Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Terry Goddard Arizona Attorney General Michael E. Gottfried, 010623 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Phone: (602) 542-4951 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ALBERT W. DeLEON, No. CV 04-0446 PHX JAT (JRI) Plaintiff, v. DORA SCHRIRO; et al., Defendants. Plaintiff, Albert W. DeLeon, pro se, and Defendants Reyes, Avalos, Paredez, and Ramon, by undersigned counsel, submit the following jointly proposed Ninth Circuit Model Civil Jury Instructions and Defendants' Proposed Non-Model Civil Jury Instructions. SECTION I Ninth Circuit Model Civil Jury Instructions § 1.1 Duty of Jury § 1.2 Claims and Defenses § 1.3 Burden of Proof ­ Preponderance of the Evidence § 1.5 Two or More Parties
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JOINT PROPOSED JURY INSTRUCTIONS

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§ 1.6 What is Evidence § 1.7 What is Not Evidence § 1.8 Evidence for a Limited Purpose § 1.9 Direct and Circumstantial Evidence § 1.10 Ruling on Objections § 1.11 Credibility of Witness § 1.12 Conduct of the Jury § 1.13 No Transcript Available to Jury § 1.14 Taking Notes § 1.15 Questions to Witnesses by Jurors § 1.18 Bench Conferences and Recesses § 1.19 Outline of Trial § 2.2 Stipulation of Fact § 2.8 Impeachment Evidence-Witness § 2.10 Use of Interrogatories of a Party § 3.1 Duty to Deliberate § 3.2 Communication with Court § 3.3 Return of Verdict § 5.1 Damages ­ Proof § 5.5 Punitive Damages § 5.6 Nominal Damages

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§ 9.1 Section 1983 Claim ­ Introductory Instruction § 9.2 Elements of Burden of Proof § 9.24 Particular Rights ­ Eighth Amendment Prisoner's Claim of Excessive Force

SECTION II Defendants' Proposed Non-Model Civil Jury Instructions 1. 2. Violations of Federal Civil Rights -- Elements and Burden of Proof Verbal Harassment ­ Not a Violation of the Constitution

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SECTION I NINTH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS

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§ 1.1

DUTY OF JURY

Ladies and gentlemen: You are now the jury in this case. It is my duty to instruct you on the law. You must not infer from these instructions or from anything I may say or do as indicating that I have an opinion regarding the evidence or what your verdict should be. It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so. In following my instructions, you must follow all of them and not single out some and ignore others; they are all important.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED
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§ 1.2

CLAIMS AND DEFENSES

To help you follow the evidence, I will give you a brief summary of the positions of the parties: The plaintiff claims that defendant Reyna when applying handcuffs to his person, applied them too tightly which violated his right to be free from cruel and unusual punishment. The Plaintiff claims that defendants Paredez, Alvalos, and Ramon in retaliation for his perceived threat to a female correctional officer, forced him to crawl up stairs on his hands and knees, while moving him into his newly assigned cell. The Plaintiff has the burden of proving these claims. The defendants deny these claims. Defendant Reyna asserts that his actions

towards Plaintiff were professional and necessary security measures when transporting an inmate from one housing assignment to another. There was no injury from the handcuffs. Defendants Paredez, Avalos, and Ramon deny any and all claims of retaliation. They state that they were unaware of the reason for Plaintiff's move to the particular prison unit. Plaintiff's cane and orthopedic shoes were properly taken from him during his change of cells and this may have made it difficult for him to walk. Additionally,

Defendants Ramon and Paredez deny that they participated in the escort of Plaintiff. Their duties required that they remain at their assigned post during the time in question. SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). ... ... 6
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§ 1.3

BURDEN OF PROOF--PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED 8
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§1.5

TWO OR MORE PARTIES

You should decide the case as to each Defendant separately. Unless otherwise stated, the instructions apply to all parties.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED 9
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§ 1.6

WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which are received into evidence; and (3) any facts to which the lawyers have agreed.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED 10
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§ 1.7

WHAT IS NOT EVIDENCE

In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by Mr. DeLeon and Mr. Gottfried are not evidence. They are not witnesses. What they have said in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by Mr. DeLeon and Mr. Gottfried, are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court's ruling on it. (3) Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition sometimes testimony and exhibits are received only for a limited purpose; when I have given a limiting instruction, you must follow it.

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(4)

Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED

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§ 1.8

EVIDENCE FOR LIMITED PURPOSE

Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED 13
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§ 1.9

DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED

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§ 1.10

RULING ON OBJECTIONS

There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 1.11

CREDIBILITY OF WITNESS

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it. In considering the testimony of any witness, you may take into account: (1) the opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness's memory; (3) the witness's manner while testifying; (4) the witness's interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness's testimony; (6) the reasonableness of the witness's testimony in light of all the evidence; and (7) any other factors that bear on believability. The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify about it.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED 16
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§ 1.12

