Free Proposed Jury Instructions - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7811 [email protected] [email protected] Attorneys for Defendant Cora Miles UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell, Plaintiff, v. Cora Miles and Earl Scalet, Defendants. The following is the lodged Joint Proposed Jury Instructions1 filed pursuant to Fed. R. Civ. P. 51 and this Court's Order Setting Final Pretrial Conference, dated September 7, 2006. I. 2004 9TH CIRCUIT MODEL CIVIL JURY INSTRUCTIONS. A. Preliminary Instructions DF DF DF DF
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NO. CV-03-1819-PHX-JAT JOINT PROPOSED JURY INSTRUCTIONS

§1.1 §1.2 §1.3 §1.4

Duty of Jury Claims and Defenses What is Evidence What is not Evidence

While Plaintiff consented to filing, he did not specifically indicate any stipulation nor objection to any proposed instruction contained herein.
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DF DF DF DF DF DF DF DF DF DF

§1.5 §1.6 §1.7 §1.8 §1.9 §1.10 §1.11 §1.12 §1.13 §1.16

Evidence for Limited Purpose Direct and Circumstantial Evidence Ruling on Objections Credibility of Witnesses Conduct of the Jury No Transcript Available to Jury Taking Notes Outline of Trial Burden of Proof ­ Preponderance of the Evidence Jury to be Guided by Official English

Translation/Interpretation B. Instructions During Trial DF DF DF DF §2.1 §2.2 §2.6 §2.11 Cautionary Instruction ­ First Recess Bench Conferences and Recesses Deposition as Substantive Evidence Impeachment by Conviction of Crime

C. Instructions at End of Case DF DF DF DF §3.1 §3.2 §3.3 §3.4 Duties of Jury to Find Facts and Follow Law What is Evidence What is Not Evidence Jury to be Guided by Official English Language Translation DF DF §3.5 §3.6 Direct and Circumstantial Evidence Credibility of Witnesses

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DF DF DF

§3.10 §3.11 §3.12

Charts and Summaries in Evidence Two or More Parties ­ Different Legal Rights Impeachment Evidence ­ Witness

D. Concluding Instructions ­ Jury Deliberations DF DF DF DF §4.1 §4.2 §4.3 §4.4 Duty to Deliberate Use of Notes Communication with the Court Return of Verdict

E. Additional Model Instructions DF DF DF DF §5.1 §5.3 §7.3 §11.10 Burden of Proof ­ Preponderance of Evidence Complete Affirmative Defense Damages ­ Mitigation Violation of Prisoner's Federal Civil Rights ­ Eighth Amendment ­ General Conditions of Confinement Claim Pursuant to this Court's Order Setting Final Pretrial Conference, dated September 7, 2006, the full text of all model instructions follows as Exhibit A. II. STIPULATED NON-MODEL INSTRUCTIONS None. III. PLAINTIFF'S NON-MODEL INSTRUCTIONS Plaintiff did not provide. IV. DEFENDANTS NON-MODEL INSTRUCTIONS As attached hereto as Exhibit B.

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APPROVED AS TO FORM AND CONTENT: By: s/ Carlos Arthur Powell Carlos Arthur Powell c/o Amicus Curiae Association Foundation ATTN: Ken Peterson 9335 Bowman Avenue South Gate, California 90280 Pro se Plaintiff By: s/ Timothy J. Bojanowski

Daniel P. Struck Timothy J. Bojanowski Jones, Skelton & Hochuli, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorney for Defendant Cora Miles By: s/ John R. Mayfield

John R. Mayfield U.S. Attorney's Office 2 Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Attorney for Defendant Earl Scalet CERTIFICATE OF SERVICE I hereby certify that on December 4, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: John R. Mayfield U.S. ATTORNEY'S OFFICE 2 Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Attorney for Defendant Earl Scalet ________________________________________________________________ I hereby certify that on December 4, 2006, I served the attached document by: mail on the following, who are not registered participants of the CM/ECF System: Carlos Arthur Powell C/O AMICUS CURIAE ASSOCIATION FOUNDATION ATTN: Ken Peterson 9335 Bowman Avenue South Gate, California 90280 Pro se Plaintiff

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Model Civil Jury Instruction §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.

