KEETON, District Judge.
This case arises principally from an incident of June 11, 1991 during which a correctional officer used "excessive force" against an inmate of an exceptionally secure cell block of the most secure correctional institution of the Commonwealth of Massachusetts.
"Excessive force" is used throughout this Opinion strictly in the sense that the force used "was more force than a reasonable custodial officer in the same circumstances would have thought necessary to the enforcement of discipline and order within the institution." Verdict, answer to Question 2. The correctional officer did not act for an impermissible purpose, id., answer to Question 1, and did not act maliciously and sadistically for the very purpose of causing harm, id., answer to Question 2(b).
After a jury trial in which a special verdict form with seven questions (and subparts) was submitted to the jury (see Part III, below), the court concluded that the jury findings warranted judgment for the defendants on all counts, and judgment for the counterclaimant on one count of battery. After receiving the verdict, the court ordered judgment accordingly.
Plaintiff has now filed a Motion to Alter or Amend the Judgment and Memorandum in Support (Docket Nos. 25, 26, filed November 15, 1993), to which defendants have filed an Opposition (Docket No. 27, filed November 26, 1993). Plaintiff has filed a Reply Brief (Docket No. 28, filed December 4, 1993).
Only after the jury verdict was received did it become possible to state, with the precision of the first paragraph of this Opinion, the factual nature of this case.
When the case was called for trial on October 25, 1993, the claims and defenses alleged in the complaint, the answer of the defendants, and the counterclaim of one of the defendants, raised in classic pattern a complex array of disputable factual allegations and disputable issues of law -- state tort law, constitutional tort law (federal and state), and civil rights law (federal and state).
Some issues of fact and law were eliminated by the strategic choices of the parties as the case proceeded through trial and through the fashioning of the verdict form and charge to the jury. Even so, the law defining what factual disputes are relevant to the claims and defenses remaining for submission to the jury included issues of federal and state law as yet unsettled by precedent. In these circumstances, with the cooperation of counsel, the court fashioned a verdict form aimed at obtaining all findings of fact that might be essential to determining the final outcome of the case, regardless of how disputable issues of law might finally be resolved. Thus, if a higher court resolves one or more of the disputable legal issues in a way contrary to the trial court's ruling, the higher court might simply order an alteration or amendment of the judgment rather than ordering a new trial. Because of the inevitable expense and delay before final disposition of this dispute, the possibility of a new trial is not attractive to any party or to the court.
Also, with the acquiescence of counsel, the court advised the jury of the uncertainty about some of the applicable rules of law and of the need for the jury to answer each of the questions as directed by the verdict form. Charge to the Jury, p. 17.
The findings of the jury mooted some of the disputable issues of law but made it necessary for the court to decide others to determine the judgment. Phrased in non-doctrinal terms, the central questions the court had to consider, and now reconsiders, are these:
FIRST. Under state as well as federal law, to succeed in a claim against a public officer based on the use of excessive force, must the claimant prove more than negligence? That is, must the claimant's proof satisfy a legal test for accountability that depends on a finding that the public officer's conduct was more blameworthy than negligence?
SECOND. If Yes, will proof of something more than negligence but less than malicious and sadistic use of force for the very purpose of causing harm be sufficient?
THIRD. For whom should the court order judgment if
(a) the parties, with the court's approval, forego all contentions that some other legal test for accountability applies, submit to the jury only
(i) claims based on use of force for an impermissible purpose,
(ii) claims based on negligence, and
(iii) claims based on malicious and sadistic use of force for the very purpose of causing harm, and
(b) the jury finds negligence but neither use of force for an impermissible purpose nor malicious and sadistic use of force for the very purpose of causing harm?
I conclude in Part IV below that the answer to the FIRST question is YES. Regardless of the doctrinal labels the claimant applies to his theory of a prima facie claim and theories of defense (including privilege and qualified immunity), something more than proof of negligence is required under both federal and state law to support the claim.
Sources of authority to which trial lawyers and a trial judge must look for guidance do not supply an answer to the SECOND question, under either federal law or state law. Instead, trial lawyers and the trial judge are confronted with an array of conflicting signals in Constitutional provisions, statutes, and precedents. I conclude, however, that I do not need to decide whether proof of something more than negligence but less than malicious and sadistic use of force is sufficient to support the claims made by plaintiff in this case because, as explained in Part IV below, plaintiff decided not to base his claims on an intermediate test for accountability somewhere between negligence and malicious and sadistic conduct. Having made this election as part of his trial strategy, plaintiff is not entitled to assert now any claim based on an intermediate test.
The THIRD question arises from the uncertainty about the test for accountability to be applied in cases involving federal and state torts. The uncertainty presents serious problems of strategy for trial counsel on both sides, and serious issues of trial management for trial lawyers and the trial judge. In these circumstances, charging a jury to return a general verdict runs a very high risk of reversal and new trial because there are so many unsettled questions of law as to which a higher court may decide that the trial court erred. Often both parties, well counseled by their trial attorneys, will choose to forego some alternative contentions and focus the case more sharply on their respective preferred positions. The parties in this case made such a choice.
I conclude, in the present case, for reasons explained in this Opinion, that the answer to the THIRD question is judgment for defendants. Plaintiff chose to try the case on just three alternative grounds -- use of force for an impermissible purpose, use of more force than a reasonable custodial officer would have thought necessary in like circumstances, and use of force maliciously and sadistically for the very purpose of causing harm. Plaintiff failed to persuade the jury on the first and third grounds (impermissible purpose and malicious and sadistic purpose), and I conclude that the law does not support liability on plaintiff's second ground (negligence).
The jury returned a verdict as follows:
1. On June 11, 1991, did the defendants, acting together, or Francis McGrail, acting separately, use force for an impermissible purpose against the plaintiff, Michael Foster? (a) Defendants acting together: YES X NOIf "YES," did the defendants apply the force YES NOmaliciously and sadistically for the verypurpose of causing harm?(b) Francis McGrail, acting separately: YES X NOIf "YES," did Francis McGrail apply the force YES NOmaliciously and sadistically for the verypurpose of causing harm?