employee of the City of Quincy (the "City"). DiRico

was injured during the arrest and maintains that his injuries were

the result of the use of excessive force on the part of McNeil. In

2000, DiRico sued McNeil and the City in the United States District

Court for the District of Massachusetts, asserting various claims

arising out of the arrest. At trial, the district court granted

McNeil's motion to exclude all evidence pertaining to an arrest

that had occurred several weeks prior to the one in question.

(McNeil had been accused of using excessive force in connection

with that prior arrest.) In addition, the district court allowed

the City's motion for judgment as a matter of law. The jury then

returned a verdict for McNeil. DiRico now seeks review of the

district court's decision to allow the two motions. We affirm.

I. Background

Early in the morning of May 12, 1999, DiRico was driving

to his parents' house in Quincy, Massachusetts. At approximately

1:00 a.m., DiRico arrived at the house, parked his car in his

parents' driveway, and exited his vehicle. He then noticed that a

police cruiser had pulled into the driveway and parked behind him.1

McNeil got out of the cruiser and approached DiRico.

1
DiRico acknowledges that before he turned onto the street on
which his parents live, he failed to stop at a stop sign.

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 The parties disagree as to what happened next. DiRico

claims that he said, "private property," and McNeil responded, "I

don't care. . . . I want your license and registration." DiRico

says that after he complied, McNeil ordered him to "[g]et back in

the car," and as DiRico turned towards the car, McNeil "pushed

[him] to the ground face first" and drove his face "into the

pavement." DiRico asserts that McNeil then "picked [him] up . . .

and started banging [his] head against the cruiser."

McNeil, however, claims that, when he exited his cruiser,

he asked DiRico for his license and registration several times, and

each time, DiRico responded, "Get the [expletive] off [of] private

property." McNeil asserts that he noticed that DiRico was

"unsteady on his feet," "his [speech] was a bit slurred," and he

smelled like alcohol. According to McNeil, DiRico then "made a

gesture to go inside his vehicle." McNeil "told him [to] stop,"

because he had seen hockey sticks in the car and had "lost sight of

[DiRico's] hands," but DiRico did not comply. In response, McNeil

tried to grab hold of DiRico to handcuff him, but DiRico resisted

and fell to the ground. McNeil testified that he was able to

handcuff DiRico only after an "intense" struggle.

The parties agree that DiRico was then placed in the

cruiser. At that point, DiRico noticed the presence of another

officer, Michael J. O'Brien ("O'Brien"). DiRico told O'Brien that

he had been beaten by McNeil. Soon thereafter, DiRico was taken to

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a nearby hospital. After receiving treatment, he was transported

to the Quincy Police Station and booked. DiRico told the officer

at the booking desk, Kevin O. Williams ("Williams"), that he had

been beaten by McNeil.

The City has a written policy regarding the use of force

by police officers. McNeil was aware of the policy and understood

that "the use of force was permissible only to overcome resistance"

and that "force [was to be used] only in the least amount

necessary." McNeil had not only read the policy, which was

regularly distributed to the officers of the Quincy Police

Department, but, when he first joined the Department, he received

ten weeks of training, a portion of which was spent reviewing the

policy.

On November 20, 2000, DiRico sued McNeil and the City to

recover for injuries he sustained during his encounter with

McNeil.2 DiRico alleged that they were both liable for (1)

violation of 42 U.S.C. § 1983,3 (2) violation of the Massachusetts

Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H, 11I, (3) assault

2
DiRico also sued O'Brien and Williams, but his claims against
them were later dismissed or withdrawn and are not implicated in
this appeal.
3
Section 1983 establishes a right of action against "person[s]
who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory," violate the civil rights of "any
citizen of the United States or other person within the
jurisdiction thereof." Cases brought under this statute often
involve the use of excessive force by police officers. See, e.g.,
Bordanaro v. McLeod, 871 F.2d 1151, 1153 (1st Cir. 1989).

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and battery, (4) false imprisonment, (5) intentional infliction of

emotional distress, (6) malicious prosecution,4 and (7) negligence.

McNeil and the City subsequently moved for summary judgment. The

district court granted McNeil summary judgment on the negligence

claim and the City judgment on all claims except for the § 1983 and

negligence claims.

Trial on the remaining claims began on November 17, 2003.

Prior to trial, McNeil moved, pursuant to Federal Rule of Evidence

404(b), to exclude all evidence pertaining to his March 21, 1999

traffic stop and arrest of Andrew J. Burke ("Burke"). The Burke

evidence included a letter from Quincy Police Department Officer

Barbara Di Natale to Officer Normand Goyette ("Goyette"), stating

that Burke had arrived at the police station with a bruised eye and

broken arm; claimed that his injuries were caused by McNeil; and

complained that nobody would help him file a report against McNeil.

The evidence also included a letter from Goyette to Burke, dated

March 22, 1999, in which Goyette acknowledged Burke's claims and

asked Burke to fill out the complaint form that he was sending with

4
Following DiRico's arrest, criminal charges were filed
against him for, among other things, operating an automobile under
the influence, failing to stop for a stop sign, failing to stop for
a police officer, and assault and battery on a police officer.
DiRico was convicted of operating under the influence, failing to
stop for a stop sign, and failing to stop for a police officer; he
was acquitted of all other charges. The malicious prosecution
claims stem from this criminal action.

