Opinion
No. 07-3317.
January 13, 2010
OPINION
This matter is set for trial on February 2, 2010. The parties have submitted their proposed jury instructions and memoranda of law relating to the contested instructions. See Proposed Jury Instructions by Stephan Black (d/e 43); Proposed Jury Instructions by Brian Carey, M. Curry, and Sgt. Guy and Statement (d/e 45); Plaintiff's Statement pertaining to Jury Instructions (d/e 46). After carefully considering the case file and the submissions of the parties, the Court allows and rejects the instructions as set forth below.
At the final pretrial conference held in this matter, the Court advised that it is the Court's customary procedure to bifurcate liability and damages. Neither counsel objected to a bifurcated trial. However, after reviewing the proposed jury instructions and the nature of the case, the Court does not believe that bifurcating the trial would expedite or economize the litigation. Therefore, bifurcation will not be ordered herein.
No objections have been made to the following instructions proffered by Plaintiff in docket entry 43: Plaintiff's Tendered Instructions No. 1, 3, 8, and 9. These instructions will be given as tendered. Defendants further assert that they have no objection to Plaintiff's Tendered Instructions No. 2, 4, 5, 6, 7, 10, and 11, if the events at trial make them applicable. Plaintiff's Tendered Instruction 2, taken from Seventh Circuit Pattern Instruction 1.02, is refused at this point, as the Court does not anticipate that it will be applicable. In the event that the Court asks a witness a question, Plaintiff is granted leave to resubmit this instruction. Plaintiff's Tendered Instruction 4, based on Seventh Circuit Pattern Instruction 1.07, is refused because the Court's standard practice is to not allow the jury to take notes during trial. Plaintiff's Tendered Instructions No. 5, 6, 7, 10, and 11 will be given as tendered. If Defendants believe that the events at trial make any of these instructions inapplicable, they should raise the issue with the Court at the jury instruction conference.
Defendants object to Plaintiff's Tendered Instructions No. 12, 13, 14, 15, and 16. Plaintiff's Tendered Instruction 12 is taken from Seventh Circuit Pattern Instruction 7.03. Defendants concede that they were acting under color of law at the time of the incident. As the Committee Comments to Seventh Circuit Pattern Instruction 7.03 instruct, when the "under color of law" element is undisputed, this instruction should be eliminated. Thus, Plaintiff's Tendered Instruction 12 is refused.
Plaintiff's Tendered Instruction 13 is taken from Seventh Circuit Pattern Instruction 7.08, which is titled "Fourth Amendment/Fourteenth Amendment: Excessive Force against Arrestee or Pretrial Detainee — Elements." Defendants object to Plaintiff's Tendered Instruction 13 and have submitted Defendants' Instruction 12, arguing that it is a better and fuller alternative instruction. Black objects to Defendants' Instruction 12, in part, challenging the propriety of the following language "You must give prison officials leeway to adopt and carry out policies and practices that in their reasonable judgment are needed to preserve order and discipline and to maintain security in the prison." As set forth below, the Court rejects both Plaintiff's Tendered Instruction 13 and Defendants' Instruction 12.
Defendants' Instruction 12 is a modified version of Seventh Circuit Pattern Instruction 7.15, which is titled "Eighth Amendment: Excessive Force against Convicted Prisoner — Elements." Subsection (a) of the Committee Comments to Seventh Circuit Pattern Instruction 7.15 expressly provides as follows: "This instruction applies only to cases involving convicted prisoners. Instruction 7.08 covers arrestees and pretrial detainees." Considering this comment together with the record evidence, the Court deems Seventh Circuit Pattern Instruction 7.08 to be the appropriate elements instruction in the present case given the fact that Black was being held on a contempt of court warrant at the time of the incident in question. Defendants' Instruction 12 is refused. However, as Defendants correctly point out, Plaintiff's Tendered Instruction 13 contains unnecessary language relating to the "under color of law" element, which is not disputed. As subsection (c) of the Committee Comments to Seventh Circuit Pattern Instruction 7.08 instruct, this element should be eliminated if the "under color of law" issue is not in dispute. Therefore, Plaintiff's Tendered Instruction 13 is refused as well. In its place, the Court will give Court's Instruction 1, which is Plaintiff's Tendered Instruction 13 — Seventh Circuit Pattern Instruction 7.08 with the "under color of law" language removed and clarification regarding multiple Defendants added.
