                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             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Precedential or Non-Precedential: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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                 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 cross-

examination 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) (cross-
examination 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 cross-
examination 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 cross-
examination, 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 cross-

examination 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-in-
chief; (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 cross-

examination, 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 co-

employees 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.