CONDUCT OF THE JURY

I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including members of your family, people involved in the trial, or anyone else; this includes discussing the case in internet chat rooms or through internet "blogs," internet bulletin boards or e-mails. Nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately; Second, do not read or listen to any news stories, articles, radio, television, or online reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the bailiff to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. Finally, until this case is given to you for your deliberation and verdict, you are not to discuss the case with your fellow jurors. ... ... ... 17
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SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys). GIVEN MODIFIED REFUSED 18
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§ 1.13

NO TRANSCRIPT AVALIABLE TO JURY

During deliberations, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given. If at any time you cannot hear or see the testimony, evidence, questions or arguments, let me know so that I can correct the problem.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 1.14

TAKING NOTES

If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you. When you leave, your notes should be left in the courtroom. No one will read your notes. They will be destroyed at the conclusion of the case. Whether or not you take notes, you should rely on your own memory of the evidence. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 1.15

QUESTIONS TO WITNESSES BY JURORS

You will be allowed to propose written questions to witnesses after the lawyers have completed their questioning of each witness. You may propose questions in order to clarify the testimony, but you are not to express any opinion about the testimony or argue with a witness. If you propose any questions, remember that your role is that of a neutral fact finder, not an advocate. Before I excuse each witness, I will offer you the opportunity to write out a question on a form provided by the court. Do not sign the question. I will review the question with the attorneys to determine if it is legally proper. There are some proposed questions that I will not permit, or will not ask in the wording submitted by the juror. This might happen either due to the rules of evidence or other legal reasons, or because the question is expected to be answered later in the case. If I do not ask a proposed question, or if I rephrase it, do not speculate as to the reasons. Do not give undue weight to questions you or other jurors propose. You should evaluate the answers to those questions in the same manner you evaluate all of the other evidence. By giving you the opportunity to propose questions, I am not requesting or suggesting that you do so. It will often be the case that a lawyer has not asked a question because it is legally objectionable or because a later witness may be addressing that subject. SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 1.18

BENCH CONFERENCES AND RECESSES

From time to time during the trial, it may become necessary for me to talk with Mr. DeLeon and Mr. Gottfried out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. Of course, we will do what we can to keep the number and length of these conferences to a minimum. I may not always grant a request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 1.19

OUTLINE OF TRIAL

Trials proceed in the following way: First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The plaintiff will then present evidence, and counsel for the defendant may crossexamine. Then the defendant may present evidence, and counsel for the plaintiff may cross-examine. After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments. After that, you will go to the jury room to deliberate on your verdict.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 2.2

STIPULATION OF FACT

The parties have agreed to certain facts to be placed in evidence as Exhibit A. You should therefore treat these facts as having been proved.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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PROPOSED EXHIBIT A TO MODEL CIVIL JURY INSTRUCTION 2.2 STIPULATIONS AND UNCONTESTED FACTS

1.

At the time of the alleged claims, Plaintiff was an inmate housed in the

Arizona State Prison Complex-Florence ("Florence")-East Unit, who was transferred on October 17, 2002, to the Florence-Central Unit pending an investigation of possible conspiracy to commit assault. 2. 3. 4. Central Unit. 5. Defendants Paredez and Ramon were employed at as Correctional Officers Plaintiff did not conspire to commit an assault. Defendant Reyna was employed as a Correctional Officer at the facility. Defendant Avalos was employed as a Correctional Sergeant at the Florence-

assigned to the Florence-Central Unit. 6. Defendant Reyna applied handcuffs to Plaintiff's wrist prior to escorting him

to the Florence-Central Unit. 7. 8. Plaintiff was assigned to an upper-third-tier cell by correctional officials. Defendants did not make housing assignments, and had no say in the

assignment of Plaintiff to his third-tier cell. 9. Defendants were unaware of any medical conditions Plaintiff may have had

at the time of his movement. 10. On October 17, 2002, Plaintiff had no orders precluding him climbing stairs.

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11.

Plaintiff's cane and orthopedic shoes were properly taken from him before

the move to an upper third-tier cell on October 17, 2002. 12. Plaintiff did not have a heart attack on October 17, 2002, because of his

having to go up stairs to reach his upper third-tier cell or because handcuffs were applied too tightly to him. 13. Plaintiff did not seek medical treatment for any injuries associated with

having been handcuffed on October 17, 2002, or for any bumps, bruises, abrasions, or injuries asserted with having climbed stairs on October 17, 2002.

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§ 2.8

IMPEACHMENT EVIDENCE -- WITNESS

The evidence that a witness has been convicted of a crime may be considered along with all other evidence in deciding whether or not to believe the witness and how much weight to give to the testimony of the witness and for no other purpose.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 2.10

USE OF INTERROGATORIES OF A PARTY

Evidence will now be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions that were submitted in writing under established court procedures. You should consider the answers, insofar as possible, in the same way as if they were made from the witness stand.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 3.1

DUTY TO DELIBERATE

When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors. Do not hesitate to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 3.2

COMMUNICATION WITH COURT

If it becomes necessary during your deliberations to communicate with me, you may send a note through the bailiff, signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone--including me--how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 3.3

RETURN OF VERDICT

A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 5.1

DAMAGES

It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the plaintiff, you must determine the plaintiff's damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant. You should consider the following: Damages are available for violations of Section 1983 to compensate persons for injuries caused by the deprivation of constitutional rights. A damages award must be based on actual injuries. The abstract value of a constitutional right may not form the basis for Section 1983 damages. The plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved. Your award must be based upon evidence and not upon speculation, guesswork or conjecture.

