Free Proposed Jury Instructions - District Court of Arizona - Arizona

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TERRY GODDARD Arizona Attorney General Darrin J. DeLange Assistant Attorney General Arizona State Bar No. 015699 1275 West Washington Street Phoenix, AZ 85007-2997 (602) 542-7693 Telephone (602) 542-7670 Facsimile [email protected] Attorneys for Defendant James IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Andre Almond DENNISON, Plaintiff, v. Conrad LUNA, et al., Defendant. Case No. CV 03-2373 PHX SRB DEFENDANT'S PROPOSED CONSOLIDATED SUMMARY OF CIVIL JURY INSTRUCTIONS: STIPULATED-TO 9TH CIRCUIT MODEL, DEFENDANT'S PROPOSED MODEL, AND PLAINTIFF'S AND DEFENDANT'S PROPOSED NON-MODEL (Assigned to the Hon. Susan R. Bolton) Defendant James, by undersigned counsel, submits "Defendant's Proposed Consolidated Summary of Civil Jury Instructions: Stipulated-To 9th Circuit Model, Defendant's Proposed Model, and Plaintiff's and Defendant's Proposed Non-Model" for the convenience of the Court. Stipulated-To 9th Circuit Model Civil Jury Instructions § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 Duty of Jury Claims and Defenses What is Evidence What is Not Evidence Evidence for Limited Purpose

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§ 1.6 § 1.7 § 1.8 § 1.9

Direct and Circumstantial Evidence Ruling on Objections Credibility of Witnesses Conduct of the Jury

§ 1.10 No Transcripts § 1.11 Taking Notes § 1.12 Outline of Trial § 1.13 Burden of Proof--Preponderance of the Evidence § 2.1 § 2.4 Cautionary Instruction--First Recess Stipulations of Fact

§ 2.10 Limited Purpose Evidence § 3.1 § 3.2 § 3.3 § 3.5 § 3.6 § 4.1 § 4.2 § 4.3 § 4.4 § 5.1 Duties of Jury to Find Facts and Follow Law What Is Evidence What Is Not Evidence Direct and Circumstantial Evidence Credibility of Witnesses Duty to Deliberate Use of Notes Communication With Court Return of Verdict Burden of Proof--Preponderance of the Evidence

Defendant's Proposed Model Civil Jury Instructions §2.11 Impeachment by Conviction of Crime §3.12 Impeachment Evidence--Witness §7.1 Damages--Proof 2
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§7.2

Measure of Types of Damages

§11.1 Violations of Federal Civil Rights ­ Elements and Burden of Proof §11.2 Under Color of Law Defined Plaintiff's Proposed Non-Model Civil Jury Instructions 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. "If you Find", or "If you Decide" All Persons Equal Before the Law Constitutional Rights; First Amendment Retaliation - Defined Effect of Prior Inconsistent Statements or Conduct -- By a Witness Not a Party -- By a Party Impeachment -- Inconsistent Statements or Conduct Jurors May Take Into Account Ordinary Experience and Observations Knowledge of the Law Presumed "Proximate Cause" -- Defined Specific Intent Not Required Find as to Thing Once Proved to Exist Effect of Prior Inconsistent Statements or Conduct -- By a Witness Not a Party -- By a Party Impeachment -- Inconsistent Statements or Conduct Compensatory Damages Punitive Damages Expert Testimony Answers to Admissions and Interrogatories

Defendant's Proposed Non-Model Civil Jury Instructions 1. 2. Chilled Narrowly Tailored to Advance a Legitimate Correctional Goal 3
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STIPULATED-TO 9 CIRCUIT MODEL CIVIL JURY INSTRUCTIONS
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MODEL CIVIL JURY INSTRUCTION NO. 1.1 DUTY OF JURY Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 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, Andre Dennison, claims that Defendant James violated his Eighth Amendment rights by retaliating against him on May 1, 2003. The Defendants deny Plaintiff's claim. They contend that any force that was used was reasonable and was applied in a good faith effort to maintain or restore discipline. The Plaintiff has the burden of proving his claims by a preponderance of the evidence.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov) (Modified: Proposed description of the claims) (Modified to reflect that Mr. Dennison bears the burden of proof in this case by adding the sentence "The Plaintiff has the burden of proving his claims by a preponderance of the evidence").

