Free Motion to Supplement - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General CATHERINE M. BOHLAND Assistant Attorney General State Bar No. 022124 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA ANDRE ALMOND DENNISON, Plaintiff, v. CONRAD LUNA, et al., Defendants. Defendant James, by and through undersigned counsel, requests that the Court allow him to supplement his Proposed Model and Non-Model Jury Instructions, submitted this same date. On December 13, 2006, undersigned counsel mailed the Defendant's Proposed Model and Non-Model Jury Instructions to the Plaintiff. On December 18th, and 19th, 2006, Plaintiff and the undersigned engaged in a telephonic conference regarding all pretrial documents. However, prior to filing the pretrial documents with the Court, undersigned counsel realized that the attached proposed model and non-model jury instructions are more applicable to a First Amendment retaliation claim then what was submitted in Defendant's Proposed Model and NonModel Jury Instructions. Plaintiff has not reviewed the attached proposed model and non-model instructions and therefore Defendant requests that should the Court allow Defendant to DEFENDANT'S MOTION TO SUPPLEMENT THEIR PROPOSED MODEL AND NON-MODEL JURY INSTRUCTIONS Case No: CIV 03-2373 PHX-SRB (JRI)

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supplement his Proposed Model and Non-Model Jury Instructions, that the Court allow Plaintiff to present his objections to the proposed instructions. Defendant requests to supplement the proposed model and non model jury instructions as follows: §11.1 Violations of Federal Civil Rights ­ Elements and Burden of Proof Chilled Narrowly Tailored to Advance a Legitimate Correctional Goal

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PROPOSED MODEL JURY INSTRUCTION NO. 11.1 VIOLATIONS OF FEDERAL CIVIL RIGHTS ­­ ELEMENTS AND BURDEN OF PROOF

Plaintiff claims that Defendant retaliated against him. Plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 1. 2. 3. 4. the Defendant took some adverse action against Plaintiff; because Plaintiff; filed a lawsuit against Defendant's colleague; and, Defendant's adverse action: a. chilled the Plaintiff's exercise of his First Amendment

right to access the court; and, b. goal. 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. was not undertaken to advance a legitimate correctional

SOURCE: Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997).

GIVEN ______________ MODIFIED ___________ REFUSED ____________

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CHILLED Plaintiff does not have to demonstrate that his access to the court was actually inhibited or suppressed. Rather, the proper First Amendment inquiry is to determine whether Defendant's actions would chill or silence a person of ordinary firmness from future First Amendment activities.

SOURCE: Mendocino Environmental Center v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999).

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PROPOSED NON-MODEL JURY INSTRUCTION NARROWLY TAILORED TO ADVANCE A LEGITIMATE CORRECTIONAL GOAL

Plaintiff must show that Defendant's adverse action was not narrowly tailored to advance a legitimate correctional goal. You must determine this issue in light of the deference and flexibility that must be accorded to prison officials.

SOURCE:

Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995).

GIVEN ______________ MODIFIED ___________ REFUSED ____________

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CONCLUSION Defendant respectfully requests the Court allow him to supplement his Proposed Model and Non-Model Jury Instructions and allow Plaintiff to object to the supplement.

RESPECTFULLY SUBMITTED on this 20th day of December, 2006. TERRY GODDARD Attorney General s/Catherine M. Bohland Catherine M. Bohland Assistant Attorney General Attorneys for Defendants

Original e-filed this 20th day of December, 2006, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Andre Almond Dennison, #143931 ASPC - Lewis - Morey Unit P.O. Box 3300 Buckeye, AZ 85326 s/ A. Palumbo Secretary to: Catherine M. Bohland IDS04-0294/RSK:G04-20632 #992087

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