SOURCE: Ninth Circuit Model Civil Jury Instructions, §§ 7.1, 11.4 (Modified to include a statement regarding the measures of the types of damages available and obtained from Carey v. Piphus, 435 U.S. 247, 254, 98 S.Ct. 1042 (1978), and Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308, 106 S.Ct. 2537 (1986)). GIVEN MODIFIED REFUSED 33
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§ 5.5

PUNITIVE DAMAGES

If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are not to compensate a plaintiff, but to punish a defendant and to deter a defendant and others from committing similar acts in the future. The plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that the defendant's conduct was malicious, oppressive or in reckless disregard of the plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the plaintiff's safety or rights, or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. An act or omission is oppressive if the person who [performs] [fails to perform] it injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by the misuse or abuse of authority or power or by the taking advantage of some weakness or disability or misfortune of the plaintiff. If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In

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defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff. You may impose punitive damages against one or more of the defendants and not others, and may award different amounts against different defendants. Punitive damages may be awarded even if you award plaintiff only nominal, and not compensatory, damages.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 5.6

NOMINAL DAMAGES

The law which applies to this case authorizes an award of nominal damages. If you find for the plaintiff but you find that the plaintiff has failed to prove damages as defined in these instructions, you must award nominal damages. Nominal damages may not exceed one dollar.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 9.1

§ 1983 CLAIM ­ INTRODUCTORY INSTRUCTION

The plaintiff brings his claims under the federal statute, 42 U.S.C. § 1983, which provides that any person or persons who, under color of law, deprives another of any rights, privileges, or immunities secured by the Constitution or laws of the United States shall be liable to the injured party.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 9.2

SECTION 1983 CLAIM AGAINST DEFENDANT IN INDIVIDUAL CAPACITY--ELEMENTS AND BURDEN OF PROOF

In order to prevail on his § 1983 claim against the defendants, the plaintiff must prove each of the following elements by a preponderance of the evidence: 1. 2. the defendant acted under color of law; and the acts of the defendant deprived the plaintiff of his particular rights under

the United States Constitution as explained in later instructions. A person acts "under color of law" when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. I instruct you that the defendant acted under color of law. If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements he is required to prove under Instruction, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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§ 9.24

PARTICULAR RIGHTS--EIGHTH AMENDMENT-- PRISONER'S CLAIM OF EXCESSIVE FORCE

As previously explained, the plaintiff has the burden to prove that the acts of the defendants deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendants deprived him of his rights under the Eighth Amendment to the Constitution when Defendant Reyna allegedly placed handcuffs on him too tightly. Under the Eighth Amendment, a convicted prisoner has the right to be free from "cruel and unusual punishments." In order to prove the defendant deprived the plaintiff of this Eighth Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence: 1. the defendant used excessive and unnecessary force under all of the

circumstances; 2. harm; and 3. the act[s] of the defendant caused harm to the plaintiff. the defendant acted maliciously and sadistically for the purpose of causing

In determining whether the defendant used excessive force in this case, consider the need to use force, the relationship between that need and the amount of force used, whether defendant applied the force in a good faith effort to maintain or restore discipline, any threat reasonably perceived by the defendant, any efforts made to temper the severity of a forceful response, and the extent of the injury suffered. In considering these factors, you should give deference to prison officials in the adoption and execution of policies and ...
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practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2007 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov/attorneys).

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SECTION II DEFENDANTS PROPOSED NON-MODEL CIVIL JURY INSTRUCTIONS

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DEFENDANTS PROPOSED NON-MODEL CIVIL JURY INSTRUCTIONS NO. 1 Violations of Federal Civil Rights -- Elements and Burden of Proof Plaintiff claims that Defendants Paredez, Avalos and Ramon retaliated against Plaintiff for exercising a constitutional right by forcing him to crawl up stairs to his cell. 1. The acts or omission of the particular Defendant were the cause of the

deprivation of the Plaintiff's rights protected by the Constitution or laws of the United States; 2. The acts or omission of the particular Defendant were taken against Plaintiff

in retaliation for Plaintiff exercising his constitutional rights; and, 3. The acts or omissions of the particular Defendant did not advance legitimate

penological goals, such as preserving institutional order and discipline. If you find that each of the elements on which the Plaintiff has the burden of proof has been proved as to a particular Defendant, your verdict should be for the Plaintiff against that particular Defendant. If, on the other hand, the Plaintiff has failed to prove any of these elements against a particular Defendant, your verdict should be for that particular Defendant.

SOURCE: Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir. 1985).

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DEFENDANTS PROPOSED NON-MODEL CIVIL JURY INSTRUCTIONS NO. 2

Verbal harassment or abuse is not a violation of the Constitution.

SOURCE: Oltarzewski v. Ruggerio, 830 F.2d 136, 139 (9th Cir. 1997); Court's Ruling dated September 13, 2006 (Dkt. 218 at 6). GIVEN MODIFIED REFUSED 43
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