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (2) (3)

MODEL CIVIL JURY INSTRUCTION NO. 1.3 WHAT IS EVIDENCE The evidence you are to consider in deciding what the facts are consists of: (1) the sworn testimony of any witness; the exhibits which are received into evidence; and any facts to which the parties stipulate.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov) (Modified to reflect that Mr. Dennison is representing himself by substituting the word "parties" for "lawyers" in the last line).

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MODEL CIVIL JURY INSTRUCTION NO. 1.4 WHAT IS NOT EVIDENCE The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) statements and arguments of Mr. Dennison, when acting in the role of

his own attorney, and Mr. DeLange, as the attorney for the Defendants; (2) questions and objections of Mr. Dennison, when acting in the role of

his own attorney, and Mr. DeLange, as the attorney for the Defendants; (3) (4) testimony that I instruct you to disregard; and anything you may see or hear when the court is not in session even if

what you see or hear is done or said by one of the parties or by one of the witnesses.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov) (Modified to reflect that Mr. Dennison is representing himself by substituting the phrase "Mr. Dennison, when acting in the role of his own attorney, and Mr. DeLange as the attorney for the Defendants," for "the attorneys" throughout the instruction).

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MODEL CIVIL JURY INSTRUCTION NO. 1.5 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, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 1.6 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 and circumstantial evidence. It is for you to decide how much weight to give to any evidence. By way of example, if you wake up in the morning and see that the sidewalk is wet, you may find from that fact that it rained during the night. However, other evidence, such as a turned on garden hose, may explain the presence of water on the sidewalk. Therefore, before you decide that a fact has been proved by circumstantial evidence, you must consider all the evidence in the light of reason, experience, and common sense.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTIONS NO. 1.7 RULING ON OBJECTIONS There are rules of evidence that control what can be received into evidence. What a lawyer asks a question or offers an exhibit into evidence and the other side thinks that it is not permitted by the rules of evidence, that party 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 may 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, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 1.8 CREDIBILITY OF WITNESSES 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. In considering the testimony of any witness, you may take into account: (1) things testified to; (2) (3) (4) the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or the opportunity and ability of the witness to see or hear or know the

whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the

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.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 1.9 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 your fellow jurors, members of your family, people involved in the trial, or anyone else, 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 any news stories or articles or listen to any radio or television 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] [clerk] [law clerk] [matron] 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 that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTIONS NO. 1.10 NO TRANSCRIPT AVAILABLE TO JURY At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trail. I urge you to pay close attention to the testimony as it is given.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTIONS NO. 1.11 TAKING NOTES If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the [courtroom] [jury room] [envelope in the jury room]. Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTIONS NO. 1.12 OUTLINE OF TRIAL The next phase of the trial will now begin. 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] [the attorneys will make closing argument and I will instruct you on the law that applies to the case]. After that, you will go to the jury room to deliberate on your verdict.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 1.13 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, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTIONS NO. 2.2 BENCH CONFERENCES AND RECESSES From time to time during the trial, it may become necessary for me to talk with the attorneys 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. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indicate of my opinion of the case or of what your verdict should be.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 2.4 STIPULATIONS OF FACT The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 2.10 LIMITED PURPOSE EVIDENCE The testimony you are about to hear may be considered only for the limited purpose of [describe purpose] and for no other purpose.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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INSTRUCTIONS DURING TRIAL

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MODEL CIVIL JURY INSTRUCTION NO. 2.1 CAUTIONARY INSTRUCTION--FIRST RECESS We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, 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. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of the parties, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the [marshal] [bailiff] [clerk] [law clerk] to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov) (Modified to take into consideration that Mr. Dennison is representing himself, the phrase "the parties" is substituted for the word "counsel" in the first paragraph).

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INSTRUCTIONS AT END OF CASE

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MODEL CIVIL JURY INSTRUCTION NO. 3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW Members of the jury, now that you have heard all the evidence and the arguments of the parties, it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. 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. 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 promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return--that is a matter entirely up to you. SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov) (Modified to take into consideration that Mr. Dennison is representing himself, the phrase "closing arguments" is substituted for the phrase "arguments of the parties" in the first paragraph).

