Booker v. Ervin et al

Filing 46

ORDER regarding jury instructions for the hearing scheduled on Monday, November 18, 2019. To the extent that either party has any objections or suggested charge to these instructions, that party shall raise the objection at the pretrial conference on Friday, November 15, 2019. Signed by Chief Judge J. Randal Hall on 11/13/2019. (jlh)

IN THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION

JARVIS DEMON BOOKER,

Plaintiff,
CV 617-015

V.

OFFICER ERVIN,
Defendant

ORDER

The remaining claim in this case is Plaintiff's excessive force
claim for nominal damages against Defendant Ervin.

The case is scheduled

for jury selection and trial on Monday, November 18, 2019, in Statesboro,
Georgia.

As

an

aid

to

the

parties,

the

Court

has

considered the

case

preliminarily and forwards herewith its expected jury instructions in a
case of this type.

To the extent that either party has any objection

to these instructions or has any suggested charge that differs from the
jury instructions attached hereto, that party shall raise the objection
at the pretrial conference on Friday, November 15, 2019.

ORDER ENTERED at Augusta, Georgia, this

ay of November,

2019.

J.VE^NDAL HALL< CHIEF JUDGE

UNIT^ STATES DISTRICT COURT
5QLMERN DISTRICT OF GEORGIA

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA

STATESBORO DIVISION

JARVIS DEMON BOOKER,

Plaintiff,
CV 617-015

V.

OFFICER ERVIN,
Defendant.

JURY INSTRUCTIONS

Members of the Jury:

I will now explain to you the rules of law that you must
follow and apply in deciding this case.

When I have finished you will go to the jury room and begin
your discussions -- what we call your deliberations.
In deciding the case you must follow and apply all of the law

as I explain it to you, whether you agree with that law or not;

and you must not let your decision be influenced in any way by
sympathy, or by prejudice, for or against anyone.

In your deliberations you should consider only the evidence
-- that is, the testimony of the witnesses and the exhibits I have
admitted in the record -- but as you consider the evidence, both
direct and circumstantial,
conclusions

which

reason

you

and

may make

common

deductions

sense

lead

you

and

reach

to

make.

"Direct evidence" is the

testimony of one

who asserts actual

knowledge of a fact, such as an eye witness.

"Circumstantial

evidence" is proof of a chain of facts and circumstances tending
to prove, or disprove, any fact in dispute.

The law makes no

distinction between the weight you may give to either direct or
circumstantial evidence.

Remember that nothing the lawyers say is evidence in the case.
And, except for my instructions to you on the law, you should

disregard anything I may have said during the trial in arriving at
your decision concerning the facts.

It is your own recollection

and interpretation of the evidence that controls.

Credibility of Witnesses

When I say you must consider all the evidence, I do not mean
that you must accept all the evidence as true or accurate. You
should decide whether you believe what each witness had to say,
and how important that testimony was. In making that decision you

may believe or disbelieve any witness, in whole or in part. The
number of witnesses testifying concerning a particular point does
not necessarily matter.

To decide whether you believe any witness I suggest that you

ask yourself a few questions:
• Did the witness impress you as one who was telling the truth?
• Did the witness have any particular reason not to tell the
truth?

• Did the witness have a personal interest in the outcome of
the case?

• Did the witness seem to have a good memory?

• Did the witness have the opportunity and ability to accurately
observe the things he or she testified about?

• Did the witness appear to understand the questions clearly
and answer them directly?

• Did the witness's testimony differ from other testimony or
other evidence?

Impeachment of Witnesses:
Inconsistent Statement or Felony Conviction

You

should

also

ask

yourself

whether

there

was

evidence

tending to prove that the witness testified falsely concerning
some important fact; or, whether there was evidence that at some

other time the witness said or did something, or failed to say or
do something, which was different from the testimony the witness
gave before you during the trial.
that

the

witness

has

been

You may also consider the fact

convicted

of

a

felony

or

a

crime

involving dishonesty or a false statement.

You should keep in mind, of course, that a simple mistake by
a witness does not necessarily mean that the

telling the

truth as he

witness was not

or she remembers it, because

people

naturally tend to forget some things or remember other things
inaccurately.

So, if a witness has made a misstatement, you need

to consider whether that misstatement was simply an innocent lapse

of memory or an intentional falsehood; and the significance of
that may depend on whether it has to do with an important fact or
with only an unimportant detail.

Consideration of Direct and Circumstantial Evidence;
Argument of Counsel; Comments by the Court

As I said before, you must consider only the evidence that I
have admitted in the case. Evidence includes the testimony of
witnesses and the exhibits admitted.

Again, nothing the lawyers

say is evidence and is not binding on you.
You should not assume from anything I have said that I have

any opinion about any factual issue in this case. Except for my
instructions to you on the law, you should disregard anything I

may have said during the trial in arriving at your own decision
about the facts.

Your own recollection and interpretation of the

evidence is what matters.

In considering the evidence you may use reasoning and common
sense to make deductions and reach conclusions. You should not be

concerned about whether the evidence is direct or circumstantial.

Responsibility for Proof—Plaintiffs Claim;
Preponderance of the Evidence

In this case it is the responsibility of the Plaintiff, Jarvis
Demon Booker, to prove every essential part of his claim by a
"preponderance of

the evidence." This is sometimes called the

"burden of proof" or the "burden of persuasion."
A "preponderance of the evidence" simply means an amount of
evidence that is enough to persuade you that the Plaintiff's claim

is more likely true than not true.
If the proof fails to establish any essential part of a claim

or contention by a preponderance of the evidence, you should find
against the Plaintiff.

