Free Proposed Jury Instructions - District Court of Colorado - Colorado

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Plaintiff's INSTRUCTION NO. ___ Judicial Notice I have decided to accept as proved the facts that the United States Penitentiary in Florence, Colorado, is located in southern Colorado, 45 miles southwest of Colorado Springs. It is known as USP Florence-High, and is a high-security prison housing approximately 1,000 adult male inmates. The penitentiary is part of the Florence Federal Correctional Complex, which is situated on 49 acres of land and houses different facilities with varying degrees of security. The United States Penitentiary is located adjacent to ADX Florence, a Supermax underground prison, where such prisoners as the Uni bomber and 9/11 terrorists are imprisoned. USP Florence-High was opened in January 1994. In the early years of the penitentiary, a group of officers known as the Cowboys were indicted and convicted of abusing inmates, including the use of methods of physical abuse without leaving marks of injury. You must now treat these facts as having been proved for the purpose of this case.

AUTHORITY: Wikipedia, Rand McNally, opinion: United States of America v. Mike LaVallee, et al., ___ F3d ___, (10th Cir. 2006)

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Plaintiff' INSTRUCTION NO. ___ s Elements of Eighth Amendment Claim-Excessive Use of Force Level or Type of Injury Need Not Be Proved The Eighth Amendment protects against cruel and unusual force, not merely cruel and unusual force that results in sufficient injury. Thus, in determining whether one or more of the defendants used excessive force against plaintiff in violation of the Eighth Amendment, you need not find that plaintiff suffered a certain level or type of injury as a result of one or more of the defendants' use of force. You may find one or more of the defendants liable for using excessive force against plaintiff in violation of the Eighth Amendment if such force was used for the sole purpose of causing pain, even though the resulting injuries were neither permanent nor significant, or required medical attention.

___________________________ United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006) (Eighth Amendment protects against cruel and unusual force, not merely cruel and unusual force that results in sufficient injury, and holding that a plaintiff "need not prove that [he] suffered a certain level or type of injury to establish excessive force in violation of the Eighth Amendment...").

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Plaintiff' INSTRUCTION NO. ___ s Elements of Eighth Amendment Claim-Excessive Use of Force Liability Federal law provides that plaintiff may recover damages if any of the defendants, either Kenneth Lincoln, Lee Rittenmeyer, and/or Mark Robles, deprived him of a right guaranteed by the Constitution. The right at stake here is the right to be free from cruel and unusual

punishment. The issue for you, therefore, is whether any of the defendants, either Kenneth Lincoln, Lee Rittenmeyer, and/or Mark Robles, subjected plaintiff to cruel and unusual punishment. (1) Definition of Cruel and Unusual Punishment Inmates are protected from cruel and unusual punishment by the Eighth Amendment of the United States Constitution. In order to prove a violation under the Eighth Amendment, plaintiff must show that any defendant, either Kenneth Lincoln, Lee Rittenmeyer, and/or Mark Robles, unnecessarily and wantonly inflicted pain on him. A use of force against a prison inmate that was applied in a good-faith effort to maintain or restore discipline is not "unnecessary and wanton," but force applied maliciously or sadistically to cause harm is unnecessary and wanton. (2) Elements of Plaintiff's Claim In order to prove his claim, plaintiff must prove by a preponderance of the evidence the following: First, that one or more of the defendants used excessive force against the plaintiff. Second, that one or more of the defendants who used excessive force against him did so maliciously and sadistically, for the purpose of causing plaintiff harm; and Third, that plaintiff suffered some harm as a result of one or more of the defendants' use of force.

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To act "maliciously" means intentionally to do a wrongful act without just cause or excuse, with the intent to inflict injury or under circumstances that will show an evil intent. To act "sadistically" means to engage in extreme or excessive cruelty or to take delight in acting cruelly. Malicious and sadistic intent may be inferred from the conduct itself where there can be no legitimate purpose for the officers' conduct. Some of the things you may want to consider in determining whether any defendant unnecessarily and wantonly inflicted pain on plaintiff include: (1) the extent of the injury suffered, (2) the need for the application of force, (3) the relationship between the need for force and the amount of force used, (4) the threat reasonably perceived by the defendants, and (5) any efforts made to temper the severity of a forceful response.

