
USCA1 Opinion

	




          June 16, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1208                                                ANDREW SMITH,                                Plaintiff, Appellant,                                          v.                                   BRIAN HITCHCOCK,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ___________________               Andrew G. Smith on brief for appellant.               _______________               Neal  H. Sahagian and O'Neil,  DiCicco, Sahagian & Powers on               _________________     ______   _______  ________   ______          brief for appellee.                                  __________________                                  __________________                      Per  Curiam.    Plaintiff-appellant   Andrew  Smith                      ___________            appeals  the  district court's  direction  of  a verdict  for            defendant-appellee,    Brian   Hitchcock,    on   appellant's            intentional infliction  of  emotional  distress  claim.    We            summarily affirm.                      In June 1990, Smith made an unauthorized entry upon            the property of  Hitchcock, a member of the Marblehead Police            Department.   During the entry Smith  destroyed some property            owned  by Hitchcock.   Hitchcock  pursued Smith and,  after a            brief struggle, apprehended him a short distance away.  Smith            testified   that,  after  being  apprehended  and  after  all            resistance  had  ceased,  he  was  punched  in  the  face  by            Hitchcock five times.  Hitchcock, and other witnesses, denied            that any punching had occurred.                      Smith asserted  three claims  at trial.   First, he            alleged that his  federal civil rights, pursuant to 42 U.S.C.               1983,  had been  violated by  the  use of  excessive force            during  the  course of  his arrest.    Second, he  asserted a            common law claim of  assault and battery.  Third,  he claimed            that Hitchcock had intentionally inflicted emotional distress            upon  him.  All claims were predicated on the allegation that            Hitchcock had punched Smith after he had been apprehended.                        At  the close of  Smith's presentation of evidence,            the court  granted Hitchcock's motion for  a directed verdict            on the claim of intentional infliction of emotional distress.                                         -2-            The jury subsequently  found for Hitchcock  on the other  two            claims.  Smith appeals only the directed verdict.                        To recover on a claim for intentional infliction of            emotional  distress under Massachusetts law, a plaintiff must            show "a  defendant intended to inflict  emotional distress or            knew  or should  have  known that  emotional  distress was  a            likely  consequence of  his conduct,  . .  . his  conduct was            extreme and outrageous . . . and . . . his conduct caused the            plaintiff severe  emotional distress."  Nancy  P. v. D'Amato,                                                    ________     _______            401  Mass. 516,  520, 517  N.E.2d 824,  827 (1988).   Smith's            appeal fails for two reasons.                      First, Smith did not present sufficient evidence to            support  a  jury  verdict on  this  claim  since  he did  not            introduce  any evidence  that  he  suffered severe  emotional            distress  from the alleged punching.  Second, in light of the            jury  charge, the  verdicts  for Hitchcock  on the  excessive            force  and  assault  and  battery  claims  necessarily   were            predicated on a finding  that no unreasonable force was  used            by Hitchcock during the course of the arrest, in other words,            that Hitchcock's conduct was not "so outrageous in character,            and so extreme in degree, as to go beyond all possible bounds            of decency,  and to  be  regarded as  atrocious, and  utterly            intolerable  in a  civilized community."   Foley  v. Polaroid                                                       _____     ________            Corp., 400 Mass. 82,  99, 508 N.E.2d 72, 82  (1987) (defining            ____            "extreme  and  outrageous"   conduct)  (quoting   Restatement                                         -3-            (Second)  of Torts   46  comment d (1965)).   These verdicts,            therefore,  preclude a finding  of intentional  infliction of            emotional distress and render  harmless any error which might            have occurred in the direction of the verdict for  Hitchcock.            See  Senra v.  Cunningham, 9  F.3d 168,  174 (1st  Cir. 1993)            ___  _____     __________            (jury  finding of  no  excessive force  precludes finding  of            malicious prosecution  and renders error in  directed verdict            harmless); see also Dean v. Worcester, 924 F.2d 364, 369 (1st                       ___ ____ ____    _________            Cir. 1991) (summary judgment required on claim of intentional            infliction  of  emotional  distress  where  summary  judgment            appropriate  on claims  of  excessive force  and assault  and            battery).                      Affirmed.  See 1st Cir. Loc. R. 27.1.                      ________   ___                                         -4-
