Golden v. Feudner et al

Filing 93

ORDER re PROPOSED TRIAL DOCUMENTS signed by Judge Garland E. Burrell, Jr on 2/28/12. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Edwin Golden,

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Plaintiff,

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v.

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S. Feudner,

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Defendant.
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2:08-cv-00356-GEB-DAD
PROPOSED TRIAL DOCUMENTS

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Attached

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are

the

Court’s

proposed

voir

dire

questions,

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preliminary jury instructions, closing jury instructions and verdict

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forms.

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practicable.

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A.

Any

proposed

modifications

should

be

submitted

as

soon

as

Proposed Closing Jury Instructions

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In the proposed instructions the Court has attempted to

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eliminate unnecessary language, and to more closely follow the language

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used in the Ninth Circuit Model Civil Jury Instructions and Ninth

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Circuit case law upon which they are based. The goal is to “help the

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jurors to concentrate on the question at hand.”

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

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not include Defendant’s proposed jury instructions Nos. 17 and 18, which

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instruct on 42 U.S.C. § 1983 claims generally, since the Defendant

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states in his Trial Brief that “[t]here is no dispute that [Defendant]

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acted under color of law[,]” and Plaintiff only has one substantive

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claim to be tried.

Achor v. Riverside Golf

The attached instructions do

(Def.’s Trial Brief 3:26-27.) A court should avoid

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instructing jurors in “formal terminology . . . suited more to lawyers

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than to lay deciders” especially in the situation here where it is

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undisputed that Defendant acted under color of law. Achor, 117 F.3d at

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341. Nor is Defendant’s proposed jury instruction No. 19 included, which

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is based upon the Ninth Circuit Model Civil Jury Instruction for

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causation in 1983 actions generally, since Defendant’s proposed jury

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instruction No. 25 includes causation as an element of Plaintiff’s First

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Amendment retaliation claim. Further, the fourth element in Defendant’s

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proposed jury instruction No. 25 has been modified in accordance with

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the Ninth Circuit’s following discussion in Rhodes v. Robinson, 408 F.3d

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559, 567-68, n. 11 (9th Cir. 2005): “If [Plaintiff] had not alleged a

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chilling effect, perhaps his allegations that he suffered harm would

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suffice, since harm that is more than minimal will almost always have a

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chilling effect. Alleging harm and alleging the chilling effect would

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seem under the circumstances to be no more than a nicety.”

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Defendant’s proposed jury instruction No. 2 will not be given

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since portions of the instruction are argumentative as drafted, and the

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Court will provide the venire with an overview of Plaintiff’s claims

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during voir dire. For example, the sixth paragraph of this instruction

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states as follows:

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On Monday June 25, 2007, Officer Feudner conducted
a search in the dorm where Golden was housed
because of suspicions that another inmate housed in
that dorm, who was a known drug trafficker, had
drugs in the dorm.

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Plaintiff disputes Defendant’s motivation in conducting the search of

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his dorm. (Pl.’s Trial Brief, 2:20-3:6.)

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Defendant’s proposed jury instruction No. 6 instructs the jury

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on evidence admitted for a limited purpose. Such an instruction will be

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used only if evidence is admitted for a limited purpose during trial.
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Nor does it appear appropriate to instruct on Defendant’s

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proposed jury instruction No. 23, which is based upon 42 U.S.C. §

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1997e(e).

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by

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facility, for mental or emotional injury suffered while in custody

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without a prior showing of physical injury.” The Ninth Circuit stated in

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Cannell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) that

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Ҥ 1997e(e) does not apply to First Amendment Claims regardless of the

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form of relief sought.” Therefore, this jury instruction will not be

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a

This statute states: “No Federal civil action may be brought

prisoner

confined

in

a

jail,

prison,

or

other

correctional

used.

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Defendant’s proposed jury instruction No. 24 will not be used

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since portions of it are duplicative of Defendant’s proposed jury

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instruction

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inconsistent with the jury’s ability to award punitive damages.

