Borges v. City of Eureka et al

Filing 224

PRETRIAL ORDER NO. 8 REGARDING JURY INSTRUCTIONS. Signed by Judge Yvonne Gonzalez Rogers on 8/15/17. (Attachments: # 1 Exhibit: Most current Draft of the Jury Instructions to be discussed with the parties).(fs, COURT STAFF) (Filed on 8/15/2017)

Duty of Jury

Members of the jury, now that you have heard all the evidence, it is my duty to instruct
you on the law that applies to this case. A copy of these instructions will be available in the jury
room for you to consult.
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.
Please do not read into these instructions or anything that I may say or do or have said or
done that I have an opinion regarding the evidence or what your verdict should be.

What Is Evidence

The evidence you are to consider in deciding what the facts are consists of:

1.

the sworn testimony of any witness;

2.

the exhibits that are admitted into evidence;

3.

any facts to which the lawyers have agreed; and

4.

any facts that I have instructed you to accept as proved.

What Is Not Evidence

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:
1.

Arguments and statements by lawyers are not evidence. The lawyers
are not witnesses. 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 lawyers have stated them, your memory of
them controls.

2.

Questions and objections by lawyers are not evidence. Attorneys have
a duty to their clients 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.

3.

Testimony that is excluded or stricken, or that you have been instructed
to disregard, is not evidence and must not be considered. In addition
some evidence was received only for a limited purpose; when I have
instructed you to consider certain evidence only for a limited purpose,
you must do so and you may not consider that evidence for any other
purpose.

4.

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.

Burden of Proof—Preponderance of the Evidence

When a party has the burden of proving any claim or affirmative defense by a
preponderance of the evidence, it means you must be persuaded by the evidence that the claim or
affirmative defense is more probably true than not true.
You should base your decision on all of the evidence, regardless of which party presented
it.

Two or More Parties—Different Legal Rights

You should decide the case as to each defendant separately. Unless otherwise stated, the
instructions apply to all parties.

Direct and Circumstantial Evidence

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such
as testimony by a witness about what that witness personally saw or heard or did. Circumstantial
evidence is proof of one or more facts from which you could find another fact. You should
consider both kinds of evidence. The law makes no distinction between the weight to be given to
either direct or circumstantial evidence. It is for you to decide how much weight to give to any
evidence.
By way of example, if you wake up in the morning and see that the sidewalk is wet, you
may find from that fact that it rained during the night. However, other evidence, such as a turned
on garden hose, may provide a different explanation for the presence of water on the sidewalk.
Therefore, before you decide that a fact has been proved by circumstantial evidence, you must
consider all the evidence in the light of reason, experience and common sense.

Ruling on Objections

There are rules of evidence that control what can be received into evidence. When a
lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks
that it is not permitted by the rules of evidence, that lawyer may object. If I overruled the
objection, the question was allowed or the exhibit received. If I sustained the objection, the
question was not allowed or the exhibit was not received. Whenever I sustained an objection to a
question, you were ordered to ignore the question and must not guess what the answer might
have been.
If I ordered that that evidence be stricken from the record you must disregard or ignore
that evidence. That means when you are deciding the case, you must not consider the stricken
evidence for any purpose.

Credibility of Witnesses

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.
In considering the testimony of any witness, you may take into account:
1.

the opportunity and ability of the witness to see or hear or know the things
testified to;

2.

the witness’s memory;

3.

the witness’s manner while testifying;

4.

the witness’s interest in the outcome of the case, if any;

5.

the witness’s bias or prejudice, if any;

6.

whether other evidence contradicted the witness’s testimony;

7.

the reasonableness of the witness’s testimony in light of all the evidence; and

8.

any other factors that bear on believability.

