McNeal v. Evert, et al

Filing 300

THIRD SUPPLEMENTAL PRETRIAL ORDER signed by District Judge Garland E. Burrell, Jr. on 9/27/2017 ORDERING Plaintiff's three motions, docketed as ECF Nos. 291 , 296 , and 298 , are DENIED; Defendants' affirmative defense asserted under Hec k is DISMISSED. For the stated reasons, Defendants' affirmative defenses that Plaintiff's failed to exhaust available administrative remedies and that Plaintiff's claims are barred under the principle explained in Heck are DISMISSED. (Reader, L) Modified on 9/28/2017 (Reader, L).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 VERNON WAYNE MCNEAL, 9 Plaintiff, 10 11 No. 2:05-cv-0441-GEB v. THIRD SUPPLEMENT TO PRETRIAL ORDER; PROPOSED TRIAL DOCUMENTS; ORDER ON PLAINTIFF’S PENDING MOTIONS; AND SUA SPONTE ORDER ON DEFENDANTS’ AFFIRMATIVE DEFENSES EVERT, et al., 12 Defendants. 13 A trial confirmation hearing was held in this case on 14 15 September 15, 2017 (hereinafter referenced as, the “TCH”). 16 Plaintiff appeared in propria persona, and Defendants appeared 17 through counsel. 18 Pretrial Order (“PO”), ECF No. 180, the May 22, 2015 Supplement 19 to the Pretrial Order (“Supp. to PO”), ECF No. 206, and the June 20 1, 2015 Second Supplement to the Pretrial Order (“Second Supp. to 21 PO”), ECF No. 210. 22 Attached This order supplements the February 24, 2015 are proposed Voir Dire, Initial Jury 23 Instructions, Closing Jury Instructions, and the Verdict Form 24 which 25 Interrogatories 26 affirmative 27 Damages Jury Instruction and Punitive Damages Verdict Form, which 28 are includes only most concerning defense; used of if also the Defendants’ each Defendant’s attached jury finds 1 are a the proposed Special qualified immunity proposed Punitive Defendant is liable for 1 punitive damages. 2 attached 3 practicable, but no later than seven days before the presently 4 scheduled 5 words, whether or not the presently scheduled trial commencement 6 date is continued, the response is still due as stated. 7 to respond shall be deemed acquiescence to what is attached. document, 8 9 If a party has a response to anything in an October the 24, response 2017 shall trial be filed, commencement as date; soon in as other Failure During the TCH, the Judge explained to the parties that because the Judge’s caseload consists primarily of criminal 10 cases, he has a congested criminal trial docket, and therefore it 11 is 12 scheduled. 13 previously scheduled trial in this case, which did not conflict 14 with 15 informed that they have the option, if they so elect, to consent 16 to proceed before the assigned Magistrate Judge. 17 Plaintiff consented to proceed before the assigned Magistrate 18 Judge. 19 nature of the District Judge’s criminal docket, defense counsel 20 will ask Defendants whether they desire to proceed before the 21 assigned Magistrate Judge. 22 proceed 23 election 24 Judge’s courtroom deputy clerk for the purpose of scheduling a 25 trial 26 assigned Magistrate Judge and the parties. highly any unlikely that this civil trial will commence as It is unfortunate that Plaintiff asked to continue a scheduled criminal trial. The parties were also During the TCH, Defense counsel stated that in light of the congested before the the assigned parties commencement If Defendants ultimately elect to shall date that Magistrate contact is Judge, the mutually following assigned that Magistrate convenient for the 27 The parties stipulated at the TCH that Defendants acted 28 under color of law and that this issue need not be presented to 2 1 the jury in a jury instruction. 2 Plaintiff agreed at the TCH to the following: during 3 trial proceedings, 4 stationary device under the plaintiff’s table where he will be 5 seated and the restraints will be shielded from the jury’s view 6 by that table’s front and side panels and a piece of fabric that 7 extends from the base of one panel to the floor; he will present 8 opening and closing arguments from the plaintiff’s table; if he 9 decides to testify, he will testify from the plaintiff’s table 10 and defense counsel will question him from the defense table; and 11 trial exhibits will be placed near the witness stand for use 12 during trial. 13 he will wear leg restraints affixed The voir dire process was discussed at the TCH. to a Eight 14 (8) jurors will be impaneled using the “struck jury” system. 15 judge will conduct voir dire; if a party elects to ask follow-up 16 questions, each side agreed that ten (10) minutes per side is 17 sufficient for such questions. 18 Juror” sheet and “Strike Sheet,” which will be used during the 19 jury 20 parties during the TCH. 21 stated 22 allegedly 23 Plaintiff consented to dismissal of this allegation. selection he 24 process, could placed not were The “Query re Excuse Potential discussed and provided to the Additionally, at the TCH, Plaintiff identify restraint The the devices correctional officer that on tightly, and him too The trial will be conducted in two phases: liability 25 and punitive damages. If the jury finds punitive damages are 26 recoverable in the liability phase, the second phase of trial on 27 the amount of punitive damages will immediately follow that jury 28 decision. During the second phase, a separate punitive damages 3 1 jury instruction will be read to the jury; each side may make a 2 closing argument on the amount of punitive damages; and the jury 3 will 4 deliberation on the amount of punitive damages. then be instructed on punitive damages and will resume 5 The Initial Jury Instructions have been revised and now 6 include a new Instruction No. 4 setting forth the undisputed 7 facts contained in the Pretrial Order. PO 2:1–21. 8 The Closing Jury Instructions have also been revised. 9 To aid the review of the attached instructions, certain revisions 10 are explained 11 instructions no longer correspond with the instruction numbers in 12 the version of Closing Jury Instructions provided to the parties 13 during the TCH. 14 causation 15 element three in Instruction No. 4. 16 been 17 reiterating the factors a jury could consider when assessing a 18 witness’s credibility and an instruction explaining that the jury 19 may 20 credibility. 21 now defined in Instruction No. 6. 22 Instruction No. 9, has been amended to reflect that punitive 23 damages may be awarded even if the jury awards Plaintiff only 24 nominal damages. 