Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01049-EWN-KLM MITCHELL THEOPHILUS GARRAWAY, Plaintiff, v. KENNETH LINCOLN, et al., Defendants. ________________________________________________________________________ DEFENDANTS' PROPOSED JURY INSTRUCTIONS ________________________________________________________________________ Defendants, through counsel, submit Defendants' Proposed Jury Instructions. Dated this 14th day of September, 2007. Respectfully submitted, TROY A. EID United States Attorney

s/ Mark S. Pestal Mark S. Pestal Amy L. Padden Assistant United States Attorneys 1225 17 th Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 [email protected]

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TABLE OF CONTENTS Instruction No. 1. 2. 3. 4. Page

Nature of the Case ..................................................................... 3 Credibility of Witnesses............................................................. 5 Impeachment ­ Felony Conviction............................................ 6 Elements of Eighth Amendment Claim ­ Use of Excessive Force......................................................................... 7 Sadistically Defined..................................................................11 Proximately Caused................................................................. 12 Personal Participation.............................................................. 13 Types of Damages................................................................... 14

5. 6. 7. 8.

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Defendants' Proposed Instruction No. 1 Nature of the Case 1 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 he was escorted 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, Mr. Garraway got up to leave and began to walk 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 assaulted thereby causing him physical injury. Mr. Garraway claims that through the use of excessive force, the defendants' actions violated his right to be free from cruel and

E. Devitt, C. Blackmar, and M. Wolff, Federal Jury Practice and Instructions § 70.01 (4 th ed. 1987) (modified). 3

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unusual punishment as protected by the United States Constitution. 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 4
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Defendants' Proposed Instruction No. 2 Credibility of Witnesses4 You are the sole judges of the credibility of the witnesses and the weight to be given their testimony. You should take into consideration their means of knowledge, strength of memory, and opportunities for observation; the reasonableness or unreasonableness of their testimony; the consistency or lack of consistency in their testimony; their motives; their intelligence; their ability to observe the matters about which they have testified; whether their testimony has been contradicted or supported by other evidence; their bias, prejudice or interests, if any; their manner or demeanor upon the witness stand; and all other facts and circumstances shown by the evidence which affect the credibility of the witnesses. Based on these considerations, you may believe all, part, or none of the testimony of a witness and you may give the testimony such weight, if any, as you think it deserves.

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). 3 O'Malley, Grenig, & Lee, Federal Jury Practice and Instructions, § 105.01 (5th ed. 2000) (modified). 5
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Defendants' Proposed Instruction No. 3 Impeachment ­ Felony Conviction A witness may be discredited or impeached by evidence that the witness has been convicted of a felony, that is, an offense punishable by imprisonment for in excess of one year. If you believe that any witness has been impeached and thus discredited, it is your exclusive responsibility to give testimony of that witness such credibility, if any, as you think it deserves.5

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions (5th ed. 2000), at vol. 3, § 105.05. 6

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Defendants' Proposed Instruction No. 4 Elements of Eighth Amendment Claim ­ Excessive Use of Force The Eighth Amendment to the United States Constitution protects prisoners from cruel and unusual punishment, which includes the use of excessive and unnecessary force by prison officials.6 In order to prove a violation under the Eighth Amendment, the plaintiff must show that defendants Kenneth Lincoln, Lee Rittenmeyer, and Mark Robles unnecessarily and wantonly inflicted pain on him. Whether a use of force against a prisoner is unnecessary or wanton depends on whether force was applied in a good faith effort to maintain or restore discipline, or whether it was done maliciously or sadistically to cause harm.7 Therefore in order for the plaintiff to establish his Eighth Amendment claim of excessive force, he has the burden of proving the following essential elements as to each defendant by a preponderance of the evidence:

Whitley v Albers, 475 U.S. 312 U.S. 319 (1986) (The "unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.") (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977). Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (Excessive force case; beating by prison guards. "[W]e hold that whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley [v. Albers, 475 U.S. 312 (1986)]: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."). Fifth Circuit Pattern Jury Instructions Civil, § 10.5 (Eighth Amendment (Excessive Force)) (1999 ed.) (modified). 7
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1. That one or more of the defendants used excessive force against the plaintiff. 2. That one or more of the defendants who used excessive force did so maliciously and sadistically, for the very purpose of causing plaintiff harm; and 3. That the plaintiff suffered some harm as a direct result of one or more of the defendant's use of force. The first element is to be evaluated by an objective analysis of the use of force. The second element is to be evaluated by a subjective analysis of the defendant and his state of mind at the time the force was applied. In deciding whether these elements have been proved, I remind you that you must give prison officials wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain internal security in the prison. Some of the things you may want to consider in determining whether the prison officials unnecessarily and wantonly inflicted pain on the plaintiff include: 1. The extent of the injury suffered. 2. The need for the application of force. 3. The relationship between the need and the amount of force used. 4. The threat reasonably perceived by the responsible officials, and 5. Any efforts made to temper the severity of a forceful response.8

8

O'Malley, Grenig Lee Federal Jury Practice and Instructions, § 166.23 (5th ed.

2001).