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No.

Lastly,

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and

portions

Defendant’s

of

proposed

the

jury

second

paragraph

instruction

are

concerning

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punitive damages has been modified to more closely follow the language

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used in the Ninth Circuit Model Civil Jury Instruction on punitive

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damages and has been split into two instructions so that the jury is

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instructed on determining the amount of punitive damages, if any, only

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if it returns a verdict in favor of plaintiff on the punitive damages

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liability question.

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B.

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Defendant states in his Trial Brief “that the following

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affirmative defenses have not been waived, and may be raised at trial

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either in the jury instructions, or in a motion under Rule 50:” (1)

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qualified immunity, (2) “failure to state a claim upon which relief can

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be granted,” (3) “plaintiff is not entitled to punitive damages because

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Defendant did not act with malicious intent to deprive him of any

Defendant’s Affirmative Defenses

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constitutional right or to cause any other injury,” (4) “Plaintiff’s own

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conduct contributed to his damages,” and (5) “[t]o the extent that

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Plaintiff’s damage claims are based on mental or emotional injury, they

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must be dismissed where there is no showing of physical injury as

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required by 42 U.S.C. § 1997e(e).” (Def.’s Trial Brief 5:6-6:12.)

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Trial of Defendant’s qualified immunity affirmative defense is

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discussed infra.

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Defendant’s second affirmative defense “amount[s] only to

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assertions that plaintiff[] failed to state a claim.” Smith v. North

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Star Charter School, Inc., No. CIV 1:10-618 WBS, 2011 WL 3205280, at *2

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(D. Idaho July 26, 2011)(striking alleged “affirmative defense[]” that

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plaintiff “fail[s] to state a claim for relief”). Since the “[f]ailure

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to state a claim is not a proper affirmative defense but, rather,

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asserts

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“affirmative defense” is not preserved for trial. J & J Sports Prods.,

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Inc. v. Vizcarra, No. 11-1151 SC, 2011 WL 4501318, at *3 (N.D. Cal.

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Sept. 27, 2011) 3 (internal quotation marks, internal brackets and

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citation omitted).

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a

defect

in

Defendant’s

the

third

plaintiff’s

affirmative

prima

facie

defense

case[,]”

consists

of

this

an

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allegation that Plaintiff cannot prove the elements of his punitive

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damages claim. However, “[a] defense which demonstrates that plaintiff

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has not met [his] burden of proof is not an affirmative defense.”

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Zivkovic v. S. Calif. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002).

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Therefore, this “affirmative defense” is also not preserved for trial.

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It is unclear what Defendant’s fourth affirmative defense

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comprises, and Defendant cites no authority to support its application

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in this case. Further, Defendant did not provide a proposed jury

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4

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instruction on this affirmative defense. Therefore, it is not preserved

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for trial.

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Defendant’s fifth affirmative defense is based upon 42 U.S.C.

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§ 1997e(e). However, as stated above, the Ninth Circuit has held that §

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1997e(e) is inapplicable to First Amendment cases. Therefore, this

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affirmative defense is not preserved for trial.

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C.

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Tentatively, the attached general verdict forms will be used

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rather than Defendant’s proposed special verdict form and special

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verdict form for punitive damages. See Floyd v. Laws, 929 F.2d 1390,

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1395 (9th Cir. 1991)(stating “[a]s a general rule, the court has

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complete discretion over whether to have the jury return a special

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verdict or a general verdict”).

Proposed Verdict Forms

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Defendant’s proposed special verdict form includes questions

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concerning his qualified immunity affirmative defense. (Def.’s Proposed

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Special Verdict Form, 3:21-4:23.) However, the questions Defendant

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proposes on this affirmative defense are same questions the jury will be

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required to decide when it is submitted Plaintiff’s retaliation claim.

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Therefore,

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qualified immunity affirmative defense are duplicative and unnecessary.

