BENJAMIN C. OYARZO and NICHOLAS HART, Plaintiffs,
TUOLUMNE FIRE DISTRICT, KENNETH HOCKETT, and TONEY POWERS, Defendants.
ORDER ON PLAINTIFFS' OBJECTIONS TO JURY INSTRUCTIONS AND VERDICT FORMS (ECF No. 208)
STANLEY A. BOONE, Magistrate Judge.
This matter proceeded to trial on December 3, 2013 on Plaintiff Oyarzo's claim that that Defendant Tuolumne Fire District ("TFD") did not pay him for all hours worked in violation of the Fair Labor Standards Act; and Plaintiff Hart's claims that Defendants Hockett and Powers retaliated against him in violation of the First Amendment, and Defendant TFD retaliated against him in violation of California Labor Code Section 6310, and engaged in conduct that violated the Fire Fighter's Procedural Bill of Rights. During the course of the trial, the Court conducted two informal conferences to resolve the parties' objections to the jury instructions and verdict forms.
The parties were presented with the jury instructions and verdict forms to be presented to the jury on December 13, 2013. The Court heard oral argument on the remaining objections and all objections were overruled. Plaintiff filed their remaining objections to the jury instructions and verdict forms on December 16, 2013. (ECF No. 208.)
Plaintiffs object to a number of the instructions given to the jury.
A. Jury Instruction No. 23
Jury Instruction No. 23 set forth the elements and burden of proof for a section 1983 claim. Plaintiff objects to the Ninth Circuit Model Civil Jury Instruction 9.2 without adding additional explanation for the definition of "under color of law". (Pls.' Obj. to Proposed Jury Instructions and Special Verdict for Pl. Hart 2, ECF No. 208.) Plaintiff requested that the Court instruct the jury as follows:
A public employee may act under color of law even when the government employer does not authorize, or even know of, his conduct. The term "color of law" usually implies a misuse of power made possible because the wrongdoer is clothed with the authority of the state.
(Pls.'s Proposed Jury Instructions 4, ECF No. 191.) Defendants objected to the additional instruction as it is not a neutral instruction. The Court agrees with Defendant that this is not a neutral instruction to the jury. Further, the Ninth Circuit Model Civil Jury Instruction adequately instructs the jury on the definition of "under color of law". Plaintiffs' objection is overruled.
B. Jury Instruction No. 24
Jury Instruction No. 24 states the elements that Plaintiff Hart must meet to prove his claim of retaliation in violation of the First Amendment. Plaintiff objects to the instruction limiting the actions which could be considered to be adverse by the jury. Plaintiff seeks to have the jury consider the termination of Plaintiff Hart as adverse action which can be considered in the claim against Defendant Hockett.
In this instance, Judge O'Neill issued a comprehensive order granting summary judgment to Defendants on certain actions that were alleged in this action thereby limiting those actions that could be considered in determining Plaintiff Hart's First Amendment claim. Since evidence on these issues was presented to the jury during the course of the trial, the Court determined that it was necessary to instruct the jury on which actions could be considered in determining Plaintiff Hart's First Amendment claim.
While Plaintiff objects to the Court limiting those actions that could be considered in determining the First Amendment claim, Plaintiff was seeking to allow the jury to consider actions that were not alleged in the complaint or to expand the allegations in the complaint to cover a broader range of conduct. Plaintiff was not entitled to allow the jury to consider actions ...