Douglas v. Owens

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
3-24-1995
Douglas v Owens
Precedential or Non-Precedential:
Docket 94-7406
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-7406
ANDRE DOUGLAS
v.
DAVID S. OWENS; ROBERT M. FREEMAN; RICHARD C. SMITH;
LT. DEITRICH; LT. ORWIG; GRIFFITH; HORNING; SIMONCINI;
ARDABELL; BERA; ENRIQUEZ; KIM WILSON; SOWELL; C.O. POWELL;
C.O. SMITH; LT. SPELLS; JOHN DOES
Ronald Griffith; Christopher Simoncini;
Jose Luis Enriquez; Carl Ardabell,
Appellants
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 89-cv-01879)
Argued January 12, 1995
BEFORE: COWEN, NYGAARD and ALITO,
Circuit Judges
(Filed March 24, 1995)
Eileen E. Wiggins (Argued)
Williams & Cuker
1650 Arch Street
Suite 2350
Philadelphia, PA 19103
COUNSEL FOR APPELLEE
Andre Douglas #AY-7089
John G. Knorr, III
Sandra W. Stoner
Gregory R. Neuhauser (Argued)
Office of the Attorney General
of Pennsylvania
Strawberry Square
15th Floor
Harrisburg, PA 17120
COUNSEL FOR APPELLANTS
Ronald Griffith
Christopher Simoncini
Carl Ardabell
Jose Luis Enriquez
OPINION
COWEN, Circuit Judge.
This civil rights action was filed with the United
States District Court for the Middle District of Pennsylvania
pursuant to 42 U.S.C. § 1983 by a state prisoner who alleges that
he was beaten by numerous prison guards in the aftermath of a
prison riot. The prison guards appeal the jury verdict and entry
of judgment in favor of the plaintiff. We are called on to
determine whether the district court: (1) abused its discretion
in limiting the scope of cross-examination of a witness for the
plaintiff; (2) abused its discretion in instructing the jury on
the law governing the use of force against prisoners; and (3)
erred by permitting the jury to render a special verdict on an
issue which had not originally been submitted to them.
Because we conclude that the district court abused its
discretion by improperly limiting the scope of cross-examination
of a key witness for the plaintiff, we will reverse the judgment
of the district court and remand for a new trial. In light of
our decision to remand for a new trial, it is not necessary to
address the issue of the jury instruction regarding the law
governing the use of force against prisoners. Nonetheless,
because of the likelihood that this issue will undoubtedly arise
again during the new trial, we will give directions on the issue
to the district court. Finally, as to the special verdict issue,
we conclude that the district court erred in allowing the jury to
consider whether a prison guard approved an excessive use of
force when the only theory of liability submitted to the jury was
that the prison guard actually participated in the beating.
I. Factual and Procedural Background
Defendants in the district court and appellants before
us are four prison guards from the State Correctional Institution
at Camp Hill, Pennsylvania ("SCI-Camp Hill").1 Andre Douglas
("Douglas"), plaintiff in the district court, was an inmate at
the same institution and alleges that he was beaten on two
separate occasions by prison guards in the immediate aftermath of
riots which occurred in October of 1989 at SCI-Camp Hill.
Douglas filed two complaints which alleged that
appellants and seven others, all prison guards or prison
officials, violated his constitutional rights when they beat him,
observed others beat him, and failed to protect him. Summary
1
. The four defendants/appellants are Ronald Griffith
("Griffith"), Christopher Simoncini ("Simoncini"), Jose Luis
Enriquez ("Enriquez"), and Carl Ardabell("Ardabell"). For
purposes of this appeal we will refer to them collectively as
"appellants" or "prison guards" unless it is necessary to
distinguish among them.
judgment was granted in favor of two defendants. The case
against the remaining defendants, including appellants, was tried
before a jury.
Testimony at trial elicited that on October 25 and 26,
1989, riots broke out at SCI-Camp Hill. Prior to and during the
riots, Douglas was confined in the Restricted Housing Unit
("RHU"), also known as "D block," within the prison. During the
riots, the security of RHU had been compromised, requiring a
thorough search or "shakedown" of the RHU, which was conducted on
October 31, 1989. Douglas claimed that he was twice beaten
without cause by corrections officers: once on October 31 after
the shakedown and once on November 3, immediately before he was
transferred to the federal penitentiary at Lewisburg,
Pennsylvania.2 Douglas claims that during the October 31
incident, he was handcuffed and then beaten with a baton in his
cell, dragged out of his cell, beaten again, and then threatened
with a shotgun.
Defendants attempted to show that Douglas was never
beaten by offering the following evidence: (1) all of the
defendants denied beating Douglas; (2) members of the
Pennsylvania State Police who patrolled SCI-Camp Hill during the
riots and were on duty during the alleged beating testified that
Douglas had not been beaten; (3) although medical records at the
2
. Because none of the appellants were implicated in the alleged
beating that occurred on November 3, 1989, any testimony or
evidence relating to that day is not relevant for purposes of
this appeal.
prison indicate that Douglas complained of and was treated for
chest pain following the riots, the medical records did not note
any bruises or contusions that Douglas claims were present on his
chest; and (4) a videotape of Douglas taken upon his arrival at
Lewisburg shows no visible injuries to his head or face.
Additionally, when asked by correction officials in the videotape
if he had any injuries, Douglas answered that he did not.