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Model Civil Jury Instruction §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 claims that [Plaintiff did not provide]. Defendant Miles denies those claims and also contends that Plaintiff was properly placed in Protective Custody for actions resulting from his own conduct prior to August 14, 2003, that Plaintiff's suit is barred because he failed to properly exhaust his administrative remedies as required by the Prison Litigation Reform Act, and that Plaintiff failed to mitigate any damages resulting from his limited recreation time as a result of his being housed in the Special Housing Unit. Defendant Scalet claims that Defendant Scalet did not engage in any conduct that infringed upon any of Plaintiff's established Constitutional rights. All

Defendant Scalet did was process two "cop outs" regarding two other INS detainees. Defendant Scalet is also relying upon the defense of Qualified Immunity to preclude liability as he was merely carrying out his duties and responsibilities in this matter. Plaintiff denies defendants' claims.

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Model Civil Jury Instruction §1.3 What is Evidence

The evidence you are to consider in deciding what the facts are consists of: (1) (2) (3) the sworn testimony of any witness; the exhibits which are received into evidence; and any facts to which the lawyers stipulate.

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Model Civil Jury Instruction §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) (2) (3) (4) statements and arguments of the attorneys; questions and objections of the attorneys; testimony that I instruct you to disregard; and anything you may see of 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.

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Model Civil Jury Instruction §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.

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Model Civil Jury Instruction §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 or circumstantial evidence. It is for you to decide how much weight to give any evidence.

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Model Civil Jury Instruction §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 a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer 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 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.

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Model Civil Jury Instruction §1.8 Credibility of Witnesses

In deciding the facts of the 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) prejudice; (5) (6) evidence; and (7) any other factors that bear on believability. whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the 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

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

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Model Civil Jury Instruction §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.

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Model Civil Jury Instruction §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 trial. I urge you to pay close attention to the testimony as it is given.

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Model Civil Jury Instruction §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 go 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.

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Model Civil Jury Instruction §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 cross-examine. 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 arguments 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.

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Model Civil Jury Instruction §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.

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Model Civil Jury Instruction §1.16 Jury to be Guided by Official English Translation/Interpretation

Spanish may be used during this trial. The evidence you are to consider is only that provided through the official court translators. Although some of you may know Spanish, it is important that all jurors consider the same evidence. Therefore, you must accept the English translation. You must disregard any different meaning.

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Model Civil Jury Instruction §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 counsel, 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 [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.

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Model Civil Jury Instruction §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 indication of my opinion of the case or of what your verdict should be.

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Model Civil Jury Instruction §2.6 Deposition as Substantive Evidence

[When a person is unavailable to testify at trial, the deposition of that person may be used at the trial.] A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded. The deposition of [witness], which was taken on [date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

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Model Civil Jury Instruction §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.

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Model Civil Jury Instruction §3.1 Duty of Jury to Find Facts and Follow Law

Members of the jury, now that you have heard all the evidence [and arguments of the attorneys], 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.

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Model Civil Jury Instruction §3.2 What is Evidence

The evidence from which you are to decide what the facts are consists of: (1) (2) (3) the sworn testimony of any witness; the exhibits which have been received into evidence; and any facts to which the lawyers have agreed or stipulated.

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Model Civil Jury Instruction §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 lawyers are not evidence. The lawyers

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 the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys

have a duty to their clients to object when they believe 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.] (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.

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Model Civil Jury Instruction §3.4 Jury to be Guided by Official English Language Translation

Spanish has been used during this trial. The evidence you are to consider is only that provided through the official court translators. Although some of you may know Spanish, it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English translation. You must disregard any different meaning.

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Model Civil Jury Instruction §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 either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

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Model Civil Jury Instruction §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) prejudice; (5) (6) evidence; and (7) any other factors that bear on believability. whether other evidence contradicted the witness' testimony; the reasonableness of the witness' testimony in light of all the 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

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify.

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Model Civil Jury Instruction §3.10 Charts and Summaries in Evidence

Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

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Model Civil Jury Instruction §3.11 Two or More Parties ­ Different Legal Rights

You should decide the case as to each defendant separately. Unless otherwise stated, the instructions apply to all parties.

