Plaintiff, Defendants. DEFENDANTS PROPOSED JURY INSTRUCTIONS

Transcription

1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK AMARE SELTON, Plaintiff, -against- TROY MITCHELL; E. RIZZO; M. WOODARD; B. SMITH, 04-CV-0989 (LEK)(RFT) Defendants. DEFENDANTS PROPOSED JURY INSTRUCTIONS ELIOT SPITZER, Attorney General of e State of New York Attorney for Defendants Troy Mitchell, Edward Rizzo, Michael Woodard, and Bradley Smi The Capitol Albany, NY Christopher W. Hall Assistant Attorney General, of Counsel Bar Roll No Telephone: (518) Fax: (518) (Not for service of papers) Date: November 6, 2006

2 Table of Contents General Introduction - Province of Court and Jury State not a defendant...2 Multiple Defendants...3 Attorney Objections...4 What is not evidence...5 Evidence in e case...6 Preponderance of e Evidence...8 Direct and Circumstantial Evidence Defined Presumption of Regularity...10 Credibility of Witnesses...11 Inconsistent Statements/Falsus In Uno Falsus in Omnibus Impeachment Conviction of a Felony...14 All Available Witnesses or Evidence Need not be Produced Elements of a 1983 Claim...16 First Element Action under Color of State Law Second Element Deprivation of Rights under e Eigh Amendment Third Element Proximate Cause of Injury Qualified Immunity...22 Actual (Compensatory) Damages...24 Nominal Damages...25 Punitive Damages...26 ii

3 General Introduction - Province of Court and Jury Now at you have heard e evidence and e argument, it is my duty to instruct you about e applicable law. It is your duty to follow e law as I will state it and to apply it to e facts as you find em from e evidence in e case. Do not single out one instruction as stating e law, but consider e instructions as a whole. You are not to be concerned wi e wisdom of any rule of law stated by me. You must follow and apply e law. [The lawyers have properly referred to some of e governing rules of law in eir arguments. If ere is any difference e law stated by e lawyers and as stated in ese instructions, you are governed by ese instructions.] Noing I say in ese instructions indicates at I have any opinion about e facts. You, not I, have e duty to determine e facts. You must perform you duties as jurors wiout bias or prejudice as to any party. The law does not permit you to be controlled by sympay, prejudice, or public opinion. All parties expect at you will carefully and impartially consider all e evidence, follow e law as it is now being given to you, and reach a just verdict, regardless of e consequences. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed.,

4 State not a defendant Neier e State of New York, nor e New York State Department of Correctional Services are defendants in is case. The only defendants are ose individuals who have been introduced to you as such. Wilson v. Prasse, 325 F. Supp. 9 (WD Pa. 1971) affirmed 463 F.2d 109 (3d Cir. 1972). 2

5 Multiple Defendants Alough ere is more an one defendant in is action, it does not follow from at fact alone at if one defendant is liable to e plaintiff, all defendants are liable. The law requires at a defendant be personally involved in conduct at deprived plaintiff of his constitutional rights before at defendant may be held liable for such deprivation. Thus, each defendant is entitled to a fair consideration of e evidence, and you may not find a defendant liable for e actions taken by any oer person; nor may you award damages, if you reach e question of damages, against a defendant based upon actions taken by anoer individual. No defendant is to be prejudiced should you find against anoer defendant. Unless oerwise stated, all instructions I give you govern e case as to each defendant. O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 2000); McKinnon v. Patterson, 568 F. 2d 930 (2d Cir. 1977) cert. denied 434 US 1087 (1978); Devitt, Blackmar and Wolff, Federal Jury Practice and Instructions, 71.03, (3d Ed. 1977). 3

6 Attorney Objections When one party asks a question or offers an exhibit into evidence and e oer party inks it is not permitted by e rule of evidence, at party or his lawyer may object. Counsel have not only e right, but e duty to make whatever legal objections ere may be to e admission of evidence. If I overrule e objection, e question may be answered or e exhibit received into evidence. If I sustain e objection e question cannot be answered and e exhibit cannot be received into evidence. If I sustain an objection to a question of e admission of an exhibit, you must ignore e question and must not guess what e answer to e question might have been. In addition, you must not consider evidence at I have ordered stricken from e record. O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 2000); Devitt, Blackmar and Wolff, Federal Jury Practice and Instructions, (3d Ed. 1977). 4

7 What is not evidence In deciding e facts of is case, you are not to consider e following as evidence: statements and arguments of e lawyers, questions and objections of e lawyers, testimony at I instruct you to disregard, and anying you may see or hear when e court is not in session even if what you see or hear is done or said by one of e parties or by on of e witnesses. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 5