Sometimes a witness may say something that is not consistent with something else he or
she said. Sometimes different witnesses will give different versions of what happened. People
often forget things or make mistakes in what they remember. Also, two people may see the same
event but remember it differently. You may consider these differences, but do not decide that
testimony is untrue just because it differs from other testimony.
However, if you decide that a witness has deliberately testified untruthfully about
something important, you may choose not to believe anything that witness said. On the other
hand, if you think the witness testified untruthfully about some things but told the truth about
others, you may accept the part you think is true and ignore the rest.
The weight of the evidence as to a fact does not necessarily depend on the number of
witnesses who testify. What is important is how believable the witnesses were, and how much
weight you think their testimony deserves.

Stipulations of Fact

The parties have agreed to certain facts that will be read to you. You should therefore
treat these facts as having been proved:

1.

At all times relevant to this lawsuit, David Swim, Terri Bittner, Tim Hammer, and
Tim Hershberger were acting under color of state law and within the course and
scope of their employment with the County of Humboldt.

2.

[Add if necessary after evidence.]

Expert Witnesses

You have heard testimony from persons who testified to opinions and the reasons for
their opinions. This opinion testimony is allowed, because of the education or experience of this
witness.

Such opinion testimony should be judged like any other testimony. You may accept it or
reject it, and give it as much weight as you think it deserves, considering the witness’s education
and experience, the reasons given for the opinion, and all the other evidence in the case.

TRANSITION

I will now give you the substantive law with regard to each claim at issue. Plaintiff
asserts four different claims.
The first three claims are brought under Title 42 of the United States Code at Section
1983 which provides that any person or persons who, under color of law, deprives another of any
rights, privileges, or immunities secured by the Constitution or laws of the United States shall be
liable to the injured party.

The First Claim is for denial of medical care under the Fourteenth Amendment of
the United States Constitution.

The Second Claim is for interference with familial association under the
Fourteenth Amendment of the United States Constitution.

The Third Claim is for municipal and supervisory liability under the Fourteenth
Amendment of the United States Constitution.

The Fourth Claim arises under the California Government Code at Section 845.6 and is
for failure to summon medical care.

First Claim
Fourteenth Amendment Denial of Medical Care

With respect to her First Claim that each defendant deprived Daren Borges of his rights
under the Due Process clause of the Fourteenth Amendment when he was denied access to
adequate medical care, Stephany Borges must prove, by a preponderance of the evidence, each
of the following elements as to each individual defendant, namely, David Swim, Terri Bittner,
Tim Hammer, and Tim Hershberger:

1. The defendant made an intentional decision with respect to the conditions under which
Daren Borges was confined;
2. Those conditions put Daren Borges at substantial risk of suffering serious harm;
3. The defendant did not take reasonable available measures to abate that risk, even though
a reasonable officer in the circumstances would have appreciated the high degree of risk
involved—making the consequences of the defendant’s conduct obvious; and
4. By not taking such measures, the defendant caused Daren Borges’ injuries.

If you find that plaintiff has proved each of these elements as against each defendant,
your verdict should be for Stephany Borges as to that claim. If on the other hand, you find that
plaintiff has failed to prove any one or more of the elements as to a claim concerning any
particular defendant, your verdict should be for that defendant.

Second Claim
Fourteenth Amendment Interference With Familial Association

Parents and children have a constitutionally protected right to familial association. In
order to prevail on her Second Claim against defendants David Swim, Terri Bittner, Tim
Hammer, and Tim Hershberger, Stephany Borges must prove each the following elements with
respect to her claim that each defendant deprived her of her rights under the Due Process Clause
of the Fourteenth Amendment to be free from governmental interference with a familial
relationship:

1. The defendant made an intentional decision which interfered with Stephany Borges’
familial association with Daren Borges; and
2. The defendant acted in a manner which shocks the conscience; and
3. The action of the defendant was the moving force of Daren Borges’ death.

