IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

____________________

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - DUTY OF JURORS 3

NO. 4 - ELEMENTS OF THE CLAIMS 4

NO. 5 - BURDEN OF PROOF 6

NO. 6 - ORDER OF TRIAL 7

NO. 7 - DEFINITION OF EVIDENCE 8

NO. 8 - CREDIBILITY OF WITNESSES 9

NO. 9 - DEPOSITIONS 10

NO. 10 - INTERROGATORIES 11

NO. 11 - OBJECTIONS 12

NO. 12 - BENCH CONFERENCES 13

NO. 13 - NOTE-TAKING 14

NO. 14 - CONDUCT OF JURORS DURING TRIAL 15

FINAL INSTRUCTIONS 17

NO. 1 - INTRODUCTION 17

NO. 2 - IMPEACHMENT OF WITNESSES 18

NO. 3 - EXCESSIVE FORCE 19

NO. 4 - FAILURE TO PROTECT 20

NO. 5 - DAMAGES--IN GENERAL 22

NO. 6 - ACTUAL AND NOMINAL DAMAGES 24

NO. 7 - DELIBERATIONS 25

VERDICT FORM

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS

Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.

PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE

The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

This is a civil case arising out of plaintiff Roosevelt Scott's incarceration in the Woodbury County Jail from February 12, 1999, to March 18, 1999. The defendants--Rod Ketchens, Mark Perez, Oscar Sanchez, and Christopher Jansen--were all employees of Woodbury County working at the Woodbury County Jail during the time that Mr. Scott was incarcerated there.

During his incarceration, Mr. Scott claims that, on one occasion, defendants Perez, Sanchez, and Jansen used excessive force to subdue him. He also claims that defendants Ketchens, Perez, Sanchez, and Jansen failed to protect him from attack by another inmate they knew to be Mr. Scott's enemy. Mr. Scott seeks an award of monetary damages on each of his claims.

The defendants deny Mr. Scott's claims. More specifically, they deny that Mr. Scott was subdued or that they used excessive force. They also deny that they knew Mr. Scott had enemies in the Jail. Finally, they deny Mr. Scott's allegation that they failed to protect him.

You will be asked to resolve these disputes between the parties.

PRELIMINARY INSTRUCTION NO. 3 - DUTY OF JURORS

It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. All persons stand equal before the law, and are entitled to the same fair consideration by you. Also, Mr. Scott has brought claims against several defendants. Mr. Scott is entitled to separate consideration of each of his claims against each of the defendants named on that claim. Each defendant is also entitled to be considered separately from the other defendants on each claim and each defendant is entitled to separate consideration of each claim against him.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

PRELIMINARY INSTRUCTION NO. 4 - ELEMENTS OF THE CLAIMS

To help you follow the evidence, here is a brief summary of the elements of Mr. Scott's "excessive force" and "failure to protect" claims.

"Excessive force"

Mr. Scott asserts his "excessive force" claim against defendants Perez, Sanchez, and Jansen. To win his "excessive force" claim against a particular defendant, Mr. Scott must prove the following elements by the greater weight of the evidence as to that defendant:

One, the defendant kneed Mr. Scott in the back or slammed his face into a copy machine;

Two, the use of such force was excessive, because it was not reasonably necessary to restore order or maintain discipline; and

Three, as a direct result, Mr. Scott was damaged.

If Mr. Scott fails to prove all three of these elements by the greater weight of the evidence against a particular defendant, your verdict must be for that defendant on Mr. Scott's "excessive force" claim. However, if Mr. Scott proves all three of these elements by the greater weight of the evidence against a particular defendant, then he is entitled to damages in some amount on his "excessive force" claim.

"Failure to protect"

Mr. Scott asserts his "failure to protect" claim against defendants Ketchens, Perez, Sanchez, and Jansen. To win his "failure to protect" claim against a particular defendant, Mr. Scott must prove the following elements by the greater weight of the evidence as to that defendant:

One, fellow inmate John Buckendahl physically attacked Mr. Scott;

Two, the defendant was aware of a substantial risk of such an attack;

Three, the defendant, with deliberate indifference to Mr. Scott's need to be protected from such an attack, failed to protect Mr. Scott; and

Four, as a direct result, Mr. Scott was damaged.

If Mr. Scott fails to prove all four of these elements by the greater weight of the evidence against a particular defendant, your verdict must be for that defendant on Mr. Scott's "failure to protect" claim. However, if Mr. Scott proves all four of these elements by the greater weight of the evidence against a particular defendant, then he is entitled to damages in some amount on his "failure to protect" claim.

