Petition — Bishop v. Furtado

In the |

Supreme Court of the United States

Ootorer TERM, 1979

No.

4% <> gt ge ¢r

=m Ba gon FY §

esse one

HAROLD BISHOP, et al.

PETITIONERS,

Vv.

JOHN FURTADO and GERALD SOUSA,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Franois X. BELLOTTI

Attorney General

Ler Cart BRoMBERG

Special Assistant

Attorney General

31 Milk Street

Boston, Massachusetts 02109

(617) 426-6464

Blanchard Press, Inc., Boston, Mass. — Law Printers

“OX

SO Re hee em . .- +2

TABLE OF CONTENTS

Page

Opinions Below ...............-. Ee? Gr. os,. 3 ae

Dei hs os Rea go 2

Questions Presented ..............---. 2

Constitutional, Statutory and Evidentiary Provisions

I er ako er 3

Statement of the Case......... ee 3

Reasons for Granting the Writ ..................--. 8

I. The Holding of the Court of Appeals Stripped

Petitioner Butterworth of His Qualified Good

Faith Immunity Defense in Conflict With This

Court’s Decision in Procunier v. Navarette.... 8

II. The Decision of the Court of Appeals Upholding

the Admission of a Hearsay Affidavit Under

Federal Rule of Evidence 804(b)(5), Without

Requisite Pretrial Notice Raises an Impor-

tant Issue With Constitutional Implications on

Which the Cireuit Courts Have Made Conflicting

a See 11

III. The Theory That Petitioners’ Peapator of Re-

spondents to Segregation for Improper Motives

Violates Respondents’ Rights Under the Eighth

and Fourteenth Amendments Is Erroneous as a

Matter of Law and in Conflict With Rulings of

Tie a eek eee... 16

IV. The Trial Court’s Jury Instruction on the

Highth Amendment Use of Excessive Force

Claim, Which the Court of Appeals Upheld as

Not Plainly Erroneous, Is in Conflict With the

Rulings of Other Cireuit Courts and With the

Principles Announced by the Supreme Court. 19

Sp RE ig SL ES 22

il Table of Contents

Page

Appendix A | , A-1

Appendix B |. eee B-1

Appendix C ere eee aae C-1

TABLE OF CITATIONS

Cases

Daigle v. Hall, 564 F.2d 884 (1st Cir. 1977) 17, 18

Estelle v. Gamble, 429 U.S. 97 (1977) .......----. 18, 20

Four Certain Unnamed Inmates v. Hall, 550 F.2d 1291

(1st Cir. 1977) ) a i

Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972) 21

Hutto v. Finney, 437 U.S. 678 (1978) ....... 18

Ingraham v. Wright, 430 U.S. 651 pg } Beier 18

Johnson v. Avery, 393 U.S. 483 (1969) oe 10

Lombardo v. Meachum, 548 F.2d 13 (1st Cir. 1977) . 17

Meachum v. Fano, 427 U.S. 215 (1976) 3, 15, 16, 17, 18

Meredith v. State of Arizona, 523 F.2d 481 (9th Cir.

1975) . z 21

Montanye v. Hames, 427 U. S. 236 (1976) | 16, 17, 18

Mukmuk v. Commissioner of Department of Correc-

tional Services, 529 F.2d 272 (2nd Cir.), cert. denied,

426 U.S. 911 (1976) . oa areas 21

Nolan v. Scafati, 430 F. 2d 540 (1970) - Aes , 10

Procunier v. Navarette, 434 U.S. 555 (1978) mee

United States v. Bailey, 581 F.2d 341 (3rd Cir. 1978) 13

United States v. Carlson, 547 F.2d 1346 (8th Cir. 1976) 13

United States v. Davis, 571 F.2d 1354 (5th Cir. 1978). 12

United States v. laconetti, 540 F.2d 574 (2nd Cir. 1976) 14

United States v. Mandel, 591 F.2d 1347 (4th Cir. 1979),

reversed without discussion, en bane, July 20, 1979 12

United States v. Oates, 560 F.2d 45 (2nd Cir. 1977)

12, 13, 14

Table of Contents iii

Page

United States v. Ruffin, 575 F.2d 346 (2nd Cir. 1978)

12, 13, 14

Constitutional Provisions

United States Constitution,

Amendment VIII.......... 2, 8, 14, 15, 18, 19, 21, 22

Amendment XIV... viis.e... SE 2B BN,

Statutes

oe UMC. 4 URE)... -. «se eee ee 2

BT a ee a ee Oe 3, 5

Federal Rules of Evidence,

Bale 804(6)(5) .......:----- 2, 3, 8, 11, 12, 13, 15

Miscellaneous

Developments in the Law—Section 1983 and Federal-

ism, 90 Harv.L.Rev. 1133 (1977) .......---.----5>- 21

Stein, ‘‘Recent Developments in the Federal Rules of

Evidence,’’ Boston Bar Journal, Sept. 1979 ...... 14, 15

In the

Supreme Court of the United States

Octoser TERM, 1979

No.

HAROLD BISHOP, et al.,

PETITIONERS,

v.

JOHN FURTADO and GERALD SOUSA,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioners Harold Bishop, et al.,’ respectfully pray

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the First

Cireuit entered in this proceeding on July 26, 1979.

1 Petitioners, prison administrators and corrections officers, are

Harold Bishop, William Butler, Frederick Butterworth, Donald

Camara, Philip Carvalho, Lee Davis, Leo Flanagan, Wilfred

Forcier, Michael Gilmore, John J. Kalinowski, Thomas McLaugh-

lin, James Medas, Roger Paley, Rene Saulnier, and Laurence

Scholes.

Opinions Below

The opinion of the Court of Appeals, not yet reported,

appears as Appendix A hereto. The opinion on post-trial

motions of the District Court for the District of Massachu-

setts, dated April 20, 1978, and the judgment dated Septem-

ber 12, 1978, are unreported and appear as Appendix B

hereto.

Jurisdiction

The judgment of the Court of Appeals for the First

Cireuit was entered on July 26, 1979, and this petition for

certiorari was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

Questions Presented

1. Whether a jury instruction on a prisoner’s claim of

interference with his correspondence is constitutionally

adequate where it fails to inform the jury of a public

official’s right to a qualified immunity defense as defined

in Procunier v. Navarette.

2. May the hearsay affidavit of a deceased attorney be

admitted to prove alleged civil rights violations where the

proponent has failed to give notice in advance of trial of

intention to offer it and fails to make a proper showing of

trustworthiness as required by Rule 804(b)(5) of the Fed-

eral Rules of Evidence?

3. Whether transfer of a prisoner to segregated con-

finement constitutes cruel and unusual punishment absent

an independent due process violation.

4. Whether liability on a prisoner’s claim of excessive

force in violation of the Eighth Amendment can be estab-

lished in the absence of a finding that the challenged con-

3

duct was shocking, barbarous, malicious, wanton, brutal

or at least reckless?

Constitutional, Statutory and

Evidentiary Provisions Involved

This case involves the Eighth Amendment to the United

States Constitution, the Due Process Clause of the Four-

teenth Amendment to the United States Constitution, the

Civil Rights Act, 42 U.S.C. § 1983, and Rule 804(b) (5) of

the Federal Rules of Evidence, each of which is set out,

verbatim, in Appendix C hereto.

Statement of the Case

This case arose in 1970 when two prisoners were rou-

tinely transferred to segregation after being cited for

drunkenness and for refusing to obey orders. The pris-

oners claimed excessive force was used. Trial was delayed

without explanation until 1978, at which time plaintiffs

pressed the claim, discredited in Meachum v. Fano, 427 USS.

215 (1976), that their civil rights had been violated by a

wrongful transfer. They obtained a substantial damage

award based upon acceptance by the trial court of plain-

tiffs’ erroneous theories of constitutional deprivation, and

upon mishandling of crucial evidentiary issues. In permit-

ting the judgment on the constitutional claims to stand as

not plainly erroneous, the Court of Appeals came into con-

flict with several recent decisions of this Court.

The plaintiffs below, John Furtado and Gerald Sousa,

were prisoners at the Massachusetts Correctional Institute

(hereinafter ‘‘MCI’’) at Walpole, the state’s maximum

security prison, on March 21, 1970. That evening they

attended a banquet in the prison auditorium sponsored by

a prison drug program. Prison officials observed them

+

returning to their cells after the banquet, apparently under

the influence of alcohol or drugs, and a search of their cells

for contraband was ordered. Sousa at first cooperated with

a command that he be moved to a segregated area in Cell

Block 9. However, he refused to enter Cell Block 9 and

had to be forcibly escorted into a cell there. Furtado

resisted efforts to remove him from his cell. During a

violent struggle he and several officers tumbled into wooden

chairs set up in his cell block. He continued to resist and

had to be carried out of the cell block by four men who

placed him in a separate segregated area. Both men were

seen immediately by inmate nurses. Sousa had a torn

finger nail. Furtado had bleeding from his mouth and pain

in his jaw. Hospital x-rays o% the morning of March 23,

1970 revealed no injuries for Sousa. Furtado’s x-ray

showed ‘‘a minute cortical crack in the... lower mandible

without displacement, separation or deformity.’’ The pris-

oners were returned to MCI Walpole after their x-rays,

where they were temporarily held in separate, segregated

areas.

Several correction officers involved in the March 21 trans-

fers wrote disciplinary reports that night in which they

charged Sousa and Furtado with being ‘‘under the influ-

ence,’’ and with refusal to obey a lawful order, and de-

scribed their resistance to the efforts of the officers to move

them. Deputy Superintendent Butterworth reviewed these

reports when he returned to the institution in the morning

on Monday, March 23, and discussed the ineidents with

Superintendent Moore and several of the correction offi-

cers involved. He also met with State Police Officer Reilly,

assigned by the Norfolk County District Attorney to inves-

tigate the incidents, at the request of Superintendent

Moore that morning. After his investigation, Butterworth

recommended to Moore that Sousa and Furtado be trans-

ferred to separate departmental segregation units (herein-

5

after ‘‘DSU’’), in the interest of maintaining order and

security in the general population cell blocks of MCI

Walpole.

While housed temporarily in Cell Block 9, Sousa wrote

a number of letters. On March 23 he wrote to the Norfolk

County District Attorney seeking an investigation of his

claim that the correction officers had used excessive force

in overcoming his resistance to the transfer order on March

21. By the time this letter was received on March 26,

Officer Reilly had already interviewed Sousa and Furtado

as part of his investigation. On March 24 Sousa wrote to

Dr. Miriam Van Waters, then Superintendent of MCI

Framingham; Butterworth returned this letter to Sousa

and asked him to delete the name of an officer before send-

ing it out. Sousa wrote Dr. Van Waters again on March 27

and also wrote Chief Judge Charles Wyzanski on March

26. At the trial eight years later Sousa successfully con-

tended that Butterworth had stopped these letters. On

April 1, Sousa was visited by Attorney Claude Cross, who

came to confer with him on his legal claims at the request

of Dr. Van Waters. Cross met with Butterworth before

and after he visited Sousa, and was interviewed by State

Police Officer Reilly on April 3.

Later in April, the MCI Walpole disciplinary board

found Sousa and Furtado guilty of violation of prison rules

during their moves on March 21. Upon Moore’s recom-

mendation, Commissioner of Correction Fitzpatrick trans-

ferred Furtado to DSU Walpole and Sousa to DSU Bridge-

water, where they each spent approximately six months.

At trial, both prisoners recovered damages for these trans-

fers. Both prisoners were thereafter returned to general

population at MCI Walpole.

On December 8, 1970, Sousa and Furtado filed suit under

42 U.S.C. § 1983, claiming that they had been beaten during

the transfers of March 21, that officers had filed false

reports to cover up the beatings, and that the false re-

ports, suppression of Sousa’s letters and their placement

in DSU were all part of a conspiracy by defendant prison

administrators and officers to prevent them from asserting

legal claims. Extensive discovery proceedings were had

over the next several months. However, in October 1971

the case became dormant, and plaintiffs failed to prosecute

this action for more than six years.

Plaintiffs filed a second amended complaint just before

trial in 1978, alleging, in substance, that their rights under

the Eighth Amendment and under the Fourteenth Amend-

ment Due Process Clause had been violated by their trans-

fers to DSU. Trial before a jury of six was marked by

frequent disputes about plaintiffs’ theories of constitu-

tional violations, which the District Court resolved in

favor of plaintiffs in various mid-trial rulings, and in its

instructions to the jury. Thus the Court instructed the

jury that in 1970, Sousa ‘‘had a right to write to Dr. Van

Waters and to Judge Wyzanski,’’ and that Butterworth

was liable for damages in 1978 if in 1970 he had suppressed

the second letter to Dr. Van Waters and the letter to Judge

Wyzanski, even in the absence of malice on his part. As

proof that Butterworth had stopped the letters the trial

court admitted, over defense objection, the hearsay affi-

davit of the since-deceased Attorney Cross regarding a

meeting he had had with Butterworth on April 1, 1970,

just after he had conferred with Sousa about his legal

claims. The Court also instructed the jury, in substance,

that defendants could be held liable for an Eighth Amend-

ment violation if they used improper or unreasonable force

on the night of March 21, notwithstanding the absence of

malicious, wanton, reckless or shocking conduct by de-

7

fendants. The trial court also admitted, over defense ob-

jection, testimony of Sousa and Furtado about conditions

they had experienced in DSU in 1970, in support of their

claim that their constitutional rights had been violated by

their transfers to segregation.

