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 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Andre Almond DENNISON, Plaintiff, v. Conrad LUNA, et al., Defendant. Defendant James, by undersigned counsel, files the attached "Defendant's Proposed Model and Non-Model Civil Jury Instructions" in order to be filed with the Clerk. Defendant's counsel will also submit a copy of these proposed jury instructions to Plaintiff and the court the morning of July 26, 2007. Because the parties could never agree on stipulated jury instructions and the Joint Proposed Pretrial Order was never signed and did not incorporate those instructions into the file of the case, Defendant believes that in the interests of justice that Defendant be permitted to submit these separate proposed Defendant's Model and Non-Model Jury Instructions. They have been filed with the Clerk on May 25, 2007, only to ensure that these proposed instructions become a formal part of the Clerk's docket and the court's file. Plaintiff is not prejudiced as Plaintiff can still submit his proposed jury instructions separately, or rely on the flawed version submitted Case No. CV 03-2373 PHX SRB DEFENDANT'S PROPOSED MODEL AND NON-MODEL CIVIL JURY INSTRUCTIONS (Assigned to the Hon. Susan R. Bolton)

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with the Joint Proposed Pretrial Order. Plaintiff also has every right to object to the two modifications that Defendant has proposed in this set of Defendant's proposed instructions. Defendant relies on the discretion of the court to ensure that proper instructions are included, especially dealing with the only claim to be tried before the jury: an alleged act of retaliation by Defendant that intimidated or chilled Plaintiff to the degree that he could not access the courts after the May 1, 2003 incident. The below instructions are the same as what has been submitted previously, but with two important modifications. The

previous Proposed Model Instruction regarding Eighth Amendment excessive force claims has been removed because excessive force is not a claim remaining to be tried. The second modification by Defendant was to add Defendant's Proposed Non-Model Instruction: "VIOLATIONS OF CIVIL RIGHTS ­ ELEMENTS OF PROOF FOR

RETALIATION CLAIM UNDER THE FIRST AMENDMENT." There is no Model Jury Instruction regarding retaliation claims concerning chilling a plaintiff's ability to access the courts. The proposed instruction relies on this Court's Order dated August 11, 2006 [Dkt. 134] and the cited cases in that order as the legal foundation for giving Defendant's Proposed Non-Model Jury Instruction No. 1.

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Defendant's Proposed Model Civil Jury Instructions § 1.1 § 1.2 § 1.3 § 1.4 § 1.5 § 1.6 § 1.7 § 1.8 § 1.9 Duty of Jury Claims and Defenses What is Evidence What is Not Evidence Evidence for Limited Purpose 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 §2.11 Impeachment by Conviction of Crime § 3.1 § 3.2 § 3.3 § 3.5 § 3.6 Duties of Jury to Find Facts and Follow Law What Is Evidence What Is Not Evidence Direct and Circumstantial Evidence Credibility of Witnesses

§3.12 Impeachment Evidence--Witness § 4.1 Duty to Deliberate 3
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§ 4.2 § 4.3 § 4.4 § 5.1 §7.1 §7.2

Use of Notes Communication With Court Return of Verdict Burden of Proof--Preponderance of the Evidence Damages--Proof Measure of Types of Damages

§11.1 Violations of Federal Civil Rights ­ Elements and Burden of Proof §11.2 Under Color of Law Defined

Defendant's Proposed Non-Model Civil Jury Instructions 1. 2. Violations of Federal Civil Rights ­ Retaliation Claim Elements "Chilled" Defined

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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.

Defendant James denies Plaintiff's claim. Defendant maintains that he did not retaliate against Plaintiff for any actions arising out of the incident on May 1, 2003. Defendant James did not "chill" or prevent Plaintiff from his right to access the courts or the prison's grievance procedures. Defendant James' use of non-lethal force to regain control over Plaintiff during the incident was reasonable and applied in a good faith effort to restore order and security on the prison yard. 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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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 Defendant James; (2) questions and objections of Mr. Dennison, when acting in the role of

his own attorney, and Mr. DeLange, as the attorney for Defendant; (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. When 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. 2.1 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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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.] 22
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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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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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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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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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PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 1 VIOLATIONS OF CIVIL RIGHTS ­ ELEMENTS OF PROOF FOR RETALIATION CLAIM UNDER THE FIRST AMENDMENT

In order for you to find in favor of Plaintiff's Retaliation Claim, you must find that Plaintiff has proven that Defendant James retaliated against Plaintiff because Plaintiff previously filed a lawsuit against an alleged friend of Defendant, Jennifer Thelan, and that such action by Defendant James chilled Plaintiff's exercise of his First Amendment rights to access the courts, and that Defendant James' actions were not narrowly tailored to advance a legitimate correctional goal. Plaintiff's claim must be evaluated in light of the deference and flexibility that must be accorded prison officials when attempting to restore good order and discipline.

SOURCE: Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005); Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997). Pratt v. Rowland, 63 F.3d 802, 807 (9th Cir. 1995).

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DEFENDANT'S PROPOSED NON-MODEL CIVIL JURY INSTRUCTION NO. 2 CHILLED Plaintiff does not have to demonstrate that his right of access to the courts 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 such as filing complaints or papers with the courts.

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

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#17504

RESPECTFULLY SUBMITTED this 25th day of June, 2007. TERRY GODDARD Arizona Attorney General

s/ Darrin J. DeLange Darrin J. DeLange Assistant Attorney General Attorneys for Defendant James

CERTIFICATE OF SERVICE I hereby certify that on the same day, I faxed the attached document and Notice of Electronic Filing and delivered on June 26, 2007, on the following: Andre Almond Dennison, #143931 ASPC - Lewis - Morey Unit P.O. Box 3300 Buckeye, AZ 85326 s/ Colleen Jordan Secretary to Darrin J. DeLange
IDS04-0294/RSK:G04-20632

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