Plaintiff's Tendered Instruction 14 is taken from Seventh Circuit Pattern Instruction 7.09, and provides a definition of "unreasonable" in the excessive force context. Defendants object to Plaintiff's Tendered Instruction 14 and point to Defendants' Instructions 10 and 12 as an alternative. As set forth above, Defendants' Instruction 12 is not appropriate under the facts of the case. Additionally, the Court finds that an instruction based on Seventh Circuit Pattern Instruction 7.09 constitutes a more accurate statement of the law of this Circuit than Defendants' Instruction 10, which is taken from the Third Circuit Model Jury Instructions. Therefore, Defendants' Instruction 10 is refused. Defendants' Instruction 9, which is a prefatory instruction to Defendants' Instruction 10 is also refused. However, as Defendants correctly note, Plaintiff's Tendered Instruction 14 references an arrest, and this is not an arrest case. Therefore, Plaintiff's Tendered Instruction 14 is refused as well. The Court will give Court's Instruction 2 on this issue, which eliminates the reference to an arrest and includes a list of factors that may be relevant to the jury's reasonableness determination, as suggested in subsection (b) of the Committee Comments to Seventh Circuit Pattern Instruction 7.09 and Defendants' Instruction 12.
Black has proffered two compensatory damages instructions, Plaintiff's Tendered Instructions 15 and 16, which are, for the most part cumulative. Defendants object to Plaintiff's Tendered Instructions 15 and 16, correctly noting that these instructions fail to account for the counterclaim. Defendants further assert that the ultimate form of the compensatory damages instruction will depend on the damages evidence offered at trial. Defendants have proffered a compensatory damages instruction, Defendants' Instruction 16. Because none of these proffered instructions adequately and clearly address the counterclaim, Plaintiff's Tendered Instructions 15 and 16 and Defendants' Instruction 16 are refused. The Court has prepared a compensatory damages instruction, Court's Instruction 3, based on Seventh Circuit Pattern Instruction 7.23, which will be given. To the extent a party believes that the evidence at trial necessitates modification of Court's Instruction 3, he should raise the issue with the Court at the jury instruction conference.
No objections have been made to the following instructions proffered by Defendants/Counter Plaintiff in docket entry 45 and they will be given as submitted: Defendants' Instructions 1, 2, 3, 4, 5, 6, 7, 8, 11, 13, 14, and 15. If Black believes that the events at trial make any of these instructions inapplicable, he should raise the issue with the Court at the jury instruction conference. The Court notes for the record that Counter Plaintiff has included instructions pertaining only to battery, while the Final Pretrial Order (d/e 47) represents that the counterclaim remains one for assault and battery. Based on the current record, it appears that the instructions as proposed are appropriate, and the Court will take no action sua sponte on this issue.
Defendants' Instruction 17 is a punitive damages instruction based on Seventh Circuit Pattern Instruction 7.24, which has been partially modified in an apparent attempt to account for the counterclaim. However, nothing in the Counterclaim (d/e 24), the Final Pretrial Order, or the verdict forms submitted by Defendants/Counter Plaintiff indicates that Counter Plaintiff Carey is seeking punitive damages on his state law claims. See Proposed Jury Instructions by Brian Carey, M. Curry, and Sgt. Guy and Statement, Attachment 1, p. 19, 21. Therefore, Defendants' Instruction 17 is refused. The Court has prepared a punitive damages instruction, Court's Instruction 4, based on Seventh Circuit Pattern Instruction 7.23, which will be given. As with all instructions, Court's Instruction 4 concerning punitive damages will only be given if it is supported by the evidence presented at trial. See Jaffee v. Redmond, 51 F.3d 1346, 1353 (7th Cir., 1995) (holding that jury instructions must be correct statements of the law supported by the evidence).
For clarity and given the rulings set forth above, the Court refuses the verdict forms proffered by Defendants/Counter Plaintiff and has prepared Verdict Forms A through D. See Proposed Jury Instructions by Brian Carey, M. Curry, and Sgt. Guy and Statement, Attachment 1, p. 19-22. Defendants' Instruction 18 is refused because it incorporates the verdict forms which have been refused. Court's Instruction 5 will be given in its place.
Finally, the Court notes that the parties have failed to proffer an instruction regarding communication with the Court during deliberation. The Court believes that such an instructions is necessary and has prepared Court's Instruction 6, based on Seventh Circuit Pattern Instruction 1.33, which will be given. The Court also notes the lack of a deadlock instruction based on Seventh Circuit Pattern Instruction 1.34. To the extent the parties wish to include such an instruction, they should proffer one to the Court.