The case was submitted to the jury for verdict and for

answers to eleven special interrogatories. The jury

answered that certain defendants used improper physical

force against Furtado and Sousa, and awarded compense-

tory damages of $8000 to Furtado and $4500 to Sousa, but

declined to award punitive damages. The jury answered

further that Butterworth and Scholes had made an inten-

tionally false report or recommendation with the purpose

or expectation that it would lead to the segregated confine-

ment of Furtado, and that Butterworth and Saulnier had

done the same with respect to Sousa. The jury awarded

compensatory damages for segregation of $1000 to Fur-

tado and $9000 to Sousa, but declined to award any puni-

tive damages for segregation. In answer to interrogatory

9, the jury indicated that Butterworth had suppressed ‘‘the

second letter to Dr. Van Waters’’. They further answered

(interrogatory 10) that Butterworth had suppressed a let-

ter to Judge Wyzanski, and (Interrogatory 11) that But-

terworth recommended segregation for Sousa because of

his writing to Dr. Van Waters and/or Judge Wyzanski.

With respect to each of the three questions regarding

Sousa’s letters the jury awarded compensatory damages

of $1000 and punitive damages of $1000 against Butter-

worth. After deleting $1000 in compensatory damages

against Butterworth as redundant, and adding interest to

the date the complaint was filed and attorneys’ fees and

costs, the District Court entered judgment in the total

amount. of $56,444.45.

In affirming plaintiffs’ damage recovery of $27,500 on

appeal, the First Circuit upheld the jury instructions with

8

respect to the correspondence claims because, although

‘‘the rights of prisoners to send routine correspondence

were unclear until 1974,’’ ‘‘a strong argument can be made

that . . . intercepting these letters would violate Sousa’s

right of access to the courts.’’ Similarly, though the in-

struction on the Eighth Amendment excessive force claim

‘‘is perhaps open to criticism on the ground that it did not

expressly require a finding that the force used was shock-

ing or violative of universal standards of decency,’’ it was

not so defective as to amount to plain error. The Court

of Appeals also upheld ‘‘plaintiffs’ theory of recovery for

segregated confinement’’ on the ground that it was not

plainly erroneous. Though troubled by the District Court’s

treatment of the issues of trustworthiness and pre-trial

notice under Federal Rule of Evidence 804(b)(5) in the

admission of dead Attorney Cross’ affidavit, the Court of

Appeals nonetheless finds indications of trustworthiness

and reasons for dispensing with the notice requirement of

the rule. The Court of Appeals struck the pre-judgment

interest award as not properly submitted to the jury, and

vacated the attorney’s fees award for recomputation on

remand.

Reasons for Granting the Writ

I. Tue Houpine or tHE Court or APPEALS STRIPPED PETI-

TIONER ButrerwortH oF His Qvauiriep Goop Fait

Immunity Derense in Conruict WitH Txis Covurt’s

Decision 1x Procunier v. Navarette.

The right of a prison official like Butterworth to a

qualified good faith immunity defense against charges of

interference with prisoner correspondence in 1970 was

made clear by this Court in Procunier v. Navarette, 434

U.S. 555, 562-63 (1978) :

9

“Under the first part of the Wood v. Strickland

rule, the immunity defense would be unavailing to

petitioners if the constitutional right allegedly in-

fringed by them was clearly established at the time

of their challenged conduct, if they knew or should

have known of that right, and if they knew or should

have known that their conduct violated the constitu-

tional norm. Petitioners claim that in 1971 and 1972

when the conduct involved in this case took place there

was no established First Amendment right protecting

the mailing privileges of state prisoners and that

hence there was no such federal right about which

they should have known. We are in essential agree-

ment with petitioners in this respect and also agree

that they were entitled to judgment as a matter of

law.”’

At a bench conference on the record, the trial court ac-

knowledged the teaching of Navarette, which had been

issued less than a month prior to the commencement of

trial below, but subsequently declined to instruct the jury

consistently with it. Instead the trial court instructed the

jury that Butterworth could be held liable in damages if

the second letter to Dr. Van Waters ‘‘was not sent out,”’

or, if the letter to Judge Wyzanski was ‘‘even opened.”’

This over-simple instruction permitted the jury to mulct

Butterworth in damages for his actions eight years earlier

without first making the requisite finding of bad faith,

malice, or consciously wrongful conduct on his part, and

effectively stripped Butterworth of his qualified immunity

defense. The decision of the Court of Appeals upholding

the District Court judgment on the correspondence claims

10

places it in conflict with this Court’s opinion in Navarette,

and re-exposes public officials to damages for their good

faith actions taken in areas of unsettled constitutional law.

That Sousa’s letters sought legal assistance does not

alter Butterworth’s right to a qualified immunity defense,

contrary to the opinion of the Court of Appeals. Johnson

v. Avery, 393 U.S. 483 (1969), did not alert Butterworth

to any requirement that every letter seeking legal assist-

ance must pass untouched. Rather, it established the gen-

eral right of an inmate to reasonable access to the courts.

Moreover, no definitive ruling on prisoner correspondence

was available in the First Circuit until Nolan v. Scafati,

430 F.2d 540 (1970), decided almost five months after the

acts here in issue on August 14, 1970 as Justice Stevens

recognized in his dissent in Navarette, 434 U.S. at 573, n.9.

A prison official, like Butterworth, cannot reasonably be

held accountable for a rule of constitutional law in a com-

nlex area, which is not explicated by the courts themselves

until several months after his alleged improper conduct.

Nor should his testimony that he did not stop Sousa’s

letters deprive him of his good faith defense, particularly

where the events in question are eight years old. Butter-

worth’s memory may well have been clouded by several

years of scrupulous compliance with constitutional rules

established in the interval between 1970 and 1978. He is

still entitled to the defense that his actions as found by

the jury, if not taken in bad faith, will not support a

damage award in an unsettled area of constitutional law.

It is erucial to the forthright exercise of discretionary

authority by countless public officials that their right to

rely upon a qualified good faith immunity defense to dam-

age claims, as enunciated in recent decisions of this Court,

not be impaired as the Court of Appeals permitted in the

instant case.

11

Il. Tue Decision or tHE Covrt or AppEaLs UPHOLDING

THE ApMISSION oF A Hearsay AFFIDAVIT UNDER FEDERAL

Ruxe or Evience 804(b) (5), Wirnout Requisite Pre-

vrtaL Notice Raises aN Important Issvz Witu Con-

STITUTIONAL IMPLICATIONS ON WHICH THE CIRCUIT

Courts Have Mave Conriictinc RULINGs.

Rule 804(b)(5) of the Federal Rules of Evidence (here-

inafter ‘‘FRE’’) provides, where the declarant is unavail-

able as a witness, for the admission as an exception to

the hearsay rule of

‘A statement not specifically covered by any of the

foregoing exceptions but having equivalent circum-

stantial guarantees of trustworthiness, if the court

determines that (A) the statement is offered as evi-

dence of a material fact; (B) the statement is more

probative on the point for which it is offered than

any other evidence which the proponent can procure

through reasonable efforts; and (C) the general pur-

poses of these rules and the interests of justice will

best be served by admission of the statement into

evidence. However, a statement may not be admitted

under this exception unless the proponent of it makes

known to the adverse party sufficiently in advance of

the trial or hearing to provide the adverse party with

a fair opportunity to prepare to meet it, his intention

to offer the statement and the particulars of it, in-

cluding the name and address of the declarant.”

Though troubled by the way the triai court handled the

matter, the Court of Appeals here upheld the admission

of the hearsay affidavit of a deceased attorney, despite the

failure of plaintiffs to provide any advance notice, as man-

dated by the last sentence of FRE 804(b) (5). In substance,

12

Attorney Cross stated, in an affidavit he made in December

1970, that at his meeting with Butterworth on April 1,

1970, Butterworth told him he had stopped two letters

written by Sousa to Dr. Van Waters and Judge Wyzanski.

The circumstances under which plaintiffs produced the

Cross affidavit are a particularly egregious example of

violation of the notice requirement. Plaintiffs first made

the startling maneuver of interrupting their first witness

on the first day of trial to call Butterworth, the highest

ranking defendant, as their own witness, Then, apparently

alerted by something Butterworth said on cross-examina-

tion by his own counsel, plaintiffs pulled the Cross affidavit

out of their files, with no notice whatsoever, and success-

fully introduced it, over objection, on their redirect of

Butterworth. A clearer violation of the policy behind the

pre-trial notice requirement of FRE 804(b)(5) is difficult

to imagine. The decision of the First Cireuit upholding

admission of this hearsay affidavit is contrary to the ex-

plicit language of FRE 804(b)(5) and contrary to the

weight of sound authority, which insists that ‘‘Congress

intended that the requirement of advance notice be rigidly

enforeed.’’ United States v. Oates, 560 F.2d 45, 72-73, n.30

(2d Cir. 1977); United States v. Ruffin, 575 F.2d 346, 358

(2d Cir. 1978); United States v. Mandel, 591 F.2d 1347

(4th Cir. 1979), reversed without discussion, en bane, July

20, 1979; United States v. Davis, 571 F.2d 1354, 1360, n.11

(5th Cir. 1978).

The First Circeuit’s reading of the legislative history of

FRE 804(b) (5), summarized in footnote 13 of the opinion,

is consistent with these authorities. Nevertheless, the Court

justified its departure from the notice requirement of the

rule as follows:

‘Tf, in upholding the affidavit’s admission, we are

reading the rule somewhat more liberally than other

13

courts, we do so because, unlike the vast majority of

cases interpreting the rule, this is a civil case. Where

there is no constitutional right of confrontation impli-

cated by the rule, we think slightly freer play can be

given to the discretion of the trial judge in admitting

evidence under it. See United States v. Bailey, supra,

581 F.2d at 350-51; United States v. Medico, supra,

557 F.2d at 314 n.4. Nevertheless, we warn parties

that they fail to give pretrial notice under the rule at

their peril, and we expect trial judges to consider

carefully statements offered under residual exceptions

to the hearsay rule.’’ (A. 21)

It is plain, however, that application of FRE 804(b) (5)

in the instant case implicates the right of Butterworth and

all the defendants to due process of law just as surely as

the right of confrontation is implicated in a criminal case.

Defendants are thus entitled to strict adherence to the

Federal Rules of Evidence to protect their constitutional

rights. Hence the Court of Appeals’ ruling, which dis-

pensed with the pre-trial notice requirement, raises an

important question and poses a serious conflict with the

language of the rule itself and with the other circuits.

Some flexibility has been introduced into the notice re-

uirement, by cases in conflict with the position stated in

Oates and Ruffin, where the failure to give notice was not

the fault of the proponent. Thus where the government was

surprised at trial by the refusal of a co-defendant or wit-

ness to live up to a previous agreement to testify, and

defense counsel has an opportunity to prepare to meet

them, prior hearsay statements may be admitted. United

States v. Bailey, 581 F.2d 341, 348 (3d Cir. 1978) ; United

States v. Carlson, 547 F.2d 1346, 1855 (8th Cir. 1976).

Similarly, where the need to use hearsay statements does

not become apparent until mid-trial, the hearsay offered

|

14

consists of prior statements by witnesses who appeared at

trial, and the proponent gave notice on a Friday of inten-

tion to use the hearsay statements the following Monday

in rebuttal, the notice requirement will be deemed satisfied,

but ‘‘only in those situations where requiring pre-trial

notice is wholly impracticable.’’ United States vy. laco-

netti, 540 F.2d 574 (2d Cir. 1976). In the instant case,

however, the First Cireuit has opened a wholesale exemp-

tion from the notice requirement for civil cases, and thus

has raised a serious conflict with those authorities which

have permitted waiver of pre-trial notice under strictly

limited circumstances.

Under the circumstances of the instant case, strict en-

forcement of the pre-trial notice requirement is called for,

as enunciated in the legislative history and in Ruffin and

Oates. The constitutional rights implicated by the rule,

whether in a civil rights case or a criminal trial, mandate

rigid enforcement of the prior notice requirement, to

afford full due process protections to defendants. In addi-

tion, as one commentator has stated with respect to waivers

of the notice requirement:

‘‘The problem with allowing such an exception is that

it has a tendency to swallow the rule. As noted earlier,

in Iaconetti the court cautioned against waiver of

advance notice as a general proposition. But once the

trial is in progress, and the statement is presented

to the judge, the temptation to admit it is strong.

This is illustrated by the Leslie case, [542 F.2d 285

(5th Cir. 1976)] where hearsay statements of co-

defendants were admitted in rebuttal. The court held

that there was no harm because the defendant should

have anticipated the use of these statements. Part

of the rationale was that ‘since the evidence was con-

flicting . . . the jury could use all the help it could get.

Leslie, supra, 542 F.2d at 291.

15

Stein, ‘‘Recent Developments in the Federal Rules of Evi-

dence,’’ Boston Bar Journal, September 1979, pp. 20-31,

at p. 26. The hearsay statement presented to the judge

in mid-trial may be expected always to look like something

the defense should have anticipated, and it is likely that

it will almost always take the defense by surprise to its

unjust disadvantage, in derogation of Congress’ stated

policy for inserting the pre-trial notice requirement.

