Cohea v. Pliler, et al

Filing 320

ORDER re PROPOSED CLOSING JURY INSTRUCTIONS signed by Judge Garland E. Burrell, Jr on 7/24/15. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANNY JAMES COHEA,

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2:00-cv-02799-GEB-EFB

Plaintiff,

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No.

v.

PROPOSED CLOSING JURY
INSTRUCTIONS

J. COLVIN, D. McCARGAR, S.L.
BAUGHMAN, M.A. MICHEELS, R
YAMAMOTO, SD AKIN, D. ADAMS,
A GOLD, and S. SCARSELLA,

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Defendants.
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Attached

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are

the

Court’s

proposed

closing

jury

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instructions. Any proposed modifications should be submitted as

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soon as practicable.
In the attached instructions, the Court has attempted

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to

eliminate

unnecessary

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jurors . . . concentrate on the question[s] at hand.” Achor v.

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Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997). For

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example, the attached instructions do not include Defendants’

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proposed jury instructions that instruct on 42 U.S.C. § 1983

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claims generally since a court should avoid instructing jurors in

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“formal terminology . . . suited more to lawyers than to lay

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deciders,”

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undisputed that each Defendant acted under color of law. Achor,

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117 F.3d at 341.

especially

in

language

the

situation

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to

here,

“help

where

the

it

is

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Further,

Defendants’

proposed

jury

instructions,

the

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appropriateness of which depend upon the presentation of evidence

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at

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determination of the amount of punitive damages, are attached

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hereto as “conditional instructions.” They will be given to the

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jury only if applicable.1

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Dated:

trial,

and

the

proposed

instruction

concerning

the

July 24, 2015

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The trial will be conducted in two phases: liability and punitive
damages. If the jury finds punitive damages are recoverable in the liability
phase, trial on the amount of punitive damages will immediately occur. During
the first phase of the trial, the jury will be given a liability instruction
on punitive damages along with the other closing instructions and a verdict
form which will include the liability question on punitive damages. If the
answer is “yes,” then evidence pertinent to the amount of punitive damages
would be presented in the second phase of the trial, following which the
parties would present closing argument on that issue and a jury instruction
would be given. The jury would then deliberate on the issue and fill in a
punitive damages verdict form.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

DANNY JAMES COHEA,

No. 2:00-cv-02799-GEB-EFB

Plaintiff,
v.

CLOSING JURY INSTRUCTIONS

J. COLVIN, D. McCARGAR, S.L.
BAUGHMAN, M.A. MICHEELS, R
YAMAMOTO, SD AKIN, D. ADAMS,
A GOLD, and S. SCARSELLA,
Defendants.

Instruction No.

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. Each of you
is in possession of a copy of these jury instructions, which you
may take into the jury room for your use during deliberations if
you find it necessary.
It

is

your

duty

to

find

the

facts

from

all

the

evidence in the case. To those facts you must 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. And 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 and according to the law. 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. Do not read into these instructions or into
anything I 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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Instruction No.

The evidence you are to consider in deciding what the
facts are consists of:
the sworn testimony of any witness;
the exhibits which were received into evidence; and
any facts to which the lawyers have agreed.

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Instruction No.

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:
First,

arguments

and

statements

by

Defendants’

attorneys and by Plaintiff, except when Plaintiff was testifying
under

oath,

are

witnesses

and

testified

not

under

evidence.

Plaintiff
oath.

is
What

Defendants’

not

a

they

attorneys

witness
said

in

their

not

when

except

are

he

opening

statements, 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

Defendants’

attorneys and Plaintiff stated them, your memory of the facts
controls;
Second, questions and objections by the parties are
not

evidence.

The

parties

have

a

duty

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;
Third, 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, when I give a limiting
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instruction, you must follow it;
Fourth, anything you see or hear when the court is not
in session is not evidence. You are to decide the case solely on
the evidence received at the trial.

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Instruction No.

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 to any evidence.

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Instruction No.

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. Proof of a fact does not necessarily depend
on the number of witnesses who testify about it.
In considering the testimony of any witness, you may
take into account:
the opportunity and ability of the witness to see or
hear or know the things testified to;
the witness’s memory;
the witness’s manner while testifying;
the witness’s interest in the outcome of the case and
any bias or prejudice;
whether

other

evidence

contradicted

the

witness’s

testimony;
the reasonableness of the witness’s testimony in light
of all the evidence; and
any other factor that bears on believability.
The

weight

of

the

evidence

as

to

a

fact

does

not

necessarily depend on the number of witnesses who testify about
it.

