Bordanaro v. McLeod

Decision Date02 November 1988
Docket NumberNo. 88-1563,88-1563
Citation871 F.2d 1151
Parties27 Fed. R. Evid. Serv. 1164 Rose BORDANARO, et al., Plaintiffs, Appellees, v. John McLEOD, et al., Defendants, Appeal of CITY OF EVERETT, Edward Connolly, and Donald Bontempo, Defendants, Appellants. . Heard
CourtU.S. Court of Appeals — First Circuit

Ira H. Zaleznik with whom Lewin & Rosenthal, Boston, Mass., was on brief, for defendants, appellants.

Juliane Balliro with whom Joseph J. Balliro, Balliro, Mondano & Balliro, Boston, Mass., Martin K. Leppo, Anthony Traini Leppo & Traini, Randolph, Mass., Frank Mondano and J. James Balliro, Jr., Boston, Mass., were on brief, for plaintiffs, appellees.

Before BOWNES and BREYER, Circuit Judges, and CAFFREY, * Senior District Judge.

BOWNES, Circuit Judge.

This appeal arises out of brutal beatings that plaintiffs-appellees received at the hands of Everett, Massachusetts police officers. Those injured and the estate of a person killed in the attack were awarded substantial verdicts 1 in their actions based upon 42 U.S.C. Sec. 1983 and the Massachusetts Tort Claims Act. The defendants-appellants--the City of Everett, its Mayor, and its Chief of Police--appeal, alleging numerous errors of law and mistakes of fact.

We affirm the verdicts but remand for a reassessment of attorneys' fees.


We state the facts, as we must, in the light most favorable to the plaintiffs. See Robinson v. Watts Detective Agency, 685 F.2d 729, 732 (1st Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 728, 74 L.Ed.2d 953 (1983). In the early morning hours of July 23, 1982, Everett policeman, John McLeod, who was off duty, escorted Beverly Ferrairo to a bar located inside the King Arthur Motel in Chelsea, Massachusetts. An altercation soon began between McLeod and plaintiff Alfred "Da" Mattuchio. As McLeod was about to land the first punch against Mattuchio, Charles Dimino intervened and fisticuffs ensued between Dimino and McLeod. Dimino proved the better pugilist and McLeod, beaten and bloody, was thrown out of the bar.

McLeod then went to a nearby security hut and had the attendant call the Everett Police Department for reinforcements. At the Everett station house, Lieutenant Baker and Sergeant Ferullo listened on the radio as the entire night watch of the Everett Police Department--five officers--reported that they were en route to aid McLeod. The Chelsea Police Department also responded and sent officers to the scene.

When these officers arrived, McLeod took a set of nunchaku 2 from the trunk of one of the cruisers and joined the other officers as they moved toward the King Arthur Motel in force.

As the police approached the locked glass doors of the motel, the plaintiffs, all patrons of the bar, viewed them with apprehension. The officers shouted threats to the plaintiffs and demanded entry. Before the manager could open the doors, the police shattered the glass with their nightsticks. Fearing for the safety of the plaintiffs, the manager sent them upstairs to Room 209, while he went to unlock the doors. Once the doors had been opened, the police rushed into the motel and mounted the stairs in pursuit of the plaintiffs.

The owner of the King Arthur Motel, Arthur Guttardaro, and the manager followed the police up to Room 209. The police began banging on the door with their nightsticks, threatening to kill the occupants of the room. Guttardaro and the manager offered to open the door with a pass key. Instead of accepting their offer, Officers McLeod, Macauda and Aiello assaulted and beat Guttardaro and the manager. Both men managed to drag themselves to safety despite suffering injuries.

The police officers were armed with nightsticks, clubs, bats, tire-irons, and a fire axe, in addition to their service revolvers. They banged repeatedly on the door, demanding entry and continuing to threaten the plaintiffs. A hole was hastily drilled in the door through which mace was injected into the room. Soon thereafter, Officer McClusky fired two shots from his pistol through the door.

When the door gave way, the armed force of officers entered the room. They then savagely beat the heads and bodies of the unarmed plaintiffs until most were reduced to an unconscious or semi-conscious state. McLeod repeatedly slammed Vincent Bordanaro's head against the wall and clubbed the other plaintiffs with a bat, all the while stating again and again, "Remember my name, John McLeod, don't forget it."

At some point before the door caved in, Sergeant Ferullo arrived at the entrance to Room 209. He stayed near the doorway a few moments after the door had been forced open, then left saying, "Frig this. I'm going downstairs."

