Furtado v. Bishop

Citation604 F.2d 80
Decision Date26 July 1979
Docket NumberNos. 78-1482,78-1483,s. 78-1482
Parties4 Fed. R. Evid. Serv. 929 John FURTADO et al., Plaintiffs-Appellees, v. Harold BISHOP et al., Defendants-Appellants. John FURTADO et al., Plaintiffs-Appellants, v. Harold BISHOP et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Lee Carl Bromberg, Sp. Asst. Atty. Gen., Dept. of Correction, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief for Harold Bishop, et al.

Max D. Stern, Boston, Mass., with whom Jonathan Shapiro, Stern & Shapiro and Michael Avery, Boston, Mass., were on brief for John Furtado, et al.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. **

BOWNES, Circuit Judge.

This case stems from two separate but related incidents at the Massachusetts Correctional 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 inmates involved in a prison drug program. Sousa had consumed some home brew and his gait and general appearance 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 his 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 Framingham whom he knew, but Deputy Superintendent Butterworth 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 involved in the incidents. Deputy Superintendent Butterworth, who had commenced his own investigation of the incident on March 23 and had read the reports, recommended 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 Walpole and Sousa to DSU Bridgewater, where they spent approximately six months. 1

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 asking the district court to enjoin defendants from intercepting and reading any correspondence from plaintiffs to and from their attorneys, to order defendants to allow plaintiffs or their representatives to interview plaintiffs and potential witnesses in privacy and to permit nonlawyers to conduct the interviews, to enjoin defendants from interfering 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 modification, the relief requested except for transfer out of segregation to the general prison population.

After a long unexplained delay, the case was assigned 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 Eleven special interrogatories were submitted to the jury which can be summarized as follows: (1) was improper 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 compensatory damages for the use of improper physical force; (4) the amount of punitive damages; (5) did any defendants make an intentionally false report to cover up the events of the night of March 21, 1970 (with a list of defendants' names for checking if applicable); (6) did any of the defendants make an intentionally false report or recommendation with the purpose or expectation that it would lead to segregated confinement (with a list of defendants' names for checking if applicable); (7) compensatory damages for segregation; (8) punitive damages for segregation; (9) did defendant Butterworth suppress the second letter to Dr. Van Waters; (10) did defendant Butterworth 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.

which was assented to by defendants. The complaint alleged unjustified assaults and beatings and use of excessive force against both plaintiffs. It asserts that Sousa was held under conditions of solitary confinement at DSU Bridgewater 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 attempting to write to the United States District Court and by attempting to mail letters seeking legal assistance, which attempts were frustrated by defendant Butterworth." 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.

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 confinement, and Sousa $3,000 in compensatory damages and $3,000 in punitive damages for Butterworth's mail suppression and recommendation of segregation. After deleting $1,000 in compensatory damages against Butterworth 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 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 The plaintiffs' theory, accepted by the jury, was that the guards had attacked them and that certain of the defendants 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 segregated confinement. According to this theory, defendants were liable for plaintiffs' confinement in segregation because it constituted arbitrary and capricious or grossly disproportionate punishment for drinking and refusing to obey orders, 2 in violation of the eighth amendment and the substantive due process guarantee of the fourteenth amendment 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 fourteenth amendment.

for making false reports or 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, kicking, and taking a swing at an officer; he recommended the "(m)aximum 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 ultimately recommended the transfers.

As we understand defendants' position, they cont...

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