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MODEL CIVIL JURY INSTRUCTION NO. 3.2 WHAT IS EVIDENCE The evidence from which you are to decide what the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which have been received into evidence; and (3) any facts to which the parties have agreed or stipulated.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov) (Modified to take into consideration that Mr. Dennison is representing himself, the phrase "the parties" is substituted for the phrase "the lawyers" in the final paragraph).

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MODEL CIVIL JURY INSTRUCTION NO. 3.3 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. Dennison, when acting in the role of his

own attorney, and Mr. DeLange, as the attorney for the Defendants, are not evidence. Mr. Dennison, when acting in the role of his own attorney, and Mr. DeLange, as the attorney for the Defendants, are not witnesses. What they have said in their opening statements, will say in their 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 Mr. Dennison, when acting in the role of his own attorney, and Mr. DeLange, as the attorney for the Defendants, have stated them, your memory of them controls. (2) Questions and objections by Mr. Dennison, when acting in the role of his

own attorney, and Mr. DeLange, as the attorney for the Defendants, are not evidence. Mr. Dennison, when acting in the role of his own attorney, may object when he believes a question is improper under the rules of evidence. Mr. DeLange, as the attorney for the Defendants, has a duty to his client to object when he believes 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 some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.] 26
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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, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov) (Modified to reflect that Mr. Dennison is representing himself by substituting the phrase "Mr. Dennison, when acting in the role of his own attorney, and Mr. DeLange, as the attorney for the Defendants," for "the attorneys" throughout the instruction).

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MODEL CIVIL JURY INSTRUCTION NO. 3.5 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 the 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 direct and circumstantial evidence. It is for you to decide how much weight to give to any evidence.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 3.6 CREDIBILITY OF WITNESSES 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. In considering the testimony of any witness, you may take into account: (1) things testified to; (2) (3) (4) the witness' memory; the witness' manner while testifying; the witness' interest in the outcome of the case and any bias or the opportunity and ability of the witness to see or hear or know the

whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the

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.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 4.1 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 be afraid 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, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 4.2 USE OF NOTES Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 4.3 COMMUNICATION WITH COURT If it becomes necessary during your deliberations to communicate with me, you may send a note through the [marshal] [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; and 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, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 4.4 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, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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MODEL CIVIL JURY INSTRUCTION NO. 5.1 BURDEN OF PROOF-- PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim 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, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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DEFENDANT'S PROPOSED MODEL CIVIL JURY INSTRUCTIONS

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PROPOSED MODEL CIVIL JURY INSTRUCTION NO. 2.11 IMPEACHMENT BY CONVICTION OF CRIME The evidence that a witness has been convicted of a crime may be considered only as it may affect the believability of that witness and for no other purpose.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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PROPOSED MODEL CIVIL JURY INSTRUCTION NO. 3.12 IMPEACHMENT EVIDENCE--WITNESS You have heard evidence that Mr. Dennison has been convicted of a felony. You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe this witness and how much weight to give to his testimony.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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PROPOSED MODEL CIVIL JURY INSTRUCTION NOS. 7.1 AND 7.2 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 which 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: Manual of Model Jury Instructions for the Ninth Circuit, §§ 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)).

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PLAINTIFF'S OBJECTION The Plaintiff objects. This is presented as a single instruction titled "Damages" when you see the actual instruction. Physical injuries are not applicable in first amendment claims. (Connel v. Lighnec, 143 F.3d 1210 (9th Cir. 1997).) Instructing the jury to consider "the physical pain and suffering experienced" and "the loss of enjoyment of life experienced" would not be appropriate. A proposed modification would be to simply remove these two statements.

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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 States;

PROPOSED MODEL CIVIL JURY INSTRUCTION NO. 11.1 VIOLATIONS OF FEDERAL CIVIL RIGHTS ­­ ELEMENTS AND BURDEN OF PROOF On the Plaintiff's retaliation claim, the Plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 1. 2. 3. the acts or omissions of the Defendant were intentional; the Defendant acted under color of law; the acts or omissions of the Defendant were the cause of the

deprivation of the plaintiff's rights protected by the Constitution or laws of the United

4.

the acts or omissions of the Defendant were taken against Plaintiff in

retaliation for Plaintiff exercising his constitutional rights; and 5. the acts or omissions of the 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, your verdict should be for the plaintiff. If, on the other hand, the Plaintiff has failed to prove any of these elements, your verdict should be for the Defendant. SOURCE: Manual of Model Jury Instructions for the Ninth Circuit, § 11.1 (2001) (Modified by inserting element 4 (see Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir. 1989) (citing with approval Simmons v. Dickhaut, 804 F.2d 182, 183 (1st Cir. 1986))), and inserting element 5 (Lewis v. Casey, 18 U.S. 343, 116 S.Ct. 2174, 2180 (1996)).