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Cf. Vandervall v. Feltner, No. CIV S-09-1576 DAD P, 2010 WL 2843425, at

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*10 (E.D. Cal. July 19, 2010)(stating since “plaintiff’s First Amendment

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right to file inmate grievances free from prison official retaliation

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was clearly established[,]” “[D]efendants are entitled to qualified

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immunity only if plaintiff [fails to prove] that defendants’ conduct

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violated his First Amendment rights”); Sloman v. Tadlock, 21 F.3d 1462,

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1468-69 (9th Cir. 1994)(stating a district court’s “allowing the jury to

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decide the issue [of whether a reasonable officer in Defendant’s place

specific

factual

findings

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by

the

jury

on

Defendant’s

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would have known his conduct violated Plaintiff’s clearly established

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constitutional

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harmless,” where “the factual findings the jury must have made in

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imposing liability on [Defendant] would require the district court to

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deny him qualified immunity” since “[Defendant’s] motives for the

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actions he took were at issue” and “[i]n imposing liability . . . the

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jury

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substantial or motivating factor in [Defendant’s] conduct”). Of course,

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a party could ultimately propose qualified immunity factual disputes to

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be resolved by the jury which are not the exact factual disputes

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involved in Plaintiff’s First Amendment retaliation claim.

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Dated:

rights]

necessarily

either

found

that

was

proper,

[Defendant’s

or

at

improper

a

minimum,

motive]

February 28, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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was

was

a

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

Edwin Golden,
Plaintiff,
v.
S. Feudner,
Defendant.
______________________________

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2:08-cv-00356-GEB-DAD
VOIR DIRE

Thank you for your presence and anticipated cooperation in the
jury selection questioning process we are about to begin. This
process concerns the right to a trial by jury, which is a right that
the founders of this nation considered an important component of our
constitutional system.
The court personnel who will assist me in this trial are on
the platform below me. The Courtroom Deputy is Shani Furstenau.

She

is on the platform below me on my left side. Next to her is the
Certified Court Reporter, Kimberly Bennett.
We are about to begin what is known as voir dire. The purpose
of voir dire is to ascertain whether you can be a fair and impartial

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juror on this case. Near or at the end of the process, each party can
use a certain amount of what are called peremptory challenges, which
excuse a potential juror from sitting as a juror on this case. A
potential juror can also be excused for other reasons.
1.

Ms. Furstenau, please administer the oath to the panel.

2.

The Jury Administrator has already randomly selected

potential jurors and placed their names on the sheet that has been
given to each party in the numerical sequence in which they were
randomly selected. Each juror has been placed in his or her randomlyselected seat.
3.

I will ask a series of questions to the jurors as a

group. If you have a response, please raise your hand or the number
you’ve been given, which reflects your seat number. Generally, you
will be given an opportunity to respond in accordance with the
numerical order in which you are seated, with the juror in the lowest
numbered seat responding first. If no hand is raised, I will simply
state "no response" for the record and then ask the next question.
If you know it is your turn to respond to a question, you may respond
before I call your name or your seat number, by stating your last
name or just your seat number, then your response. That should
expedite the process.
4.

This is a civil case brought by the plaintiff, Edwin

Golden, against the defendant, S. Feuder. At all relevant times,

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Plaintiff was incarcerated at a California State Prison in Solano,
California, where Defendant was employed as a correctional officer.
Plaintiff alleges that in June of 2007, Defendant conducted
a search of the dorm where he was housed and submitted a disciplinary
report against him in retaliation for Plaintiff filing a prison
grievance

alleging

misconduct

by

Defendant.

Defendant

denies

Plaintiff’s allegations.
Raise your hand if there anything about the allegations
or about anything else I’ve said which causes you to feel that you
might not be a fair juror in this particular case.
5.

Raise your hand if you have any knowledge of the facts

or events in this case.
6.