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Also, in considering whether unnecessary or excessive force was used, you should know that not every push or shove violates the constitutional rights of an inmate. The Eighth Amendment's prohibition against "cruel and unusual" punishments does not include the de minimis or minimal use of force so long as it is not of the sort repugnant to the conscience of mankind.9 A prison guard, in order to maintain control of inmates, Hudson v. McMillian, 503 U.S. 1 (1992) ("[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. . . . In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the theat `reasonably perceived by the responsible officials,' and `any efforts made to temper the severity of a forceful response.'" Id. at 6-7 (quoting Whitley v Albers, 475 U.S. 312, 320-21 (1986)). Mitchell v. Maynard, 80 F.3d 1433 (10th Cir. 1996) ("In order for [a] beating by guards to rise to the level of an Eighth Amendment violation, [the plaintiff] must show the guards acted maliciously and sadistically for the very purpose of causing harm rather than in a good-faith effort to maintain or restore discipline." Id. at 1440 (citing Hudson v. McMillian, 503 U.S 1, 6-7 (1992)). Giron v. Corrections Corp. of America, 191 F.3d 1281 (10th Cir. 1999) ("[A]n excessive force claim involves two prongs: (1) an objective prong that asks `if the alleged wrongdoing was objectively "harmful enough" to establish a constitutional violation,' and (2) a subjective prong under which the plaintiff must show that `the officials act[ed] with a sufficiently culpable state of mind.' The subjective element of an excessive force claim `turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.'" Id. at 1289 (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992); Wilson v. Seiter, 502 U.S. 294, 298 (1991); and Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) ("[N]ot every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d [1028], 1033 [(2d Cir. 1973)] (`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional 9
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must often make instantaneous, on-the-spot decisions concerning the need to apply force without having to second-guess himself. Hence, the intentional infliction of pain for the purpose of prison security or safety of prison staff is not cruel and unusual punishment simply because it may appear later that the amount of force applied was unreasonable or unnecessary.10

rights.') The Eighth Amendment's prohibition of `cruel an unusual' punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort' "repugnant to the conscience of mankind.'" Whitley, 475 U.S. at 327 . . . (quoting Estelle, 429 U.S. at 106 . . . . ) (internal quotation marks omitted)"). Whitley v. Albers, 475 U.S. 312 (1986) ("[I]n making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials . . . must take into account the very real threats the unrest presents . . . . In this setting, a deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance. Id. at 320. . . . . Prison administrators . . . should be accorded wideranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order an discipline and to maintain institutional security. That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventative measures intended to reduce the incidence of these or any other breaches of prison discipline." Id. at 321-22. (citations omitted) (emphasis added).). 10
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Defendants' Proposed Instruction No. 5 "Sadistically" Defined "Sadistically" means engaging in extreme or excessive cruelty or delighting in cruelty.11

O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.33 (5th ed. 2001). See also Merrian Webster's Collegiate Disctionary, 10 th Ed. (2001). 11

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Defendants' Proposed Instruction No. 6 "Proximately Caused" Defined An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage to the plaintiff, and that plaintiff's injury or damage was either a direct result or a reasonably probable consequence of the act or omission.12

3B O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.50 (Causation) (5th ed. 2001) (modified). 12

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Defendants' Proposed Instruction No. 7 Personal Participation A defendant in this case may only be found liable or responsible for violating plaintiff's constitutional rights if you find that he personally participated in the alleged assaults. In addition, a defendant may not be held liable or responsible for the alleged violations based on his status as a supervisor of another employee or defendant.13 On the other hand, the plaintiff does not need to prove that all of the defendants against whom each claim is brought violated his constitutional rights. Liability may be imposed on a single defendant whose conduct is found to violate the Constitution as defined previously. Likewise, a defendant or defendants may be held liable or responsible for the constitutional violation when they observe a constitutional violation occurring and fail to intervene to prevent additional harm to the plaintiff.14

Serna v. Colorado Dep't of Corrections, 455 F.3d 1146, 1151 (10 th Cir. 2006) (supervisors only liable for their own conduct ; Kite v. Kelley, 546 F.2d 334 (10 th Cir. 1976).
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Jackson v. Austin, 241 F. Supp.2d 1313, 1319 (D. Kan. 2003); Laury v. Greenfield, 87 F. Supp. 2d 1210,1216 (D. Kan. 2000) ("Prison guards who observe the imposition of excessive force upon a prisoner at the hands of another guard but who take no steps to protect the prisoner violated the Eighth Amendment."). 13

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Defendants' Proposed Instruction No. 8 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.15 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.16 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 Eighth Circuit, Manual of Model Jury Instructions-Civil, § 4.51 (Actual Damages-Prisoner 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). 14
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entitled to a double recovery of his damages because two or more defendants were responsible for the damages.17 In this case compensatory damages are intended to redress the concrete loss that the plaintiff has suffered by reason of any one or more of the defendants' wrongful conduct in using excessive force.18 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.19 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

Northington v. Marin, 162 F.3d 1564, 1569 (10 th Cir. 1996) (joint liability may be imposed where damages cannot be apportioned between tortfeasors in § 1983 action).
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Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001) (False advertising case. "Although compensatory damages and punitive damages are typically awarded at the same time by the same decision-maker, they serve distinct purposes. The former are intended to redress the concrete loss that the plaintiff has suffered by reason of the defendant's wrongful conduct . . . .") (emphasis added). 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). 15
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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 the defendants liable.20 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 for some extraordinary misconduct and to serve as an example or warning to others not to engage in such conduct.21 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 3B O'Malley, Grenig & Lee, Federal Jury Practice and Instructions, § 166.61 (5th ed. 2001). 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). 16
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punitive damages unless you feel that you should do so.22 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.23

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 15-20, 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 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)). 17
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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.24 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.25

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 15-20, 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.). 18
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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 14, 2007, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant(s) in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: None

s/Mark S. Pestal United States Attorney's Office