1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-24-1995

Douglas v Owens

Precedential or Non-Precedential:

Docket 94-7406

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Recommended Citation

"Douglas v Owens" (1995). 1995 Decisions. Paper 82.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/82
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-7406 

 

 ANDRE DOUGLAS 

v. 

 DAVID S. OWENS; ROBERT M. FREEMAN; RICHARD C. SMITH; 

 LT. DEITRICH; LT. ORWIG; GRIFFITH; HORNING; SIMONCINI; 

 ARDABELL; BERA; ENRIQUEZ; KIM WILSON; SOWELL; C.O. POWELL; 

 C.O. SMITH; LT. SPELLS; JOHN DOES 

 Ronald Griffith; Christopher Simoncini; 

 Jose Luis Enriquez; Carl Ardabell, 

 Appellants 

 

 Appeal from the United States District Court 

 for the Middle District of Pennsylvania 

 (D.C. No. 89-cv-01879) 

 

 Argued January 12, 1995 

 BEFORE: COWEN, NYGAARD and ALITO, 

 Circuit Judges

 (Filed March 24, 1995) 

Eileen E. Wiggins (Argued) 

Williams & Cuker 

1650 Arch Street 

Suite 2350 

Philadelphia, PA 19103 

 COUNSEL FOR APPELLEE 

 Andre Douglas #AY-7089 

John G. Knorr, III 

Sandra W. Stoner 

Gregory R. Neuhauser (Argued) 

Office of the Attorney General 

of Pennsylvania 
Strawberry Square 

15th Floor 

Harrisburg, PA 17120 

 COUNSEL FOR APPELLANTS 

 Ronald Griffith 

 Christopher Simoncini 

 Carl Ardabell 

 Jose Luis Enriquez 

 

OPINION 

 

COWEN, Circuit Judge. 

 This civil rights action was filed with the United 

States District Court for the Middle District of Pennsylvania 

pursuant to 42 U.S.C. § 1983 by a state prisoner who alleges that 

he was beaten by numerous prison guards in the aftermath of a 

prison riot. The prison guards appeal the jury verdict and entry 

of judgment in favor of the plaintiff. We are called on to 

determine whether the district court: (1) abused its discretion 

in limiting the scope of cross-examination of a witness for the 

plaintiff; (2) abused its discretion in instructing the jury on 

the law governing the use of force against prisoners; and (3) 

erred by permitting the jury to render a special verdict on an 

issue which had not originally been submitted to them. 

 Because we conclude that the district court abused its 

discretion by improperly limiting the scope of cross-examination 

of a key witness for the plaintiff, we will reverse the judgment 

of the district court and remand for a new trial. In light of 

our decision to remand for a new trial, it is not necessary to 
address the issue of the jury instruction regarding the law 

governing the use of force against prisoners. Nonetheless, 

because of the likelihood that this issue will undoubtedly arise 

again during the new trial, we will give directions on the issue 

to the district court. Finally, as to the special verdict issue, 

we conclude that the district court erred in allowing the jury to 

consider whether a prison guard approved an excessive use of 

force when the only theory of liability submitted to the jury was 

that the prison guard actually participated in the beating. 

 

 I. Factual and Procedural Background 

 Defendants in the district court and appellants before 

us are four prison guards from the State Correctional Institution 

at Camp Hill, Pennsylvania ("SCI-Camp Hill").1 Andre Douglas 

("Douglas"), plaintiff in the district court, was an inmate at 

the same institution and alleges that he was beaten on two 

separate occasions by prison guards in the immediate aftermath of 

riots which occurred in October of 1989 at SCI-Camp Hill. 

 Douglas filed two complaints which alleged that 

appellants and seven others, all prison guards or prison 

officials, violated his constitutional rights when they beat him, 

observed others beat him, and failed to protect him. Summary 

 

1. The four defendants/appellants are Ronald Griffith 

("Griffith"), Christopher Simoncini ("Simoncini"), Jose Luis 

Enriquez ("Enriquez"), and Carl Ardabell("Ardabell"). For 

purposes of this appeal we will refer to them collectively as 

"appellants" or "prison guards" unless it is necessary to 

distinguish among them. 
judgment was granted in favor of two defendants. The case 

against the remaining defendants, including appellants, was tried 

before a jury. 

 Testimony at trial elicited that on October 25 and 26, 

1989, riots broke out at SCI-Camp Hill. Prior to and during the 

riots, Douglas was confined in the Restricted Housing Unit 

("RHU"), also known as "D block," within the prison. During the 

riots, the security of RHU had been compromised, requiring a 

thorough search or "shakedown" of the RHU, which was conducted on 

October 31, 1989. Douglas claimed that he was twice beaten 

without cause by corrections officers: once on October 31 after 

the shakedown and once on November 3, immediately before he was 

transferred to the federal penitentiary at Lewisburg, 

Pennsylvania.2 Douglas claims that during the October 31 

incident, he was handcuffed and then beaten with a baton in his 

cell, dragged out of his cell, beaten again, and then threatened 

with a shotgun. 

 Defendants attempted to show that Douglas was never 

beaten by offering the following evidence: (1) all of the 

defendants denied beating Douglas; (2) members of the 

Pennsylvania State Police who patrolled SCI-Camp Hill during the 

riots and were on duty during the alleged beating testified that 

Douglas had not been beaten; (3) although medical records at the 

 

2. Because none of the appellants were implicated in the alleged 

beating that occurred on November 3, 1989, any testimony or 

evidence relating to that day is not relevant for purposes of 

this appeal. 
prison indicate that Douglas complained of and was treated for 

chest pain following the riots, the medical records did not note 

any bruises or contusions that Douglas claims were present on his 

chest; and (4) a videotape of Douglas taken upon his arrival at 

Lewisburg shows no visible injuries to his head or face. 