The parties have informed me that the evidence and

argument portion of the trial should be completed in approximately
two to three court days, after which the case will be submitted to
the jury for jury deliberation. We will be in trial on Tuesdays,
Wednesdays, and Thursdays from 9:00 a.m. to about 4:30 p.m. But as
soon as you begin jury deliberation, you will be expected

to

deliberate every day, except weekends, from 9:00 a.m. to about 4:30
p.m. until you complete your deliberation.
If you cannot participate as juror during these times,
raise your hand.
7.

Would Plaintiff introduce himself, name any witness you

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may have testify.
8.

Defendant’s counsel now has the opportunity to do the

same thing.
Raise your hand if you know or have had any interaction
with any person just introduced or named.
9.

Raise your hand if you have any knowledge or have had any

experience with the California State Prison in Solano, California.
10.

Raise your hand if you would tend to believe the

testimony of a witness just because that witness is a correctional
officer and for no other reason.
11.

Raise

your

hand

if

you

would

tend

not

to believe

testimony of a witness just because that witness is a correctional
officer and for no other reason.
12.

Raise your hand if you have ever served as a juror in the

past.
a.

State whether it was a civil or criminal case, and

state whether the jury reached a verdict, but do not state the
actual verdict reached.
13.

Raise your hand if you will not be able to give your full

attention to this case.
14.

Have you, any member of your family, or any close friend

ever been employed by a law enforcement agency, such as a police
department, sheriff’s department, the highway patrol or the state

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department of corrections?
a.

Could what you just stated have a bearing on your

ability to be a fair and impartial juror in this case?
15.

Have you, any member of your family, or any close friend

received any special training in law enforcement, criminal justice
or corrections?
a.

Could what you just stated have a bearing on your

ability to be a fair and impartial juror in this case?
16.

Raise your hand if you will not be able to decide this

case based solely on the evidence presented at the trial?
17. Raise your hand if will you not apply the law I will give
you if you believe a different law should apply.
18.

Raise your hand if you are opposed to judging a witness’s

credibility.
19.

Is there any reason why you could not be a fair and

impartial juror?
20.

The Courtroom Deputy Clerk will give juror number 1 a

sheet on which there are questions that I want each of you to
answer. Please pass the sheet to the juror next to you after you
answer the questions.
(a)

Your name;

(b)

Your age and the age of your adult and/or minor
children;

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(c)

The present and former occupations for you and any

person residing with you; and
(d)

Your educational background

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

Edwin Golden,
Plaintiff,
v.
S. Feudner,
Defendant.
______________________________

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2:08-cv-00356-GEB-DAD
PRELIMINARY JURY
INSTRUCTIONS

Preliminary Instruction No. 1

Ladies and gentlemen: You are now the jury in this case. It
is my duty to instruct you on the law.
You must not infer from these instructions or from anything
I may say or do as indicating that I have an opinion regarding the
evidence or what your verdict should be.
It is your duty to find the facts from all the evidence in the
case. To those facts you will apply the law as I give it to you. You
must follow the law as I give it to you whether you agree with it or
not. And you must not be influenced by any personal likes or
dislikes, opinions, prejudices, or sympathy. That means that you must
decide the case solely on the evidence before you. You will recall
that you took an oath to do so.
In following my instructions, you must follow all of them and
not single out some and ignore others; they are all important.

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Preliminary Instruction No. 2

There are rules of evidence that control what can be received
into evidence. When Plaintiff or Defendant’s counsel asks a question
or offers an exhibit into evidence and the other party thinks that
it is not permitted by the rules of evidence, that party may object.
If I overrule the objection, the question may be answered or the
exhibit received. If I sustain the objection, the question cannot be
answered, and the exhibit cannot be received. Whenever I sustain an
objection to a question, you must ignore the question and must not
guess what the answer might have been.
Sometimes I may order that evidence be stricken from the
record and that you disregard or ignore the evidence. That means that
when you are deciding the case, you must not consider the evidence
that I told you to disregard.

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Preliminary Instruction No. 3

I am now going to give you jury admonitions that you must
remember.

When we take recesses I will reference these admonitions

by telling you to remember the admonitions or something similar to
that.

