Drake v. Jones et al

Filing 139

ORDER REGARDING COURT'S INSTRUCTIONS TO THE JURY. Signed by Honorable Joseph F Anderson, Jr on 09/28/2010. (Attachments: # 1 Court's Proposed Instructions to the Jury)(bshr, )

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et v.a k e ones Dr 1 Att. 139 Doc. IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA H o b a rt P. Drake, Jr. ) ) P l a in tif f , ) ) v. ) ) S e rg e a n t Scott Jones; Sgt. Brian Taylor; ) O f f ic e r Natasha Alston; Officer Harry Perez; ) J o h n Does, ) ) D e f e n d a n ts . ) _______________________________________) C / A No.: 6:09-908-JFA COURT'S INSTRUCTIONS TO THE JURY Draft 1 - 9/28/2010 1 Dockets.Justia.com D u tie s of Jury to Find Facts & Follow Law M e m b e r s of the jury, now that you have heard all the evidence and the arguments of th e lawyers, it is my duty to instruct you on the law which applies to this case. These instructions will be in three parts: first, the instructions on general rules that d e f in e and control the jury's duties; second, the instructions that state the rules of law you m u s t apply, that is, what the plaintiff must prove to make the case; and third, some rules for yo u r deliberations. It is your duty to find the facts from all the evidence in the case. To those facts you m u s t apply the law as I give it to you. You are bound to accept the rules of law as I give them to you whether you agree with them or not. And you must not be influenced by any personal lik e s or dislikes, opinions, prejudices or sympathy. That means that you must decide the case s o le ly on the evidence before you and according to the law. You will recall that you took an o a th promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ig n o re others; they are all equally important. And you must not read into these instructions o r into anything I may have said or done any suggestion as to what verdict you should return th a t is a matter entirely for you to decide. Draft 1 - 9/28/2010 2 B u rd e n of Proof A t the beginning of the case, I told you that the plaintiff, Mr. Drake, has the burden of p ro v in g the case by a preponderance of the evidence. That means that the plaintiff has to p ro d u c e evidence which, considered in the light of all the facts, leads you to believe that what t h e plaintiff claims is more likely true than not. To put it differently, if you were to put the p la in tif f 's and defendant's evidence on opposite sides of the scales, the plaintiff would have to make the scales tip slightly on that side. If the plaintiff fails to meet this burden, the verdict m u s t be for the defendant. Those of you who have sat on criminal cases will have heard of proof beyond a re a so n a b le doubt. That is a stricter standard, that is, it requires more proof than a p re p o n d e ra n c e of evidence. The reasonable doubt standard does not apply to a civil case and yo u should therefore put it out of your mind. Draft 1 - 9/28/2010 3 E v id e n c e The evidence from which you are to decide what the facts are consists of: (1) th e sworn testimony of witnesses, both on direct and cross-examination, regardless of who called the witness; and (2 ) th e exhibits which have been received into evidence. Draft 1 - 9/28/2010 4 W h a t Is Not Evidence In reaching your verdict, you may consider only the testimony and exhibits received in to evidence. Certain things are not evidence, and you may not consider them in deciding w h a t the facts are. I will list them for you: (1 ) O p e n in g statements, questions to witnesses, and closing arguments are not e v id e n c e . (2 ) (3) Objections are not evidence. Anything you may have seen or heard when the court was not in session is not e v id e n c e . You are to decide the case solely on the evidence received at the trial. Draft 1 - 9/28/2010 5 D ire c t and Circumstantial Evidence T h e re are two kinds of evidence: direct and circumstantial. Direct evidence is direct p ro o f of a fact, such as testimony of an eyewitness. Circumstantial evidence is indirect e v i d e n c e , that is, proof of a chain of facts from which you could find that another fact exists, e v e n though it has not been proved directly. You are entitled to consider both kinds of e v id e n c e. The law permits you to give equal weight to both, but it is for you to decide how m u c h weight to give to any evidence. It is for you to decide whether a fact has been proved by circumstantial evidence. In m a k in g that decision, you must consider all the evidence in the light of reason, common sense, a n d experience. Draft 1 - 9/28/2010 6 C re d ib ility of Witnesses In deciding what the facts are, you must consider all the evidence. In doing this, you m u st decide which testimony to believe and which testimony not to believe. You are the sole ju d g e s of the credibility, or believability, of each witness. You must decide for yourselves w h e th e r to believe the testimony of any witness. You may believe all or any part or nothing o f what a witness said while on the stand. In determining whether to believe any witness, you sh o u ld apply the same tests of truthfulness which you apply in your own everyday affairs. In d o in g this, you may take into account a number of factors including the following: (1 ) W a s the witness able to see, or hear, or know the things about which that w itn e ss testified? (2) (3 ) (4 ) H o w well was the witness able to recall and describe those things? W h a t was the witness's manner while testifying? D id the witness have an interest in the outcome of this case or any bias or p re ju d ic e concerning any party or any matter involved in the case? (5 ) H o w reasonable was the witness's testimony considered in light of all the e v id e n c e in the case? (6 ) W a s the witness's testimony contradicted by what that witness has said or done a t another time, or by the testimony of other witnesses, or by other evidence? I n deciding whether or not to believe a witness, keep in mind that people sometimes f o rg e t things. You need to consider therefore whether a contradiction is an innocent lapse of m e m o r y or an intentional falsehood, and that may depend on whether it has to do with an Draft 1 - 9/28/2010 7 im p o rta n t fact or with only a small detail. T h e se are some of the factors you may consider in deciding whether to believe t e s t i m o n y. T h e weight of the evidence presented by each side does not necessarily depend on the n u m b e r of witnesses testifying on one side or the other. You must consider all the evidence in the case, and you may decide that the testimony of a smaller number of witnesses on one side has greater weight than that of a larger number on the other. A ll of these are matters for you to consider in finding the facts. Draft 1 - 9/28/2010 8 S e p a ra te Consideration of Each Defendant A lth o u g h there is more than one defendant in this action, it does not follow that if one is liable, all are liable. Each defendant is entitled to a fair consideration of that defendant's o w n defense, and is not to be prejudiced by the fact, if it should become a fact, that you find a g a in s t another. Unless otherwise stated, all instructions given apply to the case against each d e f e n d a n t. Draft 1 - 9/28/2010 9 LIABILITY Draft 1 - 9/28/2010 10 In tro d u c tio n to Liability T h e plaintiff, Hobart P. Drake, Jr., contends that defendants, Sergeant Scott Jones, S e rg e a n t Brian Taylor, Officer Natasha Alston, and Officer Harry Perez violated his federal c o n stitu tio n a l rights by using excessive force against him on January 21, 2008 at the Leiber C o rr e c tio n a l Institute. Draft 1 - 9/28/2010 11 F e d e ra l Claim -- Section 1983 Excessive Force Claim P la in tif f 's claim is brought under federal law, known generally as "Section 1983" s e e k in g to recover damages for a deprivation of his federal constitutional rights. Specifically, th e plaintiff alleges that while the defendants was acting under color of the authority of the S ta te of South Carolina, the defendants subjected the plaintiff to the deprivation of rights and p r iv i le g e s secured and protected by the Constitution of the United States. U n d e r the U.S. Constitution, every incarcerated person has the right not to be subjected to excessive force as I will explain it to you below. In order to prove his claim, the burden is on the plaintiff to establish by a p r e p o n d e r a n c e of the evidence each of the following elements: F irs t: T h a t at the time of the events complained of, the defendants were acting u n d e r the color of the authority of the State of South Carolina. W h e th e r the defendants committed the act(s) alleged by the plaintiff is a question of f a ct for you, the jury, to decide. I will instruct you in a moment on how you will decide that is s u e . For now, assuming that the defendants did commit those acts, I instruct you that b e c au s e the defendants were officials of the South Carolina Department of Corrections at the tim e of the acts in question, he was acting under color of state law. In other words, the first s ta tu to ry requirement is satisfied. Second: T h a t the defendants performed acts which operated to deprive the p lain tiff of his federal constitutional rights, as defined and explained in th e se instructions, by using excessive force against the plaintiff. T h a t the defendants' acts were a proximate cause of damages sustained b y the plaintiff. 12 T h ird : Draft 1 - 9/28/2010 D e f en d a n ts are being sued as individuals. Neither the State of South Carolina or the S o u th Carolina Department of Corrections is a party to this lawsuit. Draft 1 - 9/28/2010 13 E x c e ss iv e Force -- Prison Setting P lain tiff claims that he was subjected to excessive force by the defendants on January 2 1 , 2008. I instruct you that every prison inmate has a right not to be subjected to excessive f o rc e or unreasonable force by prison officials. In order to prove that the force used was e x c es s iv e or unreasonable under the circumstances, the plaintiff, Mr. Drake, must prove that th e defendants applied the force "maliciously or sadistically" for the very purpose of causing h a rm and not in a good faith effort to maintain or restore discipline. T o act "maliciously" means to intentionally do a wrongful act without just cause or ex cu se, with an intent to inflict injury or under circumstances that show an evil intent. In d e c id in g whether this element has been proved, I remind you that you must give correctional