Soto, Jose v. Kelley et al

Filing 96

ORDER distributing revised draft voir dire, introductory instructions, post-trial instructions and special verdict form. Signed by District Judge James D. Peterson on 7/19/2017. (Attachments: # 1 Proposed Draft Voir Dire, # 2 Proposed Introductory Instructions, # 3 Proposed Post-Trial Jury Instructions, # 4 Proposed Special Verdict) (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOSE SOTO,
Plaintiff,
v.

[DRAFT] POST-TRIAL
JURY INSTRUCTIONS

KELLY RICKEY, MATTHEW GRANT,
RICK DONOVAN, WILLIAM GEE,
JASON KROCKER, and WILLIAM LEFEVRE,

14-cv-514-jdp

Defendants.
Members of the Jury:
Now that you have heard the evidence and the arguments, I will give you the
instructions that will govern your deliberations in the jury room. It is my job to
decide what rules of law apply to the case and to explain those rules to you.
You have two duties as a jury. Your first duty is to decide the facts from the
evidence in the case. This is your job, and yours alone.
Your second duty is to apply the law that I give you to the facts. You must
follow these instructions, even if you disagree with them. Each of the instructions is
important, and you must follow all of them.
Perform these duties fairly and impartially. Do not allow sympathy, prejudice,
fear, or public opinion to influence you.
The verdict must represent the considered judgment of each juror. Your
verdict, whether for or against any party, must be unanimous. You should make every

reasonable effort to reach a verdict. In doing so, you should consult with one another,
express your own views, and listen to the opinions of your fellow jurors. Discuss your
differences with an open mind. Do not hesitate to reexamine your own views and
change your opinion if you come to believe it is wrong. But you should not surrender
your honest beliefs about the weight or effect of evidence solely because of the
opinions of other jurors or for the purpose of returning a unanimous verdict. All of
you should give fair and equal consideration to all the evidence and deliberate with
the goal of reaching an agreement that is consistent with the individual judgment of
each juror. You are impartial judges of the facts.
Your deliberations will be secret. You will never have to explain your verdict to
anyone.
If you have formed any idea that I have an opinion about how the case should
be decided, disregard that idea. It is your job, not mine, to decide the facts of this
case.
The case will be submitted to you in the form of a special verdict on liability
and damages, consisting of 4 questions. In answering the questions, you should
consider only the evidence that has been received at this trial. Do not concern
yourselves with whether your answers will be favorable to one side or another, or with
what the final result of this lawsuit may be.

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Burden of Proof
As I told you at the beginning of the trial, plaintiff has the burden of proving
that each defendant violated his Eighth Amendment rights by a preponderance of the
evidence. A “preponderance of the evidence” means that when you have considered
all the evidence in the case, you must be persuaded that it is more probably true than
not true that the defendant violated plaintiff’s rights.
All Litigants Equal Before the Law
In this case, plaintiff is a prisoner. All parties are equal before the law. A
prisoner is entitled to the same fair consideration that you would give any individual
person.
Answers Not Based on Guesswork
If, after you have discussed the testimony and all other evidence that bears
upon a particular question, you find that the evidence is so uncertain or inadequate
that you have to guess what the answer should be, then the party with the burden of
proof as to that question has not met the required burden of proof. Your answers are
not to be based on guesswork or speculation. They are to be based upon credible
evidence from which you can find the existence of the facts that the party must prove
to satisfy the burden of proof on the question under consideration.

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Absence of Evidence
The law does not require any party to call as a witness every person who might
have knowledge of the facts related to this trial. Similarly, the law does not require
any party to present as exhibits all papers and things mentioned during this trial.
Multiple Claims; Multiple Defendants
You must give separate consideration to each claim and each party in this case.
Although there are six defendants, Kelly Rickey, Matthew Grant, Rick Donovan,
William Gee, Jason Krocker, and William LeFevre, it does not follow that if one is
liable, any of the others is also liable.

LIABILITY
I will now instruct you more specifically on the law you must apply to this
case. To succeed on his claim of excessive use of force against each defendant,
plaintiff must prove each of the following things by a preponderance of the evidence:
1. Defendant intentionally used force on plaintiff.
2. Defendant used force for the purpose of harming plaintiff, and not in a
good faith effort to maintain or restore security or discipline.
3. Defendant’s conduct harmed plaintiff. Plaintiff does not need to prove
that he suffered a serious injury. If defendant’s use of force caused pain
to plaintiff, that is sufficient harm, even if plaintiff did not require
medical attention or did not have long lasting injuries.

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If you find that, as to any individual defendant, plaintiff has proved each of
these things by a preponderance of the evidence, then you must find for plaintiff as
to that defendant, and go on to consider the question of damages.
If, on the other hand, you find that, as to any individual defendant, plaintiff
has failed to prove any one of these elements by a preponderance of the evidence,
then you must find for that defendant, and you will not consider the question of
damages.
In deciding whether plaintiff has proved that the defendant used force for the
purpose of harming plaintiff, you should consider all of the circumstances. When
considering all of the circumstances, among the factors you may consider are the need
to use force, the relationship between the need to use force and the amount of force
used, the extent of plaintiff’s injury, whether defendant reasonably believed there was
a threat to the safety of staff or prisoners, any efforts made by defendant to limit the
amount of force used, and whether defendant was acting pursuant to a policy or
practice of the prison that in the reasonable judgment of prison officials was needed
to preserve order, discipline and security.
An officer is entitled to use some force if a prisoner disobeys a valid command.
You may still consider, however, whether the amount of force used was excessive.

