Romano v. Howarth

• Citation: 998 F.2d 101
• Decision Date: 02 July 1993
• Docket Number: No. 1425,D,1425
• Parties: 39 Fed. R. Evid. Serv. 196 Anthony ROMANO, Plaintiff-Appellant, v. Kenneth HOWARTH, Michael Juron and Matthew Karkos, Defendants-Appellees. ocket 92-2230.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 101

998 F.2d 101

39 Fed. R. Evid. Serv. 196

Anthony ROMANO, Plaintiff-Appellant, v. Kenneth HOWARTH, Michael Juron and Matthew Karkos Defendants-Appellees.

No. 1425, Docket 92-2230.

United States Court of Appeals Second Circuit.

Argued May 11, 1993.

Decided July 2, 1993.

Penny Shane, New York City (Tariq Mundiya, New York City, of counsel), for plaintiff-appellant.

Edward J. Curtis, Jr., Asst. Atty. Gen., State of New York (Robert Abrams, Atty. Gen., Ellen J. Fried, Asst. Atty. Gen., State of New York, of counsel), for defendants-appellees.

Before: MINER, McLAUGHLIN and FRIEDMAN, ^* Circuit Judges.

McLAUGHLIN, Circuit Judge:

Anthony Romano, a former prisoner, appeals from a judgment entered in the United States District Court for the Southern District of New York dismissing his civil rights action following a jury verdict in favor of the defendants. Romano brought this action under 42 U.S.C. § 1983 (1988), claiming that his Eighth Amendment rights were violated when corrections officers used excessive force to restrain him. Because we conclude that the special interrogatories submitted to the jury inaccurately framed the issues to be resolved, we reverse and remand to the district court for a new trial.

BACKGROUND

Anthony Romano was an inmate in the custody of the New York State Department of Correctional Services, being treated in the Mental Health Unit ("MHU") of the Sullivan Correctional Facility in Woodbourne, New York. The medical staff in the MHU are employees of the New York State Office of On April 19, 1986, Romano got into a quarrel with corrections officers over telephone privileges in the MHU day room. He became violent and was forcibly removed to a mental health observation cell where he remained for several hours, all the while ranting and demanding his release. That evening, the three defendants approached Romano's cell accompanied by MHU staff nurse Lori Hasbrouck, who intended to administer a sedative. Romano adamantly refused to accept the sedative.

                Mental Health;  and the corrections personnel are employees of the Department of Correctional Services.   Hence, to some Romano was a patient and to others, an inmate.   The three defendants were corrections officers assigned to the MHU
                

The ensuing events are sharply disputed and are at the heart of this suit. Romano testified that Officer Howarth charged into the cell with a body shield, knocking Romano against the back wall of the cell. He also said that the defendants threw him to the ground, punched him in the jaw and stomped repeatedly on his hands. He claimed to have suffered bumps on his head, a dislocated finger, back pains and a bruised jaw.

Not surprisingly, the defendants and their witnesses recounted a much different story to the jury. They testified that when they entered the cell, Romano was cooperative, that he walked to his bed, lay face down and assumed the appropriate position to receive a sedative. Witnesses testified that the defendants held Romano in place by the wrists and ankles, even though Romano offered no resistance. Nurse Hasbrouck recorded in her log that the sedative was administered "without incident."

Although contemporaneous medical reports noted minor bruises and a "slightly deformed" finger, the defendants claimed that Romano had earlier inflicted those injuries upon himself when he repeatedly punched the walls of his cell before they entered. To support its version, the defense introduced into evidence Romano's psychiatric "Progress Notes," taken by a nurse at the MHU the day after the incident. In those notes, the nurse recorded an unidentified corrections officer's statement that Romano had admitted to that officer that he had indeed hurt his hand punching a wall. The exact entry in the notes is:

CO [corrections officer] asked [Romano] "[H]ow is your hand?" [Romano] replied "[F]ine."... CO then asked "How did you hurt it?" [Romano] replied "I punched the wall."

The nurse who recorded the statement in the Progress Notes did not testify at trial. Although the record is far from clear, the parties have assumed that the unnamed officer who made that statement to the nurse was one of the defendants (because the defendants were the only officers on duty that day). Romano, of course, objected to the introduction of the officer's statement, arguing that it was hearsay and lacked sufficient trustworthiness to be admitted as a business record. See Fed.R.Evid. 803(6).

