Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Stephen G. Montoya (#011791) MONTOYA JIMENEZ, P.A.
The Great American Tower 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012 (602) 256-6718 (fax) 256-6667

[email protected] Attorney for Plaintiff

David F. Gaona (#007391) GAONA LAW FIRM
3101 North Central Avenue, Ste. 720 Phoenix, Arizona 85012-2640 (602) 230-2636 (fax) 230-1377

[email protected]

Attorney for Defendants

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Monica Ortega-Guerin, plaintiff, vs. City of Phoenix, Frank Favela, and Frank Peralta,

No. CV 04-0289-PHX-MHM Proposed Joint Jury Instructions

Pursuant to this Court's Order of September 22, 2005, the parties submit this Joint List of proposed Jury Instructions:1 1. Party PROPOSED MODEL INSTRUCTIONS: Proposing or M o d e l J u r y Description Instruction; Duty of Jury of Jury

Stipulated to: Stipulated

Instruction Number: §1.1

The parties reserve their right to supplement this List as appropriate, including lodging any applicable objections.

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Stipulated

§1.2

Statement Defenses

of

Claim

and

Stipulated Stipulated Stipulated Stipulated

§1.3 §1.4 §1.5 §1.6

What is Evidence? What is not Evidence? Evidence for a Limited Purpose Direct Evidence and Circumstantial

Stipulated Stipulated Stipulated Stipulated Stipulated Stipulated Stipulated

§1.7 §1.8 §1.9 §1.10 §1.11 §1.12 §1.13

Ruling on Objection Credibility of Witnesses Conduct of the Jury No transcript available to the jury Taking notes Outline of trial Burden of proof ­ preponderance of the Evidence

Defendant

§1.14

Burden of proof ­ clear and convincing evidence

Stipulated

§2.1

Cautionary instruction ­ first recess

Stipulated

§2.2

Bench recesses

conferences

and

Stipulated

§3.1

Duties of jury to find facts to follow law

Stipulated Stipulated Stipulated

§3.2 §3.3 §3.5

What is Evidence? What is not Evidence? Direct evidence and circumstantial

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Stipulated

§3.6 §12.2A

Credibility of witnesses Hostile work harassment protected elements environment because ­ of ­

characteristics

Stipulated

§12.2B

Hostile work environment caused by supervisor ­ claim based upon vicarious liability ­ tangible employment action ­ affirmative defense

Defendant Defendant Defendant

§12.3A §7.3 §5.1

Retaliation ­ elements Damages ­ mitigation Burden of proof, preponderance of the evidence

Stipulated Stipulated Stipulated Stipulated Plaintiff Plaintiff Plaintiff Plaintiff Plaintiff

§4.1 §4.2 §4.3 §4.4 7.1 7.2 7.5 7.6 12.2C

Duty to deliberate Use of Notes Communication with Court Return of verdict Damages--Proof Measure of Types of Damages Punitive Damages Nominal Damages Hostile work environment caused by a coworker

2.

NON-MODEL JURY INSTRUCTIONS TO WHICH THE PARTIES HAVE STIPULATED: Inapplicable.

3.

NON-MODEL JURY INSTRUCTIONS REQUESTED BY PLAINTIFF: -3-

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No. 1 - Supervisory Liability NON-MODEL JURY INSTRUCTIONS REQUESTED BY DEFENDANT:* No. 1 ­ Hostile Work Environment Claim No. 2 ­ Hostile Work Environment Affirmative Defense No. 3 ­ Legitimate Non-Discriminatory Reason No. 4 ­ Compensatory Damages No. 5 ­ Punitive Damages 42 U.S.C. § 1983 No. 6 ­ Damage ­ Reasonable ­ Not Speculative

Dated the 16th day of November, 2005. MONTOYA JIMENEZ A Professional Association s/ Stephen G. Montoya Stephen G. Montoya 3200 North Central Avenue, Ste. 2550 Phoenix, Arizona 85012-2490 Attorney for Plaintiff s/ Stephen G. Montoya for David F. Gaona Gaona Law Firm 3101 North Central Avenue, Ste. 720 Phoenix, Arizona 85012-2640 Attorney for Defendants

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PLAINTIFF'S PROPOSED NONUNIFORM INSTRUCTION

PLAINTIFF'S INSTRUCTION REGARDING SUPERVISORY LIABILITY AS TO FRANK FAVELA Plaintiff is asserting a claim against Frank Favela for supervisory liability. Supervisory liability is imposed against a supervisory official for: (1) (2) 3. his own culpable action or inaction in the training, supervision, or control of his subordinates, his acquiescence in the constitutional deprivations of which the complaint is made, or conduct that showed a reckless or callous indifference to the rights of others.

See Larez v. City of Los Angeles, 871 F.2d at 1163 (9th Cir. 1992).

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DEFENDANTS' PROPOSED NONUNIFORM INSTRUCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GIVEN REFUSED MODIFIED WITHDRAWN SOURCE: Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991); White v. California Department of Corrections, CIV S-04-276 (E.D. California November 1, 2005); McGrath v. Scott, 250 F.Supp 2d 1218, 1224 (D. Arizona 2003) In this case, the Plaintiff claims that individual defendant Favela is responsible under 42 U.S.C § 1983 for supervisory action or inaction. Generally, a supervisor is not liable under Section 1983 for the actions of his employees. Consequently, in order for defendant Favela to be responsible, the Plaintiff must show, by preponderance of the evidence that a causal link exists between defendant Favela and the claimed violation, in this case, a hostile work environment. In addition, supervisory liability may not be premised on a mere failure to act. Liability must be based upon the active illegal and/or unconstitutional behavior. 42 U.S.C. § 1983/FAVELA

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GIVEN REFUSED MODIFIED

DEFENDANTS' INSTRUCTION REGARDING DAMAGES ­ REASONABLE ­ NOT SPECULATIVE Damages must be reasonable. If you should find that the Plaintiff is entitled to a Verdict you may award her only just damages as will reasonably compensate her for such injury and damages you find from a preponderance of the evidence in this case, that she has sustained as a proximate result of her claim. You are not permitted to award speculative damages.

SOURCE: Federal Jury Practice and Instructions, Civil, Vol. 3, § 85.14 (as modified).

WITHDRAWN

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PUNITIVE DAMAGES UNDER 42 U.S.C. § 1983

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If you find for the plaintiff, you may, but are not required to, award punitive damages against Defendants Frank Favela and Frank Peralta, but not against the City of Phoenix. The purpose of punitive damages is 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 clear and convincing evidence. You may award punitive damages only if you find that defendant's conduct was malicious, oppressively done, 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, rights, or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. Conduct is oppressively done if it injures or damages or otherwise violates the rights of Plaintiff with unnecessary harshness or severity as by misuse or abuse of authority or power or by taking advantage of some weakness or disability or the misfortunes 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 considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff. Dang v, Cross, 03-55403 (9th Cir. Aug. 22, 2005)

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CERTIFICATE OF SERVICE

:I hereby certify that on November 16, 2005, I electronically transmitted the attached
document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David F. Gaona Gaona Law Firm 3101 North Central Avenue, Suite 720 Phoenix, Arizona 85012 Attorney for Defendants

:I further certify that on November 17, 2005, the attached document was handdelivered to: The Honorable Mary H. Murguia United States District Court for the District of Arizona Sandra Day O'Connor United States Courthouse 401 West Washington Street Phoenix, Arizona 85003

s/ Stephen G. Montoya

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