25 (updated 2017); Arizona v. ASARCO LLC, 773 F.3d 1050, 1058 (9th 26 Cir. 2014) (indicating that punitive damages may be awarded upon 27 a nominal damages finding and stating: “Because nominal damages 28 measure to a because of the revisions, the attached Instruction No. 3 has been omitted, but the language added use herein; the felony from that Closing instruction Jury conviction has been moved to Two new instructions have Instructions: when an assessing instruction a witness’s The “preponderance of the evidence” definition is neither Instruction No. 10, formerly See Model Civ. Jury Instr. 9th Cir. 5.5 (2007) damage nor severity 4 of conduct, it is not 1 appropriate to examine the ratio of a nominal damages award to a 2 punitive damages award.”). 3 Additionally, Instruction No. 7 of the Closing Jury 4 Instructions, formerly Instruction No. 6, has been revised to 5 define 6 Plaintiff’s proposed jury instruction on damages for emotional 7 distress, Pl.’s Proposed Instr. 3:9, ECF No. 292; and the portion 8 of the Pretrial Order discussing Plaintiff’s obligation to show 9 that the injury he sustained, as a result of his allegations that 10 his Eighth Amendment right has been violated, is more than a de 11 minimis injury, PO 8:10-9:8 (quoting Defs.’ Pretrial Stmt. 8:3- 12 9:18, ECF No. 168). 13 Defendants’ argument from their Pretrial Statement, as follows: 14 “Plaintiff must plead a physical injury within the meaning of the 15 [Prison Litigation Reform Act] in order to recover damages for 16 mental or emotional injuries . . . [which] requires [a] show[ing 17 of] more than a de minimis physical injury.” 18 (citations omitted) (quoting Defs.’ Pretrial Stmt. 8:7–9, 9:4–5). 19 The authority Defendants provided, however, to describe the de 20 minimis standard was explicitly rejected by the Ninth Circuit in 21 Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (“Appellees 22 cite Luong v. Hatt, 979 F.Supp. 481 (N.D. Tex. 1997) [but this] 23 proposed standard requires too much.”). 24 does not provide a definition of the term “de minimis.” 25 627–628. 26 defining a term, “[a] dictionary definition[ may help] to clarify 27 the 28 Lettiere, 640 F.3d 1271, 1275 (9th Cir. 2011) (emphasis omitted) the term In ordinary the “de minimis” light of the following: Specifically, the Pretrial Order quotes absence meaning in of of statutory [the] 5 PO 8:13–14, 8:27–28 But the Oliver decision or term[].” other United Id. at guidance States in v. 1 (internal quotation marks and citations omitted). 2 Dictionary defines 3 negligible [or] 4 Dictionary (10th ed. 2014). 5 the term “de insignificant.” minimis” DE as MINIMIS, Black’s Law “[t]rifling; Black’s Law The verdict forms were discussed at the TCH; however, 6 previously marked 7 Special Interrogatories, ECF No. 227, that were discussed during 8 the TCH, has been omitted since it contradicts Undisputed Facts 9 Nos. 7 and 8 in the Pretrial Order, PO 2:14–17; also, previously Question Question No. 29 No. in 25, in Defendants’ Defendants’ Proposed Proposed 10 marked Special 11 Interrogatories has been omitted since it contradicts Undisputed 12 Facts Nos. 9 and 10 in the Pretrial Order, PO 2:18–19. 13 prescribed in Rule 16 of the Federal Rules of Civil Procedure, 14 “[a pretrial] order controls the course of the action unless the 15 court modifies it . . . to prevent manifest injustice.” 16 Civ. P. 16(d)-(e). 17 facts, these facts that have been found to be uncontested will be 18 read to the jury in the Initial Jury Instructions. As Fed. R. Since the Pretrial Order contains undisputed 19 During the TCH, it was decided that each side’s opening 20 statement shall not exceed fifteen (15) minutes,1 and each side’s 21 closing argument during the liability phase of the trial shall 22 not exceed forty-five (45) minutes. 23 ensues to assess the amount of punitive damages, each side’s 24 closing argument shall not exceed ten (10) minutes. If a second phase of trial 25 26 27 28 1 The Supplement to the Pretrial Order states, “[e]ach side’s opening statement shall not exceed ten (10) minutes,” Supp. to PO 6:17–18; however, at the TCH, the parties requested fifteen (15) minutes per side, which was granted. 6 1 Pending Motions 2 During the TCH, the Judge informed Plaintiff that his 3 motion, docketed as ECF No. 291, in which he seeks clarification 4 on 5 previously addressed because the Judge did not realize that the 6 TCH was scheduled as early as it was, but nevertheless, the 7 motion was denied because it seeks an advisory ruling. what legal documents he should bring to the TCH was not 8 The Judge also denied at the TCH Plaintiff’s motion, 9 docketed as ECF No. 296, in which he seeks an order that would 10 provide him with 11 records. 12 satisfied 13 motion, despite having been told about this standard in past 14 orders. This the his physical motion was manifest therapy denied injustice records because standard and medical Plaintiff has not applicable to the See ECF Nos. 225, 275, 286, 287. 15 Additionally, as ECF No. Plaintiff third conclusory 18 commencement date without providing any explanation justifying 19 such 20 “immediate[] 21 Centinela] 22 located] . . . [or for] all five boxes . . . [to] be sent [to 23 California State Prison in Sacramento] immediately.” 24 23, 2:1–4. 25 attorney 26 State Prison in Centinela to transfer two boxes of his legal 27 materials to the California State Prison in Sacramento, but that 28 the transferred materials were not the materials Plaintiff needs continuance, and transfer where all “continuance Plaintiff back of Plaintiff motion 17 the following: a docketed for the in 16 assertion 298, seeks to seeks a court [California] [his] . . . of [l]egal makes [the] order State a trial” for his Prison [in material[s] [are Id. 1:20– Plaintiff explains in this motion that Defendants’ coordinated with correctional 7 officers at California 1 for the instant case. 2 these matters warrant judicial decision; therefore, this motion 3 is denied. 4 5 For the Id. 1:4–14. stated Plaintiff has not shown that reasons, Plaintiff’s three motions, docketed as ECF Nos. 291, 296, and 298, are denied. 6 The remaining motion was raised by the District Judge 7 in the Supplement to the Pretrial Order, in which defendants were 8 provided notice to “file a supplemental pretrial statement . . . 9 succinctly setting forth each bona fide affirmative defense[] 10 that each Defendant 11 ultimate facts on which each affirmative defense is based” and a 12 warning that failure to do so could result in “an affirmative 13 defense . . . be[ing] dismissed sua sponte.” 