Maxwell/G-Doffee v. Clerk et al

Filing 161

ORDER: The Court appreciates the parties' proposed jury instructions. The Court is attaching its current working drafts of the (1) voir dire, (2) the preliminary instructions, (3) the final instructions, and (4) the verdict forms. Please file an y objection or comment by noon on Friday, September 2. Signed by Judge D. P. Marshall Jr. on 8/30/2016. (Attachments: # 1 Voir Dire, # 2 Preliminary Instructions, # 3 Final Instructions, # 4 Verdict Form)(jak) (Docket text modified on 8/30/2016 to correct a typographical error).

INSTRUCTION NO. 1
Members of the Jury, the instructions I gave you at the
beginning of the trial and during the trial are still in effect. Now I’m
going to give you some additional instructions.
You have to follow all of my instructions—the ones I gave you
earlier, as well as those I give you now. Do not single out some
instructions and ignore others. They’re all important. This is true
even though I am not going to repeat some of the instructions I gave
you before and during the trial.
You will have copies of the instructions I am about to give you
now in the jury room. This does not mean they are more important
than my earlier instructions. Remember, you have to follow all
instructions, no matter when I give them, whether or not you have
written copies.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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INSTRUCTION NO. 2
There are rules you must follow when you go to the jury room
to deliberate and return with your verdict:
First, you must select a foreperson. That person will preside
over your discussions and speak for you all here in court.
Second, it is your duty, as jurors, to discuss this case with one
another in the jury room. You should try to reach agreement, if you
can do this without going against what you believe to be the truth,
because all jurors have to agree on the verdict.
Each of you must make your own decision, but only after you
have considered all the evidence, discussed the evidence fully with
your fellow jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your mind if the discussion
persuades you that you should. But do not come to a decision just
because other jurors think it is right, or just to reach a verdict.
Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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Remember you are not for or against a party.

You are

judges—judges of the facts. Your only job is to study the evidence
and decide what is true.
Third, if you need to communicate with me during your
deliberations, send me a note signed by one or more of you. Give
the note to the court security officer; and I will answer you as soon
as I can, either in writing or here in court. But while you are
deliberating, do not tell anyone —including me—how many jurors
are voting for any side.
Fourth, your verdicts must be based solely on the evidence and
on the law given in my instructions. Nothing I have said or done
was meant to suggest what I think your verdicts should be. Those
verdicts are entirely up to you.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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INSTRUCTION NO. 3
I haven’t intended to suggest what I think your verdicts should
be by any of my rulings or comments during the trial. During the
trial, I have asked some witnesses questions. Do not try to guess my
opinion about any issues in the case based on the questions I asked.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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INSTRUCTION NO. 4
In deciding what the facts are, you will have to decide what
testimony you believe and what testimony you don’t believe. You
may believe all of what a witness said, or only part of it, or none of
it.
In deciding what testimony to believe, consider several things:
the witnesses’ intelligence; their opportunity to have seen or heard
the things they testify about; their memories; any motives they may
have for testifying a certain way; their demeanor while testifying;
whether they said something different at an earlier time; the general
reasonableness of their testimony; and the extent to which their
testimony is consistent with other evidence that you believe.
A caution about considering a witness’s demeanor while
testifying. Many folks are nervous just being in court. And there are
bold liars and shy truth tellers. Use your common sense and be
Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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discerning when judging someone’s credibility based on their
demeanor on the stand.
In deciding whether or not to believe a witness, keep in mind
that people sometimes hear or see things differently and sometimes
forget things. You will have to decide whether any contradiction is
an innocent misrecollection, a lapse of memory, or a lie. That may
depend on whether the contradiction has to do with an important
fact or only a small detail.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 5
In considering the evidence in this case, you aren’t required to
set aside your common sense or common knowledge. Consider the
evidence in light of your own observations and experiences in the
affairs of life. Use your common sense.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 6
You will have to decide whether certain facts have been proved
by the greater weight of the evidence. A fact has been proved if you
find that it is more likely true than not true. You decide that by
considering all the evidence, and then deciding what evidence is
more believable.