In any event, the conflicts among the rulings of the

Courts of Appeals indicate the need for guidance from

this Court on whether FRE 804(b)(5) can ever be inter-

preted to waive the pre-trial notice requirement, consistent

with the constitutional rights of defendants.

Il]. Tue Tueory Tuat Petitioners’ TRANSFER OF RESPOND-

ENTS TO SEGREGATION FoR ImpRoPER Motives VIOLATES

REsponpENTs’ Ricuts UNper THE E1cHTu anp Fovr-

TEENTH AMENDMENTS Is Erroneovs as A MATTER OF

Law anp 1x Conruicr Witx Rvurnes or Tus Court.

Plaintiffs contended that their transfers to DSU were

engineered by defendants as a cover-up of use of excessive

force on the night of March 21 and that they were there-

fore entitled to recover, under the Eighth and Fourteenth

Amendments, for the ‘‘punishment’’ of the transfers and

for the conditions they endured in DSU.? The jury awarded

substantial damages based upon this claim, which, however,

is erroneous as a matter of law.

In Meachum v. Fano, 427 U.S. 215 (1976), this Court

held that no liberty interest within the protection of the

Due Process Clause of the Fourteenth Amendment is im-

plicated by the transfer of a Massachusetts state inmate

2 Plaintiffs explicitly eschewed an Eighth Amendment conditions

claim in favor of an attack upon the transfers. See Appendix,

p. A-10.

16

from one prison within the state to another with more

severe conditions of confinement. The companion case of

Montanye v. Haymes, 427 U.S. 236, 242 (1976), in holding

due process protections inapplicable to intrastate transfer

of a New York state prisoner, made it clear that charac-

terization of the transfer as disciplinary or punitive was

immaterial. The Court concluded that a prisoner facing

transfer to higher custody status has no right to Due

Process Clause protections of any kind, ‘‘absent some right

or expectation rooted in state law that he will not be

transferred except for misbehavior or upon the occurrence

of other specified events.’’ Montanye, 427 U.S. at 242. Due

process claims by Massachusetts prisoners who had been

transferred to higher custody status were dismissed _ be-

cause

‘‘Massachusetts law conferred no right on the prisoner

to remain in the prison to which he was initially as-

signed, defeasible only upon proof of specific acts of

misconduct,’’

427 U.S. at 226, and because

‘‘no legal interest or right of these [prisoners] under

Massachusetts law would have been violated by their

transfer whether or not their misconduct had been

proved in accordance with procedures that might be

required by the Due Process Clause in other circum-

stances,’’

Id. at 228. In words strikingly applicable to plaintiffs’

contentions in the trial below, the Meachum Court stated

that a prisoner had no right to Fourteenth Amendment

Due Process protections ‘‘as long as prison officials have

17

discretion to transfer him for whatever reason or for no

reason at all’’ (emphasis added). Id.

Shortly after Meachum and Montanye were handed down,

the Court of Appeals for the First Circuit had occasion

to address and reject a series of inmate Fourteenth Amend-

ment claims almost identical to that asserted here by

plaintiffs. Daigle v. Hall, 564 F.2d 884 (1st Cir. 1977) trans-

fer to DSU); Four Certain Unnamed Inmates v. Hall, 550

F.2d 1291 (1st Cir. 1977) (same) ; Lombardo v. Meachum,

548 F.2d 13 (1st Cir. 1977) (transfer to higher custody

status prison). In Daigle, 564 F.2d at 885, the Court stated:

‘Sin Montanye v. Haymes, ... the Supreme Court held

that ‘{a]s long as the conditions or degree of confine-

ment to which the prisoner is subjected are within the

sentence imposed upon him and are not otherwise

violative of the Constitution, the Due Process Clause

does not in itself subject an inmate’s treatment by

prison authorities to judicial oversight.’ Zd. at 242,

96 S.Ct. at 2547. It is clear to us that both of these

conditions exist in this case. First, the DSU is part

of the Massachusetts prison system to which these

inmates were sentenced. We are pointed to nothing

in the order of the sentencing judge that puts the

DSU beyond the bounds of their sentences. No liberty

interest springs up to protect inmates from transfer

to DSU simply because they are originally placed in

the less unpleasant surroundings of the general popu-

lation. See Meachum v. Fano...

* * *

‘‘Mass. Gen. Law Ann., ch. 127, § 39 (1974), authorizes

transfer to the DSU of inmates ‘whose continued re-

tention in the general institution population is detri-

mental to the program of the institution.’ Retention

in the general population may become ‘detrimental’

18

for any number of reasons. The statute does not ‘con-

fer upon individual inmates a right not to be trans-

ferred absent a showing that specified events have

occurred.’ Lombardo, supra, 548 F.2d at 15.’’

Meachum, Daigle and the companion cases foreclose

the Fourteenth Amendment as a basis for the award of

compensatory damages for segregated confinement which

the plaintiffs recovered below. These cases also foreclose

an Eighth Amendment ‘‘disproportionality’’ claim as the

basis for the damage award, since ‘‘DSU is part of the

Massachusetts prison system to which these inmates were

sentenced,’’ Daigle, supra, 564 F.2d at 885, and since puni-

tive intent is irrelevant to the constitutionality of a prison

transfer. Montanye, supra. These eases similarly fore-

close plaintiffs’ claim that an ‘‘arbitrary and capricious’’

transfer would support their segregation damages award.

See also Estelle v. Gamble, 429 U.S. 97, 103, n.7 (1977).

In the case of convicted offenders such as plaintiffs, their

punishment is their incarceration and ‘‘the protection af-

forded by the Eighth Amendment is limited. After incar-

ceration, only the ‘unnecessary and wanton infliction of

pain, ... constitutes cruel and unusual punishment forbid-

den by the Eighth Amendment.’ Ingraham v. Wright, 430

U.S. 651, 669 (1977). Prisoners are of course not without

a remedy under the Eighth Amendment where the condi-

tions of their incarceration fall below civilized norms.

£..g., Hutto v. Finney, 437 U.S. 678, 685 (1978). However

plaintiffs have eschewed this type of Eighth Aiieehilleend

claim and, in the words of the Court of Appeals, ‘‘con-

tended that the punishment exacted was cruel and unusual

because it was arbitrarily imposed to cover up brutality

and was grossly disproportionate to whatever offenses they

had committed’’. That theory is erroneous as a matter of

law and is a reformulation of precisely the kind of due

process claim that this Court rejected in Meachum.

NR TE Cie KF BO hae Ke, alee .

19

IV. Tue Tria, Covrt’s Jury Instruction oN THE EIGHTH

AMENDMENT Use or Excessive Force Ciaim, WHIch

THE CouRT OF ... PEALS UPHELD as Not PLainty Erro-

neous, Is 1x Conruict WiTH THE RuLINGS oF OTHER

Crrecvit Courts AND WITH THE PRINCIPLES ANNOUNCED

BY THE SuPREME CovURT.

The trial court’s charge to the juvy on the Eighth Amend-

ment use of force claim noted that prisoners retain ‘‘the

right not to be treated with unnecessary roughness’ and

continued as follows:

‘Under the facts as you find them, did any defendant

use unreasonable force upon one or both of the plain-

tiffs. By unreasonable force, I do not mean that you

should draw fine, exact lines. A prison is not a social

gathering. As a wise judve has put it:

‘The management by a few guards of large num-

bers of prisoners, not usually the most gentle or

tractable of men and women, may require and

justify the occasional use of a degree of inten-

tional force. Not every push or shove, even if

it may later seem unnecessary in the peace of a

judge’s chambers, violates a prisoner’s constitu-

tional rights. In determining whether the consti-

tutional line has been crossed, a Court must look

to 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 in-

jury inflicted, and whether force was applied in a

good faith effort to maintain or restore disci-

pline, or maliciously and sadistically for the very

purpose of causing harm.’°

3 The trial court was quoting from Johnson v. Glick, 481 F.2d

1028, 1033 (2nd Cir.) (Friendly, J.), cert. denied sub nom. John

v. Johnson, 414 U.S. 1033 (1973).

20

‘“‘It would not be practical; it would hamstring a

prison guard from using force at all when force was

required if he had to fear a lawsuit every time. The

law is not like that. I instruct you that the plaintiffs

must show that a guard used excessive force, exces-

sive to the degree that a reasonable guard would

realize, on the facts known to him when he did it,

that it was excessive.’’

With respect to punitive damages the trial court said:

The law allows you to award punitive damages if any

defendant’s conduct was so outrageous that it shocks

you, you may award extra damages, sometimes called

smart money, in order, shall we say, to teach him a

lesson or serve as an example.”’

Noting that the defendants did not object to the instruc-

tions before the jury retired, the Court of Appeals upheld

them as not plainly erroneous, although the Court com-

mented that ‘‘the charge given here is perhaps open to criti-

cism on the ground that it did not expressly require a find-

ing that the force used was shocking or violative of univer-

sal standards of decency’’ (pp. A-26, A-27). Petitioners

contend that since the criticism leveled by the Court of Ap-

peals in its own opinion is valid, the trial court’s charge

constitutes plain, and serious, error in that it lowers the

threshold for establishing a civil rights violation contrary

to principles enunciated by this Court and by other circuit

courts. Thus in Estelle v. Gamble, 429 U.S. 97, 104 (1976),

this Court set the threshold for constitutional liability

substantially higher than negligence by requiring plaintiff

to show ‘‘deliberate indifference to serious medical needs’”’

21

in order to make out an Highth Amendment claim. The

minimum standard of deliberate indifference ‘‘is consistent

with the judgment of many lower courts that actions of

state officials must be characterizable as ‘wanton,’ ‘reck-

less,’ or ‘grossly negligent’ in order to state a claim under

section 1983, particularly where an isolated incident of

abuse occurred.’’ Developments in the Law—Section 1983

and Federalism, 90 Harvard Law Review 1133, 1206 (1977).

See cases collected id. at note 100. A similar high threshold

for establishing excessive use of force in violation of the

Eighth Amendment has been set by other Courts of Ap-

peals. Mukmuk v. Commissioner of Department of Correc-

tional Services, 529 F.2d 272, 277-78 (2d Cir.), cert. denied

426 U.S. 911 (1976) ; Meredith v. State of Arizona, 523 F.2d

481, 482-84 (9th Cir. 1975); Howell v. Cataldi, 464 _—

272, 282 (3d Cir. 1972). Here under the trial court’s

charge, the jury did not have to find defendant’s conduct

shocking in order to hold them liable. Indeed the fact

that the jury did not award punitive damages suggests

that they were not shocked by defendants’ conduct, given

the instruction on punitive damages. Defendants should not

be held liable for a constitutional violation unless their

conduct reaches the requisite level of impropriety. The

standard for excessive force in violation of the Eighth

Amendment is a matter on which the guidance of the

Supreme Court is urgently needed, to prevent further con-

fusion, inconsistency and injustice in the lower courts.

22

Conclusion

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the First

Circuit.

Respectfully submitted,

Franois X. BELLOTTI

Attorney General

Lee Cart BroMBERG

Special Assistant

Attorney General

31 Milk Street

Boston, Massachusetts 02109

(617) 426-6464

Dated: Boston, Massachusetts

October 24, 1979

A-1

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 78-1482

JOHN FURTADO, ET AL.,

PLAIN TIFFS-APPELLEES,

v.

HAROLD BISHOP, ET AL.,

DEFENDANTS-APPELLANTS.

No. 78-1483

JOHN FURTADO, ET AL.,

PLAINTIFFS-APPELLANTS,

v.

HAROLD BISHOP, ET AL,

DEFENDANTS-APPELLEES,

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. Bamtzy Avpricn, Senior Circuit Judge* |]

Before

Corrin, Chief Judge,

Bowness, Circuit Judge,

PettineE, District Judge.**

Lee Carl Bromberg, Special Assistant Attorney General, Depart-

ment of Correction, with whom Francis X. Bellotti, Attorney Gen-

eral, was on brief, for Harold Bishop, et al.

Maz D. Stern, with whom Jonathan Shapiro, Stern & Shapiro,

and Michael Avery, were on brief, for John Furtado, et al.

* Of the U.S. Court of Appeals for the First Circuit, sitting by

designation.

** Of the District of Rhode Island, sitting by designation.

A-2

July 26, 1979

Bownes, Circuit Judge. This case stems from two sepa-

rate but related incidents at the Massachusetts Correc-

tional Institution (MCI) at Walpole on March 21, 1970.

Prison officials observed prisoners John Furtado and

Gerald Sousa returning to their respective cells after

attending a banquet at the auditorium sponsored by in-

mates involved in a prison drug program. Sousa had

consumed some home brew and his gait and general appear-

ance made it obvious that he was less than sober. Furtado

later testified that he had nothing to drink at the banquet.

Both men went into their cells shortly before ten o’clock

and presumably fell asleep. Based on the observations

made and because it was known that both had been at

the banquet, the prison officials, after going through the

appropriate chain of command, decided to move Sousa and

Furtado out of their cells and search for contraband.

As the guards attempted to usher him to a segregated

area in Cell Block 9, a melee erupted between Sousa and

the guards. There was further turmoil when a second

group of guards attempted to move Furtado out of his

cell. Both men claimed to have been beaten by the guards.

Furtado was injured more seriously than Sousa; he bled

profusely, was obviously in pain and an X-ray showed that

his jaw was slightly fractured. He was taken to the prison

hospital.