14 Defendants’ following two affirmative defenses will be dismissed 15 because 16 defense with “ultimate facts” showing the existence of viable 17 defenses: Plaintiff’s claims barred by his failure to exhaust 18 administrative 19 principle that the United States Supreme Court enunciated in Heck 20 v. 21 Pretrial 22 support for each affirmative defense. 23 Stmt., ECF No. 209. 24 facts 25 remedies 26 courses 27 Defendants simply make the conclusory assertion that Plaintiff 28 failed of Defendants’ Humphrey, remedies 512 evidence were of to failed exhaust trial to (1994). to in the PO, each claims the the affirmative barred Defendants’ show and Supp. to PO 2:2-8. support Plaintiff’s 477 by the Supplemental existence of factual Defs.’ Supp. to Pretrial Specifically, Defendants do not present concerning available action for failure and U.S. Statement or preserved to Plaintiff what, Plaintiff took administrative 8 or if or did remedies. any, administrative what administrative not take; Since rather, Defendants 1 failed to satisfy their burden of stating facts supporting the 2 existence of 3 Plaintiff “did 4 affirmative defense is dismissed. 5 1162, 1172 (9th Cir. 2014) (holding “the defendant’s burden is to 6 prove that there was an available administrative remedy, and that 7 the prisoner did not exhaust that available remedy”). 8 Defendants provide facts in their Supplemental Pretrial Statement 9 supporting their affirmative defense that Plaintiff’s claims are 10 barred by the principle enunciated in the United States Supreme 11 Court case Heck v. Humphrey, 512 U.S. 477 (1994).2 12 fail 13 [instant] civil rights action . . . challeng[es] the legality of 14 his conviction, [sentence or prison disciplinary hearing], so 15 that his victory would . . . render [his] conviction or sentence 16 [or prison disciplinary hearing] invalid.” 17 477; 18 (applying the principle in Heck to prison disciplinary hearings 19 and holding that a prisoner’s “allegations of deceit and bias on 20 the part of the [prison disciplinary hearing] decisionmaker that 21 necessarily imply the invalidity of the punishment imposed, is 22 not 23 evidence 24 Defendant 25 2 26 27 28 to see “an not provide also cognizable that used available exhaust facts Edwards under a administrative that evincing v. jury’s finding excessive force that remedy,” available and this See Albino v. Baca, 747 F.3d that Balisok, § 1983”). remedy” 520 or Defendants “[P]laintiff[’s] 641, have Plaintiff’s failed . . . Heck, 512 U.S. at U.S. Defendants in Nor did to 648 (1997) provided favor that intervene no a in Defendants provided a subsequent filing concerning this defense in their Trial Brief, ECF No. 255, more than eight months after the District Judge’s deadline for providing “ultimate facts,” prescribed in the Supplement to the Pretrial Order. Defendants’ Trial Brief contains some facts in support of this affirmative defense that were not included in response to that Order; however, these facts are not sufficient to show that this is a viable affirmative defense. 9 1 protecting against another’s excessive force would render invalid 2 any disciplinary sanction Plaintiff received regarding an earlier 3 food tray incident involved in the instant civil rights lawsuit. 4 Therefore, Defendants’ affirmative defense asserted under Heck is 5 dismissed. 6 For stated failed Defendants’ 8 administrative remedies and that Plaintiff’s claims are barred 9 under the principle explained in Heck are dismissed. IT IS SO ORDERED. Dated: September 27, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 to exhaust affirmative defenses 11 Plaintiff’s reasons, 7 10 that the available 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VOIR DIRE 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 VERNON WAYNE MCNEAL, 8 9 10 No. 2:05-cv-0441-GEB Plaintiff, v. VOIR DIRE EVERT, et al., 11 Defendants. 12 1. 13 Ms. Furstenau, please administer the oath to the 14 panel. Good morning, and welcome to the United States District 15 Court. Thank you for both your presence and your anticipated 16 cooperation in the questioning process we are about to begin. 17 You are performing an important function in our legal system. 18 The court personnel who will assist me in this trial 19 are on the platform below me. 20 Furstenau. 21 Next to her is the Certified Court Reporter. 22 2. The Courtroom Deputy is Shani She is on the platform below me on my left side. The Jury Administrator has already randomly 23 selected potential jurors and placed their names on a sheet that 24 has been provided to each party. 25 numerical sequence in which they were randomly selected, and each 26 juror has been placed in his or her randomly-selected seat, and 27 has a large laminated card showing the number of his or her 28 random selection. 1 The names are listed in the 1 3. I will ask a series of questions to the jurors as 2 a group. If you have a response, please raise your hand or the 3 number you have been given, which reflects the order in which you 4 were randomly selected to be considered for service as a juror on 5 this 6 respond in accordance with the numerical order in which you are 7 seated, with the juror having the lowest number responding first. 8 If no juror raises his or her hand, I will simply state "no 9 response" for the record and then ask the next question. case. Generally, you will be given an opportunity to If you 10 know it is your turn to respond to a question, you may respond 11 before I call your name by stating the number on the laminated 12 card you have. 13 I am about to ask you questions intended to provide the 14 parties with information about each prospective juror, so that 15 each side is in a better position to select individuals to serve 16 as jurors. 17 4. This lawsuit concerns Plaintiff’s allegations that 18 each Defendant used excessive force against Plaintiff and/or 19 failed to prevent use of that force. 20 alleges that excessive force was applied when he was escorted 21 from a prison program office to a holding cell. Specifically, Plaintiff 22 Is there anything about the allegations which might 23 interfere with your ability to be a fair and impartial juror in 24 this case? 25 5. A party estimated that it may take three days to 26 complete the evidence and closing argument portion of the trial. 27 A trial day is scheduled to begin at 9:00 a.m. and usually ends 28 around 4:30 p.m. As soon as you commence jury deliberations, you 2 1 will be expected to deliberate as necessary during these hours, 2 but not on the weekends, until you complete your deliberations. 