You are required to follow these admonitions whether or not

I remind you to remember them:
First, keep an open mind throughout the trial, and do not
decide what the verdict should be until you and your fellow jurors
have completed your deliberations at the end of the case.
Second, because you must decide this case based only on the
evidence received in the case and on my instructions as to the law
that applies, you must not be exposed to any other information about
the case or to the issues it involves during the course of your jury
duty.

Thus, until the end of the case or unless I tell you

otherwise:
Do not communicate with anyone in any way and do not let
anyone else communicate with you in any way about the merits of the
case or anything to do with it.

This includes discussing the case

in person, in writing, by phone or electronic means, via e-mail, text
messaging, or any Internet chat room, blog, web site or other
feature. This applies to communicating with your fellow jurors until
I give you the case for deliberation, and it applies to communicating

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with everyone else including your family members, your employer, and
the people involved in the trial, although you may notify your family
and your employer that you have been seated as a juror in the case.
But, if you are asked or approached in any way about your jury
service or anything about this case, you must respond that you have
been ordered not to discuss the matter and to report the contact to
the court.
Because

you

will

receive

all

the

evidence

and

instruction you properly may consider to return a verdict:

legal
do not

read, watch, or listen to any news or media accounts or commentary
about the case or anything to do with it; do not do any research,
such as consulting dictionaries, searching the Internet or using
other reference materials; and do not make any investigation or in
any other way try to learn about the case on your own.
The law requires these restrictions to ensure the parties have
a fair trial based on the same evidence that each party has had an
opportunity to address.
Third, if you need to communicate with me, simply give a
signed note to my courtroom clerk, or to the court reporter if my
courtroom clerk is not present, who will give it to me.

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Preliminary Instruction No. 4

At the end of the trial, you will have to make your decision
based on what you recall of the evidence. You will not have a
transcript of the trial.

I urge you to pay close attention to the

testimony as it is given.

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Preliminary Instruction No. 5

If you wish, you may take notes to help you remember what
witnesses said. If you do take notes, please keep them to yourself
until you and your fellow jurors go to the jury room to decide the
case. Do not let note-taking distract you so that you do not hear
other answers by witnesses. When you leave, your notes shall be left
on the seat on which you are seated.

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Preliminary Instruction No. 6

From time to time during the trial, it may become necessary
for me to talk with the parties out of the hearing of the jury,
either by having a conference at the bench when the jury is present
in the courtroom, or by calling a recess. Please understand that
while

you

are

waiting,

we

are

working.

The

purpose

of

these

conferences is not to keep relevant information from you, but to
decide how certain evidence is to be treated under the rules of
evidence and to avoid confusion and error.
We will, of course, do what we can to keep the number and
length of these conferences to a minimum. I may not always grant a
party's request for a conference. Do not consider my granting or
denying a request for a conference as any indication of my opinion
of the case or of what your verdict should be.

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Preliminary Instruction No. 7

The next phase of the trial will now begin. First, each side
may make an opening statement. An opening statement is not evidence.
It is simply an outline to help you understand what that party
expects the evidence will show. A party is not required to make an
opening statement.
Plaintiff will then present evidence, and defendant’s counsel
may cross-examine. Then defendant may present evidence, and plaintiff
may cross-examine.
After the evidence has been presented,

the parties will make

closing arguments and I will instruct you on the law that applies to
the case.
After that, you will go to the jury room to deliberate on your
verdict.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

Edwin Golden,
Plaintiff,
v.
S. Feudner,
Defendant.
______________________________

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2:08-cv-00356-GEB-DAD
CLOSING JURY INSTRUCTIONS

Instruction No. 1

Members of the jury, now that you have heard all the evidence
and the arguments of the parties, it is my duty to instruct you on
the law which applies to this case. Each of you is in possession of
a copy of these jury instructions, which you may take into the jury
room for your use if you find it necessary.
It is your duty to find the facts from all the evidence in the
case.

To those facts you must apply the law as I give it to you.