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PLAINTIFF'S OBJECTIONS Paragraph 5 of the instruction is not a requirement in a First Amendment retaliation claim in proving a violation of a federal civil right. A proposed modification is to remove paragraph 5.

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PROPOSED MODEL CIVIL JURY INSTRUCTION NO. 11.2 UNDER COLOR OF LAW DEFINED Acts are done under color of law when a person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. The parties have stipulated that the defendants acted under color of law.

SOURCE: Ninth Circuit Model Civil Jury Instructions, (2004 edition obtained from Ninth Circuit's Internet site at http://www.ce9.uscourts.gov).

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PLAINTIFF'S PROPOSED NON-MODEL CIVIL JURY INSTRUCTIONS

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 1 "IF YOU FIND" OR "IF YOU DECIDE" When I say in these instructions that a party has the burden of proof on any proposition, or use the expression "if you find", or "if you decide", I mean you must be persuaded, considering all the evidence in the case, that the proposition is more probably true than not true.

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DEFENDANT'S OBJECTION The proposed jury instruction is unnecessary and potentially confusing to a jury. The instructions for a jury regarding the burden of proof are adequately provided in Model Civil Jury Instruction Nos. 1.13 and 5.1, Burden of ProofPreponderance of the Evidence.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 2 ALL PERSONS EQUAL BEFORE THE LAW This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. A person convicted by the State is entitled to the same fair trial at your hands as is any individual. The law is not more respectful of one person than another, and all persons, including prisoners, stand equal before the law and are to be dealt with as equals in a court of justice. People employed by a state government, including prison officials, do not stand in any higher station in the community than other persons. The testimony of prison officials is not entitled to any greater weight merely because they are prison officials. A prison official who takes the witness stand subjects his testimony to the same examination and to the same tests that any other witness does.

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DEFENDANT'S OBJECTION Plaintiff's proposed jury instruction is potentially confusing to a jury. The inference is that conviction of a crime may not be considered by a jury. While it is true that prisoners are to be dealt with as equals in a court of justice, Model Civil Jury Instruction No. 2.11 provides that evidence that a witness has been convicted of a crime may be considered by a jury.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 3

CONSTITUTIONAL RIGHTS; FIRST AMENDMENT I will now instruct you on Mr. Dennison's First Amendment claim. The First Amendment to the United States Constitution guarantees the freedom of religion, freedom of speech, freedom of the press, the right to access the courts (i.e., filing 42 U.S.C. 1983 lawsuits), and to be free from retaliation while engaging in any of these lawful Constitutionally-protected acts. The Plaintiff asserts that the Defendant retaliated against him for filing and engaging in a 42 U.S.C. § 1983 civil action lawsuit against his friend and/or colleague Jennifer Thelen. Filing and engaging in a 42 U.S.C. § 1983 lawsuit is Constitutionallyprotected conduct under the First Amendment. The Plaintiff is protected under the First Amendment from retaliation when engaged in Constitutionally-protected conduct. If you find that the Defendant retaliated against the Plaintiff for engaging in Constitutionally-protected conduct (i.e., filing a 42 U.S.C. § 1983 lawsuit), you must enter a verdict in favor of the Plaintiff. The Plaintiff is entitled to money damages.

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DEFENDANT'S OBJECTION Model Civil Jury Instruction No. 11.1, Violation of Prisoner's Federal Civil Rights-First Amendment-Retaliation, adequately sets forth the elements to be considered by a jury in a retaliation case. Plaintiff's proposed jury instruction, which includes impermissible legal commentary, provides no additional information and would only serve to confuse a jury.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 4 RETALIATION ­ DEFINED

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To establish a retaliation claim under the First Amendment of the United States Constitution that Plaintiff was (a) (b) engaged in protected conduct, that an adverse action was taken that would deter a person of ordinary firmness from continuing to engage in that conduct, and (c) that there was a cause-and-effect relationship between (a) and (c).

