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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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

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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

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20
21
22
23
24
25
26
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10

to

exhaust

affirmative

defenses

11

Plaintiff’s

reasons,

7

10

that

the

available

1
2
3
4
5
6
7
8
9
10
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12
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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
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5

occupations

of

any

1
2
3
4
5
6

INITIAL JURY INSTRUCTIONS

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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.

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18
19
20
21
22
23
24
25
26
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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.

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10
11
12
13
14
15
16
17
18
19
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21
22
23
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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.

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8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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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.

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10
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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.

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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

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11
12
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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.

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17
18
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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.

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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.

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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.

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10
11
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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

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14
15
16
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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.

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14

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2
3
4
5
6
7
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10
11
12
13
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15
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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
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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.

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21
22
23
24
25
26
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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.

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7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
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24
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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
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20
21
22
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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.

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20
21
22
23
24
25
26
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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
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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
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INSTRUCTION NO. 11
When you begin your deliberations, you should elect one

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member of the jury as your presiding juror.

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preside over the deliberations and speak for you here in Court.

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That person will

You will then discuss the case with your fellow jurors

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to reach agreement if you can do so.

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Your verdict must be

unanimous.

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Each of you must decide the case for yourself, but you

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should do so only after you have considered all of the evidence,

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discussed it fully with the other jurors, and listened to the

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views of your fellow jurors.

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Do

not

be

afraid

to

change

your

opinion

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discussion persuades you that you should.

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if

the

But, do not come to a

decision simply because other jurors think it is right.

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It is important that you attempt to reach a unanimous

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verdict but, of course, only if each of you can do so after

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having made your own conscientious decision.

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honest belief about the weight and effect of the evidence simply

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to reach a verdict.

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Do not change an

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INSTRUCTION NO. 12
If it becomes necessary during your deliberations to

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communicate

with

me,

you

may

send

a

note

through

the

Court

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Security Officer, signed by any one or more of you.

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the jury should ever attempt to communicate with me except by a

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signed writing, and I will respond to the jury concerning the

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case only in writing or here in open court.

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question, I will consult with the parties before answering it,

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which may take some time.

No member of

If you send out a

You may continue your deliberations

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while waiting for the answer to any question.

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tell anyone — including me — how the jury stands, numerically or

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otherwise, on any question submitted to you, until after you have

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reached a unanimous verdict or have been discharged.

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disclose any vote count in any note to the court.

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You are not to

Do not

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VERDICT FORM AND ACCOMPANYING SPECIAL INTERROGATORIES

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE MCNEAL,
Plaintiff,

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No. 2:05-cv-0441-GEB
VERDICT FORM

v.
EVERT, et al.,
Defendants.

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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?

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Answer:

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DEFENDANT F. LECKIE

____ YES

____ NO

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DEFENDANT A. ERVIN

____ YES

____ NO

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DEFENDANT C. CHATHAM

____ YES

____ NO

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Proceed to Question 2.

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QUESTION 2:

Does

Plaintiff

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on

Amendment failure to intervene claim against Defendant?
Answer:

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prevail

DEFENDANT C. CHATHAM

____ YES

____ NO

DEFENDANT D. VAN VEER

____ YES

____ NO

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If you answered “No” to all Defendants in Questions 1 and 2, then

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sign, date, and return this verdict form to the Court.

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answered “YES” in Question 1 and/or 2, then proceed to Question 3
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If you

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concerning the “YES” response.

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QUESTION 3:

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What amount of compensatory damages do

you award to Plaintiff?
Amount:

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DEFENDANT F. LECKIE

$________________

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DEFENDANT A. ERVIN

$________________

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DEFENDANT C. CHATHAM

$________________

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DEFENDANT D. VAN VEER

$________________

TOTAL

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$________________

If you entered an amount more than $0, then proceed to Question
5.

If you entered $0, then proceed to Question 4.

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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

$________________

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DEFENDANT C. CHATHAM

$________________

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DEFENDANT D. VAN VEER

$________________

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TOTAL

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$________________

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Proceed to Question 5.
QUESTION 5:

Do you find that punitive damages are

awarded to Plaintiff against Defendant?
Answer:

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DEFENDANT F. LECKIE

____ YES

____ NO

DEFENDANT A. ERVIN

____ YES

____ NO

DEFENDANT C. CHATHAM

____ YES

____ NO

DEFENDANT D. VAN VEER

____ YES

____ NO

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Proceed to answer the remaining questions.

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QUESTION 6:

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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?