3 Will any of you find it difficult or impossible to participate as 4 a juror in the trial? 5 6. Each party may now make desired introductions, 6 including the name of any witness who may testify during the 7 trial. 8 Do you know any individual just named? 9 7. Do you have any belief or feeling towards any of 10 the parties, attorneys, or witnesses that might be regarded as a 11 bias or prejudice for or against any of them? 12 13 14 8. Is there any member of the panel who has a problem that would make it difficult to serve as juror in this case? 9. 15 Have you ever served as a juror before? i. Please state the the without 17 During the trial, each result case of reached, and, whether the jury reached a verdict. 10. the of 16 18 stating nature you will state have to 19 determine which witnesses are telling the truth. 20 your hand if you are unwilling or not comfortable judging a 21 witness’s credibility. 22 11. 23 24 Please raise Is there any reason why you could not be fair and impartial to both sides in this case? 12. Would 25 correctional 26 tend 28 13. correctional just to because believe the the witness testimony is or of a was a correctional officer? 27 officer you Would you tend not to believe the testimony of a officer just because 3 the witness is or was a 1 correctional officer? 2 3 14. by a peace officer? 4 5 15. 16. Do you have any close relative or friend employed as a law enforcement officer or correctional officer? 8 9 Have you or any close relative or friend ever been incarcerated in jail or prison? 6 7 Have you or any close relative ever been arrested 17. Plaintiff Plaintiff will present his case first. has presented his case will Only after Defendants have an 10 opportunity to present their side of the case. 11 hand 12 decisions about the evidence until after all the evidence has 13 been presented by both sides and I have instructed you regarding 14 the law in this case. if 15 you 18. cannot agree to keep an open Please raise your mind and make no At the close of this case, I will instruct you on 16 the law. 17 follow my instructions on the law. 18 Please raise your hand if you think you will accept and 19. Is there anything we have not discussed that you 19 believe could have a bearing on your ability to be a fair and 20 impartial 21 participant would desire to know? 22 juror 20. in this case, or that you suspect a trial My deputy clerk will give the juror in seat number 23 one a sheet on which there are questions that I want each of you 24 to answer. 25 you answer the questions. Please pass the sheet to the juror next to you after 26 Please state: 27 a. your juror seat number; 28 b. your name and educational background; 4 1 c. 2 the educational background of any person residing with you; 3 d. your present and former occupations; and 4 e. the 5 present and former person residing with you. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 occupations of any 1 2 3 4 5 6 INITIAL JURY INSTRUCTIONS 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 1 INSTRUCTION NO. 1 2 Ladies and gentlemen: you are now the jury in this 3 case. 4 infer from these instructions or from anything I may say or do as 5 indicating that I have an opinion regarding the evidence or what 6 your verdict should be. 7 It is my duty to instruct you on the law. You must not It is your duty to find the facts from all the evidence 8 in the case. 9 to you. To those facts you will apply the law as I give it You must follow the law as I give it to you whether you 10 agree with it or not. And you must not be influenced by any 11 personal likes or dislikes, opinions, prejudices, or sympathy. 12 That means that you must decide the case solely on the evidence 13 before you. 14 In following my instructions, you must follow all of 15 them and not single out some and ignore others; they are all 16 important. 17 18 19 20 21 22 23 24 25 26 27 28 1 1 INSTRUCTION NO. 2 2 This is not a lawsuit against the State of California 3 or 4 Rehabilitation 5 Corrections and Rehabilitation. 6 against the or California Department any of prison the of Corrections California Department This is a lawsuit against each Defendant. and of Whether the 7 State of California would or would not reimburse a Defendant is 8 irrelevant and should not be considered. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 3 INSTRUCTION NO. 3 The evidence you are to consider in deciding what the facts are consists of: 4 the sworn testimony of any witness; 5 the exhibits which are received in evidence; and 6 any facts to which the parties agree. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 INSTRUCTION NO. 4 2 An order issued before trial finding the following 3 facts to be undisputed; you must therefore treat these facts as 4 having been proved: 5  At all times relevant to this case, Plaintiff was in 6 the custody of the California Department of Corrections 7 and Rehabilitation at High Desert State Prison, housed 8 in Facility C, Building Seven, Cell Number 221. 9  At all times relevant to this case, Defendants Leckie, 10 Ervin, 11 California 12 State Prison in Facility C, Building Seven. 13  14 15 On Chatham, July and Van Department 11, 2004, Leer of were Corrections Defendant Van employed at Leer by High the Desert interviewed Plaintiff in the Facility C program office.  Following the interview, Defendant Van Leer told 16 Defendant Leckie and another correctional officer to 17 take Plaintiff to a holding cell. 18  Defendant Leckie and another correctional officer told 19 Plaintiff to go to his knees and then forced Plaintiff 20 to the ground on the way to the holding cell. 21  22 23 Defendants Chatham and Ervin assisted in restraining Plaintiff.  Plaintiff was placed in the holding cell in a “triangle 24 retention 25 secured to the door of the cell. 26  27 28 Plaintiff device” asked or “handcuff Defendant Van retention Leer to device” remove the retention device and loosen the handcuffs.  Plaintiff slumped over or passed out in the holding 4 1 2 cell.  3 4 Defendant Van Leer called medical assistant Barton to examine Plaintiff.  Plaintiff sustained scratches or abrasions to both 5 knees and swelling in his wrist as a result of the 6 incident. 7 It is for you to determine the effect or weight to be given to 8 these facts. