Filed: Oct. 05, 2007
Latest Update: Feb. 22, 2020
Summary: incident involving Guerrero and her downstairs neighbor.the Alternative, Motion for New Trial Pursuant to Fed.notice of appeal on December 6, 2006.Guerreros mental state.Nieves Valenzuela (Valenzuela);Ryan to lose his job.of a piece of testimony. We therefore review for plain error.
Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1243
DIGNA GUERRERO,
Plaintiff, Appellant,
v.
OFFICER DANIEL RYAN,
in his individual and official capacity;
CITY OF BOSTON,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Schwarzer,* Senior District Judge.
Héctor E. Piñeiro with whom Robert H. Beadel was on brief
for appellant.
Stephen G. Cox for appellees.
October 5, 2007
*
Of the Northern District of California, sitting by
designation.
SCHWARZER, Senior District Judge. Plaintiff-appellant
Digna Guerrero (“Guerrero”) appeals the order denying her motion
for judgment as a matter of law, or in the alternative, for a new
trial, pursuant to Fed. R. Civ. P. 50(b) and 59. Because Guerrero
has not shown that a reasonable jury could not have had a legally
sufficient basis on which to base its verdict, and because any
errors did not cause prejudice or a “miscarriage of justice,” we
affirm.
Guerrero alleges that on June 22, 2000, defendant-
appellee Officer Daniel Ryan (“Ryan”) and his partner, Officer
Thomas Kearny, came to her apartment and confronted her about an
incident involving Guerrero and her downstairs neighbor. Guerrero
claims that Ryan repeatedly told her to “shut up” when she tried to
explain what had happened, grabbed her by the neck and arm, dragged
her downstairs to the neighbor (who was at that time in another
neighbor’s apartment), threatened her, pushed her onto her knees
and demanded that she apologize.
Ryan’s account of these events is that he and Kearny
asked Guerrero about a complaint from her downstairs neighbor that
Guerrero had taken the neighbor’s grandson’s toys and told the
neighbor to “shut up” numerous times. Ryan told Guerrero that she
should not speak to people in this way, and asked her to go
downstairs and apologize. Guerrero then went downstairs by
herself, and upon her return told Ryan that she had apologized.
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Ryan and Kearny then left.
On May 27, 2003, Guerrero, acting through her mother,
filed a complaint in Massachusetts state court alleging that Ryan
and Kearney had violated her rights under 42 U.S.C. § 1983 and the
Massachusetts Civil Rights Acts, Mass. Gen. Laws ch. 12 § 11H, and
that the officers were liable for intentional infliction of
emotional distress. Guerrero also alleged liability on the part of
the City of Boston. On July 1, 2003, the City of Boston removed
the case to federal court, where the claims were bifurcated and the
instant case proceeded against the two officers. On July 16, 2006,
Guerrero dismissed her claims against Kearney and amended her
complaint, making a § 1983 claim only against Ryan, and naming
herself the plaintiff, as she had reached majority.
Ryan's trial began on July 17, 2006, and included five
witnesses for Guerrero and seven witnesses for Ryan, as well as
seventy exhibits. The jury returned a verdict for Ryan after less
than two hours of deliberation, and judgment was entered on July
25, 2006. On July 28, 2006, Guerrero filed a "Motion JNOV, or in
the Alternative, Motion for New Trial Pursuant to Fed. R. Civ. P.
50(b) and 59." After hearing oral argument, the district court
denied the motion on November 9, 2006. Guerrero filed a timely
notice of appeal on December 6, 2006.
A district court’s denial of a Rule 50 motion for
judgment as a matter of law will be sustained “unless the evidence,
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together with all reasonable inferences in favor of the verdict,
could lead a reasonable person to only one conclusion, namely, that
the moving party was entitled to judgment.” PH Group Ltd. v.
Birch, 985 F.2d 649, 653 (1st Cir. 1993) (citation omitted). Ryan
presented a significant amount of evidence supporting his version
of events, including two eye-witnesses and expert testimony about
Guerrero’s mental state. Guerrero made no attempt to demonstrate
that the evidence could only have led a reasonable person to find
for her, and her appeal cannot succeed on this basis.
Guerrero also argues that a new trial is merited under
Fed. R. Civ. P. 59 because of the admission of testimony that (1)
briefly mentioned previous lawsuits brought by Guerrero’s mother,
Nieves Valenzuela (“Valenzuela”); (2) suggested that Valenzuela had
not been truthful in the past; and (3) referred to the fact that on
one occasion the Massachusetts Department of Social Services
(“DSS”) took custody of Guerrero for about a month. In addition,
Guerrero claims that the court below erred in allowing Ryan's
attorney, during closing arguments, to refer to the potential for
Ryan to lose his job.
The trial judge never made a definitive ruling on
Guerrero’s motion in limine to exclude some of the challenged
testimony, opting to take a “wait and see” approach. Where there
has only been a provisional ruling on a motion in limine, a party
must renew its motion to exclude evidence at trial, or review will
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be for plain error. Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir.
2003). Guerrero points to two objections at trial, one for lack of
foundation, and one based on the purportedly argumentative nature
of a piece of testimony. None of the challenges to the testimony
in question here are based on these grounds, and the trial
transcript shows that Guerrero failed to make the required
contemporaneous objections. We therefore review for plain error.
Under plain error review, this court “consider[s] a forfeited
objection only if: (1) an error was committed; (2) the error was
‘plain’ (i.e. obvious and clear under current law); (3) the error
was prejudicial (i.e. affected substantial rights); and (4) review
is needed to prevent a miscarriage of justice.” Smith v. Kmart
Corp.,
177 F.3d 19, 26 (1st Cir. 1999).
We do not decide whether admission of the testimony
challenged by Guerrero constitutes error, or whether any error is
plain or prejudicial, because Guerrero cannot satisfy the
“miscarriage of justice” requirement. The jury considered a great
deal of contradictory evidence from both sides, and evidence of
Valenzuela’s purported litigiousness or untruthfulness, or
Guerrero’s encounter with DSS, cannot be said to have “resulted in
a miscarriage of justice or seriously affected the fairness,
integrity or public reputation of the judicial proceedings.”
Smith, 177 F.3d at 28 (internal quotation and citation omitted).
It is difficult to see how the admission of testimony that briefly
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referred to Guerrero’s mother in an unflattering light could have
had such a large effect on a trial whose essence was the
credibility of the plaintiff, defendant, and witnesses.
Guerrero’s final argument is that defense counsel’s
closing argument was improper because counsel posed the rhetorical
question, “Why would [Ryan] risk everything, his job, his career,
his pension...?” Guerrero did not make a contemporaneous objection
to this remark, and review is once again for plain error. Smith,
177 F.3d at 25. It is highly improbable that this stray remark
over the course of counsel’s lengthy summation affected the jury’s
verdict, and its admission can hardly be said to constitute a
“miscarriage of justice” in the context of the competing stories
the jury considered.
AFFIRMED.
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