Moore v. Murphy ( 1995 )

USCA1 Opinion

             [Appendix not attached to this copy of the opinion.  Please
              contact Clerk's Office for copy of opinion with appendix.]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 94-1974

                                    GREGORY MOORE,

                                Plaintiff, Appellant,

                                         v. 

                                     PAUL MURPHY,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
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                                        Before

                                Selya, Cyr and Boudin,

                                   Circuit Judges.
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                    Jennifer  Petersen,  with whom  Andrew Stockwell-Alpert
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          and Joanne S. Forkner were on brief, for appellant.
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               Howard  Friedman  and  Sarah   Wunsch  on  brief  for  Civil
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          Liberties Union of Massachusetts, amicus curiae.
               Thomas  C.  Tretter,  Asst.  Corporation  Counsel,  City  of
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          Boston,  with whom Albert W.  Wallis, Corporation Counsel, was on
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          brief, for appellee.

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                                   February 1, 1995
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                    SELYA,  Circuit  Judge.   Appellant  seeks  to have  us
SELYA,  Circuit  Judge.
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          prescribe a  remedy, yet  denies us  access to  any authoritative

          information  about  the  etiology  of  the  patient's  condition.

          Consequently,  we  cannot  dispense  the  requested  relief  and,

          therefore, decline  to disturb the district  court's treatment of

          the case.

                                          I
I

                    During  the evening  of  February  8, 1991,  defendant-

          appellee Paul Murphy and his partner, Andrew Garvey, were working

          as  undercover  police  detectives.    They  observed  plaintiff-

          appellant Gregory Moore on  the street near 2 Waverly  Street, in

          the Roxbury section of Boston, Massachusetts.  Believing Moore to

          be engaged  in a  narcotics transaction, the  officers approached

          him.  Violence erupted.  Moore sustained injuries.1

                    In  due  course, Moore  sued  the  officers in  federal

          district court for, inter  alia, federal civil rights violations,
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          42  U.S.C.   1983 (count 1), state civil rights violations, Mass.

          Gen. L.  ch. 12,   11I  (MCRA) (count 2), and  common law assault

          and battery (count 3).  These three counts were tried  to a jury.

          At the close of the evidence, the court instructed on the law and

          gave  the jurors  a  verdict form  (the Form)  soliciting special

          findings.  See Fed. R. Civ. P. 49(a).  When the jury finished its
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               1The  parties  offer  markedly  different  versions  of  the
          critical  events.   Moore  claims that  Murphy  placed him  in  a
          chokehold, from behind, without  warning or cause.   The officers
          claim that  Moore, fearing  arrest, attempted to  swallow several
          packets  of crack cocaine, and  that a struggle  ensued when they
          tried to prevent him from doing so.

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          deliberations,  it tendered the completed Form to the court.2  On

          the Form, the jury  found for both defendants on the section 1983

          claim;  found that Murphy, not Garvey, had violated the MCRA, but

          that, in  all  events,  no "harm"  was  "proximately  caused"  by

          Murphy's  transgression; and  found  for both  defendants on  the

          common law  claim.  A  few days later the  district court entered

          judgment in favor of both defendants on all three counts.

                    Moore moved for a new trial, Fed. R. Civ. P. 59(a), and

          to  alter or  amend the  judgment, Fed.  R. Civ.  P. 59(e).   The

          district court denied the motions.  This appeal followed.

                                          II
II

                    On appeal, Moore does  not contest the jury's findings.

          Instead, he argues that, given those findings, the district court
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          had an obligation to enter judgment in his favor, against Murphy,

          on count 2 of the complaint (for nominal damages).  This argument

          depends on a synthesis of federal and state law, leading Moore to

          conclude that, once the jury found that Murphy violated the MCRA,

          Moore's  entitlement  to a  favorable  judgment  vested, and  the

          jury's subsequent finding    that the violation caused no  harm  

          was relevant only  to damages.   Moore's argument  in support  of

          this thesis  is intellectually interesting, but eludes meaningful

          appellate review.  Hence, we cannot honor it.

                    The mission  of the  appellate judiciary is  neither to

          mull  theoretical  abstractions  nor  to  practice  clairvoyance.

          Rather,  appellate  judges  fulfill  their  review   function  by

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               2We reproduce the Form as Appendix A.

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          matching applicable principles of law to the discerned facts  and

          circumstances  of  litigated cases.    Where,  as here,  a  party

          seeking appellate  review fails to  furnish the basic  tools that

          the  court needs  to  carry out  its  task, that  party  loses by

          default.    In  the  succeeding sections,  we  expound  upon this

          doctrine and demonstrate its applicability here.

                                          A
A

                    Fed.  R.  App.  P.  10(b)(1)  directs  parties  seeking

          judicial review to procure  and file "a transcript of  such parts

          of the proceedings [below]  not already on file" as  is necessary

          to  enable the court of appeals to place the parties' contentions

          into  perspective.3  This rule  imposes a duty  upon an appellant

          "to print  all of  the evidence,  good and  bad, material to  the

          point he  wishes to raise."  Chernack v. Radlo, 331 F.2d 170, 171
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          (1st Cir. 1964).   Should an appellant spurn this  duty and drape

          an  incomplete record around the  court's neck, the  court in its

          discretion either may  scrutinize the merits of the  case insofar

          as the record permits, or  may dismiss the appeal if  the absence

          of a full  transcript thwarts  intelligent review.   See Fed.  R.
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          App. P. 3(a); United States v. One Motor Yacht Named Mercury, 527
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          F.2d 1112, 1113 (1st Cir. 1975).  In this vein, we have held with

          a regularity bordering  on the monotonous that, should the record

          provided  on appeal prove  to be so  deficient as to  preclude us

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               3Rule 10 also describes alternate devices that may from time
          to time obviate the need for a trial transcript.  See, e.g., Fed.
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          R. App. P.  10(d) (permitting use  of an agreed statement  of the
          record on appeal).   Appellant did not employ any  such surrogate
          here.