Douglas attempted to corroborate his claim with
testimony from the Imam Quadir Sabir ("the Imam")3, who at the
time was an Islamic chaplain at SCI-Camp Hill. The Imam
testified that at some point between October 25 and November 3,
1989, he observed that Douglas had "abrasions or bruises in the
chest area and around the neck area." App. at 73. On cross-
examination of the Imam, appellants attempted to establish that
the Imam had been fired by the Department of Corrections because
of his involvement with the rioting inmates at SCI-Camp Hill and
his failure to cooperate in an investigation of the riots. The
district court, however, refused to permit this line of
questioning on cross-examination and instead only allowed the
jury to learn that the Imam's employment had been "terminated."4
3
. An "Imam" is a prayer leader of Islam, a Moslem scholar, or
an authority on Islamic law.
4
. The cross-examination of the Imam was conducted by defense
counsel Stoner as follows:
Q. You used to be an employe[e] of the Department of
Corrections; isn't that correct?
A. Yes.
(..continued)
Q. You are no longer an employe[e] of the Department of
Corrections; are you?
A. No.
Q. In fact, you were an employe[e] --
Ms. Wiggins (counsel for Douglas): Objection, Your Honor,
relevance.
Ms. Stoner: It goes to bias and motive, Your Honor.
Ms. Wiggins: May we approach?
The Court: Yes.
(The following discussion was had at sidebar:)
Ms. Stoner: Your Honor, he was terminated by the
Department, and therefore it goes to his bias
and motive to speak against these officers. In
fact, he was terminated because of his alleged
involvement with the inmates in this riot, and
his failure to cooperate in an investigation of
the riots.
The Court: I am not going to let you get into the reasons
of the termination. You can bring out the fact
that he was terminated.
Ms. Stoner: That he was fired by the Department, and in
fact was barred from any federal or any state -
The Court: No. He was terminated. That gives you enough
of a bias. You don't have to get into the
reasons for his termination. We would be trying
a case within a case.
Ms. Wiggins: The ruling is that she may not say that he was
fired?
The Court: That he was terminated.
Ms. Stoner: Your Honor, he was fired.
The Court: He was terminated. That is the way it is going
to be.
Ms. Stoner: I would note my objection for the record.
At the conclusion of his case, Douglas voluntarily
dismissed one defendant. In addition the district court granted
another defendant's motion to dismiss. The jury returned special
verdicts finding that appellants Simoncini, Enriquez, and
Ardabell had used excessive force against Douglas and that
appellant Griffith had approved the use of excessive force. The
jury awarded Douglas a total of $10,000 in compensatory and
punitive damages.5
(..continued)
The Court: You have an exception.
(End of discussion at sidebar.)
By Ms. Stoner:
Q. Mr. Sabir, wasn't your employment with the Department
of Corrections terminated by the Department after the
riot?
A. Yes.
Ms. Stoner: I have no further questions, Your Honor.
App. at 80-82.
5
. The damages were allocated as follows:
DEFENDANT COMPENSATORY PUNITIVE TOTAL
Simoncini $ 500 $ 1000 $ 1500
Griffith 500 1000 1500
Enriquez 500 1000 1500
Ardabell 1500 4000 5500
TOTAL $ 3000 $ 7000 $10,000
App. at 305-06.
Appellants argue that the district court improperly
limited their scope of cross-examination of the Imam. Next,
appellants take issue with the district court's refusal to
instruct the jury that not all force used against a prisoner is
excessive. They argue that had the jury been informed that
prison guards may lawfully use reasonable physical force when
necessary in the prison setting, the jury may have concluded that
such force was justified under the circumstances. Finally,
appellants claim that it was improper for the district court to
allow the jury to impose liability on Griffith for approving the
use of excessive force, when throughout the litigation and in the
charge to the jury Douglas only claimed that Griffith used
excessive force.
II. Discussion
A. Scope of Cross-Examination
We review a district court's ruling concerning the
allowable scope of cross-examination for abuse of discretion.
United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991) (citing
United States v. Reed, 724 F.2d 677, 679 (8th Cir. 1984)), cert.
denied, 502 U.S. 1092, 112 S. Ct. 1165 (1992).
We begin our analysis by noting that a party is
guaranteed "only ``an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.'" Kentucky v. Stincer,
482 U.S. 730, 739, 107 S. Ct. 2658, 2664 (1987) (quoting Delaware
v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985))
(emphasis in original). We also recognize that the district
court is required to strike a balance between the opportunity to
cross-examine and the need to prevent repetitive or abusive
cross-examination. United States v. Casoni, 950 F.2d 893, 919
(3d Cir. 1991). Thus, the district court may properly exercise
its discretion in this area by imposing reasonable limits on the
scope of cross-examination, weighing such factors as undue
prejudice, relevancy, and delay due to repetition. As stated
recently by the Court of Appeals for the Eleventh Circuit,
"[t]rial judges retain wide latitude to impose reasonable limits
on cross-examination based on concerns about, among other things,
confusion of the issues or interrogation that is repetitive or
only marginally relevant." United States v. Baptista-Rodriguez,
17 F.3d 1354, 1370-71 (11th Cir. 1994).
To properly evaluate a witness, a jury must have
sufficient information to make a discriminating appraisal of a
witness's motives and bias. See United States v. Abel, 469 U.S.