Additionally, when asked by correction officials in the videotape 

if he had any injuries, Douglas answered that he did not. 

 Douglas attempted to corroborate his claim with 

testimony from the Imam Quadir Sabir ("the Imam")3, who at the 

time was an Islamic chaplain at SCI-Camp Hill. The Imam 

testified that at some point between October 25 and November 3, 

1989, he observed that Douglas had "abrasions or bruises in the 

chest area and around the neck area." App. at 73. On crossexamination of the Imam, appellants attempted to establish that 

the Imam had been fired by the Department of Corrections because 

of his involvement with the rioting inmates at SCI-Camp Hill and 

his failure to cooperate in an investigation of the riots. The 

district court, however, refused to permit this line of 

questioning on cross-examination and instead only allowed the 

jury to learn that the Imam's employment had been "terminated."4 

 

3. An "Imam" is a prayer leader of Islam, a Moslem scholar, or 

an authority on Islamic law. 

4. The cross-examination of the Imam was conducted by defense 

counsel Stoner as follows: 

 Q. You used to be an employe[e] of the Department of 

 Corrections; isn't that correct? 

 A. Yes. 
(..continued) 

 Q. You are no longer an employe[e] of the Department of 

 Corrections; are you? 

 A. No. 

 Q. In fact, you were an employe[e] -- 

 Ms. Wiggins (counsel for Douglas): Objection, Your Honor, 

 relevance. 

 Ms. Stoner: It goes to bias and motive, Your Honor. 

 Ms. Wiggins: May we approach? 

 

 The Court: Yes. 

 (The following discussion was had at sidebar:) 

 Ms. Stoner: Your Honor, he was terminated by the 

 Department, and therefore it goes to his bias 

and motive to speak against these officers. In 

fact, he was terminated because of his alleged 

involvement with the inmates in this riot, and 

his failure to cooperate in an investigation of 

the riots. 

 The Court: I am not going to let you get into the reasons 

 of the termination. You can bring out the fact 

 that he was terminated. 

 Ms. Stoner: That he was fired by the Department, and in 

 fact was barred from any federal or any state - 

 The Court: No. He was terminated. That gives you enough 

 of a bias. You don't have to get into the 

 reasons for his termination. We would be trying 

 a case within a case. 

 Ms. Wiggins: The ruling is that she may not say that he was 

 fired? 

 The Court: That he was terminated. 

 Ms. Stoner: Your Honor, he was fired. 

 The Court: He was terminated. That is the way it is going 

 to be. 

 Ms. Stoner: I would note my objection for the record. 
 At the conclusion of his case, Douglas voluntarily 

dismissed one defendant. In addition the district court granted 

another defendant's motion to dismiss. The jury returned special 

verdicts finding that appellants Simoncini, Enriquez, and 

Ardabell had used excessive force against Douglas and that 

appellant Griffith had approved the use of excessive force. The 

jury awarded Douglas a total of $10,000 in compensatory and 

punitive damages.5

(..continued) 

 The Court: You have an exception. 

 (End of discussion at sidebar.) 

 By Ms. Stoner: 

 Q. Mr. Sabir, wasn't your employment with the Department 

 of Corrections terminated by the Department after the 

 riot? 

 A. Yes. 

 Ms. Stoner: I have no further questions, Your Honor. 

App. at 80-82. 

5. The damages were allocated as follows: 

DEFENDANT COMPENSATORY PUNITIVE TOTAL 

 

Simoncini $ 500 $ 1000 $ 1500 

Griffith 500 1000 1500 

Enriquez 500 1000 1500 

Ardabell 1500 4000 5500 

 

TOTAL $ 3000 $ 7000 $10,000 

App. at 305-06. 
 Appellants argue that the district court improperly 

limited their scope of cross-examination of the Imam. Next, 

appellants take issue with the district court's refusal to 

instruct the jury that not all force used against a prisoner is 

excessive. They argue that had the jury been informed that 

prison guards may lawfully use reasonable physical force when 

necessary in the prison setting, the jury may have concluded that 

such force was justified under the circumstances. Finally, 

appellants claim that it was improper for the district court to 

allow the jury to impose liability on Griffith for approving the 

use of excessive force, when throughout the litigation and in the 

charge to the jury Douglas only claimed that Griffith used

excessive force. 

 II. Discussion 

 A. Scope of Cross-Examination

 We review a district court's ruling concerning the 

allowable scope of cross-examination for abuse of discretion. 

United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991) (citing 

United States v. Reed, 724 F.2d 677, 679 (8th Cir. 1984)), cert.

denied, 502 U.S. 1092, 112 S. Ct. 1165 (1992). 

 We begin our analysis by noting that a party is 

guaranteed "only `an opportunity for effective cross-examination, 

not cross-examination that is effective in whatever way, and to 

whatever extent, the defense might wish.'" Kentucky v. Stincer, 

482 U.S. 730, 739, 107 S. Ct. 2658, 2664 (1987) (quoting Delaware 

v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294 (1985)) 
(emphasis in original). We also recognize that the district 

court is required to strike a balance between the opportunity to 

cross-examine and the need to prevent repetitive or abusive 

cross-examination. United States v. Casoni, 950 F.2d 893, 919 

(3d Cir. 1991). Thus, the district court may properly exercise 

its discretion in this area by imposing reasonable limits on the 

scope of cross-examination, weighing such factors as undue 

prejudice, relevancy, and delay due to repetition. As stated 

recently by the Court of Appeals for the Eleventh Circuit, 

"[t]rial judges retain wide latitude to impose reasonable limits 

on cross-examination based on concerns about, among other things, 

confusion of the issues or interrogation that is repetitive or 

only marginally relevant." United States v. Baptista-Rodriguez, 

17 F.3d 1354, 1370-71 (11th Cir. 1994). 

 To properly evaluate a witness, a jury must have 

sufficient information to make a discriminating appraisal of a 

witness's motives and bias. See United States v. Abel, 469 U.S. 