The greater weight of the evidence is not

established by who has the most witnesses or exhibits. You are,
instead, looking for the truth in the whole case.
You have probably heard the phrase “proof beyond a
reasonable doubt.” That is a stricter standard than “more likely true
than not true.” The standard of “proof beyond a reasonable doubt”
applies in criminal cases, but not in this civil case; so put it out of
your minds.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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INSTRUCTION NO. 6A
Maxwell/G-Doffee, Clark, and Cooksey have stipulated—that
is, they have agreed—to certain facts. No party has to prove these
facts. They are established as the truth for purposes of this trial. I’m
going to read you the list of agreed facts now.
• On 22 April 2013, Robert Maxwell/G-Doffee was
incarcerated. He was housed at the Tucker Unit of the
Arkansas Department of Correction.
• On that date, Richard Clark and Roderick Cooksey were
employed at the Tucker Unit of the Arkansas Department of
Correction.
• On that date, Clark and Cooksey were escorting
Maxwell/G-Doffee from his cell to the shower after his cell
was flooded.
• On that date, Maxwell/G-Doffee received a disciplinary
violation from Cooksey for spitting in Cooksey’s face, failing
to obey orders, and failing to keep his person or quarters
within regulations.
Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 7—Excessive Force - Clark
Your verdict must be for Maxwell/G-Doffee and against Clark
on Maxwell/G-Doffee’s excessive force claim against Clark if all the
following elements have been proved:
First,

Clark

pepper

sprayed,

struck,

hit,

or

kissed

Maxwell/G-Doffee, or touched him in a sexually explicit manner;
Second, the force used was excessive and applied maliciously
and sadistically for the purpose of causing harm, and not in a good
faith effort to achieve a legitimate purpose; and
Third, as a direct result, Maxwell/G-Doffee was injured.
In determining whether the force was excessive, you must consider:
• the need for the application of force;
• the relationship between the need and the amount of
force that was used;
• the extent of the injury inflicted; and

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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• whether the force was used to achieve a legitimate
purpose or maliciously and sadistically for the purpose of
causing harm.
“Maliciously” means intentionally injuring another without
just cause or reason.
“Sadistically” means engaging in extreme or excessive cruelty
or delighting in cruelty.
If any of the three elements has not been proved, then your
verdict must be for Defendant Clark on this claim.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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INSTRUCTION NO. 8—Retaliatory Verbal Threat - Clark
Your verdict must be for Maxwell/G-Doffee and against Clark
on Maxwell/G-Doffee’s retaliatory verbal threat claim against Clark
if all the following elements have been proved:
First, Maxwell/G-Doffee had filed one or more complaints or
grievances through the prison’s grievance process;
Second, Clark verbally threatened Maxwell/G-Doffee;
Third, Clark made the verbal threat in retaliation for
Maxwell/G-Doffee’s using the grievance process; and
Fourth, Clark’s verbal threat would discourage a person of
ordinary firmness from using the grievance process.
If any of the four elements has not been proved, then your
verdict must be for Clark on this claim.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 9—Excessive Force - Cooksey
Your verdict must be for Maxwell/G-Doffee and against
Cooksey on Maxwell/G-Doffee’s excessive force claim against
Cooksey if all the following elements have been proved:
First, Cooksey pepper sprayed Maxwell/G-Doffee;
Second, the force used was excessive and applied maliciously
and sadistically for the purpose of causing harm, and not in a good
faith effort to achieve a legitimate purpose; and
Third, as a direct result, Maxwell/G-Doffee was injured.
In determining whether the force was excessive, you must consider:
• the need for the application of force;
• the relationship between the need and the amount of
force that was used;
• the extent of the injury inflicted; and
• whether the force was used to achieve a legitimate
purpose or maliciously and sadistically for the purpose of
causing harm.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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“Maliciously” means intentionally injuring another without
just cause or reason.
“Sadistically” means engaging in extreme or excessive cruelty
or delighting in cruelty.
If any of the three elements has not been proved, then your
verdict must be for Defendant Cooksey on this claim.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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INSTRUCTION NO. 10—Failure to Protect - Cooksey
Your verdict must be for Maxwell/G-Doffee and against
Cooksey on Maxwell/G-Doffee’s failure to protect claim if all the
following elements have been proved:
First,

