Opinion
22-cv-641-jdp
07-01-2024
GLEN R. JEFFERY, JR., Plaintiff, v. KYLE ZENK and GWEN SCHULTZ, Defendants.
PRETRIAL ORDER
JAMES D. PETERSON, DISTRICT JUDGE
Plaintiff Glen R. Jeffery, Jr., without counsel, alleges that defendant Kyle Zenk intentionally shut a food port door on his lip, and that defendant Gwen Schultz didn't follow through on her promise to him to get him medical attention for his injured lip. Jeffery brings an Eighth Amendment excessive force claim against Zenk and an Eighth Amendment medical care claim against Schultz. Trial is set for July 15, 2024. I will hold a final pretrial conference by Zoom on July 3, 2024, at 10:00 a.m.
This order addresses various pretrial filings, including the parties' motions in limine. Also, I have attached drafts of the introductory jury instructions, voir dire, posttrial instructions, and verdict form in advance of the July 3 conference. The parties must review these drafts and be prepared to raise any objections to them at the conference. To ensure that Jeffery has these materials before the final pretrial conference, counsel for defendants is directed to immediately contact the appropriate official at Racine Correctional Institution and work with that individual to ensure that Jeffery receives copies of these materials without delay.
A. Defendants' motions in limine (Dkt. 109 and Dkt. 123)
Defendants have filed two documents containing seven motions in limine. I denied Jeffery's motion for an extension of time to respond to these motions, but I instructed him to be prepared to respond to them at the July 3 conference. I am issuing these rulings today, but I will reconsider any rulings as necessary based on arguments presented at that conference. I begin with the first document, Dkt. 109, which contains defendants' first six motions.
First, defendants contend that Jeffery shouldn't be able to question them about “the details of other legal cases in which they have been involved that are unrelated to their interactions with [him in this case], other inmate grievances not related to this case, or their work file history.” Dkt. 109 at 1. I will grant this motion. Jeffery hasn't proffered any such evidence, and there is no indication that such evidence would be admissible.
Second, defendants contend that Jeffery shouldn't be allowed to “advance any argument, questions, testimony, or evidence regarding the details of lawsuits relating to the Department of Corrections . . ., or any other DOC employees.” Dkt. 109 at 3. I will grant this motion. Jeffery hasn't proffered any such evidence, and there is no indication that such evidence would be admissible.
Third, defendants contend that Jeffery shouldn't be allowed to argue that Zenk used excessive force on him because Jeffery had previously filed a complaint under the Prison Rape Elimination Act (PREA) against another officer that Zenk was familiar with. See Dkt. 109 at 4-5. I will grant this motion. I didn't allow Jeffery to proceed on a retaliation claim against Zenk, and the summary judgment evidence didn't support that theory. Even if there were admissible evidence that Zenk used excessive force on Jeffery because of the subject inmate complaint, its marginal relevance would be substantially outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. See Fed.R.Evid. 403.
Fourth, defendants seek to exclude argument that a medical record stating that nondefendant Nurse Amimo treated Jeffery's lip was fabricated. See Dkt. 109 at 5. I didn't allow Jeffery to proceed on his claim that defendants conspired to deprive him of medical care, and the summary judgment evidence didn't support that theory. Dkt. 91 at 11. I will grant this motion if Jeffery seeks to argue that there was a conspiracy to fabricate Amimo's medical record.
I will otherwise deny this motion. Jeffery submitted two messages from nursing staff stating that the only documented injury in his medical file from the relevant date is an eyebrow injury. Dkt. 86-1 at 1, 3. Jeffery also contends that Amimo's medical record is irregular because it contains advice that no competent nurse would have given. See Dkt. 73-1 at 3; Dkt. 86 ¶ 39. Jeffery deserves some leeway to argue that the medical record is unreliable and doesn't accurately report the treatment that he received on the day in question.
Fifth, defendants contend that Jeffery shouldn't be able to argue that Zenk used excessive force on him because he failed to get him medical care after he shut the food port door on his lip. See Dkt. 109 at 5-6. I will deny this motion. Jeffery says that he suffered tearing, bleeding, bruises, and extreme pain after Zenk closed the food port door on his lip. If Jeffery can establish that fact, Zenk's alleged failure to get medical care would be relevant to show that he intentionally shut the food port door on Jeffery's lip to harm him. See Whitley v. Albers, 475 U.S. 312, 321 (1986) (holding that “any efforts made to temper the severity of a forceful response” are relevant to show whether a prison official's use of force is excessive).
Sixth, defendants ask for permission to cross-examine Jeffery on conduct reports that he has received for lying. Dkt. 109 at 6-7 (discussing Fed.R.Evid. 608(b)). Defendants don't seek to admit the actual conduct reports, but they contend that cross-examination about these disciplinary violations is appropriate under Rule 608(b).
Defendants have submitted evidence that Jeffery has been found guilty of lying four times in prison disciplinary proceedings. See Dkt. 110. In January 2021, Jeffery was found guilty of lying in a PREA complaint that a staff member sexually assaulted him. Dkt. 110-1. In August 2021, Jeffery was found guilty of lying to prison staff that he wanted to use the telephone to make a PREA complaint when his calls were not PREA-related. Dkt. 110-2. In October 2023, Jeffery was found guilty of lying in a psychological services request that a staff member asked Jeffery to share fentanyl with that individual. Dkt. 110-3. In November 2023, Jeffery was found guilty of lying in a PREA complaint that a staff member looked up his segregation smock. Dkt. 110-4.
As a general rule, Rule 608(b) allows cross-examination regarding specific instances of misconduct if they are probative of a witness's character for truthfulness or untruthfulness. Harris v. Devendorf, No. 14-cv-47-wmc, 2017 WL 2656466, at *2 (W.D. Wis. June 20, 2017). Prison disciplinary violations for lying can be probative of untruthfulness. See id. But the relevance of a disciplinary violation for lying may depend on a variety of factors, such as the frequency of the dishonesty, how long ago the dishonesty occurred, the similarity of the conduct underlying the disciplinary charge to the conduct underlying the prisoner's federal claims, and whether the prisoner had a fair opportunity to context the disciplinary charge. See Northern v. Hentz, 10-cv-120-jdp, Dkt. 157 at 2.
