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RoLIN P BISSELL
BY E-FILING
The Honorable Kent A. Jordan
United States District Court
844 N. King Street
Wilmington, DE 19801
Re: Hamilton v. Levy, et al., C.A. No. 94-336-KAJ
Dear Judge Jordan:
This letter contains citations and legal authority for the open jury instruction
issues.
First, as to punitive damages, the Supreme Court in a failure to protect case has
held that punitive damages may go to a jury under a charge similar to that proposed by Mr.
Hamilton in this case. Smith v. Wade, 461 U.S. 30, 56 (1983). According to the Court:
We hold that a jury may be permitted to assess punitive damages in
an action under § 1983 when the defendant’s conduct is shown to
be motivated by evil motive or intent, or When it involves reckless
or callous indifference to the federally protective rights of others.
We further hold that this threshold applies even when the
underlying standard of liability for compensatory damages is one
of recklessness.
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Youuo CoNAwAv STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
March 16, 2005
Page 2
Iris
Second, the Third Circuit places the burden of proof on qualified immunity on the
defendants:
We therefore hold that in § 1983 actions the burden is on the
defendant official claiming official immunity to come forward and
to convince the trier of fact by a preponderance of the evidence
that, under the standards of Wood v. Strickland, official immunity
should attach.
Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 61-62 (3d Cir.) (in
banc), g_e_rL denied, 429 U.S. 979 (1976). Se; @ Black v. Bayer, 672 F.2d 309, 316 (3d Cir.,
1982) (holding that defendant must establish qualified immunity “as a defense by evidence
presented at trial") (overruled on other grounds in D.R. v. Middle Bucks Area Vocational
Technical School, 972 F.2d 1364, 1368 n.7 (3d Cir. 1992)).
Third, defendants’ proposed instruction on deliberate indifference (3.5B) seriously
misstates the law. First, in the first sentence, the defendants improperly attempt to re—define
deliberate indifference. According to the court of appeals, the standard is this:
The defendants violated Hamilton’s Eighth Amendment rights
only if they acted with deliberate indifference to his safety; in other
words, to be liable, the defendants must have known that Hamilton
"face[d] a substantial risk of serious harm" and they must have
"disregard[ed] that risk by failing to take reasonable measures to
abate it."
Hamilton v. Levy, 322 F.3d 776, 786 (3d Cir. 2003). This language directly defines deliberate
indifference as a two-part test (knowledge plus disregard), and this language is the standard
stated in plaintiffs proposed instruction 3.3A, which the Court has accepted.
Defendant’s proposal in 3.5B changes this standard in numerous ways. ln the first
sentence, for example, the defendants expand the standard to require "actual awareness" and
"deliberate indifference? The defendants then define deliberate indifference as actual awareness
coupled with "deliberate1y took no action to eliminate the risk or prevent the harm." The Third
Circuit standard articulated in Hamilton, however, is not "deliberately took no action to eliminate
the risk or prevent the harm" — it is, instead, that the defendants "disregard[ed] that risk by
failing to take reasonable measures to abate it." Hamilton, 322 F.3d at 786.
The Court of Appeals reached a similar result in Beers—Capito1 v. Whetzel, 256
F.3d 120, 133 (3d Cir. 2001):
From Farmer and Hamilton we extract the following precepts. To
be liable on a deliberate indifference claim, a defendant prison
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Youno CoNAwAv STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
March 16, 2005
Page 3
official must both "know[] of and disregardl] an excessive risk to
inmate health or safety." Farmer, 5ll U.S. at 837. The knowledge
element of deliberate indifference is subjective, not objective
knowledge, meaning that the official must actually be aware of the
existence of the excessive risk; it is not sufficient that the official
should have been aware. Sep id, at 837-38. However, subjective
knowledge on the part of the official can be proved by circum-
stantial evidence to the effect that the excessive risk was so
obvious that the official must have known of the risk. _Sp_e ipl, at
842. Finally, a defendant can rebut a prima facie demonstration of
deliberate indifference either by establishing that he did not have
the requisite level of knowledge or awareness of the risk, or that,
although he did know of the risk, he took reasonable steps to
prevent the harm from occurring. Sep gl, at 844.
(emphasis supplied).
Nor is it necessary or proper for the Court to include references to criminal
recklessness or negligence. Farmer does indeed mention both terms, but only because the
Farmer Court faced the question of which standard applied. The Farmer court decided that the
qualified immunity standard was akin to criminal recklessness, but then defined "criminal
recklessness" in language that is already in Instruction 3.3A, Hamilton, and Beers—Capitol:
The criminal law, however, generally permits a finding of
recklessness only when a person disregards a risk of which he is
aware.
4 4 >¤=
We reject petitioner’s invitation to adopt and objective test for
deliberate indifference. We hold instead that a prison official
cannot be found liable under the Eighth Amendment for denying
an imnate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or
safety.
Farmer v. Brennan, 5ll U.S. 825, 836-837 (1994).
There is no need to redefine this clear standard for the jury by first injecting the
term "criminal recklessness" and then injecting a definition of negligence to illustrate a meaning
of criminal negligence. Deliberate indifference needs no other definition than the definition
given by the Supreme Court in Farmer and the Court of Appeals in this case.
Fourth, immediately after the charge conference ended, the parties agreed to
language for the superseding cause instruction, e. g., that the first paragraph will be eliminated
and the last sentence of the second paragraph will be eliminated.
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Yourre CoNAwAv STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
March 16, 2005
Page 4
Fifth, the Court directed the parties to discuss Instruction 3.5C (Official
Immunity). Because plaintiffs objection on making this fact issue and issue for the jury is
overruled, plaintiff` s remaining objections are as follows. The second sentence in the second
paragraph is unnecessary. The last sentence of that paragraph ("you may consider the
employee’s circumstances" is not directly reflected in the case law, but, more importantly, is
encapsulated by the sentence earlier in the paragraph when it discusses "reasonable correctional
employee[s] in the same circumstances? The final paragraph of the proposed instruction is
unnecessary, as the verdict form will require the jury to make a separate determination as to each
defendant, and the way the first sentence is worded, it states that the jury must find for "each
defendant . . ." This contradicts the particularized, employee by employee inquiry that is
required under the law.
Finally, on damages (Instruction 5.0A), Mr. Hamilton will withdraw the fourth
listed item of damages ("compensation for the violation of his constitutional rights").
Respectfully submitted,
/s/
John W. Shaw
JWS/pt
cc: Clerk of the Court (via e—filing)
Ralph K. Durstein, III, Esquire (via e—filing)
Thomas H. Ellis, Esquire (via e-filing)
Aaron Goldstein, Esquire (via e-filing)
Richard W. Hubbard, Esquire (via e—filing)
Marc P. Niedzielski, Esquire (via e-filing)
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