If you find that the Defendant retaliated against the Plaintiff for engaging in Constitutionally-protected conduct (i.e., filing a 42 U.S.C. § 1983 lawsuit), you must enter a verdict in favor of the Plaintiff. The Plaintiff is entitled to money damages.

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DEFENDANT'S OBJECTION Model Civil Jury Instruction No. 11.9, Violation of Prisoner's Federal Civil Rights-First Amendment-Retaliation, adequately sets forth the elements to be considered by a jury in a retaliation case. Plaintiff's proposed jury instruction does not contain all elements of a retaliation claim, provides no additional information, and would only serve to confuse a jury.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 5 EFFECT OF PRIOR INCONSISTENT STATEMENTS OR CONDUCT ­ BY A WITNESS NOT A PARTY ­ BY A PARTY Evidence that at some other time a witness, not a party to this action, has said or done something which is inconsistent with the witness' testimony at the trial, may be considered for the sole purpose of judging the credibility of the witness but may never be considered as evidence or proof of the truth of any such statement. Where, however, the witness is a party to the case, and by such statement, or other conduct, admits some fact or facts against his interest, then such statement or other conduct, if knowingly made or done, may be considered as evidence of the truth of the fact or facts so admitted by such party, as well as for the purpose of judging the credibility of the party as a witness. In applying this instruction, an act or omission is "knowingly" done, if done voluntarily and intentionally, and not because of mistake or accident or another innocent reason.

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DEFENDANT'S OBJECTION Plaintiff's proposed jury instruction is unnecessary as the information contained therein is provided for in Model Civil Jury Instruction No. 3.6, Credibility of Witnesses. Additionally, the proposed instruction consists of impermissible legal commentary.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 6 IMPEACHMENT ­ INCONSISTENT STATEMENTS OR CONDUCT

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A witness may be discredited or impeached by contradictory evidence; or by evidence that at some other time the witness has said or done something, or has failed to say or do something which is inconsistent with the witness' present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness' testimony in other particulars and you may reject all the testimony of that witness or give it such credibility as you may think it may deserve. An act of omission is "knowingly" done, if voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

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DEFENDANT'S OBJECTION Plaintiff's proposed jury instruction is unnecessary as the information contained therein is provided for in Model Civil Jury Instruction No. 3.6, Credibility of Witnesses.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 7 JURORS MAY TAKE INTO ACCOUNT ORDINARY EXPERIENCE AND OBSERVATIONS You have a right to consider all the evidence in the light of your own general knowledge and experience in the affairs of life, and to take into account whether any particular evidence seems reasonable and probably. However, if you have personal

knowledge of any particular fact in this case, such knowledge may not be used as evidence.

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DEFENDANT'S OBJECTION The information covered in Plaintiff's proposed jury instruction is already provided for in the Model Civil Jury Instructions. Instruction No. 1.6 provides that, in deciding whether a fact has been proved by circumstantial evidence, jurors are to "consider all the evidence in the light of reason, experience, and common sense." Instruction No. 1.8 provides that a juror may take into account "the reasonableness of a witness' testimony in light of all the evidence." Additionally, the Model Civil Jury Instructions set forth what constitutes evidence (Instruction Nos. 1.3 and 3.2) and puts jurors on notice that they are to decide the case based solely on the evidence before them and that they are not to be influenced by personal likes or dislikes, opinions, prejudices, or sympathy. (Instruction No. 3.1)

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 8 KNOWLEDGE OF THE LAW PRESUMED Everyone is required to know what the law is and to act according to the law. If someone engages in an activity which violates the law, that person is responsible for his actions whether he intended to violate the law or not.

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DEFENDANT'S OBJECTION Plaintiff misstates the elements of a First Amendment retaliation claim. To obtain a judgment in his favor, and potentially recover money damages, Plaintiff must prove each of the following elements by a preponderance of the evidence: the acts or omissions of the Defendant were intentional; the Defendant acted under color of law; the acts or omissions of the Defendant were the cause of the deprivation of the plaintiff's rights protected by the Constitution or laws of the United States; the acts or omissions of the Defendant were taken against Plaintiff in retaliation for Plaintiff exercising his constitutional rights; and, the acts or omissions of the Defendant did not advance legitimate penological goals, such as preserving institutional order and discipline. The elements of a retaliation claim are clearly set forth in Model Civil Jury Instruction No. 11.1 and Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir. 1989) and Lewis v. Casey, 18 U.S. 343, 116 S. Ct. 2174, 2180 (1996).