Jeffery has been found guilty of lying four times, which suggests pattern of dishonesty. The disciplinary violations involved conduct that occurred between January 2021 and November 2023, which is recent enough to support their relevance. The conduct underlying those disciplinary actions is different from the conduct at issue in this case, and it's unclear whether Jeffery challenged those violations. However, nothing in the record suggests that prison officials didn't give Jeffery a fair opportunity to challenge those violations. As a whole, defendants' evidence shows that the disciplinary violations are probative of Jeffery's character for untruthfulness.
I will grant this motion. Defendants may elicit cross-examination that Jeffery was found guilty of lying in four disciplinary proceedings. But defendants may not admit the disciplinary violations or suggest that they are indicative of his character for misbehaving.
In the seventh motion in limine, Dkt. 123, defendants seek to exclude any reference to an incident that took place the day after Zenk closed the food port door on his lip. During that incident, Jeffery threatened to harm himself unless he could speak with a psychiatrist and correctional official about his belief that he was being retaliated against by a staff member related to a PREA report. I will grant this motion because any reference to this incident would be irrelevant and unfairly prejudicial. See Fed.R.Evid. 401, 403.
B. Jeffery's motions in limine (Dkt. 119; Dkt. 120; Dkt. 121; Dkt. 122)
Jeffery has filed four separate motions in limine. Defendants filed a single response to each motion. Dkt. 131.
First, Jeffery asks the court to treat the witnesses employed by the DOC as adverse witnesses so that he can ask them leading questions. Dkt. 119. In his witness list, Jeffery identifies: Zenk, Schultz, Officer Luke Regoli, Nurse Brenda Roehrborn-Dorau, and his cellmate William Weso. Dkt. 115. Defendants do not object to my treating Zenk, Schultz, and Regoli as adverse witnesses. I will grant Jeffery's motion to treat these individuals as adverse witnesses.
Defendants object to treating Roehrborn-Dorau as an adverse witnesses because: (1) she works for a third-party agency that contracts with the DOC to provide medical services, meaning she's not a DOC employee; and (2) she was not involved in the events underlying Jeffery's claims. Dkt. 131 at 2. Jeffery hasn't shown that Roehrborn-Dorau is a DOC employee, and her only role in this case was to answer a question that he asked about his medical records after the events at issue occurred. I will deny Jeffery's motion to treat Roehrborn-Dorau as an adverse witness.
That leaves Weso. Jeffery concedes that it would be mostly inappropriate to treat Weso as an adverse witness, but he asks for permission to give him the date of the incident with Zenk because it occurred over three years ago. I will deny Jeffery's motion to treat Weso as an adverse witness as unnecessary. But as a general matter, directing a defendant's attention to a particular date is not leading.
Second, Jeffery asks the court to exclude any expert testimony on the injuries that he sustained during the incident with Zenk. Dkt. 120. Jeffery admits that it would be appropriate for Amimo, who defendants contend treated him after the incident, to testify as an expert. See id. But, if she does, Jeffery asks for permission to treat Amimo as an adverse witness.
I will deny this motion as moot. Amimo is the only witness who defendants contend may provide expert testimony, and they will present her testimony at trial in the form of a videotaped deposition. Defendants accept that Jeffery can ask her leading questions during the deposition.
Defendants filed a separate notice of intent to conduct a trial deposition of Amimo based on her unavailability starting on July 2, 2024. Dkt. 129. Jeffery hasn't objected to that notice.
Third, Jeffery asks me to allow him to appear in the courtroom unshackled and in appropriate civilian attire. Dkt. 121. Defendants don't object to Jeffery appearing in civilian attire if he obtains those clothes on his own. I will grant this motion and allow Jeffery to appear in appropriate civilian attire, provided that he can obtain it on his own. I gave Jeffery instructions on how to arrange to wear street clothes in my trial preparation order. Dkt. 92 at 12-13.
I will deny Jeffery's motion to appear in the courtroom without any restraints or a stun belt. Jeffery has been convicted of armed robbery and felony battery by prisoners, and he has been found guilty of assaulting employees multiple times while incarcerated. See Milwaukee County Case No. 2017CF2054; Columbia County Case No. 2023CF378; Dkt. 132 and attachments. Due to Jeffery's history of violence, it is appropriate for him to be restrained with a stun belt during trial. But I will take precautions so that his restraints are not visible to the jury.
Fourth, Jeffery asks me to sequester all of Zenk's and Schultz's witnesses from the courtroom, and to prevent DOC employees from appearing in the courtroom in work uniforms. Dkt. 122. Jeffery also appears to ask me to order the U.S. Marshals Service to transport him to court. See id. I will grant this motion to exclude Regoli and any other DOC employee who will be testifying in person from the courtroom until the witness has provided his or her testimony. See Fed.R.Evid. 615. Regoli isn't a party, and defendants didn't say that he will attend the entire trial. But, as explained below, I will ask counsel for defendants if counsel can ensure his presence for trial because he is a key witness. I will deny as moot the request to exclude Roehrborn-Dorau from the courtroom because, as I will explain below, her testimony isn't needed.
