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Robert E. Hunter, D.V.M.; and Howard Eley v. County of Sacramento; Sheriff Scott Jones

February 13, 2013

ROBERT E. HUNTER, D.V.M.; AND HOWARD ELEY,
PLAINTIFFS,
v.
COUNTY OF SACRAMENTO; SHERIFF SCOTT JONES, IN HIS OFFICIAL CAPACITY,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

TRIAL DOCUMENTS

Attached are the Court's proposed voir dire, preliminary jury instructions, closing jury instructions, and verdict forms. Any proposed modifications should be submitted as soon as practicable.

Since Plaintiffs' Fourth Amendment excessive force claims against Sheriff Scott Jones are in his official capacity only, the attached documents reference the County of Sacramento as the only defendant. Naming Defendant Jones in the jury instructions and verdict forms would be redundant and potentially confusing to the jury. See Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cnty. Sheriff Dept., 533 F.3d 780, 799 (9th Cir. 2008) ("An official capacity suit against a municipal officer is equivalent to a suit against the entity.").

The closing jury instructions include an instruction (Closing Instruction No. 8), which sets forth the parties' undisputed facts as stated in their Joint Final Pretrial Statement. (See ECF No. 71, 2:3-15.) The closing jury instructions (Closing Instruction No. 10) also include a definition of "practice or custom," which includes language from Defendants' Proposed Instruction on Monell liability (ECF No. 152); the Ninth Circuit's Model Civil Jury Instruction No. 9.4, as modified in January of 2012; and Plaintiffs' Objections and Modifications to Court Proposed Jury Instructions, Proposed Special Instruction No. 9 (ECF No. 105).

Further, the liability instruction (Closing Instruction No. 9) does not include actual injury as an element, and an instruction concerning nominal damages (Closing Instruction No. 13) has been added since "[t]he law of [the Ninth C]circuit entitles a plaintiff to an award of nominal damages if the defendant violated the plaintiff[s'] constitutional right[s] . . . even if the plaintiff[s] suffered no actual damage." Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir. 1993) (citing Floyd v. Laws, 929 F.2d 1390, 1401 n.9 (9th Cir. 1991)). "Under Fourth Amendment jurisprudence, the law is well settled that a plaintiff may recover nominal damages without proof of actual injury for unreasonable intrusions on one's bodily integrity." Headwaters Forest Def. v. Cnty. of Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2001) (internal quotation marks omitted), vacated and remanded on other grounds, 534 U.S. 801 (2001).

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

2:06-cv-00457-GEB-AC

Robert E. Hunter, D.V.M.; Howard Eley, ) Plaintiffs, v. County of Sacramento, Defendant.

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, [__________________].

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 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. Counsel, 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 randomly-selected 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. In this civil case, the parties dispute whether the plaintiffs were subjected to excessive force in violation of the Fourth Amendment while incarcerated at the Sacramento Main Jail. The parties also dispute whether the alleged use of excessive force against each Plaintiff was caused by a custom or practice of the County of Sacramento.

5. Raise your hand if you have any knowledge of the facts or events in this case.

6. Raise your hand if there is anything about the allegations which causes you to feel that you might not be a fair juror in this case.

7. Raise your hand if there is any reason why you will not be able to give your full attention to this case.

8. Raise your hand if you will not be able to decide this case based solely on the evidence presented at the trial.

9. Raise your hand if you are opposed to judging a witness's credibility.

10. Raise your hand if you would tend to believe the testimony of a witness just because that witness is a law enforcement 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 law enforcement officer and for no other reason.

12. Raise your hand if you will not apply the law I will give you if you believe a different law should apply.

13. The evidence and argument portion of the trial should be completed in approximately 4-5 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 a juror during these times, raise your hand.

14. Would Plaintiffs' counsel introduce themselves, their clients, and indicate any witness that their clients may choose to call.

15. 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.

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

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.

17. Raise your hand if you, any member of your family, or any close friend has ever been employed by a law enforcement agency, including military law enforcement?

Could what you just stated have a bearing on your ability to be a fair and impartial juror in this case?

18. Raise your hand if you, any member of your family, or any close friend has ever received any special training in law enforcement, criminal justice or corrections.

Could what you just stated have a bearing on your ability to be a fair and impartial juror in this case.

19. Raise your hand if you have had any other experience or are aware of anything that could have a bearing on your ability to be a fair and impartial juror in this case.

20. Now, I am going to ask you to put yourselves in the position of each lawyer and party in this case. Raise your hand if you have information that you think should be shared before each side is given an opportunity to exercise what are called peremptory challenges.

21. The Courtroom Deputy Clerk will give juror number one 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. The sheet asks you to state:

Your name and your educational background and the educational background of any person residing with you; and

Your present and former occupations and the present and former occupations of any person residing with you.

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

2:06-cv-00457-GEB-AC

Robert E. Hunter, D.V.M.; Howard Eley, Plaintiffs, v. County of Sacramento, Defendant.

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 that I have an opinion regarding the evidence or what your verdict should be from these instructions or from anything I may say or do.

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.

Preliminary Instruction No. 2

I am now going to give you jury admonitions that you must remember. When we take recesses, I may reference these admonitions by telling you to remember the admonitions or something similar to that. You are required to follow ...


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