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          from  reaching a reasoned determination on the merits, "it is the

          appellant  who must bear the  brunt of an  insufficient record on

          appeal."  Real v. Hogan, 828  F.2d 58, 60 (1st Cir. 1987); accord
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          Jardines Bacata, Ltd.  v. Diaz-Marquez, 878  F.2d 1555, 1559  n.5
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          (1st Cir. 1989); Valedon Martinez v. Hospital Presbiteriano de la
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          Comunidad, Inc., 806 F.2d 1128, 1135 (1st Cir. 1986);   One Motor
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          Yacht Named Mercury, 527 F.2d at 1113.
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                                          B
B

                    In prosecuting  the instant appeal, Moore  created just

          such a problem:  he failed to provide this court with any part of

          the trial  transcript.  In  the particular circumstances  of this

          case,  his omission  leaves  us no  choice  but to  jettison  his

          appeal.  We explain briefly.

                    Moore's  appeal  depends  on   the  viability  of   his

          contention that  causation is not  an element of  liability under

          the MCRA.   However, the Form  strongly suggests that the   trial

          court  told the jury the  opposite; after all,  the Form directed

          the  jurors,  if  they  answered   either  part  of  Question  #3

          affirmatively (that  is, if they  found that  one or both  of the

          defendants  "violate[d]  Gregory  Moore's   state  constitutional

          rights  by threat,  intimidation  or coercion"),  to "proceed  to

          Question #4"  (the inquiry into causation),  and further directed

          the jurors to proceed  to Question #9 (the inquiry  into damages)

          only upon an affirmative  answer to Questions #2,  #4, #6, or  #8

          (not  upon  an affirmative  answer to  Question  #3).   See infra
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          Appendix A.  The judge's entry of a judgment in Murphy's favor on


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          count  2 suggests  the  same  perceived  linkage between  a  MCRA

          violation  and some  ensuing harm.   Even  if this  insistence on

          proof of  a  causal connection  were error  in the  abstract    a

          matter on  which we do not  opine   it would  be reversible error

          only if properly preserved.  And  there is simply no way, without

          a more complete record, that we can make such a determination.

                    Murphy  asserts   and, in the absence of a full record,

          we  take  as  true      that  appellant  did  not   make  timely,

          appropriately specific  objections to  the district  court's jury

          instructions or to the  court's promulgation of the Form.   These

          are important points, not mere technicalities.

                    The Civil Rules declare that parties must object to the

          court's  charge   at  a  particular  time   and  with  reasonable

          specificity. See  Fed. R. Civ. P.  51.  The failure  to object to
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          the  instructions at the time,  and in the  manner, designated by

          Rule 51 is treated as a  procedural default, with the result that

          the  jury instructions, even if erroneous, become the law of that

          particular case.   See La Amiga  del Pueblo, Inc.  v. Robles, 937
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          F.2d  689, 690-91 (1st Cir. 1991); Milone v. Moceri Family, Inc.,
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          847 F.2d 35, 38-39 (1st Cir. 1988); Murphy v. Dyer, 409 F.2d 747,
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          748  (10th Cir. 1969).   Federal court practice  imposes the same

          duty of diligence in  regard to special verdict forms.   "Silence

          after  instructions, including  instructions on  the form  of the

          verdict  to be  returned  by the  jury,  typically constitutes  a

          waiver of any objections."  Putnam Resources v. Pateman, 958 F.2d
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          448, 456 (1st Cir. 1992) (collecting cases).


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                    To  be   sure,  an   appellate  court  may   review  an

          unpreserved error if the error is "plain."  See,  e.g., Poulin v.
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          Greer, 18  F.3d 979, 982 (1st Cir. 1994).  However, this doctrine
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          is reserved for  use in  only the  most egregious  circumstances.

          See  id.    Normally, the  appellant must  show that  the alleged
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          error seriously affected the fairness  or integrity of the trial.

          See Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991);
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          United  States v.  Griffin, 818  F.2d 97,  100 (1st  Cir.), cert.
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          denied, 484 U.S. 844 (1987).
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                    The mistake that Moore attributes to the lower court in

          this case cannot  by any  stretch of the  most vivid  imagination

          vault  the plain  error  hurdle.4   Given  the unchallenged  jury

          verdicts on counts 1 and 3, and the findings  that underpin those

          verdicts,  we see no  manifest injustice in  the district court's

          entry of judgment against the plaintiff on count 2.

                                         III
III

                    We need go  no further.5  It is apparent that we cannot

          intelligently determine the merits of this appeal without a trial

          transcript.   Since appellant  bears the responsibility  for this

          omission,  he  must  bear the  resultant  onus.    Cf. Hosea  8:7
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          (explaining that  those who "sow  the wind .  . . shall  reap the


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               4Indeed,  to the  extent that  Moore  relies upon  the plain
          error doctrine to extricate himself from his self-dug hole, he is
          at  a  decided  disadvantage;  lacking  a  trial  transcript,  an
          appellate  court  is  unlikely  to  be  able   to  determine  the
          egregiousness of many types of errors.  So it is here.

               5Murphy  argues, inter  alia,  that,  causation  aside,  the
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          jury's answers on the Form established  only a putative violation
          of plaintiff's  rights, not an  interference with  some right  to
          which  the  MCRA  pertains.   We  need  not  reach this  somewhat
          convoluted argument, and, accordingly, we take no view of it.

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          whirlwind").  The judgment below is, therefore,



          Affirmed.
Affirmed.
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