While Furtado was in the prison hospital, Sousa wrote

a series of letters complaining that he and Furtado had

been brutally and unjustly beaten and seeking redress.

On March 23, he wrote to the Norfolk County District

Attorney’s office. By the time this letter was delivered

on March 26, State Police Officer Reilly had already been

called in by Walpole Superintendent Moore to investigate

the incidents. On March 24, Sousa wrote to Dr. Miriam

Van Waters, a former Superintendent of MCI Framing-

A-3

ham whom he knew, but Deputy Superintendent Butter-

worth returned the letter to Sousa and asked him to delete

the name of an officer he accused of directing the beatings.

Sousa wrote Dr. Van Waters again on March 27 and also

wrote Chief Judge Charles Wyzanski of the United States

District Court.

Furtado and Sousa had, themselves, been the subject of

several disciplinary reports written by prison officers in-

volved in the incidents. Deputy Superintendent Butter-

worth, who had commenced his own investigation of the

incident on March 23 and had read the reports, recom-

mended to Superintendent Moore that Furtado and Sousa

be transferred to departmental segregation units (DSU).

In April, upon Moore’s recommendation, Commissioner of

Correction Fitzpatrick transferred Furtado to DSU Wal-

pole and Sousa to DSU Bridgewater, where they spent

approximately six months.’ .

In December, 1970, Furtado and Sousa filed a lawsuit

under 42 U.S.C. § 1983 against various guards and prison

officials and also moved for a preliminary injunction ask-

ing the district court to enjoin defendants from intercept-

ing and reading any correspondence from plaintiffs to and

from their attorneys, to order defendants to allow plain-

tiffs or their representatives to interview plaintiffs and

potential witnesses in privacy and to permit nonlawyers

to conduct the interviews, to enjoin defendants from inter-

fering in any way with the conduct of the lawsuit, and to

restore plaintiffs to the general prison population. After

a hearing, the district court granted, with some modifica-

tion, the relief requested except for transfer out of segre-

gation to the general prison population.

After a long unexplained delay, the case was assigned

1 Both men were found by a disciplinary board to have violated

prison rules, but the Board’s action in Sousa’s case came one day

after Moore had recommended Sousa’s transfer.

ee

A-4

to another judge for trial in November of 1977. Prior to

the start of the scheduled jury trial in March of 1978,

plaintiffs filed a second amended complaint, which was

assented to by defendants. The complaint alleged unjus-

tified assaults and beatings and use of excessive force

against both plaintiffs. It asserts that Sousa was held

under conditions of solitary confinement at DSU Bridge-

water for six months without cause, with no hearing or

notice of charges, that the defendants knew or should have

known that the reports made against Sousa were false,

and that he was transferred to DSU Bridgewater ‘‘at least

in part’’ because he attempted to obtain legal redress for

the beating administered on March 21, 1970, ‘‘by attempt-

ing to write to the United States District Court and

by attempting to mail letters seeking legal assistance,

which attempts were frustrated by defendant Butter-

worth.’’ Essentially the same allegations were made as to

Furtado’s confinement in the segregation unit at Walpole.

Damages were sought for the beatings, for the confinement

in segregation, for the alleged deprivation of due process

and deprivation of their right to communicate with the

outside world and the courts.

Eleven special interrogatories were submitted to the

jury which can be summarized as follows: (1) was im-

proper physical force applied on the night of March 21,

1970; (2) which of the defendants participated in the

application of such force, either directly or by failing to

stop it (the defendants were listed with a space for a yes

or no answer opposite each name) ; (3) the amount of com-

rensatory damages for the use of improper physical force;

(4) the amount of punitive damages; (5) did any defend-

ants make an intentionally false report to cover up the

events of the night of March 21, 1970 (with a list of de-

fendants’ names for checking if applicable); (6) did any

of the defendants make an intentionally false report or

A-5

recommendation with the purpose or expectation that it

would lead to segregated confinement (with a list of de-

fendants’ names for checking if applicable); (7) compen-

satory damages for segregation; (8) punitive damages for

segregation; (9) did defendant Butterworth suppress the

second letter to Dr. Van Waters; (10) did defendant But-

terworth suppress a letter to Judge Wyzanski; and (11) did

defendant Butterworth recommend segregation for Sousa

because of his writing to Dr. Van Waters and/or Judge

Wyzanski—with an additional question as to the amount

of compensatory and punitive damages if applicable.

In response to the interrogatories, the jury found that

three types of wrongdoing had occurred: (1) that certain

- defendants used or countenanced the use of excessive force

against Furtado and Sousa; (2) that guards Scholes and

Saulnier and Deputy Superintendent Butterworth made

false reports or recommendations with the purpose or

expectation they would lead to segregated confinement for

Furtado and Sousa; and (3) that Butterworth suppressed

the second letter to Dr. Van Waters and the letter to

Judge Wyzanski and recommended segregation for Sousa

because of his letter writing. The jury awarded Furtado

$8,000 and Sousa $4,500 in compensatory damages for the

use of excessive force against them, Furtado $1,000 and

Sousa $9,000 in compensatory damages for segregated con-

finement, and Sousa $3,000 in compensatory damages and

$3,000 in punitive damages for Butterworth’s mail sup-

pression and recommendation of segregation. After de-

leting $1,000 in compensatory damages against Butter-

worth as redundant, the district court entered a judgment

of $56,444.45, which included prejudgment interest, costs,

and attorney’s fees.

The defendants have appealed the entire judgment, and

the plaintiffs have cross-appealed from the portion of the

judgment concerning attorney’s fees. The issues on appeal

A-6

cluster around four aspects of the case: (1) the recovery

of damages for the plaintiffs’ segregated confinement :

(2) evidentiary rulings; (3) the judge’s instructions to the

jury; and (4) prejudgment interest and attorney’s fees.

We address these issues in order.

THE RECOVERY OF DAMAGES FOR

SEGREGATED CONFINEMENT

The defendants have concentrated much of their effort

on attacking the award of damages against Saulnier

Scholes, and Butterworth for making false reports “

recommendations to bring about the plaintiffs’ transfers

to segregated confinement. Saulnier wrote a report in

which he accused Sousa of being ‘‘very high on drugs or

booze,’’ refusing to go to Block 9, and fighting, hiding

and taking a swing at an officer; he recommended the

“‘ {maximum penalty this man can get.’’ Scholes’ report

similarly accused Furtado of refusing to obey orders to

move and of hitting, kicking, and biting officers. As noted

above, Butterworth conducted an investigation and ulti-

mately recommended the transfers. |

The plaintiffs’ theory, accepted by the jury, was that the

guards had attacked .hem and that certain of the defend-

ants had made false reports and recommendations in order

to ‘‘cover up’’ the assaults and beatings with the purpose

or expectation that such reports would result in segre-

gated confinement. According to this theory, defendants

were liable for plaintiffs’ confinement in segregation “ea

cause it constituted arbitrary and capricious ws grossly

disproportionate punishment for drinking and refusing to

obey orders,” in violation of the eighth amendment and the

. :

- viene but not Furtado, admitted drinking home brew on the

— in question. Both men arguably refused to obey certain

orders to move; there was evidence they protested because Super-

intendent M h : Py ”

after 10-00 a ad promised an end to ‘‘shakedowns”’ of cells

A-7

substantive due process guarantee of the fourteenth amend-

ment and because it was imposed in part to frustrate

plaintiffs’ right of access to the courts, in violation of the

first amendment and the due process clause of the four-

teenth amendment.

As we understand defendants’ position, they contest

plaintiffs’ recovery of damages for segregated confinement

on four grounds. First, they contend, more emphatically

in oral argument than in their briefs, that they had no

notice that the plaintiffs sought damages for conditions

in segregation on the theory that the transfers to segre-

gation for improper motives violated the eighth and four-

teenth amendments. After carefully reviewing plaintiffs’

second amended complaint, we find no merit in this position.

The complaint sufficiently pled the plaintiffs’ theory of

recovery for segregation,’ and, in the detailed description

of the privileges lost in segregation and of the vile condi-

tions endured by Sousa at DSU Bridgewater, there was

ample warning that the plaintiffs were seeking damages

for the conditions of segregated confinement.* Defendants

3The complaint contained specific allegations that some of the

defendants had made false reports that the plaintiffs had created ©

a disturbance and that, as a result, Sousa and Furtado were trans-°

ferred to DSU. There were further allegations that the ‘‘acts of

defendants in causing the plaintiffs to be transferred to the

departmental segregation units .. . were arbitrary and capricious,

deprived plaintiffs of their rights to due process of law... [and]

to be free of cruel and unusual punishment... as guaranteed by

the Eighth and Fourteenth Amendments . . . tig

4The complaint stated that in segregation the plaintiffs were

held in virtual twenty-four hour lockup, were not permitted to

have personal belongings, to watch television, or to listen to the

radio, were denied access to rehabilitative programs, and had their

visits and correspondence severely curtailed. The following de-

scription of conditions at DSU Bridgewater was given:

DSU Bridgewater .. . was located in an ancient and dilapi-

dated building. There was no plumbing. Plaintiff [ Sousa |

had to use a dry pot which was emptied only once per day.

His cell was infested with cockroaches. Above the segrega-

tion unit were held violent uncontrollable patients from the

A-8

also had the benefit of plaintiffs’ proposed jury instruc-

tions, which were filed several days before trial and in

which plaintiffs claimed a right not to be arbitrarily

singled out for punitive and degrading treatment and

sought damages for time spent in segregation.

Second, and more fundamentally, defendants contend

that plaintiffs’ theory of recovery under the eighth and

fourteenth amendments was erroneous as a matter of law.

They reason that, in the wake of the Supreme Court

decisions in Meachum v. Fano, 427 U.S. 215 (1976), and

Montanye v. Haymes, 427 U.S. 236 (1976), and ah own

post-Meachum decisions in Daigle v. Hall, 564 F.2d 884

(1st Cir. 1977); Four Certain Unnamed Inmates v. Hall

990 F.2d 1291 (1st Cir. 1977), and Lombardo v. init,

048 F.2d 13 (1st Cir. 1977), the plaintiffs’ transfers en

not actionable.

The initial difficulty with this argument is that, as we

read the record, it was not raised below. We will not

ordinarily consider on appeal grounds for reversal that

were not urged upon or considered by the district court.

re ED pr of M.C.I. Bridgewater. These patients dis-

— ze wed soggy = eg a noise and by urinat-

oor. in spite of the above unhygieni i-

tions, DSU Bridgewater inmates were seniied ogling

‘ a sink my once per day and shave and shower twice per week

_° Defendants’ trial counsel did object strenuously to the admis-

= of evidence of the conditions at the DSU, but he did so o

7 ee oe os aay 2 gaa eould not be held Seong

e transfers (which were ultimatel d :

Commissioner of Correction) or f Agcy lg Bg

the conditions in th

When he moved for a directed v di oo

Vhe erdict for Butterworth, j

similar grounds. No objections were t a aa

! aken to the judge’

i be Snag -atppas yeni gongy : plaintiffs’ cake of ihe

e record can we find any objections to t ial

wee that plaintiffs’ theory of recovery for saetetion ; “

ay — counsel now characterizes it, ‘‘bogus.’’ To the contrar

a ae requests for Jury instructions, they appear to nh

— lability if they ‘‘acted intentionally or maliciously or in bad

aith to segregate the plaintiffs from the general population,’’

A-9

E.g., Johnston v. Holiday Inns, Inc., 595 F.2d 891, 894 (1st

Cir. 1979); Dobb v. Baker, 505 F.2d 1041, 1044 (1st Cir.

1974). Although we have acknowledged our power to notice

plain error in order to avert a clear miscarriage of justice,

Morris v. Travisono, 528 F.2d 856, 859 (1st Cir. 1976),

we only exercise that power if the new ground is ‘‘so com-

pelling as virtually to insure appellant’s success.’? Dobb

v. Baker, supra, at 1044. This is not the case here.

The Supreme Court’s prison transfer decisions did not

clearly foreclose plaintiffs’ theory of recovery of damages

for their segregated confinement. In Meachum v. Fano,

supra, 427 U.S. at 216, and Montanye v. Haymes, supra,

427 U.S. at 242, the Court held that the due process clause

of the fourteenth amendment does not require a hearing

before a prisoner is transferred from one state prison to

another having harsher conditions, unless a state law or

practice creates a liberty interest in continued confinement

at the first prison by conditioning transfers on misconduct

or other events. In Meachum, the Supreme Court reversed

a decision of this court, Fano v. Meachum, 520 F.2d 374

(1st Cir. 1975), holding that transfers from MCI Norfolk

to MCl Walpole and Bridgewater implicated a liberty

interest and required certain due process protections.

Interpreting the Supreme Court’s decisions, we held in

Daigle v. Hall, supra, 564 F.2d at 885-886, and Four Certain

Unnamed Inmates v. Hall, supra, 550 F.2d at 1292, that a

prisoner’s transfer to DSU Walpole did not implicate any

liherty interest or violate procedural due process of law.

See also Sisbarro v. Warden, Massachusetts State Peniten-

tiary, 592 F.2d 1, 2-4 (1st Cir. 1979) (interstate transfers) ;

Lombardo v. Meachum, supra, 548 F.2d at 13-15 (transfer

from MCI Norfolk to MCI Walpole). All of these cases

addressed an issue of procedural due process: what, if any,

procedural protections must accompany a transfer.