This is only a preliminary outline of the elements of Mr. Scott's claims. At the end of the trial, I will give you final written instructions that explain these claims in greater detail. Because they are more detailed, those final instructions govern on the elements of Mr. Scott's claims.

PRELIMINARY INSTRUCTION NO. 5 - BURDEN OF PROOF

In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim depends upon that fact, in this case, plaintiff Scott. Mr. Scott must prove facts by the "greater weight of the evidence." To prove something "by the greater weight of the evidence" means to prove that it is more likely true than not true. The "greater weight of the evidence" is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.

The "greater weight" of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.

PRELIMINARY INSTRUCTION NO. 6 - ORDER OF TRIAL

The trial will proceed as follows:

After these preliminary instructions, the plaintiff's attorney may make an opening statement. Next, the lawyer for the defendants may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyer expects the evidence to be.

The plaintiff will then present evidence and call witnesses and the lawyer for the defendants may cross-examine them. Following the plaintiff's case, the defendants may present evidence and call witnesses and the lawyer for the plaintiff may cross-examine them.

After the evidence is concluded, I will give you most of the final instructions. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you the remaining final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE

You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person or testimony previously given, which includes depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

You should not take anything I may say or do during the trial as indicating what I think of the evidence.

PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

PRELIMINARY INSTRUCTION NO. 9 - DEPOSITIONS

Certain testimony from a deposition may be read into evidence. A deposition is testimony taken under oath before the trial and preserved in writing. Consider that testimony as if it had been given in court.

PRELIMINARY INSTRUCTION NO. 10 - INTERROGATORIES

During this trial, you may hear the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.

PRELIMINARY INSTRUCTION NO. 11 - OBJECTIONS

From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.

PRELIMINARY INSTRUCTION NO. 12 - BENCH CONFERENCES

During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.

PRELIMINARY INSTRUCTION NO. 13 - NOTE-TAKING

If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.

PRELIMINARY INSTRUCTION NO. 14 - CONDUCT OF JURORS

DURING TRIAL

You will not be required to remain together while court is in recess. However, to ensure fairness, you, as jurors, must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the case sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you either.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

DATED this 8th day of August, 2001.

_____________________________

PAUL A. ZOSS

MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT

FINAL INSTRUCTION NO. 1 - INTRODUCTION

Members of the jury, the instructions I gave you at the beginning of the trial and any oral or written instructions I gave you during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

In considering these instructions, the order in which they are given is not important.

Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.

FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES

In Preliminary Instruction No. 8, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or "impeached" by contradictory evidence, or by evidence that at some 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 impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.

You have heard evidence that one or more witnesses have been convicted of a crime. You may use that evidence only to help you decide whether to believe such a witness and how much weight to give his testimony.

FINAL INSTRUCTION NO. 3 - EXCESSIVE FORCE

Mr. Scott asserts his "excessive force" claim against defendants Sanchez and Jansen. Mr. Scott's excessive force claim against defendant Perez has been dismissed. To win his "excessive force" claim against a particular defendant, Mr. Scott must prove the following elements by the greater weight of the evidence as to that defendant:

One, the defendant kneed Mr. Scott in the back or slammed his face into a copy machine.

Two, the use of such force was excessive, because it was not reasonably necessary to restore order or maintain discipline.

In determining whether the force, if any, was excessive, you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether it was used for punishment or instead to achieve a legitimate purpose such as maintaining order or security within the Woodbury County Jail and whether a reasonable officer on the scene would have used such force under similar circumstances.

Three, as a direct result, Mr. Scott was damaged.

Mr. Scott must show that he suffered damage, pain, misery, anguish, or similar harm.

If Mr. Scott fails to prove all three of these elements by the greater weight of the evidence against a particular defendant, your verdict must be for that defendant on Mr. Scott's "excessive force" claim. However, if Mr. Scott proves all three of these elements by the greater weight of the evidence against a particular defendant, then he is entitled to damages in some amount on his "excessive force" claim.

FINAL INSTRUCTION NO. 4 - FAILURE TO PROTECT

Mr. Scott asserts his "failure to protect" claim against defendants Ketchens, Perez, Sanchez, and Jansen. To win his "failure to protect" claim against a particular defendant, Mr. Scott must prove the following elements by the greater weight of the evidence as to that defendant:

One, fellow inmate John Buckendahl physically attacked Mr. Scott.