8 Evidence in e case The evidence in e case will consist of e following: (1) e sworn testimony of e witnesses, no matter who called at witness; (2) all exhibits received in evidence, regardless of who may have produced e exhibit; and (3) all facts at may have been judicially noticed and at you must take as true for purposes of is case. Depositions may also be received in evidence. Depositions contain sworn testimony, wi e lawyers for each party being entitled to ask questions. Deposition testimony may be accepted by you, subject to e same instructions at apply to witnesses testifying in open court. Statements and arguments of e lawyers are not evidence in e case, unless made as an admission or stipulation of fact. A stipulation is an agreement between bo sides at certain facts are true. When e lawyers on bo sides stipulate or agree to e existence of a fact, you must, unless oerwise instructed, accept e stipulation as evidence, and regard at fact as proved. I may take judicial notice of certain facts or events. When I declare at I will take judicial notice of some fact or event, you must accept at fact as true. If I sustain an objection to any evidence or if I order evidence stricken, at evidence must be entirely ignored. Some evidence is admitted for a limited purpose only. When I instruct you at an item of evidence has been admitted for a limited purpose, you must consider it only for at limited purpose and for no oer purpose. You are to consider only e evidence in e case. But in your consideration of e evidence you are not limited to e statements of e witnesses. In oer words, you are not 6

9 limited solely to what you see and hear as e witnesses testified. You may draw from e facts at you find have been proved, such reasonable inferences or conclusions as you feel are justified in light of your experience. O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 2000); Devitt, Blackmar and Wolff, Federal Jury Practice and Instructions, (3d Ed. 1977). 7

10 Preponderance of e Evidence Plaintiff has e burden in a civil action, such as is, to prove every essential element of all claims by a preponderance of e credible evidence. If plaintiff should fail to establish any essential element on a particular claim by a preponderance of e credible evidence, you should find for defendants as to at claim. To establish by a preponderance of e evidence means to prove at someing is more likely so an not so. In oer words, a preponderance of e credible evidence means such evidence as, when considered and compared wi e evidence opposed to it, has more convincing force, and produces in your minds belief at what is sought to be proved is more likely true an not true. This standard does not require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case. In determining wheer any fact in issue has been proved by a preponderance of e credible evidence you may, unless oerwise instructed, consider e testimony of all witnesses, regardless of who may have called em, and all exhibits received in evidence, regardless of who may have produced em. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 8

11 Direct and Circumstantial Evidence Defined Generally speaking, ere are two types of evidence at are presented during a trial direct evidence and circumstantial evidence. Direct evidence is e testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness. Indirect or circumstantial evidence is proof of a chain of facts and circumstances indicating e existence or nonexistence of a fact. As a general rule, e law makes no distinction between e weight or value to be given to eier direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence. You are simply required to find e facts in accordance wi e preponderance of all e credible evidence in e case, bo direct and circumstantial. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 9

12 Presumption of Regularity Unless and until outweighed by evidence in e case to e contrary, you may find at official duty has been regularly performed; at private transactions have been fair and regular; at e ordinary course of business or employment has been followed; at ings have happened according to e ordinary course of nature and e ordinary habits of life; and at e law has been obeyed. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 10

13 Credibility of Witnesses You are e sole judges of e credibility of e witnesses and e weight eir testimony deserves. You may be guided by e appearance and conduct of e witness, or by e manner in which e witness testifies, or by e character of e testimony given, or by evidence contrary to e testimony. You should carefully examine all e testimony given, e circumstances under which each witness has testified, and every matter in evidence tending to show wheer a witness is wory of belief. Consider each witness intelligence, motive and state of mind, and demeanor or manner while testifying. Consider e witness ability to observe e matters as to which e witness has testified, and wheer e witness impresses you as having an accurate recollection of ese matters. Also, consider any relation each witness may have wi eier side of e case, e manner in which each witness might be affected by e verdict, and e extent to which e testimony of each witness is eier supported or contradicted by oer evidence in e case. Inconsistencies or discrepancies in e testimony of a witness, or between e testimony of different witnesses may or may not cause you to discredit such testimony. Two or more persons seeing an event may see or hear it differently. In weighing e effect of a discrepancy, always consider wheer it pertains to a matter of importance or an unimportant detail, and wheer e discrepancy results from innocent error or intentional falsehood. After making your own judgment, you will give e testimony of each witness such weight, if any, at you may ink it deserves. In short, you accept or reject e testimony of any 11