Where, as here, each defendant had an opportunity to deliberate before the action, the
action “shocks the conscience” if undertaken with deliberate indifference to Stephany Borges’
rights.
Deliberate indifference is the conscious or reckless disregard of the consequence of one’s
acts or omissions. It entails something more than negligence, on the one hand, and on the other
hand, is satisfied by something less than acts or omissions committed for the very purpose of
causing harm or with knowledge that harm will result.
If you find that plaintiff has proved each of these elements as against each defendant,
your verdict should be for Stephany Borges as to that claim. If other hand, you find that plaintiff
has failed to prove any one or more of the elements as to a claim concerning any particular
defendant, your verdict should be for that defendant.

Third Claim – Introduction

With respect to plaintiff’s Third Claim under the United States Constitution, she
proceeds on one theory as against defendant Michael Downey and two separate theories as
against defendant County of Humboldt. I will instruct you on all three theories.
With respect to the County of Humboldt, if she prevails on either theory, your verdict
should be for plaintiff. If she fails on both theories, your verdict should be for defendant County
of Humboldt.

Third Claim
Section 1983 Claim Against Superisory Defendant Sheriff Michael Downey
Elements and Burden of Proof

In order to prevail on her Third Claim against supervisory defendant Michael Downey,
Stephany Borges must prove each of the following three elements by a preponderance of the
evidence.
1.

The act or failure to act of Michael Downey’s subordinates, specifically David
Swim, Terri Bittner, Tim Hammer, or Tim Hershberger, deprived Daren Borges
or Stephany Borges of their particular rights under the United States Constitution
as was explained in earlier instructions; and

2.

For this second element, there are five options:
A.

Michael Downey directed any of these subordinates in the act or failure to

act that deprived Daren Borges or Stephany Borges of his or her rights;
or
B.

Michael Downey set in motion a series of acts by any of these

subordinates, or knowingly refused to terminate a series of acts by any of these
subordinates, that he knew or reasonably should have known would cause the
subordinate to deprive Daren Borges or Stephany Borges of his or her rights;
or
C.

Michael Downey knew, or reasonably should have known, that a

subordinate was engaging in these acts or failures to act and that the subordinates’
conduct would deprive Daren Borges or Stephany Borges of these rights; and
Michael Downey failed to act to prevent his subordinate from engaging in such
conduct;
or

D.

Michael Downey disregarded the known or obvious consequence that a
particular training deficiency or omission would cause his subordinate to
violate the constitutional rights of Daren Borges or Stephany Borges; and
that deficiency or omission actually caused his subordinate to deprive the
Daren Borges or Stephany Borges of his or her constitutional rights;

or
E.

Michael Downey engaged in conduct that showed a reckless or callous
indifference to the deprivation by the subordinate of the rights of others;
and

3.

Michael Downey’s conduct was so closely related to the deprivation of Daren
Borges’ or Stephany Borges’ rights as to be the moving force that caused the
ultimate injury.

If you find Stephany Borges has proved each of these elements, and if you find that she has
proved all the elements she is required to prove under the instructions regarding the Section 1983
claims against the individual defendants, your verdict should be for Stephany Borges. If, on the
other hand, Stephany Borges has failed to prove any one or more of these elements, your verdict
should be for Michael Downey.

Third Claim
Section 1983 Claim against Defendant County of Humboldt
Official Policy

In order to prevail on her Third Claim against defendant County of Humboldt alleging
liability based on an official policy, practice, or custom, Stephany Borges must prove each of the
following elements by a preponderance of the evidence:

1.

The act or failure to act of David Swim, Terri Bittner, Tim Hammer, or Tim
Hershberger deprived Stephany Borges or Daren Borges of his or her particular
rights under the United States Constitution as was explained in earlier
instructions;

2.

The act or failure to act of David Swim, Terri Bittner, Tim Hammer, or Tim
Hershberger was pursuant to an expressly adopted official policy or a widespread
or longstanding practice or custom of the defendant County of Humboldt; and

3.