You must follow the law as I give it to you whether you agree with
it or not.

And you must not be influenced by any personal likes or

dislikes, opinions, prejudices or sympathy. That means that you must
decide the case solely on the evidence before you and according to
the law.

You will recall that you took an oath promising to do so

at the beginning of the case.
In following my instructions, you must follow all of them and
not

single

important.

out

some

and

ignore

others;

they

are

all

equally

Unless I state otherwise, the instructions apply to each

party.

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Instruction No. 2

When a party has the burden of proof on any claim by a
preponderance of the evidence, it means you must be persuaded by the
evidence that the claim is more probably true than not true.
You

should

base

your

decision

regardless of which party presented it.

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on

all

of

the

evidence,

Instruction No. 3

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

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Instruction No. 4

In reaching your verdict, you may consider only the testimony
and exhibits received into evidence. Certain things are not evidence,
and you may not consider them in deciding what the facts are. I will
list them for you:
First, arguments and statements by the defendant's counsel and
by the plaintiff except when the plaintiff was testifying under oath
are not evidence. The defendant's counsel is not a witness and the
plaintiff is not a witness except when he testified under oath. What
they have said in their opening statements, closing arguments, and
at other times is intended to help you interpret the evidence, but
it is not evidence. If the facts as you remember them differ from the
way the defendant's counsel and the plaintiff have stated them, your
memory of the facts controls.
Second, questions and objections by the parties are not
evidence. The parties have a duty to object when they believe a
question is improper under the rules of evidence. You should not be
influenced by the objection or by the court's ruling on it.
Third, testimony that has been excluded or stricken, or that
you have been instructed to disregard, is not evidence and must not
be considered. In addition, sometimes testimony and exhibits are
received

only

for

a

limited

purpose;

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if

I

gave

a

limiting

instruction, you must follow it.
Fourth, anything you may have seen or heard when the court was
not in session is not evidence. You are to decide the case solely on
the evidence received at the trial.

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Instruction No. 5

Evidence may be direct or circumstantial. Direct evidence is
direct proof of a fact, such as testimony by a witness about what
that witness personally saw or heard or did. Circumstantial evidence
is proof of one or more facts from which you could find another fact.
You should consider both direct and circumstantial evidence.
The law makes no distinction between the weight to be given to either
direct or circumstantial evidence.
weight to give to any evidence.

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It is for you to decide how much

Instruction No. 6

In deciding the facts in this case, you may have to decide
which testimony to believe and which testimony not to believe. You
may believe everything a witness says, or part of it, or none of it.
Proof of a fact does not necessarily depend on the number of
witnesses who testify about it.
In considering the testimony of any witness, you may take into
account:
the opportunity and ability of the witness to see or hear or
know the things testified to;
the witness's memory;
the witness's manner while testifying;
the witness's interest in the outcome of the case and any bias
or prejudice;
whether other evidence contradicted the witness's testimony;
the reasonableness of the witness's testimony in light of all
the evidence; and
any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily
depend on the number of witnesses who testify about it.

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Instruction No. 7

The evidence that a witness has been convicted of a crime may
be considered, along with all other evidence, in deciding whether to
believe the witness and how much weight to give to the testimony of
the witness, but for no other purpose.

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Instruction No. 8

Plaintiff alleges that Defendant violated his right under the
First Amendment to the United States Constitution by retaliating
against him for exercising his right to seek redress of a prison
grievance. A state prisoner engages in First Amendment protected

activity when he presents a grievance against a prison official
pursuant to the prison’s grievance procedures. Retaliation
against a prisoner for exercising this right violates the
prisoner’s First Amendment protected activity of presenting a
grievance to a prison official.
To prevail on his First Amendment retaliation claim, Plaintiff
must prove each of the following elements by a preponderance of the
evidence:
First, Plaintiff engaged in the First Amendment protected
activity of seeking redress of Defendant’s alleged misconduct by
submitting to a prison official a prison grievance concerning that
alleged misconduct;
Second, Defendant took adverse action or actions against
Plaintiff;
Third, Plaintiff’s protected action was a substantial or
motivating factor for the Defendant’s action;
Fourth, Defendant’s adverse action resulted in more than
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minimal harm to Plaintiff or would chill a person of ordinary
firmness in the exercise of his right to present a prison grievance;
and
Fifth,

Defendant’s

adverse

action(s)

did

not

reasonably

advance a legitimate penological goal.