A-10

Nothing in these decisions expressly ruled out a chal-

lenge to a transfer to segregation on the ground that it

violated constitutional rights other than the right to pro-

cedural due process of law.6 In fact, in Montanye v.

Haymes, supra, 427 U.S. at 242, the Supreme Court indi-

cated that the conditions or degree of a prisoner’s confine-

ment could be ‘‘otherwise violative of the Constitution,’’

and the dissenters understood the Court to agree that

Montanye would have a cause of action to the extent he

claimed his transfer was in retribution for the exercise

of his first amendment rights. Jd. at 244 and n.*.? Defend-

ants themselves do not seriously dispute that plaintiff’s

transfers to segregation were actionable if they violated

plaintiffs’ right of access to the courts, one theory of

recovery advanced.

By the same token, plaintiffs’ theory that recovery for

segregated confinement could also be based upon the eighth

and fourteenth amendments is not commonplace and widely

accepted. Although it is established that conditions in

segregation can be so barbaric as to constitute cruel and

unusual punishment, e.g., Hutto v. Finney, 437 U.S. 678,

685 (1978), plaintiffs freely admit that they did not pursue

this type of eighth amendment claim. Rather, they con-

tended that the punishment exacted was cruel and unusual

because it was arbitrarily imposed to cover up brutality

and was grossly disproportionate to whatever offenses

® Although defendants seize upon language in Meachum v. Fano,

427 U.S. 215, 228 (1976), to the effect that ‘prison officials have

discretion to transfer [prisoners] for whatever reason or for no

reason at all,’’ we understand this statement to describe the applt-

cable Massachusetts law in that case and not to constitute 1

pronouncement that a transfer can never violate the Constitution.

7 Montanye had pursued this claim below and the Second Circuit

found that he had standing to raise a first amendment challenge

to his transfer. Haymes v. Montanye, 547 F.2d 188, 189-90 (2d

Cir. 1976), cert. denied, 431 U.S. 967 (1977). Compare Sisbarro

v. Warden, Massachusetts State Penitentiary, 592 F.2d 1, 4 (1st

Cir. 1979) (no first amendment claim articulated).

A-11

they had committed. It is true that the Supreme Court

has stated many times that a grossly disproportionate

penalty can offend the eighth amendment, e.g., id. at 685;

Weems v. United States, 217 U.S. 349, 367 (1910), but the

Court does not appear to have applied this concept to

prison disciplinary measures such as segregation.® Never-

theless, a few lower courts have done so. Chapman v.

Kleindienst, 507 F.2d 1246, 1252 (7th Cir. 1974); Wright

v. McMann, 460 F.2d 126, 132-33 (2d Cir.), cert. denied,

409 U.S. 885 (1972); Hardwick vy. Ault, 447 F. Supp. 116,

125-27 (M.D. Ga. 1978). See Bono v. Saxbe, 450 F. Supp.

934, 944 (E.D. Ill. 1978); Fitzgerald v. Procunier, 393 F.

Supp. 335, 342 (N.D. Cal. 1975). Similarly, some courts

have indicated that segregated confinement amounts to

cruel and unusual punishment or a violation of substantive

due process if it is imposed arbitrarily and without basis.

Wilwording v. Swenson, 502 F.2d 844, 851 (8th Cir. 1974),

cert. denied, 420 U.S. 912 (1975); Black v. Warden, Umited

States Penitentiary, 467 F.2d 202, 203-04 (10th Cir. 1972) ;

United States ex rel. Bennett v. Prasse, 408 F. Supp. 988,

999 (B.D. Pa. 1976). We, ourselves, have recognized that

punishnient of prisoners may not be ‘‘extremely dispropor-

tionate, arbitrary or unnecessary.’’ O’Brien v. Moriarty,

489 F.2d 941, 944 (1st Cir. 1974). See Feeley v. Sampson,

570 F.2d 364, 371 (1st Cir. 1978) ; Nadeau v. Helgemoe, 561

F.2d 411, 419 (1st Cir. 1977). Given the state of the law in

this area, we certainly cannot say that plaintiffs’ theory of

recovery for segregated confinement was plainly erroneous.

Defendants’ third argument, which was made in various

forms below,® is that there was insufficient evidence to

8 Hutto v. Finney, 437 U.S. 678 (1978), did involve punitive

isolation, but there the Supreme Court upheld a thirty day limi-

tation on such confinement in an Arkansas prison on the theory

that conditions were barbarous rather than that the punishment

was grossly disproportionate. Jd. at 685-88.

9 See n.5, supra.

a a Ni a a

A-12

impose liability on Butterworth, Scholes, and Saulnier for

transfers of plaintiffs to segregation. Defendants reason

that, because the decisions to transfer were ultimately

made by Commissioner of Correction Fitzpatrick, who

was not a defendant, on the recommendation of Superin-

tendent Moore, who was dropped as a defendant, their

false reports and recommendations were not proved to

have caused the transfers to segregation. In a variation

on this theme, defendants contend that Moore and Fitz-

patrick may have had their own valid reasons for effecting

the transfers, and that there was an ‘‘unrebutted vile

and nondiscriminatory basis’’ for the irandiors, Laaman

v. Perrin, 435 F. Supp. 319, 328 (D. N.H. 1977), in Sousa’s

drinking and both plaintiffs’ refusals to obey orders.

We think there was sufficient evidence to impose liability

on Butterworth, Scholes, and Saulnier for the transfers.

Section 1983 is to be ‘‘read against the background of tort

liability that makes a man responsible for the natural con-

sequences of his actions.’’ Monroe v. Pape, 365 U.S. 167

187 (1961), overruled on other grounds, Monell vy. benert

ment of Social Services of the City of New York, 486 U.S

658, 663 (1978). When a person’s conduct is a ‘beten-

tial factor and a material element’’ in bringing about a

foreseeable injury, he can be held liable for that injury

Hilliard v. Williams, 516 F.2d 1344, 1351 (6th Cir. 1975),

vacated on other grounds, 424 U.S. 961 (1976). See W. Peas.

ser, Law of Torts, § 42, at 244-48 (4th ed. 1971). Here

there was evidence from which the jury could infer that

defendants made false reports and recommendations with

the purpose or expectation that they would lead to segre-

gated confinement, and that their actions caused Moore

to advocate and Fitzpatrick to order the transfers." This

10 Fitzpatrick had the statut j

Gen. Laws ch. 127, § 39. ory authority to transfer. Mass.

11 Defendants complain that the j

é e jury never actually found that

defendants’ reports and recommendations wae eaused the

A-13

satisfied plaintiffs’ burden of proving that it was more

likely than not that defendants foresaw and helped bring

about the transfers to segregation. Hilliard v. Willams,

supra, at 1351. See Spears v. Conlisk, 440 F. Supp. 490,

498 (N.D. Ill. 1977).

Fourth, and last, defendants assert that, even if they

could be held responsible for the transfers, damages were

not properly imposed on them for the conditions of con-

finement in segregation units. This argument stems from

{wo premises: that the only right arguably violated by the

transfers to segregation was the right of access to the

courts, and that only nominal damages were due for any

violation of this right because plaintiffs were able to secure

counsel, file this lawsuit, and prevail. This argument, too,

was not voiced below. We see no plain error in the award

of damages for segregation. For the reasons stated above,

we are unconvinced that the only right defendants violated

was plaintiffs’ right of access to the courts. In any event,

we think that damages for segregated confinement were

appropriate to the extent that defendants attempted to

punish or deter the exercise of that right. Sostre v. McGin-

nis, 442 F.2d 178, 189, 205 and n.52 (2d Cir. 1971), cert.

transfers. It is true that the interrogatories only called for the

jury to determine whether the defendants intended or expected

that segregated confinement would result. We do not think this

entitles defendants to relief, however, because they never objected

to the interrogatories or pointed out any deficiencies in them

before they were submitted to the jury. In addition, we think ‘it

is highly likely that the jury believed defendants’ actions caused

the transfers, especially in light of evidence that Butterworth

specifically relied upon reports by Saulnier and Scholes in making

lis recommendation to Moore (who had only been on the job for

two weeks) and that Moore mentioned the Saulnier and Scholes

reports in his letters to Fitzpatrick, and in light of the trial judge’s

instruction that the plaintiffs had the burden of showing that the

defendants ‘‘fooled’’ Moore. Although defendants claim at one

point in their brief that the trial judge prevented them from prov-

ing that Moore’s independent judgment regarding the transfers

broke the chain of causation, we do not read the record this way.

A-14

denied sub nom. Oswald vy. Sostre, 405 U.S. 978 (1972).

See Laaman y. Perrin, supra, 435 F. Supp. at 326 and

cases cited therein. The measure of such damages is clearly

the difference between the harsher and, as to Sousa, de-

plorable conditions suffered in segregation and the con-

ditions that prevailed in the general prison population.

We find nothing shocking or even unreasonable as to the

damages awarded for the confinement in segregation, $1,000

to Furtado and $9,000 to Sousa.

Having concluded our discussion of this phase of the

ease, we turn our attention to the evidentiary rulings

attacked by defendants.

EVIDENTIARY RULINGS

Defendants first challenge as unfairly prejudicial the

introduction of evidence concerning the conditions in segre-

gated confinement, particularly as to Sousa’s concededly

‘‘grotesque, horrifying and dramatic’’ testimony that he

was locked up at DSU Bridgewater for virtually twenty-

four hours a day for six months, in a cell that was located

under a ward for violent, uncontrollable mental patients,

that was saturated with excrement and urine, and that had

no plumbing and almost no furnishings. This evidence was

highly relevant to the theory of recovery already discussed

and central to plaintiffs’ proof of damages. The probative

value of this evidence was substantially outweighed by

the danger of unfair prejudice in admitting it. Fed. R.

Evid. 403.

More persuasive is defendants’ claim that the trial court

erred in admitting an affidavit by Claude Cross, an attor-

ney who was dead at the time of trial. In this affidavit,

Cross stated that he went to see Sousa at Walpole on

April 1, 1970, at the request of Dr. Miriam Van Waters,

who had received a phone call on Sousa’s behalf. Cross

further stated that Sousa complained to him that letters

A-15

he had written to Dr. Van Waters and Judge Wyzanski

had been suppressed. Cross recalled asking Deputy Super-

intendent Butterworth about this and noted his response:

‘‘Butterworth replied that he had withheld one or two

letters to Dr. Van Waters but had sent along the last one.

He also said that he had refused to allow a petition to

Judge Wyzanski to be mailed because allegations in it

reflected badly upon the institution.’’

The Cross affidavit was very damaging to Butterworth’s

credibility. Butterworth had testified that he did not recall

intercepting any of Sousa’s letters, although he had then

been forced to admit, when shown an affidavit he, himself,

had executed in 1970, that he had returned the first letter

to Van Waters and had asked Sousa to delete the name of

an officer he implicated in brutality.

The Cross affidavit was not offered, however, merely to

impeach Butterworth. Instead, it was offered under Rule

s04(b)(5) of the Federal Rules of Evidence, as substan-

tive evidence that Butterworth suppressed Sousa’s mail.

Rule 804(b)(5) creates an exception to the hearsay rule

for an unavailable declarant’s

statement not specifically covered by any of the fore-

going exceptions but having equivalent circumstantial

guarantees of trustworthiness, if the court determines

that (A) the statement is offered as evidence of a

material fact; (B) the statement is more probative

on the point for which it is offered than any other

evidence which the proponent can procure through

reasonable efforts: and (C) the general purpose of

these rules and the interests of justice will best be

served by admission of the statement into evidence.

The rule conditions the admissibility of the statement upon

pretrial notice.

However, a statement may not be admitted under this

exception unless the proponent of it makes known to

A-16

the adverse party sufficiently in advance of the trial

or hearing to provide the adverse party with a fair

opportunity to prepare to meet it, his intention to

offer the statement and the particulars of it, including

the name and address of the declarant.

Defendants contend that the Cross affidavit was inadmis-

sible under Rule 804(b)(5) because it was not trustworthy

and because plaintiffs did not give the requisite pretrial

notice that it would be offered. We are troubled by the

trial judge’s treatment of both of these issues.

In determining that the affidavit was sufficiently trust-

worthy, the trial judge relied heavily upon the fact that

he knew Cross well, as a very honorable man. This ap-

proach was of questionable propriety, because the trial

judge was not a witness and his knowledge of Cross was

not subject to judicial notice. See Fed. R. Evid. 201; 603;

605. As to the lack of pretrial notice, the trial judge made

no findings and demonstrated limited concern. He offered

defense counsel a week’s continuance to meet the Cross

affidavit, but undercut the offer with a demand that counsel

explain on the spot what he would be able to do with the

time (‘‘You can’t dig up Mr. Cross’’).