45, 52, 105 S. Ct. 465, 469 (1984). It is an abuse of discretion
for a district judge to cut off cross-examination if the
opportunity to present this information is not afforded. See
Harbor Ins. Co. v. Schnabel Foundation Co., 946 F.2d 930, 935
(D.C. Cir. 1991) (district court abused its discretion in cutting
off cross-examination because it was not collateral, irrelevant,
or prejudicial and had a direct bearing on the weight to be given
the witness' testimony by the jury), cert. denied, __ U.S. __,
112 S. Ct. 1996 (1992).6
6
. Much of the current authority pertaining to the permissible
scope and limitation of cross-examination involves cases of a
criminal nature. See Pennsylvania v. Ritchie, 480 U.S. 39, 51-
52, 107 S. Ct. 989, 998 (1987) ("[T]he right to cross-examination
includes the opportunity to show that a witness is biased, or
that the testimony is exaggerated or unbelievable."); Delaware v.
Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1435 (1986)
("[T]he exposure of a witness' motivation in testifying is a
proper and important function of . . . cross-examination.");
United States v. Ovalle-Marquez, 36 F.3d 212, 217 (1st Cir. 1994)
(trial court abuses its discretion on cross-examination "if the
jury is left without sufficient information concerning formative
events to make a discriminating appraisal of a witness's motives
and bias") (citations and internal quotation omitted), cert.
denied, __ U.S. __, 115 S. Ct. 947 (1995); United States v.
Carty, 993 F.2d 1005, 1010 (1st Cir. 1993) (the district court
may not limit cross-examination unless the jury possesses
sufficient information to make a discriminating appraisal of the
possible biases and motivations of the witness); United States v.
Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990) (cross-
examination is not improperly limited if the jury possesses
"facts sufficient to make a discriminating appraisal of the
particular witness's credibility") (citation and internal
quotation omitted), cert. denied, 499 U.S. 940, 111 S. Ct. 1397
(1991); United States v. Coleman, 997 F.2d 1101, 1105 (5th Cir.
1993) (the court did not abuse its discretion in limiting cross-
examination because the jury received adequate information with
which to evaluate the bias, credibility, and vindictive
proclivities of the witness), cert. denied, __ U.S. __, 114 S.
Ct. 735 (1994); United States v. Hall, 653 F.2d 1002, 1008 (5th
Cir. 1981) ("The exposure of possible motivations for false
testimony is a fundamental element of cross-examination . . . .
Thus, cross-examination into any motivation or incentive a
witness may have for falsifying his testimony must be
permitted."); United States v. Christian, 786 F.2d 203, 213 (6th
Cir. 1986) (the district court did not abuse its discretion in
limiting the scope of cross-examination because the aggressive
attacks on the witness' credibility by counsel put the jury in
possession of sufficient information by which to appraise the
witness' credibility); United States v. Nelson, 39 F.3d 705, 708
(7th Cir. 1994) ("[W]hen reviewing the adequacy of cross-
examination, the question is whether the jury had sufficient
information to make a discriminating appraisal of the witness's
motives and bias.") (citation and internal quotation omitted)
(bracket in original); United States v. Durman, 30 F.3d 803, 811
As related above, appellants were only permitted to
elicit from the Imam that he was "terminated" from his position
after the riots. We conclude that the district court abused its
discretion in not allowing appellants the opportunity to question
the Imam with regard to the circumstances surrounding his
discharge. The word "terminated" and even the word "fired" is
not sufficient to effectively portray to the jury any alleged
bias, lack of credibility, and motives of the Imam. The Imam
could have been terminated or fired for any number of "neutral"
(..continued)
(7th Cir. 1994) (no abuse of discretion because counsel was able
to cross-examine the witness extensively and had the opportunity
to probe credibility and bias), cert. denied, __ U.S. __, 115 S.
Ct. 921 (1995); United States v. Warren, 18 F.3d 602, 603 (8th
Cir.) (trial court did not abuse its discretion in refusing to
permit cross-examination on a particular topic because counsel
had an opportunity to vigorously cross-examine witness about
related matters), cert. denied, __ U.S. __, 115 S. Ct. 652
(1994); United States v. Dees, 34 F.3d 838, 844 (9th Cir. 1994)
(because counsel was able to elicit substantial information from
the witness relating to her biases, the district court did not
abuse its discretion by further limiting cross-examination);
United States v. Morales-Quinones, 812 F.2d 604, 614 (10th Cir.
1987) ("[C]ross-examination of a witness regarding specific
instances of conduct which are probative to show any incentive a
witness may have to falsify his testimony is also proper.");
United States v. Diaz, 26 F.3d 1533, 1541 (11th Cir. 1994) (no
abuse of discretion in limiting cross-examination because no
further bias would have been exposed by further questioning),
cert. denied, __ U.S. __, 115 S. Ct. 952 (1995).
While cross-examination in the criminal context assumes
a heightened importance because of the constitutional
implications inherent in confronting one's accuser pursuant to
the Sixth Amendment, similar concerns -- the jury must have
sufficient information to make a discriminating appraisal of the
witness's motives and bias -- are implicated in a civil trial
context as well.
reasons which would not suggest to the jury that he was biased in
favor of Douglas and against appellants.7 Without further
inquiry, the jury did not have sufficient information with which
to make a discriminating appraisal of the Imam's motives or bias.