Defendant

Clark

used

excessive

force

against

Maxwell/G-Doffee by pepper spraying, striking, hitting, or kissing
Maxwell/G-Doffee, or by touching him in a sexually explicit
manner;
Second, Defendant Cooksey was aware of the substantial risk of
the excessive force;
Third, Cooksey, with deliberate indifference to Maxwell/
G-Doffee’s need to be protected from the excessive force, failed to
protect Maxwell/G-Doffee; and
Fourth, as a direct result, Maxwell/G-Doffee was injured.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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“Deliberate indifference” can be established only if Cooksey
actually knew of a substantial risk that Maxwell/ G-Doffee faced
from Clark and if Cooksey disregarded that risk by intentionally
refusing or intentionally failing to take reasonable measures to deal
with the problem. Negligence or inadvertence does not constitute
deliberate indifference.
If any of the four elements has not been proved, then your
verdict must be for Defendant Cooksey on this claim.

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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INSTRUCTION NO. 11—Retaliatory Verbal Threat - Cooksey
Your verdict must be for Maxwell/G-Doffee and against
Cooksey on Maxwell/G-Doffee’s retaliatory verbal threat claim
against Cooksey if all the following elements have been proved:
First, Maxwell/G-Doffee had filed one or more complaints or
grievances through the prison’s grievance process;
Second, Cooksey verbally threatened Maxwell/G-Doffee;
Third, Cooksey made the verbal threat in retaliation for
Maxwell/G-Doffee’s using the grievance process; and
Fourth, Cooksey’s verbal threat would discourage a person of
ordinary firmness from using the grievance process.
If any of the four elements has not been proved, then your
verdict must be for Cooksey on this claim.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 12
If you find in favor of Maxwell/G-Doffee, then you must
award him an amount of money that will fairly compensate him for
any damages you find he sustained as a direct result of Clark’s or
Cooksey’s conduct as submitted in Instructions 7–11. You should
consider the following elements of damages:
First: Any physical pain and mental or emotional suffering
Maxwell/G-Doffee has experienced and is reasonably certain to
experience in the future; and
Second: The nature and extent of any injury, whether that
injury is temporary or permanent;
[Third: The reasonable value of the medical (hospital, nursing,
and similar) care and supplies reasonably needed by and actually
provided to Maxwell/G-Doffee (and reasonably certain to be
needed and provided in the future); and]
Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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[Fourth: The reasonable value of the working time Maxwell/
G-Doffee has lost and the reasonable value of the earning capacity
he is reasonably certain to lose in the future because of his
diminished ability to work.]
Whether any of these elements of damage has been proved by
the evidence is for you to decide. Remember, throughout your
deliberations you must not engage in speculation, guesswork, or
conjecture. And you must not award any damages under this
Instruction by way of punishment or through sympathy.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 13
If you find in favor of Maxwell/G-Doffee on one or more of his
claims, but you find that his damages have no monetary value, then
you must award Maxwell/G-Doffee $1.00 in nominal damages.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 14
In addition to the damages mentioned in other instructions, the
law permits the jury under certain circumstances to award punitive
damages.
If you find in favor of Maxwell/G-Doffee under Instructions 7,
8, 9, 10, or 11, and if it has been proved that Clark’s or Cooksey’s
conduct as submitted in Instructions 7, 8, 9, 10, or 11 was malicious
or recklessly indifferent to Maxwell/ G-Doffee’s rights, then you
may, but are not required to, award Maxwell/G-Doffee an
additional amount of money as punitive damages against defendant
Clark or defendant Cooksey. These damages have two purposes:
punishing the defendant for engaging in this misconduct and
discouraging him and others from engaging in similar misconduct
in the future. You should presume that Maxwell/G-Doffee has been

