Smith v. Hitchcock ( 1994 )

USCA1 Opinion

          June 16, 1994         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 94-1208

            


                                    ANDREW SMITH,

                                Plaintiff, Appellant,

                                          v.

                                   BRIAN HITCHCOCK,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
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                                 ___________________

                                        Before

                              Torruella, Selya and Cyr,
                                   Circuit Judges.
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               Andrew G. Smith on brief for appellant.
               _______________
               Neal  H. Sahagian and O'Neil,  DiCicco, Sahagian & Powers on
               _________________     ______   _______  ________   ______
          brief for appellee.



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                      Per  Curiam.    Plaintiff-appellant   Andrew  Smith
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            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.



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            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



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            (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)
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            (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
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            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.
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