In addition, the jury may have felt that a member of
the clergy is impartial and tells the truth. Our concern that
the jury may have given unhesitating credence to the testimony of
the Imam, a religious figure, is heightened by the fact that the
only claim on which the jury found in favor of Douglas was the
claim in which his testimony was corroborated by the Imam.8
In order to effectively cross-examine the Imam, the
appellants must be in a position to reveal that the Imam may be
both biased against appellants and biased in favor of prisoners,
such as Douglas.9 In order to accomplish this, appellants must
7
. We can speculate as to any number of reasons including: (1) a
budget deficit which required that his position be eliminated;
(2) a transfer to another correctional institution and a refusal
on his part to move or commute there; (3) the ending of a
provisional term of employment; (4) the lack of Islamic prisoners
at that prison; (5) the prisoners desire to have another Imam; or
(6) a host of other reasons having nothing to do with the prison
riot.
8
. Indeed, we note that where the only testimony for the
plaintiff was the testimony of Douglas himself, the jury returned
a verdict in favor of the appellants.
9
. Appellants have suggested two possible methods of achieving
this goal: (1) allow a limited cross-examination whereby the
appellants set forth only the facts of the Imam's discharge; or
(2) allow an extensive cross-examination and provide the jury
with a limiting instruction which explains that the purpose of
the cross-examination was simply to reveal the bias of the
witness. Without intruding unnecessarily into what properly
remains the domain of the district court, we note that either of
these methods would be a suitable technique if, as a consequence,
at a minimum be in a position to attempt to elicit from the Imam
that: (1) he exhibits some bias against appellants because he was
fired from his position at the prison due to alleged misconduct
on his part; and (2) he exhibits some bias in favor of prisoners
like Douglas as revealed by his refusal to participate in the
investigation.10 Because we conclude that the district court
unduly limited the scope of cross-examination, we will remand
this matter to the district court for a new trial.11
B. Jury Instruction on the Use of Excessive Force
We must next decide whether the district court erred in
instructing the jury on the law governing the proper use of force
(..continued)
the jury receives adequate information with which to evaluate the
bias and credibility of the Imam.
10
. We intimate no view as to whether the evidence of the Imam's
alleged involvement with the rioting inmates or his failure to
cooperate in the investigation of the riot would be a specific
instance of conduct which could not be proved by extrinsic
evidence except as otherwise provided in Rule 608(b) of the
Federal Rules of Evidence.
11
. We are further troubled by the absence in the record of any
evidentiary ruling by the district court whereby this highly
relevant evidence was excluded. Douglas argues that the district
court implicitly performed a Rule 403 (Federal Rules of Evidence)
balancing analysis and concluded that the evidence should be
excluded. However, assuming arguendo that a Rule 403 balancing
was undertaken, we would be hard-pressed to hold that this
extremely relevant and probative evidence of the Imam's alleged
bias was "outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence." Fed. R. Evid. 403. Additionally, we are
unwilling to abdicate our appellate function and defer to the
district court when such evidentiary rulings have not been made
part of the record before us.
against prisoners. "We review a district court's rulings on
points for the jury charge for abuse of discretion." Waldorf v.
Shuta, 896 F.2d 723, 740 (3d Cir. 1990) (citation omitted). At
trial, counsel for Douglas and counsel for appellants presented
the jury with two mutually exclusive and inconsistent theories
concerning the beatings which allegedly occurred. Douglas argued
before the jury that he was beaten without provocation by prison
guards. Appellants defended on the theory that the alleged
beatings never occurred and, thus, they could not have possibly
participated in such conduct. Nevertheless, appellants also
requested the district court to charge the jury on the proper and
reasonable use of force in a prison setting.12
The district court rejected the proposed jury
instruction offered by appellants, and in its place used its own
charge regarding the use of excessive force in a prison
12
. Specifically, appellants asked the district court for the
following charge:
Not all force, push, or shove used by a prison official
should be considered excessive. Prison officials may use force
against inmates as a security measure to resolve a disturbance
that poses significant risks to the safety of inmates and staff.
The infliction of pain in the course of a prison security
measure, therefore, doe[s] not amount to cruel and unusual
punishment even if in retrospect it appears that the amount of
force used or authorized turned out to be unnecessary in a strict
sense. So, if you find that the defendants authorized use of
force in a good faith effort to maintain or restore discipline,
i.e., to make sure that institution was secure, then you must
return a verdict in favor of the defendants.
Douglas v. Owens, No. 89-1879, slip op. at 5 (M.D.Pa. May 31,
1994).
context.13 Appellants argue that the charge given by the
district court is inadequate because it fails to convey the
notion that "force is not constitutionally ``excessive' just
because it turns out to have been unnecessary in hindsight."
Appellants' Brief at 16 (emphasis in original).
13
. The district court charged the jury as follows:
The United States Constitution protects persons from
being subjected to excessive force. In other words, prison
officials may employ only the amount of force necessary under the
circumstances.
. . .
In considering the degree of force a reasonable prison
official will use, you may consider such factors as the need for
the application of force, the relationship between the need and
the amount of force that was used, the extent of the injury
inflicted, whether force was applied in a good faith effort to
maintain and restore discipline or maliciously or sadistically
for the very purpose of causing harm, the extent of the threat to
the safety of staff and inmates as reasonably perceived by
responsible officials [and] any efforts made to temper the
severity of a forceful response.