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 9 "PROXIMATE CAUSE" ­ DEFINED I shall now define for you proximate cause. An injury or damage is proximately caused by an 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, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.

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DEFENDANT'S OBJECTION Plaintiff's proposed jury instruction is unnecessary because, to the extent causation is an issue in a Section 1983 case, it is addressed in Model Civil Jury Instruction No. 11.1 and relevant case law.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 10 SPECIFIC INTENT NOT REQUIRED In order to find in favor of the Plaintiff in this case, it is not necessary to find that the Defendant had the specific intent to violate the Plaintiff's constitutional rights. If the Defendant specifically intended to engage in activities which violated the Plaintiff's constitutional rights, Plaintiff can recover money damages from the Defendant whether the Defendant intended to violated Plaintiff's rights or not. In other words, the Plaintiff can recover money damages if the Defendant intended the actions which resulted in a violation of the Plaintiff's constitutional rights.

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DEFENDANT'S OBJECTION Plaintiff misstates the elements of a First Amendment retaliation claim. To obtain a judgment in his favor, and potentially recover money damages, Plaintiff must prove each of the following elements by a preponderance of the evidence: the acts or omissions of the Defendant were intentional; the Defendant acted under color of law; the acts or omissions of the Defendant were the cause of the deprivation of the plaintiff's rights protected by the Constitution or laws of the United States; the acts or omissions of the Defendant were taken against Plaintiff in retaliation for Plaintiff exercising his constitutional rights; and, the acts or omissions of the Defendant did not advance legitimate penological goals, such as preserving institutional order and discipline. The elements of a retaliation claim are clearly set forth in Model Civil Jury Instruction No. 11.1 and Vigliotto v. Terry, 873 F.2d 1201, 1202 (9th Cir. 1989) and Lewis v. Casey, 18 U.S. 343, 116 S. Ct. 2174, 2180 (1996).

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 11 FINDING AS TO THING ONCE PROVED TO EXIST You may find that a state of affairs, once proved to exist, continues as long as is usual with things of that nature, in the absence of evidence in the case which leads you to a different conclusion. For instance, if you find that the Defendant engaged in retaliatory conduct, you may also conclude that every action that occurred after the initial retaliatory conduct is also part of the retaliatory conduct.

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DEFENDANT'S OBJECTION This jury instruction is inapplicable to the remaining claim in this case, i.e. that Defendant James violated Plaintiff's First Amendment rights by retaliating against Plaintiff on May 1, 2003 when Defendant James pushed Plaintiff in the chest for filing a complaint against a colleague. Plaintiff's claims regarding other corrections officers filing fraudulent reports against Plaintiff were dismissed by this Court. (Dkt. 134.)

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 12 EFFECT OF PRIOR INCONSISTENT STATEMENTS OR CONDUCT ­ BY A WITNESS NOT A PARTY ­ BY A PARTY Evidence that at some other time a witness, not a party to this action, has said or done something which is inconsistent with the witness' testimony at the trial, may be considered for the sole purpose of judging the credibility of the witness but may never be considered as evidence or proof of the truth of any such statement. Where, however, the witness is a party to the case, and by such statement, or other conduct, admits some fact or facts against his interest, then such statement or other conduct, if knowingly made or done, may be considered as evidence of the truth of the fact or facts so admitted by such party, as well as for the purpose of judging the credibility of the party as a witness. In applying this instruction, an act or omission is "knowingly" done, if done voluntarily and intentionally, and not because of mistake or accident or another innocent reason.

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DEFENDANT'S OBJECTION Plaintiff's proposed jury instruction is unnecessary as the information contained therein is provided for in Model Civil Jury Instruction No. 3.6, Credibility of Witnesses. Additionally, the proposed instruction consists of impermissible legal commentary.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 13 IMPEACHMENT ­ INCONSISTENT STATEMENTS OR CONDUCT

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A witness may be discredited or impeached by contradictory evidence; or by evidence that at some other time the witness has said or done something, or has failed to say or do something which is inconsistent with the witness' present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such creditability, if any, as you may think it deserves. If a witness is shown knowingly to have testified falsely concerning any material matter, you have a right to distrust such witness' testimony in other particulars and you may reject all the testimony of that witness or give it such credibility as you may think it may deserve. An act of omission is "knowingly" done, if voluntarily and intentionally, and not because of mistake or accident or other innocent reason.