________________________ United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006) (Eighth Amendment protects against cruel and unusual force, not merely cruel and unusual force that results in sufficient injury, and holding that a plaintiff "need not prove that [he] suffered a certain level or type of injury to establish excessive force in violation of the Eighth Amendment..."). Hudson v. McMillan, 503 US 1, 6-7 (1992) (in determining whether a prison official's use of force was "unnecessary and wanton," the Court analyzes "whether [the] force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."). The Court considers "the need for [the use of] force, the relationship between the need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Id. at 7. Although the extent of the inmate's injuries is also relevant, an inmate need not show a "significant injury" or a certain level or type of injury to state a claim. Id. at 7, 9. Wilson v. Seiter, 501 U.S. 294, 297, 302 (1991) ("only the 'unnecessary and wanton infliction of pain' implicates the Eighth Amendment"; "wantonness consisted of acting 'maliciously and sadistically for the purpose of causing harm.'"); accord Hudson v. McMillan, 503 US 1, 5-7 (1992); Whitley v. Albers, 475 US 312, 319-21 (1986).

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Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1152 (10th Cir. 2006) ("We can infer malicious, sadistic intent from the conduct itself where 'there can be no legitimate purpose' for the officers' conduct.") (Internal citations omitted)). Serna v. Colorado Department of Corrections, 455 F.3d 1146, 1152 (10th Cir. 2006) ("The Tenth Circuit has articulated two 'prongs' that a plaintiff must show to prevail on [an Eighth Amendment excessive force] claim: (1) that 'the alleged wrongdoing was objectively harmful enough to establish a constitutional violation,' and (2) 'that the officials acted with a sufficiently culpable state of mind."" (Internal citations omitted)). Fifth Circuit Pattern Jury Instruction Civil, § 10.5 (Eighth Amendment (Excessive Force) (1999 ed.) (modified).

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Defendants' Proposed Instruction No. ____ Nature of the Case1 Members of the jury, we are about to begin the trial of this case. Before the trial begins, however, there are certain instructions you should have to better understand what will be presented to you and how you should conduct yourselves during the trial. The party who brings a lawsuit is called the plaintiff. In this action, the plaintiff is Mitchell Garraway. The party against whom the suit is brought is called the defendant. In this action the defendants are: (1) Kenneth Lincoln; (2) Lee Rittenmeyer; and (3) Mark Robles. This case arises out of an incident on February 12, 2003, at the United States Penitentiary in Florence, Colorado, where Mr. Garraway was incarcerated. He alleges that while restrained by handcuffs behind his back and by leg shackles, he was forcibly carried against his will by several officers to the office of Defendant Lee Rittenmeyer, the Lieutenant in charge of the Special Housing Unit. Mr. Garraway alleges that after he was seated in the office in front of Defendant Rittenmeyer's desk, and after Rittenmeyer made degrading and inflammatory remarks, Mr. Garraway got up to leave and began to walk, while wearing leg irons, toward the door through which other officers were leaving. He alleges that as he did so, Defendant

Rittenmeyer ordered him thrown to the ground and punched and kicked in the head thereby causing him physical injury. Mr. Garraway was then placed in ambulatory restraints for three days, resulting in his defecating and urinating in the same clothing. Mr. Garraway claims that through the use of excessive force, the defendants' actions violated his right to be free from cruel and unusual punishment as protected by the United States Constitution.