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Model Civil Jury Instruction §3.12 Impeachment Evidence -- Witness

You have heard evidence that [witness], a witness, [e.g. has been convicted of a felony, lied under oath on a prior occasion, etc.]. 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 the testimony of that witness.

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Model Civil Jury Instruction §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.

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Model Civil Jury Instruction §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.

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Model Civil Jury Instruction §4.3 Communication with the 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.

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Model Civil Jury Instruction §4.4 Return of Verdict

A verdict form has been prepared for you. [Any explanation of the verdict form may be given at this time.] 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

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Model Civil Jury Instruction §5.1 Burden of Proof ­ Preponderance of 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.

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Model Civil Jury Instruction §5.3 Complete Affirmative Defense

On any claim, 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 on that claim, unless you also find that the defendant has proved an affirmative defense, in which event your verdict should be for the defendant on that claim.

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Model Civil Jury Instruction §7.3 Damages ­ Mitigation

The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. The defendant has the burden of proving by a preponderance of the evidence: 1. and 2. the amount by which damages would have been mitigated. that the plaintiff failed to use reasonable efforts to mitigate damages;

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Model Civil Jury Instruction §11.10 Violation of Prisoner's Federal Civil Rights ­ Eighth Amendment ­ General Conditions of Confinement Claim

On the plaintiff's Eighth Amendment conditions of confinement claim, the plaintiff has the burden of proving each of the the following elements by a preponderance of the evidence: 1. 2. 3. the defendant acted with deliberate indifference; the defendant acted under color of law; and the conduct of the defendant caused harm to the plaintiff.

To establish deliberate indifference, the plaintiff must prove that the defendant knew that the plaintiff faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to correct it. 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.

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DEFENDANT MILES' REQUESTED JURY INSTRUCTION NO. 1 Liability For Violation of Civil Rights

To impose liability under 42 U.S.C. § 1983 for a violation of plaintiff's civil rights, a plaintiff must prove an affirmative link between the conduct of the defendant and the harm alleged. Thus, the plaintiff must establish that the specific

conduct, of a particular defendant, caused the plaintiff specific injury.

Source:

See Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 604 (1976); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (plaintiff must establish causal connection between the defendants' actions and the harm allegedly suffered).

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DEFENDANT MILES' REQUESTED JURY INSTRUCTION NO. 2 Segregation: Inmate Rights

A detainee "may not be punished prior to an adjudication of guilt in accordance with due process of law." Consequently, a detainee may not be put into disciplinary segregation without a due process hearing to determine whether the detainee in fact violated a facility rule. However, the detainees are not entitled to the full panoply of rights as afforded in a criminal prosecution. For example, inmates may be placed in

segregation for prehearing detention or protective custody without a due process hearing. Additionally, corrections officials need not afford inmates an unrestricted right to call witnesses. Nor do corrections officials need to state the reason for the denial of calling witnesses. Finally, due process does not require a correctional facility to allow an inmate to confront and cross examine witnesses and their accusers as such would threaten discipline of the facility and lengthen the proceedings.

Source:

Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861 (1979); Mitchell v. Dupnik, 75 F.3d 517, 524-25 (9th Cir. 1996); Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974); Bartholomew v. Watson, 665 F.2d 915, 918 (9th Cir. 1982); Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551 (1976).

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DEFENDANT MILES' REQUESTED JURY INSTRUCTION NO.3 Retaliation Defined

In order to impose liability for retaliation, a plaintiff must establish that a defendant retaliated against the plaintiff for exercising a constitutional right (such as filing a lawsuit or prison grievance) and that the retaliatory conduct did not advance a legitimate penological goal. Consequently, a successful retaliation claim requires a finding that the retaliatory action of prison authorities did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals. Therefore, the plaintiff bears the burden of proving the absence of legitimate correctional goals for the conduct complained of. Finally, Plaintiff must also prove that the alleged retaliation for the exercise of protected conduct was the substantial or motivating factor behind the defendants' conduct.

Source:

See Rizzo v. Dawson, 778 F.2d 527, 539 (9th Cir. 1985); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Mt. Healthy City School Dist. Bd. of Educ. V. Doyle, 429 U.S. 274, 287 (1977).

