Appeal from the United States District Court for the Western District of Wisconsin. No. 75 C 610 -- Barbara B. Crabb, Judge.
Bauer and Wood, Circuit Judges, and Fairchild, Senior Circuit Judge.
Walter J. D. Moffett, plaintiff-appellant, filed an action for damages pursuant to 42 U.S.C. § 1983 against defendants Ronald L. Paul, Roland E. McCauley, and John R. Gagnon. Mr. Moffett, a prisoner at the Fox Lake Correctional Institution at Fox Lake, Wisconsin, alleged that he was subjected to an unconstitutionally abusive strip search on October 25, 1975, by defendant Paul, a correctional officer at Fox Lake. Defendant Gagnon was the warden at Fox Lake, and defendant McCauley was the acting administrator of the Division of Corrections of the Wisconsin Department of Health and Social Services. The case went to trial on January 13, 1982. All three defendants received favorable verdicts: the district court granted directed verdicts for defendants Gagnon and McCauley, and the jury returned a verdict in defendant Paul's favor.
Moffett no longer disputes the constitutionality of the decision to conduct the strip search. Rather, he contends that the manner in which it was conducted was unconstitutional. Moffett comes to this court to appeal the district court's refusal to admit into evidence a prison investigation report containing an account of the strip search, claiming that it is admissible under the residual exception to the hearsay rule, Federal Rule of Evidence 803(24), and under Federal Rule of Evidence 801(d)(2)(B), as an admission. Moffett also claims the district court erroneously granted defendant Gagnon's motion for a directed verdict. Moffett does not appeal the directed verdict granted defendant McCauley.
The strip search in question took place in the conference room in the main administration building at the Fox Lake Correctional Institute. Defendant Paul, accompanied by Officer Skindzelewski, conducted the search. Paul ordered Moffett to take off all of his clothes and to bend over and spread his buttocks. Moffett claims that Paul used street terms that Moffett found offensive, and that after Moffett had spread his buttocks once and straightened up, Paul demanded he do it a second time. Paul denies using the street term attributed to him by Moffett, and asserts that Moffett did not do as he was told the first time.
As the defendants' brief described the unlikely and unfortunate set of circumstances, sometime after the strip search, but before Moffett was fully clothed, "two nuns of all things" appeared at the door. The witnesses are in dispute as to whether the nuns entered the conference room and, if so, Moffett's stage of dress at the time. Moffett asserts that the nuns saw him completely nude, and that Paul laughed degradingly. There is no suggestion that the nuns' appearance at the conference room was anything but accidental.
After Moffett filed a complaint regarding the strip search, prison officials conducted an investigation. Moffett sought to have the resulting report admitted into evidence because it conflicts with Paul's trial testimony with respect to two factual details. First, the report states that, after Officer Skindzelewski advised Moffett to comply with Paul's order to bend over and spread his buttocks, "Mr. Moffett then turned around, bent over and spread his cheeks part way. Mr. Paul again instructed Mr. Moffett to bend over and spread his cheeks." Moffett claims that this contradicts Paul's testimony that Moffett did not spread his cheeks at all the first time he bent over. Second, the report states that when the two nuns opened the door, "Mr. Paul was shocked and surprized [sic] that the two women would be back by that room without staff accompaniment. Mr. Paul immediately moved to the door and closed it; he then instructed the women to go back to Control." Moffett claims that this contradicts Paul's testimony that he never saw the nuns while he was in the conference room.
Moffett first argues that the district court should have admitted the prison report under Federal Rule of Evidence 803(24), the residual exception to the hearsay rule. The court rejected the report on the ground that it did not possess the circumstantial guarantees of trustworthiness required by Rule 803(24) because the court did not "know enough about the preparation of that document to have any confidence in [it] --." We agree with Moffett that the court erred in refusing to admit the report on this ground, but find that any error the court committed was harmless.
There are five requirements for admission under Rule 803(24): (1) trustworthiness; (2) materiality; (3) probative value; (4) interests of justice; and (5) notice. The first requirement dictates that evidence must, when compared with evidence admissible under other exceptions to the hearsay rule, have " ' equivalent circumstantial guarantees of trustworthiness.'" Huff v. White Motor Corp., 609 F.2d 286, 292 (7th Cir. 1979) (quoting Rules 803(24) and 804(b)(5)) (emphasis added in Huff). The district court enjoys a "considerable measure of discretion" in deciding whether to admit hearsay evidence under Rule 803(24). Id. at 291. However, "where evidence complies with the spirit, if not the latter [sic], of several exceptions, admissibility is appropriate under the residual exception." United States v. McPartlin, 595 F.2d 1321, 1350 (7th Cir.), cert. denied, 444 U.S. 833, 62 L. Ed. 2d 43, 100 S. Ct. 65 (1979). Moffett argues that the report falls nearly within the terms of the business records exception. Fed. R. Evid. 803(6). We agree.
This court considered a similar situation in Stone v. Morris, 546 F.2d 730 (7th Cir. 1976), and admitted the evidence in question under the business records exception. In Stone, a prisoner brought a civil rights suit under 42 U.S.C. § 1983 against various prison officials. After a jury verdict for the defendants, the plaintiff appealed the district court's refusal to admit into evidence a memorandum written by a correctional counselor at the prison to a staff psychiatrist. The memorandum purportedly was an account of the events leading to the plaintiff's lawsuit. The memorandum corroborated one of the factual allegations made by the plaintiff and denied by the defendant. The district court excluded the memorandum as inadmissible hearsay.
We reversed, holding that the memorandum was admissible under the business records exception. We explained that the failure of the memorandum to reveal the source of the information affected the weight to be accorded the memorandum by the trier of ...