THEREFORE, for the reasons set forth above, Plaintiff's Tendered Instructions No. 1, 3, and 5-11 and Defendants/Counter Plaintiff's Proposed Jury Instructions No. 1-8, 11, 13, 14, and 15 will be given without objection. Court's Instructions 1 through 6 and Verdict Forms A through D will be given. Plaintiff's Tendered Instructions No. 2, 4, 12, 13, 14, 15, and 16 are refused. Defendants/Counter Plaintiff's Proposed Jury Instructions No. 9, 10, 12, 16, 17, and 18 are refused, as are Defendants/Counter Plaintiff's proposed verdict forms. The parties are directed to file any supplemental proposed instructions and any objections to the Court's Instructions or Verdict Forms on or before January 22, 2010. The Court and the parties will revisit the instructions at the close of evidence outside the presence of the jury to examine their propriety in light of the evidence presented at trial and the Court's rulings during the course of the trial.
IT IS THEREFORE SO ORDERED.
In this case, Plaintiff claims that Defendants used excessive force against him. To succeed on this claim, Plaintiff must prove each of the following things by a preponderance of the evidence:
1. the Defendant used unreasonable force against Plaintiff, and
2. because of Defendant's unreasonable force, Plaintiff was harmed.
If you find that Plaintiff has proved each of these things by a preponderance of the evidence with respect to a Defendant, then you should find for Plaintiff and against that Defendant, and go on to consider the question of damages relating to that Defendant.
If, on the other hand, you find that Plaintiff did not prove any one of these things by a preponderance of the evidence, then you should find for that Defendant, and you will not consider the question of damages.
You must decide whether a Defendant's use of force was unreasonable from the perspective of a reasonable officer facing the same circumstances that the Defendant faced. You must make this decision based on what the Defendant knew at the time of the incident, not based on what you know now. In deciding whether a Defendant's use of force was unreasonable, you must not consider whether the Defendant's intentions were good or bad.
In performing his job, an officer can use force that is reasonably necessary under the circumstances.
In deciding whether Plaintiff has proved that a Defendant used unreasonable force, you may consider such factors as:
— the need for the use of force;
— the relationship between the need for the use of force and the amount of force used;
— the extent of the plaintiff's injury;
— any efforts made by the Defendant to temper or limit the amount of force;
— the threat reasonably perceived by the Defendant.
If you find in favor of a party, then you must determine the amount of money that will fairly compensate that party for any injury that you find he sustained and is reasonably certain to sustain in the future as a direct result of the excessive force or battery. These are called "compensatory damages."
A party 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 following types of compensatory damages, and no others:
1. The reasonable value of medical care and supplies that the party 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.
When I say "present value," I mean the sum of money needed now which, together with what that sum may reasonably be expected to earn in the future, will equal the amounts of those monetary losses at the times in the future when they will be sustained.
2. The wages that the party has lost.
3. The physical and mental/emotional pain and suffering and loss of a normal life that the party 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 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 party for the injury he has sustained.
If you find in favor of a party but find that the party has failed to prove compensatory damages, you must return a verdict for the party in the amount of one dollar ($1.00).
Plaintiff Stephen Black seeks punitive damages. If you find for Plaintiff, you may, but are not required to, assess punitive damages against the particular Defendant. 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 Defendant. You may assess punitive damages only if you find that his 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 Defendant's conduct;
— the impact of Defendant's conduct on Plaintiff;
— the relationship between Plaintiff and Defendant;
— the likelihood that Defendant would repeat the conduct if an award of punitive damages is not made;
— the relationship of any award of punitive damages to the amount of actual harm the Plaintiff suffered.
The Plaintiff is Stephen Black. The Defendants are Sergeant Brian Carey, Correctional Officer Marty Curry, and Sergeant Todd Guy.
The Counter Plaintiff is Sergeant Brian Carey, and the Counter Defendant is Stephen Black.
Upon retiring to the jury room, you must select a presiding juror. The presiding juror will preside over your deliberations and will be your representative here in court.
Forms of verdict have been prepared for you.
Take these forms to the jury room, and when you have reached unanimous agreement on the verdicts, your presiding juror will fill in and date the appropriate form, and all of you will sign it.
I do not anticipate that you will need to communicate with me. If you do need to communicate with me, the only proper way is in writing. The writing must be signed by the presiding juror, or if he or she is unwilling to do so, by some other juror. The writing should be given to the marshal, who will give it to me. I will respond either in writing or by having you return to the courtroom so that I can respond orally.