14 witness, in whole or in part. In addition, e weight of e evidence is not necessarily determined by e number of witnesses testifying to e existence or nonexistence of any fact. You may find at e testimony of a small number of witnesses as to any fact is more credible an e testimony of a larger number of witnesses to e contrary. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 12

15 Inconsistent Statements/Falsus In Uno Falsus in Omnibus A witness may be discredited or impeached by contradictory evidence or by evidence at at some oer time e witness has said or done someing, or has failed to say or do someing, at is inconsistent wi e witness present testimony. If e witness is not a party to is action, such prior inconsistent out-of-court statements may be considered for e sole purpose of judging e witness credibility; however, it may never be considered as evidence of proof of e tru of such statement. On e oer hand, where e witness is a party to e case, and by such statement or oer conduct admits some fact or facts against e witness interest, en such statement or oer conduct if knowingly made or done, may be considered as evidence of e tru of e fact or facts so admitted by such party, as well as for e purpose of judging e credibility of e party as a witness. If you believe any witness has been impeached and us discredited, you may give e testimony of at witness such credibility, if any, you ink it deserves. If a witness is shown knowingly to have testified falsely about any material matter, you have a right to distrust such witness oer testimony and you may reject all e testimony of at witness or give it such credibility as you may ink it deserves. An act or omission is knowingly done, if voluntarily and intentionally, and not because of mistake or accident or oer innocent reason. O Malley, Grenig and Lee, Federal Jury Practice and Instructions, , (5 Ed., 2000). 13

16 Impeachment Conviction of a Felony A witness may be discredited or impeached by evidence at e witness has been convicted of a felony, at is, an offense punishable by imprisonment for in excess of one year. If you believe at any witness has been impeached and us discredited, it is your exclusive responsibility to give e testimony of at witness such credibility, if any, as you ink it deserves. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 14

17 All Available Witnesses or Evidence Need not be Produced The law does not require any party to call as witnesses all persons who may have been present at any time or place involved in e case, or who may appear to have some knowledge of e matters in issue at is trial. Nor does e law require any party to produce as exhibits all papers and ings mentioned in e evidence in e case. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 15

18 Elements of a 1983 Claim Plaintiff claims a right to recovery under Section 1983 of Title 42 of e United States Code which reads: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state, subjects any citizen of e United States to e deprivation of any rights, privileges, or immunities secured by e Constitution and law, shall be liable to e party injured in an action at law. Plaintiff claims a deprivation of his rights under e Eigh Amendment of e United States Constitution which prohibits e infliction of cruel and unusual punishments. In order to prove is claim, e burden is upon e plaintiff to establish by a preponderance of e credible evidence e following ree elements: state law; First, at e conduct complained of was committed by a person acting under color of Second, at is conduct deprived e plaintiff of rights, privileges or immunities secured by e Constitution or laws of e United States (here e Eigh Amendment); and Third, at e defendants acts were e proximate cause of e injuries and consequent damages sustained by e plaintiff. I shall now examine each of e ree elements in greater detail. O Malley, Grenig and Lee, Federal Jury Practice and Instructions, Chap. 166 pp.662, 676 (5 Ed., 2000). 16

19 First Element Action under Color of State Law The first element of plaintiff's 1983 claim is at e defendants acted under color of state law. Alough e defendants categorically deny plaintiff's allegations, it is not disputed in is case at e defendants, as employees and officials employed by e New York State Department of Correctional Services, acted under color of state law in e routine course of eir duties. 17

20 Second Element Deprivation of Rights under e Eigh Amendment Inmates are protected from cruel and unusual punishments under e Eigh Amendment of e United States Constitution. Plaintiff claims at defendants used excessive and unnecessary force against him on March 14, 2004 at Auburn Correctional Facility in Auburn, New York. Specifically, plaintiff alleges at when he was subdued after he ran out of his cell in e SHU block at defendant Mitchell deliberately gouged his eye while plaintiff was being subdued on e floor by oer correctional officers. Plaintiff furer alleges at a few minutes later while in e MHU cell at e defendants attacked him and took turns punching him in e face and neck, repeatedly slammed his face into e bare metal platform of a bed in e cell, stripped him naked and en kicked him in e buttocks and genitals. Defendant Mitchell denies at he gouged plaintiff s eye. And all e defendants deny ever using any force on plaintiff in e MHU cell. Defendants furer maintain at any force used during e entire incident, from e time plaintiff left his cell in e SHU block rough e time he was escorted to e MHU cell and examined by Nurse MacClellan, was not excessive, but was measured and limited to regaining or maintaining control of plaintiff. In order to prove a violation under e Eigh Amendment, plaintiff must show at defendants unnecessarily and wantonly inflicted pain on him. Wheer a use of force against a prison inmate is unnecessary and wanton depends on wheer force was applied in a good fai effort to maintain or restore discipline, or wheer it was done maliciously or sadistically to cause harm. In order to prove a violation under e Eigh Amendment, plaintiff must prove two elements by a preponderance of e credible evidence. If plaintiff fails to prove eier of ese 18