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DEFENDANT MILES' REQUESTED JURY INSTRUCTION NO. 4 Violation of Federal Civil Rights-Elements and Burden of Proof (42 U.S.C. § 1983)

On Plaintiff's retaliation claims against Defendants Scalet and Miles, the plaintiff has the burden of proving each of the following by a preponderance of the evidence: Defendant Miles and/or Defendant Scalet retaliated against Plaintiff by placing Plaintiff in, or continuing his placement in, segregation for exercising a Constitutional right; and Placement of Plaintiff in segregation chilled Plainitiff's exercise of his First Amendment rights or caused Plaintiff more than minimal harm; and The placement of Plaintiff in segregation did not advance a legitimate goal of the correctional institution or was not tailored narrowly enough to achieve such goal; and

19 20 21 conduct, as opposed to a legitimate goal of the correctional institution being 22 23 24 25 26 If you find Plaintiff has proven each of these elements as against a particular Defendant by a preponderance of the evidence, your verdict should be for the Plaintiff and
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4.

Retaliation was the substantial or motivating factor behind the Defendants'

the motivating factor behind the Defendants' conduct.

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against only that particular Defendant. On the other hand, if Plaintiff has not proven each of these elements as against a particular Defendant, your verdict should be for that Defendant on Plaintiff's retaliation claim.

Source:

See Model Instruction 11.1 as modified; Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Rizzo v. Dawson, 778 F.2d 527, 539 (9th Cir. 1985); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995); Mt. Healthy City School Dist. Bd. of Educ. V. Doyle, 429 U.S. 274, 287 (1977).

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DEFENDANT MILES' REQUESTED JURY INSTRUCTION NO. 5 Violation of Federal Civil Rights-Elements and Burden of Proof (42 U.S.C. § 1983)

On Plaintiff's snitch jacket claims against Defendant Miles, the plaintiff has the burden of proving each of the following by a preponderance of the evidence: 1. Defendant Miles retaliated against Plaintiff by labeling Plaintiff a snitch in front of other inmates for exercising a constitutional right;

2.

Defendant Miles labeling of Plaintiff was done maliciously with an intent to inflict actual harm or pain upon Plaintiff.

3.

Retaliation was the substantial or motivating factor behind the Defendants' conduct, as opposed to a legitimate goal of the correctional institution being the motivating factor behind the Defendants' conduct. However, a mere mistake or negligent act on the part of a state official cannot be a constitutional violation under Plaintiff's cruel and unusual punishment claim because cruel and unusual punishment must arise from an intentional act.

4.

Plaintiff suffered actual injury caused by Defendant Miles' intentional, willful conduct. Mere verbal harassment or verbal abuse by a prison defendant is not sufficient without actual harm arising therefrom to permit a

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finding of a constitutional violation of the Plaintiff's right to be free from cruel and unusual punishment.

If you find Plaintiff has proven each of these elements as against Defendant Miles by a preponderance of the evidence, your verdict should be for the Plaintiff and against Defendant Miles. On the other hand, if Plaintiff has not proven each of these elements as against Defendant Miles, your verdict should be for Defendant Miles on Plaintiff's snitch-jacket claim.

Source:

See Model Instruction 11.1 as modified; Valandingham v. Bororquez, 866 F.2d. 1135, 1139 (9th Cir. 1998); Valandingham v. Moen, 1992 WL 102662, *2 (9th Cir. May 14, 1992).

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DEFENDANT MILES' REQUESTED JURY INSTRUCTION NO. 6 Damages For Deprivation Of Civil Rights-Actual or Nominal (42 U.S.C. § 1983)

If you find for the plaintiff on plaintiff's retaliation claim, you must determine plaintiff's damages. preponderance of the evidence. Plaintiff has the burden of proving damages by a Damages means the amount of money which will

reasonably and fairly compensate the plaintiff for the deprivation of civil rights proximately caused by the defendant. You should consider the following:

The nature and extent, if any, of physical injury suffered by plaintiff as a result of his assignment to segregation. You may not consider any emotional injury suffered by plaintiff absent a proof of physical injury.