Despite our reservations about the trial judge’s handling

of the Cross affidavit, we uphold its introduction under

Rule 804(b)(5). There were many indicia of the affidavit’s

trustworthiness. Defense counsel himself conceded that

its author was an ‘‘eminent attorney.’’ As an attorney,

Cross could not have failed to appreciate the significance

of the oath he took in executing the affidavit and, as such,

was not a person likely to make a cavalier accusation

against a prison official. As he explained in his affidavit,

he had successfully defended Dr. Van Waters before a

special commission that investigated her removal as the

superintendent of MCI Framingham. Although he went to

see Sousa at the behest of Dr. Van Waters, Cross was

A-17

basically a disinterested party; he was not Sousa’s attor-

ney and apparently had no connection with his lawsuit

bevond submitting an affidavit.” Apart from these indi-

cations that the affiant was trustworthy, there were factors

supporting the reliability of his statement that Butter-

worth admitted intercepting Sousa’s mail to Dr. Van

Waters and Judge Wyzanski. Cross, of course, had per-

sonal knowledge of Butterworth’s admissions. As the trial

judge noted in admitting the affidavit, Butterworth’s own

memory was poor, and his eventual admission on the wit-

ness stand that he brought one letter to Dr. Van Waters

back to Sousa lent impressive support to the reliability

of the Cross affidavit. All of this is not to say that Cross’

recollection could not have been questioned, especially on

the ground that his affidavit was executed nearly eight and

one-half months after his conversation with Butterworth.

Nevertheless, we think that there was a sufficient threshold

showing of trustworthiness and that, beyond this, it was

for the jury to decide the weight to be given the affidavit.

The defendants cite no cases that persuade us otherwise,

and comparison of this case to cases from other circuits

only confirms us in our view. F.g., Copperweld Steel Co.

v. Demag — Mannesmann — Bohler, 578 F.2d 953, 964 (3d

Cir. 1978); United States v. West, 574 F.2d 1131, 1134-36

(4th Cir. 1978); United States v. Medico, 557 F.2d 309,

815-17 (2d Cir.), cert. denied, 434,U.S. 986 (1977) ; United

States v. Ward, 552 F.2d 1080, 1082 (Sth Cir.), cert. denied,

434 U.S. 850 (1977); United States v. Carlson, 547 F.2d

1346, 1354 (8th Cir. 1976), cert. denied, 431 US. 914 (1977)

(trustworthiness upheld). Compare United States v.

Bailey, 581 F.2d 341, 348-50 (3d Cir. 1978) ; United States

v. Gonzalez, 559 F.2d 1271, 1273-74 (5th Cir. 1977) (trust-

worthiness found lacking).

7 . . . = . tter-

12 The evidence indicated that, after seeing Sousa and Butt

worth, Cross called State Police Officer Reilly and then did nothing

other than submitting his affidavit.

a een

A-18

The failure of the plaintiffs to give pretrial notice that

they would use the Cross affidavit also poses a serious

problem. Just how strictly Rule 804(b)(5)’s pretrial notice

provision should be enforced has been a matter of debate.

After reviewing the legislative history of Rule 804(b) (5)

and Rule 803(24), the identical provision for statements

of available declarants, the Second Cireuit concluded in

two cases that Congress intended the pretrial notice pro-

vision to be rigidly enforced and that evidence proffered

without pretrial notice must be excluded. United States

v. Ruffin, 575 F.2d 346, 357-58 (2d Cir. 1978); United

States v. Oates, 560 F.2d 45, 72-73 n.30 (2d Cir. 1977).

3 The legislative history of Rules 804(b)(5) and 803(24) ean

be summarized as follows. The House of Representatives deleted

the forerunners of these residual hearsay provisions ‘‘as injecting

too much uncertainty into the law of evidence and impairing

the ability of practitioners to prepare for trial.’’ H.R. Rep. No. 650,

93d Cong., Ist Sess. 5-6 (1973), reprinted in [1974] U.S. Code

Cong. & Adm. News 7079. The Senate reinstated the provisions in

a narrower form, believing that ‘‘exceptional cireumstances’”’

would on rare occasions justify the admission of hearsay not

covered by other exceptions, and stating its expectation that ‘‘the

court will give the opposing party a full and adequate opportunity

to contest the admissibility of any statement sought to be intro-

duced....’’ S. Rep. No. 1277, 93d Cong., 2d Sess. 18-20, reprintéd

in [1974] U.S. Code Cong. & Adm. News 7051, 7065-66. The Con-

ference Committee retained the provisions but added the pretrial

notice requirement, without elaborating on the reason for the re-

quirement. Joint Explanatory Statement of the Committee on

Conference, H.R. Rep. No. 1597, 93d Cong., 2d Sess. 13, reprinted

in [1974] U.S. Code & Ad. News 7105-06. During the debates on

the floor, two representatives who had participated in the confer-

ence commented upon the pretrial notice provision. Representative

Hungate said of the notice requirement:

We met with opposition on that. There were amendments

offered that would let them do this right on into trial. But

we thought the requirement should stop prior to trial and

they would have to give notice before the trial. That is how

we sought to protect them.

120 Cong. Rec. H12,256 (daily ed. Dee. 18, 1974). Representative

Dennis said that, although he disliked the residual hearsay pro-

visions, he thought that the insertion of a notice requirement so

that counsel could get ready for such evidence was an adequate

compromise. 120 Cong. Rec. H12,256-57 (daily ed. December 18,

1974).

A-19

A leading commentator has criticized this view as unneces-

sarily restrictive, admonishing that Rule 102 of the Fed-

eral Rules of Evidence requires that the Rules ‘‘be inter-

preted with a sense of trial realities, not like a bond

indenture.’’ + Weinstein’s Evidence 1803(24)[01], at 803-

243 n.4f (4th ed. Supp. 1978).’* Most courts have inter-

preted the pretrial notice requirement somewhat flexibly,

in light of its express policy of providing a party with

a fair opportunity to meet the proffered evidence. Thus,

the failure to give pretrial notice has been excused if the

proffering party was not at fault (because he could not

have anticipated the need to use the evidence) and if the

adverse party was deemed to have had sufficient oppor-

‘unity to prepare for and contest the use of the evidence

(tor example, because he was offered a continuance, did

not request a continuance, or had the statement in ad-

vanee). E.g., United States ». Bailey, supra, 581 F.2d at

348; United States vy. Lyon, 567 F.2d 777, 784 (8th Cir.),

cert. denied, 435 U.S. 918 (1977); United States v. Medico,

supra, 557 F.2d at 316 n.7; United States v. Carlson, supra,

547 F.2d at 1355; United States v. Leslie, 542 F.2d 285, 291

(Sth Cir. 1976); United States v. laconetti, 540 F.2d 574,

578 (2d Cir. 1976), cert. denied, 429 U.S. 1041 (1977).”

Even if we reject the Second Cireuit’s rigid interpre-

tation of the pretrial notice requirement in favor of the

prevailing flexible approach, the fy in the ointment in this

ease is that plaintiffs have never explained their failure

to give pretrial notice. They cannot be presumed blameless.

Rule 102 provides: .

These rules shall be construed to secure fairness in admin-

istration, elimination of unjustifiable expense and delay,

und the promotion of growth and development of the law

of evidence to the end that truth may be ascertained and

proceedings justly determined. nyt

1 Although Medico and Iaconctti are Second Cireuit cases,

neither is mentioned in Oates or Ruffin.

A-20

Nevertheless, on balance, we are persuaded that the lack

of pretrial notice was not fatal.

Plaintiffs argue with some justification that defendants

were not prejudiced by the failure to give notice because

they were not, as they claim, surprised by the Cross affi-

davit. As plaintiffs point out, defendants had the Cross

affidavit in their possession for seven and one-half years.

It had accompanied plaintiffs’ 1970 motion for injunctive

relief, and Butterworth had specifically responded to it

in his own affidavit (the one in which he admitted returning

one of the letters to Van Waters). Furthermore, the second

amended complaint alerted defendants that plaintiffs

would make a major issue of Butterworth’s suppression of

Sousa’s mail. But, most important, defense counsel’s own

comments indicated that he actually anticipated that evi-

dence from Cross'* would be offered; counsel said, ‘‘In

inquiring into his background, I found he was a very

eminent attorney.”’

We, therefore, find enough in the record to support an

inference that counsel had prepared to meet the evidence

in question, at least to the extent of investigating Cross’

background, if not also to the point of reviewing prison

mail records and contacting Judge Wyzanski’s office.’

Whatever deficiencies there were in defense counsel’s prep-

aration, such as a failure to review Butterworth’s testi-

mony about the affidavit with him in advance, we do not

think they were fairly traceable to the failure to give

pretrial notice. Finally, even if the court’s offer of a

continuance was somewhat abrupt, defense counsel showed

little, if any, interest in that option, responding to the

16 Conceivably, defense counsel had not learned that Cross was

dead and expected that his testimony would be offered rather than

his affidavit, but we are not convinced this is material.

17~Indeed, we think any moderately prepared defense counsel

in this case would have noticed Cross’ affidavit and taken these

steps.

A-21

court’s query that ‘‘it would make no difference’’ if he

were given a continuance.

In these circumstances, we are not inclined to read the

notice provision of Rule 804(b)(5) to have mandated the

exclusion of the Cross affidavit. If, in upholding the afh-

davit’s admission, we are reading the rule somewhat more

liberally than other courts, we do so because, unlike the

vast majority of cases interpreting the rule, this is a civil

ease.’® Where there is no constitutional right of confron-

tation implicated by the rule, we think slightly freer play

can be given to the discretion of the trial judge in admit-

ting evidence under it. See United States v. Bailey, supra,

581 F.2d at 350-51; United States v. Medico, supra, 557

F.2d at 314 n.4. Nevertheless, we warn parties that they

fail to give pretrial notice under the rule at their peril,

and we expect trial judges to consider carefully statements

offered under residual exceptions to the hearsay rule.

The remaining evidentiary issues can be handled with

greater dispatch. The next contested ruling is the trial

judge’s exclusion of several of Furtado’s prior convictions

(for escape, assault and battery on a guard, contributing

to the delinquency of a minor, carnal abuse of a child, and

larceny of a motor vehicle) and his exclusion of the fact

that the prior assault and battery conviction of plaintiff’s

witness Allen, who testified that Sousa had been beaten,

was for assault and battery on a prison guard. These con-

victions were offered under Rule 609(a) of the Federal

Rules of Evidence, which provides:

For the purpose of attacking the credibility of a wit-

ness, evidence that he has been convicted of a crime

shall be admitted if elicited from him or established

by public record during cross-examination but only

if the crime (1) was punishable by death or imprison-

18 We also have eonsidered that the affidavit was admissible in

any event to impeach Butterworth.

A-22

ment in excess of one year under the law under which

he was convicted, and the court determines that the

probative value of admitting this evidence outweighs

its prejudicial effect to the defendant, or (2) involved

dishonesty or false statement, regardless of the pun-

ishment.

Defendants contend that the trial judge had no discretion

under Rule 609(a)(1) to exclude any of the prior convic-

tions of plaintiff Furtado and witness Allen, since they

were not defendants in the case. Plaintiffs’ rejoinder is

that the trial judge retained discretion under Rule 403 to

exclude evidence on the ground that ‘‘its probative value

is substantially outweighed by the danger of unfair preju-

dice.’’ Although defendants may have a legitimate argu-

ment, we need not resolve the issue.

We think that whatever error there was in excluding

some of Furtado’s convictions and the precise nature of

Allen’s conviction for assault and battery was harness,

or, in the words of Rule 103(a) of the Federal Rules of

Evidence, did not ‘‘affect a substantial right’’ of defend-

ants.*® The trial judge did admit five of Furtado’s prior

convictions (two for assault and battery, two for assault

and battery with a dangerous weapon, and one for armed

robbery) and three of Allen’s convictions (for armed

robbery while masked, burning a building, and assault and

battery). Reference to an escape by Furtado was made

in another witness’ testimony. The jury could hardly have

forgotten that the case arose in a prison setting and that

virtually every one of plaintiffs’ witnesses was a convict.

Moreover, the excluded convictions were not particularly

19 Rule 103(a) provides:

Error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is

affected .]

A-23

probative of credibility.2” In these cireumstances, we think

it somewhat strained for defendants to argue that their

attack on Furtado’s or Allen’s credibility was significantly

impaired, and we find no error warranting a new trial.

Compare United States vy. Dixon, 547 F.2d 1079, 1084 (9th

Cir. 1976).”*

Next defendants claim error in the admission of two

memoranda written in 1971 by plaintiffs’ witness Rosemary

Adamo. Adamo was then a law student assisting plain-

tiffs’ counsel. In that capacity, she twice interviewed an

inmate named Thomas Murray, who told her that he had

seen guards beat Furtado. Her memoranda of their con-

versations were admitted into evidence after Murray testi-

fied for defendants that he did not see Furtado beaten

and had not spoken to Adamo about the incident.

Defendants do not deny that the Adamo memoranda

qualified as recorded recollections under Rule 803(5) of

the Federal Rules of Evidence, or that they were admis-

sible to the extent that they contradicted Murray’s testi-

mony. Nevertheless, they assert that the court should at

least have excised three prejudicial portions of the meimo-

randa that were not inconsistent with Murray’s testimony :

In 1967 [Murray was] indicted for conspiracy and

accessory for murder of an inmate. Never prosecuted

but prison officials still use this as a threat.

20 Defendants contend that Furtado’s convictions for contribu-

ting to the delinquency of a minor, carnal abuse of a female child,

eseape, and larceny of a motor vehicle suggested ‘‘devious or

deceitful conduct’’ on his part. Even if this can fairly be said

of the latter two convictions, a point of which we are not per-

suaded, the escape was mentioned anyway and, as we read the

record, the trial judge never made a definitive ruling on the

escape and larceny of a motor vehicle conviction.