In order to prevail on his claim, plaintiff must prove
by a preponderance of the evidence that the defendants were
actually in his cellblock, and that they used physical force
against him, and that the force was applied maliciously and
sadistically for the very purpose of causing harm to the
plaintiff. To do something maliciously means to desire to harm a
person or to see a person suffer harm. To do something
sadistically means to inflict pain on the person for one's own
pleasure.
The United States Constitution protects persons from
being subjected to excessive force. Prison officials may not act
with deliberate indifference to the safety of prisoners.
. . .
To prevail in this claim, plaintiff must prove that
those defendants were actually in the RHU and that they saw
excessive force being applied against the plaintiff maliciously
and sadistically for the very purpose of causing plaintiff harm
and that they were in a position to stop it, but that they did
not.
App. at 271-73 (emphasis supplied).
Contrary to the position espoused by appellants, the
jury instruction adequately insulated appellants from liability
if the jury concluded that they used excessive force, even if it
is later determined to have been unnecessary. If "force was
applied in a good faith effort to maintain or restore
discipline," App. at 272 (emphasis supplied), the jury
presumably would conclude that although the use of force was
excessive, it was still justified given the circumstances.
Further, the jury was instructed that it could believe a version
of the events other than that presented by Douglas or appellants
-- a version whereby appellants used force against Douglas, but
it was not excessive, or that it was excessive, but nonetheless
appeared justified under the circumstances. App. at 268. A jury
verdict that force was justifiably used against Douglas and such
force as was used was reasonable under the circumstances was not
in accord with the contentions of any of the parties to this
litigation, but the jury could reasonably come to such a
conclusion by accepting some of the evidence offered by each
party.
A party is entitled to a jury instruction that
accurately and fairly sets forth the current status of the law.
See McPhee v. Reichel, 461 F.2d 947, 950 (3d Cir. 1972) ("It is
the responsibility of the trial judge to provide the jury with a
clear and accurate statement of the law . . . ."); Resolution
Trust Corp. v. Eason, 17 F.3d 1126, 1132 (8th Cir. 1994) (as long
as entire charge fairly and adequately contains law applicable to
case, judgment will not be disturbed on appeal); Harrison v. Otis
Elevator Co., 935 F.2d 714, 717 (5th Cir. 1991) (trial court has
broad discretion to compose jury instructions, as long as they
are fundamentally accurate and not misleading). No litigant has
a right to a jury instruction of its choice, or precisely in the
manner and words of its own preference. See Heller Int'l Corp.
v. Sharp, 974 F.2d 850, 860 (7th Cir. 1992) (district court has
substantial discretion with respect to specific wording of jury
instructions and need not give proposed instruction if essential
points are covered by those that are given); Anderson v. Branen,
17 F.3d 552, 559-60 (2d Cir. 1994) (litigant is entitled to
instruction that correctly reflects applicable law and
sufficiently covers essential issues, but party is not entitled
to prescribe exact language of that charge). We conclude that
the district court did not abuse its discretion in rejecting the
proposed jury instruction offered by appellants. The charge of
the district court was proper and adequate under the facts of
this case.
C. Special Verdict
The judge presented the jury with special verdict
questions to decide the liability issues at the time of trial.
The first question asked whether certain prison guards, including
appellant Griffith, "used force" against Douglas. App. at 310.
The second question asked whether certain prison guards (other
than Griffith) "approved of the use of force" against Douglas.
App. at 311 (emphasis added).
During the course of jury deliberations, the jury sent
a note to the judge asking if they could move Griffith from
question one to question two -- that is, the jurors wished to
consider whether Griffith had "approved of the use of force"
rather than consider if Griffith had actually himself "used
force." Apparently, the jurors did not think that Griffith
himself had used force, but rather they believed that he had
tacitly approved the use of force by failing to stop the other
prison guards who were actually using improper or unreasonable
force. The district court held that it would be proper for the
jury to modify the special verdict form and decide whether
Griffith was liable for being present during the assault and
failing to intervene.
Appellant Griffith argues that the questions submitted
to the jury were special verdict questions, and thus Rule 49(a)
of the Federal Rules of Civil Procedure should be applied in
reviewing the propriety of allowing the jury to modify the
special verdict questions.14 He maintains that when special
14
. Rule 49(a) of the Federal Rules of Civil Procedure states in
relevant part:
The court shall give to the jury such
explanation and instruction concerning the
matter thus submitted as may be necessary to
enable the jury to make its findings upon
each issue. If in so doing the court omits
any issue of fact raised by the pleadings or
by the evidence, each party waives the right
to a trial by jury of the issue so omitted
unless before the jury retires the party
demands its submission to the jury. As to an
issue omitted without such demand the court
may make a finding; or, if it fails to do so,
verdict questions are submitted, if "the court omits any issue of
fact raised by the pleadings or by the evidence, each party
waives the right to a trial by jury of the issue so omitted
unless before the jury retires the party demands its submission
to the jury." Fed. R. Civ. P. 49(a). Griffith contends that
Douglas waived any right to recover against him on a claim of
"approving of the use of force" because Douglas failed to object
when Griffith's name was not included on question two of the
special verdict form at the time it was submitted to the jury.