If you find for the plaintiff, but you find that the plaintiff has failed to prove actual damages, you shall return an award of nominal damages not to exceed one dollar.

Source:

See Model Instructions 7.1, 7.2 and 7.6, as modified.

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DEFENDANT MILES' REQUESTED JURY INSTRUCTION NO. 7 Damages For Deprivation Of Civil Rights-Actual or Nominal (42 U.S.C. § 1983)

If you find for the plaintiff on plaintiff's snitch jacket claim, you must determine plaintiff's damages. preponderance of the evidence. Plaintiff has the burden of proving damages by a Damages means the amount of money which will

reasonably and fairly compensate the plaintiff for the deprivation of civil rights proximately caused by the defendant. You should consider the following:

The nature and extent, if any, of any physical injury suffered by plaintiff resulting from being labeled a snitch. You may not award damages for emotional injuries absent sufficient proof of physical injury.

If you find for the plaintiff, but you find that the plaintiff has failed to prove actual damages, you shall return an award of nominal damages not to exceed one dollar.

Source:

See Model Instruction 7.1, 7.2 and 7.6, as modified.

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DEFENDANT MILES' REQUESTED JURY INSTRUCTION NO. 10 Punitive Damages (42 U.S.C. § 1983)

If you find for plaintiff, and if you award compensatory or nominal damages, you may, but are not required to, award punitive damages.

Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages if and only if you find that the defendant's conduct was a product of evil motive, was malicious or sadistic, or was in reckless disregard of plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of plaintiff's rights if, under the circumstances, it reflects complete indifference to the safety and rights of others.

If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant's conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.

You may impose punitive damages against one or more of the defendants and not other, and may award different amounts against different defendants. You may also choose not to award punitive damages against any of the defendants if you determine that plaintiff has not met his required burden.
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Source:

Model Jury Instruction 7.5, as modified; Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993) (citing Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640 (1983).

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 1 Proximate Cause - Definition

When I use the expression "proximate cause," I mean that cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it occurs with some other cause acting at the same time, which in combination with it, causes the injury.

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 2 Definition of an Eighth Amendment Deliberate Indifference Claim

The Eighth Amendment is violated by a federal employee's deliberate indifference to "a substantial risk of serious harm to an inmate Deliberate indifference is comparable to criminal recklessness, and is shown by "something approaching a total unconcern for the plaintiff's welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm. The defendant must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw the inference. In other words, the defendant must have known that the plaintiff was at serious risk of being harmed and decided not to do anything to prevent that harm from occurring even though he could have easily done so. Knowledge of a risk can be shown if a federal employee was exposed to information from which the inference could be drawn that a substantial risk exists, and he or she also draws the inference. This total disregard for a prisoner's safety is the "functional equivalent of wanting harm to come to the prisoner." However, reasonable measures taken to avert known risks will insulate a prison official from Eighth Amendment liability, even if those measures proved unsuccessful.

Source:

Farmer v. Brennan, 511 U.S. 825,t 828, 837, 845 (1994); Profit v. Ridgway, 279 F.3d 503, 506 (7th Cir.2002); Mayoral v. Sheahan, 245 F.3d 934, 93839 (7th Cir.2001); Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir.1998); Lewis v. Richards, 107 F.3d 549, 556 (7th Cir.1997); Duane v. Lane, 959 F.2d 673, 677 (7th Cir.1992); McGill v. Duckworth, 944 F.2d 344, 347 (7th Cir.1991); Dale v. Poston 2006 WL 1328724, *3-*4 (S.D.Ind. 2006).
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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 3 Injury

The Eighth Amendment's prohibition against cruel and unusual punishment imposes a duty on prison officials to protect prisoners from violence at the hands of other prisoners. However, not every injury suffered by one prisoner at the hands of another translates into constitutional liability for the federal employee responsible for the victim's safety. In order to establish a claim for failure to protect from violence, an inmate must show: (1) a "serious or significant physical or emotional injury," and (2) that the prison officials had a "sufficiently culpable state of mind." Specifically, an inmate must establish that the prison officials knew of and disregarded an excessive risk to the inmate's health or safety.

