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Levy v. County of Alpine

United States District Court, E.D. California

March 31, 2017

ROBERT E. LEVY, Plaintiff,
v.
COUNTY OF ALPINE, et al., Defendants.

          ORDER RE: PROPOSED JURY INSTRUCTIONS

          ROBERT H. WHALEY, Senior United States District Judge

         The Court has drafted proposed jury instructions in line with its interpretation of the Order Partially Granting Summary Judgment, ECF No. 44. Attached are the Court's proposed partial jury instructions addressing the main issues of Plaintiff's claim and affirmative defenses. The parties should be prepared to address the attached jury instructions at the hearing scheduled for April 5, 2017, at 2:00p.m.

         IT IS SO ORDERED. The District Court Executive is directed to enter this Order.

         INSTRUCTION NO. 1

         Plaintiff Robert Levy brings his claims under the federal statute, 42 U.S.C. § 1983, which provides that any person or persons who, under color of law, deprives another of any rights, privileges, or immunities secured by the Constitution or laws of the United States shall be liable to the injured party.

         In this case, Plaintiff Levy claims his constitutional First Amendment right to free speech was violated by Defendant County of Alpine. Specifically, he claims that while he was working as undersheriff for the County of Alpine, he made complaints in the workplace that were protected by the First Amendment, and in retaliation for that speech, County Administrative Officer Pamela Knorr, acting as final policymaker, recommended an independent investigation into the management and cost of an ongoing telecommunications project (the Leviathan Peak project) in which he and other members of the County of Alpine Sheriff's Department were involved. Plaintiff Levy alternatively claims the County's Board of Supervisors, as a final policymaker, ratified Pamela Knorr's request for the investigation, knowing it was motivated by retaliation.

         Defendant County of Alpine maintains that the telecommunications project was a contractual venture with the State Department of General Services and the California Highway Patrol which had the potential of exposing the County to millions of dollars of liability in the event the actual project costs were greater than estimated when the contract was entered into. Defendant further maintains that the Board of Supervisors authorized the investigation only after learning that the cost of the project could exceed $2 million or more than the original cost estimate, leaving the County with an unfunded obligation it could not afford and the potential of liability against it.

         Defendant further contends it had an adequate justification for treating Plaintiff Levy differently from other members of the general public and that it would have undertaken the investigation even absent Plaintiff Levy's complaints of alleged age discrimination.

         INSTRUCTION NO. 2

         To establish his § 1983 claim against Defendant County of Alpine, alleging liability based on the act of retaliation by Pamela Knorr as a final policymaker, Plaintiff Levy must prove each of the following elements by a preponderance of the evidence:

1. Pamela Knorr acted under color of state law;
2. The act of Pamela Knorr in requesting an investigation of the Leviathan Peak project was in retaliation for complaints made by Plaintiff Levy that were protected by his First Amendment right to free speech. Whether these statements are protected under the First Amendment right to free speech is addressed in Instructions No. 4;
3. Pamela Knorr had final policymaking authority from County of Alpine to recommend an investigation into the Leviathan Peak project;
4. When Pamela Knorr recommended an investigation into the Leviathan Peak project, she was acting in her capacity as a final ...

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