Most of the persons in Room 209 sustained severe injuries. Vincent Bordanaro died as a result of the repeated blows to his head.


The plaintiffs are: Vincent Bordanaro (through the administratrix of his estate, his widow, Rose Bordanaro), Alfred J. Mattuchio, Anthony Dimino, Nicholas Medugno, Charles Cella, Charles Tardivo, Arthur Guttadaro, Mark Eldridge, Franci Felisi, Pamela Rickards, Beverly Ferrairo, Patricia Dimino, and Helen Bozzi [hereinafter plaintiffs or appellees]. Plaintiffs brought suit against a number of individual police officers, the Cities of Chelsea and Everett, their two Chiefs of Police and their two Mayors under the Civil Rights Act, 42 U.S.C. Sec. 1983 and the Massachusetts Tort Claims Act, Mass.Gen. Laws Ann. ch. 258, Sec. 2 (West 1988). The Mayors and the Chiefs of Police were sued individually and in their official capacities. Five individual officers defaulted; 3 the City of Chelsea and the plaintiffs entered into a settlement agreement.

The jury returned a verdict against Everett, its Mayor (Edward Connolly) and its Chief of Police (Donald Bontempo) [hereinafter defendants, appellants, or Everett]. Following the trial the district judge awarded attorneys' fees to the plaintiffs as prevailing parties under 42 U.S.C. Sec. 1988. The defendants' motions for judgment notwithstanding the verdict or for a new trial, were denied. The defendants then timely filed their motions of appeal.

Appellants allege the following grounds for reversal: (1) the evidence was insufficient as a matter of law to find either the municipality or its supervisory officials liable under Sec. 1983; (2) the trial judge's instructions on causation misled the jury and set too low a standard on which to assess liability under Sec. 1983; (3) the evidence was insufficient as a matter of law to hold Everett liable under the Massachusetts Tort Claims Act; (4) the trial judge erroneously admitted prejudicial evidence of events that took place after the incident in question in violation of Fed.R.Evid. 403; and (5) the trial judge erred in his assessment of attorneys' fees to the plaintiffs. We deal with each of these contentions in turn.


The standard to be used in reviewing a denial of a motion for judgment notwithstanding the verdict is well established.

We cannot determine credibility, resolve conflicting testimony, or evaluate the weight of the evidence. Judgment n.o.v. should be granted only when the evidence could lead reasonable men to but one conclusion. Fishman v. Clancy, 763 F.2d 485, 486 (1st Cir.1985); Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53, 54 (1st Cir.1984); Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 989 (1st Cir.1978). And our review of the evidence and inferences fairly drawn therefrom must be made in the light most favorable to the prevailing party. Robinson v. Watts Detective Agency, Inc., 685 F.2d 729, 732 (1st Cir.1982), cert. denied, 459 U.S. 1105 [103 S.Ct. 728, 74 L.Ed.2d 953] (1983); DeVasto v. Faherty, 658 F.2d 859, 861 (1st Cir.1981).

Wildman v. Lerner Stores Corp., 771 F.2d 605, 607 (1st Cir.1985); see Wierstak v. Heffernan, 789 F.2d 968, 973 (1st Cir.1986); Kibbe v. City of Springfield, 777 F.2d 801, 806-07 (1st Cir.1985), cert. granted, 475 U.S. 1064, 106 S.Ct. 1374, 89 L.Ed.2d 600 (1986), cert. dismissed as improvidently granted, 480 U.S. 257, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987). It is these principles that control our review of the record.

In Monell v. New York City Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court determined in what circumstances a municipality could be held liable under Sec. 1983 for deprivations of constitutional rights suffered at the hands of municipal employees. It held that:

a municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under Sec. 1983 on a respondeat superior theory.

* * *

* * *

Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Sec. 1983.

Id. at 691, 694, 98 S.Ct. at 2036, 2037 (emphasis in the original). Holding the city liable only if the injury results from an officially sanctioned policy or custom, exempts the municipality from responsibility for the aberrant and unpredictable behavior of its employees while making it liable for acts and conduct rightly attributable to the city. See City of Canton v. Harris, --- U.S. ----, ---- - ----, 109 S.Ct. 1197, 1202-06, 103 L.Ed.2d 412 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 479-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986); Oklahoma City v. Tuttle, 471 U.S. 808, 817-18, 821, 105 S.Ct. 2427, 2432-33, 2435, 85 L.Ed.2d 791 (1985); id. 436 U.S. at 691-94, 98 S.Ct. at 2036-37.

In the instant case, the jury was presented with two alternative theories for finding that the plaintiffs' injuries 4 were caused by a "policy or...

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