I will deny Jeffery's request for the U.S. Marshals Service to transport him to court because it's not responsible for that task. Lindell v. Boughton, No. 18-cv-895-slc, 2021 WL 4893387, at *7 (W.D. Wis. Oct. 20, 2021). I will mostly deny Jeffery's request to prevent DOC employees from appearing in the courtroom in standard work uniforms. Zenk, Schultz, and Regoli were on duty when the events at issue occurred, and the jurors will know that they are correctional staff. Cf. Sughayyer v. City of Chicago, No. 09-cv-4350, 2011 WL 2200366, at *4 (N.D. Ill. June 6, 2011) (police officers allowed to wear uniforms at trial because they “were wearing their uniforms when they allegedly committed the acts that are the subject of the lawsuit and [were] being sued as police officers”). But I will grant this motion to exclude any testifying DOC employee from wearing a special or ceremonial uniform, or any ribbons, medals, awards or other honorary or commemorative uniform accessory. Cf. Owens v. Ellison, No. 13-cv-7568, 2017 WL 1151046, at *6 (N.D. Ill. Mar. 28, 2017) (collecting cases where courts prohibited officers from wearing medals at trial). I will also grant this motion to preclude any testifying DOC witness from wearing any protective gear or duty belts, and from carrying any firearms, and any DOC employee present in the courtroom from wearing any excessively protective gear. I will ensure that any DOC employee responsible for Jeffery's security doesn't create the impression that he is a threat to courtroom safety.
C. Jeffery's motion for writ of habeas corpus ad testificandum (Dkt. 96)
Initially, Jeffery moved the court to issue a writ or subpoena for the following individuals to testify: (1) Zenk; (2) Schultz; (3) Regoli; (4) Sean Price; (5) Michael Glass; (6) Justin Douglas; (7) C. Baird; and (8) Weso. Dkt. 96. Jeffery later clarified that he wished to call only Zenk, Schultz, Regoli, Roehrborn-Dorau, and Weso as witnesses. Dkt. 115.
Jeffery says that asking Officer Regoli to testify voluntarily may subject Jeffery to disciplinary measures. Regoli is a key witness. It's appropriate to ask counsel for defendants during the final pretrial conference if counsel can ensure Regoli's presence at trial. If that cannot be arranged, I will grant Jeffery's request to subpoena Regoli and we'll have him testify by videoconference to avoid mileage fees. Jeffery has clarified that he doesn't wish to present Price, Glass, Douglas, or Baird as witnesses, so those requests are moot.
Roehrborn-Dorau's involvement is limited to answering a question about Jeffery's medical records, and her response to that health services request is in the record. Roehrborn-Dorau could provide very little relevant testimony, and documents containing her response are already in the record. Instead of imposing the burden on her of testifying in person, and to avoid subpoena-related fees, I'll ask defendants if they will stipulate to the admissibility of the subject health services requests and responses. See Dkt. 86-2 at 1, 3. If defendants won't stipulate to the admissibility of these documents, we'll have Roehrborn-Dorau testify by videoconference. Along those lines, a writ is unnecessary for Jeffery's cellmate Weso, whom we'll have testify by videoconference. Jeffery's motion is moot regarding Zenk and Schultz because they will be attending the entire trial. Dkt. 98.
ORDER
IT IS ORDERED that:
1. Defendants' first six motions in limine, Dkt. 109, are GRANTED in part and DENIED in part as discussed above.
2. Defendants' seventh motion in limine, Dkt. 123, is GRANTED.
3. Plaintiff's motions in limine, Dkts. 119-122, are GRANTED in part and DENIED in part as discussed above.
4. Plaintiff's motion for writ of habeas corpus ad testificandum, Dkt. 96, is GRANTED in part and DENIED in part as discussed above.
5. To ensure that Jeffery has these materials before the final pretrial conference, counsel for defendants is directed to immediately contact the appropriate official at Racine Correctional Institution and work with that individual to ensure that Jeffery receives copies of this order and the attached materials without delay.
VOIR DIRE DRAFT 7.1.24
Introduction
This is a civil case brought by Glen R. Jeffery, Jr., who is a state of Wisconsin prisoner. The defendants are Kyle Zenk and Gwen Schultz. When the events at issued occurred, Zenk worked at Columbia Correctional Institution as an institution complaint examiner, and Schultz worked at Columbia as an administrative captain.
On the morning of April 21, 2021, Jeffery was in his cell in Columbia. Jeffery was upset because a correctional officer against whom he had filed a complaint was in his housing unit. Jeffery held the door to his cell's food port open in protest. Jeffery alleges that Zenk went to his cell and intentionally shut the food port door on his bottom lip, injuring him.
Later that morning, Schultz went to the unit Jeffery was in and spoke with him. Jeffery alleges that he showed Schultz his injuries, and that she assured him that medical staff would see him for those injuries. Jeffery contends that Schultz didn't arrange for treatment. A nurse saw Jeffery several hours later, but Jeffery alleges that he didn't receive treatment for his injuries at that visit.
I am going to ask you some questions that will help us select those of you who will serve on the jury in this case. I may follow up with specific questions to get more details. If my questions touch on subjects that you don't want to discuss openly, let me know, and we'll bring you over to sidebar to discuss those questions confidentially.
I will speak at first to those of you in the jury box. But those of you in the gallery should pay attention to the questions. In case I have to call you forward to replace someone that I excuse, you should have your answers ready to go.
I will now ask all of you to stand and take an oath to truthfully answer my questions.
1. Have any of you ever heard of this case before today? Follow up at sidebar.
2. The trial of this case will begin today, and will likely last two or three days.
But to be safe, I will make sure jurors are available through Thursday. The trial will ordinarily run from 9:00 a.m. to 5:30 p.m. with a morning break, a one-hour lunch, and an afternoon break. Are any of you actually unable to sit as jurors through Thursday if necessary?
Knowledge of parties and others
3. Ask parties to introduce themselves. Ask panel whether anyone knows the parties.
4. Ask counsel to stand and tell the jury where they practice and with whom. Ask panel whether anyone knows counsel or their associates or partners.
5. In addition to the parties, the witnesses in the case may include the following people:
• Luke Regoli
• Michael Glass
• Sean Price
• Concepta Teresa Amimo
• Alana Acker
• Kelsey Stange
• William Weso
Do any of you know those witnesses?