o f f ic ia ls wide ranging deference in the adoption and execution of policies and practices that in the exercise of reasonable judgment are needed to preserve internal order and discipline and to maintain internal security in the correctional facility. I instruct you that several factors should be considered by you in determining whether th e defendants acted maliciously or sadistically. These factors are: (1 ) (2 ) (3 ) (4) the need for application of force; th e relationship between that need and the amount of force used; the threat "reasonably perceived by the responsible officials;" and any efforts made to temper the severity of a forceful response. N e g lig e n t or careless conduct is not sufficient to form the basis of a claim under S e c tio n 1983. Draft 1 - 9/28/2010 14 U s e of Chemical Munition T h e plaintiff's claim for excessive force is based in part on the plaintiff's allegation that th e defendants' use of chemical munitions or pepper spray, violated his constitutional right a g a in s t the use of excessive or unreasonable force by prison officials. It is a violation of the C o n s titu tio n for prison officials to use mace, tear gas, or other chemical agents, including p e p p e r spray, in quantities greater than necessary or for the sole purpose of infliction of pain. However, the use of pepper spray by itself is not necessarily unconstitutional. It is up to you, th e jury, to examine the totality of the circumstances and to decide whether the pepper spray w a s used maliciously or sadistically. Draft 1 - 9/28/2010 15 P r o x im a te Cause A s to the plaintiff's asserted claim, the plaintiff must prove that the defendants' acts w e re a proximate cause of the damages sustained by the plaintiff. A proximate cause is the e f f ic ie n t, or direct, cause­the thing which brings about the damage complained of. In other w o rd s , the law provides that there can be no liability unless there is some affirmative link b e tw e e n the acts of the defendants and the harm suffered. Draft 1 - 9/28/2010 16 DEFENSES Draft 1 - 9/28/2010 17 D e f en se s In response to these allegations, the defendants have denied the material allegations of th e complaint against them. This general denial places the burden on the plaintiff to come f o rw a rd with evidence to prove the material allegations of his complaint. Draft 1 - 9/28/2010 18 DAMAGES Draft 1 - 9/28/2010 19 T ra n sitio n to Damages If you should find in accordance with these instructions that the plaintiff has failed to e sta b lis h the essential elements of his cause of action by a preponderance of the evidence, then yo u r verdict should be for the defendants. If , on the other hand, you find the plaintiff has established the essential elements of his c a u se of action by a preponderance of the evidence, your verdict should be for the plaintiff and yo u should next consider the question of damages. Draft 1 - 9/28/2010 20 D a m a g e s -- Two Types T h e re are two types of damages to which a plaintiff may be entitled in an action of this s o rt: (1) actual, and (2) punitive. Actual damages are intended to compensate a person for that w h ic h he has suffered or lost as a result of another's wrong. Punitive damages are intended to punish the wrongdoer for some extraordinary misconduct and to serve as a warning to the d e f e n d a n ts and to others not to engage in such conduct. Draft 1 - 9/28/2010 21 D a m a g e s -- Personal Injury -- Elements D a m a g e s are intended to compensate a party for that which he has suffered or lost as a result of another's wrongful act or omission. If you should find that the plaintiff is entitled to a verdict, then, in arriving at the amount of your award you should consider such: (1 ) (2) (3) (4 ) p a in , s u f f e ri n g , p h ys ic a l injury, and p e rm a n e n t impairment or disability a s you might find the plaintiff has suffered or is reasonably certain to suffer in the future as a direct and proximate result of the defendants' wrongful acts. In assessing future damages yo u should consider such damage or injury as the plaintiff is reasonably certain to suffer in the f u tu re , as well as the nature and extent of his injuries and whether or not they are reasonably c e rta in to be permanent. Draft 1 - 9/28/2010 22 D a m a g e s -- Personal Injury -- Elements Definitions A s used in these instructions, "pain" means an acute discomfort of mind or body, in c lu d in g mental or bodily suffering or distress, and the term "suffering" can be defined as the u n d e rg o in g or enduring of pain or distress. Pain and suffering also includes the loss of the a b ility to enjoy life. "Permanent impairment or disability" means an impairment which s u b s ta n tia lly and permanently affects a person's physical or mental well-being. "Permanent im p a irm e n t or disability" does not mean helplessness or complete disability, but rather d isa b ility that is continuing as opposed to temporary, even though it may only be partial. Draft 1 - 9/28/2010 23 D a m a g e s -- Personal Injury -- Degree of Proof A plaintiff need not prove the amount of his damages to a mathematical certainty. The f a ct that the exact amount of damages may be difficult to ascertain, or that they cannot be m e a s u re d by a monetary