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DEFENDANT'S OBJECTION Plaintiff's proposed jury instruction is unnecessary as the information contained therein is provided for in Model Civil Jury Instruction No. 3.6, Credibility of Witnesses.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 14 COMPENSATORY DAMAGES

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The Plaintiff alleges that his claimed injuries proximately resulted from the DEFENDANT'S conduct. If you should find that the Plaintiff is entitled to prevail in this litigation, you must award him such sum as will compensate him or any pain, suffering, or mental anguish already suffered by him, proximately resulting from the DEFENDANT'S conduct, and for any pain, suffering, and mental anguish which you find from the evidence in this case he is reasonably certain to suffer in the future from the same cause. If you find that the Plaintiff is entitled to a verdict in his favor in accordance with the instructions, but do not find that Plaintiff has sustained any actual damages in the nature of pain, suffering, or mental anguish, then you may return a verdict for the Plaintiff in the nominal sum of $1. Such sum will constitute the entire recovery of compensatory damages for the Plaintiff, but would not preclude your awarding punitive damages in such amount as you deem appropriate, if you find that the award of punitive damages is justified under these instructions. Damages must be reasonable. If you should find that the Plaintiff is entitled to a verdict, you may award him only such damages as will reasonably compensate him for such injury and damage as you find, from a preponderance of the evidence in the case, that he has sustained as a proximate result of the DEFENDANT'S wrongs. If any element of damage is of a continuing nature, you shall decide how long it may continue. If an element of, damage is permanent in nature, then you shall decide how long the Plaintiff is likely to live. You are not to award damages for any injury or condition from which the Plaintiff may have suffered, or may now be suffering, unless it has been established by a

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preponderance of the evidence in the case that such injury or condition was proximately caused by the act in question.

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DEFENDANT'S OBJECTION The proposed jury instruction does not set forth the correct factors to be considered in awarding damages. Information regarding the standard for an award of damages is set forth in Model Civil Jury Instruction No. 7.1, Damages-Proof. Model Civil Jury Instruction No. 7.2 sets forth the measures of types of damages. In the present case, a jury should consider the actual injuries suffered by Plaintiff.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 15 PUNITIVE DAMAGES

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You may also decide whether the Plaintiff is entitled to the award of punitive damages. The purpose of an award of punitive damages is to punish a wrongdoer for his misconduct and to deter similar conduct by others. In order to award punitive damages, you must find one of the following: 1. 2. 3. that the Defendant acted intentionally or purposefully to deprive the Plaintiff of his rights; or that the Defendant acted in reckless disregard of or with callous indifference to the Plaintiff's rights; or that the Defendant carried out lawful activities with unnecessary harshness, or abused his official power, or took unfair advantage of the Plaintiff.

If you find that the Defendant did any one or more of these things, then you should award punitive damages. If you award punitive damages, you should fix the amount using calm discretion and sound reason. You must not be influenced by sympathy for or dislike of any party in the case.

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DEFENDANT'S OBJECTION The proposed jury instruction does not provide the correct test for awarding punitive damages. The correct information is set forth in Model Civil Jury Instruction No. 7.5, Punitive Damages.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 16 ANSWERS TO ADMISSIONS AND INTERROGATORIES

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The Plaintiff has introduced into evidence certain admissions and interrogatories ­ that is, questions, together with signed and sworn to by the other party. A party is bound by his answers. By introducing an opposing party's answers to admissions and interrogatories, however, a party does not bind himself to these answers, and he may challenge them in whole or in part of may offer contrary evidence.

GIVEN ______________ MODIFIED ___________ REFUSED ____________

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DEFENDANT'S OBJECTION The proposed instruction is unnecessary. As the parties will be present at the trial of this matter, interrogatories and responses will not be read into the record. If used at trial, interrogatories and responses will be used solely for impeachment purposes. Additionally, to the extent Plaintiff seeks to introduce into evidence the interrogatories and answers of non-trial witnesses, the interrogatories and answers constitute inadmissible hearsay evidence.

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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 17 EXPERT TESTIMONY The rule of evidence provides that