566 F.3d 1177 (9th Cir. 2009), 07-16764, Clem v. Lomeli

Docket Nº:07-16764.
Citation:566 F.3d 1177
Opinion Judge:HAWKINS, Circuit Judge:
Party Name:James CLEM, Plaintiff-Appellant, v. G. LOMELI, Defendant-Appellee.
Attorney:Karen Kreuzkamp (presented oral arguments) and George C. Harris, Morrison & Foerster, LLP, San Francisco, CA, for the appellant. Vickie P. Whitney (presented oral arguments) and Christopher J. Becker (authored brief), Office of the State of California Attorney General, Sacramento, CA, for the app...
Judge Panel:Before: PROCTER HUG, JR., HAWKINS and RICHARD C. TALLMAN, Circuit Judges.
Case Date:June 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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566 F.3d 1177 (9th Cir. 2009)

James CLEM, Plaintiff-Appellant,

v.

G. LOMELI, Defendant-Appellee.

No. 07-16764.

United States Court of Appeals, Ninth Circuit.

June 2, 2009

Argued and Submitted May 6, 2009.

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[Copyrighted Material Omitted]

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Karen Kreuzkamp (presented oral arguments) and George C. Harris, Morrison & Foerster, LLP, San Francisco, CA, for the appellant.

Vickie P. Whitney (presented oral arguments) and Christopher J. Becker (authored brief), Office of the State of California Attorney General, Sacramento, CA, for the appellee.

Appeal from the United States District Court for the Eastern District of California, James K. Singleton, District Judge, Presiding.

Before: PROCTER HUG, JR., HAWKINS and RICHARD C. TALLMAN, Circuit Judges.

Concurrence by Judge HUG.

OPINION

HAWKINS, Circuit Judge:

Plaintiff James Clem (" Clem" ), an inmate in the custody of the California Department of Corrections, appeals from an adverse jury verdict in his 42 U.S.C. § 1983 civil rights damages action, arguing the district court gave erroneous jury instructions and that the error was not harmless. In the underlying action, Clem alleges he was beaten by his cellmate and that a prison officer is liable for the attack under the Eighth Amendment for failing to abate a known risk. Concluding that the jury instructions misstated the law and that the error was prejudicial, we reverse and remand.

I. BACKGROUND

A. Factual Background

Although this is an appeal from a jury verdict, because we conclude the jury instructions were erroneous, " the prevailing party is not entitled to have disputed factual questions resolved in his favor because the jury's verdict may have resulted from a misapprehension of law rather than from factual determinations in favor of the prevailing party." Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir.2007) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 805-06 (9th Cir.2001)). The record therefore establishes the following:

Clem is an inmate in the custody of the California Department of Corrections at the Mule Creek State Prison in Ione, California. Clem's cellmate during the time relevant to this case was Inmate Godman

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(" Godman" ), who was and is serving a life sentence for murder.

Clem returned to his cell for an afternoon head-count and found Godman in the cell, drunk. Godman had apparently consumed a large quantity of home-made wine. As soon as Clem entered his cell, Godman told Clem " I'll kill you" and threatened to beat him. Clem testified that, feeling frightened, he " yelled" for the head-count officer, Officer Gabriel Lomeli (" Lomeli" ), to move him from the cell because Godman was drunk and threatening to kill him. Lomeli told him to " [d]eal with it." For his part, Lomeli testified that Clem merely explained he was " tired" of being in his cell and needed to be moved. In any event, it is uncontested that Lomeli continued with his count, walking away from Clem's cell without intervening.

Shortly after Lomeli walked away from the cell, Godman began severely beating Clem, breaking his jaw and knocking him unconscious. Minutes later, officers arrived in response to a " loud crash" and found Clem convulsing on the floor of his cell. Lomeli and another prison officer radioed for medical assistance and restrained Godman. Due to the severity of his injuries, Clem was taken to an outside community hospital, where doctors wired his mouth shut. Clem remained in the infirmary for approximately one month.

B. Procedural Background

Clem filed this § 1983 civil action, alleging that Lomeli violated his Eighth Amendment right to be free from cruel and unusual punishment when he failed to alleviate the substantial risk that Godman posed to Clem.

Prior to trial, Clem, appearing pro se, asked the district court to instruct the jury that Lomeli could be found liable if the jury determined he " knew that [Clem] faced a substantial risk of serious harm and disregarded that risk by failing to take measures to abate it. " Lomeli submitted his own proposed instructions, following the Ninth Circuit's Model Civil Jury Instruction 9.25 (2007), which omitted the " failure to act" element, stating instead that liability requires " (1) the plaintiff faced a substantial risk of serious harm; (2) the defendant knew of that risk and disregarded it; and (3) the act...

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