standard, is no reason for denying an award of damages. Draft 1 - 9/28/2010 24 D a m a g e s -- Personal Injury -- Reasonableness A lth o u g h damages need not be established to a mathematical certainty, they must be re a so n a b le . You are not to award speculative damages or damages for any injury or condition f ro m which the plaintiff may have suffered or may now be suffering unless it has been e sta b lis h e d by a preponderance of the evidence that such injury was proximately caused by the d e f e n d a n ts' conduct. Accordingly, if you should find that the plaintiff is entitled to a verdict, yo u may award him only such an amount of actual damages as will reasonably compensate h im for such injuries and/or losses as he has sustained or is reasonably certain to sustain in the f u tu re as a direct and proximate result of the defendants' wrong. Draft 1 - 9/28/2010 25 D a m a g e s -- Speculative Y o u are not permitted to award speculative damages. So, you are not to include in any v e r d i c t compensation for any prospective loss which, although possible, is not reasonably c e rta in to occur in the future. Draft 1 - 9/28/2010 26 P u n itiv e Damages ) Section 1983 Cases In addition to requesting actual damages, the plaintiff has also requested punitive d a m a g e s . You may award punitive damages only if you have awarded the plaintiff actual dam ages. P u n itiv e damages are intended to punish the defendants for extreme or outrageous c o n d u c t, or to deter the defendants and others like him from committing such egregious c o n d u c t in the future. They are awarded for the benefit of society and in the public interest, n o t to compensate the plaintiff for damages actually sustained. P u n itiv e damages may not be awarded against a defendant if he was merely negligent in his conduct. Rather, these damages may be awarded against a defendant only if his conduct is shown to be malicious, motivated by evil motive or evil intent, or if it involved reckless or c a llo u s indifference to the plaintiff's constitutional rights. An act or failure to act is malicious if it is prompted by ill will or spite toward the plaintiff. T h e plaintiff has the burden of proving, by a preponderance of the evidence, that the d e f en d a n ts acted maliciously, with evil motive or intent, or with reckless or callous in d if f ere n c e to the rights of the plaintiff. Even if the plaintiff meets this burden of proof, you, as a jury, have discretion to award or not to award punitive damages. Punitive damages are a n extraordinary remedy, and the decision of whether to award them is completely within your d is c re tio n . I n making this decision, you should consider the underlying purposes of punitive d a m a g e s. Remember, they are intended to punish a defendant for outrageous conduct or to d e ter him and others like him from repeating such conduct. Thus, in deciding whether to Draft 1 - 9/28/2010 27 a w a rd punitive damages, you should ask yourselves questions such as whether the defendants m a y be adequately punished by an award of actual damages only, or whether punitive damages a r e likely to deter the defendants or other persons from performing similar wrongful acts. W h e t h e r or not to make an award of punitive damages and the amount of those d a m a g e s are matters exclusively within your discretion as the jury. When awarded, the a m o u n t of punitive damages must be fixed with calm discretion and sound reason, and must n e v e r be determined in amount because of any sympathy, bias, or prejudice. In fixing the amount of punitive damages, you must consider numerous factors in c lu d in g : (1 ) (2) th e degree of reprehensibility of the defendants' conduct; th e relationship between the amount of punitive damages and any actual harm in f licted upon the plaintiff -- Stated another way, these first two factors require th a t you ensure that the amount of punitive damages bears a reasonable relatio n sh ip to the nature and extent of the wrongful conduct and the harm c a u se d ; (3) Y o u should also consider whether the wrongful conduct conferred any profit on d e f en d a n ts -- In making this determination, you may consider whether the p e n a lty imposed should focus on depriving the defendants of the profits it may h a v e derived from the wrongful conduct; (4) Y o u may also consider awarding the plaintiff the costs of prosecuting his claim a g a i n s t the defendants; Draft 1 - 9/28/2010 28 (5 ) Y o u must also consider the defendants' ability to pay the amount of punitive d a m a g e s which are awarded. In making this determination, the defendants' w e a lth or lack of it is a relevant factor, and you would therefore award such a m o u n t of punitive damages as would punish the defendants but not cause them to suffer economic bankruptcy. Y o u should also consider the following factors which may overlap with the factors I h a v e just discussed: (1 ) (2 ) (3 ) (4 ) (5 ) D e f e n d a n ts ' degree of culpability; T h e duration of the conduct; D e f e n d a n ts' awareness or concealment of the conduct; T h e existence of similar past conduct; L ik e lih o o d the award will deter the defendants or others like him from similar c o n d u c t; W h e th e r the award is reasonably