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Yes _____ No _____

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QUESTION 7:

Did

Plaintiff

reach

through

the

food

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port and knock the second food tray out of Defendant Ervin’s

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hand?

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Yes _____ No _____

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QUESTION 8:

Did Plaintiff attempt to hit or strike

Defendant Ervin when he stuck his hand through the food port?

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Yes _____ No _____

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QUESTION 9:

Before

being

escorted

to

the

Program

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Office to be interviewed about the incident that occurred at

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dinner

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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 _____

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QUESTION 11:

Once

in

the

program

office,

did

Plaintiff provide any detailed information regarding the food
tray incident to Defendant Van Leer?
Yes _____ No _____

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QUESTION 12:

Was Plaintiff cooperative with Defendant

Van Leer during the interview?
Yes _____ No _____

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QUESTION 13:

Did Defendant Van Leer order Plaintiff’s

removal for his failure to cooperate in the interview process?

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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 _____

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QUESTION 15:

Did Plaintiff initially refuse to stand

up from the chair he was seated in during the interview?

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Yes _____ No _____
QUESTION 16:

Did Plaintiff wrap his legs around the

chair legs in a refusal to stand up?
Yes _____ No _____

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QUESTION 17:

Did

Plaintiff

eventually

comply

and

stand up to be escorted out of the office?

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Yes _____ No _____
QUESTION 18:

Was Plaintiff compliant with the escort

to the holding cell?
Yes _____ No _____

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QUESTION 19:

Did

Plaintiff

officers’ escort to the holding cell?

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attempt

to

thwart

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Yes _____ No _____
QUESTION 20:

Did Plaintiff stop the escort by failing

to continue to walk forward?

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Yes _____ No _____
QUESTION 21:

Did

Plaintiff

stiffen

his

body

in

an

attempt to thwart Defendant Leckie and another officer’s escort?
Yes _____ No _____

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QUESTION 22:

Was Plaintiff ordered to kneel down so

leg restraints could be applied?

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Yes _____ No _____
QUESTION 23:

Did Plaintiff comply with officer orders

to kneel down?
Yes _____ No _____

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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 _____

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QUESTION 26:

Once

on

the

ground,

did

Plaintiff

struggle with officers?
Yes _____ No _____
QUESTION 27:

Did Plaintiff kick or move his legs in

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an aggressive manner?

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Yes _____ No _____

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QUESTION 28:

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leg

restraints

were

applied,

did

Plaintiff follow order to stand up?
Yes _____ No _____

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Once

QUESTION 29:

After

in

a

standing

position,

did

Plaintiff follow orders to enter the holding cell?

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Yes _____ No _____

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QUESTION 30:

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Plaintiff’s handcuffs after Plaintiff requested him to do so?
Yes _____ No _____

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Did Defendant Van Leer attempt to loosen

QUESTION 31:

Did Defendant Van Leer deny Plaintiff’s

request to loosen his handcuffs?

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Yes _____ No _____

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QUESTION 32:

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Defendant

Van

Leer

ignore

Plaintiff’s request to loosen his handcuffs?
Yes _____ No _____

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Did

(Sign, date, and return this verdict form to the Court.)

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___________________________

___________________________

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DATED

PRESIDING JUROR

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PUNITIVE DAMAGES JURY INSTRUCTION AND
PUNITIVE DAMAGES VERDICT FORM, IF NECESSARY

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INSTRUCTION NO. 1
Having found that punitive damages are appropriate, you

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must use reason in setting the amount.

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should be in an amount sufficient to fulfill their purposes but

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should not reflect bias, prejudice, or sympathy toward the party.

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In considering the amount of any punitive damages, consider the

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degree of reprehensibility of each Defendant’s conduct.

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Punitive damages, if any,

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE MCNEAL,

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No. 2:05-cv-0441-GEB

Plaintiff,
v.

PUNITIVE DAMAGES VERDICT FORM

EVERT, et al.,
Defendants.

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We, the jury, unanimously find the following verdict on
the submitted question:
QUESTION

1:

What

amount

of

punitive

damages

do

you

assess against Defendant?

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Amount:

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DEFENDANT F. LECKIE

$________________

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DEFENDANT A. ERVIN

$________________

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DEFENDANT C. CHATHAM

$________________

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DEFENDANT D. VAN VEER

$________________

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TOTAL

$________________

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(Sign, date, and return this verdict form to the Court.)

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___________________________
DATED

___________________________
PRESIDING JUROR

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