A substantial or motivating factor is a significant factor.
Timing can be considered as circumstantial evidence of retaliatory
motive. However, neither timing alone nor sheer speculation is
sufficient

to

show

that

Plaintiff’s

protected

conduct

was

a

substantial or motivating factor for Defendant’s adverse action(s).
Plaintiff must show a nexus between presenting his prison grievance
to a prison official and Defendant’s adverse action.
Whether any action taken by Defendant reasonably advanced a
legitimate

penological

goal

is

evaluated

in

the

light

of

the

deference given to prison officials in the adoption and execution of
policies and practices that in their reasonable judgment are needed
to preserve discipline and to maintain internal security in a
prisons.

11

Instruction No. 9

It is my duty to instruct you about the measure of damages. By
instructing you on damages, I do not mean to suggest for which party
your verdict should be rendered.
If you find for the plaintiff, you must determine his damages.
The plaintiff has the burden of proving damages by a preponderance of
the evidence. Damages means the amount of money that will reasonably
and fairly compensate the plaintiff for any injury that you determine
Defendant caused. You should consider the nature and extent of the
deprivation experienced.
It is for you to determine what damages, if any, have been
proved.
Your award must be based on evidence and not on speculation,
guesswork, or conjecture.

12

Instruction No. 10

The law that applies to this case authorizes an award of
nominal damages. If you find for the plaintiff but you find that the
plaintiff

has

failed

to

prove

damages

as

defined

in

these

instructions, you must award nominal damages. Nominal damages may not
exceed one dollar.

13

Instruction No. 11

If you find for the plaintiff, you must determine if
Defendant’s conduct justifies an award of punitive damages.
The plaintiff has the burden to prove by a preponderance of
the evidence that punitive damages should be awarded. The amount of
punitive damages, if any, will be decided later.
You may award punitive damages only if you find that the
defendant's

conduct

that

harmed

the

plaintiff

was

malicious,

oppressive, or in reckless disregard of the plaintiff's rights.
Conduct is malicious if it is accompanied by ill will, or spite, or
if it is for the purpose of injuring the plaintiff.
reckless

disregard

of

the

plaintiff's

rights

Conduct is in
if,

under

the

circumstances, it reflects complete indifference to the plaintiff's
safety or rights, or if the defendant acts in the face of a perceived
risk that its actions will violate the plaintiff's rights under
federal law.

An act or omission is oppressive if the defendant

injures or damages or otherwise violates the rights of the plaintiff
with unnecessary harshness or severity, such as by the misuse or
abuse of authority or power or by the taking advantage of some
weakness or disability or misfortune of the plaintiff.

14

Instruction No. 12

When you begin your deliberations, you should elect one member
of the jury as your presiding juror.

That person will preside over

the deliberations and speak for you here in court.
You will then discuss the case with your fellow jurors to
reach agreement if you can do so.

Your verdict must be unanimous.

Each of you must decide the case for yourself, but you should
do so only after you have considered all of the evidence, discussed
it fully with the other jurors, and listened to the views of your
fellow jurors.
Do not hesitate to change your opinion if the discussion
persuades you that you should. Do not come to a decision simply
because other jurors think it is right.
It is important that you attempt to reach a unanimous verdict
but, of course, only if each of you can do so after having made your
own conscientious decision. Do not change an honest belief about the
weight and effect of the evidence simply to reach a verdict.

15

Instruction No. 13

If

it

becomes

necessary

during

your

deliberations

to

communicate with me, you may send a note through the United States
Marshal's representative, signed by your presiding juror or by one or
more members of the jury.