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Requirement of Personal Involvement
Plaintiff must prove by a preponderance of the evidence that each defendant
was personally involved in the conduct that plaintiff complains about. You may not
hold a defendant liable for what other employees did or did not do.
Evidence of Statutes, Administrative Rules, Regulations, and Policies
You have heard evidence about whether defendants’ conduct complied with
policies or procedures. You may consider this evidence in your deliberations. But
remember that the issues are whether each defendant used excessive force on
plaintiff, not whether a policy or procedure might have been complied with.

DAMAGES
Prefatory Instruction
If you find that plaintiff has proved any of his claims against any defendants,
then you must determine what amount of damages, if any, plaintiff is entitled to
recover. If you find that plaintiff has failed to prove all of his claims, then you will
not consider the damages questions.
Compensatory
If you find in favor of plaintiff, then you must determine the amount of money
that will fairly compensate plaintiff for any injury that you find he sustained and is
reasonably certain to sustain in the future as a direct result of defendants’ excessive
force. These are called “compensatory damages.”

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Plaintiff must prove his damages by a preponderance of the evidence. Your
award must be based on evidence and not speculation or guesswork. This does not
mean, however, that compensatory damages are restricted to the actual loss of money;
they include both the physical and mental aspects of injury, even if they are not easy
to measure.
You should consider the follow types of compensatory damages, and no others:
1. The reasonable value of medical care and supplies that plaintiff
reasonably needed and actually received as well as the present value of
the care and supplies that he is reasonably certain to need and receive in
the future.
2. The physical and mental/emotional pain and suffering and disability/loss
of a normal life that plaintiff has experienced and is reasonably certain
to experience in the future. No evidence of the dollar value of physical
or mental/emotional pain and suffering or disability/loss of a normal life
has been or needs to be introduced. There is no exact standard for
setting the damages to be awarded on account of pain and suffering.
You are to determine an amount that will fairly compensate the plaintiff
for the injury he has sustained.
If you find in favor of plaintiff but find that the plaintiff has failed to prove
compensatory damages, you must return a verdict for plaintiff in the amount of one
dollar ($1.00).
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Punitive Damages
If you find for plaintiff, you may, but are not required to, assess punitive
damages against defendants. The purposes of punitive damages are to punish a
defendant for his conduct and to serve as an example or warning to defendant and
others not to engage in similar conduct in the future.
Plaintiff must prove by a preponderance of the evidence that punitive damages
should be assessed against defendants. You may assess punitive damages only if you
find that at least one of the defendant’s conduct was malicious or in reckless
disregard of plaintiff’s rights. Conduct is malicious if it is accompanied by ill will or
spite, or is done for the purpose of injuring plaintiff. Conduct is in reckless disregard
of plaintiff’s rights if, under the circumstances, it reflects complete indifference to
plaintiff’s safety or rights.
If you find that punitive damages are appropriate, then you must use sound
reason in setting the amount of those damages. Punitive damages, if any, should be in
an amount sufficient to fulfill the purposes that I have described to you, but should
not reflect bias, prejudice, or sympathy toward any party. In determining the amount
of any punitive damages, you should consider the following factors:
•

the reprehensibility of defendants’ conduct;

•

the impact of defendants’ conduct on plaintiff;

•

the relationship between plaintiff and defendants;

•

the likelihood that defendants would repeat the conduct if an award of
punitive damages is not made; and
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•

the relationship of any award of punitive damages to the amount of actual
harm plaintiff suffered.

Taxes
You must not consider the impact of taxes on your award of damages.

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INSTRUCTIONS AFTER CLOSING ARGUMENTS
Selection of Presiding Juror; Communication with the Judge; Verdict
When you go to the jury room to begin considering the evidence in this case
you should first select one of the members of the jury to act as your presiding juror.
This person will help to guide your discussions in the jury room.
You are free to deliberate in any way you decide, or select whomever you like
as the presiding juror. When thinking about who should be presiding juror, you may
want to consider the role that a presiding juror usually plays. He or she serves as the
chairperson during the deliberations and has the responsibility of ensuring that all
jurors who desire to speak have a chance to do so before any vote. The presiding juror
should guide the discussion and encourage all jurors to participate. I encourage you at
all times to keep an open mind if you ever disagree or come to conclusions that are
different from those of your fellow jurors. Listening carefully and thinking about the
other juror’s point of view may help you understand that juror’s position better or
give you a better way to explain why you think your position is correct.
Once you are in the jury room, if you need to communicate with me, the
presiding juror will send a written message to me. However, do not tell me how you
stand as to your verdict.
As I have mentioned before, the decision you reach must be unanimous; you
must all agree.

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Suggestions for Conducting Deliberations:
To help you determine the facts, you may want to consider discussing one
question at a time, and use my instructions to the jury as a guide to determine
whether there is sufficient evidence to prove all the necessary legal elements for each
claim or defense. I also suggest that any public votes on a verdict be delayed until
everyone can have a chance to say what they think without worrying what others on
the panel might think of their opinion. I also suggest that you assign separate tasks,
such as note taking, time keeping, and recording votes to more than one person to
help break up the workload during your deliberations. I encourage you at all times to
keep an open mind if you ever disagree or come to conclusions that are different from
those of your fellow jurors. Listening carefully and thinking about the other juror’s
point of view may help you understand that juror’s position better or give you a
better way to explain why you think your position is correct.

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