45, 52, 105 S. Ct. 465, 469 (1984). It is an abuse of discretion 

for a district judge to cut off cross-examination if the 

opportunity to present this information is not afforded. See

Harbor Ins. Co. v. Schnabel Foundation Co., 946 F.2d 930, 935 

(D.C. Cir. 1991) (district court abused its discretion in cutting 

off cross-examination because it was not collateral, irrelevant, 

or prejudicial and had a direct bearing on the weight to be given 
the witness' testimony by the jury), cert. denied, __ U.S. __, 

112 S. Ct. 1996 (1992).6 

 

6. Much of the current authority pertaining to the permissible 

scope and limitation of cross-examination involves cases of a 

criminal nature. See Pennsylvania v. Ritchie, 480 U.S. 39, 51-

52, 107 S. Ct. 989, 998 (1987) ("[T]he right to cross-examination 

includes the opportunity to show that a witness is biased, or 

that the testimony is exaggerated or unbelievable."); Delaware v. 

Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1435 (1986) 

("[T]he exposure of a witness' motivation in testifying is a 

proper and important function of . . . cross-examination."); 

United States v. Ovalle-Marquez, 36 F.3d 212, 217 (1st Cir. 1994) 

(trial court abuses its discretion on cross-examination "if the 

jury is left without sufficient information concerning formative 

events to make a discriminating appraisal of a witness's motives 

and bias") (citations and internal quotation omitted), cert.

denied, __ U.S. __, 115 S. Ct. 947 (1995); United States v. 

Carty, 993 F.2d 1005, 1010 (1st Cir. 1993) (the district court 

may not limit cross-examination unless the jury possesses 

sufficient information to make a discriminating appraisal of the 

possible biases and motivations of the witness); United States v. 

Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990) (crossexamination is not improperly limited if the jury possesses 

"facts sufficient to make a discriminating appraisal of the 

particular witness's credibility") (citation and internal 

quotation omitted), cert. denied, 499 U.S. 940, 111 S. Ct. 1397 

(1991); United States v. Coleman, 997 F.2d 1101, 1105 (5th Cir. 

1993) (the court did not abuse its discretion in limiting crossexamination because the jury received adequate information with 

which to evaluate the bias, credibility, and vindictive 

proclivities of the witness), cert. denied, __ U.S. __, 114 S. 

Ct. 735 (1994); United States v. Hall, 653 F.2d 1002, 1008 (5th 

Cir. 1981) ("The exposure of possible motivations for false 

testimony is a fundamental element of cross-examination . . . . 

Thus, cross-examination into any motivation or incentive a 

witness may have for falsifying his testimony must be 

permitted."); United States v. Christian, 786 F.2d 203, 213 (6th 

Cir. 1986) (the district court did not abuse its discretion in 

limiting the scope of cross-examination because the aggressive 

attacks on the witness' credibility by counsel put the jury in 

possession of sufficient information by which to appraise the 

witness' credibility); United States v. Nelson, 39 F.3d 705, 708 

(7th Cir. 1994) ("[W]hen reviewing the adequacy of crossexamination, the question is whether the jury had sufficient 

information to make a discriminating appraisal of the witness's 

motives and bias.") (citation and internal quotation omitted) 

(bracket in original); United States v. Durman, 30 F.3d 803, 811 
 As related above, appellants were only permitted to 

elicit from the Imam that he was "terminated" from his position 

after the riots. We conclude that the district court abused its 

discretion in not allowing appellants the opportunity to question 

the Imam with regard to the circumstances surrounding his 

discharge. The word "terminated" and even the word "fired" is 

not sufficient to effectively portray to the jury any alleged 

bias, lack of credibility, and motives of the Imam. The Imam 

could have been terminated or fired for any number of "neutral" 

(..continued) 

(7th Cir. 1994) (no abuse of discretion because counsel was able 

to cross-examine the witness extensively and had the opportunity 

to probe credibility and bias), cert. denied, __ U.S. __, 115 S. 

Ct. 921 (1995); United States v. Warren, 18 F.3d 602, 603 (8th 

Cir.) (trial court did not abuse its discretion in refusing to 

permit cross-examination on a particular topic because counsel 

had an opportunity to vigorously cross-examine witness about 

related matters), cert. denied, __ U.S. __, 115 S. Ct. 652 

(1994); United States v. Dees, 34 F.3d 838, 844 (9th Cir. 1994) 

(because counsel was able to elicit substantial information from 

the witness relating to her biases, the district court did not 

abuse its discretion by further limiting cross-examination); 

United States v. Morales-Quinones, 812 F.2d 604, 614 (10th Cir. 

1987) ("[C]ross-examination of a witness regarding specific 

instances of conduct which are probative to show any incentive a 

witness may have to falsify his testimony is also proper."); 

United States v. Diaz, 26 F.3d 1533, 1541 (11th Cir. 1994) (no 

abuse of discretion in limiting cross-examination because no 

further bias would have been exposed by further questioning), 

cert. denied, __ U.S. __, 115 S. Ct. 952 (1995). 

 While cross-examination in the criminal context assumes 

a heightened importance because of the constitutional 

implications inherent in confronting one's accuser pursuant to 

the Sixth Amendment, similar concerns -- the jury must have 

sufficient information to make a discriminating appraisal of the 

witness's motives and bias -- are implicated in a civil trial 

context as well. 
reasons which would not suggest to the jury that he was biased in 

favor of Douglas and against appellants.7 Without further 

inquiry, the jury did not have sufficient information with which 

to make a discriminating appraisal of the Imam's motives or bias. 