6. Do any of you know the judge or court personnel?
7. Do any of you know any of the other people on the jury panel?
Questions to each prospective juror (listed on a sheet provided to jurors):
Please stand up and tell us about yourself:
8. Name, age, and city or town of residence.
9. Marital status and number of children, if any.
10. Current occupation (former if retired or currently unemployed).
11. Current (or former) occupation of your spouse, domestic partner, or significant other.
12. If you have adult children, what do they do?
13. Any military service, including branch, rank, and approximate date of discharge.
14. How far you went in school and major areas of study, if any.
15. Memberships in any groups or organizations.
16. Hobbies and leisure-time activities.
17. Media consumption. What are your favorite types of reading materials, what sources do you use for news, what types of television or radio shows do you watch or listen to, what types of websites do you visit?
18. Have you ever written a letter to the editor in a newspaper or magazine?
19. Do you have any bumper stickers on your car? If so, what do they say or depict?
Case-specific questions to the panel. Jurors may request that sensitive topics be addressed at sidebar Litigation experience and opinions
20. Have you or anyone close to you been a party to a lawsuit?
21. Have you or anyone close to you ever been a witness in a civil lawsuit or a criminal trial?
22. Have you or anyone close to you served on a jury? Follow up: nature of the case; find for plaintiff or defendant; were you the foreperson?
23. Do you have strong opinions, whether positive or negative, about people who go to court to obtain relief for wrongs they believe they have suffered?
24. Do you have strong opinions, whether positive or negative, about people who are defendants in a lawsuit?
25. Do you have strong opinions for or against awarding monetary damages for pain and suffering?
Specialized knowledge or experience
26. The plaintiff is a prisoner. Does anyone have a strong positive or negative opinion about prisoners or people who have been convicted of crimes that might make it difficult for you to be objective in this case?
27. Do you believe that prisoners are entitled to adequate medical treatment?
28. You may have noticed that Jeffery has facial tattoos. Would this fact affect your perception of Jeffery's credibility?
29. Does anyone have strong opinions about prisoners who represent themselves in lawsuits?
30. Do any of you have strong opinions about whether people confined in prison or jail are treated too harshly or too leniently?
31. Does anyone believe that prisoners do not, or should not, have any constitutional rights?
32. Have you or anyone close to you ever been confined in a jail or prison?
33. Have you ever visited a jail or prison?
34. Have you or anyone close to you ever been employed in law enforcement or at a jail, prison, or other correctional facility?
35. Have you or anyone close to you ever had a negative experience dealing with a state employee, person who works in corrections, or a law enforcement officer?
36. The defendants in this case are represented by the state of Wisconsin Department of Justice. Is there anyone who has negative feelings about that agency or Attorney General Josh Kaul?
37. Are there any of you who believe that a law enforcement or correctional officer must have done something wrong because he is named as a defendant in this lawsuit?
Conclusion
38. At the end of the case, I will give you instructions that will govern your deliberations. You are required to follow those instructions, even if you do not agree with them. Is there any one of you who would be unable or unwilling to follow my instructions?
39. Do you know of any reason whatsoever why you could not sit as a trial juror with absolute impartiality to all the parties in this case?
Introductory Instructions
Members of the jury, we are about to begin the trial of the case. Before it begins, I will give you some instructions to help you understand how the trial will proceed, how you should evaluate the evidence, and how you should conduct yourselves during the trial. This will take about 15 minutes; I will give you written copies of all my instructions so you will have them when you deliberate.
The party who begins the lawsuit is called the plaintiff. In this case, the plaintiff is Glen R. Jeffery, Jr., who is currently a state of Wisconsin prisoner. This case involves events that occurred while Jeffery was incarcerated at Columbia Correctional Institution (Columbia). The parties against whom the suit is brought are called the defendants. In this case, the defendants are Kyle Zenk and Gwen Schultz. When the events at issued occurred, Zenk worked at Columbia as an institution complaint examiner, and Schultz worked at Columbia as an administrative captain.
On the morning of April 21, 2021, Jeffery was in his cell at Columbia. Jeffery was upset because a correctional officer against whom he had filed a complaint was in his housing unit. Jeffery held the door to his cell's food port open in protest. Jeffery alleges that Zenk went to his cell and intentionally shut the food port door on his bottom lip, injuring him.
Later that morning, Schultz went to the unit Jeffery was in to speak with him. Jeffery alleges that he showed Schultz his injuries, and that she assured him that medical staff would see him for those injuries. Jeffery contends that Schultz didn't arrange for treatment. A nurse saw Jeffery several hours later, but Jeffery alleges that he didn't receive treatment for his injuries at that visit.
I'll give you more detailed instructions about the law after you hear the evidence. But here are the basic principles you should keep in mind as the trial proceeds.
Jeffery is suing Zenk under the Eighth Amendment to the United States Constitution, which prohibits prison officials from using excessive force on convicted prisoners. On this claim, your job as jurors will be to decide whether Zenk intentionally shut the food port door on Jeffery's lip to harm him, or whether Zenk took that action in a good-faith effort to maintain or restore security or order.
Jeffery contends that Schultz violated his rights under the Eighth Amendment, which also prohibits prison officials from intentionally depriving a prisoner of necessary medical care. On this claim, your job will be to determine whether Jeffery had a serious medical need, whether Schultz was aware of that need, and whether Schultz consciously failed to take reasonable measures to provide treatment for that need, thereby harming Jeffery.
If you find that Zenk or Schultz violated Jeffery's Eighth Amendment rights, then you will have to decide whether Jeffery is entitled to damages and, if he is, decide the amount of those damages.
FUNCTIONS OF THE COURT AND THE JURY
One of my duties as the judge in this case is to decide all questions of law and procedure. In these preliminary instructions, during trial, and at the end of the trial, I will instruct you on the rules of law that you must follow in making your decision.