Douglas argues that Griffith errs in characterizing the
claim before the jury as "using force." Douglas interprets the
claim more broadly and construes it generally as "excessive force
in violation of his Eighth Amendment rights." Appellee's Brief
at 16. In this way, Douglas maintains that "using force" or
"approving the use of force" were both properly before the jury
since it is just as much a violation of Douglas' constitutional
rights for Griffith to observe and approve his beating as it is
for Griffith to physically beat Douglas. Additionally, Douglas
contends that the court did not omit any issue of fact or
evidence in submitting the special verdict questions to the jury,
because the issue was in evidence by virtue of Douglas' testimony
during cross-examination.15
(..continued)
it shall be deemed to have made a finding in
accord with the judgment on the special
verdict.
Fed. R. Civ. P. 49(a) (1994) (emphasis added).
15
. See infra note 16.
The approaches adopted by both parties are flawed and
fail to address a more fundamental concern -- that is, Griffith
was never on notice of any claim that he failed to intervene
while others improperly used force against Douglas. Admittedly,
during the course of cross-examination, Douglas himself suggested
to the jury that Griffith either actually beat him or was present
during the beatings, and approved the use of force against him.16
However, although testimony elicited from Douglas during cross-
examination may have indicated to the jury that Griffith was
present, but did not participate in the unauthorized use of
force, it appears that Douglas never: (1) included this theory in
his pleadings; (2) advanced this theory to the jury while
presenting his case-in-chief; (3) argued this theory to the jury
in his closing arguments; or (4) asked that this alternative
theory of liability be included in the special verdict questions.
16
. The cross-examination of Douglas proceeded as follows:
Q. You are saying for sure Officer Ardabell, Enriquez,
Simoncini and Griffith all beat you; is that correct?
A. Officer Griffith, he was there. I don't recall him
striking any blows. But without a doubt, Officer
Enriquez, Ardabell and Simoncini were -- definitely
struck me.
Q. So Sergeant Griffith then didn't hit you. So you are
changing your story now; is that correct?
A. I believe that he hit -- he struck me. But it happened
so fast, there were barrages of punches and kicks, some
of which I wasn't able to see at the time. But I am
inclined to believe he struck me.
App. at 69-70.
The more reasoned and principled approach is to
construe the jury question and the colloquy which ensued as an
attempt by Douglas to modify the pleadings to conform to the
evidence. We believe that Rule 15(b) of the Federal Rules of
Civil Procedure contemplates exactly such a situation where a
plaintiff attempts to have a claim presented to the jury for
consideration even though that claim was not present in the
pleadings.17 See Fed. R. Civ. P. 15(b).18
After the jury sent back a question asking if it could
move Griffith from question one to question two on the special
verdict sheet, Griffith argued vehemently that this was a new
17
. Here, however, in a highly unusual situation, it was not the
plaintiff, but rather the jury who implicitly wanted this claim
to be added to the complaint. Nonetheless, once raised by the
jury, Douglas essentially argued that the pleadings should be
amended to conform to the evidence at trial.
18
. Rule 15(b) of the Federal Rules of Civil Procedure states:
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to
conform to the evidence and to raise these issues may be made
upon motion of any party at any time, even after judgment; but
failure so to amend does not affect the result of the trial of
these issues. If evidence is objected to at the trial on the
ground that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended and shall do so
freely when the presentation of the merits of the action will be
subserved thereby and the objecting party fails to satisfy the
court that the admission of such evidence would prejudice the
party in maintaining the party's action or defense upon the
merits. The court may grant a continuance to enable the
objecting party to meet such evidence.
Fed. R. Civ. P. 15(b).
claim never before presented at trial.19 Despite the lack of a
19
. The discussion of the jury question proceeded as follows:
Ms. Stoner: The plaintiff's claim was always [- -] in his
complaint, in everything he ever presented [-
-] that Griffith participated in the beating.
. . .
Ms. Stoner: [P]laintiff's claim was always that Captain
Griffith beat him. It was never that he
watched. Therefore, this is a new claim that
has been raised against Griffith. It was never
raised in any complaint or any pleading in this
action.
The Court: That is what I am going to do. If I don't let
them do it and I find that I am wrong, I have
got a new trial facing me. If I let them do it
and I find that I am wrong, I can in post-trial
motions correct the problem. I think that is
the only choice I have until we have enough time to
research it.
. . .
Ms. Stoner: [M]y objection is as stated, it is a new claim
against Captain Griffith never raised before.
. . .
Ms. Stoner: I guess my question is you have now permitted
another claim against Captain Griffith. They
have a finding. I just don't understand how
that works. How could we ever raise a question
about that and get judgment NOV?
The Court: By saying that if I have permitted another claim
and it is wrong, if I am legally wrong in this,
it would appear to me you could get judgment
NOV.
. . .
The Court: I have the complaint here. But my concern is
that the jury could very easily determine maybe
from the evidence that he didn't beat anybody,
but that he was present and other people did. I
don't know whether that makes it a new claim or
it compromises a claim.
App. at 292-95.
formal motion by Douglas to amend the pleadings, the district
court effectively permitted Douglas to amend the pleadings and
include a claim against Griffith for approving the use of force.
We review for abuse of discretion the district court's
granting of leave to amend the complaint. Berger v. Edgewater
Steel Co., 911 F.2d 911, 916 (3d Cir. 1990), cert. denied, 499
U.S. 920, 111 S. Ct. 1310 (1991).
Although the claim that Griffith approved the use of
force was not raised in the pleadings, Rule 15(b) permits
pleadings to be amended if the claim was tried by the express or
implied consent of the parties. "[I]f the issue . . . has not
been tried with the consent of the parties, then an amendment to
conform to the pleadings will not be permitted no matter when
made. 6A Charles A. Wright et al., Federal Practice and
Procedure § 1494, at 53 (1990) (emphasis added). Clearly, the
record does not support a finding of express consent by Griffith.