 In addition, the jury may have felt that a member of 

the clergy is impartial and tells the truth. Our concern that 

the jury may have given unhesitating credence to the testimony of 

the Imam, a religious figure, is heightened by the fact that the 

only claim on which the jury found in favor of Douglas was the 

claim in which his testimony was corroborated by the Imam.8

 In order to effectively cross-examine the Imam, the 

appellants must be in a position to reveal that the Imam may be 

both biased against appellants and biased in favor of prisoners, 

such as Douglas.9 In order to accomplish this, appellants must 

 

7. We can speculate as to any number of reasons including: (1) a 

budget deficit which required that his position be eliminated; 

(2) a transfer to another correctional institution and a refusal 

on his part to move or commute there; (3) the ending of a 

provisional term of employment; (4) the lack of Islamic prisoners 

at that prison; (5) the prisoners desire to have another Imam; or 

(6) a host of other reasons having nothing to do with the prison 

riot. 

8. Indeed, we note that where the only testimony for the 

plaintiff was the testimony of Douglas himself, the jury returned 

a verdict in favor of the appellants. 

9. Appellants have suggested two possible methods of achieving 

this goal: (1) allow a limited cross-examination whereby the 

appellants set forth only the facts of the Imam's discharge; or 

(2) allow an extensive cross-examination and provide the jury 

with a limiting instruction which explains that the purpose of 

the cross-examination was simply to reveal the bias of the 

witness. Without intruding unnecessarily into what properly 

remains the domain of the district court, we note that either of 

these methods would be a suitable technique if, as a consequence, 
at a minimum be in a position to attempt to elicit from the Imam 

that: (1) he exhibits some bias against appellants because he was 

fired from his position at the prison due to alleged misconduct 

on his part; and (2) he exhibits some bias in favor of prisoners 

like Douglas as revealed by his refusal to participate in the 

investigation.10 Because we conclude that the district court 

unduly limited the scope of cross-examination, we will remand 

this matter to the district court for a new trial.11

 B. Jury Instruction on the Use of Excessive Force

 We must next decide whether the district court erred in 

instructing the jury on the law governing the proper use of force 

(..continued) 

the jury receives adequate information with which to evaluate the 

bias and credibility of the Imam. 

10. We intimate no view as to whether the evidence of the Imam's 

alleged involvement with the rioting inmates or his failure to 

cooperate in the investigation of the riot would be a specific 

instance of conduct which could not be proved by extrinsic 

evidence except as otherwise provided in Rule 608(b) of the 

Federal Rules of Evidence. 

11. We are further troubled by the absence in the record of any 

evidentiary ruling by the district court whereby this highly 

relevant evidence was excluded. Douglas argues that the district 

court implicitly performed a Rule 403 (Federal Rules of Evidence) 

balancing analysis and concluded that the evidence should be 

excluded. However, assuming arguendo that a Rule 403 balancing 

was undertaken, we would be hard-pressed to hold that this 

extremely relevant and probative evidence of the Imam's alleged 

bias was "outweighed by the danger of unfair prejudice, confusion 

of the issues, or misleading the jury, or by considerations of 

undue delay, waste of time, or needless presentation of 

cumulative evidence." Fed. R. Evid. 403. Additionally, we are 

unwilling to abdicate our appellate function and defer to the 

district court when such evidentiary rulings have not been made 

part of the record before us. 
against prisoners. "We review a district court's rulings on 

points for the jury charge for abuse of discretion." Waldorf v. 

Shuta, 896 F.2d 723, 740 (3d Cir. 1990) (citation omitted). At 

trial, counsel for Douglas and counsel for appellants presented 

the jury with two mutually exclusive and inconsistent theories 

concerning the beatings which allegedly occurred. Douglas argued 

before the jury that he was beaten without provocation by prison 

guards. Appellants defended on the theory that the alleged 

beatings never occurred and, thus, they could not have possibly 

participated in such conduct. Nevertheless, appellants also 

requested the district court to charge the jury on the proper and 

reasonable use of force in a prison setting.12

 The district court rejected the proposed jury 

instruction offered by appellants, and in its place used its own 

charge regarding the use of excessive force in a prison 

 

12. Specifically, appellants asked the district court for the 

following charge: 

 Not all force, push, or shove used by a prison official 

should be considered excessive. Prison officials may use force 

against inmates as a security measure to resolve a disturbance 

that poses significant risks to the safety of inmates and staff. 

The infliction of pain in the course of a prison security 

measure, therefore, doe[s] not amount to cruel and unusual 

punishment even if in retrospect it appears that the amount of 

force used or authorized turned out to be unnecessary in a strict 

sense. So, if you find that the defendants authorized use of 

force in a good faith effort to maintain or restore discipline, 

i.e., to make sure that institution was secure, then you must 

return a verdict in favor of the defendants. 

Douglas v. Owens, No. 89-1879, slip op. at 5 (M.D.Pa. May 31, 

1994). 
context.13 Appellants argue that the charge given by the 

district court is inadequate because it fails to convey the 

notion that "force is not constitutionally `excessive' just 

because it turns out to have been unnecessary in hindsight." 

Appellants' Brief at 16 (emphasis in original). 

 

13. The district court charged the jury as follows: 

 The United States Constitution protects persons from 

being subjected to excessive force. In other words, prison 

officials may employ only the amount of force necessary under the 

circumstances. 

 . . . 

 In considering the degree of force a reasonable prison 

official will use, you may consider such factors as the need for 

the application of force, the relationship between the need and 

the amount of force that was used, the extent of the injury 

inflicted, whether force was applied in a good faith effort to 

maintain and restore discipline or maliciously or sadistically 

for the very purpose of causing harm, the extent of the threat to 

the safety of staff and inmates as reasonably perceived by 

responsible officials [and] any efforts made to temper the 

severity of a forceful response. 