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the letter.5 The letter and form, which were sent the next day to

the address Burke had provided upon his arrest, were ultimately

returned to the Department, as Burke no longer lived at that

address.6 The Rule 404(b) motion to exclude, which DiRico did not

oppose, was granted on November 20, 2003.

That same day, the City filed a motion for judgement as

a matter of law on all counts against it, which the district court

allowed. In deciding the City's motion, the district court did

consider the Burke evidence.7

On November 25, 2003, a mistrial was declared as to

McNeil because the jury could not agree on a verdict. The case

against McNeil was retried the next week. The evidentiary rulings

from the first trial were applied on retrial. On December 5, 2003,

the jury returned a verdict in favor of McNeil on all counts.

On appeal, DiRico claims that the district court erred in

granting McNeil's Rule 404(b) motion to exclude and the City's

5
In addition, the evidence included McNeil's written narrative
of the Burke arrest, in which he stated that he "wrestled [Burke]
to the ground" after Burke had opened, and refused to step away
from, the trunk of his car.
6
Burke did not subsequently pursue his claim against McNeil.
7
At no time did DiRico object to this limited use of the Burke
evidence. Indeed, he said nothing when the district court stated,
"I don't think [DiRico] wants [the evidence to be admitted]
substantively [against McNeil]. He simply wants [the evidence to
show] what was told to [the City]."

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motion for judgment as a matter of law. We address these arguments

in turn.

II. Rule 404(b) Motion to Exclude

DiRico first challenges the district court's decision,

pursuant to Rule 404(b), to exclude from his case against McNeil

the Burke evidence. Generally, we review the exclusion of evidence

under Rule 404(b) for abuse of discretion. See United States v.

Decicco, 370 F.3d 206, 210 (1st Cir. 2004). However, if there was

no objection to the exclusion at trial, our review is only for

plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st

Cir. 2001). We will not find plain error unless "(1) [] an error

occurred (2) which was clear or obvious and which not only (3)

affected [DiRico's] substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings." Id. Because DiRico did not assert his evidentiary

challenge below, our review is for plain error.8

Rule 404(b) provides that "[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith." But, such

8
DiRico argues that we should apply a more exacting standard
of review, but he has not provided us with any relevant support for
his argument. Therefore, we deem the argument waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[W]e see no
reason to abandon the settled appellate rule that issues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.").

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evidence is admissible so long as the following, two part test is

satisfied: First, in accordance with Rule 404(b), "the evidence

must have special relevance[9] to an issue in the case such as

intent[,] knowledge, [or absence of mistake or accident,] and must

not include bad character or propensity as a necessary link in the

inferential chain." United States v. Varoudakis, 233 F.3d 113, 118

(1st Cir. 2000) (internal quotation marks omitted). Second,

consistent with Federal Rule of Evidence 403, the probative value

of the evidence must not be "substantially outweighed by the danger

of unfair prejudice." Id. Evidence is unfairly prejudicial if it

"invites the jury to render a verdict on an improper emotional

basis." Id. at 122.

The district court did not plainly err in deciding to

exclude the Burke evidence. We do not see how the evidence had

special relevance to an issue in the case.10 And, even if it did,

we cannot say that a finding that the danger of unfair prejudice

9
Evidence is relevant if it has "any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." Fed. R. Evid. 401.
10
DiRico contends that the evidence was specially relevant
because it called into question McNeil's claim that DiRico's
injuries were caused by a mistake or accident. However, McNeil
never claimed that DiRico's injuries were caused by a mistake or
accident; rather, McNeil insisted that the injuries were the result
of DiRico's own aggressive behavior in resisting arrest. Moreover,
as a general matter, the absence of mistake or accident exception
to Rule 404(b) does not apply unless the opposing party first
raises a claim of mistake or accident. See, e.g., United States v.
Rodriguez-Cardona, 924 F.2d 1148, 1151 (1st Cir. 1991).

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substantially outweighed its probative value constituted plain

error. See United States v. Sabetta, 373 F.3d 75, 82-83 (1st Cir.

2004) ("only rarely--and in extraordinarily compelling

circumstances--will we, from the vista of a cold appellate record,

reverse a district court's on-the-spot judgment concerning the

relative weighing of probative value and unfair effect." (internal

quotation marks omitted)). Here, the evidence could not have had

much probative value given that it related to a single,

unsubstantiated claim of use of excessive force. And, if the jury

had been permitted to consider the evidence, there was certainly a

danger that it would have viewed McNeil as prone to engaging in

violent behavior and rendered a verdict on that improper basis.

The decision to exclude the evidence is affirmed.11

III. Motion for Judgment as a Matter of Law

DiRico next challenges the district court's decision to

grant the City's motion for judgment as a matter of law. In

granting the motion, the district court necessarily determined that

there was "no legally sufficient evidentiary basis for a reasonable

jury to find for [DiRico] on [his § 1983 or negligence claims]."