No member of the jury should ever attempt

to communicate with me except by a signed writing; I will communicate
with any member of the jury on anything concerning the case only in
writing, or here in open court.

If you send out a question, I will

consult with the parties before answering it, which may take some
time.

You may continue your deliberations while waiting for the

answer

to

any

question.

Remember

that

you

are

not

to

tell

anyone-including me-how the jury stands, numerically or otherwise,
until after you have reached a unanimous verdict or have been
discharged.

Do not disclose any vote count in any note to the court.

16

Instruction No. 14

A verdict form has been prepared for you. After you have
reached unanimous agreement on a verdict, your foreperson will fill
in the form that will be given to you, sign and date it and advise
the United States Marshal's representative outside your door that you
are ready to return to the courtroom.

17

Instruction No. 15

You must now decide the amount, if any, of punitive damages
that you should award Plaintiff. The plaintiff has the burden of
proving the amount of any such damages by a preponderance of the
evidence.
The purposes of punitive damages are to punish a defendant and
to deter similar acts in the future. Punitive damages may not be
awarded to compensate a plaintiff.
If you find that punitive damages are appropriate, you must
use reason in setting the amount. Punitive damages, if any, should be
in an amount sufficient to fulfill their purposes but should not
reflect bias, prejudice or sympathy toward any party. In considering
the

amount

of

any

punitive

damages,

consider

reprehensibility of the defendant’s conduct.

18

the

degree

of

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE EASTERN DISTRICT OF CALIFORNIA

6
7

Edwin Golden,
Plaintiff,

8
9

v.

10

S. Feudner,

11

Defendant.
________________________________

)
)
)
)
)
)
)
)
)
)

2:08-cv-00356-GEB-DAD
VERDICT FORM

12
13
14

WE THE JURY UNANIMOUSLY FIND THE FOLLOWING VERDICT ON THE SUBMITTED
QUESTIONS:

15
16
17

Question No. 1:
Answer:

Does Plaintiff prevail on his retaliation claim?
____ Yes

_____ No

18

(If you answered “yes,” continue to Question No. 2. If you answered

19

“no,” then proceed to the last page and sign, date and return this

20

verdict form.)

21
22

Question No. 2:

23

to Plaintiff?

24

What is the amount of compensatory damages you award

$ ____________

25

(If you entered an amount of more than $0, proceed to Question No. 4. If

26

you entered $0, proceed to Question No. 3.)

27
28
1

1

Question No. 3:

2

retaliation claim, but that Plaintiff is not entitled to compensatory

3

damages, you must award an amount of nominal damages not to exceed

4

$1.00. What is your award of nominal damages?

5
6

If you have found that Plaintiff prevails on his

$ ____________
(Continue to Question No. 4.)

7
8

Question NO. 4:

9

claim?

10

Answer:

Does

____ Yes

Plaintiff

prevail

on

his punitive damages

_____ No

11
12

(Please date, sign and return this verdict.)

13
14

Dated this _______ day of March, 2012

15
16

________________________________________
JURY FOREPERSON

17
18
19
20
21
22
23
24
25
26
27
28
2

1
2
3
4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE EASTERN DISTRICT OF CALIFORNIA

6
7

Edwin Golden,
Plaintiff,

8
9

v.

10

S. Feudner,

11

Defendant.
________________________________

)
)
)
)
)
)
)
)
)
)

2:08-cv-00356-GEB-DAD
VERDICT FORM

12
13
14

WE THE JURY UNANIMOUSLY FIND THE FOLLOWING VERDICT ON THE SUBMITTED
QUESTION:

15
16

Question No. 1:

17

award to Plaintiff?

18

$ ____________

19

What is the amount of punitive damages, if any, you

(Please date, sign and return this verdict.)

20
21

Dated this _______ day of March, 2012

22
23

________________________________________
JURY FOREPERSON

24
25
26
27
28
1