 In order to prevail on his claim, plaintiff must prove 

by a preponderance of the evidence that the defendants were 

actually in his cellblock, and that they used physical force 

against him, and that the force was applied maliciously and 

sadistically for the very purpose of causing harm to the 

plaintiff. To do something maliciously means to desire to harm a 

person or to see a person suffer harm. To do something 

sadistically means to inflict pain on the person for one's own 

pleasure. 

 The United States Constitution protects persons from 

being subjected to excessive force. Prison officials may not act 

with deliberate indifference to the safety of prisoners. 

 . . . 

 To prevail in this claim, plaintiff must prove that 

those defendants were actually in the RHU and that they saw 

excessive force being applied against the plaintiff maliciously 

and sadistically for the very purpose of causing plaintiff harm 

and that they were in a position to stop it, but that they did 

not. 

App. at 271-73 (emphasis supplied). 
 Contrary to the position espoused by appellants, the 

jury instruction adequately insulated appellants from liability 

if the jury concluded that they used excessive force, even if it 

is later determined to have been unnecessary. If "force was 

applied in a good faith effort to maintain or restore 

discipline," App. at 272 (emphasis supplied), the jury 

presumably would conclude that although the use of force was 

excessive, it was still justified given the circumstances. 

Further, the jury was instructed that it could believe a version 

of the events other than that presented by Douglas or appellants 

-- a version whereby appellants used force against Douglas, but 

it was not excessive, or that it was excessive, but nonetheless 

appeared justified under the circumstances. App. at 268. A jury 

verdict that force was justifiably used against Douglas and such 

force as was used was reasonable under the circumstances was not 

in accord with the contentions of any of the parties to this 

litigation, but the jury could reasonably come to such a 

conclusion by accepting some of the evidence offered by each 

party. 

 A party is entitled to a jury instruction that 

accurately and fairly sets forth the current status of the law. 

See McPhee v. Reichel, 461 F.2d 947, 950 (3d Cir. 1972) ("It is 

the responsibility of the trial judge to provide the jury with a 

clear and accurate statement of the law . . . ."); Resolution 

Trust Corp. v. Eason, 17 F.3d 1126, 1132 (8th Cir. 1994) (as long 

as entire charge fairly and adequately contains law applicable to 

case, judgment will not be disturbed on appeal); Harrison v. Otis 
Elevator Co., 935 F.2d 714, 717 (5th Cir. 1991) (trial court has 

broad discretion to compose jury instructions, as long as they 

are fundamentally accurate and not misleading). No litigant has 

a right to a jury instruction of its choice, or precisely in the 

manner and words of its own preference. See Heller Int'l Corp. 

v. Sharp, 974 F.2d 850, 860 (7th Cir. 1992) (district court has 

substantial discretion with respect to specific wording of jury 

instructions and need not give proposed instruction if essential 

points are covered by those that are given); Anderson v. Branen, 

17 F.3d 552, 559-60 (2d Cir. 1994) (litigant is entitled to 

instruction that correctly reflects applicable law and 

sufficiently covers essential issues, but party is not entitled 

to prescribe exact language of that charge). We conclude that 

the district court did not abuse its discretion in rejecting the 

proposed jury instruction offered by appellants. The charge of 

the district court was proper and adequate under the facts of 

this case. 

 C. Special Verdict

 The judge presented the jury with special verdict 

questions to decide the liability issues at the time of trial. 

The first question asked whether certain prison guards, including 

appellant Griffith, "used force" against Douglas. App. at 310. 

The second question asked whether certain prison guards (other

than Griffith) "approved of the use of force" against Douglas. 

App. at 311 (emphasis added). 
 During the course of jury deliberations, the jury sent 

a note to the judge asking if they could move Griffith from 

question one to question two -- that is, the jurors wished to 

consider whether Griffith had "approved of the use of force" 

rather than consider if Griffith had actually himself "used 

force." Apparently, the jurors did not think that Griffith 

himself had used force, but rather they believed that he had 

tacitly approved the use of force by failing to stop the other 

prison guards who were actually using improper or unreasonable 

force. The district court held that it would be proper for the 

jury to modify the special verdict form and decide whether 

Griffith was liable for being present during the assault and 

failing to intervene. 

 Appellant Griffith argues that the questions submitted 

to the jury were special verdict questions, and thus Rule 49(a) 

of the Federal Rules of Civil Procedure should be applied in 

reviewing the propriety of allowing the jury to modify the 

special verdict questions.14 He maintains that when special 

 

14. Rule 49(a) of the Federal Rules of Civil Procedure states in 

relevant part: 

 The court shall 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. If in so doing the court omits 

any issue of fact raised by the pleadings or 

by the evidence, each party waives the right 

to a trial by jury of the issue so omitted 

unless before the jury retires the party 

demands its submission to the jury. As to an 

issue omitted without such demand the court 

may make a finding; or, if it fails to do so, 
verdict questions are submitted, if "the court omits any issue of 

fact raised by the pleadings or by the evidence, each party 

waives the right to a trial by jury of the issue so omitted 

unless before the jury retires the party demands its submission 

to the jury." Fed. R. Civ. P. 49(a). Griffith contends that 

Douglas waived any right to recover against him on a claim of 

"approving of the use of force" because Douglas failed to object 

when Griffith's name was not included on question two of the 

special verdict form at the time it was submitted to the jury. 

 Douglas argues that Griffith errs in characterizing the 

claim before the jury as "using force." Douglas interprets the 

claim more broadly and construes it generally as "excessive force 

in violation of his Eighth Amendment rights." Appellee's Brief 

at 16. In this way, Douglas maintains that "using force" or 

"approving the use of force" were both properly before the jury 

since it is just as much a violation of Douglas' constitutional 

rights for Griffith to observe and approve his beating as it is 

for Griffith to physically beat Douglas. Additionally, Douglas 

contends that the court did not omit any issue of fact or 

evidence in submitting the special verdict questions to the jury, 

because the issue was in evidence by virtue of Douglas' testimony 

during cross-examination.15

(..continued) 

it shall be deemed to have made a finding in 

accord with the judgment on the special 

verdict. 