Fed. R. Civ. P. 50(a)(1). We review the grant of judgment as a

matter of law de novo. See Guilloty Perez v. Pierluisi, 339 F.3d

43, 50 (1st Cir. 2003). In conducting our review, "we examine the

11
We note that the letters from Di Natale and Goyette contained
hearsay evidence and were subject to exclusion from the case
against McNeil on that ground alone.

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evidence . . . in the light most favorable to [DiRico]." Id.

(internal quotation marks omitted).

A. Section 1983

DiRico argues that the district court erred in dismissing

his § 1983 claim because the evidence created a triable issue as to

whether the City was liable under that statute for failing to

train, supervise, and discipline McNeil with regard to the use of

force. A municipality can be liable under § 1983 for failing to do

any of the above if that failure causes a constitutional violation

or injury and "amounts to deliberate indifference to the rights of

persons with whom the [officers] come into contact." City of

Canton v. Harris, 489 U.S. 378, 388 (1989); Bordanaro v. McLeod,

871 F.2d 1151, 1159 (1st Cir. 1989).12

We affirm the dismissal of the § 1983 claim for two,

independent reasons. First, the evidence was not sufficient to

support DiRico's argument that the City exhibited deliberate

indifference in training, supervising, or disciplining McNeil with

respect to the use of force. Even assuming that the evidence

suggested that the City's training, supervision, or discipline of

12
A municipality may be sued under § 1983 only when the
execution of a municipal policy or custom is the cause of the
relevant injury. Kelley v. LaForce, 288 F.3d 1, 9 (1st Cir. 2002).
And, "[o]nly where a municipality's failure to train[, supervise,
or discipline] its employees in a relevant respect evidences a
'deliberate indifference' to the rights of its inhabitants can such
a shortcoming be properly thought of as a city 'policy or custom'
that is actionable under § 1983." City of Canton, 489 U.S. at 389.

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McNeil was wanting, it did not indicate that the City was

deliberately indifferent to the rights of its citizens. As to

training, the evidence established that the City regularly gave

McNeil copies of its policy on the use of force13 and provided him

with formal instruction on the matter.14 See Santiago v. Fenton,

891 F.2d 373, 382 (1st Cir. 1989) ("Provision of only four hours of

training, without more, does not amount to [deliberate

indifference]."). And, although the City decided not to increase

its supervision over or discipline McNeil after the Burke claim,

the evidence does not indicate that its decision reflected

deliberate indifference. The city simply opted not to take action

against McNeil after receiving a single, unsubstantiated allegation

of use of excessive force.15 Cf. Bordanaro, 871 F.2d at 1159-61

(finding the evidence "sufficient to prove that [city] officials

were deliberately indifferent to the need for better . . .

training, supervision and discipline of the city's police force").

13
DiRico has not argued that the policy itself was somehow
deficient.
14
Although McNeil testified that he "could not point to any
particular training" that he received "on the topic of handling
[himself] . . . during stressful moments," that testimony was not
sufficient to create a triable issue as to whether the City was
deliberately indifferent given the extensive training on the use of
force that McNeil testified to receiving.
15
DiRico represented in his brief to this court that "there was
testimony that suggested that the City . . . routinely ignored
complaints about the use of excessive force" (emphasis added).
However, the record does not support that representation.

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 Second, because a jury determined that McNeil did not

violate DiRico's constitutional rights (and we see no reason to

upset that determination), the § 1983 claim against the City

necessarily fails, as it cannot be said that any action on the part

of the City caused DiRico's injuries. See Evans v. Avery, 100 F.3d

1033, 1040 (1st Cir. 1996) (holding that a municipality cannot be

held liable under § 1983 for failure to train absent an underlying

constitutional violation by one of its officers).

B. Negligence

We next consider whether the district court erred in

dismissing DiRico's negligence claim against the City. DiRico,

relying on the Burke evidence, insists that because "the City . .

. had, or should have had, knowledge of . . . McNeil's assaultive

behavior and did nothing to curb that behavior," there was a

triable issue as to whether it was negligent. But, even if we

assume that McNeil's actions towards DiRico were in some way

inappropriate,16 we do not think that the evidence was sufficient

to support the negligence claim against the City. The evidence

indicated that a single individual complained that McNeil used

excessive force during an arrest and that an immediate attempt was

made to document the claim, which was unsuccessful because the

16
It is not clear from the record that the district court's
dismissal of the negligence claim against McNeil at the summary
judgment stage represented an adjudication on the merits that
McNeil was not negligent.

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complaining party had provided a false address upon his arrest and

made no further attempt to pursue his claim. On this evidence, we

cannot say that the City was negligent in deciding not to take

action against McNeil. The dismissal of the negligence claim is

affirmed.17

Affirmed.

17
Although the record indicates that the dismissal of DiRico's
negligence claim against the City may have been inadvertent, we may
uphold the dismissal on any ground supported by the record. See
Wilson v. Town of Mendon, 294 F.3d 1, 10 n.23 (1st Cir. 2002).

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