The County of Humboldt’s official policy or widespread or longstanding practice
or custom caused the deprivation of Stephany Borges’ or Daren Borges’ rights by
David Swim, Terri Bittner, Tim Hammer, or Tim Hershberger; that is, the County
of Humboldt’s official policy or widespread or longstanding practice or custom is
so closely related to the deprivation of Stephany Borges’ or Daren Borges’ rights
as to be the moving force that caused the ultimate injury.

“Official policy” means a formal policy, such as a rule or regulation adopted by the
defendant County of Humboldt, resulting from a deliberate choice to follow a course of action
made from among various alternatives by the official or officials responsible for establishing
final policy with respect to the subject matter in question.

“Practice or custom” means any permanent, widespread, well-settled practice or custom
that constitutes a standard operating procedure of the defendant County of Humboldt. A practice
or custom can be established by repeated constitutional violations that were not properly
investigated and for which the violators were not disciplined, reprimanded or punished.

Third Claim
Section 1983 Claim against Defendant County of Humboldt
Failure to Train

In order to prevail on her Third Claim against defendant County of Humboldt alleging
liability based a policy of a failure to train its correctional officers, Stephany Borges must prove
each of the following elements by a preponderance of the evidence:

1.

The act or failure to act of defendants Tim Hershberger, Terri Bittner, Tim
Hammer or David Swim deprived Daren Borges or Stephany Borges of his or her
particular rights under the United States Constitution as was explained in earlier
instructions;

2.

The training policies of the defendant County of Humboldt were not adequate to
train its correctional officers to handle the usual and recurring situations with
which they must deal;

3.

The defendant County of Humboldt was deliberately indifferent to the known or
obvious consequences of its failure train its correctional officers adequately; and

4.

The failure of the defendant County of Humboldt to provide adequate training
caused the deprivation of Stephany Borges’ or Daren Borges’ rights by Tim
Hershberger, Terri Bittner, Tim Hammer or David Swim; that is, the defendant’s
failure to train is so closely related to the deprivation of rights as to be the moving
force that caused the ultimate injury.

A policy is a deliberate choice to follow a course of action made from among various
alternatives by the official or officials responsible for establishing final policy with respect to the
subject matter in question.

A policy of inaction or omission may be based on a failure to implement procedural
safeguards to prevent constitutional violations. To establish that there is a policy based on a
failure to preserve constitutional rights, a plaintiff must show, in addition to a constitutional
violation, that this policy amounts to deliberate indifference to the plaintiff’s constitutional
rights, and that the policy caused the violation, in the sense that the municipality could have
prevented the violation with an appropriate policy.

The plaintiff may prove “deliberate indifference” in this case by showing that the
defendant County of Humboldt knew or should have known that its failure to train adequately
made it highly predictable that its correctional officers would engage in conduct that would
deprive persons such as Daren Borges or Stephany Borges of their rights.

Third Claim
Section 1983 Claim against Defendant County of Humboldt Based on Either Theory
If you find Stephany Borges has proved each of the elements of the third claim against
the defendant County of Humboldt on either of the two theories alleged, and if you find that
Stephany Borges has proved all the elements she is required to prove under the instructions
regarding the section 1983 claims against the individual defendants, your verdict should be for
Stephany Borges. If, on the other hand, Stephany Borges has failed to prove any one or more of
these elements on both theories, your verdict should be for the County of Humboldt.

Fourth Claim
California Denial of Medical Care—Essential Factual Elements

Stephany Borges’ Fourth Claim arises under California Government Code Section 845.6
against defendants David Swim, Terri Bittner, Tim Hammer, and Tim Hershberger for failure to
summon medical care for Daren Borges.

For purposes of this California state law claim only, a public entity is responsible for
harm caused by the wrongful conduct of its employees or agents while acting within the scope of
their employment or authority.

The parties have agreed that David Swim, Terri Bittner, Tim Hammer, and Tim
Hershberger acted within the course and scope of their employment or authority with the County
of Humboldt.