We must next address whether this issue was tried with
the implied consent of Griffith. As noted by the Court of
Appeals for the Fifth Circuit, a finding that an issue was tried
by implied consent depends on:
whether the parties recognized that the
unpleaded issue entered the case at trial,
whether the evidence that supports the
unpleaded issue was introduced at trial
without objection, and whether a finding of
trial by consent prejudiced the opposing
party's opportunity to respond.
Portis v. First Nat'l Bank, 34 F.3d 325, 332 (5th Cir. 1994)
(quoting United States v. Shanbaum, 10 F.3d 305, 312-13 (5th Cir.
1994)); see Acequia, Inc. v. Clinton (In re Acequia, Inc.), 34
F.3d 800, 814 (9th Cir. 1994) (plaintiff must show that defendant
understood that evidence had been used to prove the new issue and
that the new issue had been directly addressed and not
inferentially raised by incidental evidence); Yellow Freight Sys.
v. Martin, 954 F.2d 353, 358 (6th Cir. 1992) (same).
We observe that not only did Griffith not object to the
introduction of the evidence as to the claim of approving the use
of force, but it was Griffith who opened the door to this
evidence while cross-examining Douglas. Nevertheless, an issue
has not been tried by implied consent if evidence relevant to the
new claim is also relevant to the claim originally pled, because
the defendant does not have any notice that the implied claim was
being tried. Gamma-10 Plastics v. American President Lines, 32
F.3d 1244, 1256 (8th Cir. 1994), cert. denied, __ U.S. __, __ S.
Ct. __, 63 U.S.L.W. 3641 (Feb. 27, 1995) (No. 94-1188); see
Portis, 34 F.3d at 332 (if evidence of a pleaded issue and an
unpleaded issue overlaps, there is no implied consent absent a
clear indication that the party using the evidence is attempting
to raise a new issue); Acequia, 34 F.2d at 814 (same); Yellow
Freight, 954 F.2d at 358 (evidence that is relevant to a pleaded
issue as well as an unpleaded issue does not give fair notice to
the opposing party that the unpleaded issue is entering the
case).
Although the testimony elicited from Douglas arguably
was evidence relevant to whether Griffith approved the use of
force, the testimony was also relevant to whether Griffith
actually used force. Douglas' uncertainty as to whether Griffith
used force against him pointed to the weakness in Douglas'
pleaded claim (that Griffith actually used force). Regardless of
who introduced the evidence at trial, Douglas bore the burden of
notifying defense counsel that he intended to use this evidence
to prove an additional claim. Because Griffith was not on notice
that Douglas wished to argue an additional claim at trial,
Griffith cannot be said to have impliedly consented to an
amendment of the pleadings.20 Finally, it is obvious that
Griffith was severely prejudiced at such a late stage in the
proceedings when the district court effectively permitted Douglas
to amend the pleadings and allowed the jury to consider another
theory of liability against Griffith without Griffith having had
the opportunity to defend against this new claim.
Because Douglas failed to assert his claim in a timely
manner and this failure prejudiced Griffith, judgment as a matter
of law must be granted against Douglas and in favor of Griffith
on the belated claim that Griffith "approved of the use of
force."21
20
. It is contrary to the record for Douglas to even suggest
that he was attempting to prove this additional claim at trial.
As mentioned previously, it appears that Douglas never: (1)
advanced this theory to the jury while presenting his case-in-
chief; (2) argued this theory after the evidence was elicited
during cross-examination; (3) argued this theory to the jury in
his closing arguments; or (4) asked that this alternative theory
of liability be included in the special verdict questions. In
fact, we are confident that had the jury never sent a question to
the court, this additional theory of liability would never have
been pursued by Douglas.
21
. The only claim properly asserted at trial and preserved for
jury consideration against Griffith is that he personally used
III. Conclusion
We will reverse the judgment of the district court and
remand for a new trial because the district court abused its
discretion by improperly limiting the scope of cross-examination
of a key witness for the plaintiff. We affirm the ruling of the
district court which rejected the appellant's proposed jury
charge. The charge of the district court adequately set forth
the law governing the appropriate use of force against prisoners.
Finally, as to the special verdict issue, we conclude that the
district court erred in allowing the jury to render a verdict
finding appellant Griffith liable for approving the use of
excessive force, when the only theory of liability tried before
the court and submitted to the jury was that Griffith actually
participated in an improper beating. We will direct the district
court to enter judgment in favor of Griffith on the claim against
him.
(..continued)
excessive force against Douglas. As to that claim, the district
court concluded that, "[t]he testimony admittedly does not
support the allegation that defendant Griffith actually beat
Plaintiff." Douglas v. Owens, No. 89-1879, slip op. at 2. We
agree that judgment as a matter of law was properly granted
against Douglas and in favor of Griffith on Douglas' claim that
Griffith used excessive force against him. Although we have
earlier concluded that a new trial is warranted due to the
improper limitation on the scope of cross-examination, appellant
Griffith will be dismissed, since the jury did not return a
verdict against him on the only theory of liability that was
properly presented for its consideration. Douglas may proceed
with a new trial against Simoncini, Enriquez, and Ardabell.