21 elements, you must find for defendants. The elements are: First: That defendant prison officials used force against plaintiff maliciously and sadistically, for e very purpose of causing plaintiff harm; and Second: That plaintiff suffered some harm as a result of e use of force by defendant prison officials which was more an de minimus in nature. Maliciously means intentionally injuring anoer wiout just cause or reason. To act maliciously means intentionally to do a wrongful act wiout just cause or excuse, wi an intent to inflict injury or under circumstances at show an evil intent. Sadistically means engaging in extreme or excessive cruelty or delighting in cruelty. The first element, at defendants used force against plaintiff maliciously and sadistically for e very purpose of causing harm, is to be evaluated by a subjective analysis of e defendants state of mind at e time. In deciding wheer is element has been proved, you must give prison officials wide ranging deference in e adoption and execution of policies and practices at in eir judgment are needed to preserve internal order and discipline and to maintain internal security in e prison. In addition, law enforcement officers are often required to make split-second judgments about e need for force and e amount of force needed in a particular situation. Therefore, you must not judge defendants conduct wi 20/20 hindsight. Not every push or shove, even if it may later seem unnecessary in e peace of a judge's chambers or courtroom, violates a prisoner's constitutional rights, nor does every malevolent touch by an officer give rise to a federal cause of action. Some of e factors to consider in determining wheer force was applied in a good fai effort to maintain or restore discipline, or wheer it was done maliciously or sadistically to cause 19

22 harm include: 1. The extent of any injury suffered; 2. The need for e application of force; 3. The relationship between e need and e amount of force used; 4. The reat reasonably perceived by e responsible officials; and 5. Any effort made to temper e severity of a forceful response. 6. Wheer plaintiff provoked e defendants use of force against him. I do not mean to imply from is list of factors at e Constitution was violated merely because plaintiff may have been injured. So long as force was applied in a good fai effort to maintain or restore discipline and not maliciously or sadistically to cause harm, you must find for defendants. Thus, even if plaintiff received some injury at is not proof, in and of itself, at defendants violated plaintiff s right to be free from cruel and unusual punishments under e Eigh Amendment. O Malley, Grenig and Lee, Federal Jury Practice and Instructions, , , , (5 Ed., 2000); Graham v. Connor, 490 US 386, (1988); Johnson v. Glick, 481 F.2d 1028, (2nd Cir. 1973) cert. denied 414 US 1033 (1973); Hudson v. McMillian, 503 US 1, 9 (1992). 20

23 Third Element Proximate Cause of Injury An injury or damage is proximately caused by an act, or a failure to act, whenever it appears from e evidence in e case at e act or omission played a substantial part in bringing about or actually causing e injury or damage to plaintiff, and at plaintiff s injury or damage was eier a direct result or a reasonably probable consequence of e act or omission. Plaintiff has e burden of proving each and every element of his claim by a preponderance of e credible evidence. If you find at plaintiff has not proved any one of e elements by a preponderance of e credible evidence, you must return a verdict for defendants. caused by defendants. In order to find for plaintiff, you must find at plaintiff s injuries were proximally O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 2000); Plaintiff s complaint paragraph

24 Qualified Immunity A government official sued in his individual capacity is entitled to qualified immunity: (1) if e conduct attributed to him is not prohibited by federal law, (2) where at conduct is so prohibited, if e plaintiff's right not to be subjected to such conduct by e defendant was not clearly established at e time of e conduct, or (3) if e defendant's action was objectively legally reasonable in light of e legal rules at were clearly established at e time it was taken. The right e official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense, i.e., e contours of e right must have been sufficiently clear at a reasonable official would understand at what he was doing violated at right. Even if e legal right asserted was clearly protected by federal law, e defendant is entitled to immunity if it was not clear at e time at e particular conduct at issue contravened at known legal right. The objective reasonableness test is met--and e defendant is entitled to immunity--if officers of reasonable competence could disagree on e legality of e defendant's actions. If ere is a "legitimate question," qualified immunity attaches. Three factors must be considered to determine wheer plaintiff s alleged right was clearly established : (1) wheer e right in question was defined wi "reasonable specificity;" (2) wheer relevant decisional law supports e existence of e right in question; and (3) wheer under preexisting law a reasonable government official would have understood at his actions were unlawful. Defendants have e burden of establishing entitlement to qualified immunity by a preponderance of e credible evidence. It is clearly established in is case at plaintiff had a right not to be subjected to cruel and unusual punishments by e use of excessive force. However, if you find at it was 22