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Instruction No.

The evidence that a witness has been convicted of a
crime

may

be

considered,

along

with

all

other

evidence,

in

deciding whether to believe the witness and how much weight to
give to the testimony of the witness, but for no other purpose.

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Instruction No.

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.

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Instruction No.

You

should

decide

the

case

as

to

each

Defendant

separately. Unless otherwise stated, the instructions apply to
all parties.

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Instruction No.

The State of California and the California Department
of Corrections & Rehabilitation are not defendants in this case.
Whether or not the State of California would reimburse
the named defendants for any damages awarded is irrelevant and
should not be considered in deciding this case.

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Instruction No.

Plaintiff
right

under

the

alleges
First

that

each

Amendment

Defendant
to

the

violated
United

his

States

Constitution by retaliating against him for seeking redress of a
prison

grievance.

protected
officials.
right

to

prisoner’s

A

activity

prisoner

when

Retaliation
seek

asserts

against

redress

First

he

of

Amendment

engages

a

a

a

It

First

grievance

prisoner

prison

right.

in

for

with

prison

exercising

the

violates

the

grievance
is

Amendment

undisputed

that

the

Plaintiff engaged in the First Amended protected activity of
asserting prison grievances.
To prevail on his First Amendment retaliation claim,
the Plaintiff must prove each of the following elements by a
preponderance of the evidence:
First, the Defendant took adverse action or actions
against the Plaintiff;
Second,
activity

the

was

substantial

a

Plaintiff’s
or

First

Amendment

motivating

protected

factor

for

the

Defendant’s action or actions;
Third,

the

Defendant’s

adverse

action

or

actions

resulted in more than minimal harm to the Plaintiff or would
chill a person of ordinary firmness in the exercise of his right
to present a prison grievance; and
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Fourth, the Defendant’s adverse action or actions did
not reasonably advance a legitimate correctional goal.

A substantial or motivating factor is a significant
factor. Timing can be considered as circumstantial evidence of
retaliatory

motive.

However,

neither

timing

alone

nor

sheer

speculation is sufficient to show that the Plaintiff’s protected
activity

was

a

substantial

or

motivating

factor

for

the

Defendant’s adverse action or actions. The Plaintiff must show a
nexus between his First Amendment protected activity and the
Defendant’s adverse action or actions.

Whether any action taken by the Defendant reasonably
advanced

a

legitimate

correctional

goal

is

evaluated

in

the

light of the deference given to prison officials in the adoption
and execution of policies and practices that in their reasonable
judgment

are

needed

to

preserve

internal security in a prison.

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discipline

and

to

maintain

Instruction No.

Plaintiff

alleges

that

Defendants

Akin,

Gold,

and

Micheels violated his right to procedural due process under the
Fourteenth Amendment to the United States Constitution in their
conduct as Hearing Officers during prison disciplinary hearings.
Under the Fourteenth Amendment, a state prisoner is entitled to
certain

procedural

disciplinary

protections

violation.

Such

when

he

procedural

is

charged

protections,

with

a

however,

are required only when the disciplinary action taken implicates
a prisoner’s constitutionally protected liberty interest.
To prevail on his Fourteenth Amendment procedural due
process claim, the Plaintiff must prove each of the following
elements by a preponderance of the evidence:
First, the Defendant’s conduct deprived the Plaintiff
of a constitutionally protected liberty interest; and
Second, the procedures provided to the Plaintiff in
connection with the disciplinary hearing were constitutionally
insufficient.

A

constitutionally

protected

liberty

interest

restrains a prisoner’s freedom in a manner not expected from his
sentence and imposes an atypical and significant hardship on the
prisoner in relation to the ordinary incidents of prison life.
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In

determining

whether

the

Defendant’s

conduct

deprived the Plaintiff of a constitutionally protected liberty
interest, you should consider the following:
Whether
the

the

conditions

disciplinary

imposed

upon

condition

prisoners

imposed

in

mirrored

administrative

segregation and protective custody, and thus comported with the
prison’s discretionary authority;
The

duration

of

the

condition,

and

the

degree

of

restraint imposed; and
Whether

the

Defendant’s

action

will

affect

the

duration of the Plaintiff’s sentence.