Two, the defendant was aware of a substantial risk of such an attack.

The defendant must know of an excessive risk to the inmate's health or safety. The defendant must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference. Whether a defendant had the required knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence. For example, if the plaintiff presents evidence showing that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by jail officials in the past, and circumstances suggest that the defendant being sued had been exposed to information concerning the risk and thus must have known about it, then such evidence could be sufficient to permit you to find that the defendant had actual knowledge of the risk.

Three, the defendant, with deliberate indifference to Mr. Scott's need to be protected from such an attack, failed to protect Mr. Scott.

The Constitution requires that jail officials take reasonable measures to guarantee the safety of the inmates, including a duty to protect inmates from violence at the hands of other inmates. This is so, because being violently assaulted in jail is simply not part of the penalty that criminal offenders pay for their offenses against society. However, you must consider whether a defendant jail official was deliberately indifferent to the safety of the plaintiff with due regard to a jail official's unenviable task of keeping dangerous men in safe custody under humane conditions. Thus, the question of deliberate indifference is whether the defendant jail official acted reasonably.

"Deliberate indifference" is established only if the defendant had actual knowledge of a substantial risk that the plaintiff would be attacked, as knowledge is explained in element two above, and the defendant disregarded that risk by intentionally refusing or failing to take reasonable measures to deal with the problem. Mere negligence or inadvertence does not constitute deliberate indifference.

Four, as a direct result, Mr. Scott was damaged.

Mr. Scott must show that he suffered damage, pain, misery, anguish, or similar harm.

If Mr. Scott fails to prove all four of these elements by the greater weight of the evidence against a particular defendant, your verdict must be for that defendant on Mr. Scott's "failure to protect" claim. However, if Mr. Scott proves all four of these elements by the greater weight of the evidence against a particular defendant, then he is entitled to damages in some amount on his "failure to protect" claim.

FINAL INSTRUCTION NO. 5 - DAMAGES--IN GENERAL

The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance, in the event that you should find that the plaintiff is entitled to damages in accord with the other instructions.

However, if you find in favor of Mr. Scott on either or both of his claims against one or more defendants, then you must award him such sum as you find will fairly and justly compensate him for any damages you find he sustained as a direct result of the wrongful conduct of the defendant or defendants. I will now explain to you some matters applicable to all of your determinations of damages.

In arriving at the amount of damages on a claim, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages for that claim. Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. However, the amount, if any, you assess for items of non-economic damages, such as damages for emotional distress, cannot be measured by an exact or mathematical standard. A plaintiff does not need to introduce evidence of the monetary value of such elements of damages. You must use your sound judgment based upon an impartial consideration of the evidence to determine the amount of damages, if any, for emotional distress.

You must not award actual damages on a claim by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties. The amount you assess for any item of damage must not exceed the amount caused by the wrongful conduct of the defendant or defendants as proved by the evidence.

You must award the full amount for any item of damages that Mr. Scott has proved. However, a party cannot recover duplicate damages. Therefore, do not allow amounts awarded under one item of damage to be included in any amount awarded under another item of damage.

Attached to these Instructions is a Verdict Form, which you must fill out upon completion of your deliberations. You should only award those damages, if any, that Mr. Scott has proved by the greater weight of the evidence.

FINAL INSTRUCTION NO. 6 - ACTUAL AND NOMINAL DAMAGES

If you find in favor of Mr. Scott on either or both of his claims, then you must award damages that Mr. Scott has proved by the greater weight of the evidence on a claim on which he prevails. Mr. Scott seeks two distinct types of damages, and you must consider them separately.

Actual damages. You may award actual damages for physical pain and mental or emotional suffering Mr. Scott has experienced and is reasonably certain to experience in the future. In determining the amount of such damages, you may consider the nature and extent of the injury, whether the injury was temporary or permanent, and whether any resulting disability is partial or total.

Nominal damages. If you find in favor of Mr. Scott on either or both of his claims, but you find that his damages have no monetary value, then you must return a verdict for plaintiff in the nominal amount of One Dollar ($1.00).

FINAL INSTRUCTION NO. 7 - DELIBERATIONS

In conducting your deliberations and returning your verdict, there are certain rules you must follow.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and complete it when you have reached a verdict. Your verdict must be unanimous and you must all sign the verdict form. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 8th day of August, 2001.

_____________________________

PAUL A. ZOSS

MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION

____________________

On plaintiff Roosevelt Scott's claims, we, the Jury, find as follows:

Date: ________________ Time: ________________