To establish this claim, Stephany Borges must prove each of the following elements by a
preponderance of the evidence:

1.

Daren Borges had a serious and obvious medical condition;

2.

Daren Borges was in need of immediate medical care;

3.

David Swim, Terri Bittner, Tim Hammer, and/or Tim Hershberger knew or had
reason to know of Daren Borges’s need;

4.

David Swim, Terri Bittner, Tim Hammer, and/or Tim Hershberger failed to take
reasonable action to summon such medical care;

5.

Daren Borges was actually harmed; and

6.

The conduct of David Swim, Terri Bittner, Tim Hammer, and/or Tim Hershberger
was a substantial factor in causing Daren Borges’ harm.

Causation - Substantial Factor

A substantial factor in causing harm is a factor that a reasonable person would consider to
have contributed to the harm. It must be more than a remote or trivial factor. It does not have to
be the only cause of the harm. [Conduct is not a substantial factor in causing harm if the same
harm would have occurred without that conduct.]

Causation—Multiple Causes

A person’s conduct may combine with another factor to cause harm. If you find that a
defendant’s conduct was a substantial factor in causing harm to Daren Borges, then that
defendant is responsible for the harm. A defendant cannot avoid responsibility just because
some other person, condition, or event was also a substantial factor in causing Daren Borges’
harm.

Damages—Proof and Types of Damages

It is the duty of the Court to instruct you about the measure of damages. By instructing
you on damages, the Court does not mean to suggest for which party your verdict should be
rendered. Stephany Borges has the burden of proving damages by a preponderance of the
evidence. Damages means the amount of money that will reasonably and fairly compensate
Stephany Borges both in her individual capacity and as the successor-in-interest to Daren Borges
for any injury you find was caused by the defendants.

If you find for Stephany Borges on any of her claims, you must determine Stephany
Borges’ and/or Daren Borges’ damages.

If you find for plaintiff on the First and/or Third Claim under the Fourteenth Amendment,
you should consider the following as to the damages of Daren Borges, which Stephany Borges is
legally entitled to recover as her son’s successor-in-interest:

1.

The nature and extent of Daren Borges’s injuries;

2.

The loss of enjoyment of life; and

3.

The mental, physical, and emotional pain and suffering experienced.

If you find for Stephany Borges on her Second Claim for Interference with Familial
Association, you should consider the following:

1. The loss of Daren Borges' love, companionship, comfort, assistance, protection,
affection, society, and moral support.
2. The mental, physical, and emotional pain and suffering experienced by Stephany
Borges and which with reasonable probability will be experienced in the future.

If you find for Stephany Borges on her Fourth Claim under California law, you should
consider the following:

1. The mental, physical, and emotional pain and suffering experienced by Stephany Borges
and which with reasonable probability will be experienced in the future.

For the purposes of plaintiff's Fourth Claim under California law, in determining
Stephany Borges’ loss, do not consider:

1. Stephany Borges’ grief, sorrow, or mental anguish;
2. Daren Borges’ pain and suffering; or
3. The poverty or wealth of Stephany Borges.

It is for you to determine what damages, if any, have been proved. No fixed standard
exists for deciding the amount of noneconomic damages, such as the loss of Daren Borges’ love,
companionship, comfort, care, assistance, protection, affection, society, and moral support. You
must use your judgment to decide a reasonable amount based on the evidence and your common
sense.

Your award must be based upon evidence and not upon speculation, guesswork or
conjecture.

STOP

Duty to Deliberate

Before you begin your deliberations, elect one member of the jury as your presiding
juror. The presiding juror will preside over the deliberations and serve as the spokesperson for
the jury in court.

You shall diligently strive to reach agreement with all of the other jurors if you can do so.
Your verdict must be unanimous.