Fed. R. Civ. P. 49(a) (1994) (emphasis added). 

15. See infra note 16. 
 The approaches adopted by both parties are flawed and 

fail to address a more fundamental concern -- that is, Griffith 

was never on notice of any claim that he failed to intervene 

while others improperly used force against Douglas. Admittedly, 

during the course of cross-examination, Douglas himself suggested 

to the jury that Griffith either actually beat him or was present 

during the beatings, and approved the use of force against him.16 

However, although testimony elicited from Douglas during crossexamination may have indicated to the jury that Griffith was 

present, but did not participate in the unauthorized use of 

force, it appears that Douglas never: (1) included this theory in 

his pleadings; (2) advanced this theory to the jury while 

presenting his case-in-chief; (3) argued this theory to the jury 

in his closing arguments; or (4) asked that this alternative 

theory of liability be included in the special verdict questions. 

 

16. The cross-examination of Douglas proceeded as follows: 

 Q. You are saying for sure Officer Ardabell, Enriquez, 

 Simoncini and Griffith all beat you; is that correct? 

 A. Officer Griffith, he was there. I don't recall him 

 striking any blows. But without a doubt, Officer 

 Enriquez, Ardabell and Simoncini were -- definitely 

 struck me. 

 Q. So Sergeant Griffith then didn't hit you. So you are 

 changing your story now; is that correct? 

 A. I believe that he hit -- he struck me. But it happened 

 so fast, there were barrages of punches and kicks, some 

 of which I wasn't able to see at the time. But I am 

 inclined to believe he struck me. 

App. at 69-70. 
 The more reasoned and principled approach is to 

construe the jury question and the colloquy which ensued as an 

attempt by Douglas to modify the pleadings to conform to the 

evidence. We believe that Rule 15(b) of the Federal Rules of 

Civil Procedure contemplates exactly such a situation where a 

plaintiff attempts to have a claim presented to the jury for 

consideration even though that claim was not present in the 

pleadings.17 See Fed. R. Civ. P. 15(b).18 

 After the jury sent back a question asking if it could 

move Griffith from question one to question two on the special 

verdict sheet, Griffith argued vehemently that this was a new 

 

17. Here, however, in a highly unusual situation, it was not the 

plaintiff, but rather the jury who implicitly wanted this claim 

to be added to the complaint. Nonetheless, once raised by the 

jury, Douglas essentially argued that the pleadings should be 

amended to conform to the evidence at trial. 

18. Rule 15(b) of the Federal Rules of Civil Procedure states: 

When issues not raised by the pleadings are tried by express or 

implied consent of the parties, they shall be treated in all 

respects as if they had been raised in the pleadings. Such 

amendment of the pleadings as may be necessary to cause them to 

conform to the evidence and to raise these issues may be made 

upon motion of any party at any time, even after judgment; but 

failure so to amend does not affect the result of the trial of 

these issues. If evidence is objected to at the trial on the 

ground that it is not within the issues made by the pleadings, 

the court may allow the pleadings to be amended and shall do so 

freely when the presentation of the merits of the action will be 

subserved thereby and the objecting party fails to satisfy the 

court that the admission of such evidence would prejudice the 

party in maintaining the party's action or defense upon the 

merits. The court may grant a continuance to enable the 

objecting party to meet such evidence. 

Fed. R. Civ. P. 15(b). 
claim never before presented at trial.19 Despite the lack of a 

 

19. The discussion of the jury question proceeded as follows: 

 Ms. Stoner: The plaintiff's claim was always [- -] in his 

 complaint, in everything he ever presented [- 

 -] that Griffith participated in the beating. 

 . . . 

 Ms. Stoner: [P]laintiff's claim was always that Captain 

 Griffith beat him. It was never that he 

watched. Therefore, this is a new claim that 

has been raised against Griffith. It was never 

raised in any complaint or any pleading in this 

action. 

 The Court: That is what I am going to do. If I don't let 

 them do it and I find that I am wrong, I have 

 got a new trial facing me. If I let them do it 

 and I find that I am wrong, I can in post-trial 

 motions correct the problem. I think that is 

the only choice I have until we have enough time to 

research it. 

 . . . 

 

 Ms. Stoner: [M]y objection is as stated, it is a new claim 

 against Captain Griffith never raised before. 

 . . . 

 Ms. Stoner: I guess my question is you have now permitted 

 another claim against Captain Griffith. They 

 have a finding. I just don't understand how 

that works. How could we ever raise a question 

about that and get judgment NOV? 

 The Court: By saying that if I have permitted another claim 

 and it is wrong, if I am legally wrong in this, 

 it would appear to me you could get judgment 

 NOV. 

 . . . 

 The Court: I have the complaint here. But my concern is 

 that the jury could very easily determine maybe 

 from the evidence that he didn't beat anybody, 

 but that he was present and other people did. I 

 don't know whether that makes it a new claim or 

 it compromises a claim. 

App. at 292-95. 
formal motion by Douglas to amend the pleadings, the district 

court effectively permitted Douglas to amend the pleadings and 

include a claim against Griffith for approving the use of force. 

 We review for abuse of discretion the district court's 

granting of leave to amend the complaint. Berger v. Edgewater 

Steel Co., 911 F.2d 911, 916 (3d Cir. 1990), cert. denied, 499 

U.S. 920, 111 S. Ct. 1310 (1991). 