At the end of a four-day trial, the court gave the jury special interrogatories on a verdict form ("Verdict Form I") designed to focus on Romano's Eighth Amendment claim. Verdict Form I posed three questions as to each defendant:

1) Has the plaintiff proved by a preponderance of the evidence that force was used?

2) Has the plaintiff proved by a preponderance of the evidence that the force used was excessive or unreasonable as the Court has defined those terms?

3) Has the plaintiff proved by a preponderance of the evidence that the force used was applied maliciously and sadistically to cause harm and not in a good-faith effort to maintain and restore discipline?

In its charge, the court explained that question two addressed the "objective," and question three, the "subjective" components of the Eighth Amendment claim.

The jury answered yes to questions one and two, and no to question three. In other words, the jury found that the defendants' use of force had been "excessive or unreasonable," but that they had acted without malice.

The district court concluded that the jury's answers were inconsistent. Specifically, the To resolve this apparent inconsistency, the court ordered the jury to resume deliberations, and furnished it with supplemental special interrogatories on a second verdict form ("Verdict Form II") that would elicit whether the jury's affirmative answers to questions one and two reflected the jury's belief in Romano's version of the events. Verdict Form II put the following questions as to each defendant:

                jury's answer to question three indicated its belief that the officers acted in good faith when they restrained Romano.   But, said the court, the jury's affirmative answers to questions one and two indicated that it believed Romano's version of what happened in the cell.   Because Romano's version was a violent altercation, the court was understandably hesitant to find that such a beating could ever be inflicted in good faith
                

1) Does your finding that excessive or unreasonable force was used reflect a finding that you accepted plaintiff's testimony as to what occurred on April 19, 1986?

....

4) Does your finding that excessive or unreasonable force was used reflect only a finding that excessive or unreasonable force was used in the medication of plaintiff?

The jury answered no to question one and yes to question four. Satisfied that the jury disbelieved Romano's story that a beating occurred in the cell that day, the court entered judgment for the defendants and dismissed Romano's complaint.

Romano now appeals, challenging the formulation of the special interrogatories as well as the admission of the Progress Notes.

DISCUSSION

I. The Special Interrogatories

We start by noting that at no time did Romano raise a sufficiently articulate objection to apprise the trial court of what was erroneous about the interrogatories. We may reverse, therefore, only if we find plain error. Fed.R.Civ.P. 51. See Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). Plain error has recently been defined by the Supreme Court to mean a "[d]eviation from a legal rule" that is "clear under current law," and that "affect[s] substantial rights." United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993). "The Court of Appeals should correct a plain forfeited error affecting substantial rights if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. --- U.S. at ----, 113 S.Ct. at 1779 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). We conclude that the errors here were plain error.

District courts have broad discretion under Rule 49(a) to formulate special interrogatories for submission to the jury. See Ruggiero v. Krzeminski, 928 F.2d 558, 561 (2d Cir.1991). Whenever a court chooses to use them, however, it must "give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue." Fed.R.Civ.P. 49(a). Accordingly, special interrogatories must be read "in conjunction with the district court's charge." Cutlass Prods., Inc. v. Bregman, 682 F.2d 323, 327 (2d Cir.1982). "We will reverse a judgment entered upon answers to questions which mislead and confuse the jury or which inaccurately frame the issues to be resolved by the jury." Cann v. Ford Motor Co., 658 F.2d 54, 58 (2d Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2036, 72 L.Ed.2d 484 (1982). Our analysis must begin, therefore, with the law applicable to Romano's claim.

The Eighth Amendment protects prisoners from "cruel and unusual punishment." See Wilson v. Seiter, --- U.S. ----, ----, 111 S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 102-05, 97 S.Ct. 285, 290-91, 50 L.Ed.2d 251 (1976). Thus, inmates have the right to be free from the "unnecessary and wanton infliction of pain" at the hands of prison officials. Estelle, 429 U.S. at 104, 97 S.Ct. at 291 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)). The Objectively, the plaintiff must establish that the deprivation alleged is "sufficiently serious," or "harmful enough," to reach constitutional dimensions. See Wilson, --- U.S. at ----, ----, 111 S.Ct. at 2324, 2326. Hence, a de minimis use of force will rarely suffice to state a constitutional...