You have two duties as jurors. Your first duty is to decide the facts from the evidence that you see and hear in court. Your second duty is to take the law as I give it to you, apply it to the facts, and decide whether Jeffery has proved that Zenk's or Schultz's actions violated the Eighth Amendment.
You must perform these duties fairly and impartially. Your decision must be based solely on the evidence. Do not let sympathy, prejudice, fear, or public opinion influence you. You should not take anything that I say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.
We all have feelings, assumptions, perceptions, fears, and stereotypes about others. Some biases we are aware of; you must set these aside in your work as jurors. But all of us also have biases that we might not be fully aware of. These are called “implicit biases” or “unconscious biases.” Because we are less aware of those biases, they may be harder to set aside. When evaluating the evidence and testimony throughout the trial, you should think about whether any of your judgments may have been influenced by bias, asking yourself whether you might reach a different conclusion if a party, witness, or lawyer were a member of a different group. Being thoughtful about our biases may help us overcome them.
CONDUCT OF THE CASE
The case will proceed as follows:
The parties will make opening statements outlining their case. What is said in opening statements is not evidence; it is simply a guide to help you understand what each party expects the evidence to show.
After the opening statements, Jeffery will introduce evidence in support of his claim. At the conclusion of Jeffery's case, Zenk and Schultz may introduce evidence.
After the evidence is presented, I will instruct you on the law that applies to this case, then the parties will make closing arguments. Closing arguments are not evidence. Rather, they are an opportunity for each side to explain to you what they think the evidence has shown and to persuade you how to apply the law to this evidence.
After that, you will go to the jury room to deliberate on your verdict.
The trial is expected to take two or three days. The trial day usually will run from 9:00 a.m. until 5:30 p.m. You will have an hour for lunch and two additional short breaks, one in the morning and one in the afternoon. We may have to be somewhat flexible, because sometimes I have to deal with a matter in another case. The courtroom is often kept at a cold temperature; I encourage you to bring clothing that will keep you comfortable in a range of conditions.
During recesses you should keep in mind the following three instructions:
First, do not discuss the case either among yourselves or with anyone else during the trial. I realize that this case is the one thing you all have in common, but you must not talk about it, even among yourselves, until it is time to deliberate. Once you express an opinion, there is a natural tendency to defend it and this might make you resist changing your mind. The parties to this lawsuit have a right to expect from you that you will keep an open mind throughout the trial. You should not reach a conclusion until you have heard all of the evidence and you have heard the closing arguments and my instructions to you on the law, and you have retired to deliberate with the other members of the jury.
I must warn you in particular against commenting about the trial in an email or a blog or on Twitter or any social media platform. There are cases that have had to be re-tried because a member of the jury communicated electronically about the case during the trial. You can imagine what this would mean in the cost of a re-trial, the inconvenience to your fellow jurors whose work would have been done for nothing, and the stress experienced by the parties.
Although it is a normal human tendency to converse with people with whom one is thrown into contact, please do not talk to any of the parties or their attorneys or witnesses. By this I mean not only do not talk about the case, but do not talk at all, even to pass the time of day. If one of the parties, attorneys, or witnesses passes by without talking to you, they are not being rude; they are simply following my instructions. In no other way can all parties be assured of the absolute impartiality that they are entitled to expect from you as jurors.
Second, do not permit any third person to discuss the case in your presence. If anyone tries to talk to you despite your telling them not to, report that fact to the court as soon as you are able. Do not discuss the event with your fellow jurors or discuss with them any other fact that you believe you should bring to the attention of the court.
Third, no matter how interested you may become in the facts of the case, you must not do any independent research, investigation, or experimentation. Do not read about the case in the newspapers or on the internet, or listen to radio or television broadcasts about the trial. If a newspaper headline catches your eye, do not examine the article further. Media accounts may be inaccurate and may contain matters that are not proper for your consideration. You must base your verdict solely on the evidence presented in court. Do not look up materials on the internet or in any other source. Again, you must base your verdict solely on the evidence presented in court.
HEARING THE EVIDENCE
Evidence
Evidence at a trial includes the sworn testimony of the witnesses, exhibits that are offered and accepted by the court, facts that are stipulated by both sides, and facts that are judicially noticed. If facts are stipulated or judicially noticed, I will tell you that. You may consider only the evidence that I admit into the record. In determining whether any fact has been proved, you should consider all of the evidence bearing on the question regardless of who introduced it.
The following things are not evidence: questions and objections of the parties, testimony that I instruct you to disregard, and anything you may see or hear when the court is not in session, even if what you see or hear is done or said by the parties or by one of the witnesses. You should listen carefully to the opening statements and closing arguments because they help you understand the evidence. But those statements and arguments are not evidence. Decide the case on the evidence.
Evidence may be either direct or circumstantial. Direct evidence is direct proof of a fact. Usually direct evidence is in the form of testimony by a witness about what the witness said or heard or did. Circumstantial evidence is proof of one or more facts from which you could infer the existence of another fact.
Let me give an example. Imagine that the question is whether a person, John Doe, was at a bar on a particular night. Direct evidence of this fact would be testimony from John Doe's ex-girlfriend that she saw John Doe at the bar that night. Circumstantial evidence of the fact would be John Doe's credit card records showing that a charge was made at the bar that night. This example is meant to show that you should consider both direct and circumstantial evidence. Neither type is automatically more persuasive or valuable than the other. It is up to you to decide how much weight to give any piece of evidence.
Drawing inferences
You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw reasonable inferences or conclusions from the facts that you find have been proved, if such reasonable inferences or conclusions seem justified in light of your own experience and common sense.
Burden of proof
You will hear the term “burden of proof” used during this trial. In simple terms, the phrase “burden of proof” means that the party who makes a claim has the obligation of proving that claim. At the end of the case, I will instruct you on the proper burden of proof to be applied to the issues in this case.
But here is the basic burden of proof concept that you should bear in mind as you hear the evidence. Jeffery has the burden of proving his claims by a “preponderance of the evidence.” Preponderance of the evidence means that when you have considered all the evidence in the case, you must be persuaded that the claim is more probably true than not true.