 Although the claim that Griffith approved the use of 

force was not raised in the pleadings, Rule 15(b) permits 

pleadings to be amended if the claim was tried by the express or 

implied consent of the parties. "[I]f the issue . . . has not 

been tried with the consent of the parties, then an amendment to 

conform to the pleadings will not be permitted no matter when 

made. 6A Charles A. Wright et al., Federal Practice and 

Procedure § 1494, at 53 (1990) (emphasis added). Clearly, the 

record does not support a finding of express consent by Griffith. 

 We must next address whether this issue was tried with 

the implied consent of Griffith. As noted by the Court of 

Appeals for the Fifth Circuit, a finding that an issue was tried 

by implied consent depends on: 

 whether the parties recognized that the 

unpleaded issue entered the case at trial, 

whether the evidence that supports the 

unpleaded issue was introduced at trial 

without objection, and whether a finding of 

trial by consent prejudiced the opposing 

party's opportunity to respond. 

Portis v. First Nat'l Bank, 34 F.3d 325, 332 (5th Cir. 1994) 

(quoting United States v. Shanbaum, 10 F.3d 305, 312-13 (5th Cir. 
1994)); see Acequia, Inc. v. Clinton (In re Acequia, Inc.), 34 

F.3d 800, 814 (9th Cir. 1994) (plaintiff must show that defendant 

understood that evidence had been used to prove the new issue and 

that the new issue had been directly addressed and not 

inferentially raised by incidental evidence); Yellow Freight Sys. 

v. Martin, 954 F.2d 353, 358 (6th Cir. 1992) (same). 

 We observe that not only did Griffith not object to the 

introduction of the evidence as to the claim of approving the use 

of force, but it was Griffith who opened the door to this 

evidence while cross-examining Douglas. Nevertheless, an issue 

has not been tried by implied consent if evidence relevant to the 

new claim is also relevant to the claim originally pled, because 

the defendant does not have any notice that the implied claim was 

being tried. Gamma-10 Plastics v. American President Lines, 32 

F.3d 1244, 1256 (8th Cir. 1994), cert. denied, __ U.S. __, __ S. 

Ct. __, 63 U.S.L.W. 3641 (Feb. 27, 1995) (No. 94-1188); see

Portis, 34 F.3d at 332 (if evidence of a pleaded issue and an 

unpleaded issue overlaps, there is no implied consent absent a 

clear indication that the party using the evidence is attempting 

to raise a new issue); Acequia, 34 F.2d at 814 (same); Yellow 

Freight, 954 F.2d at 358 (evidence that is relevant to a pleaded 

issue as well as an unpleaded issue does not give fair notice to 

the opposing party that the unpleaded issue is entering the 

case). 

 Although the testimony elicited from Douglas arguably 

was evidence relevant to whether Griffith approved the use of 

force, the testimony was also relevant to whether Griffith 
actually used force. Douglas' uncertainty as to whether Griffith 

used force against him pointed to the weakness in Douglas' 

pleaded claim (that Griffith actually used force). Regardless of 

who introduced the evidence at trial, Douglas bore the burden of 

notifying defense counsel that he intended to use this evidence 

to prove an additional claim. Because Griffith was not on notice 

that Douglas wished to argue an additional claim at trial, 

Griffith cannot be said to have impliedly consented to an 

amendment of the pleadings.20 Finally, it is obvious that 

Griffith was severely prejudiced at such a late stage in the 

proceedings when the district court effectively permitted Douglas 

to amend the pleadings and allowed the jury to consider another 

theory of liability against Griffith without Griffith having had 

the opportunity to defend against this new claim. 

 Because Douglas failed to assert his claim in a timely 

manner and this failure prejudiced Griffith, judgment as a matter 

of law must be granted against Douglas and in favor of Griffith 

on the belated claim that Griffith "approved of the use of 

force."21 

 

20. It is contrary to the record for Douglas to even suggest 

that he was attempting to prove this additional claim at trial. 

As mentioned previously, it appears that Douglas never: (1) 

advanced this theory to the jury while presenting his case-inchief; (2) argued this theory after the evidence was elicited 

during cross-examination; (3) argued this theory to the jury in 

his closing arguments; or (4) asked that this alternative theory 

of liability be included in the special verdict questions. In 

fact, we are confident that had the jury never sent a question to 

the court, this additional theory of liability would never have 

been pursued by Douglas. 

21. The only claim properly asserted at trial and preserved for 

jury consideration against Griffith is that he personally used 
 III. Conclusion 

 We will reverse the judgment of the district court and 

remand for a new trial because the district court abused its 

discretion by improperly limiting the scope of cross-examination 

of a key witness for the plaintiff. We affirm the ruling of the 

district court which rejected the appellant's proposed jury 

charge. The charge of the district court adequately set forth 

the law governing the appropriate use of force against prisoners. 

Finally, as to the special verdict issue, we conclude that the 

district court erred in allowing the jury to render a verdict 

finding appellant Griffith liable for approving the use of 

excessive force, when the only theory of liability tried before 

the court and submitted to the jury was that Griffith actually 

participated in an improper beating. We will direct the district 

court to enter judgment in favor of Griffith on the claim against 

him. 

(..continued) 

excessive force against Douglas. As to that claim, the district 

court concluded that, "[t]he testimony admittedly does not 

support the allegation that defendant Griffith actually beat 

Plaintiff." Douglas v. Owens, No. 89-1879, slip op. at 2. We 

agree that judgment as a matter of law was properly granted 

against Douglas and in favor of Griffith on Douglas' claim that 

Griffith used excessive force against him. Although we have 

earlier concluded that a new trial is warranted due to the 

improper limitation on the scope of cross-examination, appellant 

Griffith will be dismissed, since the jury did not return a 

verdict against him on the only theory of liability that was 

properly presented for its consideration. Douglas may proceed 

with a new trial against Simoncini, Enriquez, and Ardabell. 
Douglas v. Owens, No. 94-7406 

NYGAARD, Circuit Judge, dissenting. 