E. Devitt, C. Blackmar, and M. Wolff, Federal Jury Practice and Instructions § 70.01 (4 ed. 1987) (modified).
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The defendants deny that they violated Mr. Garraway's constitutional right to be free from the malicious use of excessive force. They assert that Mr. Garraway did not have

permission to leave the Lieutenant's office and that his rapid attempt to do so threatened the physical safety of the escorting officers who had their backs to Mr. Garraway as he moved from his chair to leave the office. The defendants assert that only the force necessary to restrain Mr. Garraway was used in a good faith effort to protect their safety and that of fellow staff. Under the law, an inmate who believes that his constitutional rights have been violated by a prison staff member may file suit in federal court against that staff member personally, in his individual capacity, to obtain money damages from the personal assets of that officer.2 That is what the plaintiff has done in this case. You should remember that neither the United States government or the Federal Bureau of Prison is a defendant in this case. Any judgment for money damages would be against the defendants individually.3

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1972) ("[D]amages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials . . . ." Id. at 395-97). Carlson v. Green, 446 U.S. 14, 18 (1980) ("Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right."). Meiners v. Moriarity, 563 F.2d 343, 350 (7th Cir. 1977) (affirming propriety of closing argument to this effect). Although representation by the Department of Justice has been afforded to the defendants, there is no guarantee of indemnification should an adverse judgment enter. 28 C.F.R. § 50.15(8)(iii).
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Defendants' Proposed Instruction No. ___ "Sadistically" Defined To act "sadistically" means engaging in extreme or excessive cruelty or to take delight in acting cruelly.4

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O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.33 (5th ed.

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Defendants' Proposed Instruction No. ___ Types of Damages If you find for the plaintiff and against any one or more of the defendants you will then consider the issue of plaintiff's damages, if any, sustained as a result of one or more of the defendants' violations of the plaintiff's constitutional rights. As has been stated before,

throughout your deliberations on damages, you must not engage in any speculation, guess, or conjecture.5 Compensatory Damages If you find in favor of the plaintiff, and against one or more of the defendants on the claim of excessive force, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff for any damages you believe he sustained as a direct result of the conduct of one or more of the defendants who you found violated the plaintiff's right under the Eighth Amendment because of the use of excessive force.6 The elements of damages that you may consider include an amount for any pain and suffering, emotional distress and humiliation that you find from the evidence that plaintiff endured or will endure as a result of the excessive force. Even though it is obviously difficult to establish a standard of measurement for this element, that difficulty is not grounds for denying recovery. You must, therefore, make the best and most reasonable estimate you can, not from a personal point of view but from a fair and impartial point of view of the amount of pain and suffering, emotional distress and humiliation

Eighth Circuit, Manual of Model Jury Instructions-Civil, § 4.51 (Actual DamagesPrisoner Civil Rights) (2001 ed.). 3B O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.60 (5th ed. 2001) (modified). 3B O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.60 (5th ed. 2001) (modified).
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that plaintiff incurred or will incur as a result of the excessive force and you must place a money value on this, attempting to come to a conclusion that will be fair and just to the parties. This will be difficult for you to measure in terms of dollars and cents, but there is no other rule I can give you for assessing this element of damages. In awarding compensatory damages, if you find that more than one defendant was responsible for the damage, you must apportion the award of damages between those defendants based on their relative responsibility if that is possible. The plaintiff is not entitled to a double recovery of his damages because two or more defendants were responsible for the damages.7 As a matter of law, you may not award compensatory damages for any mental or emotional injury unless the plaintiff has proved, by a preponderance of the evidence, that he has suffered physical injury.8 Nominal Damages If you find in favor of the plaintiff, i.e., if you find that one or more of the defendants violated the plaintiff's Eighth Amendment rights by using excessive force against the plaintiff, but you find that the plaintiff's damages have no monetary value, then you must return a verdict for the plaintiff in the nominal amount of one dollar for the claim that you found one or more of