21 We need not decide whether defense counsel failed to pre-

serve objections to the exclusion of the prior convictions. It would

have been better had counsel made it clear, after the void dire on

this point, that he was pressing an objection, as was required

in Subzce v. Curtis, 483 F.2d 263, 266 (1st Cir. 1973).

A-24

Moore called Murray to his office and told him he

wanted to press charges against the officers involved,

which Murray didn’t believe.

He wouldn’t give any names [of prison officers to the

state police] though, or discuss it, because he was

afraid of reprisal. He told them he didn’t want to

be found dead after ‘‘jumping off the third tier.’’

These portions of the memoranda were not highlighted as

they were read to the jury, and the memoranda themselves

were not made exhibits. Assuming arguendo that certain

portions of the memoranda were inadmissible hearsay and

were potentially prejudicial because they put prison offi-

cials in a bad light, defendants were adequately protected

by the trial judge’s contemporaneous cautionary instruc-

tions to the jury.”

Finally, defendants take issue with the trial judge’s

refusal to allow State Police Officer Philip Reilly to testify

in rebuttal that Murray told him, two days after the

incident, that he was being pressured by several inmates

to say the guards were cruel and unreasonably abusive to

Furtado. This evidence was offered prior to Adamo’s

testimony and excluded as premature, but, without waiving

22 The judge, in part, told the jury:

The only purpose of hearing what this young lady will

tell you that Mr. Murray told her is for you to decide whether

or not Mr. Murray was telling you the truth when he testi-

fied. If you find as a result of what she tells you that he was

not telling the truth, then all of those, as to those particular

matters, then all of those things go out of the ease so far

as Mr. Murray is concerned. And your mind remains a blank

just as if he had never testified. You cannot use this contra-

diction, what the law calls impeachment, affirmatively in

the case anymore. It’s only with relation to whether or not

you believe Mr. Murray.

The instructions make it unnecessary for us to discuss plain-

tiffs’ contention that defendants failed to preserve this eviden-

tiary point for appeal by specifying or moving to strike the offend-

ing portions of the memoranda.

a

A-25

objections to its admissibility, plaintiffs stipulated that the

evidence could be offered, without recalling Reilly, after

Adamo testified. Nevertheless, defense counsel forgot to

offer it before he rested. It was within the trial judge’s

diseretion to deny a motion to reopen the case on the

following morning on the ground that to admit the evidence

in splendid isolation would give it undue emphasis. Ditter

v. Yellow Cab Co., 221 F.2d 894, 899 (7th Cir. 1955). See

Zenith Radio Corp. v. Ilazeltine Research, Inc., 401 U.S.

321, 331 (1971).

THE JURY INSTRUCTIONS

Defendants challenge the trial court’s instructions to the

jury on two of the three aspects of the case: (1) the use

of excessive force, and (2) the suppression of Sousa’s

mail.24 Because defendants did not object to the instruc-

tions before the jury retired, as required by Rule 51 of

the Federal Rules of Civil Procedure, we have only to

decide whether the instructions given were plainly erro-

neous and necessitate reversal to prevent a clear miscar-

riage of justice. Morris v. Travisono, supra, 528 F.2d at

859; Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir. 1966).”°

On the claim of brutality, the trial judge impressed upon

the jury that the issue was whether defendants had used

unreasonable or excessive force. Quoting at length from

Judge Friendly’s opinion in Johnson v. Glick, 481 F.2d

23 As the plaintiffs point out, the fact that Murray had told

the state police he was under pressure from other inmates was

mentioned in the Adamo memoranda.

He said the statements in the police report about the fact he

saw the officers use reasonable force to restrain and that he

was being pressured by other inmates are false.

24 Defendants make no complaints about the charge on the trans-

fers to segregation.

28 Krock v. Electric Motor and Repair Co., 327 F.2d 213 ‘(lst

Cir.), cert. denied, 377 U.S. 934 (1964), relied on by defendénts.

is not to the contrary. That case did not involve an attack on

the judge’s charge on appeal.

A-26

1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson,

414 U.S. 1033 (1973), he imposed a rather heavy burden

on plaintiffs to establish the force used was unreasonable:

By unreasonable force, I do not mean that you should

draw fine, exact lines. .\ prison is not a social gather-

ing. A wise judge has put it:

‘‘The management by a few guards of large num-

bers of prisoners, not usually the most gentle or

tractable of men and women, may require and

justify the occasional use of a degree of inten-

tional force. Not every push or shove, even if it

may later seem unnecessary in the peace of a

judge’s chambers, violates a prisoner’s constitu-

tional rights. In determining whether the con-

stitutional line has been crossed, a court must look

to 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 in-

jury inflicted, and whether force was applied in

a good faith effort to maintain or restore disci-

pline, or maliciously and sadistically for the very

purpose of causing harm.’’

It would not be practical; it would hamstring a prison

guard from using force at all when force was required

if he had to fear a law suit every time. The law is

not like that. I instruct you that the plaintiffs must

show you that a guard used excessive force, excessive

to the degree that a reasonable guard would realize,

on the facts known to him when he did it, that it was

excessive.

Although the standard for determining when a guard’s

application of force offends the eighth or fourteenth amend-

ments is not easily formulated, the charge given here is

perhaps open to criticism on the ground that it did not

expressly require a finding that the force used was shock-

ilies, oe

A-27

ing or violative of universal standards of decency.** See

Meredith v. State of Arizona, 523 F.2d 481, 482-84 (9th Cir.

1975) ; Johnson v. Glick, supra, 481 F.2d at 1033; Howell

v. Cataldi, 464 F.2d 272, 282 (3d Cir. 1972). Nevertheless,

we do not think the charge is any wider of the mark than

the one in Morris v. Travisono, supra, 528 F.2d at 858,

where we declined to invoke the plain error exception to

Rule 51.27 Nor are we impelled to find a clear miscarriage

of justice, particularly in light of ample evidence that

Furtado suffered a cracked jaw, bled profusely, and re-

quired hospitalization and pain medication for several

days.

We come to a similar conclusion after examining the

court’s instructions on the suppression of Sousa’s mail.

In essence, the court charged that Butterworth was liable

for damages if he suppressed the second letter Sousa wrote

to Dr. Van Waters and the letter Sousa wrote to Judge

Wyzanski. The defendants claim the instruction was erro-

neous because it deprived Butterworth of his qualified

immunity defense, by failing to take into account that the

law concerning prisoners’ correspondence rights was un-

settled in March, 1970, and by failing to require a finding

of malice.

Although we agree that Butterworth could assert quali-

fied immunity unless he knew or should have known he was

violating Sonsa’s rights, Procunier v. Navarette, 434 U.S.

555, 562 (1978), and that the rights of prisoners to send

routine correspondence were unclear until 1974, Procunier

v. Martinez, 416 U.S. 396, 406-07 (1974), we find no plain,

26T> the contrary, the court indicated that punitive damages

could be imposed if the jury found the conduct shocking or out-

rageous; the jury awarded no punitive damages for the beatings.

271In Morris, an instruction that the jury could impose liability

if it found that prison guards used tear gas against nonthreaten-

ing prisoners ‘‘for the mere purpose of punishing them’’ was said

to lower the threshold of cruel and unusual punishment.

A-28

reversible error in the instruction given. In the first place,

we are not convinced an instruction on qualified immunity

was required. In testifying, Butterworth did not rely on

this defense, but rather denied intercepting the letters in

question, Second, a strong argument can be made that

Butterworth should have known that intercepting these let-

ters would violate Sousa’s right of access to the courts.

Both letters contained requests for legal assistance, and

one was directed to a federal judge. By 1970, it was well

settled that a prisoner’s right of access to the courts in-

cluded the right to mail legal petitions to court without

having prison officials screen them, Ex parte Hull, 312 US.

546 (1941), and the right of access to legal assistance,

Johnson v. Avery, 393 U.S. 483 (1969). See Nolan v. Scafati,

430 F.2d 548, 550-51 (1st Cir. 1970) (holding, four months

after Sousa wrote his letters, that Johnson v. Avery clearly

meant an inmate had the right to write to the Civil Liber-

ties Union for legal assistance). Compare Procumer v.

Navarette, supra, 434 U.S. at 565 n.12. Finally, because

the jury expressly found that Butterworth recommended

segregation for Sousa because of his letter writing and

assessed punitive damages, it is highly unlikely that a

charge requiring it to find Butterworth acted maliciously

would have made any difference.

PREJUDGMENT INTEREST AND

ATTORNEY’S FEES

We now consider whether prejudgment interest was

properly assessed and attorney’s fees were correctly com-

puted. To the award of $27,500 in damages, the trial judge

added approximately $14,900 in prejudgment interest, a

sizeable amount that reflected this case’s slow progress to

trial. The trial judge’s reason for adding prejudgment

interest is not stated in the record. From the calculations

made, however, it appears that he believed Massachusetts

A-29

law controlled this point and that the pertinent statute,

Mass. Gen. Laws ch. 231, § 6B, mandated prejudgment

interest.”

We first decide whether Massachusetts law was appli-

able. Although state law governs the imposition of pre-

judgment interest in diversity cases, Hobart v. O’Brien,

243 F.2d 735, 745 (1st Cir. 1957), it has not been applied

in cases arising under federal law. Sanabria v. Interna-

tional Longshoremen’s Association Local 1575, 597 F.2d

312, 313-14 (1st Cir. 1979); Moore-McCormack Lines, Inc.

v. Amirault, 202 F.2d 893, 894-97 (1st Cir. 1953). In civil

rights cases brought under 42 U.S.C. § 1983, courts are

required by 42 U.S.C. § 1988 to look first to federal law on

all matters, but to turn to the law of the forum state if

federal law does not cover the issue.

The jurisdiction . . . conferred on the district courts

by the provisions of this chapter and Title 18, for the

protection of all persons in the United States in their

civil rights, and for their vindication, shall be exer-

cised and enforced in conformity with the laws of

the United States, so far as such laws are suitable

to carry the same into effect; but in all cases where

they are not adapted to the object, or are deficient in

the provisions necessary to furnish suitable remedies

and punish offenses against law, the common law, as

modified and changed by the constitution and statutes

of the State wherein the court having jurisdiction ...

28 Chapter 231, § 6B provides:

In any action in which a verdict is rendered or a finding

made or an order for judgment made for pecuniary dam-

ages for personal injuries to the plaintiff or for consequential

damages, or for damage to property, there shall be added

_.. to the amount of damages interest thereon from the date

of commencement of the action.

Effective August 14, 1974, the rate of prejudgment interest was

increased from 6% to 8%. 1974 Mass. Acts, ch. 224, § 1. The trial

judge accordingly provided for interest at 6% prior to August 14,

1974, and 8% thereafter.

A-30

is held, so far as the same is not inconsistent with the

Constitution and laws of the United States shall...

govern[. |

42 U.S.C. § 1988. Whether state prejudgment interest law

applies in this ease therefore hinges on whether federal

law on the subject is viewed as ‘‘deficient.’’ See Robertson

v. Wegmann, 436 U.S. 584, 588 (1978).

We rule that resort to state law on prejudgment interest

was not required. Although we have found no cases on

point, several Supreme Court opinions are instructive.

On one hand, the Court has applied state survivorship law

and statutes of limitations in federal civil rights litigation.

Id. at 594-95: Johnson v. Railway Express Agency, 421

U.S. 454, 462-66 (1975). On the other hand, the Court has

indicated that federal courts should fashion appropriate

rules for damages in section 1983 actions. Carey v. Piphus,

435 U.S. 247, 257-59 (1978). See Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229, 238-40 (1969). We think that the

issue of prejudgment interest is closely allied with that

of damages, and that a federal rule should, therefore, be

developed for an action under 42 U.S.C. § 1983. This is

altogether in keeping with the approach to prejudgment

interest in Rodgers v. United States, 332 U.S. 371, 373

(1947), where, in barring prejudgment interest on penal-

ties exacted under the Agricultural Adjustment Act, the

Supreme Court said, ‘‘in the absence of an unequivocal

prohibition of [prejudgment] interest ..., this Court has

fashioned rules which granted or denied interest on par-

ticular statutory obligations by an appraisal of the con-

gressional purpose in imposing them and in light of general

principles deemed relevant.’’

Declaring that a federal rule should govern prejudgment

interest in civil rights actions under 42 U.S.C. § 1983 is

easier than formulating a rule. There are, of course, three

options: prejudgment interest could be (1) mandatory,

A-3l

(2) discretionary, or (3) barred. We find little to recom-

mend a mandatory rule. The injuries suffered by plaintiffs

in civil rights actions are often intangible, and prejudg-

ment interest will not always be necessary to compensate

them fully. See Moore-McCormack Lines, Inc. v. Amiraullt,

supra, 202 F.2d at 895. Assuming that prejudgment in-

terest can also legitimately have a punitive purpose when

a defendant has obstinately delayed payment to an injured

party, see Rivera v. Rederi A/B Nordstjernan, 406 F.2d

970, 976 (1st Cir.), cert. denied, 409 U.S. 876 (1972), such

interest will not be warranted in every case. By the same

token, we have reservations about an inflexible rule bar-

ring prejudgment interest in a section 1983 action. Such

a rule is arguably appropriate because section 1983 creates

a species of tort liability, and prejudgment interest on the

typical unliquidated tort claim was not recoverable at com-

mon law. Id. at 976; Moore-McCormack Lines, Inc. v.