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 be unwilling to
change your opinion if the discussion persuades you that you should. But do not come to a
decision simply because other jurors think it is right, or change an honest belief about the weight
and effect of the evidence simply to reach a verdict.

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 their views.

Consideration of Evidence—Conduct of the Jury

Because you must base your verdict only on the evidence received in the case and on
these instructions, I remind you that you must not be exposed to any other information about the
case or to the issues it involves. Except for discussing the case with your fellow jurors during
your deliberations:

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 email, via text
messaging, or any Internet chat room, blog, website or application, including but not limited to
Facebook, YouTube, Twitter, Instagram, LinkedIn, Snapchat, or any other forms of social media.
This applies to communicating with your family members, your employer, the media or press,
and the people involved in the trial. 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.

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. Do not visit or view any place discussed in this
case, and do not use Internet programs or other devices to search for or view any place discussed
during the trial. Also, do not do any research about this case, the law, or the people involved—
including the parties, the witnesses or the lawyers—until you have been excused as jurors. If you
happen to read or hear anything touching on this case in the media, turn away and report it to me
as soon as possible.

These rules protect each party’s right to have this case decided only on evidence that has
been presented here in court. Witnesses here in court take an oath to tell the truth, and the
accuracy of their testimony is tested through the trial process. If you do any research or
investigation outside the courtroom, or gain any information through improper communications,
then your verdict may be influenced by inaccurate, incomplete or misleading information that
has not been tested by the trial process. Each of the parties is entitled to a fair trial by an
impartial jury, and if you decide the case based on information not presented in court, you will
have denied the parties a fair trial. Remember, you have taken an oath to follow the rules, and it
is very important that you follow these rules. A juror who violates these restrictions jeopardizes
the fairness of these proceedings, and a mistrial could result that would require the entire trial
process to start over. If any juror is exposed to any outside information, please notify the court
immediately.

Evidence in Electronic Format

The exhibits received in evidence that are capable of being displayed electronically will
be provided to you in that form, and you will be able to view them in the jury room. A computer
will be available to you in the jury room.

A court technician will show you how to operate the computer; and how to locate and
view the exhibits on the computer. If you need additional equipment or supplies or if you have
questions about how to operate the computer or other equipment, you may send a note to the
clerk, signed by your foreperson or by one or more members of the jury. Do not refer to or
discuss any exhibit you were attempting to view.

If a technical problem or question requires hands-on maintenance or instruction, a court
technician may enter the jury room with the clerk present for the sole purpose of assuring that the
only matter that is discussed is the technical problem. When the court technician or any non
juror is in the jury room, the jury shall not deliberate. No juror may say anything to the court
technician or any non juror other than to describe the technical problem or to seek information
about operation of the equipment. Do not discuss any exhibit or any aspect of the case.

The sole purpose of providing the computer in the jury room is to enable jurors to view
the exhibits received in evidence in this case. You may not use the computer for any other
purpose. At my direction, technicians have taken steps to ensure that the computer does not
permit access to the Internet or to any “outside” website, database, directory, game, or other
material. Do not attempt to alter the computer to obtain access to such materials. If you discover
that the computer provides or allows access to such materials, you must inform the court
immediately and refrain from viewing such materials. Do not remove the computer or any
electronic data disk from the jury room, and do not copy any such data.

Communication with the Court

If it becomes necessary during your deliberations to communicate with me, you may send
a note through the clerk, signed by any one or more of you. No member of the jury should ever
attempt to communicate with me except by a signed writing. I will not communicate with any
member of the jury on anything concerning the case except in writing or here in open court. If
you send out a question, I will consult with the lawyers 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 the court – how the jury stands, whether in
terms of vote count or otherwise, until after you have reached a unanimous verdict or have been
discharged.

Return of Verdict

A verdict form has been prepared for you. After you have reached unanimous agreement
on a verdict, your foreperson should complete the verdict form according to your deliberations,
sign and date it, and advise the clerk that you are ready to return to the courtroom.