Credibility of witnesses
In deciding the facts, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, part of it, or none of it.
In considering the testimony of any witness, you may take into account many factors, including the witness's opportunity and ability to see or hear or know the things the witness testifies about; the quality of the witness's memory; the witness's appearance and manner while testifying; the witness's interest in the outcome of the case; any bias or prejudice the witness may have; other evidence that may have contradicted the witness's testimony; and the reasonableness of the witness's testimony in light of all the evidence. The weight of the evidence does not necessarily depend upon the number of witnesses who testify.
A witness may be discredited by contradictory evidence or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If you believe any witness has been discredited, it is up to you to decide how much of the testimony of that witness you believe. If a witness is shown to have given false testimony knowingly, that is, voluntarily and intentionally, about any important matter, you have a right to distrust the witness's testimony about other matters. You may reject all the testimony of that witness or you may choose to believe some or all of it.
There are three specific rules that apply to prior statements by witnesses.
First, the general rule is that if you find that a witness said something before the trial that is different from what the witness said at trial, you are to consider the prior statement only as an aid in evaluating the truthfulness of the witness's testimony at trial. You cannot consider the prior statement as evidence to prove a fact at issue in this trial.
Second, there is an exception to this general rule for witnesses who are the actual parties in the case. If you find that any of the parties made statements before the trial began that are different from the statements they made at trial, you may consider as evidence in the case whichever statement you find more believable.
Third, depositions are another exception to the general rule. Depositions are made under oath and you should consider them like any other testimony. So prior statements in depositions can be used both to evaluate the truthfulness of a live witness and as evidence to prove a fact at issue in this trial.
Experts
A person's training and experience may make him or her an expert in a technical field. The law allows that person to state an opinion here about matters in that particular field. It is up to you to decide whether you believe the expert's testimony and choose to rely upon it. Part of that decision will depend on your judgment about whether the expert's background of training and experience is sufficient for him or her to give the expert opinion that you heard, and whether the expert's opinions are based on sound reasons, judgment, and information.
During the trial, an expert witness may be asked a question based on assumptions that certain facts are true and then asked for his or her opinion based upon that assumption. Such an opinion is of use to you only if the assumption is based on assumed facts that are proven later. If you find that the assumptions stated in the question have not been proven, then you should not give any weight to the answer the expert gave to the question.
Depositions
During the course of a trial, the parties may refer to and read from depositions. Depositions are transcripts of testimony taken while the parties are preparing for trial. Deposition testimony is given under oath just like testimony given during the trial. You should give deposition testimony the same consideration that you would give to live testimony given by the witnesses here in court.
Objections
During the trial, you will hear the parties make objections to certain questions or to certain answers of the witnesses. When they do so, it is because they believe the question or answer is legally improper and they want me to rule on it. Do not try to guess why the objection is being made or what the answer would have been if the witness had been allowed to answer it.
If I tell you not to consider a particular statement that has already been made, put that statement out of your mind and remember that you may not refer to it during your deliberations.
Questions
During the trial, I may sometimes ask a witness questions. Please do not assume that I have any opinion about the subject matter of my questions.
If you wish to ask a question about something that you do not understand, write it down on a separate slip of paper. When the parties have finished all of their questions to the witness, if your question is still unanswered to your satisfaction, raise your hand, and I will take the written question from you, show it to the parties, and decide whether it is a question that can be asked. If it cannot, I will tell you that.
Notetaking
If you want to take notes, there are notepads and pencils next to the jury bench. This does not mean you have to take notes; take notes only if you want to and if you think they will help you to recall the evidence during your deliberations. Do not let notetaking interfere with your important duties of listening carefully to all of the evidence and of evaluating the credibility of the witnesses. Keep in mind that just because you have written something down it does not mean that the written note is more accurate than another juror's mental recollection of the same thing. No one of you is the “secretary” for the jury, charged with the responsibility of recording evidence. Each of you is responsible for recalling the testimony and other evidence.
Although you can see that the trial is being recorded by a court reporter, you should not expect to be able to use trial transcripts in your deliberations. You will have to rely on your own memories.
Seeing the monitors
We have two monitors that we use to present evidence. If you have trouble seeing the monitors or the evidence that is presented, please raise your hand. We can adjust the position of one of the monitors, and I can ask the parties to enlarge the exhibits that they are displaying.
POSTTRIAL JURY INSTRUCTIONS DRAFT DRAFT 7.1.24
INTRODUCTION
Now that you have heard the evidence, I will take about 15 minutes to give you the instructions that will govern your deliberations in the jury room. It is my job to decide what rules of law apply to the case and to explain those rules to you.
You have two duties as a jury. Your first duty is to decide the facts from the evidence in the case. This is your job, and yours alone.
Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow all of them.
Perform these duties fairly and impartially. Do not allow sympathy, prejudice, fear, or public opinion to influence you.
The case will be submitted to you on a special verdict form with multiple questions. Note that certain questions in the verdict are to be answered only if you answer a preceding question in a certain manner. Read the introductory portion of each question very carefully before you answer it. Do not answer questions needlessly.
In answering the questions, you should consider only the evidence that has been received at this trial. Do not concern yourselves with whether your answers will be favorable to one side or another, or with what the final result of this lawsuit may be.
The verdict must represent the considered judgment of each juror. Your verdict, whether for or against any party, must be unanimous. You should make every reasonable effort to reach a verdict. In doing so, you should consult with one another, express your own views, and listen to the opinions of your fellow jurors. Discuss your differences with an open mind. Do not hesitate to reexamine your own views and change your opinion if you come to believe it is wrong. But you should not surrender your honest beliefs about the weight or effect of evidence solely because of the opinions of other jurors or for the purpose of returning a unanimous verdict. All of you should give fair and equal consideration to all the evidence and deliberate with the goal of reaching an agreement that is consistent with the individual judgment of each juror. You are impartial judges of the facts.
