Matthews v. Cordeiro , 256 F. App'x 373 ( 2007 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 05-1041
LLOYD MATTHEWS,
Plaintiff, Appellant,
v.
PAUL CORDEIRO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Lynch and Howard,
Circuit Judges.
Lloyd Matthews on memorandum in lieu of appellate brief pro
se.
Nancy Ankers White, Special Assistant Attorney General, and
Julie E. Daniele, Counsel, Department of Correction on brief for
appellees.
December 11, 2007
Per Curiam. Lloyd Matthews sued several prison officials
claiming that he was beaten on two occasions while incarcerated at
MCI Cedar Junction. The claim alleging a March 2000 beating was
rejected because Matthews had failed to exhaust his administrative
remedies prior to bringing suit. See the Prison Litigation Reform
Act of 1995 (PLRA), 42 U.S.C. § 1997e(a). Matthews went to trial
on a claim alleging a January 11, 2001 beating. Peter Pepe, who
was superintendent of MCI Cedar Junction in January 2001, was
granted a directed verdict at the close of the evidence on
Matthews' theory of supervisory liability. The jury considered the
claim against Corrections Officers Paul Cordeiro and Michael
Domingos and found in the officers' favor. The jury also
considered a counterclaim for assault and battery filed by Domingos
against Matthews and found in favor of Matthews on this
counterclaim. Matthews has appealed. We affirm.
1. Dismissal of the March 2000 claim
Matthews concedes that he did not exhaust any
administrative remedy regarding the March 2000 claim of excessive
force, but he claims that exhaustion was not required until January
2001. Whatever the exhaustion requirements of state law, PLRA,
which was enacted in 1995, required Matthews to exhaust his
administrative remedies as a condition precedent to filing in
federal court. In addition, Matthews concedes that claims of
excessive force during the March 2000 time period were treated as
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complaints and sent directly to the superintendent. Whether or not
these claims were thus processed in a procedural manner different
from other grievances, PLRA requires that "[a]ll available remedies
must now be exhausted; those remedies need not meet federal
standards, nor must they be plain, speedy, and effective." Porter
v. Nussle, 534 U.S. 516, 524 (2002) (emphasis added) (citation and
internal quotation marks omitted). So long as there are
administrative remedies available -- and the practice of referring
claims of excessive force directly to the superintendent evidences
such an administrative remedy -- PLRA required Matthews to exhaust
it. He concedes that he did not. This claim was correctly
dismissed for failure to exhaust administrative remedies.1
2. Denial of discovery and witnesses
We review a district court's discovery ruling for abuse
of discretion. See Bogosian v. Woloohojian Realty Corp., 323 F.3d
55, 64 n.7 (1st Cir. 2003). There was no such abuse in this case.
Although Matthews had a dozen blank cassette tapes he could have
used for deposition purposes, he refused to do so, arguing they
were in reserve for other litigation, even though the tapes could
be replenished when the supply was depleted. The defendants
provided some documentary discovery, although not everything
Matthews sought. After four years, the court did not abuse its
1
Matthews' motion for leave to expand the record to include
non-record documents is denied. In any event, the documents would
have no substantive effect on the outcome of this appeal.
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discretion in placing this case on the running trial list and
denying further discovery efforts. Moreover, we are not persuaded
by any of Matthews' claims of prejudice from lack of discovery.
There was neither error of law nor abuse of discretion in
denying Matthews' requests for subpoenas or writs of habeas corpus
ad testificandum. "[F]ederal courts are not authorized to waive or
pay witness fees on behalf of an in forma pauperis litigant."
Malik v. Lavalley, 994 F.2d 90, 90 (2d Cir. 1993). And, in any
event, to the extent that Matthews describes expected testimony by
proposed witnesses, that testimony appears incompetent, irrelevant,
or, at best, cumulative.
3. The counterclaim
There was no abuse of discretion in permitting the
counterclaim to be filed. In any event, in light of the fact that
the jury rejected the counterclaim, the issue of the timeliness of
its filing is moot.
4. Jury instructions
Matthews argues that, apart from instructing that his
claim stemming from the January 2001 incident alleged a violation
of the 8th Amendment right to be free from cruel and unusual
punishment, the court should have given an additional and separate
instruction on assault and battery. But Matthews' objections were
somewhat garbled - seemingly confusing his claim of assault and
battery with a right to claim self defense in response to Officer
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Domingos' counterclaim. Tr. 11/10/2004 at p. 89. And, Matthews
did no more than raise a general complaint about the failure to
instruct on assault and battery, i.e., Matthews never presented the
court with his own proposed instruction or explained how and why he
thought the elements were distinct. Nor, for that matter, has he
done so on appeal.
"[P]arties objecting to a trial judge's instruction must
not only identify the error but also proffer a correct instruction
or otherwise explain how the alleged error in the charge could be
corrected." Estate of Keatinge v. Biddle, 316 F.3d 7, 15 (1st Cir.
2002) (quoting Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 944
(1st Cir. 1995)). "In general, objections to a trial judge's
charge to the jury must be clear enough and explicit enough to tell
the trial judge what the party wishes the trial judge to say in
order to correct the alleged error." Scarfo v. Cabletron Sys.,
Inc., 54 F.3d at 946. Accordingly, we review only for plain error,
including whether it was sufficiently fundamental to threaten the
fairness or integrity or public reputation of the judicial
proceedings. Estate of Keatinge v. Biddle, 316 F.3d at 16
(quotation and citation omitted). In light of that standard, there
was no plain error in failing to give an additional and separate
instruction on assault and battery.
The court refused to instruct on a claim of harassment,
reciting that, to the extent that such a claim was not covered in
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the given charge, the court was excluding it for failure to
exhaust. There was no error. For reasons addressed supra, we
reject Matthews' contention that exhaustion was not required.
5. Directed verdict
There was no error in the directed verdict in favor of
(then) Superintendent Pepe. In all events, with no finding of a
constitutional violation, there can be no supervisory liability.
See Hatfield-Bermudez v. Aldanondo-Rivera, 496 F.3d 51, 63 (1st
Cir. 2007).
6. Evidentiary rulings
We have reviewed Matthews' numerous complaints about
various evidentiary rulings, including the court's refusal to
permit evidence of Officer Domingos' subsequent and unrelated
termination. There was no abuse of discretion in any of contested
rulings.
The judgment of the district court dated November 12,
2004 is affirmed.
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