Moore v. Murphy

Citation47 F.3d 8
Decision Date12 January 1995
Docket NumberNo. 94-1974,94-1974
PartiesGregory MOORE, Plaintiff, Appellant, v. Paul MURPHY, Defendant, Appellee. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Jennifer Petersen, with whom Andrew Stockwell-Alpert, Boston, MA, and Joanne S. Forkner, Milton, MA, were on brief, for appellant.

Howard Friedman and Sarah Wunsch, Boston, MA, on brief for Civil Liberties Union of Mass., amicus curiae.

Thomas C. Tretter, Asst. Corp. Counsel, City of Boston, with whom Albert W. Wallis, Corp. Counsel, Boston, MA, was on brief, for appellee.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

Appellant seeks to have us prescribe a remedy, yet denies us access to any authoritative information about the etiology of the patient's condition. Consequently, we cannot dispense the requested relief and, therefore, decline to disturb the district court's treatment of the case.

I

During the evening of February 8, 1991, defendant-appellee Paul Murphy and his partner, Andrew Garvey, were working as In due course, Moore sued the officers in federal district court for, inter alia, federal civil rights violations, 42 U.S.C. Sec. 1983 (count 1), state civil rights violations, Mass.Gen.L. ch. 12, Sec. 11I (MCRA) (count 2), and common law assault and battery (count 3). These three counts were tried to a jury. At the close of the evidence, the court instructed on the law and gave the jurors a verdict form (the Form) soliciting special findings. See Fed.R.Civ.P. 49(a). When the jury finished its deliberations, it tendered the completed Form to the court. 2 On the Form, the jury found for both defendants on the section 1983 claim; found that Murphy, not Garvey, had violated the MCRA, but that, in all events, no "harm" was "proximately caused" by Murphy's transgression; and found for both defendants on the common law claim. A few days later the district court entered judgment in favor of both defendants on all three counts.

undercover police detectives. They observed plaintiff-appellant Gregory Moore on the street near 2 Waverly Street, in the Roxbury section of Boston, Massachusetts. Believing Moore to be engaged in a narcotics transaction, the officers approached him. Violence erupted. Moore sustained injuries. 1

Moore moved for a new trial, Fed.R.Civ.P. 59(a), and to alter or amend the judgment, Fed.R.Civ.P. 59(e). The district court denied the motions. This appeal followed.

II

On appeal, Moore does not contest the jury's findings. Instead, he argues that, given those findings, the district court had an obligation to enter judgment in his favor, against Murphy, on count 2 of the complaint (for nominal damages). This argument depends on a synthesis of federal and state law, leading Moore to conclude that, once the jury found that Murphy violated the MCRA, Moore's entitlement to a favorable judgment vested, and the jury's subsequent finding--that the violation caused no harm--was relevant only to damages. Moore's argument in support of this thesis is intellectually interesting, but eludes meaningful appellate review. Hence, we cannot honor it.

The mission of the appellate judiciary is neither to mull theoretical abstractions nor to practice clairvoyance. Rather, appellate judges fulfill their review function by matching applicable principles of law to the discerned facts and circumstances of litigated cases. Where, as here, a party seeking appellate review fails to furnish the basic tools that the court needs to carry out its task, that party loses by default. In the succeeding sections, we expound upon this doctrine and demonstrate its applicability here.

A

Fed.R.App.P. 10(b)(1) directs parties seeking judicial review to procure and file "a transcript of such parts of the proceedings [below] not already on file" as is necessary to enable the court of appeals to place the parties' contentions into perspective. 3 This rule imposes a duty upon an appellant "to print all of the evidence, good and bad, material to the point he wishes to raise." Chernack v. Radlo, 331 F.2d 170, 171 (1st Cir.1964). Should an appellant spurn this duty and drape an incomplete record around the court's neck, the court in its discretion either may scrutinize the merits of the case insofar as the record permits, or may dismiss the appeal if the absence of a full transcript thwarts intelligent review. See Fed.R.App.P. 3(a); United States v. One Motor Yacht Named Mercury, 527 F.2d 1112, 1113 (1st Cir.1975). In this vein, we have held with a regularity bordering on the monotonous that, should the record provided on appeal prove to be so deficient as to preclude

us from reaching a reasoned determination on the merits, "it is the appellant who must bear the brunt of an insufficient record on appeal." Real v. Hogan, 828 F.2d 58, 60 (1st Cir.1987); accord Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1559 n. 5 (1st Cir.1989); Valedon Martinez v. Hospital Presbiteriano de la Comunidad, Inc., 806 F.2d 1128, 1135 (1st Cir.1986); One Motor Yacht Named Mercury, 527 F.2d at 1113.

B

In prosecuting the instant appeal, Moore created just such a problem: he failed to provide this court with any part of the trial transcript. In the particular circumstances of this case, his omission leaves us no choice but to jettison his appeal. We explain briefly.

Moore's appeal depends on the viability of his contention that causation is not an element of liability under the MCRA. However, the Form strongly suggests that the trial court told the jury the opposite; after all, the Form directed the jurors, if they answered either part of Question # 3 affirmatively (that is, if they found that one or both of the defendants "violate[d] Gregory Moore's state constitutional rights by threat, intimidation or coercion"), to "proceed to Question # 4" (the inquiry into causation), and further directed the jurors to proceed to Question # 9 (the inquiry into damages) only upon an affirmative answer to Questions # 2, # 4, # 6, or # 8 (not upon an affirmative answer to Question # 3). See infra Appendix A. The judge's entry of a judgment in Murphy's favor on count 2 suggests the same perceived linkage between a MCRA violation and some ensuing harm. Even if this insistence on proof of a causal connection were error in the abstract--a matter on which we do not opine--it would be reversible error only if properly preserved. And there is simply no way, without a more complete record, that we can make such a determination.

Murphy asserts--and, in the absence of a full record, we take as true--that appellant did not make timely, appropriately specific objections to the district court's jury instructions or to the court's promulgation of the Form. These are important points, not mere technicalities.

The Civil Rules declare that parties must object to the court's charge at a particular time and with reasonable specificity. See Fed.R.Civ.P. 51. The failure to object to the instructions at the time, and in the manner, designated by Rule 51 is treated as a procedural default, with the result that the jury instructions, even if erroneous, become the law of that particular case. See La Amiga del Pueblo, Inc. v. Robles, 937 F.2d 689, 690-91 (1st Cir.1991); Milone v. Moceri Family, Inc., 847 F.2d 35, 38-39 (1st Cir.1988); Murphy v. Dyer, 409 F.2d 747, 748 (10th Cir.1969). Federal court practice imposes the same duty of diligence in regard to special verdict forms. "Silence after instructions, including instructions on the form of the verdict to be returned by the jury, typically...

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