related to the harm likely to result from such c o n d u c t; and D e f e n d a n ts ' ability to pay. (6 ) (7 ) W h ile you are required to consider each of the factors I have addressed in deciding w h e th e r to award punitive damages and the amount of such damages, you are not limited to th e se factors. You may also determine that some apply and that some do not. You may not, h o w e v e r, allow your determination of the amount or propriety of punitive damages to be in f lu e n c e d by personal bias, or sympathy. A s with all other issues in this case, any decision you reach on punitive damages must b e unanimous. Draft 1 - 9/28/2010 29 D a m a g e s -- Cautionary Instruction T h e fact that I have instructed you on the proper measure of damages should not be c o n sid e re d as an indication of any view of mine as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance, in th e event that you should find in favor of the plaintiff on the question of liability, by a p r e p o n d e r a n c e of evidence and in accord with the other instructions. Draft 1 - 9/28/2010 30 CLOSING Draft 1 - 9/28/2010 31 D u ty to Deliberate W h e n you retire to the jury room, you should first elect one from among you to serve a s your foreperson. The foreperson you select will preside over the deliberations and speak f o r the jury here in court. A f ter electing your foreperson, you should discuss the case with your fellow jurors to r e a c h agreement if you can do so. Your verdict must be unanimous. E a c h of you must decide the case for yourself, but you should do so only after you have c o n s id e re d all the evidence, discussed it fully with the other jurors, and listened to the views o f your fellow jurors. D o not be afraid to change your opinion if the discussion persuades you that you sh o u ld . But 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 o f you can do so after having made your own conscientious decision. Do not change an honest b e lief about the weight and effect of the evidence simply to reach a verdict. R e m e m b e r at all times that you are not partisans. You are judges -- judges of the facts. Y o u r sole interest is to seek the truth from the evidence in the case. Draft 1 - 9/28/2010 32 C o n s id e ra tio n of Evidence Y o u r verdict must be based solely on the evidence and on the law as I have given it to yo u in these instructions. However, nothing that I have said or done is intended to suggest w h a t your verdict should be -- that is entirely for you to decide. T h e arguments and statements of the attorneys are not evidence. If you remember the f a cts differently from the way the attorneys have stated them, you should base your decision o n what you remember. R e tu rn of Verdict A f ter you have reached a unanimous agreement on a verdict, your foreperson will fill in the form that has been given to you, sign and date it and advise the marshal (or bailiff) o u ts id e your door that you are ready to return to the courtroom. C o m m u n i c a t in g with the Court If it becomes necessary during your deliberations to communicate with me, you may sen d a note through the marshal (or bailiff), signed by your foreperson or by one or more m e m b e rs of the jury. No member of the jury should ever attempt to communicate with me e x c ep t by a signed writing; and I will communicate with any member of the jury on anything c o n c ern in g the case only in writing, or orally here in open court. Remember that you are not to tell anyone -- including me -- how the jury stands, numerically or otherwise, until after yo u have reached a unanimous verdict or have been discharged. Draft 1 - 9/28/2010 33 IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA H o b a rt P. Drake, Jr. ) ) P l a in tif f , ) ) v. ) ) S e rg e a n t Scott Jones; Sergeant Brian Taylor; ) O f f ic e r Natasha Alston; Officer Harry Perez; ) ) D e f e n d a n ts . ) _______________________________________) C / A No.: 6:09-908-JFA VERDICT I. We, the jury, unanimously find for the plaintiff, Hobart P. Drake, Jr., actual damages in the sum of______________________________ ($___________) dollars against the following defendant(s): Sergeant Scott Jones Sergeant Brian Taylor Officer Natasha Alston Officer Harry Perez ______________________________ Foreperson Date:__________________ Draft 1 - 9/28/2010 34 (Note, the following verdict is to be used only if the jury has found for the plaintiff using verdict I above) II. We, the jury, unanimously find for the plaintiff, Hobart P. Drake, Jr., against the defendants indicated below, punitive damages as indicated: Sergeant Scott Jones -- punitive damages in the sum of _________________________ ($__________) dollars. Sergeant Brian Taylor -- punitive damages in the sum of _________________________ ($__________) dollars. Officer Natasha Alston -- punitive damages in the sum of _________________________ ($__________) dollars. Officer Harry Perez -- punitive damages in the sum of __________________________ ($__________) dollars. _____________________________ Foreperson Date:_________________ III. We, the jury, unanimously find for the defendants. _____________________________ Foreperson Date:_______________ Draft 1 - 9/28/2010 35

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