In

deciding

whether

any

fact

has

been

proved

by

a

preponderance of the evidence, you may consider the testimony of
all of the witnesses, regardless of who may have called them, and
all of the exhibits received in evidence, regardless of who may
have produced them.

If the proof fails to establish any essential part of the
Plaintiff's claim by a preponderance of the evidence, you should
find for the Defendant as to that claim.

civil Rights - 42 U.S.C. § 1983 Claims - Eighth Amendment Claim
- Convicted Prisoner Alleging Excessive Force
In this case. Plaintiff Jarvis Demon Booker claims that the

Defendant,

Officer

Ervin,

while

acting

under

color

of

law,

intentionally violated Mr. Booker's Eighth Amendment right as a

prisoner to be free from cruel and unusual punishment.
The

Constitution

guarantees

that

every

person

who

is

convicted of a crime or a criminal offense has the right not to

be subjected to cruel and unusual punishment. This includes the

right not to be assaulted or beaten without legal justification
while incarcerated.

To succeed on this claim, Mr. Booker must prove each of the

following facts by a preponderance of the evidence:
First:

That Officer Ervin intentionally used force

against Mr. Booker on August 31, 2015;

Second:

That the force used against Mr. Booker by Officer

Ervin was excessive;
Third:

That

Officer

Ervin's

conduct

caused

Mr.

Booker's injuries; and
Fourth:

That Officer Ervin acted under color of law.

You must decide whether any force used in this case was
excessive based on whether the force, if any, was applied in a

good-faith effort to maintain or restore discipline, or instead
whether

it

was

applied

maliciously or

sadistically

to

cause

harm. In

making

that decision

you should

consider the amount

of force used in relationship to the need presented; the motive
of Defendant; the extent of the injury inflicted; and any effort
made

to

temper

the

severity

of

the

force

used.

Of

course,

officers may not maliciously or sadistically use force to cause
harm

regardless

of

the

significance

of

the

injury

to

the

prisoner. But not every push or shove—even if it later seems

unnecessary—is

a

constitutional

violation.

Also,

an officer

always has the right to use the reasonable force that is necessary
under the circumstances to maintain order and ensure compliance

with jail or prison regulations.
For the third element, Officer Ervin's conduct caused Mr.

Booker's injuries if
without

Officer

Mr. Booker would

Ervin's

conduct,

and

not have
the

been injured

injuries

were

a

reasonably foreseeable consequence of Officer Ervin's conduct.
For the fourth element, you must decide whether Officer Ervin
acted

under

color

of

law.

A

government official

acts ''under

color" of law when he acts within the limits of lawful authority.

He also acts under color of law when he claims to be performing

an official duty but his acts are outside the limits of lawful

authority and abusive in manner, or he acts in a way that misuses
his power and is able to do so only because he is an official.
If you find Mr. Booker has proved each of the facts he must

prove, you must find for Mr. Booker and consider the issue of

damages.

If you find that Mr. Booker has not proved each of these

facts, then you must find for Officer Ervin.

Reasonableness of Officer's Decision

In evaluating the reasonableness of an officer's decision,

you must allow for the fact that officers are often forced to make

split-second

judgments

--

in

circumstances

that

are

tense,

uncertain, and rapidly evolving -- about the amount of force that
is necessaiy in a particular situation.
officer's

decision

must

be

judged

The reasonableness of the

from

the

perspective

of

a

reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.

10

Damages

The Court has determined as a matter of law that Plaintiff

can recover nominal damages only.

This is because a person whose

constitutional rights were violated is entitled to a recognition
of

that

violation,

Therefore,

if

even

Plaintiff

if

he

proves

suffered
that

no

actual

Defendant

injury.

violated

his

constitutional rights, then you may award nominal damages, for
example, $1.00.

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Duty to Deliberate

Of

course,

concerning

the

the

fact

issue

that

of

I

have

Plaintiff's

given
damages

you

instructions

should

not

be

interpreted in any way as an indication that I believe that the
Plaintiff should, or should not, prevail in this case.
Any verdict you reach in the jury room must be unanimous. In
other

words,

to

return

a

verdict

you

must

all

agree.

Your

deliberations will be secret; you will never have to explain your
verdict to anyone.

It is your duty as jurors to discuss the case with one another
in an effort to reach agreement if you can do so. Each of you must

decide the case for yourself, but only after full consideration of
the evidence with the other members of the jury. While you are

discussing the case do not hesitate to re-examine your own opinion
and change your mind if you become convinced that you were wrong.

But do not give up your honest beliefs solely because the others
think differently or merely to get the case over with.
Remember, that in a very real way you are judges --

judges of the facts. Your only interest is to seek the truth from
the evidence in the case.

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Election of Foreperson;
Explanation of Verdict Form
When you go to the jury room you should first select one of
your members to act as

your foreperson.

The foreperson

will

preside over your deliberations and will speak for you here in
court.

A form of verdict has been prepared for your convenience.
You will take the verdict form to the jury room and when you

have reached unanimous agreement, you will have your foreperson
fill in the verdict form, date and sign it, and then return to the
courtroom.

If you should desire to communicate with me at any time,
please write down your message or question and pass the note to
the court security officer, who will bring it to my attention.

I

will then respond as promptly as possible, either in writing or by

having you returned to the courtroom so that I can address you
orally.

I caution you, however, with regard to any message or

question you might send, that you should not tell me how many

jurors have voted one way or the other at that time.

That

information must remain in the jury room and not be shared with
anyone, including me.

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