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Ronald Brook v. Proposed Trial Documents v. Singh

May 2, 2013

RONALD BROOK,
PLAINTIFF,
v.
PROPOSED TRIAL DOCUMENTS V. SINGH, M. MILES, R. CAPPEL, AND J. HERRERA,
DEFENDANTS.



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

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

A. Proposed Closing Jury Instructions

In the attached instructions, the Court has attempted to eliminate unnecessary language and to more closely follow the language used in the Ninth Circuit Model Civil Jury Instructions and Ninth Circuit case law upon which they are based. The goal is to "help the jurors to concentrate on the question[s] at hand." Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997). For example, the attached instructions do not include Defendants' proposed jury instructions Nos. 19 and 20, which instruct on 42 U.S.C. § 1983 claims generally, since it is evident that each Defendant acted under color of law at the time Plaintiff alleges they engaged in retaliatory conduct against him.*fn1

A court should avoid instructing jurors in "formal terminology . . . suited more to lawyers than to lay deciders" especially in the situation here, where it is undisputed that each Defendant acted under color of law. Achor, 117 F.3d at 341.

Nor is Defendants' proposed jury instruction No. 21 included, which is based upon the Ninth Circuit Model Civil Jury Instruction for causation in § 1983 actions generally, since the attached jury instruction on Plaintiff's First Amendment Retaliation claim ("liability instruction") includes as an element a "but for" standard of causation as prescribed in Ford v. City of Yakima, 706 F.3d 1188, 1193-95 (9th Cir. 2013). See id. at 1193 (stating "[i]n order to establish a claim of retaliation in violation of the First Amendment, . . . the evidence must enable [Plaintiff] to prove that the officers' desire to chill his speech was a but-for cause of their allegedly unlawful conduct").

Further, Defendants' proposed jury instruction No. 23 will not be given in light of the Ninth Circuit's following discussion in Rhodes v. Robinson, 408 F.3d 559, 567, n.11 (9th Cir. 2005): If [Plaintiff] had not alleged a chilling effect, perhaps his allegations that he suffered harm would suffice, since harm that is more than minimal will almost always have a chilling effect. Alleging harm and alleging the chilling effect would seem under the circumstances to be no more than a nicety.

In accordance with Rhodes, the attached liability instruction requires Plaintiff to prove that a Defendant's adverse action "resulted in more than minimal harm to Plaintiff or would chill a person of ordinary firmness in pursuing activities protected by the First Amendment."

Also, the preliminary jury instructions contain the parties' undisputed facts from the October 10, 2012 Pretrial Order, and the fact that Plaintiff filed a civil rights lawsuit in the United States District Court for the Eastern District of California in June 2004. Since the October 10, 2012 Pretrial Order preserves for trial as disputed facts whether each Defendant acted "in retaliation for [Plaintiff's] grievance and/or lawsuit" it is assumed the existence of Plaintiff's earlier lawsuit is a matter on which the parties agree. (ECF No. 97, 4:4-13 (emphasis added).)

B. Proposed Verdict Forms

The attached general verdict form will be used rather than Defendants' proposed special verdict form. See Floyd v. Laws, 929 F.2d 1390, 1395 (9th Cir. 1991) (stating "[a]s a general rule, the court has complete discretion over whether to have the jury return a special verdict or a general verdict").

C. Order of Trial

Notwithstanding paragraph 6 of the April 1, 2013 Supplement to Pretrial Order (ECF No. 110), trial will not be conducted in two phases in light of Defendants' proposed jury instructions and proposed verdict form, which assume trial will be conducted in one phase.

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

2:09-cv-01364-GEB-CKD

Ronald Brook, Plaintiff, v. VOIR DIRE V. Singh, M. Miles, R. Cappel, and J. Herrera, Defendants.

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 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. This lawsuit concerns Plaintiff's allegations that each Defendant retaliated against him because he filed a civil lawsuit against other prison officials in 2004 and/or because he filed an inmate grievance in which he challenged the denial of his request to participate in a prison self-help class. Pursuing civil rights litigation and filing prison grievances are activities protected by the First Amendment. Therefore, retaliation against Plaintiff for engaging in either or both of these activities violates the First Amendment.

Plaintiff alleges retaliation occurred when: Defendants Miles and Herrera removed Plaintiff from his book bindery job assignment on January 17, 2007;

Defendant Singh denied Plaintiff clearance to a certain portion of the prison called the "C-side" at a April 3, 2009 hearing; and

Defendant Cappel told Plaintiff at the April 3, 2009 hearing that if he continued to pursue the issue of obtaining C-side eligibility, inmate-workers who loose their jobs as a result would blame Plaintiff.

Each Defendant denies that his action was retaliatory. Each Defendant also contends that his action furthered the legitimate correctional goal of institutional safety and security, and was not motivated by Plaintiff's referenced 2004 lawsuit or inmate grievance.

5. Raise your hand if you have any knowledge of the facts or events in this case or if there is anything about the allegations which causes you to feel that you might not be a fair juror in this case.

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

7. Raise your hand if you will not be able to decide this case based solely on the evidence presented at the trial or if you are opposed to judging a witness's credibility.

8. 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.

9. 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.

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

11. The evidence and argument portion of the trial should be completed in approximately 3 court days, after which the case will be submitted to the jury for jury deliberation. We will be in trial on Tuesday and Wednesday from 9:00 a.m. until about 5:00 p.m., and on Friday from 10:30 a.m. until 5:00 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.

12. Would Plaintiff introduce himself, and indicate any witness that he may choose to call.

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

Raise your hand if you know or have had any interaction with any person just introduced or named.

14. 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.

15. 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?

16. 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?

17. 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.

18. 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.

19. 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

2:09-cv-01364-GEB-CKD

Ronald Brook, Plaintiff, v. V. Singh, M. Miles, R. Cappel, ) and J. Herrera, Defendants.

PRELIMINARY JURY INSTRUCTIONS

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 ...


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