Source:

Farmer v. Brennan, 511 U.S. 825, 833, 834, 837 (1994); De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir.2003)

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 4 Summary of Issue Upon Which Jury Will be Called to Decide

As I explained a few minutes ago, in this case the plaintiff claims that Mr. Scalet violated his constitutional rights. More specifically that Mr. Scalet violated his Eighth Amendment Rights. The Eighth Amendment to the United Sates Constitution prohibits cruel and unusual punishment of incarcerated persons. In this case plaintiff claims that Mr. Scalet was deliberately indifferent to his safety by calling him a "snitch" in front of other inmates.

Source:

U.S. Const. Amend. VIII

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 5 Explanation of Bivens Claim

Members of the jury, this case arises out of events that occurred in August 2003 at the Eloy Detention Facility in Eloy, Arizona.. At that time the plaintiff was an inmate there. In this case the plaintiff claims that defendant Scalet's conduct violated his constitutional rights. Under the law, a person who believes that his constitutional rights have been violated by a federal employee may file suit in federal court seeking money damages from the personal assets of that federal employee. That is what the plaintiff has done in this case. You should remember that the United States Government is not a defendant. Any judgment for money damages would be against defendant Scalet individually.

Source:

Bivens v. Six Unknown Named Agents of the Fed. Bur. Of Narcotics, 403 U.S. 388 (1971); Charles v. Cotter, 867 F. Supp. 648, 663 (N.D. Ill. 1994) (holding that any suggestion to jury empaneled in personal-liability, constitutional tort claim that there is a "deep pocket" is unfairlythprejudicial to the defendant); Larez v. Holcomb, 16 F.3d 1513, 1518-19 (9 Cir. 1994)(reversible error to advise jury in personal-liability, constitutional tort case that the defendant might be indemnified by public agency).

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 6 Damages for Constitutional Claims

In considering damages, you may award only those damages that compensate plaintiff for his actual losses as a result of actions defendant Scalet. That is any damages you award against defendant Scalet must be grounded in a determination of plaintiff's actual damages as a result of the conduct of defendant Scalet. In other words, you may not award damages based upon the abstract `value' or `importance' of a constitutional right.

Source:

Carey v. Piphus, 435 U.S. 247, 254 (1978); Memphis Community School District v. Stachura, 477 U.S. 299, 310 (1985).

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 7 Damages

If you find that defendant Scalet violated the plaintiff's constitutional rights, you must determine the plaintiff's damages. Plaintiff has the burden for 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 proximately caused by the violation of the plaintiff's constructional rights. Regarding deliberate indifference claim against defendant Scalet, you should consider the following: The nature and extent of the injury(ies). The mental, physical, and emotional pain and suffering experienced and which with reasonable probability will be experienced in the future. You may not include damages that are speculative, only possible, or that are based on guesswork. If you find for the plaintiff, but you find that the plaintiff has failed to prove actual damages, you shall return an award of nominal damages not to exceed one dollar.

Source:

Manual of Model Civil Jury Instructions for the Ninth Circuit. Nos. 7.01, 7.02, & 11.04.

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 8 Knowledge

You may consider only those circumstances known and information available to defendant Scalet at the time of the of the events in question. It is improper for you to consider knowledge of facts and circumstances gained after the events occurred in deciding the reasonableness of defendant Scalet's actions. Sherrod v. Berry, 856 F.2d 802, 804-05 (7th Cir. 1988); Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991).

Source:

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 9 Qualified Immunity

For defendant Scalet, you must decide whether the facts and circumstances known to defendant Scalet, at each stage of the events in which he was involved, were such that a reasonable Immigration Agent could ­ even mistakenly ­ believe that there was a reasonable basis for his conduct. If you find that defendant Scalet had such reasonable basis, then defendant Scalet is entitled to qualified immunity and you must find in favor of the inspector and against the plaintiff. Similarly, for defendant Scalet, you must decide whether the facts and circumstances known to defendant Scalet, at each stage of the events in which he was involved, were such that a reasonable Immigration Agent would realize that his conduct must have violated a constitutional right that was clearly established at the time the alleged violation occurred. Second, you must find that a reasonably competent

Immigration Agent would have known, under the circumstance of the case, that his conduct was violative of plaintiff's constitutional rights. The qualified immunity standard "gives ample room for mistaken judgment" by protecting "all but the plainly incompetent or those who knowingly violate the law.

