528 F.2d 856 (1st Cir. 1976), 75--1043, Morris v. Travisono

Docket Nº:75--1043.
Citation:528 F.2d 856
Party Name:Joseph MORRIS et al., Plaintiffs,-Appellees, v. Anthony P. TRAVISONO et al., Defendants-Appellants.
Case Date:January 22, 1976
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 856

528 F.2d 856 (1st Cir. 1976)

Joseph MORRIS et al., Plaintiffs,-Appellees,

v.

Anthony P. TRAVISONO et al., Defendants-Appellants.

No. 75--1043.

United States Court of Appeals, First Circuit

January 22, 1976

Argued Oct. 7, 1975.

Page 857

Ronald Dwight, Sp. Asst. Atty. Gen., with whom Julius C. Michaelson, Atty. Gen., was on brief for appellants.

Ralph J. Gonnella, Providence, R.I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R.I., was on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

This is an appeal from a jury verdict in favor of plaintiff-appellees, awarding nominal compensatory damages 1 against three of the named defendants and punitive damages 2 against two of them. The action was brought under 42 U.S.C. § 1983 (1970), alleging deprivation of constitutional rights under color of state

Page 858

law. Specifically, plaintiffs alleged that they were subjected to cruel and unusual punishment by the defendants in violation of the eighth amendment. 3 Essentially the allegations of cruel and unusual punishment were based on several incidents involving the use of tear gas against prisoners by correctional officers at the Medium Security Unit of the Adult Correctional Institution. Although the exact circumstances are disputed, it is uncontested that tear gas was used on the plaintiffs-appellees. The basic question was whether the use of tear gas to punish nonthreatening prisoners constituted cruel and unusual punishment and thereby exposed the defendants to liability under § 1983. In this regard the defendants contend on appeal that the district court committed error in the following portion of its charge to the jury:

'(I)f you find that the plaintiffs were gassed while locked in their cells and at the time of the gassing posed no substantial and immediate physical threat to themselves, other prisoners or to the security of the institution or to the correctional officers but rather the plaintiffs were gassed for the mere purpose of punishing them, then you must find for the plaintiffs.' (emphasis supplied)

This phrase from the charge is open to attack as lowering the threshold of cruel and unusual punishment 4 to a level that cannot be said to represent a well-settled principle of constitutional law. 5 Specifically, it could be argued that the italicized words of the charge directed the jury to apply to the facts of this case a harsher legal standard than that established by precedent. 6

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We do not reach, however, the serious questions of substantive law involved here because of a procedural problem of considerable magnitude, viz. the failure of defendants to object clearly and specifically to the district court's instructions before the jury retired to consider its verdict, as required by Fed.R.Civ.P. 51. 7

Rule 51 is of considerable importance for the orderly and just functioning of the judicial system, see Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir. 1955); see also Dunn v. St. Louis-san Francisco Railway Co.,370 F.2d 681 (10th Cir. 1966) (Aldrich, J.), and we ordinarily do not entertain appeals from instructions to which objection was not made in accordance with the rule. We retain the...

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