Northington v. Marin, 162 F.3d 1564, 1569 (10th Cir. 1996) (joint liability may be imposed where damages cannot be apportioned between tortfeasors in § 1983 action). 42 U.S.C. § 1997e(e): "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." (Emphasis added.) Thompson v. Gibson, 289 F.3d 1218, 1222 (42 U.S.C. § 1983. 42 U.S.C. § 1997e(e)'s physical injury requirement barred plaintiff's emotional injury claim under the Eighth Amendment).
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the defendants liable.9 This is so because the law recognizes that the denial of constitutional rights is itself an injury that should be recognized without regard to whether the actual damages have been proven. Punitive Damages In addition to the damages mentioned above (compensatory and nominal), the law permits you to award a person, whose Eighth Amendment rights have been violated, punitive damages under certain circumstances in order to punish a defendant and to serve as an example or warning to others not to engage in such conduct.10 Whether to award plaintiff punitive damages and the amount of those damages are within your sound discretion. This means that you do not have to award punitive damages unless you feel that you should do so.11

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3B O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.61 (5th ed.

Searles v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001) (State inmate sued for violation of his First Amendment right to free exercise of religion. "[S]ection [42 U.S.C.] 1997e(e) doe not bar recovery of nominal damages for violations of prisoners' rights . . . . Moreover, the rule seems to be that an award of nominal damages is mandatory upon a finding of a constitutional violation . . . . " Id. at 879 (emphasis added), cert. denied, 122 S. Ct. 2356 (2002). Purkey v. Green, 28 Fed. Appx. 736, 748, 2001 WL 998057 (10th Cir. Aug. 17, 2001) (Henry, J., concurring and dissenting) (42 U.S.C. § 1983 action by pretrial detainee alleging constitutional violations of deliberate indifference to medical needs, excessive force, and retaliation. In his concurrence and dissent, Judge Henry cited Searles v. Bebber, 251 F.3d 869 (10th Cir. 2001) for the principle that 42 U.S.C. § 1997e(e) "limits an inmate's ability to recover for mental or emotional injuries, but does not bar recovery of nominal damages."). 3B O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.62 (5th ed. 2001) (modified). Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 6 n.1 and 23 (1991) (Insureds brought action against life insurer and agent for fraud. The Supreme Court determined that the common-law method for assessing punitive damages was not per se unconstitutional, id. at 1520, and approved the jury instruction on punitive damages, id. at 6 n.1, and 20, and 23. The jury instruction read in pertinent part: "Imposition of punitive damages is entirely discretionary with
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Punitive damages are available only for conduct that is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others--in this case, plaintiff's Eighth amendment rights.12 If punitive damages are assessed against more than one defendant, the amounts assessed against such defendant prison officials may be the same or they may be different.13 In fixing the amount of punitive damages against any one defendant, you must take into consideration the character and the degree of the wrong, as shown by the evidence, and the necessity of preventing a similar wrong.14

the jury, that means that you don't have to award it unless this jury feels that you should do so." Id. at 6 n.1.). Smith v. Wade, 461 U.S. 30, 53-56 (1983) (State inmate sued under 42 U.S.C. § 1983, claiming that Eighth Amendment rights were violated when guards were indifferent to his rights and safety. "As for punitive damages . . . we are content to adopt the policy judgment of the common law ­ that reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law, should be sufficient to trigger a jury's consideration of the appropriateness of punitive damages." Id at 51. "We hold that a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Id. at 56.). Searles v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001) (State inmate sued claiming prison officials violated his First Amendment right to free exercise of religion. "Punitive damages are available only for conduct which is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.'" (quoting Smith v. Wade, 461 U.S. 30, 56 (1983), cert. denied, 122 S. Ct. 2356 (2002)). 3B O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.61 (5th ed. 2001) (modified). Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 6 n.1and 23 (1991) (Insureds brought action against life insurer and agent for fraud. The Supreme Court found that the common-law method for assessing punitive damages was not per se unconstitutional, id. at 1520, and found that the jury had been adequately instructed as to punitive damages, id. at 20, 23. The approved instruction reads in pertinent part: "Should you award punitive damages, in fixing the amount, you must take into consideration the character and the degree of the wrong as shown by the evidence, and the necessity of preventing similar wrong." Id at 6 n.1.).
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