Amirault, supra, at 897. Nevertheless, the traditional com-

mon law view has been criticized, see id. at 898; D. Dobbs,

The Law of Remedies § 3.5, at 173-74 (1st ed. 1973), and

common law tort rules, although a useful starting point

for fashioning remedies for section 1983 violations, are not

binding. Carey v. Piphus, supra, 435 U.S. at 258-59.

We need not decide between a rule making prejudgment

interest discretionary and one barring it altogether. Assum-

ing arguendo that prejudgment interest was discretionary,

federal law dictated that the jury should decide whether

to assess it. Robinson v. Pocahontas, Inc., 477 F.2d 1048,

1053 (1st Cir. 1973) ; Newburgh Land & Dock Co. v. Texas

Co., 227 F.2d 732, 735 (2d Cir. 1955); Parisi v. Lady in

Blue, Inc., 433 F. Supp. 681, 682-83 (D. Mass. 1977). But

the question of prejudgment interest was not submitted to

the jury, nor did plaintiffs ask that the jury be instructed

on it. Consequently, the award of prejudgment interest

A-32

must be stricken. Robinson v. Pocahontas, Inc., supra,

at 1053.79

There remains the question of attorney’s fees, which

were awarded to plaintiffs’ two lawyers under 42 U.S.C.

§ 1988. The trial judge awarded $13,750, a figure arrived

at by halving plaintiffs’ dollar recovery. In settling upon

this novel formula, the court took the position that it

would be unfair to make defendants pay more than plain-

tiffs would have paid counsel had they been able to retain

counsel on a contingency basis. Aware that this approach

might be rejected on appeal, the court made an alternative

finding that ‘‘counsel legitimately put $20,000 worth of

work into the case, timewise.’’

We are constrained to remand. Although the half the

dollar recovery formula has beguiling simplicity and re-

sulted in a substantial award here, we cannot accept it.

Quite apart from the fact that the formula would work

obvious injustice in cases where damages were nominal or

only injunctive relief was sought, or in cases where re-

covery was large and out of proportion to the work done,

we eschewed such simple formulae in Kring v. Greenblatt,

560 F.2d 1024 (1st Cir. 1977), cert. denied, 98 S. Ct. 3146

(1978). There, we held that in awarding fees the court

must ‘‘adhere carefully”’ to the twelve criteria that were set

forth in Johnson v. Georgia Highway Express, Inc., 488

F.2d 714, 717-19 (Sth Cir. 1974), and approved by Congress.

Because the fifty per cent of recovery formula ignores time

and labor spent, as well as other factors, it cannot stand.

Nor are we sure that the alternative award of $20,000

reflects consideration of each of the pertinent criteria.

True, plaintiffs’ counsel directed the court’s attention to

King v. Greenblatt, supra, and provided relevant documen-

29 We do not think Rule 49(a) of the Federal Rules of Civil

Procedure is to the contrary. That rule provides that, when a

jury is asked to return a special verdict, the court may decide

any issue of fact not presented to the jury.

A-33

tation, and the court touched upon some of the proper

criteria in its opinion (for example, stating that the repre-

sentation given was highly qualified). But, because the

trial judge found that counsel put $20,000 worth of work

into the case ‘‘timewise,’’ we are left to wonder whether

this figure only reflects the hours spent.

Accordingly, we remand the case for further considera-

tion of the attorney’s fees. Upon remand, the district court

should also determine, after appropriate documentation is

submitted, what attorney’s fees are due plaintiffs’ counsel

for the appellate work that has now been put into the case.

To sum up, the portion of the judgment imposing pre-

judgment interest is stricken and the portion of the judg-

ment relating to attorney’s fees is vacated and remanded

for further consideration. In all other respects, the judg-

ment of the district court is upheld.

SO ORDERED.

nnn

B-1

APPENDIX B

Unitep States Districr Court

District or MASSACHUSETTS

Civil Action No. 70-1805-G

Joun Fvurrapo and

GeERALD Sovsa,

PLAINTIFFS,

v.

Haroxp Bisuor et al.,

DEFENDANTS.

JUDGMENT

This action came on for trial before the Court and a

jury, Honorable Bailey Aldrich, Senior Circuit Judge,*

presiding, and the jury having duly rendered its special

verdicts in answers to interrogatories submitted by the

Court, and the Court, in its opinion of July 11, 1978, having

awarded attorney’s fees and other costs,

I. Itis Ordered and Adjudged that Judgment is entered

for the Plaintiff, John Furtado, against the defendants,

specified below, who are jointly and severally liable for the

amounts indicated:

A. For improper physical force, $8,000.00, with in-

terest at the rate of 6% from December 8, 1970 to August

14, 1974 in the amount of $1,772.64, and interest at the

rate of 8% from August 14, 1974 to August 14, 1978 in

the amount of $2,560.00, and attorney’s fees in the amount

of $4,000.00, and costs in the amount of $87.59 for a total

judgment in the amount of $16,420.23:

Harold Bishop Michael Gilmore

William Butler Thomas McLaughlin

Donald Camara James Medas

* Sitting by designation.

Philip Carvalho Roger Paley

Lee Davis Laurence Scholes

Leo Flanagan

B. For making intentionally false reports or rec-

ommendations with the purpose or expectation that they

would lead to segregated confinement, $1,000.00, with in-

terest at the rate of 6% from December 8, 1970 to August

14, 1974 in the amount of $221.58, and interest at the rate

of 8% from August 14, 1974 to August 14, 1978 in the

amount of $320.00, and attorney’s fees in the amount of

$500.00, and costs in the amount of $10.84, for a total judg-

ment in the amount of $2052.42:

Fred Butterworth Laurence Scholes

II. It is Ordered and Adjudged that Judgment is en-

tered for the Plaintiff, Gerald Sousa, against the defend-

ants, specified below, who are jointly and severally liable

for the amounts indicated:

A. For improper physical force, $4,500.00, with in-

terest at the rate of 6% from December 8, 1970 to August

14, 1974 in the amount of $997.11, and interest at the rate

of 8% from August 14, 1974 to August 14, 1978 in the

amount of $1,440.00, and attorney’s fees in the amount of

$2,250.00, and costs in the amount of $49.36, for a total

judgment in the amount of $9,236.47:

Harold Bishop Wilfred Forcier

William Butler John J. Kalinowski

Leo Flanagan Rene Saulnier

B. For making intentionally false reports or rec-

ommendations with the purpose or expectation that they

would lead to segregated confinement, $9,000.00 with in-

terest at the rate of 6% from December 8, 1970 to August

14, 1974 in the amount of $1,994.22, and interest at the rate

of 8% from August 14, 1974 to August 14, 1978 in the

B-3

amount of $2,880.00, and attorney’s fees in the amount of

$4,500.00, and costs in the amount of $98.43, for a total

judgment in the amount of $18,472.65:

Fred Butterworth Rene Saulnier

C. For mail suppression and for recommending

segregation because of writing letters, $5,000.00, with in-

terest at the rate of 6% from December 8, 1970 to August

14, 1974 in the amount of $1,107.90, and interest at the

rate of 8% from August 14, 1974 to August 14, 1978 in the

amount of $1,600.00, and attorney’s fees in the amount of

$2,500.00, and costs in the amount of $54.78, for a total

judgment in the amount of $10,262.68:

Fred Butterworth

Dated at Boston, Massachusetts, this 12th day of Sep-

tember, 1978.

Greorce F. MoGratu, Clerk

By (s) Danzeu A. (Illegible)

Deputy Clerk

APPROVED AS TO F'oRM

(s) Josepu L. Gorvon, Jr., Asst. AG 9-6-78

Counsel for Defendants

APPROVED AS TO FoRM

(s) Bamey ALpRICH

United States Circuit Judge

B-4

Unrrep States District Court

District oF MASSACHUSETTS

Civil Action No. 70-1805-G

Joun Furrapo and

JERALD Sousa,

PLAINTIFFS,

v.

Harotp Bisuor et al.,

DEFENDANTS.

OPINION

April 20, 1978

Before addressing the several post-trial motions for new

trial, entry of judgment, ete., I review the background.

Plaintiffs either originated, or quickly subscribed to the

idea of special interrogatories to the jury, and submitted

a proposed set on Friday afternoon, March 24. On Monday

afternoon I submitted my response, which was, essentially,

merely a revision as to form. Comments by both sides

resulted in a few more changes, with the final draft fur-

nished counsel Tuesday prior to summation. No objections

were noted to the final form, and no exceptions were taken

to the charge.

I did make one reservation, which was that the submis-

sion of the interrogatories to the jury did not constitute

a ruling that, as to every defendant, the evidence warranted

an affirmative answer. This automatically saved defend-

ants’ rights as to the sufficiency of the evidence. It did

not save their rights as to form. Thus their present com-

plaint as to the inadequacy of question No. 1 would come

too late, even if it had merit. In point of fact it has none;

the meaning of ‘‘improper physical force,’’? which was in

my draft from the beginning, was fully defined in the

charge.

B-5

The objection to question No. 2 is equally late. However,

it, too, lacks merit.

If question No. 9 should have been spelled out in the

charge as requiring bad faith on the part of Butterworth,

he did not request it. In any event, by awarding punitive

damages, the jury found it. I cannot say its findings were

unwarranted.

It is not only defendants who failed to complain about

the questions. There is nothing about these questions and

answers which supplies affirmative support to plaintiffs’

present contention that all defendants who were guilty

as to say, Sousa, must nevertheless be charged as to Fur-

tado because they conspired with the Furtado defendants.

This additional claim, even if possible, was not put to the

jury, and no argument that the jury’s findings must be

supported requires this one. If this was a permissible

inference, the jury was not asked it, and did not answer it.

If it be said that this is an unanswered and open issue

of fact, to be resolved by the court now that the jury is

functus officio, I answer it against the plaintiffs, in part

because that answer is not only consistent with the jury’s

negative findings as to such individuals, but also because

of the jury’s failure to find punitive damages in this area.

If there was a conspiracy from the beginning, punitive

damages would well have been in order. Defendants speci-

fically asked me to charge the jury that it could find that

the enterprise started out legitimately and that the guards

became overannoyed in the middle of it. This was a legiti-

mate possibility. Having seen Furtado, I consider it quite

possible. It is perhaps not as easy to believe this about

Sousa, but I cannot say the jury could not do so. All this

leads away from finding the type of umbrella conspiracy

that plaintiffs now advance, and I reject it.

Nor do I accept pla:atiffs’ argument that participating

in a coverup automatically makes each participant respon-

B-6

sible for the penalties meted out to the plaintiffs. I care-

fully separated this issue into questions 5 and 6, and the

jury conspicuously distinguished.

The affidavit of Attorney Cross was a disaster for But-

terworth, but it bore all the earmarks of admissibility

under the new rules. If the Court of Appeals should dis-

agree with me, however, Butterworth should get a new trial

on questions 9—11, as it infected them all.

I agree with Butterworth that answer 11’s compensa-

tory damage award was, at best, a duplication, and is to

be disregarded. I cannot fairly say that any of the other

damage findings are so excessive that they must be set

aside. Finally, defendants’ general objections that the

evidence was insufficient to support the jury’s findings are

without merit.

Judgments will be entered in accordance with this opinion

after the matter of counsel fees has been settled. The court

tentatively envisages a separate fee with respect to the

Furtado defendants ,the Sousa defendants, and as to ques-

tions 9—11. Possibly there should be even more distribu-

tion, in the interest of fairness to individual defendants.

In some eases I have found counsel able to settle this issue

inter sese, and if there is any hope of that here, it might

be to everyone’s advantage. I make the general comment

that the amount of recovery is an important factor in my

mind.

Orders on the several pending motions will ultimately

be made, consistent with this opinion.

(s) ALDRICH

U.S. Circuit Judge*

* Sitting by designation.

-_—— ~ ——

C-1

APPENDIX C

Unitep States Constitution, AMENDMENT VIII:

Excessive bail shall not be required, nor excessive

fines imposed nor cruel and unusual punishment in-

flicted.

Unirep States Constitution, AMENDMENT XIV,

Section 1 (in relevant part):

[Nljor shall any State deprive any person of life,

liberty, or property, without due process of law.

Titte 42, Unirep States Cope, § 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.

FeperaL Rues or Evipence, Rute 804(b)

(in relevant part):

(b) Hearsay Exceptions.—The following are not

excluded by the hearsay rule if the declarant is un-

available as a witness:

(5) Other Exceptions.—A statement not spe-

cifically covered by any of the foregoing exceptions

but having equivalent circumstantial guarantees of

trustworthiness, if the court determines that (A) the

statement is offered as evidence of a material fact;

C-2

(B) the statement is more probative on the point for

which it is offered than any other evidence which

the proponent can procure through reasonable efforts ;

and (C) the general purposes of these rules and the

interests of justice will best be served by admission

of the statement into evidence. However, a statement

may not be admitted under this exception unless the

proponent of it makes known to the adverse party

sufficiently in advance of the trial or hearing to pro-

vide the adverse party with a fair opportunity to

prepare to meet it, his intention to offer the statement

and the particulars of it, including the name and ad-

dress of the declarant.