 I believe the issue in this case is very close. 

Nonetheless, I dissent because I would, in cases such as this, 

give greater deference to the discretion exercised by the 

district court, than appellant would have us give. To do 

otherwise further obscures the already-blurred line demarcating 

the boundary between the plenary and abuse of discretion 

standards of review. I consider reversing the district court's 

decision here to be the antithesis of the holding the majority 

cites that: 

 [t]rial judges retain wide latitude to impose 

reasonable limits on cross-examination based 

on concerns about, among other things, 

confusion of the issues or interrogation that 

is repetitive or only marginally relevant. 

United States v. Baptista-Rodriguez, 17 F.3d 1354, 1370-71 (11th 

Cir. 1994). I conclude that the trial judge acted within her 

sound discretion, and would affirm. 

 What the appellant invites us to perform here is 

essentially a plenary review of a discretionary decision that 

simply cannot and, moreover, should not be reviewed de novo. The 

myriad of twists and turns in a trial, the shifting biases as 

evidence comes before the factfinder, and the entire personality 

and flavor of a trial cannot be adequately conveyed in the cold 

record we review on appeal. Hence, we have standardized review 
to grant the district courts "wide latitude" to limit crossexamination, and to make numerous other evidentiary decisions, 

subject only to a review for whether they abused that discretion. 

Not from any argument given us by the appellant, nor by any 

definition of the word, can I consider "abuse" an appropriate 

label for the district court's discretion on this singular 

judgment call. 

 At sidebar, appellant's counsel argued to the district 

court that she be permitted to reveal to the jury that "[Sabir] 

was terminated by the department. ..." That is precisely what 

the court allowed her to do.22 In her argument to the district 

court, counsel mentioned, without citing any source of proof, 

that "[Sabir] was terminated" for "alleged involvement with the 

rioting inmates." Nonetheless, she did not persist on this 

point, and I deduce from the substance of the sidebar that the 

real argument was whether the word "fired" or "terminated" more 

accurately describes how Sabir was separated from the chaplaincy. 

(See Maj. typescript at 6, n.4). Moreover, I consider the subtle 

differences between the use of the word "terminated" and the use 

of the word "fired" to be the type of evidentiary "fine tuning" 

that is unbecoming when done by appellate judges, who review the 

evidence in a vacuum relieved only by a printed record. Either 

 

22. The attorneys had earlier agreed that plaintiff's counsel 

would not elicit from a correction officer/witness the reason why 

she was discharged because they considered this evidence to be 

irrelevant. 
word implies that he did not leave voluntarily. I reject 

appellant's argument on this issue. 

 Next, even if I were to conclude that this decision by 

the district court was an abuse of its discretion, I believe the 

error is harmless. Indeed, the testimony the Imam offered, even 

when taken in the light most favorable to appellee, is the 

following: 

 1. that the plaintiff was "in a shameful manner," 

A73; 

 2. that Douglas "said he was being harassed by the 

officers," A74; 

 3. that Douglas was naked in his cell and "had 

abrasions or bruises in the chest area and around the neck area," 

and "was sick with a cold," A74-75; 

 4. that Lieutenant Spells "said to me that the 

atmosphere, that there was nothing he could really do in 

reference to getting medication because of the atmosphere in the 

prison ... his hands was [sic] tied. And even if he wanted to do 

something, he couldn't do it," A76-77; 

 5. the testimony most damaging to the defendants was 

Sabir's nonresponsive conclusion that the bruises "signalled to 

me that he had been beaten." To this appellant objected, but 

then did not even follow with a request that the Imam's statement 

be stricken. 
 The gravamen of Douglas' complaint is that a number of 

correctional officer defendants "did in fact, acting under the 

color and authority of Pennsylvania state law, beat, stumped 

[sic] and kicked plaintiff Andre Douglas in the head, arms, back 

and legs while plaintiff was handcuffed and naked," and that 

other officers during this beating "did not make an attempt to 

stop them." A20-21. Hence, what is at issue is whether some 

defendants beat Douglas, while others stood idly by. The 

defendants flatly denied the allegations. On that point, when 

asked if he saw "any of these defendants assault Mr. Douglas," 

Sabir answered, "No, I can honestly say no." A80. 

 Finally, defendants' reason for wanting this line of 

inquiry before the jury was ostensibly to discredit the witness 

by attempting to show bias. This argument also fails. A 

significant point we recognize, as the district court no doubt 

did, but which the appellant conveniently elides, is that Sabir 

was not terminated by the defendants. Indeed, they were coemployees of the same facility. Nor was it shown, offered or 

even suggested that Sabir harbored some bias towards the 

defendants -- if indeed he harbored any at all. In sum, the 

whole line of inquiry was simply irrelevant to what was at issue 

in the trial. 

 I conclude that the district court committed no 

reversible error. The most critical testimony Sabir offered was 

that plaintiff was beaten; and this, although nonresponsive and 
improper, was not requested to be stricken. Whether the witness 

was biased against his former employer is not relevant to these 

defendants and whether the jury believed Sabir's testimony is not 

relevant to the issue of who beat Douglas. On that critical 

point, Sabir's testimony was as favorable to the defendants as to 

the plaintiff. Finally, as the district court concluded, and 

with which I concur, permitting the defense to explore the 

reasons only "alleged" for Sabir's termination, and then the 

plaintiff to engage in the rehabilitative explanations which were 

destined to follow, was likely to create the distracting "trial 

within a trial" which tends to confuse jurors, obfuscate the real 

issues, and which courts laudably seek to prevent. I find no 

abuse in the court's discretionary decisions. I would affirm.