Your deliberations will be secret. You will never have to explain your verdict to anyone.
Considering the evidence
You must base your verdict on the evidence presented in the courtroom. But you should use common sense in weighing the evidence and consider the evidence in light of your own observations in life.
All parties are equal before the law. The fact that a witness is a prisoner or a correctional officer does not automatically make that witness's testimony more or less credible.
You have heard evidence that Jeffery has been convicted of crimes. You may consider this evidence only in deciding whether Jeffery's testimony is truthful in whole, in part, or not at all. You may not consider this evidence for any other purpose.
During this trial, I asked questions of witnesses. Do not assume that because I asked questions that I hold any opinions on the matters I asked about, or on what the outcome of the case should be. If you have formed any idea that I have an opinion about how the case should be decided, disregard that idea. It is your job, not mine, to decide the facts of this case.
Burden of proof
When I say that a particular party must prove something by “a preponderance of the evidence,” it means that when you have considered all the evidence in the case, you must be persuaded that it is more probably true than not true.
If, after you have discussed the testimony and all other evidence that bears upon a particular question, you find that the evidence is so uncertain or inadequate that you have to guess what the answer should be, then the party with the burden of proof as to that question has not met the required burden of proof. Your answers are not to be based on guesswork or speculation. They are to be based upon credible evidence from which you can find the existence of the facts that the party must prove to satisfy the burden of proof on the question under consideration.
Personal involvement
Jeffery must prove by a preponderance of the evidence that each defendant was personally involved in the conduct that Jeffery complains about. You may not hold any defendant liable for what others did or did not do.
Zenk and Schultz are being sued as individuals. Neither the Wisconsin Department of Corrections nor the state of Wisconsin is a party to this lawsuit.
Multiple claims and multiple defendants
You must give separate consideration to each claim and each party in this case. In considering a claim against a defendant, you must not consider evidence admitted only against the other defendant.
Expert witnesses
You have heard witnesses give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness's qualifications, and all of the other evidence in the case.
Evidence of policies and procedures
You have heard evidence about whether Zenk complied with a use-of-force policy. You may consider this evidence in your deliberations. But remember that the issue is whether Zenk violated Jeffery's Eighth Amendment rights, not whether that policy might have been complied with.
INSTRUCTIONS ON THE CLAIMS AND DAMAGES
Jeffery is suing both Zenk and Schultz under the Eighth Amendment to the United States Constitution based on events that occurred on April 21, 2021. But Jeffery's Eighth Amendment claims are based on separate theories. First, Jeffery contends that Zenk violated his rights under the Eighth Amendment by using excessive force on him. Second, Jeffery contends that Schultz violated his rights under the Eighth Amendment by intentionally depriving him of necessary medical care.
SHOW THE VERDICT FORM
The verdict form has six total questions. You will not necessarily have to answer every question. After each question, there are instructions about what question you should answer next. Do not answer questions needlessly.
Question 1: Eighth Amendment excessive force
Question 1 asks whether Zenk violated Jeffery's rights under the Eighth Amendment by using excessive force against him.
To succeed on his Eighth Amendment excessive force claim against Zenk, Jeffery must prove each of the following two things, which we call elements, by a preponderance of the evidence:
1. Zenk intentionally used force on Jeffery.
2. Zenk did so for the purpose of harming Jeffery, and not in a good-faith effort to maintain or restore security or order.
3. Zenk's conduct harmed Jeffery. Jeffery does not need to prove that he suffered serious injury. If Zenk's use of force caused pain to Jeffery, that is sufficient harm, even if Jeffery did not require medical attention or did not have long lasting injuries.
In deciding whether Jeffery has proved that Zenk used force for the purpose of harming him, you should consider all of the circumstances. Among the factors you may consider are the need to use force, the relationship between the need to use force and the amount of force used, the extent of Jeffery's injury, whether Zenk reasonably believed that there was a threat to the safety of staff or prisoners, any efforts made by Zenk to limit the amount of force used, and whether Zenk was acting pursuant to a policy or practice of the prison that in the reasonable judgment of prison officials was needed to preserve security or order.
If you find that Jeffery has proved each of these elements by a preponderance of the evidence, then you must answer “YES” to Question 1.
If, on the other hand, you find that Jeffery has failed to prove any one of these elements by a preponderance of the evidence, then you must answer “NO” to Question 1.
Question 4: Eighth Amendment medical care
To succeed on his Eighth Amendment medical care claim against Schultz, Jeffery must prove the following things:
1. Jeffery had a serious medical need. A serious medical need is a condition that a doctor says requires treatment or something so obvious that even someone who is not a doctor would recognize that it requires treatment.
2. Schultz was aware that Jeffery had a serious medical need, or strongly suspected facts showing a strong likelihood that Jeffery had a serious medical need but refused to confirm whether these facts were true. You may infer awareness from the fact that the need was obvious.
3. Schultz consciously failed to take reasonable measures to provide treatment for the serious medical need. Jeffery does not have to show that Schultz ignored him or provided no care. If Schultz provided some care, Jeffery must show that Schultz knew that her actions likely would be
ineffective or that Schultz's actions were clearly inappropriate. In deciding this, you may consider how serious the potential harm to Jeffery was, how difficult it would have been for Schultz to take additional corrective action, and whether Schultz had legitimate reasons related to safety or security for failing to take additional action.
4. As a result of Schultz's actions or inaction, Jeffery was harmed. Jeffery may prove that Schultz harmed him with evidence that his lip pain worsened as a result of Schultz's conduct or that he suffered unnecessarily prolonged pain.
If you find that Jeffery has proved each of these elements by a preponderance of the evidence, then you must answer “YES” to Question 4.
If, on the other hand, you find that Jeffery has failed to prove any one of these things by a preponderance of the evidence, then you must answer “NO” to Question 4.