A

disciplinary

constitutionally

sufficient

hearing’s
if

the

procedures

prisoner

is

given

are
advance

notice of the charges, allowed to call witnesses or present
other evidence in his defense, and provided with a statement of
the evidence relied on by the prison official for his decision
and the reasons for the disciplinary action.
However, you should give deference to prison officials
in the adoption and execution of policies and practices to keep
disciplinary

hearings

judgment

are

internal

security

witnesses

that

needed

are

within

reasonable

to

in

preserve

a

prison,

irrelevant,
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limits

discipline
including

not

that

and

to

refusing

necessary,

or

in

their

maintain
to

call

potentially

cause security threats.

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Instruction No.

It is my duty to instruct you about the measure of
damages. By instructing you on damages, I do not mean to suggest
for which party your verdict should be rendered.
If you find for the Plaintiff on one or more of his
claims,

you

must

determine

his

compensatory

damages.

The

Plaintiff has the burden of proving compensatory damages by a
preponderance of the evidence. Compensatory damages means the
amount of money that will reasonably and fairly compensate the
Plaintiff
caused.

for
You

any
should

injury

that

consider

the

you

determine

nature

and

the

Defendant

extent

of

the

deprivation experienced. An award of compensatory damages cannot
include any sum for the purpose of punishing the Defendant, or
to serve as an example or warning for others.
It is for you to determine what compensatory damages,
if any, have been proved.
Your

award

must

be

based

speculation, guesswork, or conjecture.

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on

evidence

and

not

on

Instruction No.

The law that applies to this case authorizes an award
of nominal damages. If you find in favor of the Plaintiff on one
or more of his claims, but you find that he has failed to prove
compensatory damages as defined in these instructions, you must
award

nominal

damages.

Nominal

dollar.

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damages

may

not

exceed

one

Instruction No.

If you find for the Plaintiff on one or more of his
claims, you must determine if the Defendant’s conduct justifies
an award of punitive damages.
The

Plaintiff

has

the

burden

to

prove

by

a

preponderance of the evidence that punitive damages should be
awarded. The amount of punitive damages, if any, will be decided
later.
You may award punitive damages only if you find that
the Defendant’s conduct that harmed the Plaintiff was malicious,
oppressive, or in reckless disregard of the Plaintiff’s rights.
Conduct is malicious if it is accompanied by ill will, or spite,
or if it is for the purpose of injuring the Plaintiff. Conduct
is in reckless disregard of the Plaintiff’s rights if, under the
circumstances,

it

reflects

complete

indifference

to

the

Plaintiff’s safety or rights, or if the Defendant acts in the
face

of

a

perceived

risk

that

its

actions

Plaintiff’s rights under federal law.
oppressive

if

the

Defendant

injures

will

violate

the

An act or omission is
or

damages

or

otherwise

violates the rights of the Plaintiff with unnecessary harshness
or severity, such as by the misuse or abuse of authority or
power or by the taking advantage of some weakness or disability
or misfortune of the Plaintiff.
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Instruction No.

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
discussion

not

hesitate

persuades

you

to

that

change
you

your

should.

Do

opinion
not

if

come

the
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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Instruction No.

If it becomes necessary during your deliberations to
communicate with me, you may send a note through the United
States Marshal’s representative, 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;

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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Instruction No.

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 will be given to you, sign and
date it, and advise the United States Marshal’s representative
outside your door that you are ready to return to the courtroom.

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CONDITIONAL INSTRUCTIONS

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[Conditional] Instruction No.

You must now decide the amount, if any, of punitive
damages that you should award the Plaintiff. The Plaintiff has
the

burden

of

proving

the

amount

of

any

such

damages

by

a

preponderance of the evidence.
The purposes of punitive damages are to punish the
Defendant and to deter similar acts in the future. Punitive
damages may not be awarded to compensate the Plaintiff.
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 the amount of any punitive damages, consider the
degree of reprehensibility of the Defendant’s conduct.

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[Conditional] Instruction No.

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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[Conditional] Instruction No.

Certain charts and summaries not received in evidence
have been shown to you in order to help explain the contents of
books, records, documents, or other evidence in the case. They
are not themselves evidence or proof of any facts. If they do
not correctly reflect the facts or figures shown by the evidence
in the case, you should disregard these charts and summaries and
determine the facts from the underlying evidence.

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