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 INSTRUCTION NO. 5 2 Certain things are not evidence, 3 consider them in deciding what the facts are. 4 and you may not for you: 5 I will list them Arguments and statements by parties are not evidence 6 unless offered 7 Defendants’ lawyers may say in an opening statement, in a closing 8 argument, and at other times is intended to help you interpret 9 the evidence, but it is not evidence. 11 lawyers 12 in the their way What Plaintiff and If the facts as you arguments, your memory of them controls. them from testimony. remember state differ sworn 10 13 them in Plaintiff opening and statements Defendants’ or closing Questions and objections by Plaintiff and Defendants’ 14 lawyers are not evidence. Litigants may object when they believe 15 a question is improper under the rules of evidence. 16 not be influenced by the objection or by the court’s ruling on 17 it. You should 18 Testimony that may be excluded or stricken, or that you 19 are instructed to disregard, is not evidence and must not be 20 considered. 21 received only for a limited purpose; when I give a limiting 22 instruction, you must follow it. 23 In addition, sometimes testimony and exhibits may be Finally, anything you may have seen or heard when Court 24 was not in session is not evidence. 25 solely on the evidence received at the trial. 26 27 28 6 You are to decide the case 1 INSTRUCTION NO. 6 2 Evidence is direct may be proof direct of a or fact, circumstantial. such as testimony Direct 3 evidence by a 4 witness about what that witness personally saw or heard or did. 5 Circumstantial evidence is proof of one or more facts from which 6 you could find another fact. 7 evidence. 8 given to either direct or circumstantial evidence. 9 to decide how much weight to give to any evidence. You should consider both kinds of The law makes no distinction between the weight to be 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 It is for you 1 INSTRUCTION NO. 7 2 There are rules of evidence that control what can be 3 received into evidence. 4 himself asks a question or offers an exhibit into evidence and 5 the other party thinks that it is not permitted by the rules of 6 evidence, the party who questions the admissibility may object. 7 If I overrule the objection, the question may be answered or the 8 exhibit the question 9 cannot be answered, and the exhibit cannot be received. Whenever received. an objection I sustain to a the objection, 10 I 11 question and must not guess what the answer might have been. 12 sustain If When a lawyer or a party representing question, you must ignore the Sometimes I may order that evidence be stricken from 13 the record and that you disregard or ignore the evidence. 14 means that when you are deciding the case, you must not consider 15 the evidence that I told you to disregard. 16 17 18 19 20 21 22 23 24 25 26 27 28 8 That 1 2 INSTRUCTION NO. 8 From time to time during the trial, it may become 3 necessary for me to talk with the parties out of the hearing of 4 the jury, either by having a conference at the bench when the 5 jury is present in the courtroom, or by calling a recess. 6 understand that while you are waiting, we are working. 7 purpose of these conferences is not to keep relevant information 8 from you, but to decide how certain evidence is to be treated 9 under the rules of evidence and to avoid confusion and error. 10 Please The Of course, we will do what we can to keep the number 11 and length of these conferences to a minimum. 12 grant a party’s request for a conference. 13 granting or denying a request for a conference as any indication 14 of my opinion of the case or of what your verdict should be. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 I may not always Do not consider my 1 INSTRUCTION NO. 9 2 In deciding the facts in this case, you may have to 3 decide which testimony to believe and which testimony not to 4 believe. 5 it, or none of it. 6 on the number of witnesses who testify about it. 7 8 9 10 You may believe everything a witness says, or part of Proof of a fact does not necessarily depend 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; 11 the witness’s memory; 12 the witness’s manner while testifying; 13 the witness’s interest in the outcome of the case and 14 15 16 17 18 19 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 factors that bear on believability. 20 21 22 23 24 25 26 27 28 10 1 INSTRUCTION NO. 10 2 3 I will now say a few words about your conduct as jurors. 4 You are not to discuss this case with anyone, including 5 members of your family, people involved in the trial, or anyone 6 else; this includes discussing the case in person, in writing, by 7 phone or electronic means, via email, via text messaging, or by 8 any 9 discuss the case with you. other to medium. 10 talk you 11 Nor about the are you allowed to permit others to If anyone approaches you and tries to case, please let me know about it immediately; 12 Do not read or listen to any news stories, articles, 13 radio, television, or online reports about the case or about 14 anyone who has anything to do with it; 15 Do not do any research, such as consulting 16 dictionaries, searching the Internet or using other reference 17 materials, and do not make any investigation about the case on 18 your own; 19 20 If you need to communicate with me simply give a signed note to the Court Security Officer to give to me; 21 Do not make up your mind about what the verdict should 22 be until after you have gone to the jury room to decide the case 23 and you and your fellow jurors have discussed the evidence. Keep 24 an open mind until then; and 25 Finally, until this case is given to you for your 26 deliberation and verdict, you are not to discuss the case with 27 your fellow jurors. 28 11 1 INSTRUCTION NO. 11 2 During deliberations, you will have 3 decision based on what you recall of the evidence. 4 have 5 to make your attention to the testimony as it is given. a transcript of the trial. I urge you You will not to pay close 6 If at any time you cannot hear or see the testimony, 7 evidence, questions or arguments, let me know so that I can 8 correct the problem. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 1 INSTRUCTION NO. 12 2 If you wish, you may take notes to help you remember 3 the evidence. 4 until you and your fellow jurors go to the jury room to decide 5 the 6 attentive. 7 be left on the seat you now occupy. 8 They will be destroyed at the conclusion of the case. case. 9 If you do take notes, please keep them to yourself Do not let note-taking distract you from being When you leave court for recesses, your notes shall No one will read your notes. Whether or not you take notes, you should rely on your 10 own memory of the evidence. 