25 objectively reasonable for defendants to believe at ey were not violating plaintiff s Eigh Amendment rights in light of e circumstances at e time, defendants are entitled to qualified immunity and, if you so find, you must return a verdict for e defendants. Saucier v. Katz, 533 US 194 (2001); Anderson v. Creighton, 483 US 635, 640 (1987); Mitchell v. Forsy, 472 US 511, 535 n12 (1985); X-Men Sec., Inc. v. Pataki, 196 F.3d 56, (2d Cir. 1999); Danahy v. Buscaglia, 134 F.3d 1185, 1190 (2nd Cir. 1998); Lennon v. Miller 66 F.3d 416,420 (2d Cir. 1995) (quoting, Malley v. Briggs, 475 US 335, [1986]); Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir 1992); Finnegan v. Fountain, 915 F.2d 817, (2d Cir.1990); Snow v. Village of Chaam, 84 F.Supp.2d 322, (NDNY 2000); Abdush-Shahid v. Coughlin, 933 F.Supp. 168, 185 (NDNY 1996) (citing, Rodriguez v. Phillips, 66 F.3d 470, 476 [2d Cir.1995]). 23

26 Actual (Compensatory) Damages If you find in favor of plaintiff, en you must award plaintiff such sum as you find from e preponderance of e credible evidence will fairly and justly compensate plaintiff for any damages you find plaintiff sustained and is reasonably certain to sustain in e future as a direct result of e incident on December 5, The fact at I am instructing you on e question of damages does not mean at I ink you should award any damages; at is entirely for you to decide. A plaintiff is not automatically entitled to recover damages solely by virtue of e fact if you find it to be a fact at his constitutional rights were violated. He must also demonstrate at e constitutional deprivation proximately caused actual injury or loss. In determining such actual injury or loss, you should consider e physical pain plaintiff experienced and is reasonably certain to experience in e future; e nature and extent of e injury, wheer e injury is temporary or permanent and wheer any resulting disability is partial or total, and any aggravation of a pre-existing condition. Throughout your deliberations you must not engage in any speculation, guess, or conjecture and you must not award any damages under is instruction by way of punishment or rough sympay. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 24

27 Nominal Damages If you find in favor of plaintiff under my instructions, but you find at plaintiff s damages have no monetary value, en you must return a verdict for plaintiff in e nominal amount of one dollar. 2000). O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 25

28 Punitive Damages (Defendants contend at e evidence does not warrant e submission of punitive damages instruction to e jury. Nevereless, should e Court issue such a charge, defendants propose e following) In addition to e damages mentioned in e oer instructions, e law permits you to award an injured person punitive damages under certain circumstances in order to punish e defendant for some extraordinary misconduct and to serve as an example or warning to oers not to engage in such conduct. Punitive damages are not favored in law and are to allowed only wi caution and wiin narrow limits. If you find in favor of plaintiff and against defendants and if you find, furer, at defendants conduct was recklessly and callously indifferent to plaintiff en, in addition to any oer damages to which you find e plaintiff is entitled, you may, but are not required to, award plaintiff an additional amount as punitive damages if you find it is appropriate to punish defendants or deter defendants and oers from like conduct in e future. Wheer to award plaintiff punitive damages and e amount of ose damages are wiin your sound discretion. If you decide to award punitive damages against any defendant in is case, we will reconvene for a furer hearing so at you may consider e amount of personal assets and liabilities of such individual defendant or defendants in fixing e amount of punitive damages you may decided to assess. O Malley, Grenig and Lee, Federal Jury Practice and Instructions, (5 Ed., 2000); Smi v. Wade, 461 US 30, 56 (1983); Carey v. Piphus, 435 US 247, 257 n.11 (1978); Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978); Gagne v. Town of Enfield, 734 F.2d (2d Cir. 1984); McFadden v. Sanchez, 710 F.2d 907, (2d Cir. 1983) cert. denied 464 US 961 (1983). 26

29 Dated: Albany, New York November 6, 2006 ELIOT SPITZER Attorney General of e State of New York Attorney for Defendants Troy Mitchell, Edward Rizzo, Michael Woodard, and Bradley Smi Office of e Attorney General The Capitol Albany, New York By: s/ Christopher W. Hall Christopher W. Hall Assistant Attorney General, of Counsel Bar Roll No Telephone: (518) Fax: (518) (Not for service of papers) Christopher.Hall@oag.state.ny.us 27