Douglas v. Owens, No. 94-7406
NYGAARD, Circuit Judge, dissenting.
I believe the issue in this case is very close.
Nonetheless, I dissent because I would, in cases such as this,
give greater deference to the discretion exercised by the
district court, than appellant would have us give. To do
otherwise further obscures the already-blurred line demarcating
the boundary between the plenary and abuse of discretion
standards of review. I consider reversing the district court's
decision here to be the antithesis of the holding the majority
cites that:
[t]rial judges retain wide latitude to impose
reasonable limits on cross-examination based
on concerns about, among other things,
confusion of the issues or interrogation that
is repetitive or only marginally relevant.
United States v. Baptista-Rodriguez, 17 F.3d 1354, 1370-71 (11th
Cir. 1994). I conclude that the trial judge acted within her
sound discretion, and would affirm.
What the appellant invites us to perform here is
essentially a plenary review of a discretionary decision that
simply cannot and, moreover, should not be reviewed de novo. The
myriad of twists and turns in a trial, the shifting biases as
evidence comes before the factfinder, and the entire personality
and flavor of a trial cannot be adequately conveyed in the cold
record we review on appeal. Hence, we have standardized review
to grant the district courts "wide latitude" to limit cross-
examination, and to make numerous other evidentiary decisions,
subject only to a review for whether they abused that discretion.
Not from any argument given us by the appellant, nor by any
definition of the word, can I consider "abuse" an appropriate
label for the district court's discretion on this singular
judgment call.
At sidebar, appellant's counsel argued to the district
court that she be permitted to reveal to the jury that "[Sabir]
was terminated by the department. ..." That is precisely what
the court allowed her to do.22 In her argument to the district
court, counsel mentioned, without citing any source of proof,
that "[Sabir] was terminated" for "alleged involvement with the
rioting inmates." Nonetheless, she did not persist on this
point, and I deduce from the substance of the sidebar that the
real argument was whether the word "fired" or "terminated" more
accurately describes how Sabir was separated from the chaplaincy.
(See Maj. typescript at 6, n.4). Moreover, I consider the subtle
differences between the use of the word "terminated" and the use
of the word "fired" to be the type of evidentiary "fine tuning"
that is unbecoming when done by appellate judges, who review the
evidence in a vacuum relieved only by a printed record. Either
22
. The attorneys had earlier agreed that plaintiff's counsel
would not elicit from a correction officer/witness the reason why
she was discharged because they considered this evidence to be
irrelevant.
word implies that he did not leave voluntarily. I reject
appellant's argument on this issue.
Next, even if I were to conclude that this decision by
the district court was an abuse of its discretion, I believe the
error is harmless. Indeed, the testimony the Imam offered, even
when taken in the light most favorable to appellee, is the
following:
1. that the plaintiff was "in a shameful manner,"
A73;
2. that Douglas "said he was being harassed by the
officers," A74;
3. that Douglas was naked in his cell and "had
abrasions or bruises in the chest area and around the neck area,"
and "was sick with a cold," A74-75;
4. that Lieutenant Spells "said to me that the
atmosphere, that there was nothing he could really do in
reference to getting medication because of the atmosphere in the
prison ... his hands was [sic] tied. And even if he wanted to do
something, he couldn't do it," A76-77;
5. the testimony most damaging to the defendants was
Sabir's nonresponsive conclusion that the bruises "signalled to
me that he had been beaten." To this appellant objected, but
then did not even follow with a request that the Imam's statement
be stricken.
The gravamen of Douglas' complaint is that a number of
correctional officer defendants "did in fact, acting under the
color and authority of Pennsylvania state law, beat, stumped
[sic] and kicked plaintiff Andre Douglas in the head, arms, back
and legs while plaintiff was handcuffed and naked," and that
other officers during this beating "did not make an attempt to
stop them." A20-21. Hence, what is at issue is whether some
defendants beat Douglas, while others stood idly by. The
defendants flatly denied the allegations. On that point, when
asked if he saw "any of these defendants assault Mr. Douglas,"
Sabir answered, "No, I can honestly say no." A80.
Finally, defendants' reason for wanting this line of
inquiry before the jury was ostensibly to discredit the witness
by attempting to show bias. This argument also fails. A
significant point we recognize, as the district court no doubt
did, but which the appellant conveniently elides, is that Sabir
was not terminated by the defendants. Indeed, they were co-
employees of the same facility. Nor was it shown, offered or
even suggested that Sabir harbored some bias towards the
defendants -- if indeed he harbored any at all. In sum, the
whole line of inquiry was simply irrelevant to what was at issue
in the trial.
I conclude that the district court committed no
reversible error. The most critical testimony Sabir offered was
that plaintiff was beaten; and this, although nonresponsive and
improper, was not requested to be stricken. Whether the witness
was biased against his former employer is not relevant to these
defendants and whether the jury believed Sabir's testimony is not
relevant to the issue of who beat Douglas. On that critical
point, Sabir's testimony was as favorable to the defendants as to
the plaintiff. Finally, as the district court concluded, and
with which I concur, permitting the defense to explore the
reasons only "alleged" for Sabir's termination, and then the
plaintiff to engage in the rehabilitative explanations which were
destined to follow, was likely to create the distracting "trial
within a trial" which tends to confuse jurors, obfuscate the real
issues, and which courts laudably seek to prevent. I find no
abuse in the court's discretionary decisions. I would affirm.