11 memory. 12 Notes those of your fellow jurors. are only to assist your You should not be overly influenced by your notes or 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 1 INSTRUCTION NO. 13 2 The next phase of trial will now begin. 3 side may make an opening statement. 4 evidence. 5 that 6 First, each required to make an opening statement. It is simply an outline to help you understand what party 7 An opening statement is not expects the evidence will show. A party is Plaintiff will then present evidence, including witness 8 testimony, and Defendants may cross-examine any witness. 9 Defendants 10 not may present witnesses, and Plaintiff may Then cross- examine. 11 After the evidence has been presented, I will instruct 12 you 13 Defendants’ lawyers will make closing arguments. 14 15 on the law that applies to the case, and Plaintiff and After that, you will go to the jury room to deliberate on your verdict. 16 17 18 19 20 21 22 23 24 25 26 27 28 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLOSING JURY INSTRUCTIONS 1 INSTRUCTION NO. 1 2 Members of the jury, now that you have heard all the 3 evidence and the arguments by Plaintiff and Defendants’ lawyers, 4 it is my duty to instruct you on the law which applies to this 5 case. 6 instructions, which you may take with you into the jury room for 7 your use if you desire. 8 9 Each of you now possesses a copy of these jury 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 10 to you. You must follow the law as I give it to you whether you 11 agree with it or not. 12 personal likes or dislikes, opinions, prejudices or sympathy. 13 That means that you must decide the case solely on the evidence 14 before you and according to the law. 15 to do so at the beginning of the case. And you must not be influenced by any You took an oath promising 16 In following my instructions, you must follow all of 17 the instructions and not single out some and ignore others; they 18 are all equally important. 19 instructions or into anything I may have said or done that may be 20 viewed as a suggestion as to what verdict you should return – 21 that is a matter entirely up to you. And you must not read into these 22 23 24 25 26 27 28 1 1 INSTRUCTION NO. 2 2 In deciding the facts in this case, you may have to 3 decide which testimony to believe and which testimony not to 4 believe. 5 it, or none of it. 6 on the number of witnesses who testify about it. 7 8 9 10 You may believe everything a witness says, or part of Proof of a fact does not necessarily depend 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; 11 the witness’s memory; 12 the witness’s manner while testifying; 13 the witness’s interest in the outcome of the case and 14 15 16 17 18 19 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 factors that bear on believability. 20 21 22 23 24 25 26 27 28 2 1 INSTRUCTION NO. 3 2 The evidence that a witness has a felony conviction may 3 be considered, along with all other evidence, in deciding whether 4 or not to believe the witness and how much weight to give to the 5 testimony of the witness and for no other purpose. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 INSTRUCTION NO. 4 2 Plaintiff alleges Defendants Leckie, Ervin, and Chatham 3 each violated his right under the Eighth Amendment to the United 4 States Constitution by applying excessive force against him when 5 said Defendant escorted Plaintiff from a program office, in the 6 federal prison where Plaintiff was housed, to a holding cell. 7 Under the Eighth Amendment, a convicted prisoner has 8 the right to be free from “cruel and unusual punishments.” 9 prove that a Defendant deprived Plaintiff of this To Eighth 10 Amendment right, Plaintiff has the burden of proving each of the 11 following elements by a preponderance of the evidence: 12 First, the Defendant used excessive and unnecessary 13 force when escorting Plaintiff from a program office to a holding 14 cell; 15 16 Second, the Defendant acted maliciously and sadistically for the purpose of causing harm; and 17 Third, To the acts prove of that a the Defendant Defendant’s caused act caused harm to harm to 18 Plaintiff. 19 Plaintiff, Plaintiff must show that the acts were so closely 20 related to the deprivation of Plaintiff’s rights as to be the 21 moving force behind the ultimate injury. 22 In determining whether a Defendant used excessive force 23 in this case, consider the need to use force, the relationship 24 between that need and the amount of force used, whether the 25 Defendant applied the force in a good faith effort to maintain or 26 restore 27 Defendant, any efforts made to temper the severity of a forceful 28 response, and the extent of the injury suffered. discipline, any threat 4 reasonably perceived by the In considering 1 these factors, you should give deference to prison officials in 2 the adoption and execution of policies and practices that in 3 their judgment are needed to preserve discipline and to maintain 4 internal security in a prison. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 1 INSTRUCTION NO. 5 2 Plaintiff alleges his under right Defendants the Eighth Chatham Amendment and to Van the Leer 3 violated United 4 States Constitution when they failed to intervene to stop the use 5 of excessive force inflicted on Plaintiff. 6 To prove a Defendant failed to intervene to protect 7 Plaintiff, Plaintiff must prove each of the following elements by 8 a preponderance of the evidence: 9 First, Plaintiff was deprived of his right under the 10 Eighth 11 correctional officers employed excessive force against him; 12 Amendment to the United States Constitution when Second, Defendants Chatham and Van Leer had a duty to 13 intervene. 14 to intervene to prevent the use of excessive force by a fellow 15 correctional officer; 16 17 18 I instruct you that a correctional officer has a duty Third, said Defendant had a reasonable opportunity to intervene; and Fourth, said Defendant failed to intervene. 19 20 21 22 23 24 25 26 27 28 6 1 INSTRUCTION NO. 6 2 When a party has the burden of proof on any claim by a 3 preponderance of the evidence, it means you must be persuaded by 4 the evidence that the claim is more probably true than not true. 5 6 You should base your decision on all of the evidence, regardless of which party presented it. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 1 INSTRUCTION NO. 7 2 It is the duty of the Court to instruct you about the 3 measure of damages. 4 does not mean to suggest for which party your verdict should be 5 rendered. 6 If you By instructing you on damages, the Court find for Plaintiff, you must determine 7 Plaintiff’s damages. 8 by a preponderance of the evidence. 9 money that will reasonably and fairly compensate Plaintiff for you find was caused by Damages means the amount of 10 any 11 consider the nature and extent of the injuries, including any 12 physical, mental, or emotional pain and suffering experienced. 13 injury Plaintiff has the burden of proving damages a Defendant. You should It is for you to determine what damages, if any, have 14 been proved. 15 emotional pain, you must also find he suffered a physical injury 16 that is more than de minimis before you may award compensatory 17 damages for that mental or emotional pain. 18 is one that is trifling, negligible, or insignificant. 19 20 However, if you find Plaintiff suffered mental or A de minimis injury Your award must be based upon evidence and not upon speculation, guesswork or conjecture. 21 22 23 24 25 26 27 28 8 1 INSTRUCTION NO. 8 2 Any award of compensatory damages must be reasonable. 3 If you should find that Plaintiff is entitled to a verdict, you 4 may award him only such compensatory damages as will reasonably 5 compensate him for such injury and damage as you find, from a 6 preponderance of the evidence in the case that he has sustained 7 as a result of a Defendant’s conduct. 8 You are not permitted to award speculative damages. 9 So, you are not to include in any verdict compensation for any 10 prospective loss which, although 11 certain to occur in the future. 12 Plaintiff is entitled to a verdict, in fixing the amount of your 13 award you may not include in, or add to an otherwise just award, 14 any sum for the purpose of punishing a Defendant, or to serve as 15 an example or warning for others. 16 17 18 19 20 21 22 23 24 25 26 27 28 9 possible, is not reasonably If you should find that the 1 INSTRUCTION NO. 9 2 The law which applies to this case authorizes an award 3 of nominal damages. 4 Plaintiff 5 instructions, you must award nominal damages. 6 may not exceed one dollar. has If you find for Plaintiff but you find that failed to prove 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 damages as defined in these Nominal damages 1 INSTRUCTION NO. 10 2 If you find for Plaintiff, you may, but are not 3 required to, award punitive damages. 4 damages 5 defendant and to deter a defendant and others from committing 6 similar acts in the future. 7 are not to Plaintiff compensate has the a The purposes of punitive plaintiff, burden of but proving to that punish a punitive 8 damages should be awarded, and the amount, by a preponderance of 9 the evidence. 10 that 11 reckless disregard of Plaintiff’s rights. 12 if it is accompanied by ill will, or spite, or if it is for the 13 purpose of injuring another. 14 Plaintiff’s 15 complete 16 Defendant acts in the face of a perceived risk that its actions 17 will violate Plaintiff’s rights under federal law. 18 omission is oppressive if the person who performs it injures or 19 damages 20 unnecessary harshness or severity, such as by the misuse or abuse 21 of authority or power or by the taking advantage of some weakness 22 or disability or misfortune of Plaintiff. 23 24 a You may award punitive damages only if you find Defendant’s rights conduct if, indifference or otherwise Punitive was the or in Conduct is malicious circumstances, Plaintiff’s violates damages oppressive Conduct is in reckless disregard of under to malicious, may the be safety rights awarded or of even it rights, if 26 27 28 11 or a An act or Plaintiff Plaintiff only nominal, and not compensatory, damages. 25 reflects you with award 1 2 INSTRUCTION NO. 11 When you begin your deliberations, you should elect one 3 member of the jury as your presiding juror. 4 preside over the deliberations and speak for you here in Court. 5 That person will You will then discuss the case with your fellow jurors 6 to reach agreement if you can do so. 7 Your verdict must be unanimous. 8 Each of you must decide the case for yourself, but you 9 should do so only after you have considered all of the evidence, 10 discussed it fully with the other jurors, and listened to the 11 views of your fellow jurors. 12 Do not be afraid to change your opinion 13 discussion persuades you that you should. 14 if the But, do not come to a decision simply because other jurors think it is right. 15 It is important that you attempt to reach a unanimous 16 verdict but, of course, only if each of you can do so after 17 having made your own conscientious decision. 18 honest belief about the weight and effect of the evidence simply 19 to reach a verdict. 20 21 22 23 24 25 26 27 28 12 Do not change an 1 2 INSTRUCTION NO. 12 If it becomes necessary during your deliberations to 3 communicate with me, you may send a note through the Court 4 Security Officer, signed by any one or more of you. 5 the jury should ever attempt to communicate with me except by a 6 signed writing, and I will respond to the jury concerning the 7 case only in writing or here in open court. 8 question, I will consult with the parties before answering it, 9 which may take some time. No member of If you send out a You may continue your deliberations 10 while waiting for the answer to any question. 11 tell anyone — including me — how the jury stands, numerically or 12 otherwise, on any question submitted to you, until after you have 13 reached a unanimous verdict or have been discharged. 14 disclose any vote count in any note to the court. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 You are not to Do not 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERDICT FORM AND ACCOMPANYING SPECIAL INTERROGATORIES 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 VERNON WAYNE MCNEAL, Plaintiff, 7 8 9 No. 2:05-cv-0441-GEB VERDICT FORM v. EVERT, et al., Defendants. 10 11 12 13 14 We, the jury, unanimously find the following verdict on the submitted questions: QUESTION 1: Does Plaintiff prevail on his Eighth his Eighth Amendment excessive force claim against Defendant? 15 Answer: 16 DEFENDANT F. LECKIE ____ YES ____ NO 17 DEFENDANT A. ERVIN ____ YES ____ NO 18 DEFENDANT C. CHATHAM ____ YES ____ NO 19 Proceed to Question 2. 