Questions 2 and 5: Compensatory damages
If you decide that Zenk and Shultz did not violate Jeffery's Eighth Amendment rights, then you should not consider the damages questions. If you decide that Zenk or Shultz violated Jeffery's Eighth Amendment rights, then you must determine what amount of damages, if any, that Jeffery is entitled to recover against that defendant.
Jeffery bears the burden to prove his damages by a preponderance of the evidence. Your verdict must not be based on guesswork. But Jeffery need not prove the amount of his damages with mathematical precision. In determining the amount of damages, you must base your answer on evidence that reasonably supports your determination of damages under all of the circumstances of the case. You should award as damages the amount of money that you find fairly and reasonably compensates Jeffery for the injuries that a particular defendant caused.
The parties' arguments about damages must be supported by the evidence. The parties' arguments should help you understand the case, but remember that the arguments are not evidence. It is your job to determine the amount of the damages sustained from the evidence you have seen and heard. Examine that evidence carefully and impartially. Do not add to the damage award or subtract anything from it because of sympathy to one side or because of hostility to one side. Do not make any deductions because of a doubt in your minds about the liability of any of the parties.
If you find that Jeffery has proven by a preponderance of the evidence that he suffered a physical injury, you may award damages for any mental or emotional injury that Jeffery suffered as well. If you find that Jeffery did not suffer a physical injury, you may not award damages for mental or emotional injury. Whether or not Jeffery proves a physical injury, you may award nominal damages and punitive damages, so long as you find that Jeffery has met the standard for obtaining those damages.
Damages are not 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: The physical, mental, and emotional pain and suffering that Jeffery has experienced. No evidence of the dollar value of these injuries 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 Jeffery for the injuries that a particular defendant caused.
If you return a verdict for Jeffery, but Jeffery has failed to prove compensatory damages, then you must award nominal damages of $1.00.
Questions 3 and 6: Punitive damages
If you find for Jeffery on any of his claims against Zenk or Schultz, you may, but are not required to, assess punitive damages against either or both of the defendants. The purposes of punitive damages are to punish a defendant for his or her conduct and to serve as a warning to the defendant and to others not to engage in similar conduct in the future.
Jeffery must prove by a preponderance of the evidence that punitive damages should be assessed against a particular defendant. You may assess punitive damages against a particular defendant only if Jeffery has proved that the defendant's conduct was malicious or in reckless disregard of Jeffery's rights. Conduct is malicious if it is accompanied by ill will or spite, or is done for the purpose of injuring Jeffery. Conduct is in reckless disregard of Jeffery's rights if, under the circumstances, the defendant simply did not care about Jeffery's 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 the defendant's conduct;
• the impact of the defendant's conduct on Jeffery;
• the relationship between Jeffery and the defendant;
• the likelihood that the 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 that Jeffery suffered.
You will now hear the parties' closing arguments. When they are finished, I will have a few instructions about conducting your deliberations.
INSTRUCTIONS AFTER CLOSING ARGUMENTS
I have just a couple of final instructions about conducting deliberations.
When you go to the jury room to begin considering the evidence in this case you should first select one of the members of the jury to act as your presiding juror. This person will help to guide your discussions in the jury room.
You are free to deliberate in any way you decide, or select whomever you like as the presiding juror. When thinking about who should be presiding juror, you may want to consider the role that a presiding juror usually plays. He or she serves as the chairperson during the deliberations and has the responsibility of ensuring that all jurors who desire to speak have a chance to do so before any vote. The presiding juror should guide the discussion and encourage all jurors to participate. I encourage you at all times to keep an open mind if you ever disagree or come to conclusions that are different from those of your fellow jurors. Listening carefully and thinking about the other juror's point of view may help you understand that juror's position better or give you a better way to explain why you think your position is correct.
You should use my instructions to the jury as a guide to determine whether there is sufficient evidence to prove all the necessary legal elements for each claim or defense. I also suggest that any formal votes on a verdict be delayed until everyone can have a chance to say what they think without worrying what others on the panel might think of their opinion.
Once you are in the jury room, if you need to communicate with me, the presiding juror will send a written message to me. However, do not tell me how you stand as to your verdict.
As I have mentioned before, the decision you reach must be unanimous; you must all agree.
SPECIAL VERDICT DRAFT 7.1.24
We, the jury, for our special verdict, do find as follows:
CLAIM AGAINST KYLE ZENK
QUESTION 1. Did defendant Kyle Zenk use excessive force on plaintiff Glen R. Jeffery, Jr. on April 21, 2021, in violation of the Eighth Amendment?
Answer: __(Yes or No)
If you answered YES to Question 1, answer Questions 2 and 3. If you answered NO to Question 1, do not answer Questions 2 or 3 and, instead, proceed to Question 4.
QUESTION 2. What amount of money, if any, would fairly and adequately compensate Jeffery for the harm caused by Zenk's excessive force?
Answer: $__
If you answered YES to Question 1, answer Question 3. If you answered NO to Question 1, do not answer Question 3 and, instead, proceed to Question 4.
QUESTION 3. What amount of money, if any, do you award as punitive damages against Zenk?
Answer: $__
Proceed to Question 4.
CLAIM AGAINST GWEN SCHULTZ
QUESTION 4. Did defendant Gwen Schultz intentionally deprive Jeffery of medical care on April 21, 2021, in violation of the Eighth Amendment?
Answer: __(Yes or No)
If you answered YES to Question 4, answer Questions 5 and 6. If you answered NO to Question 4, STOP, and do not answer any more questions.
QUESTION 5. What amount of money, if any, would fairly and adequately compensate Jeffery for the harm caused by Schultz?
Answer: $__
If you answered YES to Question 4, answer Question 6. If you answered NO to Question 4, STOP, and do not answer any more questions.
QUESTION 6. What amount of money, if any, do you award as punitive damages against Schultz?
Answer: $__
Presiding Juror
Madison, Wisconsin