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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made whole for any injuries by any damages awarded under
Instructions 12 and 13.
If you decide to award punitive damages against one or both
defendants, you should consider the following in deciding the
amount:
First: How reprehensible the particular defendant’s conduct
was. Consider (1) whether the harm Maxwell/G-Doffee suffered
was physical or economic or both; (2) whether there was violence,
deceit, intentional malice, or reckless disregard for human health or
safety; (3) whether the defendant’s conduct that harmed Maxwell/
G-Doffee also posed a risk of harm to others; and (4) whether there
was any repetition of the wrongful conduct or past conduct of the
sort that harmed Maxwell/G-Doffee.
Second: How much harm the defendant’s wrongful conduct
caused Maxwell/G-Doffee.
Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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Third: In light of the defendant’s financial condition, what
amount of punitive damages, in addition to the other damages
already awarded, is needed to punish him for his wrongful conduct
toward Maxwell/G-Doffee and to discourage the defendant and
others from similar wrongful conduct in the future.
The amount of any punitive damages award must bear a
reasonable relationship to the harm caused to Maxwell/G-Doffee.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 15
The fact that I’ve instructed you on damages is not intended to
suggest what I think your liability verdict should be. I’ve given
instructions on damages, as I do in all cases, for your guidance in
the event you find for Maxwell/G-Doffee on liability. But the
question of damages is entirely distinct and different from the
question of liability. Do not consider damages until you have first
considered and decided whether Cooksey or Clark violated
Maxwell/G-Doffee’s rights.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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INSTRUCTION NO. 16
The verdict forms are simply the written notice of your
decisions. I’m going to go over them with you now. Each of you
will have a copy at the back of your set of final jury isntructions.
You will take these verdict forms to the jury room. When each
of you has agreed on the verdicts, your foreperson will fill in the
forms to reflect your unanimous decisions, sign and date them, and
then advise the court security officer that you are ready to return to
the courtroom.
I add the caution that nothing said in the instructions—and
nothing in the verdict forms—is intended to suggest what answers
I think you should give. How you choose to complete the verdict
forms is solely and exclusively your responsibility.
If it becomes necessary during your deliberations to
communicate with the Court, you may send a note by the court
Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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security officer, signed by your foreperson, or by one or more
members of the Jury. No member of the Jury should ever attempt
to communicate with the Court by any means other than a signed
writing; and the Court will never communicate with any member of
the Jury on any subject touching the merits of the case, other than in
writing, or orally here in open Court.
You will note from the oath about to be taken by the court
security officer to act as bailiff that he, and all other persons, are
forbidden from communicating in any way or manner with any
member of the Jury on any subject touching the merits of the case.
Bear in mind also that you must never reveal to any person, not even
to the Court, how the Jury stands, numerically or otherwise, on the
issue presented to you unless or until you reach a unanimous
verdict.

Court’s Draft Final Instructions
30 August 2016

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No. 5:13-cv-291-DPM
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Court security officer, do you solemnly swear to keep this Jury
together in the jury room, and not to permit any person to speak
to or communicate with them, concerning this case, nor to do so
yourself unless by order of the Court or to ask whether they have
agreed on a verdict, and to return them into the Courtroom when
they have so agreed, or when otherwise ordered by the Court, so
help you God?

Court’s Draft Final Instructions
30 August 2016

Maxwell/G-Doffee v. Clark and Cooksey
No. 5:13-cv-291-DPM
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