20 21 22 QUESTION 2: Does Plaintiff 25 on Amendment failure to intervene claim against Defendant? Answer: 23 24 prevail DEFENDANT C. CHATHAM ____ YES ____ NO DEFENDANT D. VAN VEER ____ YES ____ NO 26 If you answered “No” to all Defendants in Questions 1 and 2, then 27 sign, date, and return this verdict form to the Court. 28 answered “YES” in Question 1 and/or 2, then proceed to Question 3 1 If you 1 concerning the “YES” response. 2 QUESTION 3: 3 4 What amount of compensatory damages do you award to Plaintiff? Amount: 5 DEFENDANT F. LECKIE $________________ 6 DEFENDANT A. ERVIN $________________ 7 DEFENDANT C. CHATHAM $________________ 8 DEFENDANT D. VAN VEER $________________ TOTAL 9 10 11 $________________ If you entered an amount more than $0, then proceed to Question 5. If you entered $0, then proceed to Question 4. 12 13 14 15 QUESTION 4: What amount of nominal damages do you award to Plaintiff, which may not exceed one dollar? Amount: DEFENDANT F. LECKIE $________________ DEFENDANT A. ERVIN $________________ 17 DEFENDANT C. CHATHAM $________________ 18 DEFENDANT D. VAN VEER $________________ 16 TOTAL 19 $________________ 20 21 22 23 Proceed to Question 5. QUESTION 5: Do you find that punitive damages are awarded to Plaintiff against Defendant? Answer: 24 25 26 27 DEFENDANT F. LECKIE ____ YES ____ NO DEFENDANT A. ERVIN ____ YES ____ NO DEFENDANT C. CHATHAM ____ YES ____ NO DEFENDANT D. VAN VEER ____ YES ____ NO 28 2 1 Proceed to answer the remaining questions. 2 QUESTION 6: 3 4 Did Plaintiff dump or knock a dinner tray on the floor when Defendant Ervin attempted to serve him and his cell mate dinner through the food port? 5 Yes _____ No _____ 6 7 QUESTION 7: Did Plaintiff reach through the food 8 port and knock the second food tray out of Defendant Ervin’s 9 hand? 10 Yes _____ No _____ 11 12 QUESTION 8: Did Plaintiff attempt to hit or strike Defendant Ervin when he stuck his hand through the food port? 13 Yes _____ No _____ 14 15 QUESTION 9: Before being escorted to the Program 16 Office to be interviewed about the incident that occurred at 17 dinner 18 19 20 21 22 time, did Plaintiff initially refuse to submit to handcuffs? Yes _____ No _____ QUESTION 10: Did Plaintiff encourage his cell mate to also refuse to submit to handcuffs? Yes _____ No _____ 23 24 25 26 27 QUESTION 11: Once in the program office, did Plaintiff provide any detailed information regarding the food tray incident to Defendant Van Leer? Yes _____ No _____ 28 3 1 2 3 QUESTION 12: Was Plaintiff cooperative with Defendant Van Leer during the interview? Yes _____ No _____ 4 5 QUESTION 13: Did Defendant Van Leer order Plaintiff’s removal for his failure to cooperate in the interview process? 6 7 8 9 10 11 Yes _____ No _____ QUESTION 14: Was Plaintiff ordered to stand to be escorted out of the Program Office when Defendant Van Leer ended the interview? Yes _____ No _____ 12 13 QUESTION 15: Did Plaintiff initially refuse to stand up from the chair he was seated in during the interview? 14 15 16 17 18 Yes _____ No _____ QUESTION 16: Did Plaintiff wrap his legs around the chair legs in a refusal to stand up? Yes _____ No _____ 19 20 QUESTION 17: Did Plaintiff eventually comply and stand up to be escorted out of the office? 21 22 23 24 25 Yes _____ No _____ QUESTION 18: Was Plaintiff compliant with the escort to the holding cell? Yes _____ No _____ 26 27 28 QUESTION 19: Did Plaintiff officers’ escort to the holding cell? 4 attempt to thwart 1 2 3 Yes _____ No _____ QUESTION 20: Did Plaintiff stop the escort by failing to continue to walk forward? 4 5 6 7 8 Yes _____ No _____ QUESTION 21: Did Plaintiff stiffen his body in an attempt to thwart Defendant Leckie and another officer’s escort? Yes _____ No _____ 9 10 QUESTION 22: Was Plaintiff ordered to kneel down so leg restraints could be applied? 11 12 13 14 15 Yes _____ No _____ QUESTION 23: Did Plaintiff comply with officer orders to kneel down? Yes _____ No _____ 16 17 18 19 20 21 22 QUESTION 24: Did Plaintiff drop his body weight and force Defendant Leckie and another officer to hold him up? Yes _____ No _____ QUESTION 25: Did Defendant Leckie and another officer slide Plaintiff to the ground once he dropped his body weight? Yes _____ No _____ 23 24 25 26 27 QUESTION 26: Once on the ground, did Plaintiff struggle with officers? Yes _____ No _____ QUESTION 27: Did Plaintiff kick or move his legs in 28 5 1 an aggressive manner? 2 Yes _____ No _____ 3 QUESTION 28: 4 5 leg restraints were applied, did Plaintiff follow order to stand up? Yes _____ No _____ 6 7 8 Once QUESTION 29: After in a standing position, did Plaintiff follow orders to enter the holding cell? 9 Yes _____ No _____ 10 QUESTION 30: 11 12 Plaintiff’s handcuffs after Plaintiff requested him to do so? Yes _____ No _____ 13 14 15 Did Defendant Van Leer attempt to loosen QUESTION 31: Did Defendant Van Leer deny Plaintiff’s request to loosen his handcuffs? 16 Yes _____ No _____ 17 QUESTION 32: 18 19 Defendant Van Leer ignore Plaintiff’s request to loosen his handcuffs? Yes _____ No _____ 20 21 Did (Sign, date, and return this verdict form to the Court.) 22 23 24 ___________________________ ___________________________ 25 DATED PRESIDING JUROR 26 27 28 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PUNITIVE DAMAGES JURY INSTRUCTION AND PUNITIVE DAMAGES VERDICT FORM, IF NECESSARY 1 2 INSTRUCTION NO. 1 Having found that punitive damages are appropriate, you 3 must use reason in setting the amount. 4 should be in an amount sufficient to fulfill their purposes but 5 should not reflect bias, prejudice, or sympathy toward the party. 6 In considering the amount of any punitive damages, consider the 7 degree of reprehensibility of each Defendant’s conduct. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Punitive damages, if any, 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 VERNON WAYNE MCNEAL, 8 9 10 11 No. 2:05-cv-0441-GEB Plaintiff, v. PUNITIVE DAMAGES VERDICT FORM EVERT, et al., Defendants. 12 13 14 15 16 We, the jury, unanimously find the following verdict on the submitted question: QUESTION 1: What amount of punitive damages do you assess against Defendant? 17 Amount: 18 DEFENDANT F. LECKIE $________________ 19 DEFENDANT A. ERVIN $________________ 20 DEFENDANT C. CHATHAM $________________ 21 DEFENDANT D. VAN VEER $________________ 22 TOTAL $________________ 23 24 (Sign, date, and return this verdict form to the Court.) 25 26 27 ___________________________ DATED ___________________________ PRESIDING JUROR 28 1

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