Source:

Mally v. Briggs, 475 U.S. 335, 343(1986); Hunter v. Bryant, 502 U.S. 244, 229 (1991); Anderson v. Creighton, 483 U.S. 635, 641 (1987); Alexander v. County of Los Angeles, 64 F.3d 1315, 1319 (9th Cir. 1995).

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 10 Personal Liability of Defendant Scalet

Although Earl R. Scalet has been sued in this case for acts related to his employment as an Immigration Agent, Department of Homeland Security, U.S. Immigration and Customs Enforcement, this action is brought against him personally and not against the United Sates nor The Department of Homeland Security. Any judgment that you might render against defendant Scalet is payable only by him from his personal assets and not from the assets of the United States or the Department of Homeland Security. Accordingly, if you find defendant Scalet to be held personally liable for an alleged deprivation or violation of plaintiff's constitutional rights, it must be based solely on defendant Scalet's conduct. Plaintiff must show that defendant Scalet personally participated in the alleged constitutional deprivation or caused plaintiff to be subjected to the constitutional deprivation or violation. You may not hold defendant Scalet liable for any acts or omissions which you believe attributable to some other person or entity.

Source:

Carlson v. Green, 446 U.S. 14, 18-21; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); Meiners v. Moriarity, 563 F.2d 343, 349-350 (7th Cir. 1977).

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 11 Elements

In order to prove his case constitutional claim against defendant Scalet under the Eighth Amendment, the burden is on plaintiff to establish by a preponderance of the evidence each of the following elements: 1. That defendant Scalet intentionally performed acts that operated to

deprive or violate the plaintiff of his Eighth Amendment rights; and 2. law; and 3. defendant That defendant Scalet's actions caused the damages sustained by That defendant Scalet then and there acted under the color of federal

Source:

Devitt & Blackmar, 103.03 (modified); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); Brower v. County of Inyo, 489 U.S. 593, 595 (1989).

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 12 Damages Claims for Personal Injuries in a Bivens Case

The plaintiff alleges that he has sustained injuries, which were proximately caused by defendant Scalet's conduct or actions. These allegations are not evidence, of course, and must not be considered by you as evidence in this case. If you find that the plaintiff constitutional rights were violated by defendant Scalet, you must then consider whether he suffered any injuries as a direct and proximate result. If you find that the plaintiff's constitutional rights were violated, but you find that the plaintiff has failed to prove he was injured as a direct and proximate result of defendant Scalet's conduct or actions, you shall return an award of nominal damages not to exceed one dollar. However, if you decide that plaintiff was injured as a direct and proximate result of defendant Scalet's conduct or actions, then you should award him such sum of compensatory damages as you believe will fairly and justly compensate him. If you decide to award plaintiff compensatory damages against defendant Scalet, you should consider any out-of-pocket expenses he may have incurred, as well as any emotional distress. Compensatory damages cannot be presumed. Plaintiff has the burden of proving damages by a preponderance of the evidence.

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DEFENDANT SCALET'S REQUESTED JURY INSTRUCTION NO. 13 Damages Claims for Personal Injuries in a Bivens Case

In the instant claim, plaintiff claims that he was unjustly confined to the Special Housing Unit ("SHU"), also known as the segregation unit due to the conduct and actions of defendant Scalet. However, plaintiff has no protected liberty interest in remaining in general population of a federal detention facility.

Source:

Sandin v. Conner, 515 U.S. 472, 483 (1995); Thomas v. Ramos, 130 F.3d 754, 760-62 (7th Cir.1997) (70 days in segregation not atypical and significant hardship); Wagner v. Hanks, 128 F.3d 1173, 1175-76 (7th Cir.1997) (rejecting claim that prisoner was improperly held one year in disciplinary confinement); Whitford v. Boglino, 63 F.3d 527,533 (7th Cir.1995) (six months in segregation not atypical and significant hardship). Even if Plaintiff has such a protected liberty interest, he fails to allege that he was denied any of the procedural protections required by the Supreme Court. See generally Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Eady v. Sawyer 2005 WL 2206249, *3 (S.D.Ill. 2005).

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